In addition the Cassation judges in their weasel-worded July 4, 2017, ruling on the plight of lecturer Nancy Delay “introduced a distinction between public law and private law which is  irrelevant to the EU’s prohibition of discrimination based on nationality, where the worker is carrying out the same substantive duties,” Prof. Avv. Picotti said.

Prof. Avv. Picotti said that “As the lawyer representing the applicant in ECJ case C-276/07 of May 15, 2008  and in the Court of Cassation United Session, 4 July 2017, I clarify as follows:

“Reference for a preliminary ruling concerning the interpretation of Article 39 EC, was made by the Florence Appeal Court.”

“The ECJ duly decided on May 15 2008 and remanded the case to the Florence Court of Appeal to ascertain, on the facts, whether the Belgian applicant was being treated less favourably than that of an Italian worker in a similar situation.”

“On Jan. 14, 2011, the Florence Court of Appeal duly ruled that there had been an infringement of Article 39 and awarded damages and legal costs to my client.”

“However, the University of Florence appealed that decision and the case was heard by the United Session of the Italian Court of Cassation on 4 July 2017.”

“Cassation’s decision is illegitimate on two points.

“Firstly, Cassation violated Art 267  the TFEU, paragraph 3 that stipulates  a final court of appeal “against whose decisions there is no judicial remedy under national law” must refer to the ECJ for a preliminary ruling.”

“Secondly, Cassation distanced itself from the principles established by the ECJ on May 15 2008, giving a different interpretation of facts based not so much on a different evaluation of the evidence (which Cassation is precluded from doing)  but to pronounce again and indeed substitute the premise already determined by the ECJ; Cassation introduced a distinction between public law and private law which is  irrelevant to the EU’s prohibition of discrimination based on nationality, where the worker is carrying out the same substantive duties.”

“In my view it is incumbent on the European Commission, as guardian of the TFEU, to take action against Italy for failure to uphold its Treaty obligations.”

“The entire legal order of the EU is called into question if a national court is permitted to re-interpret the principles of the case law of the ECJ,” Prof. Avv. Picotti said.

jp-dp