JUDGMENT N. 4
YEAR 2024
Commentary on the decision by
Simone Cafiero
for g.c. of the Constitutional Observatory
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 51, paragraph 3, of Law No. 388 of 23 December 2000, containing "Provisions for the formation of the annual and multi-annual budget of the State (Financial Law 2001)", promoted by the Council of State, Second Section, in the proceedings between L. B. and others and the Ministry of Defence and others, with order of 3 May 2023, registered under no. 76 of the register of orders 2023 and published in the Official Gazette of the Republic no. 24, first special series, of the year 2023.
Seen the intervention brief of the President of the Council of Ministers;
Heard in the council chamber of 6 December 2023 the Reporting Justice Marco D’Alberti;
Deliberated in the council chamber of 6 December 2023.
Facts of the Case
1. – By order of 3 May 2023, registered under no. 76 of the register of orders 2023, the Council of State, Second Section, raised, with reference to Articles 3, 24, first paragraph, 102, 111, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 of the European Convention on Human Rights, questions of constitutional legitimacy of Article 51, paragraph 3, of Law No. 388 of 23 December 2000, containing "Provisions for the formation of the annual and multi-annual budget of the State (Financial Law 2001)".
The challenged provision provides that "[a]rticle 7, paragraph 1, of Decree-Law No. 384 of 19 September 1992, converted, with amendments, into Law No. 438 of 14 November 1992, shall be interpreted as meaning that the extension to 31 December 1993 of the rules issued on the basis of the sectoral agreements referred to in Law No. 93 of 29 March 1983, relating to the three-year period from 1 January 1988 to 31 December 1990, does not modify the date of 31 December 1990, already established for the accrual of the seniority required for the purposes of increases in individual seniority pay. The enforcement of judgments at the date of entry into force of this law shall be reserved".
1.1. – The Council of State states that it must decide on the appeal against the judgment of the Regional Administrative Court for Lazio, Firstbis Section, 1 September 2014, No. 9255, which dismissed the appeal lodged by six hundred and fifty-eight employees of the Ministry of Defence for the recognition of increases in individual seniority pay (RIA), pursuant to Article 9, paragraphs 4 and 5, of the Decree of the President of the Republic of 17 January 1990, No. 44 (Regulation for the implementation of the rules resulting from the discipline provided for by the agreement of 26 September 1989 concerning the personnel of the Ministries sector and other categories referred to in Article 2 of the Decree of the President of the Republic of 5 March 1986, No. 68).
The referring judge reports that the appellants had brought proceedings before the TAR Lazio for the ascertainment of their right to the increases in RIA accrued in the years 1991, 1992 and 1993, relying on the extension to 31 December 1993 of the effectiveness of the entire D.P.R. No. 44 of 1990, which had been ordered by Article 7, paragraph 1, of Decree-Law No. 384 of 19 September 1992 (Urgent measures on social security, health and public employment, as well as fiscal provisions), converted, with amendments, into Law No. 438 of 14 November 1992.
The TAR Lazio, in the aforementioned judgment No. 9255 of 2014, rejected the appellants' claims, acknowledging the supervening, in the course of the proceedings, of the provision that is the subject of the present constitutional challenge (Article 51, paragraph 3, of Law No. 388 of 2000), which expressly excluded that the extension to 31 December 1993 of the entire discipline contained in D.P.R. No. 44 of 1990 could also extend the deadline for the accrual of seniority for the purposes of obtaining the increase in RIA.
Ninety-two appellants appealed against this decision before the Council of State, contesting, among other things, the erroneous application of the case law of the European Court of Human Rights on laws with retroactive effect, requesting, in the alternative, that a question of constitutional legitimacy be raised in relation to Article 51, paragraph 3, of Law No. 388 of 2000, since the provision would have interfered with the judicial function and with the right to act and defend oneself in court, also being in contrast with the principles of the necessary reasonableness of legislative choices, the prohibition of unjustified disparities in treatment, the protection of legitimate expectations and the certainty of the law.
1.2. – The Council of State raised a question of constitutional legitimacy of Article 51, paragraph 3, of Law No. 388 of 2000, considering that the challenged provision, "although formulated in abstract terms, in reality appears to be pre-arranged to condition, with the effectiveness proper to interpretative provisions, the outcome of the proceedings still pending in that matter".
