CELEX: 62004CC0371
Language: en
Date: 2006-06-01
Title: Opinion of Advocate General Sharpston delivered on 1 June 2006. # Commission of the European Communities v Italian Republic. # Failure of a Member State to fulfil obligations - Freedom of movement for workers - Post in the civil service- Failure to take account of professional experience and seniority gained in other Member States - Articles 10 EC and 39 EC - Article 7(1) of Regulation (EEC) No 1612/68. # Case C-371/04.

OPINION OF ADVOCATE GENERAL
      Sharpston
      delivered on 1 June 2006 (1)
      
      Case C-371/04
      Commission of the European Communities
      v
      Italian Republic
      1.        The Commission has brought the present case in response to a number of complaints it has received alleging failure on the
         part of Italy to recognise prior professional experience gained by Italian civil servants in the equivalent public sector
         in other Member States.  In its correspondence in the pre-litigation procedure and in its written pleadings before the Court,
         Italy focuses on one alone of those complaints (concerning a primary school teacher).  It is clear, however, that the Commission’s
         case is general in scope.
      
      2.        The Commission seeks a ruling that Italy has failed to fulfil its obligations under Article 39 EC and Article 7(1) of Regulation
         No 1612/68 (2) (‘the Regulation’) which implements Article 39.  It also considers that Italy is in breach of Article 10 EC, because it responded
         either not at all or tardily and inadequately to the Commission’s letter of formal notice and reasoned opinion under Article
         226 EC and to earlier correspondence from the Commission inviting submissions on its laws concerning recognition of public
         sector experience gained in another Member State.
      
      
       Relevant Community law
      3.        Article 10 EC provides:
      
      ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations
         arising out of this Treaty or resulting from action taken by the institutions of the Community.  They shall facilitate the
         achievement of the Community’s tasks.
      
      They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’
      4.        Article 39 EC secures freedom of movement of workers within the Community.
      
      5.        Article 7(1) of the Regulation provides:
      
      ‘A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from
         national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards
         remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.’
      
      
       The pre-litigation procedure
      6.        The Commission explains that it had received a number of complaints concerning Italy’s refusal to take into account professional
         experience or seniority acquired in another Member State.  That refusal adversely affected the complainants’ remuneration,
         grade and/or promotion prospects.
      
      7.        One of those complainants was an Italian state primary school teacher who, before passing the civil service open competition
         in Italy, worked as a teacher within the French public education system under a contract with the Comitato d’assistenza scolastica
         italiana (‘COASCIT’).  COASCIT is an organisation which operates under the aegis of the Italian consulate.  Its role is to
         promote cultural and educational assistance for Italian workers abroad.  By letter of 18 December 2001, the Commission asked
         Italy to explain its position with regard to that case and to provide the relevant national legislation.  Italy did not reply,
         despite a reminder by the Commission dated 25 March 2002.
      
      8.        On 12 August 2002 the Commission wrote to Italy referring again to that complaint and mentioning two others.  The Commission
         expressed the view that Italy’s approach was contrary to Article 39 EC and Article 7(1) of the Regulation.  The Commission
         repeated its request for details of the relevant legislation.  Again, there was no reply.
      
      9.        The Commission accordingly decided to open the pre-litigation procedure provided for by the first paragraph of Article 226
         EC.  By letter of formal notice dated 19 December 2002, the Commission therefore again explained why it considered that Italy
         was in breach of 39 EC and Article 7(1) of the Regulation and invited Italy to submit its observations.  Again, Italy did
         not respond.
      
      10.      On 15 May 2003, the Commission sent Italy a reasoned opinion in which it stated that it had received a number of complaints,
         mentioned the particular case of the teacher who worked for COASCIT and referred to case-law of the Court. (3)  The Commission concluded that Italy was in breach of Article 39 EC and Article 7(1) of the Regulation.  It added that Italy’s
         failure to reply to its earlier requests and to its letter before action had made the achievement of the Commission’s tasks
         more difficult in breach of Article 10 EC.  The Commission invited Italy to take the necessary measures to comply within two
         months.
      
