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longer on the basis of a public-law above). That retention of acquired rights is appointment4 ) usually concluded for guaranteed for Italian workers in general an indeterminate period, and, in excep- by Law No 230 of 1962. tional circumstances, in order to meet temporary teaching requirements in certain foreign languages, for a fixed term;

5. However, the autonomy of universities in Italy has the effect that, except as provided by Law No 236/95 and more generally by private employment law, the legal status of linguistic associates is gov- erned by the following agreements: the (c) linguistic associates are engaged fol- collective agreement for the university lowing a public selection procedure, sector, the collective agreement for the the detailed rules of which are laid university concerned and the individual down by universities according to their employment contract between the univer- respective statutes; sity and the linguistic associate. The (national) collective agreement for the university sector provides, in Article 51(5), that any individual university's collective agreement may provide for an increase in salary on the basis of the productivity and experience of the associates concerned.

10. All those factors led to the delivery of a 8. Following those complaints, on further reasoned opinion on 28 January 23 December 1996 the Commission sent 1999, and finally to the present application the Italian Republic a letter of formal to the Court. A hearing in this case was notice under Article 169 of the EC Treaty held on 11 January 2001. (now Article 226 EC), in which it put forward two grounds of complaint. The first concerned the non-recognition of acquired rights of assistants by certain Italian universities, the second changes in the legal status of linguistic associates. The Italian Government replied on 12 March 1997. The Commission was not satisfied Arguments of the parties with the Italian Government's reply and on 16 May 1997 delivered a reasoned opinion. The Italian Government subsequently pro- vided the necessary information, which resulted in a further letter from the Com- mission on 9 July 1998. In that letter, the 11. According to the Commission, six pub- Commission reformulated the first ground lic universities apply, in the appointment of of complaint and withdrew the second. linguistic associates, a practice which is not compatible with freedom of movement for workers within the meaning of Article 48 of the EC Treaty. That practice effectively means that the experience gained by lin- guistic associates as foreign-language assis- tants prior to the entry into force of Law 9. According to the Commission, it is No 236/95 is not recognised, whereas apparent from the information provided comparable recognition is guaranteed for by the Italian Government that no end has all national workers. Article 2 of Law been put to the infringement of Article 48 No 230/62 in fact provides that a fixed-

13. The collective agreement of the Uni- versity of Milan contains no provision for acquired rights and makes no distinction based on length of service. Even though, The situation at each university according to a letter from the Italian authorities of 11 December 1998, the uni- versity states that it provides for more favourable treatment for former assistants on the basis of experience, that statement is 12. According to the Commission, at the not supported by any documentary evi- University of La Basilicate, linguistic dence. The Ministry of the Universities, in associates who were formerly assistants its letter of 23 April 1999, also points out and newly-recruited linguistic associates that the University of Milan has begun receive the same pay. Even if that pay is negotiations with the trade unions with a higher than the pay provided for in the view to redefining the treatment of linguis- collective agreement for the university tic associates on the basis of acquired sector, that does not mean that account experience. In other words, the university has been taken of the experience acquired is on the right track. The Commission is of individually by a former assistant, as is the opinion that it is obliged, pending the certainly required by Article 4(3) of Law outcome of those negotiations, to find that No 236/95 and Article 51(5) of the collec- there has been an infringement of Arti- tive agreement for the university sector, cle 48 of the EC Treaty. In response, the which in turn implement Article 48 of the Italian Government argues that the former EC Treaty. The Commission further sub- assistants are already in fact receiving a mits that the Italian Government implicitly higher salary than newly-recruited linguis- acknowledged the well-founded nature of tic associates. The fact that negotiations the complaint by claiming that a solution to with the trade unions have begun means the problem raised by the Commission only that the university intends to resolve would be provided by a new collective these matters formally and definitively. agreement for the university and the con- tracts arising from that agreement. The Italian Government counters that submis- sion by maintaining that the linguistic associates receive a level of pay which is considerably higher than the basic pay provided for in Article 51(5) of the collec- 14. The Oriental University Institute of tive agreement for the university sector. Naples first concluded employment con- They thus receive sufficient recognition of tracts with former assistants from 1996 their professional experience. Likewise, the onwards but, according to the Commis-

