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Judgement date :23/08/2022
In this case, the European Committee of Social Rights (ECSR) found that a change in law excluding teachers who obtained a primary school teaching certificate during or before the 2001-2002 academic year from registering on the ERE lists from which teachers may be recruited on indefinite duration contracts, does not breach Article 1§2 of the revised European Social Charter (RESC).
The complainant organization, Associazione Nazionale Insegnanti e Formatori (ANIEF), alleged that Italy had violated Articles 1§1, 1§2, 4§1, 4§4, 5, 6§4 and 24 as well as Article E in conjunction with each of the provisions concerned of the Charter as regards the situation of teachers, who obtained primary school teaching certificates during or before 2001-2002, i.e., before stricter qualifications for teaching were required by law. ANIEF pointed out that even if these teachers have been regularly working as supply teachers under fixed-term contracts, they cannot have their fixed-term contracts extended any longer beyond 36 months (as provided by Law No. 107/2015). ANIEF also pointed out that these teachers are not entitled to be registered in the eligibility ranking lists (“ERE lists”) to be drawn upon exhaustion from which teachers can be recruited under indefinite duration contracts, because their qualification was not recognised as sufficient by Judgment No. 11/2017 of the Council of State of 20 December 2017.
The ECSR decided to assess this complaint solely under Article 1§2 of the RESC and rejects the allegations made under the other provisions as unsubstantiated. In the same vein, considering that Article 1§131 of Law No. 107/2015 was repealed by Decree-Law No. 87/2018, the Committee rejects the allegation concerning the prohibition of the appointment of holders of primary school teaching certificates awarded before the end of the 2001-2002 academic year in schools administered by the State upon completion of 36 months’ service as unsubstantiated.
As regards the alleged discrimination resulting from the change in the domestic case law, the ECSR recalls that discrimination is defined as a difference in treatment between persons in comparable situations, where the treatment does not pursue a legitimate aim, is not based on objective and reasonable grounds or is not proportionate to the aim pursued (Syndicat national des Professions du Tourisme v. France, Complaint No. 6/1999, decision on the merits of 10 October 2000., §§24-25). [Para. 83].
In the instant case, the ECSR notes firstly that because of the change in the law, while holders of primary school teaching certificates received after the 2001-2002 academic year concerned by Judgment No. 1973/2015 have been granted access to the ERE lists, holders of primary school teaching certificates received during or before the 2001-2002 academic year concerned by Judgment No.11/2017 have been excluded from access to such lists. The ECSR notes that this constitutes a difference in treatment. [Para. 85]. Furthermore, the ECSR considers that the changes in the teaching qualification requirements are objective and reasonable and pursue the legitimate aim of the proper functioning of the public school system and the proper conduct and impartiality of the public administration. [para. 91].
As to whether the difference in treatment is proportionate to the aim pursued, the ECSR considers that the fact that some holders of primary school teaching certificates received during or before the 2001-2002 academic year have been excluded from the ERE lists while others have been included cannot be per se regarded as contrary to the ESC, provided that effective measures exist to allow those who have been excluded from the ERE lists without proper justification to have effective remedies against this decision. [Para. 93].
The ECSR accordingly holds that there is no violation of Article 1§2 of the Charter as regards the situation of holders of primary school teaching certificates received during or before the 2001-2002 academic year who are not entitled to be automatically included in the ERE lists following Judgment No. 11/2017. [para. 97].