      11.      On 13 October 2003, Italy requested an extension of one month in which to respond to the reasoned opinion.  It finally replied
         by letter dated 3 February 2004, enclosing a note dated 3 December 2003 from the Ministry of Foreign Affairs.  The heading
         to the (five-line) note stated that it concerned the legal nature of COASCIT.  That note was, in fact, simply a cover note
         for another note from the Ministry of Foreign Affairs dated 20 November 2003, which also stated that it concerned the legal
         nature of COASCIT.  Attached to that note were 44 pages of annexes in no apparent order.  These included (i) five telexes
         dating from 1982, 1986, 1991 and 2003 and (ii) 11 items of assorted legislation, reports of judgments and opinions of the
         Consiglio di Stato, and administrative circulars.  All the enclosures indeed appear to concern COASCIT and similar bodies
         in some way or another, although their relevance is explained neither in the letter of 3 February 2004 nor by the note of
         20 November 2003.
      
      12.      Italy’s response of 3 February 2004 failed to satisfy the Commission, which has accordingly brought the present proceedings.
      
      
       Article 39 EC and Article 7(1) of the Regulation
       The scope of the action
      13.      The Commission submits in its application that it is settled case-law (4) that Member States must, when determining remuneration, take into account experience and seniority gained in the civil service
         of another Member State.  On that basis, the principle of equal treatment of Community workers, enshrined in Article 39 EC
         and Article 7(1) of the Regulation, requires periods of employment spent in a comparable field of activity in another Member
         State to be taken into consideration by the Italian administration for the purpose of determining professional benefits such
         as remuneration, grade and promotion prospects in the same way as experience acquired in the Italian civil service.
      
      14.      In its eventual response to the Commission’s reasoned opinion and in its defence before this Court, Italy focuses almost exclusively
         on the legal status of COASCIT.  For that purpose, it refers in its defence to numerous legislative provisions, judgments
         etc. (5)  Only one of these was included amongst the abundant annexes to its response to the reasoned opinion.  None was annexed to
         its defence.  Essentially Italy argues that, since the complainant in the COASCIT case had been placed in the French State
         school in question by COASCIT before, rather than after, passing an open competition qualifying her to teach in the French
         State system, her experience was not equivalent to experience in an Italian State school which she could not have gained without
         having passed an open competition.  The principle of non-discrimination therefore does not require Italy to take the complainant’s
         experience into account when assessing her salary, seniority and/or promotion prospects after she passed an open competition
         qualifying her to teach in the Italian State system.
      
      15.      In its reply, the Commission noted that Italy had continued to refer solely to the individual case involving COASCIT.  After
         making various submissions about that case, the Commission concluded by underlining the general character of its action.
      
      16.      That reminder provoked a further flurry of legislative references by Italy in its rejoinder. (6)  Again, these were not supported by any annexed legislative texts or explanatory memoranda.
      
      17.      Italy subsequently produced to the Court a bundle of over 100 pages of assorted documents, including some but not all of the
         above, and also two judgments (7) and two legislative decrees (8) not mentioned in either of its pleadings.  No explanation has been given of how those texts are relevant.
      
      18.      With regard to the broader scope of the Commission’s action, Italy explains that there is no general legislation in Italy
         on the recognition of professional experience, but only specific provisions concerning different sections of the civil service.
         Italy refers to the education sector, mentioning legislation which treats Italians and other Community nationals even-handedly:
         in both cases, prior experience will be taken into account only if acquired in the public sector.
      
      19.      At the hearing the Commission confirmed that its action was general in scope, and referred to six individual cases of which
         it was by that stage aware. (9)  All those cases concerned persons who had been employed in the public sector in a Member State other than Italy before being
         employed in the Italian civil service.  All complained that the Italian authorities refused to take account of that previous
         employment when determining salary, seniority or promotion prospects.  In only one of those cases had the complainant been
         placed in the earlier post through the agency of COASCIT or a similar association.
      
      20.      In that context, it does not seem to me fruitful to dwell in detail on the precise legal nature of COASCIT and similar bodies.
         It is common ground that the person concerned in the one case involving COASCIT had worked in a State school in France.  As
         I shall explain below, that in my view is the decisive factor, rather than the precise circumstances that led to such employment.
      
      
       Substance
      21.      It is usual in infringement actions for the Member State concerned to provide the Court with comprehensible information about
         its relevant law.  In the present case, the situation in Italy was not entirely clear even after the hearing.
      
