A researcher, let’s say, scrolling one-by-one through the online data base of questions placed by MEPs to the European Commission in its capacity as Guardian of the Treaties would most probably pause at a question recently put down by Jude Kirton-Darling MEP.
Point one of Kirton Darling’s question reads:
“In the context of its infringement proceedings (Pilot 2079/11/EMPL) taken against Italy for its continuing discrimination against the foreign language teaching staff in Italian universities, will the Commission commit to withholding funds from Italian universities which refuse to award foreign language lecturers their full rights under EU law.”
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The reason for the arrested attention is pretty obvious. The researcher would initially struggle to come to terms with the state of affairs presented in the question. That EU funding could be allocated to institutions in breach of EU law would on first acquaintance seem inconceivable. On this premise alone the question would stand out from others in the data bank.
Further research would confirm the validity of Kirton-Darling’s question. Statistics of the annual multi-million euro allocation of funds to the Italian universities by the EU are all in the public domain. In that infringement proceedings are conducted between the Legal Service of the European Commission and the member state in breach, while excluding the parties on whose behalf the infringement case is taken, the particulars are more difficult to research. However, the sequence of case law behind these infringement proceedings, starting from Pilar Allué’s first victory against Italian universities in the European Court of Justice (ECJ) back in 1989, is easily traceable on the web site of the same ECJ.
In Do ut Des, published on this website at the end of August 2019, I described the foreign language lecturers’ 30-year battle for parity of treatment rights which should be automatic under the Treaties. 30 years equates to a considerable proportion of a working life. Allué, whose victory in 1989 set in motion the line of jurisprudence leading to the present infringement proceedings, retired without ever receiving the redress to which her victories before the ECJ entitled her.
“The Italian Ministry of Education has introduced a decree which purports to end the discrimination against the foreign language lecturers and satisfy the Commission’s pilot infringement proceedings”
Since the publication of Do ut Des there has been a new development: The Italian Ministry of Education has introduced a decree which purports to end the discrimination against the foreign language lecturers and satisfy the Commission’s pilot infringement proceedings. However, the terms of this decree render it highly likely that, as in the case of Allué, many of the foreign language lecturers may retire without ever experiencing parity of treatment in the workplace.
That the decree opens the binding case law of the Court of Justice to negotiation is immediately suspect. The blueprint for a negotiable contract set out in the decree awards the foreign language lecturers the same remuneration as part-time researchers, as required by ECJ case law, but it awards this treatment only from the date of the signing of the next contract. A precondition to any new contract under the decree is that the foreign language lecturers renounce their right under the same ECJ case law to a pay settlement backdated to when they first took up employment. Further, the blueprint for new contracts contained in the decree erodes many existing employment rights and simultaneously reduces the nature and status of the foreign language lecturers’ teaching duties.
As a settlement for three decades of discriminatory treatment, this is brazen in the extreme. It is a solution that could never be adopted through free agreement of the parties As it happens, free agreement of the parties is not even necessary. This is firstly because, as mentioned above, the foreign language lecturers are not party to the infringement proceedings which the Commission has taken on their behalf. Secondly, under Italian labour law arrangements, associations of foreign language lecturers are not allowed representation in negotiations with the universities to incorporate the terms of favourable ECJ rulings into their local contracts. This is the exclusive prerogative of Italian unions. The consequent disenfranchisement has led to a Catch 22 situation whereby much of what was won by the foreign lecturers before the ECJ is ceded by Italian unions in follow-on contract negotiations.
Point three of Kirton-Darling’s question alerts the Commission to the problem of the disenfranchisement of the foreign language lecturers in Italian university labour relations:
“Institutions, from whom one could reasonably expect best practices in matters European, have, in their treatment of the non-national teaching staff, defiantly persisted with employment conditions which run counter to EU law and to the goal of integration”
“Will the Commission insist that foreign language teachers be allowed to represent themselves in labour negotiations with universities, taking into consideration the anomaly whereby associations of foreign language teachers are not allowed take part in labour negotiations on the incorporation of rulings of the Court of Justice in their favour into the terms of local contracts?”
The blurb accompanying Do ut Des explains that I teach English at University of Rome, La Sapienza and am “a founder member of Asso.Cel.L, an association set up to represent foreign language lecturers in contract negotiations with the Universities.” On foundation, our association, the largest representative body of foreign language lecturers at “La Sapienza”, wrote to the administration requesting that the association be allowed to represent its members in negotiations to incorporate the Court of Justice rulings in our favour into the terms of our next contract. This request was flatly refused by the La Sapienza in its reply.
Need the point be laboured? The breach of art. 12 of the Charter of Fundamental Rights of the European Union on the right to representation is obvious and glaring. Further, La Sapienza, the very university which refuses Asso.Cel.L the right to representation, and is specifically listed as a university which discriminates against foreign language lecturers in ECJ rulings C-212/90 and C-119/04, continues to receive generous annual funding from Europe.
That universities should be the provenance of such a long-running discrimination is most regrettable. Institutions, from whom one could reasonably expect best practices in matters European, have, in their treatment of the non-national teaching staff, defiantly persisted with employment conditions which run counter to EU law and to the goal of integration. Nor is here any apparent embarrassment about it. In the Faculty of Jurisprudence students study prescribed textbooks on EU law which teach the four ECJ cases that found Italian universities guilty of discrimination against the foreign language lecturers. In the adjacent Faculty of Letters this discrimination continues to be practised
Kirton-Darling placed her question to the European Commission on October 31. This means that the background work and preparation was done in the previous weeks, when the prospect of the UK leaving the EU by the end of October, and the attendant ending of the mandate of the UK’s MEPs, was very real. Under conditions of duress and uncertainty, conditions which made our association, Asso.Cel.L, initially reluctant to approach her and seek her help, this MEP continued to serve her expatriate fellow citizens and, by extension, all EU citizens by placing a most pertinent parliamentary question before the European Commission.
That the frame of reference to Kirton-Darling’s pertinent question can be broadened beyond the specific case of the Italian universities to become a general principle on the granting of EU funding is obvious. A precondition that any institution throughout the EU applying for funding should be compliant with EU law is one, I imagine, which would enjoy widespread support in the European Parliament and most certainly among the European citizenry. One wonders in fact why it has not been put in place before. Should this most reasonable requirement become part of an eventual code of ethics on EU funding, I hope it will give Kirton-Darling pleasure that her work done in those tense days of late October was seminal and bore fruit.