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Judges sit in judgment in the Grand Chamber of the European Court of Justice, Luxembourg

11 Feb 2022 / EU law Print

Lettori of the law

The European Commission has opened an infringement case against Italy for persistent discrimination against non-national university teachers. Henry Rodgers looks at this long-running breach of the freedom-of-movement provisions.

Most of the cases listed in a September 2021 European Commission press release on infringement proceedings against member states attracted little subsequent press attention.

The newsworthy exception was a case opened against Italy for its persistent discrimination against non-national university teachers (‘lettori’) – the longest-running breach of the freedom-of-movement provision of the treaty on record.

The reason given in the press release was Italy’s non-compliance with the decision in Case C-119/04, an enforcement case on which the Grand Chamber of the Court of Justice ruled back in 2006. 

An enforcement case implies non-implementation of an earlier ruling of the court. The ruling in the earlier discrimination case was handed down in 2001.

Italy’s breach of the freedom-of-movement provision in the case of lettori predates the present century. The line of litigation for parity of treatment extends back to 1987 and the reference to the Court of Justice by the Pretura di Venezia of the first of two cases taken by Spanish national Pilar Allué against a discriminatory Italian lettori law of 1980.

A misreading of the first ruling in her favour caused Allué to have recourse to the court a second time. The landmark 1993 ruling clarified beyond all ambiguity that lettori had the right to the same contractual working conditions as counterpart Italian workers.

It was for non-implementation of the Allué case law that the commission took (and won) the subsequent two cases against Italy in 2001 and 2006.

Parity of treatment

The time span encompassed within this brief legal history exceeds the average duration of a university teaching career. As a consequence, non-national teaching staff from all the member states of the EU have never worked in Italian universities under the conditions of parity of treatment, which should be automatic under the treaties.

Due to the discriminatory remuneration they received over the course of their careers, lettori who have retired live on pensions that would place them below the poverty line in their home countries.

A measure of how seriously the commission viewed the persistent discrimination against lettori was that, in enforcement case C-119/04, it asked the court to impose a daily fine of €309,750 on Italy.

The fine was averted by the introduction of a last-minute law awarding lettori a reconstruction of career from the date of first employment, with reference to the economic parameters of comparable Italian university teaching staff.

The threat of fines removed, Italy subsequently failed to implement the law and make the settlements with lettori that the court had deemed satisfactory. The results of a recent national census conducted by our union show that only two universities had implemented the 2006 ruling.

Italy’s intransigence

The lengthy litigation has given grounds for a view that Italy’s intransigence is deliberate and is based on a view that the eventual retirement of the beneficiaries of the Court of Justice case law will free it of its obligations to the lettori.

A commission pilot procedure (a mechanism introduced to resolve disputes amicably with member states and prevent recourse to infringement proceedings) was opened in 2011. Over the ensuing ten years, it markedly failed to achieve its purpose.

At La Sapienza University of Rome (Europe’s largest university), the initiatives of a lettori union have given our colleagues, nationally, renewed hope after a decade of deadlock. Crucial to our progress was the securing of complainant status in the commission’s proceedings against Italy.

Though not technically party to the proceedings, a complainant has the right to contribute to the case file, have meetings with commission officials, and be consulted and given a right of reply, should the commission consider closing a case.

Organising labour from Trieste to Palermo is not an easy task. With the assistance of FLC CGIL, Italy’s largest trade union, we conducted a nationwide census of lettori to gauge compliance with the court enforcement ruling of 2006.

With the exception of the aforementioned two examples, the census showed that none of the universities had incorporated the ruling into the terms of local lettori contracts. In an evidence-based procedure, such data was clearly influential with the commission, which had given an advance commitment to an appraisal of the results of our census.

Irish MEP support

The support of Irish MEPs has been crucial to our campaign. A parliamentary question to the commission by Clare Daly (co-signed by seven other Irish MEPs) framed Italy’s ongoing discrimination against lettori in the broader context of the bene-fits and responsibilities of EU membership.

Pointing out that Italian universities receive generous EU funding and that Italy has received the greatest share of the COVID Recovery Fund, the signatories asked why Italy refused to reciprocate and honour its treaty obligations to lettori.

With the spotlight in Brussels firmly fixed on adherence to the rule of law within the EU, the question was timely and carried weight. The response from Jobs and Social Rights Commissioner Nicolas Schmit was effectively an advance signal of the decision to open the infringement proceedings.

The commission is currently appraising Italy’s reply to its letter of formal notice of the opening of proceedings. Though documents exchanged in infringement proceedings are confidential, a last-minute amendment to Italy’s Legge di Bilancio 2022 (finance act), which was approved on 30 December, reveals something of Italy’s response.

A 2019 interministerial decree of byzantine complexity had required the universities to first sign local versions of a national blueprint contract with their lettori in order to receive government funding to co-finance backdated settlements for discrimination.

As the proposed contracts effectively sought to open the binding case law of the CJEU to negotiation, and to limit and claw back rights won under the ruling in Case C-119/04, local unions refused to sign them.

The waiving of the requirement to sign such contracts in the Legge di Bilancio amendment would now seem to pave the way for the adoption of a solution similar to that proposed by Clare Daly MEP and her co-signatories in their parliamentary question to Commissioner Schmit. This simply entails identifying the beneficiaries of the 2006 CJEU ruling and paying them the settlements due to them, proportionate to their years of teaching service.

In a meeting held last month with our union (in its status as a complainant in the proceedings) and with the participation of an invited delegate from FLC CGIL, the legal team directly responsible for the infringement case informed us that exchanges between the commission and the Italian authorities will continue in the coming months, with the aim of checking and ensuring that the CJEU ruling in Case C-119/04 is fully implemented by all of the Italian universities.

Should this scrutiny identify continuing breaches, then, in accordance with the infringement procedures, the commission may issue a reasoned opinion and eventually refer the case to the CJEU for what would be a fifth ruling on parity of pay, in the line of jurisprudence that began back in 1987.

Placing the right to parity of treatment in the context of the overall rights of European citizens, the commission states that the right “is perhaps the most important right under community law, and an essential element of European citizenship”.

The lettori who are the beneficiaries of the Court of Justice case law are now nearing retirement. They retain the hope that they may eventually work under conditions of parity of treatment, if only for the remaining few years of their careers.

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Henry Rodgers
Henry Rodgers
Henry Rodgers teaches at La Sapienza University of Rome and is a founder member of the union Asso CEL L