Abuse of fixed-term contracts in the public sector: damages in Judgment no. 27634 of 2025

The issue of the abusive reiteration of fixed-term contracts within the Public Administration remains at the heart of the Italian and European legal debate. This delicate matter pits the need to contain public spending against the right of workers not to be penalized by endless precarious employment. It is in this context that the recent ruling of the Court of Cassation, Labour Section, with judgment no. 27634 of October 16, 2025, was issued, addressing the appeal between S. P. and L. M., and quashing with remand the decision of the Court of Appeal of Bari.

The regulatory framework and the protection of public employees

In the privatized public employment sector, the Italian legal system prohibits the automatic conversion of a fixed-term employment relationship into a permanent contract, unlike what occurs in the private sector. This specificity, intended to safeguard access to public offices through competitive examinations, nevertheless risked leaving public employees without effective protection against abuses by the Public Administration. To bridge this gap, jurisprudence has developed the concept of 'EU-law damages' (danno comunitario), a form of compensation aimed at sanctioning the abuse and compensating the worker for the loss of opportunity and the precariousness suffered.

In matters of privatized public employment, in the event of abusive reiteration of fixed-term contracts, the compensatory measure provided for by Art. 36, paragraph 5, of Legislative Decree no. 165 of 2001 must be interpreted in accordance with the principle of effectiveness of protection affirmed by the Court of Justice of the EU in the order of December 12, 2013, in C-50/13. Consequently, while recourse to the criteria provided for unlawful dismissal must be excluded—as it is incongruous—reference may be made to the homogeneous case provided for by Art. 32, paragraph 5, of Law no. 183 of 2010 (in force ratione temporis), to derive a notion of presumed "EU-law damages," having a sanctioning value, determined between a minimum and a maximum, without prejudice to the proof of greater prejudice suffered, and without this resulting in a favorable position for the private sector worker compared to the public employee, given that, for the former, the lump-sum indemnity limits the compensable damage, while for the latter, it facilitates the burden of proof of the damage suffered.

Commentary on the Cassation decision

The headnote of judgment no. 27634/2025 reaffirms the important principle of equivalence and effectiveness of protection, recalling the landmark jurisprudence of the Joint Chambers (in particular judgment no. 5072 of 2016). The Court clarifies that compensation for public employees should not be modeled on the criteria for unlawful dismissal, but rather on a system of lump-sum and presumed indemnity, borrowed from Art. 32, paragraph 5, of Law no. 183 of 2010. This mechanism offers significant practical advantages for the worker:

• Facilitation of the burden of proof: Public employees do not need to demonstrate the exact extent of the damage suffered, as this is presumed within the minimum and maximum limits established by law.
• Possibility of greater damages: The worker's right to provide proof of having suffered economic or professional prejudice exceeding the lump-sum threshold always remains reserved.
• Constitutional and European balance: The Court excludes that this structure creates a disparity of treatment in favor of private sector workers. In the private sector, in fact, the lump-sum indemnity represents a maximum cap on compensation, whereas in public employment, it serves as an facilitated starting point for the redress of damages.

Conclusions

Judgment no. 27634 of 2025 stands in perfect continuity with the EU-oriented approach, confirming that compensatory protection in public employment must not only be dissuasive for the defaulting administration but also concretely accessible to the worker. Thanks to the presumption of EU-law damages, public employees who are victims of the abusive reiteration of fixed-term contracts can obtain justice without having to face an excessively burdensome evidentiary process, thus ensuring compliance with constitutional principles and European directives.