Employment relationship of the justice of the peace: which jurisdiction?

With ordinance 16839 of 2024, the United Civil Sections addressed a question relating to the division of jurisdiction. In particular, we wondered whether the employment relationship of the justice of the peace could be included within the competence of the ordinary judge or administrative judge.

Core of Cassation – Section. A. Civ.-ord. n. 16839 of. 19-06-2024

The question

The appellant presented an appeal for preventive regulation of jurisdiction in the context of a case instituted at the Court of Bari against the Presidency of the Council of Ministers, the Ministry of Justice and the INPS.
The issue originated from the activity carried out by the appellant as an honorary magistrate, in particular in the capacity of justice of the peace. The appellant requested the recognition of the right to economic treatment equal to that of ordinary magistrates, including all related institutions, as well as the condemnation of the Administration to pay the sums due, also for the period of suspension from the exercise of functions.
Furthermore, the appellant denounced the abusive reiteration of fixed-term contracts during the eighteen years of service, requesting compensation for community damage and the reconstitution of the social security and insurance position.
Specifically, the appeal was presented following the exception raised by INPS, which supported the jurisdiction of the GA

The reason for the appeal

In particular, the appellant replied to the confirmation of the jurisdiction of the ordinary judge, since her requests were not aimed at assimilating her legal status to that of professional magistrates, but at the recognition of the status as an employee of the Ministry of Justice and its consequent property rights.
The United Civil Sections stated that, although the appeal for the preventive regulation of jurisdiction had been proposed by the party who promoted the merits proceedings, it was considered admissible.

The problem of jurisdiction

According to the judges, therefore, there is an interest concrete and immediate to a resolution of the issue by the United Sectionsdefinitively, in order to avoid its resolution in the merits from being subject to subsequent modifications during the course of the proceedings, delaying the settlement of the case.
For the ermine judges, it constitutes jus receptum that the distribution rule of jurisdiction is informed of the criterion of substantial petitioninstead of that formalwhich has regard not to causes petendi but to the object of the jurisdictional device which is invoked, while the petition substantial concerns the relationship deduced in court and subject to judicial verification (ex multis, see United Civil Sections, n. 2368 of 2024).

In particular, the appellant acted before the judge of first treatments so that, after ascertaining his status as an honorary magistrate – most recently in the roles of justice of the peace – for the verification of the performance of a continuous service employed by the Ministry of Justice, which can be qualified in terms of subordinate work, of a similar nature to that guaranteed to workers who carry out corresponding functions for the Ministry of Justice. He therefore asked for the redetermination of the salary treatment from the date of recruitment into service, as well as the recognition of social security and insurance protectionwith the condemnation of the Ministry of Justice to regularize its position, subject to the payment of social security and insurance contributions.
Precisely because of the proposed existence of an employment relationship with the Ministry of Justice, comparable to the position of ordinary magistrates, the appellant requested recognition of the status of employee at the aforementioned Ministry.
From the examination of the documents of the case, the judges noted the presence of a request for legal qualification of the employment relationship between appellant and the Administration, considered as subordinate work similar to that of ordinary magistrates. Based on petition substantialwhich takes into consideration the causes petendi and the legal relationship deduced in court, i. apply principles already affirmed by the United Sections with sentence no. 27198 of 2017 and confirmed, later, by ordinance no. 21986 of 2021. In particular, such principles establish that disputes relating to the application of an honorary deputy prosecutor for the recognition of a de facto employment relationship with the Ministry of Justice, for the performance of the same functions as professional magistrates and for inclusion in the organization of a prosecutor’s office , fall within the scope of administrative jurisdiction.
Ultimately, the judges of the United Civil Sections affirmed the jurisdiction of the GA

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