BARI -- This is a critical moment in the lives of the Italian University’s former foreign language assistants (Lettori, in Italian). After 38 years of wage and professional discrimination by the State of Italy, the European Commission is poised to demand that it be brought to a close. Given the long history of counter measures Italy has taken to avoid full implementation of the CJEU’s 2004 (C-119/04) sentence some reservation and reflection is in order. 

 Let's be clear, the Treaty infringement procedure of the European Commission against Italy for non-implementation of C-119/04 is positive and offers the possibility of finally ending the discrimination that has hounded every foreign language assistant (Lettori) throughout their professional lives. To all those who have struggled in these years we (I was a Lettore) owe our deepest gratitude and thanksgiving. 

 The questions we need to ask, and what we need to do now, concern the history of bad faith, and halfway measures the Italian State has offered the category. What we can expect, and how best to prevent the solution the Italian government has thus far offered to what they have defined as an “age old” issue. 

 I know that many believe the struggle is finally over, the Italian State has no choice, Art 228 of the EU Treaty supersedes Italian laws, but I suggest readers bear in mind the action of Italy towards the category over the past 35 years, and six CJEU judgments. In order to avoid EU sanctions, Italy passed a law in 2004 (n. 63/2004, D.L. n.2/2004), 15 years after the first CJEU ruling, that promised to end wage discrimination. A further 18 years have passed. The “age old” problem now finds many former Lettori entering old age. 

 It is true, and welcome, that the Italian State admits it must pay salary arrears to the former language assistants, and has set aside funds to do so, but the question that begs to be asked is how does it intend to calculate them? Again, looking back at what happened after 2004 gives reason to be cautious if not downright suspicious. 

 There is no clear indication of the Italian State’s intention in the recent official documents.  The Nov. 4, 2021 letter from the Ministry, the subsequent amendment to the 2022 budgetary law, and Ministry communications with the trade unions make no mention of a anything like a linear reconstruction of arrears salary and accrued pension rights proportionate to each “former” language assistant’s years of teaching service using the parameter of part time tenured researcher as indicated by CJEU and the 2004 Italian law. The State knows it owes but it does not even come close to stating what it owes, or how to make the calculation. 

 Conversely, an indication of what the Italian government plans, and how it is currently being applied in the courts, may be found in the Minister’s November letter when it cites a highly reductive design offered in the 2010 “Gelmini law” (Art. 26, 240/2010). This design turns on what the State believes the word “former” means when placed before the title Lettore. 

 The 2004 Italian law (n. 63, DL, n.2, 2004) was issued in response to the request for monetary sanctions by the EU Commission, with specific reference to "recipients of contracts stipulated pursuant to Article 28 of the Decree of the President of the Republic, July 11, 1980, n. 382, repealed by Article 4, paragraph 5, of Decree-Law April 21, 1995, n. 120, converted, with amendments, by Law no. 236 of June 21, 1995 . . . an economic treatment corresponding to that of the part time tenured researcher, with effect from the date of their original recruitment, without bias to any more favorable treatment"

 However, with Art. 26, L 240/2010 (Gelmini law), Italy proposed a new "authentic interpretation" of the service of foreign language lecturers that freezes the correspondence between the lecturer and the part time tenured researcher in 1995. That is, the moment the foreign language assistant position was extinguished and the new university staff position of linguistic collaborator was created. The term “former” language assistant takes on a new meaning, no longer a fluid transition from one position to a degraded but similar position but a dead-end marker that suspends salary and pension arrears as a static quantum locked in 1995. 

 For several years now the Italian State and its courts have subscribed to this sharply reductive interpretation of the CJEU judgment (119/2004). If a national or local contract did not stipulate a pay increase superior to that of a part time tenured researcher in 1995 for each following year of service the State owes the former language assistant only the difference as calculated in 1995. All subsequent increases in salary that the part time tenured researcher benefited from for the next 27 years are not in the calculation. It seems counter-intuitive, but this is what the latest manifestation of 35 years of bad faith by the Italian State looks like. 

 To appreciate precisely how the State reasons and applies this solution, we can begin with a very recent (Oct. 28, 2021) sentence of the Court of Appeals of Bari. The judge (citing several earlier judgments of the Italian Supreme Court) writes:

the Supreme Court (cf. Cass. n. 12877 of 2020) . . . excludes the definitive "link" of the remuneration of collaborators [lettori] to the remuneration provided for part time tenured researchers, in relation to contractual developments following the [1995] stipulation of the linguistic collaborator [CEL] contract. (Translation and emphasis are mine)

 The court interprets the text of the Gelmini law (Art. 26, 240/2010) as having set 1995 as the definitive termination of any link between the remuneration of the part time tenured researcher because the lecturer was ipso jure transformed into another category of worker (D.L. 95, n.120 converted L.21 1995 n.236): no longer a foreign language assistant but now called linguistic collaborator (CEL). The new designation was aimed at marginalising the language assistants professionally and in terms of salary. The foreign language assistants became the first category in Italian post-war public employment to have their salaries cut. The judge, like the State, fails to note that the lettori had no choice in the matter. 

 The Italian judge continues:

The rule clarifies the relationship between the provision contained in D.L. no. 2 of 2004 and the process dictated by collective contract bargaining referred to in Legislative Decree no. 120 of 1995, specifying that from the signing of the linguistic collaborator (CEL) contract any more favorable treatment is retained individually to the extent that it corresponds to the difference between what was received on that date [1995]as a foreign language lecturer pursuant to the aforementioned Legislative Decree no. 2 of 2004 and the remuneration due to the language collaborator on the basis of national and decentralized collective bargaining.

