C-90/96

PETRIE AND OTHERS y UNIVERSITÀ DI VERONA AND BETTONI

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 20 March 1997 *

I — Introduction freedom of movement for workers within the Community ' provide as follows:

1. This case relates to alleged indirect dis- crimination on grounds of nationality against 'Article 1 non-Italian foreign-language assistants, teaching in their mother tongue in an Italian university, regarding access to paid supple- mentary teaching posts. These assistants are employed on the basis of private-law con- tracts, whereas Italian legislation reserves 1. Any national of a Member State shall, such supplementary teaching to members of irrespective of his place of residence, have certain grades of teaching staff whose the right to take up an activity as an employment is governed by public law. Ital- employed person, and to pursue such activ- ian law precluded non-Italians from acquir- ity, within the territory of another Member ing such public-law university posts before State in accordance with the provisions laid 1994. Does this reservation of supplementary down by law, regulation or administrative teaching constitute discrimination on action governing the employment of nation- grounds of nationality, and, if so, is it a pro- als of that State. portionate and objectively justified response to legitimate needs of the Italian university system?

2. He shall, in particular, have the right to take up available employment in the terri- II — Legal and- factual background tory of another Member State with the same priority as nationals of that State.

— where, though applicable irrespective of nationality, their exclusive or principal aim or effect is t o keep nationals of other Member States away from the employ­ ment offered.

4. Both eligible categories of university employment are governed by public law. It appears that 'courses', in the context of the This provision shall not apply to conditions Italian legislation in question, are additional relating to linguistic knowledge required b y to the principal teaching provided to stu­ reason of the nature of the post to be filled.' dents, and that temporary course-teaching can become available either •where it is neces­ sary to find a substitute for an absent teacher or where the same course is provided more than once in a given academic year because of the large number of interested students. 3. The relevant provisions of Italian law are as follows. Article 114 of Presidential Decree N o 382 of 11 July 1980 (hereinafter 'the 1980 2 — Professori di ruolo and ricercatori universitari confirmaži

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PETRIE A N D OTHERS v UNIVERSITÀ DI VERONA A N D BETTONI

Supplementary and temporary course- als from the faculty concerned based on the teaching is ancillary to the normal work-load actual needs for practice of students attend- of the teacher or researcher in question, and ing language courses ... assistants of foreign it appears that it is paid only where the mother tongue of proven and recognized hours worked exceed those ordinarily competence, verified by the faculty ... . required of the employee responsible. 3

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O P I N I O N OF MR FENNELLY - CASE C-90/96

7. These conditions were the subject-matter deemed to be governed by private law, of the decisions of the Court in Allué and unlike those of most other university staff- Another v Università degli Studi di Venezia 7 members. In Allué 2, Advocate General Lenz {'Allué 1') and in Allué and Others v Univer- observed that this was also regarded as dis- sità degli Studi di Venezia* {'Alluéľ). In criminatory by the applicants in that case, those cases, the grant of contracts to foreign- but was not part of the subject-matter of language assistants of more limited duration those proceedings. 13 As a matter of Italian (one year only, renewable for a maximum of law, posts in the public service, including five years) than those granted to other work­ university posts governed by public law, 9 10 ers, or other teaching staff, was held t o were until 1994 confined to Italian citizens. constitute discrimination on grounds of Article 3 of Prime Ministerial Decree N o 174 nationality, as 75% of such assistants were of 7 February 1994, implementing Article 37 n non-Italian and there was no objective jus­ of Legislative Decree N o 21 of 3 February tification for the difference in treatment. The 1993, opened up such university posts to applicants in the main proceedings (hereinaf­ non-Italian nationals. ter 'the applicants') are United Kingdom nationals and are foreign-language assistants at the Università degli Studi di Verona (Uni- versity of Verona, hereinafter 'the Univer- sity'). As a result of the Allué cases, their contracts with the University were deemed by the Pretore (Magistrate), Verona, to be those of university teachers appointed for an indeterminate period {docenti a tempo inde- terminato dell' Università), and they receive the pay of an assistant lecturer appointed t o work part-time {professore associato a tempo definito). 12 However, their contracts are still

