A last-minute amendment to Italy’s end-of-year Finance Act, the ‘Legge di bilancio 2022’, has paved the way for a resolution in the case of the long-running discrimination against non-national teaching staff in Italian universities (Lettori). This discrimination has persisted in defiance of four sequential and interrelated rulings by the EU Court of Justice(CJEU) dating back to 1989.
The amendment was introduced in response to infringement proceedings that the European Commission opened against Italy in September 2021 for non-implementation of the fourth of the CJEU rulings on parity of treatment, that in Case C-119/04. In this, which the Grand Chamber of the CJEU ruled on in 2006, the Commission asked for the imposition of a daily fine of on Italy €309,750 for its persistent discriminatory treatment of the Lettori.
The fine was averted by the introduction of a last-minute law awarding the Lettori a reconstruction of career from the date of first employment, with reference to the economic parameters of comparable Italian university teaching staff. With the threat of fines removed, Italy then failed to implement the law or make the settlements with Lettori that the Court had deemed satisfactory.
A Commission pilot procedure, introduced to resolve disputes with Member States amicably and prevent recourse to infringement proceedings, was subsequently opened in 2011. Over the ensuing ten years it failed to deliver. Accordingly, the Commission opened infringement proceedings proper in September 2021 to compel Italy to implement the 2006 enforcement ruling.
A major stumbling block to compliance with the ruling was the domestic arrangement Italy made for its implementation. A 2019 interministerial decree, of byzantine complexity, 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.
The proposed contracts sought to open the binding case law of the CJEU to negotiation. In particular, they excluded the more favourable parameters for settlements provided for under Case C-119/04. In addition, it largely excluded the retired beneficiaries of the case from compensation for the discriminatory treatment they had suffered over the course of their careers.
The refusal of the local unions to sign such contracts created an impasse that has now been resolved by the Legge di Bilancio 2022 amendment. In waiving the obligation of the universities to sign such contracts as a precondition to receiving the government funding, the amendment paves the way for the adoption of a solution similar to the one proposed by Clare Daly MEP and her seven co-signatory Irish MEPs in their influential parliamentary question to Commissioner Schmit in June 2021. This solution simply entails identifying the beneficiaries of the 2006 CJEU ruling - both retired and in service - and paying them the settlements due proportionate to their years of teaching service.
Pointing out that Italian universities receive generous EU funding and that Italy has received the greatest share of the COVID Recovery Fund, they questioned why Italy had refused to reciprocate and honour its Treaty obligations to the Lettori
In the preamble to the proposed solution in their parliamentary question, MEP Daly and her co-signatories framed Italy’s ongoing discrimination against the Lettori in the broader context of the benefits 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, they questioned why Italy had refused to reciprocate and honour its Treaty obligations to the 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 move from the ineffective pilot procedure to the opening of full infringement proceedings.
Asso.CEL.L, a Lettori union that I co-founded, is a complainant in the Commission’s infringement proceedings. Crucial to our progress was securing complainant status in the Commission’s proceedings. Though not technically party to the proceedings, a complainant has the right to contribute to the casefile, to have meetings with Commission officials and to 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.
Our census showed that, with just two exceptions, none of the universities had incorporated the ruling into the contract terms of local Lettori. In an evidence-based procedure, such data was clearly influential with the Commission, which had given an advance commitment to appraising the results of our Census.
In a meeting last month with Asso.CEL.L., 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.
These exchanges aim to check and ensure that the CJEU ruling in Case C-119/04 is implemented correctly by all Italian universities. Should this scrutiny identify ongoing breaches, then - in accordance with the infringement procedures - the Commission may issue a reasoned opinion and eventually refer the case to the CJEU. This would be a fifth ruling on parity of pay in the line of jurisprudence which dates back to the 1980s.
The status of Asso.CEL.L as a complainant in the infringement proceedings in a sense allows us to assess first hand the performance of the Commission in its role as Guardian of the Treaties. While the Commission quite rightly expects professionalism from the complainant, on our part we have found the Commission to be highly Treaty-spirited in the discharge of its responsibilities.
The amendment to Legge di bilancio 2022 makes us confident now that the Commission can now compel Italy to enforce the ruling in Case C-119/04, thus ensuring that justice is finally delivered in our marathon battle for parity of treatment.