 What the State owes the former lettore is,

an ad personam allowance, not unlike the one guaranteed in public employment contracted in the event of mobility and from what the collective parties had provided for in Article 51 of the c.c.n.l. 21 May 1996 to allow linguistic expert collaborators hired before the stipulation of the same contract to retain the most favorable treatment agreed at University level. The dictated discipline presupposes, therefore, a transition from the relationship of language assistant to that of linguistic collaboration, differently regulated even in the substantial continuity of the professional figures involved.

 The Judge, continuing to cite judgments of the Supreme Court, essentially affirms that the State is responding exhaustively to the judgment of the CJEU C-119/04. 

 This “authentic interpretation” of the Gelmini law (Art. 26, L.240/2010) thus became an authentic interpretation of the n.63/2004 (D.L. n.2/2004) law, and is valid, says the Supreme Court, even for those who have not signed a CEL contract, which assumes (like myself) that s/he still somehow has a lettore contract: 

judgment no. 19164 of 2017, where it was stated that the regulatory continuity and the analogy between the position of former foreign-language assistants and that of language collaborators does not allow the configuration of a sort of permanent nonrenewable category for the position, so that, even if the former assistant has obtained the confirmation of the existence of a tenured employment relationship due to the nullity of the duration clause, however, the discipline dictated for linguistic expert collaborators must be applied to him (see in the jurisprudence prior to the intervention of the United Cass Sections.  n. 19160 of 2016, and in the subsequent Cass. n. 20765 of 2018.

 I want to emphasise that the solution, the so-called "authentic interpretation," affirmed by the judges of the Supreme Court in Italy for five years now, is considered by the Ministry sufficient to satisfy the Commission. It offers about 40 percent of arrears and a pension of about 50 percent versus that of a part time tenured researcher with the same years of service. 

 The State is fully aware of the difference, and the way it differs from the 2004 CJEU judgement, as the Minister’s letter (Nov. 4, 2021) notes:

The European Commission, with a note sent by the Presidency of the Council of Ministers on Sept. 28, 2011, has started a new and complex dialogue with the Italian State (EU PILOT 2079/11 DG JUSI), aimed, on the one hand, at ascertaining that the right to career reconstruction of former lettori (who have become CEL), enshrined in the case-law of the Court of Justice and enshrined in Italian law, is not subject to restrictions by the n.240/2010 law, and on the other, to identify possible solutions to the long-standing dispute pending between former assistants and Italian universities.

 However, there is not another word about the 240/2010 in the Minister’s proposed amendment, or a word in the final text of the amendment of the Budget Law (2022).  The budgetary amendment is aimed narrowly at correcting the issue of the supplementary bargaining constraint. 

 The bad faith that characterizes the actions of the state towards the category leaves little hope that everything ends fairly and happily. The Administrative Director of UniBa assured me that 'authentic interpretation' is the model for calculating arrears. Evidently it is not the time to celebrate but a moment to plan and to act.

 Everyone agrees that Article 26 of Law 240/2010 is contrary to the judgment CJEU C119/04 and therefore clearly with "the authentic interpretation" (or clear confabulation).  It requires very little effort to arrive at the conclusion that Italy is using an interpretation of a law written in 2010 to justify denying the effect of a 2004 CJEU judgment and subsequent Italian law written to clarify the working relationship, rights, and salary of the language assistants. More so, it is fixing that denial nine years before the 2004 judgement and law were written. And, of course, 27 years after the fact. 

 The Commission points out that the reconstruction of the career of the former lettore must be calculated from the first contract as specified in C119/04 and in the Italian legislation of March 2004, n. 63. The solution is simple: a schedule of the remuneration received over the entire period of service compared with that of a part time tenured researcher with the same years of service. The difference, including the social security contributions, is what the State must pay to the individual ex-lettore.  So why doesn’t the Italian government say so explicitly?  

 Also, from the summary of the Dec. 21, 2021 meeting between the union representatives of the ex-lettori and the legal team of the EU Commission there is no mention of Art. 26, L. 240/2010, not one word about the “authentic interpretation” that is being applied in the courts for years now to resolve the “age old” case of the former language assistants. How could the elephant in the room not be called by name? 

 This silence, is not, I am certain, wilful, or a question of commitment or skills, I am confident it was brought up elsewhere, but it suggests a want of a full picture of the facts on the ground. The contractual situation in Italy regarding the ex-lettori is heterogeneous, and chaotic. I think all the ex-lettore would feel greater assurance of a felicitous outcome to a lifetime of discrimination if the cruel spirited “authentic solution” is called out for what it is at every opportunity. 

 To achieve an end to a lifetime of discrimination without another decade of litigation, all possible action should be taken to assure the EU Commission is aware that the solution proposed and applied through Art. 26 L.240 as "authentic" cannot and does not meet what is specified in C119/04. That the reconstruction of the career of the former lettore must include the total term of the relationship, from the first appointment to the pension. 

 Simultaneously, proceed to prepare, with legal assistance, for each individual lettore and/or collectively for each campus of the Italian University, a precise accounting of the sums to be paid to the beneficiaries of the CJEU Case C-119/04 to be presented to the university.

 Without maximum pressure, the Italian State will again fail, wilfully, to fully implement the CJEU judgment and the “age old” issue of foreign language assistants’ rights will endure in the courts.

 Peter A. Avanti PhD worked as a foreign language lecturer in the Department of Languages and Comparative Literatures of the Universita’ Aldo Moro in Bari, Italy for 35 years. His field of research concerns the nexus of racial hierarchy, technology, and popular culture. From 1987 to 2006 he was a national representative for the category of Foreign Language Lecturers in Italy. 

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