We have frequently studied this issue, which is still under discussion. Can migrant citizens accede to public employment – i.e. hospitals, health care centres, scholls, etc.? They of coarse would need to hold appropriate degrees that have be the same as Italians’.
Jurisprudence has in some occasions evaluated this matter, which goes beyond the well known problem of having documents legalized.
We in the past referred of the few situations which made jurisprudence express its own point of: the sentences of Liguria’s Tar court, the provision issued by court in Florence after being appealed to and other two sentences that concerned discrimination matters in Genova.
All these recognised the right to equal rights and treatment to all non-EU citizens that regularly live in the territory, as a consequence of Immigration consolidated act art. 2.
Today we are unfortunately to refer of a sentence that rejects an appeal, promoted by a migrant worker. This happened in Toscana, a worker attended a competion run by Usl 10 in order to employ professional nurses.
Usl in Florence excluded this person from the competion therefore he appealed to Tar court in Toscana. The court rejected the appeal (sentence n. 38/2003). Justifications are opposite to the ones the other courts presented, court in Toscana showed that it was aware of other sentences – the judge quoted Liguria’s Tar’s sentence number 129/2000 – and this was used to sustain the juridica orientation adopted: the sentence litterally says that quoted rules do not sufficiently support the proposed thesis. The interpretations given to the same rule of the law are really opposite, in Liguria it supported the thesis that migrant citizens can accede public employment whereas in Toscana it did not.
Immigration consolidated act art. 2, according to Tar in Toscana, says that Italian and non-EU citizens equalization in labour is limited. This would lead to some exceptions, one of which is
public employment that whould not be totally allowed but it would allow access as provided for by law.
Tar in Toscana says that the rules that establish that a citizen needs to be either Italian or European in order to accede public employment are still valid and they cannot be considered abolished by Immigration consolidated act that provides for that migrant and Italian workers have the same rights.
What we are talking about is of coarse an interpretation of the law that may be read in a way or in another but this depends on how precisely law is written.
The fact that Immigration consolidated act art. 2 is rather generically formulated allows Tar court in Toscana to believe that this general principle is not valid in case of public employment.
Since the two interpretations clash one other it will be the sentence issued during the appeal – therefore it will be Council of State‘s duty to solve this matter – that will verify which should be the correct interpretation of law.
An eventual sentence of the Council of State would uniform, harmonize the interpretation of this rule. Administrative judges would decide the implications connected to Immigration consolidated act art.2.
We should not forget that this bad piece of news does not definitely mean that Tar sentence is correct and that appeal won’t change the situation.