JUDGMENT OF THE COURT (Sixth Chamber)
26 June 2001 (1)
(Failure by a Member State to fulfil its obligations - Free movement of workers - Principle of non-discrimination - Former foreign-language assistants - Recognition of acquired rights)
In Case C-212/99,
Commission of the European Communities, represented by P.J. Kuijper and E. Traversa, acting as Agents, with an address for service in Luxembourg,
applicant,
supported by
United Kingdom of Great Britain and Northern Ireland, represented by J.E. Collins, acting as Agent, assisted by C. Lewis, Barrister, with an address for service in Luxembourg,
intervener,
v
Italian Republic, represented by U. Leanza, acting as Agent, assisted by G. Aiello, avvocato dello Stato, with an address for service in Luxembourg,
defendant,
APPLICATION for a declaration that, because of the administrative and contractual practices applied by some public universities, which result in the non-recognition of the acquired rights of former foreign-language assistants, even though such recognition is guaranteed to all national workers, the Italian Republic has failed to fulfil its obligations under Article 48 of the EC Treaty (now, after amendment, Article 39 EC),
THE COURT (Sixth Chamber),
composed of: C. Gulmann, President of the Chamber, J.-P. Puissochet, F. Macken, N. Colneric and J.N. Cunha Rodrigues (Rapporteur), Judges,
Advocate General: L.A. Geelhoed,
Registrar: L. Hewlett, Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 11 January 2001,
after hearing the Opinion of the Advocate General at the sitting on 20 March 2001,
gives the following
National legal framework
(a) The post of foreign-language assistant was abolished and replaced by that of 'associate and mother-tongue linguistic expert (hereinafter 'linguistic associate);
(b) Linguistic associates are engaged by universities on the basis of a private-law employment contract (and no longer on a self-employed basis) usually concluded for an indeterminate period, and, in exceptional circumstances, in order to meet temporary requirements, for a fixed term;
(c) Linguistic associates are engaged following a public selection procedure, the detailed rules of which are laid down by universities according to their respective statutes;
(d) Those who were previously foreign-language assistants are entitled to a preferential right of employment and, in addition, they retain, under Article 4(3) of Law No 236, the rights acquired in the course of previous employment relationships.
(a) Law No 236 and, more generally, Law No 230 of 18 April 1962 on the regulation of fixed-term employment contracts (hereinafter 'Law No 230), Article 2 of which provides that, 'if the employment relationship continues after its date of expiry as initially fixed or subsequently extended, the contract of employment shall be deemed to be a contract for an indeterminate period from the date on which the worker was first employed;
(b) the collective employment agreement for the university sector ('Contratto collettivo di lavoro del comparto dell'Università);
(c) the collective agreement at each university ('Contratto collettivo d'Ateneo); and
(d) the individual employment contract made between each university and each linguistic associate.
Pre-litigation procedure
Substance
(a) At the University of La Basilicata, linguistic associates who had previously been foreign-language assistants receive the same salary as a newly recruited linguistic associate. Although that salary is higher than that laid down in thenational collective employment agreement, this does not mean, in the Commission's view, that the university has taken proper account of the experience individually acquired by each former assistant.
(b) At the University of Milan, there is no mention of acquired rights in its collective agreement, no distinction being made in the pay of former assistants according to their length of service.
(c) The Eastern University Institute in Naples entered into employment contracts of indeterminate duration with former assistants only with effect from 1996. It imposed on them at the same time a reduction in salary since, despite an increase in overall annual pay, the number of hours to be provided by linguistic associates during the year was almost trebled.
(d) The University of Palermo employed former assistants without their length of service being taken into account in fixing their terms of employment. As a result, 38 linguistic associates challenged, before an employment tribunal, the level of remuneration proposed by the university.
(e) At the University of Pisa, the situation is identical in all respects to that at the University of La Basilicata, as the employment contracts of former assistants and newly-recruited linguistic associates provide for the same salary.
(f) At the University of 'La Sapienza in Rome, the relevant collective agreement does not contain any clause providing protection for acquired rights. This university has therefore applied, in the same way as the universities of Pisa and La Basilicata, the same basic pay to former assistants and to newly-recruited linguistic associates.
Findings of the Court
Costs
37. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs. The United Kingdom, which has intervened in the proceedings, must bear its own costs under Article 69(4) of the Rules of Procedure.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1. Declares that, by not guaranteeing recognition of the rights acquired by former foreign-language assistants who have become associates and mother-tongue linguistic experts, even though such recognition is guaranteed to all national workers, the Italian Republic has failed to fulfil its obligations under Article 48 of the EC Treaty (now, after amendment, Article 39 EC);
2. Orders the Italian Republic to pay the costs;
3. Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.
Gulmann
Colneric Cunha Rodrigues
|
Delivered in open court in Luxembourg on 26 June 2001.
R. Grass C. Gulmann
Registrar President of the Sixth Chamber
1: Language of the case: Italian.