3.2.4.1 Link with Union law: bypassing the purely internal rule

51. The Court of Justice was competent to deliver a preliminary ruling because irrespective of whether Article 45 TFEU indeed applies to Angonese, the requirement of the Bank as such fell within the scope of Article 45 TFEU since it affects the right to free movement of workers of European citizens resident outside Italy.1 The Bank claims that the situation falls outside the scope of Article 45 TFEU because Angonese is an Italian citizen who cannot invoke this provision in a purely internal situation.2 If the national courts would indeed conclude that Angonese could not invoke Article 45 TFEU by applying the purely national rule, the case would be an example of reverse discrimination.3 However, all three Italian courts are of the opinion that the case of Angonese and the Bank is, in one way or another, connected with Union law. Although none of them explicitly states this, it is highly probable that their judgments are based on the Italian prohibition of reverse discrimination introduced by the Corte costituzionale and codified since 2012.4

52. The Pretore di Bolzano states that Angonese, however, cannot directly invoke Article 45 TFEU, because Angonese is an Italian citizen and not a citizen of another Member State and that exclusively the latter can invoke Article 45 TFEU to challenge a discriminatory measure impeding their free movement.5 However, the Pretore finds a creative way to ultimately justify the nullity of the requirement using certain domestic provisions as an extension of Article 45 TFEU. The Pretore states that according to Italian law the clause in the bando di concorso should be declared null and void for being in conflict with mandatory Union law (norma imperativa).6 In other words, the Pretore is constructing an extra step between Article 45 TFEU and the declaration of nullity on the basis of Articles 1418 jo. 1419 in conjunction with 1421 Codicecivile. The Pretore states that, since the requirement to possess the patentino is imposed also to Italian citizens who – like Angonese – cannot directly invoke Article 45 TFEU, the application of the prohibition of discrimination regulated in Articles 8 and 15 of the Statuto dei Lavoratori as well as the obligation of good faith (buona fede) can ex Article 1421 Codice civile be used as an argument for the nullity of the requirement.7

Here the Pretore undertakes a reasonable – and creative – effort to avoid the conclusion that Angonese, due to being an Italian, would fall outside the scope of protection of Article 45 TFEU and therefore would be confronted with reverse discrimination.8 The Pretore ties the infringement of Article 45 TFEU, which according to Italian law thus is a ground for nullity, to the interpretation and application of domestic provisions on the prohibition of discrimination and to buona fede, which in this case altogether thus seem to function as an extension of Article 45 TFEU. With this ‘trick’ the Pretore makes sure that Angonese is not adversely affected in comparison to how a citizen of another Member State would have been affected and is thus not missing the boat as regards his claim for nullity based on the Bank’s infringement of Article 45 TFEU.

53. The Corte d’Appello takes a different stance.9 It concludes that Article 45 TFEU can be directly invoked by Italian citizens who find themselves confronted with a requirement imposed by an Italian undertaking and against which, had they been citizens of another Member State,10 they would have been protected by Article 45 TFEU.11 This approach taken by the Corte d’Appello shows a resemblance to the line of argument of the Court of Justice in relation to the applicability of Article 20 TFEU on EU citizenship in Rottmann12and Ruiz Zambrano judgments, issued roughly 10 years later.13In Ruiz Zambrano the Court ruled that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union” and it is irrelevant whether the facts of a case actually include a cross-border element.14

Further, Angonese, as an Italian student who temporarily resides in another Member State, falls under the scope of a directive concerning the rights of students. Therefore, in this quality Angonese can directly invoke all advantages stemming from Article 45 TFEU.15 The Corte d’Appello then affirms that Angonese is discriminated against as a consequence of the disproportionate condition (sproporzionata condizione) imposed upon him in the bando di concorso. 16 Concluding, Angonese can directly invoke Article 45 TFEU in conjunction with Articles 1418 and 1419 Codice civile, thus without having to seek comfort in ‘indirect benefits’ such as the extension created by the Pretore leading to absolute nullity in accordance with Article 1421 Codice civile.17

54. Finally, the Corte di Cassazione states that the link was firstly given by the Pretore and that thereafter the Court of Justice confirmed the link by expressly stating that the object of the dispute at hand relates to the interpretation of Article 45 TFEU. In addition, it cannot be derived from its judgment that it requested the national judge in Italy to assess the link with Union law once more. More substantively, the Corte di Cassazione reiterates and confirms the judgment of the Corte d’Appello.18