A Never-Ending Story

European Commission has expressed serious concern over recent data received from Italy in the ongoing Lettori discrimination proceedings, explains Henry Rodgers

By Henry Rodgers

Henry Rodgers has published extensively on discrimination against Lettori. He teaches English at "la Sapienza" University Rome.

31 Aug 2021

The European Commission has said that information supplied by the Italian authorities in the context of pilot proceedings for non-implementation of a 2006 Court of Justice (CJEU) ruling on discrimination against non-national university teaching staff (Lettori) “constitutes a serious reason for concern”.

Responding to a written parliamentary question placed by MEP Clare Daly and co-signed by seven other Irish MEPs, the Commission also said it was preparing appropriate next steps” on the proceedings which has now been open for 10 years.

As Guardian of the Treaty and the attendant case law of the CJEU, a duty of loyal co-operation is placed on Member States in their relations with the Commission.

In the light of its comments on the data it has received, it is clear that the Commission feels that Italy is not dutifully co-operating in the conduct of the current pilot proceedings.

Whether or not the appropriate next steps it is considering entail the opening of full infringement proceedings against Italy and eventual referral of the case again to the CJEU remains to be seen.

Taking its subject matter from an article published on the Parliament Magazine website: The Snail’s Pace Progress of EU Justice, where I recounted how the Lettori have been deprived of their Treaty rights to parity of treatment for the whole of their working careers, the signatories query how the discrimination has lasted so long given the simplicity of the solution.

As they point out, to resolve the case all that is necessary is to award the beneficiaries of the enforcement ruling of 2006, retired and in service, the reconstruction of career due to them from the date of first employment.

The unsatisfactory data received from Italy further prolongs a resolution of the case. By any standards, the duration of the discrimination is remarkable.

"Whether or not the appropriate next steps it is considering entail the opening of full infringement proceedings against Italy and eventual referral of the case again to the CJEU remains to be seen"

In brief, the pilot proceedings were opened for Italy’s non-compliance with a 2006 enforcement ruling of the CJEU. That case was taken for non-implementation of an earlier Commission v Italy infringement ruling of 2001.

In its turn the infringement case was taken for evasion of the landmark Pilar Alluè judgement of 1993, a case taken by the Spanish plaintiff for Italy’s misreading of her earlier victory before the Court in 1989, and which spelt out beyond any ambiguity the Lettori’s right under EU law to open-ended contracts with remunerations levels linked to those of the Italian university teaching staff. 

In response to the Commission’s pilot proceedings Italy introduced Legge Europea 2017 and a follow-on Inter-ministerial Decree in 2019 to give it effect.

By means of a blueprint contract the decree purported to award the beneficiaries of the 2006 ECJ enforcement ruling the reconstruction of career due to them under that sentence. As with previous responses to CJEU sentences dating back to 1989, the provisions of the decree fell well short of fully implementing the 2006 ruling.

The 2006 ruling awarded the Lettori a reconstruction of career based on the minimum economic parameter of part-time researcher or more favourable parameters as provided for by an Italian law of 2004.

Commission correspondence in the wake of the 2006 ruling interprets these more favourable parameters as parameters won in cases before the local Italian courts and retained as acquired rights. However, the decree markedly omits to make provisions for these more favourable parameters.

In addition, reneging on its depositions in the 2006 case, where it had argued before the Court that the Lettori position was part-time, Italy inserted an exclusivity clause in the blueprint contract. Most glaringly, the decree made little or no provision for settlements for retired teaching staff.

Given that the line of jurisprudence which led to the 2006 ruling began in the 1980s the majority of the beneficiaries of that ruling have by now retired.

"The written question from the eight Irish MEPs frames the breach of the Lettori case law in the broader context of the benefits and obligations of EU membership"

Asso. CEL.L, a Lettori union I co-founded, is an official complainant in the Commission’s proceedings against Italy.

Availing of its right as a complainant to provide pertinent documentation to the Commission, and in cooperation with FLC CGIL, Italy’s largest trade union, we undertook a national Census of Lettori to determine the number of beneficiaries of the 2006 ruling, their length of service, and whether or not they had received the settlements due to them.

Our Census results show that the ruling has been almost completely ignored by the Italian universities.

To implement the enforcement ruling all that is necessary is to garner data of the kind collected in our national Census. The simplicity of the solution adds to the doubts about the loyalty of Italy’s co-operation with the Commission over the course of the proceedings.

The data about which the Commission has expressed serious concern was collected in response a questionnaire sent by the Ministry of Education to assess compliance with the 2006 ruling. It is no exaggeration to say that the questionnaire, which is in the public domain, raises concerns as to whether the Italian authorities have even bothered to seriously read the enforcement ruling against them.

An example in point is that to show compliance with the ruling of 2006, the Ministry sent information to the Commission on settlements for reconstruction of career deemed discriminatory by the Court in the very 2006 sentence.

These observations on the shortcomings of the Italian data, the flaws in the 2019 inter-ministerial decree, as well as the results of our national Census, were carefully considered by the Commission services in its evaluation of the Italian returns.

Though proceedings with Member States are confidential, it is obvious that the Asso. Cel. L submissions have been influential. This is a measure of the importance the Commission now gives to evidence from complainants in proceedings against Member States.

The written question from the eight Irish MEPs frames the breach of the Lettori case law in the broader context of the benefits and obligations of EU membership.

Recalling that “Italian universities receive generous funding from the EU” and that “Italy has received the biggest share of the Recovery Fund” the signatories conclude that “the ethic of reciprocation demands that Italy obey the rule of law and implement the most recent CJEU ruling in favour of the Lettori”.

It is to be hoped that the steps now being considered by the Commission can awaken Italy to a sense of these reciprocal responsibilities.

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