ROME -- A decree law promulgated by the Italian government this month, purportedly to resolve the plight of foreign lecturers owed back pay and pensions for decades, “adds another chapter in the twin dark arts of evading laws and legislating others in or- der to evade them at a later date” says the Association of Foreign Lecturers in Italy (ALLSI) chair, Prof. David Petrie. 

 The decree law issued May 4 by the cabinet of the Italian Prime Minister Giorgia Meloni was in response to a European Commission threat, Jan. 26, to take Italy before the Court of Justice of the European Union if the money was not paid to the lecturers. The decree is unlikely to force universities to make the payments and Italy evidently only will take action if faced with EU court proceedings, ALLSI legal experts say. 

 “We are issuing a detailed analysis of the decree,” Prof. Petrie said, “but this can only be understood in the context of the 35 years of skulduggery in the wait for justice, the six previous judgements of the European Court of Justice and a ‘Bleak House’ of ongoing court cases in Italy, with conflicting and contradictory out- comes, many in clear conflict with the Court of Justice’s legally binding ruling of June 21, 2001 – which is yet to be implemented,” 

 “For this failure, the Euro- pean Commission took Italy back to the ECJ in 2006, but the Court refused to impose daily fines of 265.500 euros, as recommended by its Advocate General Poiares Maduro. Italy, at the eleventh hour, beat the rap.” 

 The sole new provision in the law decree (48/2023), of limited effect but clearly intended to convince the European Commission that Italy is committed to redressing the ongoing discrimination criticized in the reasoned opinion, is the introduction of a financial deterrent for Italian universities failing to take part in the required co-financing procedures, as and when these have been defined by the ministerial decree referred to above -- the working funds awarded annually to these Universities by the Ministry will be reduced by 1 per cent. 

 If, however, a University fails to act, either through negligence or be- cause it calculates that co-financing the differences in salary and pension contributions for its CEL/ex-Lettori will cost more than the loss of 1 per cent of its regular funding, it will not face consequences or penalties of any kind. No obligation has been placed upon the universities, least of all in respect of the financial amounts and content of any measures to be introduced on behalf of CEL/ex-Lettori in order to put an end to the ongoing discrimination against them. 

 So far as the Lettori are concerned, therefore, no significant rights have been recognised, but only vague expectations and yet more long months and years of waiting for justice to be done. 

 Their only real hope, in the absence of improbable ameliorative amendments at the stage when law decree 48/2023 is converted into permanent law by the Italian Parliament, is to trust that the European Commission will recognise the absolute inadequacy of this new legislation and will therefore bring the case before the Court of Justice, seeking yet another, specific ruling against the Italian State, legally binding and capable of enforcing compliance with the obligations incumbent upon it, under the threat of severe penalties. 

 At a law seminar held at the University of Trento Feb. 13, 2007, now retired ECJ judge Ninon Colneric, one of 13 judges adjudicating the case, said: “The Court is linked to what is put forward by the parties. It cannot do its own research on what happened even if you see that something has gone seriously wrong. You are stuck, you are confined to the pattern of arguments put forward by the parties the Commission had not challenged that material in detail. That’s why we had to proceed from the basis of what the Italian state had said. Our hands were bound by these procedural rules. 

 'The Court has to have the courage to change its procedural rules and if you compare it with the rules of French administrative law, you see that in French administrative law things have developed. The Court in that sense are like immigrants: it’s very, very hard to change the basic procedure of the Court. The litigants must have been very, very disappointed’.” 

 Eminent jurist and MEP, the late Professor Neil MacCormick, who in his academic career taught several ECJ judges, was less kind about what he termed a “snake at the heart of the EU.” 

 “It is a scandal that Italy has been yet again found in breach of its Com- munity obligations to a group of European citizens, but yet again suffers no sanction,” he said. “What trust can we citizens place in our rights under the treaties if a cosy club of Commis- sion, Court and member state can agree that wrong has been done yet fail to ensure the wrong is righted. The Commission in this case failed to put forward a sufficient case to show that Italy’s default continued up to the time of the hearing. Did the Commission really try to win its case? If the Court needed further evidence from the Commission, why did it not direct the Commission to adduce such evidence before proceeding to final judgment” 

 It is in this context that Art. 38 of the latest weasel worded decree must be analysed in detail, ALLSI experts say. 

 The provision introduced by the government through the so-called employment law decree, No. 48 of 4.5.2023, is restricted to the amendment or addition of several para- graphs of Art. 11 of the so-called European Law, No. 167 of 2017. That law was issued six years previously with the identical purpose of making it ap- pear to the European Union that the Italian State intended to comply with its obligations under European law in respect of the treatment of university foreign-language lecturers or Lettori, later recategorized as Collaboratori ed Esperti Linguistici (CEL). Since 1989 European law has required that Italy put an end to the ongoing discrimination against Lettori/CEL as com- pared to Italian university teachers performing similar duties, in terms of salary, career reconstruction and payment of pension contributions. 

 Article 11 of Law 167 placed – and, as amended, continues to place – the task of putting an end to the current situation, viewed by the European Commission as one of continuing discrimination, in the hands of individual Universities, once a ministerial decree of implementation has been issued within the scheduled period of 90 days (which term may, however, be postponed by months, as is common practice in Italy). 

 This very complicated mechanism, however, as introduced by Art 11 of Law 167/2017 and now reiterated by law decree 48/2023, has already shown itself to be utterly ineffectual, as well as creating a source of further discrimination between different lo- cal situations. It places no real obligation on the Universities, let alone on the Ministry, to proceed in the man- ner required, notwithstanding the un- equivocal obligation incumbent upon the Italian State, as identified both by the European Commission in its reasoned opinion of 26.1.2023 and, previously, by the Court of Justice of the EU in multiple condemnatory judgments, to redress the situation of Lettori by applying the minimum parameter for career reconstruction of part-time tenured researcher (or more favourable parameter as decid- ed by the courts or recognized in in- dividual cases) – in other words, the solution theoretically introduced by law decree No. 2/2004, later convert- ed into Law 63/2004, which allowed Italy to avoid the heavy daily fines sought by the European Commission in 2004. 

 The most serious aspect of the new legislation, however, according to ALLSI experts, is that it “wilfully ignores the subversive impact of the so-called Gelmini Law (Art. 26 of Law 240/2010), which continues to remain fully in force.” The Gelmini Law offers a retroactive ‘authentic interpretation’ of the provisions of Law 63/2004, whereby the salary re- construction which that law provided for is in practice rendered null and void or reduced to a mere sham, in particular by terminating the career reconstruction of Lettori in 1994 with no further incremental progression of salary class or seniority thereafter, given that from that year onwards their remuneration is determined by the Collective contracts for administrative and technical personnel, which do not contain salary increments or provide for seniority-based progression. 

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