How Do You Say “$319K per day” in Italiano?
by Henry Rodgers
Lettori Litigation in Europe
European Court of Justice (ECJ)
: Based in Luxembourg, the ECJ is the pinnacle institution of the European Union with supremacy over all the courts of the member states. It has 25 judges–one per member state. Normally the Court sits in chambers of three or five judges, with the Grand Chamber presiding in particularly important cases or at the request of a defendant member state.
References for Preliminary Rulings
: These are essentially questions sent by local courts of the member states to the ECJ on the compatibility of national law with EU law. Both the Allué cases come under this heading. Rulings on these questions and on infringement cases form the bulk of the workload of the ECJ.
Infringement Proceedings
: These are taken by the Commission against member states for perceived breaches of the EU Treaties. As in the case of the lettori, complainants are not technically party to the proceedings, which the Commission takes on their behalf. Most infringement cases to date have been taken against Italy.
Pecuniary Penalty Procedure
: In their idealism (some commentators say naiveté) the signatories of the first Treaty did not foresee the need for penalties for disobedience of ECJ rulings. The power of the ECJ to fine was provided for in the Treaty of Maastricht in 1992. No member state has as yet been fined for discrimination.
Advocate General
: Having studied the depositions of the parties in detail, the role of the Advocates General is to propose, with complete impartiality and independence, legal solutions to the cases they are assigned Advocates General are not judges of the ECJ. Though highly influential, the recommendations contained in their Opinions are not binding on the Court .
The Legal Service
: Agents of the Legal Service represent the Commission in the ECJ. As defendant member states are prosecuted in their own languages, this generally means that German lawyers prosecute Germany, Italians (as with Enrico Traversa) Italy, etc. The Legal Service’s impressive 90+ percent success rate in these cases obviously precludes any charges of partiality.
On January 26 last, in an Opinion delivered before a Grand Chamber of 13 judges of the European Court of Justice (ECJ) in Luxembourg, Advocate General Poiares Maduro recommended that Italy be fined EUR 265,500 (319,263 USD) a day for its discriminatory treatment of foreign university lecturers (lettori). The recommendation follows the hearing of the Commission v Italy case before the same Grand Chamber in November 2005. Should the judges in a ruling expected before the ECJ summer vacation find against Italy, the case will make legal history, as no member state of the European Union (EU) has ever been fined for discrimination.
The Advocate General’s recommendation marks the closing stages of a marathon 19-year lettori battle for parity of treatment with their Italian university colleagues. All remedies for redress under EU law have been exhausted during the campaign. Most indicative of the universities’ resistance to integration is the fact that Pilar Allué, who with co-plaintiff Carmel Coonan first took the case against discrimination to the ECJ in 1987, recently retired and will never work under the non-discriminatory conditions to which her case law should have automatically entitled her.
Allué taught Spanish language and literature at the Università degli Studi di Venezia under the terms of a 1980 law which employed lettori on annual contracts which could be renewed up to five times. On the grounds that Italian nationals enjoyed open-ended contracts, she challenged the 1980 law before her local court, which referred to the ECJ for a preliminary ruling the question of the compatibility of the lettori law with the non-discrimination requirements of the EU Treaty.
Allué’s victory in 1989 should have ended temporary contracts in all Italian universities and the attendant injustices of salaries fixed at 1980 levels and denial of maternity leave. Instead, in the first of three misreadings of ECJ rulings, Italy interpreted the verdict as legitimizing annual contracts but outlawing the limit on number of renewals. It would take four more years before the ECJ ruled on Allué’s challenge to this misreading. The landmark 1993 verdict clarified beyond all ambiguity that the import of the earlier ruling was that lettori had the right to the open-ended contracts enjoyed by native Italian lecturers.
A simple change to the 1980 law to convert the temporary into permanent contracts from the date of first employment would have satisfied EU justice. But while a new law introduced by Italy in 1995 did provide for open-ended contracts, it simultaneously cut the cost of the Allué case law to the universities by demoting lettori to a newly created category of collaborators and linguistic experts and removing the parameter of Italian teaching faculty as a basis for determining salaries and the financial settlements for the backdated reconstruction of careers due under Allué.
As Guardian of the Treaties, the European Commission is empowered to take infringement proceedings against member states in breach of their obligations under EU law. Dissatisfied with the settlements offered to lettori for their rights under Allué, the Commission opened proceedings against Italy in 1996. With their requirement of dialogue and negotiation with member states, the infringement proceedings take time. Using data from representative universities whose lettori had best documented the discrimination against them, the Commission won against Italy in the ECJ in 2001. By then some lettori, disheartened by the difficulties of obtaining justice, had left Italy for good.
It was precisely to punish intransigent behavior like Italy’s that the ECJ was given the power to fine for disobedience of its rulings with the Treaty of Maastricht in 1992. It is a last and rarely used resort to compel member states to obey EU law.
Advocate General Poiares Maduro’s Opinion reviews the present legal position of both parties in their depositions made for the November 2006 hearing. Italy contends that a March 2004 law of the Berlusconi government for the universities of Roma “La Sapienza,” Pisa, Milano, Basilicata, Palermo and Napoli Orientale is compliant with the Commission vs. Italy ruling of 2001. Though its terms had been rejected as discriminatory by the Commission while it was passing through the Italian parliament, President Carlo Azeglio Ciampi nonetheless signed it into law.
