A lifetime of disparity of treatment

With the expiry of the deadline for the implementation of Article 11 of Legge Europea 2017 on June 30, it is now increasingly likely that foreign language teaching staff (Lettori) in Italian universities will end their careers without enjoying the right to parity of treatment with Italian nationals, explains Henry Rodgers.
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By Henry Rodgers

17 Jul 2020

How it has transpired that non-national citizens from almost all the Member States of the EU have never worked under conditions of parity of treatment  in Italian universities despite recourse to all the measures for redress available was explained  in two previous pieces published on the Parliament Magazine website.

In brief, now retired colleague Pilar Allué’s case against a discriminatory Italian employment law was first referred to the Court of Justice(ECJ) in 1987. Italy misread the subsequent 1989 ruling in her favour. Allué contested the misreading and won again in the Court in 1993. Italy failed to fully implement the second ruling. This time the Commission took an infringement case against Italy for the ongoing breach and won before the Court in 2001.

When the Commission subsequently took enforcement proceedings against Italy for non-implementation of the 2001 ruling, the well-established pattern of non-compliance would have left it under no illusions about the intransigence of the defendant it was facing. Nonetheless, the enforcement action promised closure.

Enforcement cases are a last resort and the pecuniary penalty a strong deterrent to non-compliance. The Lettori looked forward to the definitive ending of the discrimination against them.

As it had not complied with the 2001 ruling within the deadline given by the Commission, the Court found Italy guilty of discrimination against the Lettori for the fourth time. Subsequently Italy enacted a last-minute Decree-Law equating the economic status of Lettori to that of the category of part-time researcher, a law the Court judged satisfactory. It remained to be seen whether the law had been properly implemented. Crucially the Commission’s depositions contained no information on this point.

That the Commission’s depositions lacked such crucial information was sharply criticised by MEPs and legal experts at the time. The inconclusive outcome of a case which should have brought closure instead led to a situation whereby Italy’s breach of EU law has persisted unpunished up to the present. In the absence of information on whether the last-minute law had been properly implemented, the Court could not impose the recommended daily fine for non-compliance.

Had the fine been imposed, then for obvious reasons of self-interest Italy would quickly have ended the discrimination. As the discrimination has instead continued, the omissions in the Commission’s depositions still rankle with the Lettori.

In fairness to the Commission it should be pointed out that subsequently when it had become clear that Italy had not correctly implemented the Decree- Law, it opened pilot proceedings to compel it to do so, proceedings which eventually led to the enactment of the aforementioned Legge Europea 2017. It is feasible that its depositions did not include evidence on the Italian Decree-Law as it was confident the Court would reject it in favour of its own position that full time-researcher was the more appropriate parameter for the Lettori.

 In its successful counterarguments for part-time researcher as the appropriate parameter, Italy argued that the contracts of the Lettori and the part-time researchers were similar in that neither contained an exclusivity clause which prevented the categories from working elsewhere. If I dwell on this point, it is because it is most revealing of Italy’s opportunist approach towards evidence over the course of the litigation. In an about-turn in response to the Commission’s subsequent pilot proceedings, Italy reneged on the position taken before and upheld by the Court and insisted on the insertion of an exclusivity clause in Lettori contracts.

When Italy finally enacted Legge Europea 2017, 30 years had elapsed since the Allué case was first referred to the ECJ. The duration of the unpunished breach represents a significant victory for Italy’s strategy of non-compliance. Over this time span it has escaped its obligations under EU law to the Lettori, 70% of whom have by now retired. As for the remainder, Legge Europea 2017 is drafted in a way to frustrate and impede the correct implementation of the Court’s enforcement ruling.

"When Italy finally enacted Legge Europea 2017, 30 years had elapsed since the Allué case was first referred to the ECJ. The duration of the unpunished breach represents a significant victory for Italy’s strategy of non-compliance. Over this time span it has escaped its obligations under EU law to the Lettori, 70% of whom have by now retired"

To reconstruct the career of the Lettori on the basis of the parameter of part-time researcher is an easy task, a matter of simple arithmetic. Yet Legge Europea 2017 did not choose the easy route. Instead it stipulated that five government departments would collaborate on a blueprint for a contract to give effect to the enforcement ruling of the Court.

The blueprint published two years later set pre-conditions to the reconstruction of career awarded to the Lettori, in effect opening the binding case law of the Court to negotiation and compromise. These pre-conditions in the blueprint included, among other things. the aforementioned exclusivity clause and a diminished, more menial role for the Lettori . Colleagues who had retired before December 31, 2018 were excluded from the settlement provided for in the enforcement case, although the sentence itself prescribes no such cut-off point.

For  University of Rome, “La Sapienza”, I helped prepare evidence for the Commission’s depositions in its successful 2001 infringement case against Italy. The evidence included our then employment contract, a contract still in force. None of the pre-conditions prescribed in the blueprint are contained in our contract deposited with the Court. Their inclusion in the blueprint conclusively proves that they open the binding case of the ECJ to negotiation and compromise.

On the political front the Lettori case has attracted high-profile attention. Parliament President David Sassoli has written us a letter of support. Vice-President Mairead Mc Guinness has made representations to the Commission on our behalf.

Over the past few months MEPs, Billy Kelleher, Clare Daly and Sean Kelly have placed a series of searching parliamentary questions to the Commission on its conduct of the pilot proceedings, focusing on the improvement of Commission evidence and on the anomaly whereby the Lettori beneficiaries of the Court enforcement ruling are excluded by the universities from taking part in talks to incorporate the ruling in their favour into the terms of their contracts.

"Italy’s cavalier attitude towards the case law of the Court of Justice is at marked odds with the position of President of the Commission, Ursula von der Leyen. In her “Political Guidelines for the Next European Commission 2019-2024”, she stressed the importance of enforcing the rule of law throughout the European Union as a means towards gaining the trust of its citizens"

Italy’s cavalier attitude towards the case law of the Court of Justice is at marked odds with the position of President of the Commission, Ursula von der Leyen. In her “Political Guidelines for the Next European Commission 2019-2024”, she stressed the importance of enforcing the rule of law throughout the European Union as a means towards gaining the trust of its citizens.

In this regard she committed to an additional comprehensive European Rule of Law Mechanism for the monitoring of the implementation of the case law of the Court of Justice in the Member States. It is a worthy and promising initiative. But should it permit situations to prevail whereby a Member State, like Italy, can evade its Treaty obligations with impunity ad infinitum, then ultimately it will be a futile endeavour.

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