      22.      With regard to persons who acquired their previous experience in another Member State’s public sector while under contract
         to a body such as COASCIT, Italy insists that it is not bound to recognise such experience.  With regard to persons who acquired
         their experience while employed directly in another Member State’s public sector having been recruited in accordance with
         local rules on public sector recruitment, the legal position has not been fully explained.  On the one hand, Italy stated
         at the hearing that, pursuant to a law passed in 2004, (10) such persons would no longer be treated differently (which in itself appears to confirm that they were previously so treated).
         On the other hand, its earlier statement (also at the hearing) that it did ‘not prima facie dismiss the possibility of taking
         account of employment’ in France is hardly encouraging.
      
      23.      It is manifestly unsatisfactory for the Court to be left so ill-informed at this stage in the procedure.  None the less I
         consider that it should be possible to come to a view in these proceedings.  I think that it can be assumed that the essence
         of Italy’s position is as follows:  it is not discriminatory for Member State A to require as a condition of recognising previous
         experience in Member State B’s public sector that the person concerned should have been so employed after passing an open competition in Member State B, a fortiori where Member State A (as appears to be the case of Italy) will
         not recognise experience gained in its own public sector by a person before passing an open competition qualifying them to
         work in that sector.
      
      24.      It is settled case-law that Article 39 EC (and hence Article 7(1) of the Regulation) prohibits not only overt discrimination
         by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria,
         lead in fact to the same result.  A provision of national law must be regarded as indirectly discriminatory if it is intrinsically
         liable to affect migrant workers more than national workers (so that there is a consequent risk that it will place the former
         at a particular disadvantage) and if it is not justified by objective considerations independent of the nationality of the
         workers concerned, and proportionate to the legitimate aim pursued by that law. (11)
      
      25.      A refusal by one Member State to recognise employment in another Member State’s public sector is manifestly liable to affect
         migrant workers more than national workers.  The sole remaining question is therefore whether it is justified.
      
      26.      Although Italy does not raise the point explicitly by way of justification (as it does not accept – even in the alternative
         – that it is in breach of its obligations), Italy does refer in particular to the importance of ensuring that previous experience
         in another Member State’s public sector should be recognised only where the person concerned was employed after passing an
         open competition.  It is for that reason that Italy refuses to take account of experience acquired while working under contract
         to COASCIT, stating at the hearing that such experience cannot be assimilated to teaching in a State school since the selection criteria may be less stringent.  The proposition was advanced
         in general terms;  and little was forthcoming by way of explanation as to why that is, or should be considered to be, sufficiently important to satisfy the test that I have just set out, or why complete
         non-recognition of time so spent was nevertheless a proportionate response.
      
      27.      I do not consider that that factor constitutes an acceptable justification for discrimination.
      
      28.      As a general point, not all Member States recruit for all public sector posts by open competition.  Discrimination in this
         context can be avoided only if appropriate account is taken of periods of employment in another Member State’s public sector
         by a person recruited in accordance with local requirements (whatever these may be).
      
      29.      More specifically, even where (as apparently in the COASCIT case) a person is employed in the public service of another Member
         State under arrangements which are different from the requirements which would otherwise apply (for example, by contract with
         an outside body rather than after passing an open competition), an absolute refusal to take any account of such experience
         can only mean that Italy considers that experience gained in another Member State’s public sector before passing an open competition
         for employment in the Italian public sector can have no value whatsoever that is of relevance to that subsequent employment.
         I do not see how such an approach can possibly constitute a valid justification for discriminatory treatment.
      
      30.      In previous cases, attempts by Member States to invoke analogous differences between their ‘culture’ and that of another Member
         State have not succeeded.
      
      31.      Thus in Österreichischer Gewerkschaftsbund (12) the Court considered whether Austria’s different treatment of previous periods of employment in the public service of another
         Member State could be justified by overriding reasons of public interest.  Austria had argued that the public services of
         the Member States were not interconnected to the same extent as was the case in respect of Austrian local authorities, and
         that they had very different characteristics.  The Court ruled:
      
      ‘… the differences between the public services in Austria and those in the other Member States cannot justify a difference
         in the conditions under which previous periods of service are taken into account.  In particular, such differences cannot
         explain why the periods spent in a Member State other than Austria have to be of special importance for the deployment of
         the person concerned, a condition which is not imposed in respect of periods of employment spent in Austria.’ (13)
      