sion, attached a draconian reduction in contracts of indeterminate duration, with- salary to those contracts. From the docu- out any document showing that acquired ments made available to the Commission, it rights had been recognised. Thirty-eight of would appear that their annual pay rose the 40 former assistants 5 successfully chal- from ITL 12 618 650 to ITL 17 707 830 lenged the level of their pay in the courts, but at the same time the number of hours while in 11 further cases temporary con- they were required to work rose from 114 tracts were likewise converted into con- to 318. The Commission claims that this is tracts of indeterminate duration. In the a serious infringement. In its defence, the Commission's opinion, the Italian Govern- Italian Government points out that, by a ment's assertion that the situation at the decision of 14 July 1999, the governing University of Palermo is now in order has body of the university adopted an increase not been proved at all. In its defence, the in salary on the basis of acquired experi- Italian Government points out that here too ence in accordance with Article 51 of the the former foreign-language assistants are collective agreement for the university more highly paid than the newly-recruited sector, and that even before that date a linguistic associates. In its reply, the Com- bonus had been awarded on the basis of mission disputes that factual assertion, acquired experience. The Italian Govern- referring to the decision of the employment ment also disputes the Commission's calcu- tribunal in Italy. lation described above. The United King- dom Government, on the other hand, annexes to its statement in intervention a number of statements by British nationals, in which they (former foreign-language assistants) claim to have received no salary increase. During the hearing at the Court on 11 January 2001, the actual treatment of former assistants at the Oriental Uni- versity Institute of Naples was discussed at length. It became clear that the system was a complex one. It also became clear that, although a settlement had been reached which took account of the previous experi- ence of the individuals concerned, that 16. The situation at the University of Pisa is settlement was only put into effect by the comparable with that at La Basilicate. No abovementioned decision of 14 July 1999. account is taken of individuals' acquired experience. In a letter of 17 July 1998 annexed to the letter of 23 April 1999 from the Italian authorities, the rector of the University of Pisa claims that account is taken of the experience acquired by former assistants. In the Commission's view, how- ever, that claim is based on a misunder- standing of the reasoned opinion. The university's collective agreement does not recognise specific personal professional 15. At the University of Palermo, 40 fixed- term employment contracts held by former assistants were converted into employment 5 — Later documents refer to 39 of the 41 assistants.

17. 'La Sapienza' University in Rome does 19. In the Commission's opinion, the six not include in its collective agreement any universities are thus not acting in accor- clause which takes account of the experi- dance with Law No 236/95. Italy is guilty ence of former assistants and to that extent of prohibited discrimination based on is comparable with La Basilicate and Pisa. nationality against former foreign-language The Italian Government acknowledges the assistants, since the Italian legislation (Law lack of such a clause. The Commission No 230/62) provides, in respect of Italian takes note of the fact that the University in workers whose employment relationship is Rome is preparing to recognise individual governed by private law, for the automatic experience. Pending that development, the conversion of a fixed-term employment Commission finds that there is an infringe- contract into an employment contract of ment of Article 48 of the EC Treaty. In its indeterminate duration from the date on defence, the Italian Government points out which the worker was first employed. I that the university recognised length of would point out that the employment service in its decision of 28 January 1999 contracts of linguistic associates are also and on the basis of that decision introduced governed by private law. a supplementary payment with retrospec- tive effect. In its reply, the Commission disputes the accuracy of that observation since, although the decision of 28 January 1999 does provide for a salary increase for linguistic associates, it takes no account of length of service. That claim is supported by the United Kingdom in its statement in 20. I give below, in essence, the arguments intervention. put forward by the Commission.

