28 Years & Counting: Foreign-Language Lecturers Versus Italy
by Henry Rodgers
When I emigrated from Ireland to Italy in 1988 I had no inkling that I would become involved in a marathon campaign to end discrimination against foreign language lecturers in Italian universities. That I would return some years later to address and persuade the Irish parliament to press for the prosecution of Italy for its second class treatment of myself and my 1,500 colleagues was something I never foresaw when I was leaving. While I was aware of the roles of the European Court of Justice and the European Parliament within the overall European Union framework, I never imagined that I would have recourse to these pinnacle institutions, which would respectively pass key judgments and resolutions censuring Italy for discrimination in its universities. Practically illiterate and unread in law, there were certainly no grounds to suppose that I would write critically on the foreign lecturers’ case for legal and specialist magazines-much less that my contribution would be cited in the prestigious and recently published European Union Law: Text, Cases, and Materials from Oxford University Press, the most authoritative and widely prescribed textbook for law students in European universities.
While I was eventually to become a prominent campaigner, I did not become actively involved until the mid 90s. By then, litigation taken by colleague Pilar Allué, who taught Spanish language and literature at the Università degli Studi di Venezia, had established landmark rights for the 1,500 non-Italian foreign language lecturers in Italy and campaigning was thereafter mostly a matter of seeking to have these rights enforced. Ironically, the foreign lecturer unions have consistently damaged the interests of the members who finance them, with most good coming from private and unsponsored initiatives like Allué’s. What improvements have taken place in our working conditions, what compensatory settlements have been won before local Italian courts for denied rights, are ultimately traceable to the Allué case law on discrimination.
Although European Union law can seem complex to Europeans and non-Europeans alike, it can be made intelligible for present purposes with reference to just a few fundamentals. Member states of the Union undertake to abide by the provisions of the Treaty of Rome of 1957 and subsequent treaties. Like Allué did, a party may take a case to the Luxembourg-based Court of Justice for a ruling on whether local law is in fact compliant with the terms of the treaties. As it did against Italy, when it refused to implement the Allué case law within its legal order, the Brussels-based European Commission may take an action against a member state in perceived breach of its treaty obligations. In extreme cases, where the eventual ruling in such actions is disobeyed by a member state, the Commission may take a follow-on enforcement action and request the Court of Justice to impose fines for non-compliance. How the Commission worked with the foreign lecturers to prepare the depositions for its enforcement case against Italy is now being researched by legal scholars and, as a case study in how existing arrangements do not adequately protect the interests of citizens, is adding to the pressure for reform of prosecution procedures for treaty violations.
By consensus the most important provision of the treaties is Article 39, which prohibits discrimination on grounds of nationality (race). In its mission statement, the Commission writes that the right to parity of treatment “is perhaps the most important right under community law, and an essential element of European citizenship.” This echoes the idealism of the founders of the Union, who, working in the aftermath of World War II, saw closer ties and integration among European peoples as crucial to creating an enduring peace. To facilitate this goal of integration the Commission has set ambitious targets of second and subsequently even third language acquisition for European citizens. How ironic then that Italy, a founder member of the Union, should consistently discriminate against non-Italian university teachers of foreign languages and literature!
Pilar Allué contested a 1980 law under which foreign lecturers in Italian universities were employed on annual contracts which could be renewed up to five times. In a 1989 ruling the Court of Justice found this law to be discriminatory on the grounds that Italian nationals enjoyed open-ended contracts. Italian officials interpreted the verdict to mean that, while the limit on number of renewals was unlawful, annual contracts with foreign lecturers were legitimate. Undaunted and tenacious, Allué contested Italy’s reading of the 1989 ruling. It would take four more years before the Court gave the second of its Allué rulings. The landmark 1993 verdict clarified beyond all ambiguity that the import of the earlier ruling was that foreign language lecturers had the right to the open-ended contracts under which Italian lecturers were employed.
