EU law and Italian discrimination of university lettori

A letter from Henry Rodgers, Rome

Dear JUST Response,

In the course of your interview with David Petrie (Pursuing Goliath, JUST Response, December 3, 2002), you pose the following question:

"Going back to the lettori's continuing battle for justice, there have been four historic EU decisions so far. Could you give us a brief summary of each of these, what your own personal involvement was and what changes they brought about?"

While there can be no doubt whatsoever as to the blatant discrimination endured by foreign teachers in Italian universities, David Petrie’s answer to this specific JUST Response question, and indeed his account of the European background to the lettori struggle elsewhere in the interview, is demonstrably inaccurate and incomplete. His account is especially inaccurate in relation to the one case in which he did have personal involvement as a plaintiff before the [European] Court of Justice and in relation to another case which he took and lost  before the [European] Court of First Instance.

Since the JUST Response interview was published, the question of the protection offered by European law has become particularly urgent and pressing. On December 18 2002 non-representative Italian unions agreed a national contract (Art. 22), which further erodes the rights of the lettori [foreign-language lecturers at Italian universities] and weakens their position. The European Commission’s enforcement proceedings, which could result in huge fines for Italy for its discriminatory treatment of foreign teachers have continued. To appreciate the safeguards which the enforcement proceedings provide for lettori it is crucial to understand the lettori case law of the European courts and, in particular, how individual cases have influenced the Commission in its prosecution of infringement proceedings against Italy.

Accordingly, as a correction to David Petrie’s inaccurate account, I would offer the following account of the lettori cases before the European Courts and the changes which have resulted. All the cases I refer to can be consulted on the Court of Justice web site. Some of them are also covered in contemporary textbooks of EU law. The cycle of jurisprudence which began with the referral of the first Allué case to the Court of Justice by the Pretura di Venezia back in 1987 is still ongoing. Should the Commission eventually refer its enforcement proceedings against Italy to the Court of Justice, this will be the sixth time that the European courts have heard cases in relation to lettori.

Allué 1 (1989) and Allué 2 (1993)

As the Allué 2 case was necessitated by Italy’s deliberate misreading of Allué 1, and as essentially the same legal point was at issue in both cases, the rulings my be considered together. Allué and her co-plaintiffs successfully challenged the Italian law under which foreign language teachers were employed on a temporary basis in the universities. The law was subsequently annulled. However, as the European Commission was unhappy with how the Allué ruling was being implemented by Italy it initiated infringement proceedings in 1996. The proceedings, which were initiated before the subsequent Petrie ruling of the Court, initially included the question of the professional status of lettori.  Ultimately, a reduced form of these proceedings, from which the crucial question of professional status had been dropped, was eventually ruled on by the Court of Justice in 2001.

In a letter to the European Voice, Jean-Louis Dewost, former Head of the Legal Service of the European Commission, described the second Allué case as “the mother of all foreign language teacher cases”. This is no exaggeration and hence the vital importance of the case should be explicitly acknowledged in any account of the lettori’s legal struggle for justice.  The Allué verdict, which won the lettori open-ended contracts, is so far the only ruling of the Court of Justice, which has improved conditions for the category as a whole. The verdict is routinely cited by lawyers in cases for parity of treatment before the Italian courts.  Should Italy eventually be fined by the Court of Justice for discrimination against lettori, it will be for exclusively non-implementation of the Allué case law.

Petrie (1997)

In the JUST Response interview, David Petrie dismisses as “absolute nonsense” the views of those who hold that his case is an impediment to opening of fresh proceedings on lettori status. As every student of European law is routinely taught, the European Commission is Guardian of the Treaty and exclusively empowered to take infringement proceedings against Member States before the Court of Justice. Thus, it is ultimately only the Commission’s view of the case which matters in the prosecution of infringement proceedings.  As it happens, contemporary textbooks of EU law – most notably the recent edition of the authoritative Oxford University Press text – view the Petrie case as a defeat on the main legal point at issue.