24. In other respects, the Commission does not attach much importance to the produc- tion of evidence. In its opinion, the fact that the former assistants and the newly-recrui- ted linguistic associates receive the same 22. The Commission's second argument pay, or at least that no account is taken of concerns the manner in which it must be individual previous experience, is suffi- established that the six universities do not cient. recognise length of service effectively on an individual basis. To that end, the Commis- sion cites examples of some universities which have properly recognised length of service. In particular, it points to the solutions adopted by the three universities against which the infringement proceedings were originally also brought, namely Aquila, Venice and Genoa. The collective agreements for those three universities include a clause which recognises acquired 25. The Commission's fourth argument, rights, either by means of a special salary which is based on breach of the prohibition increase proportionate to the acquired of discrimination under Article 48 of the seniority (in Aquila on an annual basis, in EC Treaty, follows, according to the Com- Venice on an hourly basis) or by means of a mission, from the fact that, in the case of one-off amount, likewise proportionate to Italian workers, as I have already explained the acquired seniority (Genoa). above, conversion of a fixed-term employ- ment contract into an indefinite employ- ment contract takes place automatically from the date on which the worker was first employed (pursuant to Law No 230/62). The Commission observes in this connection that the conduct of the six universities also constitutes a breach of that 23. The Commission's third argument con- law. The former assistants still have to cerns the production of evidence. It has apply to the national courts in order to produced a number of documents in sup- secure recognition of their rights. The need

27. The Commission's sixth argument con- 26. The Commission's fifth argument is cerns the imputability of the breach of based on irrelevance of the fact that certain obligations to the Italian Government. universities are now taking action to put an According to Commission, the Italian Gov- end to the alleged infringement (Milan), or ernment could have issued a circular on the have done so in the meantime (Naples). In interpretation of Article 4 of Law its reply, it refers, inter alia, to the judgment No 236/95. Such a circular could have in Commission v France, 6in which the provided for an orderly and uniform tran- Court states: 'In this connection, it must be sition for the former foreign-language observed that it is settled case-law that the assistants. However, the Italian Govern- question whether a Member State has ment failed to do so and consequently each failed to fulfil its obligations must be university implemented that article in its determined by reference to the situation own way. prevailing in that State at the end of the period laid down in the reasoned opi- nion.' 7The Commission then examines, likewise by reference to settled case-law, its interest in obtaining a judgment from the Court even where an end has been put to the infringement in the meantime: '... 28. In its defence, the Italian Government according to the Court's settled case-law, emphasises the de facto situation at the the subject-matter of an action under universities concerned. Either there is in Article 169 of the EC Treaty is determined fact (in its rejoinder Italy also uses the term by the Commission's reasoned opinion and, 'substantially') no disadvantage to the for- even where the failure to fulfil obligations mer assistants or in any event the Commis- has been remedied after the expiry of the sion has failed to adduce sufficient proof of period laid down pursuant to the second such disadvantage, or else the universities paragraph of that article, the Commission are in the process of remedying that retains an interest in continuing its action. disadvantage. The complaints against Italy That interest may lie, inter alia, in deter- are therefore of a purely technical nature. mining a basis for possible liability of the Member State for its failure to fulfil its

30. Quite apart from the intentions of the universities, there is also in fact no discri- mination, since it has been shown that the former assistants receive a higher level of 33. The United Kingdom Government sup- pay than the newly-recruited linguistic ports the Commission's view. In particular, associates. it points out that the requirement to take account of professional experience implies that the totality of that experience must be taken into consideration. It disputes the claim that the infringement of Article 48 of the EC Treaty is of a purely technical nature. It still receives complaints from British nationals about the treatment of 31. The Italian Government then chal- former assistants in Italy. lenges the use by the Commission of Law No 230/62 as the basis for comparison with national workers. That law is not comparable with Law No 236/95. Whereas Law No 230/62 provides for automatic conversion of fixed-term contracts, Law No 236/95 does not. Former assistants are in fact eligible for posts as linguistic associates only if they pass a selection test. The earlier cases concerning foreign-lan- guage assistants in Italy

34. The Court has already given rulings in three earlier cases concerning the status of 32. The Italian Government also draws foreign-language assistants in Italy. Those attention to the financial and legal auton- are, first of all, the judgments in Aline I and omy of the Italian universities. The recog- Aline II, which are mentioned in point 2 nition of acquired rights is a typical con- above. As a result of those cases, Italy