Another example of how private lecturer initiative has helped the common good is the subscription free and transparent e-group set up and monitored by Anthony Green of the University of Bari. It links and informs colleagues from universities as far apart as Trieste and Palermo, and has members from most of the states of the European Union. Its well maintained archive contains stories of the hardship endured by colleagues working on the temporary contracts which Allué challenged. Salaries, which had been pegged to the 1980 salary of an Italian associate professor, remained at that level during the highly inflationary 1980s and early 1990s. To supplement their meager incomes most colleagues had to take second and even third jobs.
But more bitterly felt and resented than the economic hardship was the denial of maternity leave. Mothers taught up to the ninth month of their pregnancies and resumed their teaching duties almost immediately after giving birth. The tone in the archive messages from some of these mothers is hurt and unforgiving. It was common enough practice to pay students to baby sit the newborn in the staff room during teaching hours. In one moving message, a mother describes how she breast fed her child in the staff room in the intervals between lectures. Italian colleagues with full maternity leave rights, she says, just looked the other way.
One misreading of a Court of Justice sentence is arguably understandable and pardonable. The misreading of the second Allué ruling was widely seen as indicative of calculation and blatant bad faith. To comply with the Allué ruling of 1993, Italy had merely to introduce legislation converting the temporary foreign lecturer contracts into open-ended contracts. While a new law passed in 1995 did provide for open-ended contracts, it simultaneously cut the cost of the Allué case law to the universities by demoting foreign lecturers 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 backdated reconstruction of career due under Allué. In effect what was conceded on tenure was cancelled out financially by the reduced job status.
In my scrapbook of my writings and of media coverage of the foreign lecturer case, I refer regularly to Italy’s “Houdini-like evasion of Court of Justice rulings.” Developing the point on how Italy escaped the strictures of European Union law in an article commissioned by the Law Society Gazette of Ireland, I added: “The clear-cut Allué case law has been repeatedly misinterpreted by Italy, causing the foreign lecturers to return to the Court of Justice for further refinements of the original ruling.”
In 1996, I traveled to Dublin at the invitation of the European Affairs Committee of the Irish parliament to make the case for the opening of infringement proceedings against Italy. It was during the Irish presidency of the European Union, a period when the member state in tenure shapes and directs Union policy. Waiting for my turn in the order of business in the small ante room to the parliament chamber, I could watch the deputies in session on closed circuit TV. Some of Ireland’s most prominent parliamentarians were present that day. Preparing to make the case for the opening of infringement procedures, it occurred to me how far-fetched such an eventuality would have seemed when I emigrated from Ireland with the naïve belief that the right to parity of treatment was relatively automatic.
As the parliament minutes confirm, Ireland successfully lobbied the European Commission to open infringement proceedings against Italy in late 1996. With their requirement of dialogue and negotiation with member states, infringement proceedings take time. Because my own university, “La Sapienza” in Rome, was one of the representative universities chosen by the European Commission to prove its case against Italy, my own involvement increased greatly from this point on. Based on evidence from “La Sapienza” and five other universities, the Court of Justice found Italy guilty for the third time of discrimination against foreign lecturers in June 2001.
By now it should be apparent that European justice moves at a snail’s pace when non-national workers are pitted against an intransigent member state. True to form Italy did not implement the 2001 ruling. On behalf of the foreign lecturers the Commission duly opened enforcement proceedings, the last remedy for redress under European Union law. But most damming of the slow pace of justice was the fact that Pilar Allué reached retirement page during the course of these proceedings. Although her case law is routinely cited in textbooks of labor law and, at least, gave tenure to the foreign lecturers, she would never work under the full non-discriminatory conditions to which her landmark victories entitled her.
