Constitutional court ruling nourishes hope for lettori battle

David Petrie, head of the ALLSI foreign lecturers' trade union

 ROME -- Αn Italian Constitutional Court judgment lends support for the legal battle by foreign lecturers in Italian universities by ruling that the “principle of non-retroactivity of the law constitutes a fundamental value of legal civilisation.”

 The genesis of Italy’s longstanding dispute with its foreign lecturers (lettori) was onFeb. 9, 1989, when the Italian Constitutional Court declared Art. 28 of Decree law 382 of 1980, that had set a limit of five year renewability of contracts for the lettori contracts as unconstitutional and therefore, illegitimate. 

 Italy had reformed its higher education system putting its university teaching staff into the ambit of public law as civil servants. However,  the foreign teachers were excluded from this arrangement and their salaries were fixed at the maximum enjoyed by associate professors at the start of their careers,  thereby denying the lettori of  increments for seniority payments for years of service. 

 The European Court of Justice went further in 1989 and 1993 declaring that since Italian teaching staff enjoyed open ended contracts, the same must be applied to non-Italian teaching staff, in order to conform with EU single market rules that prohibit illegitimate discrimination based on nationality. 

 Italy abrogated the offending Art. 28of the 1980 presidential decree law in 1995. But this legislation had a sting in its tail. The lettori were to be “re-baptised” as “collaborators and linguistic experts” employed on open ended contracts, but were no longer designated lecturers, but technicians and therefore could be paid less -- those refusing to accept the downgrading were sacked en masse, notably in Bologna, Naples, Salerno and Verona when 173 lettori were driven back into litigation in the domestic courts. 

 The European Court of Justice intervened again in 2001 and 2006 ruling that Italy had failed to uphold its treaty obligations. The 2006 ruling noted that further Italian legislation passed in 2004 had the potential to resolve the dispute, since it appeared to guarantee equal and fair wages, adding that it remained to be seen whether the legislation would actually achieve its stated aim. 

 The 2004 legislation potentiality affected hundreds of lettori claims for compensation for arrears in unpaid wages and pension rights and represented a great cost to the universities and the Italian state. 

 Unable to stop the claims, Italy introduced, in December 2010, the so-called Gelmini reform. Its Article 26, by retroactively interpreting the previous measures in an allegedly 'authentic' manner, in reality nullified the career reconstruction of the lecturers for the longer period after 1995 and even declared the 'extinction' of pending cases, hindering the lecturers' right to have their legal claims fully adjudicated in a court of law.. Secondary governmental measures followed, apparently to implement what could be derived from the Gelmini law.

 On Aug.10 last year the European Commission brought an action ( against Italy alleging failure to uphold treaty obligations and to guarantee the economic treatment due to the lettori and the corresponding payment of arrears. 

 This will be the seventh occasion in which the ECJ will rule on lettori cases. 

 The recent Constitutional Court ruling of Jan. 11, underlines and reinforces the need to guarantee that Italian law conforms with European law. 

 The Court declared the constitutional illegitimacy of a law that, with retroactive effect, even though it defined itself as an 'authentic interpretation' of a previous rule, which recognised increases in the individual seniority pay of civil servants in relation to a specific period of time, led to their exclusion from this economic benefit, in contrast with the content of the rule itself and the jurisprudential orientation that recognised their right to obtain it from the administrations to which they belonged.

 The Italian Court justified this ruling by stating that if the self-defined 'interpretative' rule has an innovative content, it cannot be retroactive, referring not only to the provisions of the Italian Constitution, but also to principles developed by the European Court of Human Rights, which, on the basis of the fundamental right to a fair trial, provided for in Article 6 of the European Convention on Human Rights, has affirmed that it is an abuse of legislative power to intervene with laws aimed at conditioning the outcome of pending trials in favour of the State.

 And it was precisely this situation that occurred with the Gelmini law, which in 2010 purported to deprive the most favourable economic effects in favour of the lettori of what had instead been envisaged by the 2004 decree-law, which had intended to implement the rulings of the Court of Justice of the European Union.

 At the University of Basilicata lettori payslips show that in real terms their salaries are today on a par with what they were before 2002 when Italy abolished the Italian lire and adopted the Euro.

 The ALLSI trade union representing foreign lecturers will be bringing this ruling to the attention of the European Commission in Brussels.

 David Petrie is the Chair of ALLSI