38. In addition, the Court held that, in order to ensure the proper management of their universities, Member States may 36. The Court regarded that limitation as a adopt measures which are applicable with- form of discrimination based on national- out distinction and which could affect, in ity, on the basis of the following reasoning. particular, the nationals of other Member Although the limit on the duration of the States. Such measures may even involve a employment relationship applied irrespec- limit on the duration of the employment tive of the nationality of the worker relationship. However, such measures must concerned, the workers affected were prin- respect the principle of proportionality. The cipally nationals of other Member States. limited duration of the employment con- In fact, only 25% of foreign-language tract in that case did not respect that assistants were Italian nationals. 9 The principle. There was normally a continuous grounds put forward by the Italian Gov- need for foreign-language teaching. In such circumstances it was not proportionate to engage foreign-language assistants for a 8 — Case C-90/96 Petrie and Others [1997] ECR I-6527. fixed term on a systematic basis. If the 9 — This percentage is also used as a basis throughout the later situation changed with regard to a particu- proceedings. Since it is not disputed, I also adopt it as a starting point for my conclusion. lar language and there was no longer a need

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for teachers of that language at a particular competitions (specifically) for temporary time, there were other ways of getting rid of vacancies. The Court added that the surplus foreign-language assistants. For national rule would certainly be discrimi- example, the surplus assistants could be natory if the temporary post were open to dismissed in order to adjust staff numbers other categories of staff who, like the to the new conditions. Such a measure foreign-language assistants, had not parti- would, according to the Court, be less cipated in a competition. restrictive of freedom of movement for workers than the measure at issue in that case.

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prohibition of discrimination based on nationality, they affect essentially nationality must be interpreted widely. It migrant workers ... , where they are is settled case-law that Article 48 prohibits indistinctly applicable but can more not only overt discrimination based on easily be satisfied by national workers nationality, but also all covert forms of than by migrant workers ... or where discrimination which, by the application of there is a risk that they may operate to other distinguishing criteria, lead in fact to the particular detriment of migrant the same result. workers ....

42. In its judgment in O'Flynn,10 the Court 19. It is otherwise only if those provisions gave a summary of its case-law on covert or are justified by objective considerations indirect discrimination against workers independent of the nationality of the based on nationality. I reproduce that workers concerned, and if they are summary here: proportionate to the legitimate aim pursued by the national law ....

'17. The Court has consistently held that the equal treatment rule laid down in 20. It follows from all the foregoing case- Article 48 of the Treaty and in Arti- law that, unless objectively justified cle 7 of Regulation No 1612/68 prohi- and proportionate to its aim, a provi- bits not only overt discrimination by sion of national law must be regarded reason of nationality but also all covert as indirectly discriminatory if it is forms of discrimination which, by the intrinsically liable to affect migrant application of other distinguishing cri- workers more than national workers teria, lead in fact to the same result... . and if there is a consequent risk that it will place the former at a particular disadvantage.

43. In the recent judgment in Österrei- 44. In my opinion, the main issue in these chischer Gewerkschaftsbund, 12 as in the proceedings is whether Italy has complied present case, the issue was the failure to satisfactorily with the judgments in Allué I take into account seniority when determin- and Allué II, in which the Court held that ing the pay of contractual teaching staff. the method of appointment of foreign- The Austrian national legislation at issue in language assistants involved covert discri- that case made the taking into account of mination based on nationality, which is periods of employment in other Member prohibited under Article 48 of the EC States subject to stricter requirements than Treaty. The starting point for the Court in those applicable to the taking into account that connection was the fact that those of periods of employment in Austria itself. foreign-language assistants were predomi- The Court held that such a national rule nantly nationals of Member States other was contrary to, inter alia, Article 48 of the than Italy. EC Treaty. That case followed earlier cases in which the failure to take into account periods of employment in other Member States had been regarded as indirect dis- crimination. 13 For the sake of complete- 45. In order to comply with those judg- 11 — The judgment cited contains references to a series of earlier ments, Italy adopted the abovementioned decisions which form the hasis of the summary reproduced Law of 21 June 1995 (Law No 236/95). I here. 12 — C a s e C-195/98 Österreichischer Gewerkschaftsbund v assume that Law No 236/95 in itself satis- Austru [2000] ECR I-10497. fies the requirements of Community law. 13 — C a s e C-419/92 Scholz [1994] ECR I-505, Case CMS/96 Schoning-Kougebetopoulou [1998] ECR I-47 and Case That law itself is not at issue in this case. C-187/96 Commission v Creece [1998] ECR I-1095. The matters at issue in this case are the