In a press release of February 2004 the European Commission announced it was referring its enforcement proceedings against Italy to the Court of Justice and requesting the imposition of daily fines of EUR 309,750. Due to the size of the fine requested, and to the fact that no member state had ever been fined for discrimination, press interest increased markedly from this point on. In my scrapbook of press cuttings for 2004 and after are letters and articles from The Economist’s Brussels weekly European Voice, Times Higher Educational Supplement, Law Society Gazette, Chronicle of Higher Education, Adjunct Advocate and others. Eager for the limelight, opportunist lecturer unions now tried to distort the history of the campaign for justice and claim a credit that was mainly Allué’s. As a check on this tendency, Anthony Green refined his e-group archive so that his members could check the consistency of contributors over time.
Towards the end of its term in office the government of Silvio Berlusconi introduced a law which effectively set the pay of foreign lecturers at 40 percent of the hourly rate of part-time researchers–the lowest academic grade in Italian universities. The law was ambiguous in that it also allowed for the maintenance of better economic conditions, where these existed. Farcically “La Sapienza” declined to use the parameter pegged to part-time researcher on the grounds that salaries under our existing contractual conditions were superior. The problem with this position was that these very contractual conditions had been ruled discriminatory by the Court of Justice in its 2001 ruling.
The European Commission rejected the Berlusconi law and pressed on with its enforcement proceedings. To compound the sense of farce, Romano Prodi had been President of the Commission that authorized the proceedings against Italy. He returned from Brussels when his term was up to contest, and win, the elections against Berlusconi. There were hopes he would be consistent and implement the solution the Commission he had presided over had been pushing. But in power in Rome his mind set changed and his administration did nothing to end the discrimination.
On July 18 2006 the Court of Justice delivered its ruling in the enforcement case Commission v Italy. Because Italy had not implemented the previous 2001 ruling within the deadline set by the Commission, it was found guilty for the fourth time of discrimination against foreign lecturers. To impose fines the Court now had to determine whether or not the last minute Berlusconi law remedied the discrimination. It had the Italian side of the story in the depositions before it. But in a paragraph which was to raise outraged questioning in the European Parliament of Vladimir Spidla, the Commissioner responsible for the prosecution of the case, the judges noted that the Commission depositions did not include information from the foreign lecturers on whether–or how–settlements for withheld rights had been made under the Berlusconi law. In the absence of this information, they could not determine whether the discrimination persisted and thus they declined to fine Italy.
It was a crushing disappointment. Without the deterrent effect of fines nothing would change. To interested journalists I explained that, while I could have borne losing on points of law, I found it intolerable that a 20-year campaign for equality of treatment should fail just for want of information. I had little heart at the time to explain to non-specialists how such a state of affairs could have come about. While the Commission takes infringement proceedings on behalf of complainants, they are not technically party to the cases. Thus, the foreign lecturers could not check and contest submissions from the Italian universities, nor for that matter could they see the evidence the Commission presented to the Court of Justice on their behalf.
In any event, the conduct of the Commission infringement proceedings–ridiculous and all as it appeared to me–seemed set in stone and futile to contest. At this point, I began to review whether it was worthwhile to continue as a lobbyist. Independent of the unions, my campaigning took up a lot of time. I did not have the generous subscriptions from membership which the unions possessed, though the Internet age had helped reduce the cost of lobbying to a manageable few hundred euros a year. However, what most induced me to give up was that the mainstream press–now that the Court of Justice had declined to fine Italy–saw nothing further newsworthy in the case and began to lose interest.
Though the mainstream press had ceased to cover the case, interest in 2007 began to come from a more specialist media. 2007 marked the 50th anniversary of the European Union. Across European capitals, many events were staged to celebrate the idealism of the Union founders and of the signatories of the 1957 Treaty of Rome. But there was interest too in how well the member states were keeping to the commitments pledged in Rome and subsequent treaties. Comparative tables show that the European Commission, as Guardian of the Treaties, opens more infringement proceedings against Italy than it does against any other member state. It was an opportune moment to raise the question of the efficacy of the infringement proceedings and, in particular, the rule which denies the parties on whose behalf the proceedings are taken access to the documentation.