      32.      Similarly in Commission v Greece (14) the Court stated that the fact that a Member State felt it to be difficult in practice to establish whether or not a post
         held in another Member State was equivalent to a post in the national civil service which was taken into account for the purposes
         of salary scale grading and the grant of a seniority increment could not in any circumstances justify its refusal to do so.
         It was for the Member State in question to carry out that comparison. (15)
      
      33.      Finally, in Case C-278/03 Commission v Italy (16) the Commission alleged discrimination in the conditions of access to Italy’s civil service, in that case employment in State
         schools.  With regard to recruitment carried out on the basis of permanent aptitude lists, the Italian Government had conceded
         that there was a difference in treatment according to whether the teaching had been carried out in Italy or in other Member
         States.  It submitted, however, that such a difference was justified to the extent that teaching carried out abroad would
         be on the basis of texts, programmes and content different from that in Italy and would not therefore be ‘specific’ as required
         by Italian law in order to give the right to the award of additional points in the recruitment procedure. (17)
      
      34.      The Court stated that ‘an absolute refusal to take into account experience acquired while teaching in other Member States,
         on the basis of the existence of differences in the teaching programmes of those States, cannot be justified.  It cannot be
         denied that specific experience of teaching as required by Italian legislation … can also be acquired in other Member States.’ (18)
      
      35.      I see no reason why the same approach should not be taken to Italy’s absolute refusal here to take into account experience
         acquired while working in the public sector of other Member States by a person who has not passed an open competition qualifying
         him to work in that sector.
      
      36.      The corollary, clearly, is that a Member State which can demonstrate that there are in fact significant differences between
         apparently equivalent experience gained in the public sector of another Member State – whether because the person concerned
         was not directly employed in that sector, or had not passed an open competition, or for any other reason – would be justified
         in taking commensurately less account of such experience in determining remuneration, grade or promotion prospects. (19)
      
      37.      That said, it does not appear that Italy takes such an approach.  No other justification has moreover been suggested.
      
      38.      Accordingly I conclude that the Commission is entitled to the declaration that it seeks in respect of the substance of this
         application. 
      
      
       Article 10 EC
      39.      It is settled law that while, in proceedings under Article 226 EC for failure to fulfil obligations, it is incumbent upon
         the Commission to place before the Court the information needed to enable the Court to establish that the obligation has not
         been fulfilled, it is likewise incumbent upon the Member States, under Article 10 EC, to facilitate the achievement of the
         Commission’s tasks.  Those tasks consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the
         EC Treaty and the measures taken by the institutions pursuant thereto are applied.  The information which the Member States
         are thus obliged to supply to the Commission must be clear and precise.  It must indicate unequivocally the laws, regulations
         and administrative provisions by means of which the Member State considers that it has satisfied the various requirements
         imposed on it by Community law.  In the absence of such information, the Commission is not in a position to ascertain whether
         the Member State is in genuine and complete compliance with Community law.  The failure of a Member State to fulfil that obligation,
         whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify
         recourse to the procedure under Article 226 EC in order to establish the failure to fulfil the obligation. (20)
      
      40.      I have outlined earlier in this Opinion the history of the (almost entirely one-sided) correspondence between the Commission
         and Italy leading up to the present proceedings, and the subsequent conduct of the actual proceedings before the Court. (21)  It is rather difficult to envisage circumstances in which the absence of appropriate cooperation by a Member State might
         more clearly be demonstrated.  I am therefore satisfied that the Commission is entitled to its declaration in respect of Article
         10 EC. (22)
      
       Conclusion
      41.      I am accordingly of the view that the Court should rule as follows:
      
      (1)      By not taking into account professional experience and seniority acquired while working in the State sector of another Member
         State by a person subsequently employed in the Italian State sector, the Italian Republic has failed to fulfil its obligations
         under Article 39 EC and Article 7(1) of Regulation (EEC) No 1612/68 of the Council on freedom of movement for workers within
         the Community.
      
      (2)      By persistently failing to cooperate with the Commission during both the pre-litigation procedure and the proceedings under
         Article 226 EC, the Italian Republic has failed to fulfil its obligations under Article 10 EC.
      
      (3)      The Italian Republic should bear all the costs.
      1 –	Original language: English.
      
      2 –	Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ,
         English Special Edition, 1968(II), p. 475).
      