manner in which that law is implemented ment for an indeterminate period, which and the extent to which the administrative was the central issue in Allué I and Allué 11, practice in Italy is consistent with the but also that such employment should content and purpose of that law. It is self- conform to the normal principles of Italian evident that the autonomy of the universi- employment law. The taking into account ties in the appointment of linguistic associ- of acquired experience is such a principle, ates renders that administrative practice as is clear, inter alia, from Law 230/62 and rather complex, both legally and in prac- also from Article 4(3) of Law No 236/95. tice. It will be recalled that the legal status The Commission, too, is of the opinion that of linguistic associates is governed not only the result of any system must be the by the abovementioned law but also by recognition of each linguistic associate's various contractual instruments (see specific personal acquired experience. The point 5 of this Opinion). Italian Government does not contradict that in principle. For the sake of complete- ness, I would add that the national laws of other Member States also provide, as a principle of employment law, for account to be taken of personal previous experi- ence. I refer in this regard to the various 46. I attach no decisive importance to the judgments of the Court, and most recently difficulties entailed by complex and decen- to that in Österreichischer Gewerkschafts- tralised implementation. It is for the Court bund, which have dealt specifically with the to examine whether the Italian Govern- taking into account of personal previous ment is entitled to maintain that an end has experience. been put to the breach of Community law consisting of discrimination against (for- mer) foreign-language assistants, which was first established by the Court as long ago as 30 May 1989 in the judgment in Allué I. I am of the opinion — partly because of the number of years which has elapsed since the judgment in Allué I — that the Italian Government can be expected to have completely eliminated the discrimination established on that ear- 48. The form which such recognition takes lier occasion. It is not sufficient for the does not seem to me to be important. There Italian Government to show that it is now must certainly be a relationship between on the right track. In other words, what is pay and acquired experience. It cannot of at issue here is the result achieved, not the course be the case that a person with one effort made. year's work experience is paid the same as someone with 20 years' work experience. The question in these proceedings, the subject-matter of which is a possible breach of Article 48 of the EC Treaty, is whether an important principle of employment law, which applies to Italian workers, is also 47. It is obvious that equal treatment for applied to former assistants. Since I con- former foreign-language assistants does not sider equal treatment to be a central to mean only that they should obtain employ- employment law, I find it irrelevant whe-

53. There are various conceivable ways in which personal previous experience could be taken into account. The Commission cites some examples in its application to the Application Court (Aquila, Venice, Genoa). In my opinion, it is not necessary to discuss each of those examples in turn in the context of these proceedings. What matters is the 51. Italian universities have a large degree result to be achieved, namely, that indivi- of autonomy in the appointment of linguis- dual previous experience is taken into tic associates. That autonomy presents a account in the employment contracts with varied picture. Each university itself deter- former assistants. Taking as a basis the mines whether and how it will take account information provided by the parties, I

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In the alternative assistants, the latter were always com- pared with specific categories of teach- ing staff.

56. I am of the opinion that I have sufficiently examined in the foregoing the Commission's first three arguments which, (b) Can the rights arising from Law as should be clear, I essentially support. I do No 230/62 properly be compared with not consider it necessary in this context to those arising from Law No 236/95, examine at length the requirements which since the former assistants are eligible the Commission specifies with regard to for appointment as linguistic associates taking into account length of service. In the only if they pass a selection test and alternative, should the Court not agree, or there is thus no question of automatic only partly agree, with my line of argu- conversion of an employment contract? ment, I shall still examine the remaining arguments which the Commission has put forward in these proceedings, as well as, where necessary, the Italian Government's defence.

(c) Does it follow from Law No 230/62 that account must actually be taken of Italian workers' individual previous experience, or could a broader recogni- tion of length of service suffice? 57. The Commission's fourth argument concerns the comparison of the former assistants with workers whose employment relationship is governed by private law, and in particular with the rights arising from Law No 230/62. The question is now (d) Are the former foreign-language assis- whether the Commission has made the tants not likewise entitled to rely on correct comparison. That question breaks Law No 230/62 if no account is taken down into a number of sub-questions: of their individual previous experience?

