C-52/97

VISCIDO AND OTHERS v ENTE POSTE ITALIANE

OPINION OF ADVOCATE GENERAL JACOBS delivered on 19 February 1998 *

1. The issue raised by the Pretura Circond­ down urgent measures in relation to work of ariale di Trento (Magistrate's Court, Trento) social utility, provides: is whether a national rule providing for the recruitment of staff by the Italian Post Office under fixed-term contracts, by way of dero­ gation from the general rule of Italian law that employment contracts should be of indeterminate duration, constitutes State aid notifiable under the last sentence of Article 93(3) of the Treaty. 'Workers employed from 1 December 1994 under a fixed-term contract by Poste Italiane shall have a right of priority, in accordance with the contractual provisions and those of a specific agreement with the trade unions, in the event of staff being taken on for an inde­ terminate period by Poste Italiane for posts of the same level and/or involving the same duties until 31 December 1996; the workers 2. Under Italian law, employment under concerned must give notice of their wish to fixed-term contracts is permitted only in a exercise that right by 30 November 1996. number of specified exceptional cases. Recruitment of staff under fixed-term con­ Article 1 of Law No 230 of 18 April 1962 tracts of employment by Poste Italiane, from provides that, subject to certain exceptions the date on which it was set up until 30 June specified in the Law, 1 an employment con­ 1997, shall not give rise to employment rela­ tract is to be considered to be of indetermi­ tionships of indeterminate duration and shall nate duration. lapse upon the expiry date of each contract.'

(2) whether, if question (1) is answered in the affirmative, an aid of that kind should bė subject to the preliminary examination procedure under Article 5. The applicants in the main proceedings, 93(3) of the Treaty; Mr Epifanio Viscido, Mr Mauro Scandella and Mr Massimiliano Terragnolo, brought proceedings against Poste Italiane complain­ ing that, since 1 January 1994, the undertak­ ing had responded to staff shortages by recruiting workers on fixed-term contracts. (3) whether, where that procedure has not They contended that recruitment on that been followed, the prohibition of an aid basis should be regarded as having given rise of that kind can be regarded as directly to employment relationships of indetermi­ applicable within the domestic law of nate duration. They argued that the disputed the Italian State; provision, in so far as it relieved Poste Ital­ iane of a burden applicable to other under­ takings under the general law, entailed the grant of State aid contrary to Articles 92 and 93 of the Treaty.

(4) whether, in the event of question (3) being answered in the affirmative, such a prohibition may be relied on in a dis­ pute between the public economic entity and an individual who complains of failure to apply to him the general 6. Against that background the national legislation concerning fixed-term court has put the following questions to this employment in order to secure conver­ Court: sion of his employment relationship into one of indeterminate duration and/ or compensation for damage.'

'(1) whether a legal provision which relieves a particular public economic entity from the obligation of complying with the 7. The applicants have not submitted written generally applicable legislation concern­ or oral observations to the Court. The ing fixed-term employment contracts German and Italian Governments and the falls within the scope of "aid granted Commission take the view that the contested

'... only advantages which are granted directly or indirectly through State resources 9. It is clear from the case-law of the Court arc to be regarded as State aid within the that a measure constitutes aid only if it meaning of Article 92(1) of the EEC Treaty. involves the transfer of State resources to an The wording of this provision itself and the undertaking (or relief from financial obliga­ procedural rules laid down in Article 93 of tions towards the State, such as tax or social the EEC Treaty show that advantages security charges). granted from resources other than those of the State do not fall within the scope of the provisions in question. The distinction between aid granted by the State and aid granted through State resources serves to bring within the definition of aid not only 2 10. In van Tiggele the Court held that the aid granted by the State, but also aid granted fixing by a national authority of a minimum by public or private bodies designated or retail price for a product at the exclusive established by the State.' expense of consumers did not constitute

3 — Joined Cases C-72/91 and C-73/91 Sloman Neptun v Bodo 2 — Case 82/77 Openbaar Ministerie of the Netherlands v van Ziesemer [1993] ECR I-887. Tiggele [1978] ECR 25. 4 — Paragraph 19 of the judgment.

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OPINION OF MR JACOBS — JOINED CASES C-52/97, C-53/97 AND C-54/97

15. It might be argued that employment under fixed-term contracts could result in 'In the present case, the exclusion of a costs for the State in the form of lost tax rev­ category of businesses from the protection enue or unemployment benefits. However, system in question does not entail any direct 8 as the Court put it in Sloman Neptun, such costs 'are inherent in the system and are not

5 — Paragraph 21 of the judgment. 6 — Case C-189/91 Kirsammer-Hack v Sidal [1993] ECR I-6185. 7 — Paragraph 17 of the judgment. 8 — Cited in note 3.

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VISCIDO AND OTHERS v ENTE POSTE ITALIANE

a means of granting a particular advantage' and thereby have an equivalent effect to State to Poste Italiane. In any event such costs are aid. The answer is perhaps essentially a prag­ uncertain and unquantifiable since, in the matic one: to investigate all such regimes absence of the flexibility provided by the would entail an inquiry on the basis of the contested provision, Poste Italiane may not Treaty alone into the entire social and econ­ 9 have employed, or may have employed omic life of a Member State. fewer, additional staff to cover short-term staff shortages.

17. I conclude therefore, in answer to the national court's first question, that a provi­ 16. It might be asked why, given their sion such as that in issue does not entail the potential effect on competition, Article 92(1) grant of aid within the meaning of Article does not cover all labour and other social 92(1) of the Treaty. It is therefore unneces­ measures which by virtue of being selective sary to consider the national court's remain­ in their impact might distort competition ing questions.