C-90/96

JUDGMENT OF 20. 11. 1997 — CASE C-90/96

J U D G M E N T O F T H E C O U R T (Fifth Chamber) 20 November 1997 *

In Case C-90/96,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Tribunale Amministrativo Regionale per il Veneto (Italy) for a preliminary ruling in the pro- ceedings pending before that court between

David Petrie and Others

and

T H E C O U R T (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, J. C. Moitinho de Almeida (Rapporteur), D. A. O. Edward, J.-P. Puissochet and L. Sevón, Judges,

Advocate General: N . Fennelly, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Mr Petrie and Others, by Lorenzo Picotti, of the Verona Bar,

— the Italian Government, by Professor Umberto Leanza, Head of the Conten- tious Diplomatic Affairs Department of the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, and

gives the following

Judgment

1 By order of 14 December 1995, received at the Court on 21 March 1996, the Tribunale Amministrativo Regionale per il Veneto (Regional Administrative Court for the Veneto) referred to the Court for a preliminary ruling under Article 177 of the E C Treaty a question on the interpretation of Articles 5 and 48 of the E C Treaty and Articles 1 and 3 of Regulation (EEC) N o 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).

2 That question was raised in proceedings brought by Mr Petrie, Mr Hill and M r Newbold against the Università degli Studi di Verona.

3 Mr Petrie, Mr Hill and Mr Newbold are United Kingdom nationals and have been working as foreign-language assistants in the Faculty of Foreign Languages and Literature of the University of Verona for a number of years.

4 The applicants in the main proceedings, who hold contracts of indefinite duration, with pay equivalent to that of a lecturer appointed to work part-time, each applied to fill the temporary teaching vacancy for the course in 'modern language teaching' for the 1995/96 academic year in response to the notice published on 15 March 1995 by the faculty board of the University of Verona, in accordance with Article 12 of Law N o 341 of 19 November 1990 (hereinafter 'Law N o 341').

7 By resolution of 19 April 1995 the faculty board appointed Ms Bettoni, a teacher from another university, to fill the temporary teaching vacancy for the course in modern language teaching for the 1995/96 academic year.

s Mr Petrie, Mr Hill and Mr Newbold therefore brought proceedings before the national court challenging the decisions of 14 April 1995 and the resolution of 19 April 1995.

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9 It appears from the order for reference that the applicants raised two pleas in law, the first based on infringement of Articles 5 and 48 of the Treaty and Articles 1 and 3 of Regulation N o 1612/68 and the second on the illogical and inconsistent nature of the reasoning and conduct of the defendant, which appointed a teacher from another university to fill the temporary teaching vacancy in breach of the criteria governing priority laid down in Article 12 of Law N o 341.

io The University of Verona claimed that the fact that temporary university teaching vacancies must be filled by tenured teaching staff and established university researchers does not involve any discrimination based on nationality. Such a restriction applies in exactly the same way to nationals of all Member States — including, therefore, Italian nationals — who do not fall into either of those two categories.

1 4 Finally, as regards the requirement that researchers must be established, the national court points out that renewal of a foreign-language assistant's contract for more than three years is tantamount to acknowledging that such a requirement is satisfied, since it presupposes that his work has received a favourable assessment.

is In those circumstances, the Tribunale Amministrativo Regionale per il Veneto decided to stay the proceedings before it and to ask the Court:

'whether Articles 5 and 48 of the EEC Treaty and Articles 1 and 3 of Council Regulation (EEC) N o 1612/68 have to be interpreted as precluding a Member State's legislation from restricting eligibility for appointment to teach supplemen- tary courses and to fill temporary teaching vacancies in universities to specific cat- egories, such as those provided for under the Italian legislation, within a frame- work of legislation and administrative practice of the kind that exists in Italy, rather than providing that foreign-language university assistants with an employ- ment relationship of indefinite duration with an Italian university are also entitled to compete for appointment to teach supplementary courses and to fill temporary teaching vacancies in universities.'

Admissibility

u The Commission considers that the question is inadmissible.