European Parliament Magazine commissioned an article on the conduct of the foreign lecturer case. In Compelling Evidence I wrote that it was obvious, even to people with no legal background, that the Berlusconi law had to improve on the settlements for withheld rights deemed inadequate and discriminatory by the Court of Justice in its 2001 ruling. I added that my circle of colleagues at “La Sapienza” and I had not received a euro in additional payments from our employer. Moreover, “La Sapienza” had conceded in letters to us that application of the Berlusconi law would lower our existing salaries. Obviously none of this evidence had been included in the Commission’s depositions and the outcome of denying us the possibility to check and review the documentation was that the enforcement proceedings had undone the very ruling they were meant to enforce.
It was opportune, too, that a new edition of the authoritative and influential Oxford University textbook on European Law by Professors Craig and De Burca was published in the fall of 2007. In the infringement chapter of the book the authors cited Compelling Evidence, and summarized my arguments therein. Gratifyingly, the authors of this widely acclaimed “bible of European law” agreed with my position, writing that successful prosecution of enforcement proceedings depends “largely on the quality of evidence submitted by the Commission, and the continuing saga of Italian employment discrimination against foreign-language lecturers demonstrates the invidious effects for individual complainants(who, as we have seen, are in no sense parties to the case) when the Commission fails to bring sufficient evidence to prove its allegations.”
I was aware now that my campaign was shifting focus. From exclusive concern with the foreign lecturer case, it had evolved, in the year of the 50th anniversary of the European Union, to reform of the infringement proceedings so as to give improved prospects for justice to European citizenry as a whole. Legal scholars with published reservations on the conduct of the infringement proceedings now began to get in touch. European Parliament magazine commissioned an update of Compelling Evidence, and dignified it with the title of Cause Célèbre. There, I argued that simple arithmetic evidence could prove more effectively than refined legal argument that discrimination against foreign lecturers persisted. Precluding citizens from access to the Commission files on their cases gave scope to the infringement proceedings to work to the advantage of a member state in breach.
Lobbying with colleagues from different member states, one gets a comparative sense of how much politicians care about the welfare of their workers abroad. And looking through Anthony Green’s archive, one can see what interest there has been in the foreign lecturer case in the European media and press. On both counts the Irish contribution has been outstanding. All of Ireland’s deputies in the European Parliament have signed a joint statement to the Commission in favor of a review of the foreign lecturer case–an initiative which will, ideally, set an example for the politicians of other member states. Recently, our national broadcasting service did an in-depth television report on the case, interviewing Irish deputies Proinsias De Rossa, Brian Crowley and myself. Anthony Green’s archive also contains links to recorded footage of Mr. De Rossa’s speeches in the European Parliament on behalf of the foreign lecturers.
His Gaelic name may be difficult to pronounce for the majority of them, but Proinsias De Rossa has become a hero to my colleagues. His web site attests to the breadth of his political interests and his enduring commitment to workers’ and to human rights. On the foreign lecturer litigation for justice, Mr. De Rossa says it is a case study of how, under existing arrangements, the Commission infringement proceedings can damage the very interests of citizens that they were intended to protect. The European Parliament, where Mr. De Rossa is leading the campaign for justice for the foreign lecturers, has passed four resolutions condemning discrimination in Italian universities.
It was in the Palazzo dei Conservatori on the Campidoglio that the Treaty of Rome, establishing the European Community, was signed in 1957. It is within walking distance of the Houses of Parliament, where a different and protectionist mind set is at work and the discriminatory legislation on non-national language lecturers contrary to the provisions of that landmark treaty was passed. The difficulties I have described shook my faith in European justice to the point that I thought they were insurmountable, and that it was futile to continue to campaign.
In the end, it was out of a sense of civic duty that I decided to continue. The founders of the European Union may not have foreseen how some of their heirs would depart from the terms of the Treaty of Rome, but their example, working for integration in the difficult conditions of post war Europe, still inspires.
