25.2.2012   

EN

Official Journal of the European Union

C 58/5


Action brought on 14 December 2011 — European Commission v Italian Republic

(Case C-641/11)

2012/C 58/06

Language of the case: Italian

Parties

Applicant: European Commission (represented by: G. Rozet and L. Pignataro)

Defendant: Italian Republic

Form of order sought

Declare that, by retaining as a condition for priority in the selection of candidates at least two years residence in the province of Bolzano, as provided for in Article 12 of DPR 752/1976, the Italian Republic has failed to fulfil its obligations under Article 45 TFEU and Article 3(1) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union; (1)

Order the Italian Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains about the inclusion of a provision affording priority in the selection of candidates on the basis of at least two years residence in the province of Bolzano (Trentino Alto Adige), a provision which is contrary to the obligations imposed by Article 45 TFEU and also by Article 3(1) of Regulation (EU) 492/2011. The Commission recalls that, according to settled case-law of the Court of Justice, the equal treatment rule laid down in Article 45 TFEU prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see, in particular, Case C-237/94 O’Flynn (1996) ECR I-2617, paragraph 17). That concerns, inter alia, a measure which draws a distinction on the basis of residence.

In their reply to the reasoned opinion of 6 August 2010, the Italian authorities admitted that ‘(t)he residence clause contained in Article 12 of DPR 752/1976 could contain elements of indirect discrimination and therefore be contrary to Article 45 TFEU’ and that ‘(i)n order to resolve this problem, the text of the article will be amended without further ado’. The Commission has not hitherto received any information concerning the amendment in question and therefore concludes that the residence condition provided for in Article 12 of DPR 752/1976 is still in force.


(1)  OJ 2011 L 141, p. 1.