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PETRIE AND OTHERS v UNIVERSITÀ DI VERONA AND BETTONI

22 Since the proceedings before the national court concern the University of Verona's refusal to appoint any of the applicants to fill the teaching vacancy in question and its appointment of a teacher from a different university, the question raised has a connection with the dispute in the main proceedings. The arguments put forward in that respect by the Commission do not, in fact, relate to the relevance of the question referred by the national court but rather to the manner in which it should be answered by the Court.

23 Finally, as regards the question whether the order for reference provides the Court with the necessary details of fact and of law for it to carry out its task under Article 177 of the Treaty, although it is true that the national court has not given a comprehensive presentation of the legislative background to the main proceedings, the Court none the less has sufficient information to provide it with a helpful answer.

Substance

24 B y its q u e s t i o n t h e national c o u r t is essentially asking w h e t h e r Articles 5 a n d 48(2) of t h e Treaty p r e c l u d e a national rule w h i c h restricts eligibility for a p p o i n t m e n t t o fill t e m p o r a r y teaching vacancies in universities t o t e n u r e d teaching staff and e s t a b - lished university researchers, t h u s excluding foreign-language assistants w h o are nationals of o t h e r M e m b e r States.

29 Nationals of other Member States could therefore apply for posts as university researchers and challenge the refusal to admit them to the relevant competitions on the basis of Article 48 of the Treaty.

30 In any event, the fact that the nationality requirement imposed, until 1994, by the Italian law in respect of participation in competitions for posts as tenured teaching staff or established researchers was discriminatory, and thus contrary to Article 48 of the Treaty, does not, in itself, enable the persons concerned to insist that they must be eligible for appointment to fill temporary teaching vacancies. In order to

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PETRIE AND OTHERS v UNIVERSITA DI VERONA AND BETTONI

be eligible, they must first be tenured teachers or established researchers and the discriminatory nature of one of the conditions for participating in the competitions for such posts does not exempt them from the need to pass the competitions.

3i That conclusion does not however mean that the persons concerned cannot seek compensation, for the harm suffered as a result of the application of the discrimi- natory clause at issue, before the competent courts, according to the relevant national procedures and under the conditions laid down in Joined Cases C-46/93 Brasserie du Pêcheur v Federal Republic of Germany and C-48/93 The Queen v Secretary of State for Transport, ex parte Factortame and Others [1996] E C R 1-1029.

35 Furthermore they claim that the exclusion of foreign-language assistants from eli- gibility to fill temporary teaching vacancies is even less justified in view of the fact that the first paragraph of Article 16 of Law N o 341 provides that 'tenured assis- tants' ('assistenti di ruolo ad esaurimento') and· even 'qualified technicians' with certain qualifications are included in the categories of 'researchers' or 'established researchers'. For qualified technicians, as for foreign-language assistants, there is no provision for any examination with a view to establishment and, in any event, the Corte Costituzionale has already held in Judgment N o 284, cited above, that the categories of foreign-language assistant and university assistant are equivalent.

36 Finally, the fact that foreign-language assistants are engaged under private-law con- tracts whilst lecturers and researchers have the status of civil servants is a purely formal distinction which should be of no relevance as regards the application of the relevant provisions of Community law.

37 The Italian Government claims that, in the context of an education planning policy which must ensure Optimum use of teachers and researchers in teaching struc- tures', teachers and researchers may be required, pursuant to Article 12 of Law N o 341, to teach supplementary courses o r fill temporary teaching vacancies in addi- tion to their existing teaching activities, which constitute the principal purpose of their employment relationship with the university. The teaching of additional courses and the filling of temporary teaching vacancies do not, therefore, involve separate teaching posts.

40 Furthermore, as far as their teaching ability is concerned, the Italian Government points out that foreign-language assistants are employed on the basis of private- law contracts, without participating in any open competition, on the basis of their linguistic knowledge acquired in another country, in order to satisfy students' 'needs for practice' (Article 28 of Decree N o 382), and that renewal of their con- tracts is not subject to the same requirements as those for establishment of researchers. In contrast, Article 32 of Decree N o 382 defines the teaching duties of researchers as including, in addition to practical work, assisting students in research relating to their final theses, experimenting with new teaching methods and providing guidance. Furthermore, Article 32 also refers to academic research, whereas the provisions relating to foreign-language assistants do not mention any of those activities. Academic research is indispensable in teaching, particularly in 'horizontal' subjects, such as modern language teaching.

