Background:

The issue arising related to Italian legislation which provided that only candidates who gained their professional experience (in higher education) at national (Italian) public institutions would be admitted to a procedure relating to the recruitment at those institutions.   The claimants brought claims to the Italian Courts challenging this where they had gained experience at institutions outside of Italy.   The Italian Courts asked the European Court of Justice to give a preliminary ruling.

Outcome:

The basis of the claimants’ argument was that the national legislation should be annulled considering the Free Movement of Workers within the EU as enshrined under Article 45 of the Treaty on the Functioning of the European Union and within the Free Movement of Workers Regulations.  However, the Italian State argued that it could not be regarded as unlawful as it sought to address the issue of job insecurity in the Higher Education sector (specifically relating to fine art, music and dance).   They stated there was no difference in treatment based upon nationality and that allowing others who gained their experience outside those institutions would not allow the mischief to be cured.

The ECJ held that Article 45 of the TFEU and the Free Movement of Workers Regulations did not allow national legislation which only allowed candidates who had gained their experience in specific institutions to go forward for recruitment.  The basis being that it prevented those with comparable experience in other Member States from being considered.  The ECJ stated that the argument they applied regardless of nationality was not sustainable as the provisions would have the effect of precluding or deterring a national of the Member State from leaving their country of origin (i.e. that an Italian in this sense would not leave the Italian institutions to institutions in other Member States as a result of the provision). Additionally, the fact that the legislation did not take into account the experience gained by workers in institutions in other Member States meant that migrant workers would be placed at a particular disadvantage and would constitute a restriction on the free movement of workers.  As a result, the restrictions within the national legislation were regarded as being unjustified.

Practical Guidance for Employers:

Despite leaving the European Union and the legal effects that that has had, it is still important to be mindful of the developments in EU Law.  In this case, it was important from the perspective of indirect discrimination through the prism of migrant workers and experience gained in other states.  As the restriction was not meeting a legitimate objective as stated by the ECJ, and it did disadvantage migrant workers it was regarded as being contrary to the free movement of workers.  This is likely to be something more for a legislative body to be aware of when making restrictions on jobs in the public sector but it is important to bear in mind the application of legitimate objectives and the use of proportionality which has been taken from EU law and has a central theme in domestic employment law.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62022CJ0132