In particular, the referring judge specified that, before the adoption of the challenged provision, a jurisprudential orientation had been established according to which Article 7, paragraph 1, of Decree-Law No. 384 of 1992, as converted – having extended the effectiveness of the entire discipline referred to in D.P.R. No. 44 of 1990 – had also modified the date originally established for the accrual of seniority for the purposes of the increase in RIA, with the consequent recognition of the right of public employees to obtain such an increase even in the event of reaching seniority after 31 December 1990 (the judgment of the Council of State, Fourth Section, 17 October 2000, No. 5522, is cited, among others).
In light of this orientation, and given the pending of several collective appeals promoted by public employees for the recognition of the right to an increase in RIA, in the opinion of the referring judge, Article 51, paragraph 3, of Law No. 388 of 2000, would have intervened in order to "deny the benefit to those who had accrued the seniority necessary for the calculation of the increases after the date of 31 December 1990, including for those who already had ongoing proceedings, reserving only the enforcement of judgments already established at the date of its entry into force".
By virtue of this, the provision that is the subject of the present constitutional challenge would conflict with the constitutional principles relating to the relationships between the legislative and judicial powers, as well as with the constitutional provisions that recognise the right to a fair trial and the principle of equality of arms in court. In particular, the referring judge referred to the constitutional case law that – in line with the orientations of the ECHR – has specified the limits for the adoption of laws with retroactive effect, also giving importance to a series of elements indicative of the distorted use of the legislative function, both in relation to the method and to the timing of the legislator’s intervention (judgments No. 174 of 2019 and No. 12 of 2018 are cited).
Precisely on the basis of these orientations, in the opinion of the Council of State, the challenged provision would violate the constitutional parameters evoked, having intervened nine years after the entry into force of Article 7, paragraph 1, of Decree-Law No. 384 of 1992, as converted, for the specific purpose of conditioning the outcome of the pending collective appeals and on the basis of mere financial reasons of containing expenditure.
Finally, as regards the relevance of the questions, the referring judge – after having verified during the preliminary investigation the attestation, by the appellants, of the seniority useful for the accrual of the increase in RIA – considers that, on the basis of the jurisprudential orientation formed prior to the entry into force of the challenged provision, the appeal at first instance would have to be considered at least in part well-founded.
2. – By document filed on 4 July 2023, the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, intervened in the proceedings, requesting that the questions be declared inadmissible or, in any event, unfounded.
2.1. – First of all, the inadmissibility of the question of constitutional legitimacy is raised for lack of relevance or, in any event, for lack of reasoning on relevance.
According to the State Attorney General’s Office, in fact, the Council of State, during the proceedings, had noted "not only the lack of proof regarding the accrual of seniority necessary to benefit from the increase in R.I.A. in relation to each appellant, but, previously, the failure to allege this prerequisite in the introductory appeal, always with reference to the position of each appellant". However, in the opinion of the intervening party, following the execution of the preliminary investigation by the appellants, the referring judge would not have demonstrated in what way the procedural question, in itself suitable to define the appeal proceedings with a ruling of inadmissibility, "has been considered overcome so as to be able to give way to the examination of the merits and, with it, to the question of constitutionality raised". This is in contrast with the constitutional case law that requires, also in relation to the existence of the conditions of the action in the proceedings a quo, a not implausible reasoning on the part of the referring judge (judgments No. 262 of 2015, No. 34 of 2010 and No. 50 of 2004 are cited, among others).
2.2. – In any case, the State Attorney General's Office considers that the questions of constitutional legitimacy are unfounded.
In relation to the alleged violation of Articles 3, 24, first paragraph, and 102 of the Constitution, the intervening party notes that the challenged provision would have limited itself to assigning one of the possible normative meanings attributable to it to the provision subject to interpretation. This would prevent a violation of the legitimate expectations of the addressees from being configured, given that "the original text made plausible a reading different from that which the addressees themselves had considered to favour" (judgment of this Court No. 170 of 2008 is cited). On the other hand, in the opinion of the President of the Council of Ministers, the proposal by the legislator of a specific interpretation constitutes an "expression of the power attributed to it and, consequently, its exercise cannot, in any case, be considered detrimental to the sphere reserved to the judicial power", the two powers moving on different levels: the legislator, in fact, acts on the level of sources, while the judge operates on the level of the concrete application of the rule (judgment of this Court No. 150 of 2015 is cited).