      3 –	Case C-15/96 Schöning-Kougebetopoulou [1998] ECR I-47, Case C-187/96 Commission v Greece [1998] ECR I-1095 and Case C-195/98 Österreichischer Gewerkschaftsbund [2000] ECR I-10497.
      
      4 –	The Commission refers to the cases cited in footnote 3 of this Opinion.
      
      5 –	Presidential decree No 18 of 5 January 1967;  Laws Nos 153/1971, 70/1975 of 20 March 1975, 232/1980 of 22 May 1980, 205/1985
         and 286/2003 of 23 October 2003;  Legislative decrees Nos 300 of 30 July 1999 and 165 of 30 March 2001;  Opinion of the Consiglio
         di Stato No 651/78 of 20 February 1980;  judgment of the Consiglio di Stato No 411 of 22 April 1980 and judgment of the Corte
         di Cassazione No 5716 of 12 June 1990
      
      6 –	Presidential decrees Nos 370/1970 of 19 June 1970, 1092/1973 of 29 December 1973, 417/1974 of 31 May 1974 and 133/1988
         of 11 March 1988, together with the National Collective Convention of 24 July 2003.
      
      7 –	Nos 233/1988 of 24 February 1988 and 973/1988 of 11 October 1988, both of the Corte Costituzionale.
      
      8 –	Nos 297 of 16 April 1994 and 97 of 7 April 2004.
      
      9 –	Those cases concerned:  two Germans who had taught in State schools in Germany, an Italian who had taught in a State school
         in France under contract to COASCIT, a Greek who had taught in a State school in Greece, an Italian doctor who had worked
         in public hospitals in Germany and France and an Italian who had taught in a university and State school in France.
      
      10 –	Law No 143/2004 of 4 June 2004 or possibly Decree-law No 97/2004 of 7 April 2004.
      
      11 –	Case C-237/94 O’Flynn [1996] ECR I-2617, paragraphs 17, 19 and 20.
      
      12 –	Cited in footnote 3.
      
      13 –      Paragraph 48.
      
      14 –	Cited in footnote 3.
      
      15 –	Paragraph 22.  See also point 27 of the Opinion of Advocate General Ruiz-Jarabo, citing point 30 of the Opinion of Advocate
         General Jacobs in Case C-419/92 Scholz [1994] ECR I-505:  ‘As for the difficulty involved in making a comparison between the scheme of rules under which the service
         was performed abroad and the scheme under which the same or a similar service is performed in Greece, this is a practical
         problem which cannot affect the application of the principle that Community nationals should not suffer discrimination on
         grounds of nationality in the field of employment.  Any doubt regarding the correspondence between one scheme and another
         can readily be resolved by certificates issued by the employer in question or by the appropriate consular authorities.’
      
      16 –	[2005] ECR I-3747.
      
      17 –	See paragraph 12 of the judgment.
      
      18 –	Paragraph 18.  The Court concluded that Italy had failed to fulfil its obligations under Article 39 EC inasmuch as, for
         the purposes of participation by Community nationals in competitions to recruit teaching staff in such schools, professional
         teaching experience acquired by those nationals was not taken into account, or at least not taken into account in the same
         way depending on whether the teaching had been carried out in Italy or in other Member States.
      
      19 –	Advocate General Jacobs expressed the same view in point 25 of his Opinion in Scholz, cited in footnote 15.
      
      20 –	Case C-456/03 Commission v Italy [2005] ECR I-5335, paragraphs 26 and 27 and the case-law there cited.
      
      21 –	See points 6 to 11.  The Court has ruled that a Member State’s lack of cooperation which persists before the Court is a
         particularly serious infringement of Article 10 EC:  Case 272/86 Commission v Greece [1988] ECR 4875, paragraph 31.
      
      22 –	In fact the Commission has neither sought a separate declaration of infringement of Article 10 EC nor included in the formulation
         of the declaration sought details of the conduct allegedly constituting such infringement.  It is not however necessary –
         although it might be thought desirable – for the Commission to do so:  see Case C-35/88 Commission v Greece [1990] ECR I-3125, where the Court gave a ruling in terms of Article 5 of the EEC Treaty (as it then was) notwithstanding
         similar lacunae in the Commission’s application (see points 56 to 58 of the Opinion of Advocate General Mischo) and similarly
         Case C-33/90 Commission v Italy [1991] ECR I-5987 (see point 26 of the Opinion of Advocate General Darmon).