Commission of the European Communities v Italian Republic.
Date: 2001-06-26
15 The Commission concludes that the Italian Republic is guilty of discrimination based on nationality, which is prohibited by Article 48 of the Treaty. This conclusion rests, first, on the finding that the universities in question have not recognised, in their collective agreements and employment contracts applicable to linguistic associates, the years of service previously completed by the latter as foreign-language assistants, notwithstanding the requirement of Article 4(3) of Law No 236, and, second, on the view that Law No 230, relating to all national workers whose employment relationship is governed by private-law contracts, provides in case of abuse, that is to say if the employment relationship continues after its initially fixed term, for the automatic conversion of the fixed-term employment contract into an employment contract of indeterminate duration from the date on which the worker was first employed.
21 It should be noted at the outset that, when a worker whose employment relationship is governed by private law is entitled, under Law No 230, to have his fixed-term employment contract converted into one of indeterminate duration, all his acquired rights are guaranteed from the date of his original recruitment. That guarantee has consequences not only with regard to increases in salary, but also with regard to seniority and to payment, by the employer, of social security contributions.
22 That being so, when a foreign-language assistant who is a national of another Member State and has been employed under a fixed-term contract is entitled to have that contract replaced by one of indeterminate duration, also governed by private law, the Italian authorities must ensure that he retains all his acquired rights from the date of his original recruitment, failing which there would be discrimination based on nationality, contrary to Article 48 of the Treaty.
23 As the Court held at paragraph 12 of its judgment in Allué and Coonan, cited above, the fact that only 25% of foreign-language assistants are Italian nationals means that measures taken in relation to assistants essentially concern workers who are nationals of other Member States and may therefore, in the absence of justification, constitute an indirect form of discrimination.
24 Further, according to settled case-law, the principle of equality of treatment, of which Article 48 of the Treaty is a specific expression, prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result (see, inter alia, Cases 41/84 Pinna [1986] ECR 1, paragraph 23, and C-237/94 O'Flynn [1996] ECR I-2617, paragraph 17).
25 It follows that Law No 230, which applies to all national workers whose employment relationships are governed by private-law contracts, must serve as a measure of comparison to decide whether the new system applying to former foreign-language assistants is similar to the general system applying to the national work-force or whether, on the contrary, it affords them a lower level of protection.
26 It is worth recalling in this respect that in paragraph 19 of its judgment in Allué and Coonan the Court held that a provision of national law imposing a limit on the duration of the employment relationship between universities and foreign-language assistants was contrary to Community law, in so far as such a limit did not in principle exist with regard to other workers. The Court replied in that sense to the Pretura unificata di Venezia (Magistrates' Court, Venice) (Italy) which had asked it, among other things, if such a measure applying only to assistants was compatible with Article 48 of the Treaty whilst other State employees are generally guaranteed security of tenure under Law No 230 of 18 April 1962. One of the questions which the Court answered to similar effect in its judgment in Allué and Others, cited above, also referred to Law No 230.
28 As for the Italian Government's argument that reference to Law No 230 is irrelevant since that law provides for the automatic conversion of contracts contrary to the scheme established by Law No 236, which sets out a new public selection procedure for former foreign-language assistants, regard must be had to the substance and the objectives of those two statutory schemes rather than to their form and detailed rules. Only an analysis concentrating on the substance, rather than the form, of those statutory schemes will make it possible to establish whether their actual application to different categories of workers in comparable legal situations leads to situations which are compatible or, in contrast, incompatible with the fundamental principle of non-discrimination on the ground of nationality.
30 Therefore, if workers are entitled, under Law No 230, to reinstatement from the point of view of increases in salary, seniority and the payment by the employer of social security contributions, from the date of their original recruitment, former foreign-language assistants who have become linguistic associates must also be entitled to similar reinstatement with effect from the date of their original recruitment.
31 Consideration of the national legal context reveals that Article 4(3) of Law No 236 provides expressly for retention of the rights acquired by foreign-language assistants during former employment relationships. However, an evaluation of the contractual and administrative practices operated by certain public Italian universities leads to the conclusion that discriminatory situations exist.
33 Admittedly, the Eastern University Institute in Naples has, since the adoption of a decision of 14 July 1999, provided three types of seniority for its former assistants who have become linguistic associates and, at the universities of La Basilicata, Palermo and La Sapienza in Rome, the university authorities have stated their wish to resolve the problem of the acquired rights of former assistants. However, according to settled case-law the existence of a failure by a Member State to fulfil its Treaty obligations must be determined at the end of the period laid down in the reasoned opinion (see, among others, Case C-166/97 Commission v France [1999] ECR I-1719, paragraph 18, and Case C-219/99 Commission v France [2001] ECR I-1093, paragraph 7). In the present case, the further reasoned opinion issued by the Commission on 28 January 1999 allowed, for compliance therewith, a period of one month from the date of its notification.
34 It must further be recalled that, in accordance with several decisions of the Court, a Member State may not plead provisions, practices or situations existing in its internal legal order to justify the failure to comply with obligations arising from Community law (to this effect see, inter alia, Case C-166/97 Commission v France, cited above, paragraph 13, and Case C-83/00 Commission v Netherlands [2001] ECR I-2351, paragraph 10).