13 January 2025
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Henry Rodgers teaches English language at “La Sapienza” University, Rome and has published extensively on the discrimination issue.
The Asso. Cel. L open letter of 14 January 2025 to President of the European Commission, Ursula von der Leyen, is the most recent of many representations to help end the decades-long discrimination against foreign-language lecturers (Lettori) in Italian universities. It is a discrimination which persists in defiance of 4 clear-cut sentences of the Court of Justice of the European Union (CJEU), the first of which was handed down in1989.
My own active involvement in Lettori affairs dates back to 1996 and to my lobbying of Irish politicians to ask the Commission to open infringement proceedings against Italy for non-implementation of the Allué case law of the CJEU. Pilar Allué, a Spanish national, had won the first of her two victories before the Court in 1989. A misreading of that ruling by Italy caused her to have recourse to the Court again. In 1993 the Court ruled in her favour for the second time. Essentially the breach of the Treaty for which the Commission prosecuted Italy in a subsequent infringement case(C-212/99), and a follow-on enforcement case(C-119/04), and for which the Commission will again prosecute Italy in a case pending before the Court(C-519/23), equates to non-implementation of the 1993 Allué verdict.
As part of my lobbying of Irish politicians, I had been in contact from Rome with the Joint Committee on European Affairs of Dáil Éireann, the Irish parliament. Back in November 1996, I received an invitation from the Clerk of the Committee to come to Dublin and testify.
The Clerk accommodated me in an anteroom, where I awaited my turn to testify. In the anteroom I could follow the proceedings of the Committee on close-circuit television. At that moment I had a strong attack of stage fright. Among the Committee members in the chamber that day were some very prominent figures in Irish politics. I reflected that I had been watching these figures on television all my life and that in a few minutes time I would have to leave the anteroom and speak before them.
Fortunately, the panic passed. I must have done reasonably well, as the Committee unanimously resolved to write to the Commissioner for Social Affairs, calling on him to open infringement proceedings against Italy on the grounds of the discriminatory treatment of the Lettori, about which I had testified.
One story of my subsequent dealings with the Joint Committee is revealing of Italy’s reluctance to debate the Lettori question in the public domain. Then Chairman of the Committee, Bernard Durkin TD, was known as a very fair-minded, plain-speaking politician. He gruffly informed me that the Committee had heard my side, the Lettori side, of the story. Now he planned to hear the Italian side.
To this end he issued an invitation to the Italian Ambassador to Ireland to testify. I was to be invited also, with a right to respond to the Ambassador’s testimony. I looked forward to the occasion, but it never materialized. The Ambassador excused himself from appearing before the Joint Committee on the grounds that he had little knowledge of EU law.
Neither, at that point, had I much knowledge of EU law, and I was feeling the handicap. In Hodges Figgis, a bookshop immortalized in James Joyce’s Ulysses, there were many textbooks on EU law on the shelves. With no education in law to speak of, I was ill-equipped to evaluate their respective merits.
What warmed me to EU Law: Text, Cases, and Materials, by Prof. Paul Craig and Prof. Grainne De Burca, was Prof. De Burca’s dedication of the textbook: “Do mo mháthair agus i gcuimhne m’athar”. This is Gaelic, my grandmother’s first language. It was purely on the basis of my love for the language that I purchased the book.
I set myself to the study of EU law: Text, Cases, and Materials. I had no tests, no examinations to measure my progress. So, it was very gratifying when the co-authors, my teachers, cited an article I had written for the Irish Law Society Gazette on discrimination against Lettori in the infringement chapter of the textbook. The editor, with an evident liking for alliteration, had entitled the piece Lettori of the Law.
Lettori of the Law is an attempt at a legal history of the Lettori cases from 1989 to February 2022, the date of publication of the piece. The Court first found for Allué on 30 May 1989 in her reference for a preliminary ruling case against her employer, Università Degli Studi di Venezia. Her victory should have ended the discrimination against Lettori. Instead, it serves a marker, a starting point from which to measure the persistence and duration of the discrimination against our category. Year-by-year, with a sort of gallows humour, some of us gather to commemorate 30 May 1989, Pilar Allué Day, and the accretion of the discrimination against us.
As Lettori of the Law can be consulted online, there is no need to go into all of its detail here. Allué has long retired from her teaching post at Università Degli Studi di Venezia. She retired without ever receiving the compensation for discrimination to which her landmark victories before the CJEU should have entitled her. Her cases continue to feature in textbooks of EU law and, of course, in the Commission infringement cases against Italy for non-implementation of her jurisprudence.