58. Sub-question (a): the Commission uses general law do not apply to a specific group as a reference group Italian workers whose of workers consisting predominantly of employment relationship is governed by nationals of another Member State. private law. The former foreign-language assistants must be treated equally with Italian workers. In addition, the Commis- sion makes a second comparison: it com- pares the former foreign-language assis- tants with newly-recruited linguistic associ- ates: since the previous experience of the 60. Sub-question (b): the Commission former foreign-language assistants differs bases its application on Law No 230/62 from that of newly-recruited linguistic which provides that, for Italian workers, a associates, they must also be treated differ- fixed-term employment contract is auto- ently. I find it remarkable that the Com- matically converted into an employment mission does not compare the former contract of indeterminate duration from foreign-language assistants with other cate- the date on which the worker was first gories of university staff who have compar- employed, which contrast with the six able previous experience. An infringement universities' implementation of Law of Article 48 of the EC Treaty could easily No 236/95. The Italian Government dis- be established if the Commission had putes the relevance of the comparison shown that proper account is taken of the since, in the case of the former assistants, individual previous experience of compar- there is no question of automatic conver- able categories of university staff consisting sion of the employment contract. I cannot predominantly of Italian nationals. The agree with the Italian Government's argu- Court's three earlier judgments concerning ment on this point. Although they relate to foreign-language assistants in Italy provide different situations, both laws have a sufficient reference points for such an similar objective: they are intended to approach. ensure that an employment contract takes account of the worker's previous experi- ence. Moreover, they not only have the same objective, but also the same effect, namely, that account is actually taken of such previous experience. In the case of Article 4(3) of Law No 236/95, its effec- tiveness is certainly subject to its correct implementation by the universities. 59. However, I do also find the comparison of the former foreign-language assistants with Italian workers in general sufficiently specific in this case to establish covert discrimination as referred to in Article 48 of the EC Treaty. According to the Court's case-law, 14 there may be discrimination if 61. Sub-question (c): this sub-question con- it is apparent that rights arising from a cerns the content of Law No 230/62. It is simply whether the precise interpretation which the Commission gives to that con- 14 — Among others, the judgment in O'Flynn (cited in footnote tent, namely, that account must be taken of 10). the worker's individual previous experi-

enee, follows from the wording of the law Court's case-law which indicates that a itself. However, this is a question concern- breach of Community law in proceedings ing the interpretation of a national law, such as these must be assessed according to which the Court is not required to address. the situation at the end of the period laid In my opinion, it is sufficient, in order to down in the reasoned opinion. I am of the establish discrimination within the meaning opinion that the Commission has thus of Article 48 of the EC Treaty, that Law made it sufficiently clear why it is not No 230/62 gives rise to a principle of required to take any account of the changes employment law which is not (in all cases) in Italian administrative practice which applied to the former assistants. occurred subsequently. It is beyond dispute that the former assistants have an interest in obtaining a Court judgment in order to be able to bring a legal action against the Italian Government or the universities concerned. I would reiterate, moreover, that the decisive factor for the purpose of establishing an infringement of Community 62. Sub-questions (d) and (e): It is apparent law is the result, and not the efforts made from the documents that — at the Univer- by Italy. sity of Palermo in any event — a number of former assistants have successfully applied to the national courts. The Com- mission takes the view that the need to resort to the courts in order to ensure equal treatment with Italian workers is in itself incompatible with Community law. What- ever the merits of that view may be in general, the issue in the present case is one of compliance with a Court judgment giving rise to the obligation for Italy as a Member State to put an end to the breach of Community law consisting of discrimi- 64. The Commission's sixth argument con- nation against (former) foreign-language cerns the culpability of the Italian Govern- assistants. I am of the opinion that in such ment's conduct in failing to issue a circular circumstances the Member State has failed on the interpretation of Article 4(3) of Law to fulfil its obligation if each assistant has No 236/95. In my opinion, since the result to apply individually to the national courts is decisive in this case, the culpability or in order to eliminate this persistent discri- otherwise of Italy's conduct is first and mination. foremost irrelevant I would add for the record that, in my view, it would have been reasonable, particularly in the light of the background to this case, namely, the judg- ments in Aliné I and Aline II, for the Italian Government to have made every effort to end the discrimination against the former assistants. In that respect, a circular on the 63. I now come to the Commission's fifth interpretation of the new legislation would argument. The Commission cites the certainly have been appropriate.

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