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PETRIE AND OTHERS v UNIVERSITÀ DI VERONA AND BETTONI

9. The applicants sought the annulment of specific categories, such as those provided these decisions before the Tribunale Ammin- for under the Italian legislation, within a istrativo Regionale per il Veneto (hereinafter framework of legislation and administrative 'the national court'). They submitted that the practice of the kind that exists in Italy, rather principal effect of Article 114 of the 1980 than providing that foreign-language univer- Decree, as amended, was to exclude the sity assistants with an employment relation- nationals of other Member States from the ship of indefinite duration with an Italian temporary posts in question. They could not university are also entitled to compete for gain access to the posts of researcher or ten- appointment to teach supplementary courses ured teacher before 1994 because of the and to fill temporary teaching vacancies in unlawful situation in Italy (exclusion of non- universities?' nationals from posts in the public service which did not involve the exercise of public authority), whereas their present unlimited contracts should be deemed, they asserted, to be equivalent to confirmation as researchers after three years. They argued that their Ill — Observations present teaching duties are equivalent to those of tenured teachers or, at the very least, to those of researchers. The University denied discrimination, on the basis that the same criteria apply to Italian applicants for the paid posts in question.

11. Written and oral observations were sub- mitted by the applicants, the Italian Republic and the Commission.

14. As regards the substance, Italy submits that there is an objective difference between the role and qualifications of tenured teach­ ers and researchers, on the one hand, and of the applicant foreign-language assistants, on the other. The former have more onerous teaching responsibilities; the duties of researchers, in particular, are distinguishable from those of foreign-language assistants, whose duties are essentially practical, by the requirement that they conduct research in 13. Italy and the Commission argue that the their disciplines. Supplementary teaching case is inadmissible for want of necessary would, in the case of researchers and tenured factual information, as the national court teachers, constitute merely an extension of merely outlined the competing contentions their contractual functions, and would be of the parties in the order for reference with­ paid only where the hours involved exceeded out establishing the facts. The Commission those contractually required of the appoin­ argues that the question of discrimination tee, rather than a qualitatively new employ­ does not arise in the main proceedings, as ment, as would be the case regarding this relates to the prior question of appoint­ foreign-language assistants. The system per­ ment as a tenured teacher or researcher, mits universities to make rational use of rather than to the question of appointment resources by giving priority to internal can­ to undertake supplementary teaching. The didates already engaged in similar teaching applicants could have relied upon tasks and whose abilities have been proven Article 48(2) of the Treaty and on Regulation by competition. Italy also argues that the N o 1612/68 to counter their exclusion from assimilation of university assistants to the former posts, rather than waiting to con­ researchers and the consequent Constitu­ test the present provision. The Commission tional Court judgment N o 284 of 23 July suggests that a challenge to the former dis­ 1987 related to a category of employees crimination would now be time-barred, and which has now been abolished, and which that the Court is not competent to consider was not comparable to that of foreign- the question posed by the national court in language assistants provided for in Article 28 the present proceedings, •which involve no of the 1980 Decree. The assimilation was a

A — Admissibility

B — The existence of covert discrimination

16. I would reject the argument submitted by Italy and the Commission that the present reference is inadmissible for want of information on the factual context of the 17. I would also reject the Commission's case. The Court has stated that 'the need to argument that the present proceedings provide an interpretation of Community law

15 — Joined Cases C-320/90 to C-322/90 TeUmarsicabruzzo & 14 — This position may be contrasted with that of the Commis- Others [1993] ECR 1-393, paragraph 6 of the judgment. sion in Allué 1 and Aline 2, cited above, in which it argued 16 — Case 14/86 Pretore di Salò v Persons Unknown [1987] in detail for the comparability of the work of foreign- ECR 2545, paragraph 11 of the judgment; see also Joined language assistants and researchers by reference to their Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Asso- respective tasks; see the respective reports for the hearing, ciation v Ireland [1981] ECR 735, paragraphs 7 and 8; Case [1989] ECR 1591, pp. 1596 and 1597 and [1993] 72/83 Campus Oil v Minister for Industry and Energy ECR 1-4309, at p. 1-4318. [1984] ECR 2727, paragraphs 10 and 11.

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O P I N I O N OF MR FENNEIXY — CASE C-90/96