One particular case in the Allué line of litigation to which I draw attention in my letter to President von der Leyen is the ruling in the Commission’s enforcement case against Italy: Case C-119/04. Of all the cases in the line of litigation, this case, tried before a Grand Chamber of 13 judges, was the one that attracted the most public attention. It is easy to understand why. The Commission had asked for the imposition of daily fines of €309, 750 on Italy for its discriminatory treatment of the Lettori. By the deadline specified in the reasoned opinion, Italy had not complied with the ruling in earlier infringement case, C-219/02.
Italy enacted a last-minute law under which provision was made for the payment of settlements to Lettori for the discriminatory treatment they had suffered. The Court’s acceptance of its conformity to EU law was somewhat lukewarm. In the wording used in the official English translation of the sentence, the judges observe that the law “cannot … be regarded as having provided an incorrect legal framework”. The language of the case was of course Italian. As one legal wit caustically put it: “in infringement cases the member states enjoy the privilege of being prosecuted in their own languages.”
As the last-minute Italian law was ruled to be compliant with EU law, just one outstanding question remained to be addressed. This was the question of whether the settlements provided for in the last-minute law had, in fact, been correctly made. This issue is taken up in paragraphs 43 and 45 of the 2006 ruling.
As I wrote in my letter to President von der Leyen, “over 18 years later, paragraphs 43 and 45 of that ruling still rankle with the Lettori and make for difficult reading.” Italy maintained that the correct settlements had been made. In paragraphs 43 and 45 of their ruling, the 13 judges of the Grand Chamber pointedly noted that the Commission depositions did not contain any information from the Lettori to contest this and hence declined to impose the requested daily fines.
These paragraphs highlight the grave injustice to complainants which can result from the confidentiality requirement of infringement proceeding. Had the Commission checked with the Lettori, we could easily have refuted Italy’s claim that the correct settlements had been made. But the confidentiality requirement precluded the Commission from revealing Italy’s evidence to us. I underline the moral in my letter to President von der Leyen: “Tragically, the rules of procedure in infringement cases prevailed over the justice the same proceedings are supposed to deliver.”
That the Commission went on to open further infringement proceedings against Italy is proof that it accepts that the correct settlements due to the Lettori under EU law had never been made. But this could easily have been proven in Case C-119/04 had the Commission consulted on the point with the Lettori and included their counterevidence in the depositions. Had the daily fines been imposed in 2006, the discrimination would have very soon ended.
Since the ruling in Case C-119/04, Italy has introduced 4 pieces of legislation to purportedly end the discrimination against Lettori. They are lengthy, of byzantine complexity, often inconsistent. The most troubling of them, the one with the most worrying implications for European citizenry, is the Gelmini Law of 2010, a retrospective law introduced to “authentically” interpret the Italian depositions in Case C-119/04 and in the process quash the scope for rulings favourable to Lettori. which the local Italian courts had been handing down in the immediate wake of that CJEU ruling. I deal with the Gelmini Law in great detail in my letter to President von der Leyen.
One of the most popular posts on the web site of Asso.CEL.L, an association I co-founded, is Harry Houdini and the Italian Lettori. The post is most probably popular because of the fact that Italy to date has shown an almost Houdini-like ability to escape the supposedly binding case law of the CJEU. This discourages. But there is a positive side to the analogy also.
E.L. Doctorow, in his novel Ragtime describes Harry Houdini as the last of the great mother lovers in history. So, it surprised people who knew him that Houdini did not mourn when his beloved mother died. There was a reason. With his supreme confidence in his own great gifts, his ability to escape any physical or spatial restriction, Houdini thought he could cross the line that divides this world from the next and get to his mother.
Along the way Houdini, like the Lettori, became a campaigner. And a very successful one too! He testified before the United States Congress and was influential in getting legislation passed curtailing the activities of fortune tellers, spiritualists, holders of seances etc. He had in vain enlisted their help in his attempt to get to his mother. Then he discovered they were frauds and wanted to expose them as such.
These then are some of the stories with which we try to hearten ourselves and find spirit to continue. As I mention in the conclusion of my letter, President von der Leyen is the Ultimate Guardian of the Treaties. We hope that in this role she will intervene to ensure that justice is finally done in the Lettori case.