The contested law relates the pay of the lettori to that of part-time researchers–the lowest university teaching grade. As the lettori work substantially more hours, it effectively values their labor per hour at 40 percent of the part-time researchers’ rate. In its defence, Italy also disclaims responsibility for the discriminatory practices of the universities, citing their autonomy in the matter of work contracts and labor relations.
The Commission counters that the Italian state is ultimately responsible for the enforcement of European law within its territories. It rejects the parameter of part-time researcher, holding that the category of full-time researcher is more appropriate given the hours and work done by the lettori. In this the Commission shares common ground with the Italian judiciary, whose judgements consistently relate the pay of lettori to categories higher than part-time researchers in cases taken before local Italian courts.
As appointments to the ECJ are the reward for long and distinguished records in the legal life of the member states, short careers there are the norm. Consequently, none of the 13 judges of the Grand Chamber presided in the Allué cases of 1989 and 1993. A sense of the continuity of the litigation, however, came from the appearance at the November hearing of Enrico Traversa, who as agent for the Commission’s Legal Service, has pleaded in all of the successful lettori cases. Addressing the Court, he argued that a daily fine of EUR 309,750 was warranted because of the duration and gravity of the discrimination against lettori.
Although the Advocate General has recommended a slightly lower daily fine of EUR 265,500, and holds that Italy should have a margin of discretion in valuing various academic and teaching activities, he is at one with the Commission in his finding that discrimination against lettori still persists and has not been ended by the March 2004 law of the Berlusconi government. With an election campaign in progress in Italy at the time of going to press and the Berlusconi administration trailing in the opinion polls, a new government may well be passed the responsibility of resolving the lettori question. This is one of the reasons advanced for the failure so far to respond to the Advocate General’s Opinion with a new law that would save Italy the cost and embarrassment of being the first member state of the EU to be fined for discrimination.
At “La Sapienza” University in Rome, lettori who spoke to Adjunct Advocate following the issue of the Advocate General’s Opinion expressed relief that the long battle for justice was finally drawing to a close. But there was sadness that Pilar Allué had retired before her landmark case law had been fully implemented within the Italian legal order. Grateful lettori poignantly acknowledged how partial implementation of her 1993 ruling had improved their lives, ending the bad old days of temporary contracts, when salaries remained fixed during the inflationary 80s and early 90s and maternity leave was denied.
In the archive of the e-group set up and moderated by Londoner and University of Bari lettore, Anthony Green, accounts of the hardships of that period are common. The injustice to mothers, who taught into the ninth month of their pregnancies and had to resume working immediately after giving birth, is particularly deeply felt. These personal histories, together with the well-organized resources of court sentences, press cuttings and files on pertinent labor law, have established the e-group as the most authoritative and influential source on lettori affairs. A review of the archive shows just how decisively the e-group’s information service shaped opinion at a most crucial and divisive point in lettori affairs.
A year before the Commission vs. Italy ruling of 2001, 466 lettori signed a widely publicized petition that was presented to the high profile Neil Kinnock, a former leader of the British Labour Party and then Vice President of the Commission. The petition strongly condemned the Commission’s proceedings, and the then-pending hearing before the ECJ was described in the press as as irrelevant and a show trial. However, the release of information on the Commission position to the e-group lists better explained the conduct of the proceedings and united lettori behind the case. There is a consensus now that, in prosecuting Italy, the Commission is living up to its mission statement that parity of treatment “is perhaps the most important right under community law, and an essential element of European citizenship.”
Nonetheless, that existing arrangements can allow an intransigent member state to deny non-national workers their rights for 19 years is a cause of concern to Irish politician Proinsias De Rossa, a member of the European Parliament, which has passed 4 resolutions condemning the discrimination. The lettori’s long wait for the implementation of the Allué case law was the subject of a petition he co-signed in 2003, when Vice Chairman of the parliament’s influential Petitions Committee. Mr. De Rossa’s involvement is in keeping with the high level of interest Ireland has shown in the case, evidenced by the presence, at the November ECJ hearing, of His Excellency Michael Hoey, Irish Ambassador to Luxembourg.
Speaking to Adjunct Advocate, Mr. De Rossa said: “The case of Pilar Allué should be required reading for all those who assume that the right to parity of treatment is automatic throughout the European Union. I am happy to have been involved in the campaign to end this injustice. Hopefully the eventual Court decision will put down a marker and deter member states from discriminating against vulnerable non-national workers.”
With typical efficiency, Anthony Green had circulated Advocate General Poiares Maduro’s Opinion to his lists on the day of its publication. But he is concerned that Italy could try to limit the benefits of the eventual Court ruling to the representative universities chosen by the Commission to prove its case, as was done in the March 2004 law.
Mr. Green said: “Though the prestige of a degree from the different universities in Italy may vary, the lettori’s work load and teaching duties are practically the same. Our Italian colleagues earn the same irrespective of the particular university where they work. Why should it be any different for lettori?”
In time, the archive of Anthony Green’s e-group will be a rich source for research on the treatment of non-national workers in Italy. It links and informs lettori from universities as far apart as Trieste and Palermo, and has members from most of the states of the EU. All came to Italy to teach the language and literature of their countries. Few could have envisaged becoming involved in such a protracted and contested battle for parity of treatment.
Thanks mainly to Pilar Allué and the zealous European Commission, the lettori have been incrementally improving their position. But it still falls short of the full equality that the Commission calls for in its mission statement. The three ECJ sentences against Italian universities are now routinely cited in the definitive textbooks of EU law. Should a fourth Court sentence impose the first EU fine for discrimination, then the case of Italy’s lettori will endure long beyond their lifetimes in the law tomes.