'18. Accordingly, conditions imposed by 20 — See Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1; paragraph 24 of the judgment; national law must be regarded as indirectly Aliui 1, paragraph 12; and Case C-27/91 Le Manoir [1991] discriminatory where, although applicable ECR 1-5531, paragraph 11. 21 — See Case C-279/89 Commission v United Kingdom [1992] irrespective of nationality, they affect essen- ECR 1-5785, paragraph 42 of the judgment, and Case C-272/92 Spotti v Freistaat Bayern [1993] ECR 1-5185, paragraph 18. 22 — See Case C - l l l / 9 1 Commission v Luxembourg [1993] ECR 1-817, paragraph 10 of the judgment, and Case 17 — Case C-143/94 Furlana v ANAS and Itinera [1995] C-349/87 Paraschi [1991] ECR 1-4501, paragraph 23. ECR 1-3633, paragraph 12 of the judgment. 23 — See Case C-175/88 Biehl [1990] ECR 1-1779, paragraph 14 18 — Case 41/84 Pinna v Caisse d'Allocations Familiales de la of the judgment, and Case C-204/90 Bachmann v Belgium Savoie [1986] ECR 1, paragraph 24 of the judgment; [1992] ECR 1-249, paragraph 9. AUué I, paragraph 11; Alliée 2, paragraph 11. 24 — See, to that effect, Bachmann, cited above, paragraph 27 of 19 — Case C-237/94 [1996] ECR 1-2617. The footnotes to the the judgment; Case C - l l l / 9 1 Commission v Luxembourg, quotation which follows are taken from the original text. cited above, paragraph 12; AUué 2, paragraph 15.

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PETRIE AND OTHERS v UNIVERSITÀ DI VERONA AND BETTONI

18. The identification of a national rule which is liable to affect essentially, or for the most part, migrant workers, or which can more easily be satisfied by national workers than by migrant workers, or which may operate to the particular detriment of migrant workers, is, in itself, a value-neutral, objective process. It is effected by comparing 20. A former national rule which excluded the relative likelihood of the rule in question non-Italians from the eligible staff categories affecting, respectively, national and migrant until relatively recently (the year before the workers. For example, if, as in O'Flynn, decisions which gave rise to the present pro- members of the families of both migrant and ceedings) is, in practice, liable to have the national workers are likely to prefer to be effect of excluding a disproportionate num- buried in their country of origin, a national ber of non-Italian faculty members from eli- rule confining financial assistance for burial gibility for paid temporary teaching. It is expenses to cases of burial in national terri- likely to take several years for any imbalance tory will have a disproportionate effect on in the representation of migrant and national migrant workers. workers in those staff categories to be

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OPINION OF MR FENNELLY — CASE C-90/96

21. A national rule which disproportionately favours national workers will, none the less, be examined further to assess whether it is justified by objective considerations inde- pendent of the nationality of the workers concerned, and if its effects are proportionate to the legitimate aim pursued by the rule. In particular, the Court pointed out in Allué 2 2S that the provisions of the Treaty do not prevent Member States from taking indistinctly applicable measures with a view 23. The rational utilization of resources, the to ensuring the proper management of their avoidance of unnecessary expenditure and universities and •which are liable to affect, in the verification of the competence of instruc- particular, the nationals of other Member tors are all legitimate aims in the context of States, provided these conditions are good university management. However, the respected. total exclusion of certain categories of staff from eligibility for paid temporary teaching may be a disproportionate means of pursu- 25 — Paragraph 15 of the judgment. ing those aims.

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PETRIE AND OTHERS v UNIVERSITÀ DI VERONA AND BETTONI

26. Member States are, of course, entitled to stipulate that universities have regard to the formal evidence of competence afforded by success in a recruitment competition when allocating paid temporary teaching posts. The Court has stated that the Member States are similarly entitled to stipulate that the pursuit of certain professional activities be restricted to holders of a diploma, certificate or other evidence of formal qualifications, to members of a professional body or to per- sons subject to particular rules or supervi- 25. I now turn to the issue of the reliance on sion, as the case may be. The nationals of the tenure of a particular public-law post for other Member States must, in principle, verification of competence. This turns on comply with such conditions, provided they two distinct issues: on the one hand, the are non-discriminatory and proportional. 26 guarantee supposedly afforded by the pro- However, in applying their national provi- cesses of recruitment by competition and of sions, Member States may not ignore the confirmation after probation, and, on the knowledge and qualifications already other, the disputed equivalence of the func- acquired by the person concerned in another tions of foreign-language assistants and of established researchers. For reasons set out more fully below, it is my view that the automatic application of the exclusionary 26 — Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvo- cai e Procuratori di Milano [1995] ECR1-4165, pari- rule in Article 114 of the 1980 Decree, as graphs 35 to 37 of the judgment.