4i It is thus clear that the conditions concerning the recruitment and assessment of the professional skills of the two categories in question and the nature of the activities which they are required by statute to perform are different; thus, since those categories are not comparable, the rule at issue in the main proceedings is not discriminatory.

42 As regards the judgment of the Corte Costituzionale, cited above, the Italian Gov- ernment claims that the provision which was held to be unconstitutional is part of a specific measure intended to bring certain categories of staff, whose employment relationships are particularly precarious, within the category of researchers. Inclu- sion within that category is dependent upon assessment of the candidates' skills b y committees consisting of three university teachers, one designated by the faculty

46 The principle of equal treatment enshrined in that provision is not limited to access to employment but also includes remuneration and other conditions of employ- ment, a concept which covers the ineligibility of foreign-language assistants to be appointed to fill temporary teaching vacancies.

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PETRIE AND OTHERS v UNIVERSITÀ DI VERONA AND BETTONI

47 In order to determine whether a rule such as the one at issue breaches the principle of equal treatment, it is necessary to ascertain whether the situation of foreign- language assistants is comparable to that of lecturers and established researchers.

48 A Member State may consider that temporary teaching vacancies, involving the replacement of teachers who, for whatever reason, are prevented from teaching, must in the first place be filled by other teachers who enter university teaching b y open competition or, failing that, by established researchers who, in addition to participating in an open competition, must also be 'established', under a procedure whereby their teaching and academic skills are recognized by a national committee after three years' service.

49 Such a choice is based on the premiss that only the open competitions and estab- lishment mentioned above ensure the recruitment of teachers with the necessary skills for university teaching, on the basis of assessment criteria applied throughout the country; it cannot be called into question by claiming that the duties of foreign-language assistants are comparable to those of lecturers and researchers.

54 In that connection, it must be recalled that, according to the case-law of the Court, the principle of equal treatment of which Article 48(2) is one embodiment prohib- its not only overt discrimination based on nationality but all covert forms of dis- crimination which, by applying other distinguishing criteria, in fact achieve the same result (see, in particular, Case 33/88 Allué and Another v Università degli Studi di Venezia [1989] E C R 1591 (hereinafter 'Allué ľ), paragraph 11).

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PETRIE AND OTHERS v UNIVERSITÀ DI VERONA AND BETTONI

55 Although a rule such as that referred to in paragraph 5 above may apply irrespec- tive of the nationality of the worker concerned, it operates, in practice, to the det- riment of nationals of other Member States. As the Court noted at paragraph 12 of the judgment in Aline I, only 2 5 % of foreign-language assistants are Italian nation- als, according to the statistics provided by the Italian Government.

56 In those circumstances, if it were not justified on objective grounds, such a rule would be incompatible with Article 48(2) of the Treaty. It is for the national court, in the light of the factual and legal circumstances of the case before it, to ascertain whether that is so.

57 The answer to the national court's question must therefore be that Articles 5 and 48(2) of the Treaty do not preclude a national rule which reserves eligibility for appointment to fill temporary teaching vacancies in universities to tenured teachers and established researchers and excludes foreign-language assistants, unless such appointment is open to other categories of staff appointed to university teaching otherwise than by way of open competition, whose teaching and academic skills are not subject to evaluation in the same way as those of researchers, whilst foreign-language assistants who, under national law, have the same status and per- form equivalent duties are excluded.

in answer to the question referred to it by the Tribunale Amministrativo Regionale per il Veneto by order of 14 December 1995, hereby rules:

Articles 5 and 48(2) of the EC Treaty do not preclude a national rule which reserves eligibility for appointment t o fill temporary teaching vacancies in uni- versities to tenured teachers and established researchers and excludes foreign- language assistants, unless such appointment is open to other categories of staff appointed to university teaching otherwise than by way of open competition, whose teaching and academic skills are not subject to evaluation in the same way as those of researchers, whilst foreign-language assistants who, under national law, have the same status and perform equivalent duties are excluded.

Gulmann Moitinho de Almeida Edward

Puissochet Sevón

Delivered in open court in Luxembourg on 20 November 1997.

R. Grass C. Gulmann