Comment: EU infringement proceedings against Italy over lettori discrimination long overdue

Professor Avvocato Lorenzo Picotti (left) with chairman of the Association of Foreign Lecturers in Italy David Petrie (right)

 VERONA -- The decision by the European Commission to send a formal notice to Italy for its failure to comply with the rules of the Union regarding the free circulation of workers, including specifically EU regulation n. 492/2011, took many years to come through, Prof. Avv. Lorenzo Picotti writes.  In fact, as far back as 2011, on behalf of ALLSI (Association of Foreign Lecturers in Italy) I had sent my reasoned opinion to the Commission denouncing the serious discrimination which mother-tongue lecturers were continuing to suffer. The urgent decrees of 1993-1994, which led to art. 4 of the law nr 236/1995, placed them forcibly in the new category of CELs (Linguistic collaborators and experts), as technical-administrative staff, even if they had refused to sign the new contracts; whereas previously they had been considered teaching staff, albeit on fixed-term contracts, under art. 28 of the DPR (Decree of the President of the Republic) nr 382/1980.

 By thus changing the law, Italy had attempted to evade the consequences to the lecturers’ advantage, in terms of salary levels and social-security contributions, which would have arisen from the first judgements of the Court of Justice of 1989 and 1993 – viz. the compulsory conversion of the original employment contracts into permanent employment relationships, as from the start.  With the new collective contracts for categories such as CEL, stipulated by the Trade Unions, a new starting-point was established for employment relationships, and employees’ seniority in employment was annulled; as was the entitlement to remuneration which had been won also after numerous court-cases started in order to bring it in line with the quality and quantity of work effectively carried out, pursuant to art. 36 of the Italian Constitution.
 Infringement proceedings against Italy had been necessary, brought again with a reasoned and documented complaint by ALLSI. They had led to a decision against Italy with the pilot sentence of the Court of Justice on 26 June 2001. A new, severe, order to pay a very heavy daily fine for failing to carry out that sentence was approaching; the inadequacy of the national remuneration package laid down for CELs and foreign language lecturers in the collective contracts (in particular of 1996), and in the supplementary contracts in the various Universities had been verified; so Decree-Law nr 2/2004 was hurriedly issued, and converted into Law nr 63/2004. Art. 1 of this Law at last established the right to a remuneration adjustment at least to the level of a researcher confirmed on a permanent part-time contract (“a tempo definito”), without prejudice to more favourable treatment, and in any case with a complete reconstruction of each career with salary scales and seniority increments, to be calculated from the start.
 The Court of Justice, therefore, did condemn Italy on 18 July 2006, in case nr C-119/04, referred to by the Commission in the warning notice sent to Italy, for its delay in executing the European orders. But it did not apply the requested financial penalties, for it recognised that in the new legislation of 2004 there was an adequate basis for overcoming the discrimination being practised, since it referred to a parameter that was reasonable and above all corresponded to the one applied to national workers in the universities who carried out similar tasks.
 But the dispute did not stop here, for the Universities did not apply this parameter nor the consequent reconstruction of careers. They continued to apply the poorer treatment provided in the collective contracts for CELs, which in 2003 allowed a very modest possibility of salary increments for past experience, moreover as a mere supplementary item left to local bargaining, which in many universities had not even been stipulated. 
 The new dispute involved the notorious law nr 240/2010, a.k.a. the Gelmini law, whose article 26, subsection 3, introduced a new mechanism, in order to nullify the consequences regarding salary and social security contributions which would have been favourable to the foreign language lecturers and the CELs. It introduced, retroactively, an alleged “authentic interpretation” of the above-mentioned art. 1 of the decree-law converted into law nr 63/2004, which limited the application of the parameter of the confirmed researcher, with its relative career progression, to the brief period going from the time of recruitment to 1994. It then established for the following much longer period of employment  the application of the merely economic treatment provided by the collective contracts for CELs, save for an “ad personam” bonus, which in any case could be reabsorbed and calculated to 1994, without any subsequent progression of salary scales or of seniority increments.
 For many years ALLSI presented complaints to the European Commission, and innumerable petitions to the European Parliament, but they were non enough; in the end the Trade Union also joined in, having been faced with the nefarious effects of the wretched negotiation of collective contracts in use at the time – complaints against the very serious discrimination thus perpetrated to the detriment of the foreign language lecturers and the CELs. It was unfortunate that the jurisprudence of Italy’s supreme Court of Cassation, as well as that of many Appeal Courts, endorsed this discrimination, even after initially rejecting the application of the Gelmini law, because it openly contradicted European jurisprudence and even the general principles of Italian constitutional law and labour law: to such an extent that there was no lack of significant pronouncements by Tribunals, which however did not implement them.
 Now the Commission has at last come to a decision, referring precisely to the principles established by the Court of Justice with the above-mentioned sentences. It has sent a formal notice of warning to the Italian State, for not having respected and implemented them, denying in practice the adjustment of the remuneration and the effective recognition of seniority increments, and of the corresponding social security contributions, at least to the level of a researcher confirmed on a permanent part-term contract, with payment of arrears going back to the time of recruitment.   Not even law nr 167/2017, which in art. 11 provided for the stipulation of new supplementary contracts by individual Universities, to ensure anyway by negotiation that useful result for the foreign language lecturers, had an effect. Only two or three Universities signed them, and moreover only for foreign language lecturers who were still working for them.
 At long last the Commission recognised that Italy is therefore continuing to discriminate against foreign language lecturers. It has given Italy two months to remedy the failures that have been identified, after which the Commission will be able to formally initiate infringement proceedings. 
 It is to be hoped that Italy will comply before then, also in view of the enormous resources it has received from Europe, in particular precisely to provide funding for Universities too. 
  But this will only be possible if legislation is passed in good time, with the necessary corresponding financial coverage (which to tell the truth was not assured by the State to the Universities in 2004); and in the meantime, with a change in the jurisprudence in this area which should disapply the Gelmini law, since it is in conflict with Union law, and should recognise the right of foreign language lecturers (and actually, now, given the seniority attained, also of the CELs who carry out the same tasks) to enjoy a non-discriminatory treatment equal at least to that of a confirmed researcher, with the entire progression of salary scales and seniority grades to be calculated from the time when they were first recruited. 
(Translation Independent English Ltd)