Irish MEP Ciaran Mullooly has placed a probing priority parliamentary question to Commissioner for Social Affairs, Roxana Minzatu, on the conduct of infringement case C-519/23 for the long-running discrimination against non-national language lecturers
(Lettori) in Italian universities.
The infringement case is most unusual in that it represents the third case in a sequence of infringement cases dating back to 1996. The Treaty provides for just two stages in infringement proceedings. Where a Member State fails to obey an initial infringement ruling of the Court of Justice of the European Union(CJEU), the Commission may take a follow-on enforcement case against the Member State in breach and request the CJEU to impose fines for non-compliance. In the Lettori case these two stages correspond to infringement case C-212/99 and enforcement case C-119/04, on which the Court ruled in its sentence of July 2006.
Because Italy had not complied with the ruling in case C-212/99 by the deadline given in the Commission’s reasoned opinion, the CJEU found it guilty of discrimination in enforcement case C-119/04 . However, the confidentiality requirement in infringement proceedings ultimately spared Italy the daily fines of €309,750 requested. This was because confidentiality precluded the Lettori from seeing and contesting Italy’s depositions.
After the prescribed date for compliance given in the reasoned
opinion, Italy introduced last-minute legislation to make settlements
to the Lettori for decades of workplace discrimination. On paper, the
Court found the legislation to be compatible with EU law. The
imposition of the daily fines depended on whether the settlements
provided for under the law had actually been made. In its depositions
Italy maintained that the correct settlements had been made.
As the recent open letter to President von der Leyen from Asso.CEL.L, (a Lettori union headquartered in Rome) states : “Over 18 years later, paragraphs 43 and 45 of the 2006 ruling still rankle with the Lettori and make for difficult reading.” In these two paragraphs the judges stated that as the Commission depositions contained no information from the Lettori to counter Italy’s claims that the correct settlements had been made, the Court could not impose the fines.
“The moral for the conduct of the current infringement case is that the Commission needs to be extraordinarily
vigilant in assessing Italy’s evidence. University-by-university,
lettore-by-lettore, the Commission must check that the correct
settlements due under EU law have been made so that decades of
litigation may finally be ended.”
It is to the Commission’s credit that it opened the present and
unprecedented third phase of an infringement procedure when it
realized that the correct settlements under the last-minute law had not
been made. But this is bitter-sweet; this is cold comfort for the
Lettori. It automatically evokes the wistful thought that had the
confidentiality requirement not been in place, the Lettori could have
seen Italy’s depositions and produced proof to the Court that the
correct settlements had never been made. The imposition of daily
fines of €309, 750 would then have swiftly ended a discrimination
which persists to the present day.
This miscarriage of justice then is a glaring indictment of the
confidentiality requirement. The moral for the conduct of the current
infringement case is that the Commission needs to be extraordinarily
vigilant in assessing Italy’s evidence. University-by-university,
lettore-by-lettore, the Commission must check that the correct
settlements due under EU law have been made so that decades of
litigation may finally be ended.
The Mullooly question is crucial to the achievement of a just outcome in the Lettori case. Implicitly it raises the issue of retroactive Member State legislation to interpret the rulings of the CJEU, a point dealt with in great detail in the open letter to President von der Leyen.
The Interministerial Decree, to which the question refers, is the fourth inadequate piece of legislation introduced by Italy to purportedly satisfy EU law since the enforcement ruling of 2006. All references to the last-minute law enacted on the eve of Case C-119/04, and judged to be compatible with EU law, are in the Interministerial Decree qualified by the wording “as interpreted by article 26, comma 3, of the law of 30 December 2010, n.240.” Mantra-like, this qualification recurs throughout the 6.440-word interministerial decree.
The sleight of hand is screamingly obvious here. The law of 30 December 2010, the Gelmini law, was enacted 4 years after the ruling in C-119/04. Italy did not present the Gelmini interpretation in its depositions to the CJEU. Hence, the interpretation cannot be said to have been legitimized by the Court, cannot be said to be in conformity with EU law. Ultimately then, the self-serving Gelmini Law, which limits the settlements due to Lettori to the year 1994, seeks to displace the case law of the pinnacle institution of the European Union. The implications of retrospective legislation like the Gelmini Law for rule of law in the EU are both obvious and sinister, a point emphasised in the Asso.CEL.L open letter to President von der Leyen.
The Mullooly question highlights the polar opposite responses of the universities of Milan and Rome, “La Sapienza,” Europe’s largest university, to the Commission infringement case C-519/23. Documentation from both universities was used by the Commission to prove its two previous infringement cases against Italy. Yet, while Milan has acknowledged and honoured its liability to Lettori under EU law, University of Rome, “La Sapienza” has brazenly continued to enforce a contract ruled discriminatory by the Court in its sentences of 2001 and 2006. The majority of the Italian universities have declined to follow the Milan precedent.
In the data bank on the questions page of the European Parliament web site, the three specific questions posed by Ciaran Mullooly MEP to Commissioner Roxana Minzatu are set out. There they look like routine requests for information. Yet the Commission, perhaps in deference to the confidentiality principle, would not directly answer these questions when put to them in letters from Asso.CEL.L. The replies were circumspect and guarded, even evasive. In a supposed age of transparency such secrecy seems arcane. Ciaran Mullooly, an elected representatives of EU citizens, has now placed his priority question. Under the rules of procedure, the Commission has 3 weeks to reply.
“Ultimately then, the self-serving Gelmini Law, which
limits the settlements due to Lettori to the year 1994, seeks to displace
the case law of the pinnacle institution of the European Union. The
implications of retrospective legislation like the Gelmini Law for rule
of law in the EU are both obvious and sinister, a point emphasised in
the Asso.CEL.L open letter to President von der Leyen.“
Meanwhile in a continuation of their lobbying efforts, Asso.CEL.L and FLC CGIL, Italy’s largest trade union, have written to the members of the College of Commissioners to sensitise them to the issues raised in the open letter to President von der Leyen and to seek their support. Availing of the fact that the two unions together have members from almost all the Member States of the EU, the letters were all written in the mother tongues of the Commissioners to whom they are addressed.
Reviewing the Lettori’s long campaign for parity of treatment Kurt
Rollin, a retired Lettore who taught at “La Sapienza” University of
Rome exclaimed:
“4 rulings of the Court of Justice of the European Union in our
favour! 4 inadequate pieces of Italian legislation to implement the
last of these rulings! An unprecedented three-phase infringement
procedure! A confidentiality principle, which spared Italy a challenge
to the evidence it presented to the Court and, as a consequence, the
imposition of daily fines! Retrospective legislation to “interpret” and
in the process displace the case law of the Court of Justice!
Kurt Rollin continued:
“This is a farcical state of affairs. Under present arrangements
everything seems tilted in favour of the defendant, in favour of the
intransigent, non-compliant Member State. The miscarriage of justice
in the Lettori case is nothing other than shocking. The Commission
really needs to better fulfil its role as Guardian of the Treaty. The
supposedly sacrosanct parity of treatment provision of the Treaty is
what is at stake here.”
We acknowledge The European Times for the information.
