Three months after the expiry of a Commission deadline for the payments of settlements to foreign university language lecturers(Lettori) for decades of discriminatory treatment, Italy last Monday published a lengthy interministerial decree law to put in place administrative arrangements to make eventual payments. The deadline was issued by the Commission to Italy in a reasoned opinion of 26 January in the context of infringement proceedings N.2021/4055, which seek to compel Italy to enforce a 2006 ruling of the Court of Justice of the European Union(CJEU) in Case C-119/04, the last of four Lettori victories in a line of litigation which extends back to the seminal Allué ruling of 1989.
A decree 3000 words longer than the decision
At 6,440 words, the interministerial decree is almost 3,000 words longer than the sentence in Case C-119/04 , to which it purports to give effect. The bulk of the decree is given over to administrative arrangements and procedures for the co-financing of settlements to Lettori by the state and the universities. These include provisions on eligibility for co-financing, how and by when the universities must apply to the ministry for funds, eventual corrections of errors in the application, penalties for non-cooperation,
Additionally, there is a requirement that each university open an online Census where Lettori record their years of service, information, which as their employer, one would expect the universities to already possess. The extensive bureaucracy put in place suggests that the mindset of the legislator is that the withheld justice to Lettori is mostly due to a failure of administration.
The decree in no way yields on the legal position that Italy has maintained throughout the infringement proceedings. The same inconsistent menu of solutions remains in place. If anything, the decree further entrenches Italian intransigence in its repeated insistence that Italy’s law of March 2004, which was approved by the Grand Chamber of the CJEU on the grounds that it awarded Lettori an uninterrupted reconstruction of career from the date of first employment, must be interpreted in accordance with the restrictive provisions of article 26 of the so-called Gelmini law of 30 December 2010. All references to the March 2004 law approved by the CJEU are followed and qualified by the wording “as interpreted by Article 26, paragraph 3, of law no.240 of 30 December 2010”.
As the decree had circulated freely for weeks before its publication, both the university administrations and the Lettori were aware in advance of its content. Many administrations held that its provisions were so confusing as to be unworkable. Less interested in administrative detail and more in legal import, Lettori unions rejected the decree outright. A national one-day strike was agreed on by FLC CGIL and UIL RUA, Italy’s largest and third largest union respectively, in protest against its provisions.
In accordance with Italian labour law, before a national strike can be officially proclaimed, the Ministry of Labour is obliged to hold an advance meeting to attempt to arrive at a conciliation between the contending parties. Although the Commission took the infringement proceedings on their behalf, the Lettori are not party to the proceedings, which are exclusively between the Commission and Italy. The mediation meeting constituted a unique opportunity for the Lettori representatives to meet face-to-face with and question the representatives of the Ministry of Universities.
The report of the meeting subsequently sent out to the Lettori reads like the transcript of a courtroom cross-examination. At issue is whether Italy intends to reconstruct Lettori careers on the basis of the March 2004 law as interpreted by the CJEU in its ruling in Case C-119/04, or as interpreted by the retrospective Gelmini law of 2010.
The Ministry representatives repeatedly tried to sidestep this question. Pressed by the Lettori representatives, they stated that the decree respected all pertinent national and European jurisprudence. Revealingly, the word order in this response places national law ahead of EU law. Recalling to the Ministry that EU law prevails over domestic law, the Lettori representatives probed further and asked the Ministry representatives to which fount the interministerial decree gives precedence. At this juncture, the Ministry officials repeated that the Decree respects all national and European jurisprudence but added that the Gelmini Law was still valid. It was conceded by both parties at this point that mediation had failed. Hence, the national strike would go ahead.
FLC CGIL’s concerns over the correct implementation of the 2006 ruling in Case C-119/04 carried over into a letter sent a few days after the failed mediation to Commissioner for Jobs and Social Rights, Nicolas Schmit. The letter pulls no punches. FLC CGIL recalls to the Commission that in its depositions in Case C-119/04, Italy assured the Court that it had correctly implemented the law of March 2004. The letter further recalls that following firm assurances from Italy to the then Commissioner Vladimír Špidla that the 2004 law would continue to be correctly applied, the Commission announced in a press release
that its infringement proceedings against Italy would be closed. The worth of these assurances, the letter wryly comments, is that in 2023 new infringement proceedings remain open for non-implementation of the C-119/04 ruling.
In its review of the 6.440-word interministerial decree, FLC CGIL, in a mere 40 words, throws down a gauntlet and interprets the decree in its letter to the Commission as follows:
“In the position taken in the interministerial decree, Italy is effectively asking the Commission, guardian of the Treaty, to overrule the Court of Justice and the findings of its own national courts and give interpretative precedence to the “Gelmini Law”.
Parallel representations to the Commission by Asso.CEL.L, a “La Sapienza” University of Rome-based union point out the implications at stake:
“That a member state would be allowed to retrospectively interpret legislation on which the CJEU has already ruled, and to its own advantage, would set a precedent with very serious implications for the rule of law in the EU….. Ultimately only the Court itself can decide on the legitimacy of a retrospective interpretation of its rulings, should a member state insist on the validity of its interpretation.”
Following protests held outside the Ministry of Universities in Rome on December 13 last and subsequently on April 20, Friday’s national strike held was the third industrial action taken by trade unions this academic year, and the most successful. On campuses across Italy Lettori, retired and in service, were joined by their CEL colleagues. A category of university teachers doing exactly the same work as the Lettori, the CELs under Italian law should consequently be entitled to similar pay.
In Padova , Florence (1), Perugia (2), Sassari and other university towns across Italy local TV and press were generous in their coverage of the Lettori strike. Accurately documenting the long-running discrimination, the stories also record student support for their Lettori teachers and the high esteem in which they hold their courses. Initiatives such as meetings with rectors are covered too.
Kurt Rollin is Asso.CEL.L representative for retired Lettori. The open letter he drafted to Minister for Universities, Anna Maria Bernini, documents how retired Lettori live close to the poverty line as a result of the discriminatory pensions they receive. Speaking outside the rector’s office on the campus of “La Sapienza” University of Rome, Mr. Rollin said:
“The interministerial decree is a blatant attempt to escape the Court of Justice ruling in Case C-119/04. Mantra-like the decree repeats that the ruling must be interpreted in accordance with the retrospective Gelmini Law of 2010 as though to preclude all other interpretations. In the circumstances the Commission should now immediately refer the Lettori case to the Court of Justice and thus allow the Court itself to interpret the retrospective Gelmini interpretation of its C-119/04 ruling.”
Dublin MEP Clare Daly recently denounced the discrimination against Lettori in a speech before the European Parliament. Simultaneously she drafted a Rule 138 parliamentary question to the Commission on the case, co-signed by six other Irish MEPs.
MEP Daly said:
“The Lettori case is the longest-running breach of the parity of treatment provision of the Treaty in the history of the EU. Italian universities receive very generous EU funding. The ethic of reciprocation demands that Italy now obey the rule of law and pay settlements to the Lettori, retired and in-service, for the uninterrupted and full reconstruction of career due to them from the date of their first employment.”
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(1) From 04.00 to 06.30
(2) From 04.40 to 06.47
