Vincenzo De Michele ( Lawyer of the Foggia Bar)

1. Techniques and strategies for the protection of fundamentalrights in preliminaryrulingsbefore the Court of Justice of the European Union Vincenzo De Michele (Lawyer of the Foggia Bar)

2. The reference for a preliminaryruling • Can the mainproceedingsbe arranged with a view to obtaining a preliminaryruling? • «Job Centre» judgment (lawyerIchino) • …butalso “Mangold” judgment (lawyerHelm) • The CJEU decides on the basisof the questionsasked by the referencejudges • Itisimportant to raise the nationalJudges’ awareness on issuesconcerning EU law • The nationaljudgmentshouldproperlyrepresent the preliminaryissuesthat the nationalJudgeisasked to raise.

3. Preparing and keeping up to date • The only way to be always up to date with the evolution of the CJEU case-law is to studyconstantly. • The CJEU’sorientationsmaychangesuddenly (e.g. overcomingof the ‘Mangold’ judgment by the ‘Deutsche Lufthansa’ and ‘Sorge’ judgments) • To check new preliminary case-law: http://curia.europa.eu

4. Protectingfundamentalrightsthrough a multi-levelaction… • Beingable to actbefore the CJEU and the ECHR simultaneously - Scattolon case: the lawyers’ strategicmoves in the Scattolon case (CJEU) and in the Agrati-Montalto cases (ECHR) • Beingable to stimulatedialoguebetweennational and supranationalcourts: the cases of precarious work in education, maritime work and the electoral law (nicknamed ‘Porcellum’)

5. … by actingproperly • In the preliminaryruling, the principleiuranovit curia islimited to EU law, and doesnotapply to national law, which must be represented by the parties to the proceedings in compliance with the principle of loyalcooperation • Example: the AttorneyGeneral’swrittenobservations in the ‘Affatato’ case regarding the applicability of Art. 5, para. 4 of leg. decree no. 368/2001 to the Civil Service • The lawyers’ loyalcooperationunveils the State’sunloyalty in the proceedings

6. … ready to use “force” • The unusualrevirement of the CJEU on the “Vino” case regarding the economic-social impact the rulingwouldhavehad (art. 2, para. 1-bis of leg. Decree no. 368/2001) • If the Court isnotexhaustive, the questions can be submittedagain: the "Vino II" order • The appeal for revisionof the "Vino" orderof 11.11.2010 for nottakinginto account the writtenobservations and the request of an oralhearing • The appeal to the ECHR against the "Vino" orders for infringement of rules of procedure on the community’s due process …until a change in the Rule of Procedure isobtained (Rule of procedure of the Court of Justice of 29 September 2012)

7. Allcases are not the same Experience teachesusthatone of the factorsthat can affect the CJEU’sdecisionis the value of the case in terms of the impact of the supranationaldecision on the nationallegislations, with special reference to budget constraints. Example: • Conversion of illegalfixed-termemploymentcontracts in Poste Italiane S.p.A. • Requalification of the succession of fixed-termemploymentcontracts in the privatisedcivil service, namely in education • Transfer of auxiliary and administrative staff from Local Authorities to the Ministry of Education

8. Operationalguidelines • Always phrase the writtenobservations in the interest of the party to the proceedings, also to represent the national law properly • Prepare notes for the oralhearing • Ex. “Carratù” case: no writtenobservationshadbeensubmitted Application to re-open the oral stage under Art. 83 of the Regulation (critique to Advocate General Wahl’sreconstruction of the juridicalaspects and of the proceedings) Rejection / Acceptance Reference judge’scleararguments

9. Perspectives • Acting in a network, collaborating with all the lawyersdefendingcasesbeforeEuropeanCourtsto cooperate in the drafting of pleadings and exchange information on pendingcases in real time • Monitor the CJEU’s case-law concerningother EU countries • Train legalprofessionals and encourage the doctrine to look at EU law on a dailybasis