While the Legal Service of the European Commission supported Allué and her co-plaintiffs in its submissions to the Court of Justice, it sided against David Petrie and his co-plaintiffs in their case. The Commission, as I have pointed out, dropped the question of status from its infringement proceedings against Italy. In response to David Petrie’s request to open fresh proceedings on status, Mr Alan Larsson, the then Director General of DG V, specifically cited the Petrie case as a legal reason for not doing so.

The contents of this Commission letter of refusal to David Petrie do not appear to be common knowledge among the lettori, which is surprising given that David Petrie was prepared to take a costly case against the same Commission on the principle of transparency. The letter would certainly put the category in a position to judge precisely  who is “talking absolute nonsense” on the influence of the Petrie case on infringement proceedings.

Commission v Italy (2001)

This case for inadequate implementation of the Allué case law was won by the Commission. The case proved violation of acquired rights in 6 representative universities: Milan, Rome “La Sapienza”, Pisa, Napoli Orientale, Basilicata and Palermo. The sentence gives an entitlement to a reconstruction of career from the date of first employment.

The current Art. 228 proceedings, initiated by the Commission in 2002, seek to enforce this ruling. So far Italy has offered only paltry settlements for acquired rights on the model of a settlement accepted by the University of Venice, which together with Genoa and L’Aquila was dropped from the Commission’s infringement proceedings.

Article 22 of the national contract purports to settle the question of acquired rights in supposed conformity to the Commission v Italy ruling. Apart from the fact that the Italian unions who are party to this contract are not representative, and apart from the fact that the Corte di Cassazione case law holds that unions cannot bargain on workers’ acquired rights, the resources voted for the settlement of acquired rights are totally inadequate. This is evident from a comparison of recent sums won by the lettori of the representative universities before the local courts and the paltry sums offered in settlement of acquired rights by the universities.

The Commission should move to the reasoned opinion stage of the Art. 228 proceedings shortly, thus rejecting the Italian settlement of acquired rights in response to the letter of formal notice from the Commission. So that justice is done in the long-running battle against discrimination it is vital that each of the six representative universities should individually disclaim any settlements inferior to the full financial value of a reconstruction of career and thus keep the benefits of the case alive for all lettori.

Petrie v Commission (2001)

Unlike the other lettori cases, this case was heard in the Court of First Instance. The Court ruled in favour of the Commission and awarded it costs. David Petrie’s account of the case in the interview is misleading. Denmark did not just express an interest in the case as he says. It actually applied to intervene on behalf of the plaintiffs. This is reported in a front page story in the Wall Street Journal on February 3, 2000,  in which David Petrie is quoted as saying: “The case is now David Petrie and the Danish government versus the commission”. In accordance with the Rules of Procedure of the Court, Denmark was furnished with all the documentation relating to the case. In paragraph 18 of the Report for the Hearing, Judge Virpi Tilli reports that Denmark subsequently decided to withdraw from the case.

By contrast the UK applied to intervene in Commission v Italy, the infringement proceedings initiated by Commissioner Flynn. The British government was given all the documentation relating to the proceedings and elected to remain in the case in support of the Commission position.

In conclusion, over 15 years have passed since the first Allué case was referred to the Court of Justice by the Pretura di Venezia back in 1987. Deliberate misunderstanding of the subsequent clear-cut ruling caused the foreign teachers, and the Commission on their behalf, to return to the Court for successive refinements of that original judgement.

In a letter recently published in the European Voice, I pointed out that the Art. 228 proceedings would be a test case of the efficacy of the pecuniary penalty measure, introduced in the Treaty of Maastricht to compel offending Member States to enforce European law. Should Italy be fined, it will earn the ignominious distinction of being the first founder member of the Union to be fined by the Court of Justice for discrimination. This is particularly tragic when one considers that freedom of movement was promoted as the main advantage of European citizenship and a catalyst for greater integration and harmony. 

JUST Response is to be commended for bringing the story of this discrimination to a wide online public.

Note: This letter was published by JUST Response on January 30 2003.

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