28. By the same token, universities may take 27. Similarly, evidence other than success in into account the evidence of competence a recruitment competition should be consid- afforded by the confirmation of researchers ered by universities when allocating tempo- in their posts after a three-year probationary rary teaching posts to existing staff- period. However, equivalent evidence should members, when that evidence is capable of also be considered. The university may affording similar guarantees of competence. decide that the review process before the While this requirement arguably applies a renewal of the applicants' annual contracts in fortiori in cases where non-nationals were the period before 1993 was equivalent to that effectively excluded in the past from the to which researchers are subject in order to competition process itself, it is by no means become established. Even if it is not, evi- confined to such cases. It will always be dence of qualifications and experience such likely that migrant workers will have qualifi- as would suffice for confirmation, if foreign- cations which, in formal terms, are different language assistants were subject to such a from those expected of national workers but process, should satisfy the legitimate con- which, upon examination, may be found to cerns of university authorities. A provision be equivalent. It may be objected that it is which does not permit such alternative evi- too onerous, in the context of temporary, dence of competence to be taken into ancillary posts, to require a detailed examina- account is overly restrictive and, therefore, tion by universities of a variety of qualifica- disproportionate. tions to ascertain whether they correspond to the standards applied in recruitment com- petitions. However, these temporary posts are available, in the first place, to existing staff-members of the faculty concerned. The faculty authorities should already be familiar

is not clear whether the nature of their teach- the character of the additional temporary ing obligations is similar, and, thus, whether teaching which must be undertaken — only one category is better qualified than the differences in function and experience which other to undertake the type of instruction would affect candidates' ability to perform involved in temporary course-teaching. Fur- the required task should be taken into thermore, it appears that researchers, true to account. This is equally true of research. The their title, are subject to research obligations, character of the temporary course-teaching which are not imposed on foreign-language should indicate whether experience of assistants. research activity in the discipline concerned would be an asset. In any event, research conducted by candidates such as foreign- language assistants, even if not contractually required of them, should be considered along with their other qualifications and experi­ ence, if such research is germane to the tem­ porary teaching in question. In the light of these considerations, which will necessarily vary with each individual applicant and with the posts offered, it is apparent that the dif­ 30. In order to be proportionate, a measure ference between the legally prescribed teach­ which has discriminatory effects must be rel- ing roles of researchers and of foreign- evant and no more restrictive than is neces- language assistants is, in itself, insufficient to sary to the achievement of its legitimate aim. justify the automatic exclusion of the latter As the Court stated in fi ŕ/. Asscber v from temporary course-teaching posts. Staatssecretaris van Financiën, 3 0 a difference in treatment between two categories of per­ son 'may constitute discrimination within the meaning of the Treaty where there is no objective difference between the situations of the two such as to justify different treatment in that regard'. A distinction should only be made in the light of the material similarities and differences between the teaching duties of foreign-language assistants and research­ ers. As the university's concern in this con­ text is to ascertain the experience and abili­ ties of candidates for a post, the candidates' actual teaching activities, as provided for in contracts of employment and as set out in the faculty teaching programme, are as mate­ 31. Quite apart from this general analysis, I rial as the formal prescriptions in the also note the applicants' contention that cer­ 1980 Decree. The relevance of any differ­ tain categories of staff are assimilated to the ences between the roles of foreign-language eligible categories of tenured teachers and assistants and researchers will be dictated by established researchers, even though they are not recruited by competition and do not per­ form similar teaching functions. It is a ques­ tion of Italian law, to be decided by the 30 — Case C-107/94 [1996] ECR1-3089, paragraph 42 of the judgment, emphasis added. national court, whether this contention is

33. In this context, I wish to underline the limited implications of the solution here pro­ posed for the public-law basis of the Italian 32. It is also necessary to address the argu­ university system. Article 28 of the 1980 ment that temporary course-teaching posts Decree relies on mother-tongue linguistic must be reserved to public-law university competence to define a specific form of staff-members because these posts are them­ private-law employment, thus creating a vir­ selves governed by public law. It has been tually self-defined discriminatory category submitted that the appointment to such and providing the basis for the applicants' posts of staff-members whose principal con­ complaint. Foreign-language teaching thus tracts are governed by private law would has far greater potential for complaints on involve the creation of an autonomous legal grounds of discrimination than other relationship, rather than the mere extension branches of learning. In this as in other of a public-law employment contract as in fields, however, Member States retain the the case of tenured teachers and established power to reserve university posts for holders researchers. However, in circumstances of of public-law appointments, so long as they prima facie discrimination on grounds of do not discriminate on grounds of national­ nationality, I regard this as too formalistic to ity. Similarly, there is no objection to recruit­ justify the rule in question. In the light of the ment for public-law university posts through open competitions, or competitions which above analysis, private-law employees of are open to all who have relevant qualifica­ university language faculties could hope to tions, and take due account of qualifications be appointed only where their qualifications, or experience obtained in other Member experience and relevant research were States. 3 1 substantively equivalent to those expected of the public-law employees specified in Article 114 of the 1980 Decree, as amended. Furthermore, their eventual appointment to 31 — See Case C-419/92 Schok [1994] ECR 1-505.