As regards the alleged violation of the principle of equality of arms in court and the right to a fair trial (pursuant to Articles 111, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR), the intervening party refers to the orientation of the constitutional case law that allows the legislator to attribute retroactive effect to the law, where this is necessary to protect principles, rights and goods of constitutional importance (judgments No. 46 of 2021, No. 156 of 2014 and No. 78 of 2012 are mentioned, among others). On the other hand, the same case law of the ECHR would allow the adoption of retroactive laws when "imperative reasons of general interest come into play".
In the case in question, according to the State Attorney General’s Office, Article 51, paragraph 3, of Law No. 388 of 2000, would also have intervened to "circumscribe the benefit in favour of those who had accrued the seniority necessary for the calculation of the increases by the date of 31 December 1990, the original expiry date of the trade union agreement, thus eliminating the disparity in treatment that, with a different interpretation of the term of accrual, would have been created in particular in relation to the personnel that had accrued such seniority subsequently".
By virtue of all this, there would be no violation of the constitutional parameters denounced by the Council of State in the referral order.
Reasons for the Decision
1. – The Council of State, Second Section, raised, with reference to Articles 3, 24, first paragraph, 102, 111, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR, questions of constitutional legitimacy of Article 51, paragraph 3, of Law No. 388 of 2000.
2. – The challenged provision provided that Article 7, paragraph 1, of Decree-Law No. 384 of 1992, as converted, "shall be interpreted as meaning that the extension to 31 December 1993 of the rules issued on the basis of the sectoral agreements referred to in Law No. 93 of 29 March 1983, relating to the three-year period from 1 January 1988 to 31 December 1990, does not modify the date of 31 December 1990, already established for the accrual of the seniority required for the purposes of increases in individual seniority pay", reserving "the enforcement of judgments at the date of entry into force of this law".
3. – The referring judge denounces the violation of the constitutional principles relating to the relationships between the legislative and judicial powers, as well as of the right to a fair trial and to the equality of arms in court. The challenged provision, in fact, although formulated in abstract terms, would in reality be pre-arranged to condition the outcome of the pending collective appeals, in the face of a jurisprudential orientation that had become consolidated in a sense unfavourable to the public administrations. Both the timing and the concrete methods of adoption of the law would make evident the distorted use of the legislative function, in contrast with the constitutional case law and with the orientations of the ECHR in the matter of retroactive laws.
4. – As a preliminary matter, it is necessary to examine the objection of inadmissibility formulated by the State Attorney General’s Office for lack of relevance of the questions of constitutional legitimacy or, in any event, for lack of reasoning on relevance.
4.1. – The objection is unfounded.
According to the constitutional case law, "the assessment of the interest in bringing an action and of the other prerequisites concerning the legitimate establishment of the proceedings a quo is reserved to the referring judge, while the verification of this Court is merely external and instrumental to the finding of an adequate reasoning on the point of relevance of the question of constitutional legitimacy, with the consequence that the assessment by the referring judge on the existence of the conditions of the action can only be reviewed where implausible" (thus, judgment No. 193 of 2022; in the same sense, also judgments No. 150 of 2022, No. 240 of 2021, No. 224 and No. 168 of 2020).
In the case in question, the referral order has adequately illustrated that, following a request for a preliminary investigation, all the appellants have attested in the proceedings the seniority necessary for the purposes of the application of the discipline concerning the pay increases, with the exception of one of them for whom the inadmissibility of the appeal at first instance was noted, ex officio, with consequent partial reform of the appealed judgment.
Such a differentiation between the positions of the different appellants clearly demonstrates that the referring judge has positively resolved the question concerning the existence of the conditions of the action in the first instance proceedings, on the basis of a not implausible reasoning.
5. – The referral order failed to make reference to four orders of this Court that had declared the manifest groundlessness of questions of constitutionality concerning the same provision that is now challenged (orders No. 440 and No. 263 of 2002, No. 181 and No. 10 of 2003). It is, however, evident that the referring judge intends to raise the question with regard to new aspects and on the basis of new arguments, making explicit reference to the most recent orientations of this Court and of the ECHR in the matter of retroactive laws (judgments No. 174 of 2019 and No. 12 of 2018 are extensively cited).
On the other hand, it appears significant that the referral order has made reference to constitutional parameters (Article 111, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR), which had not been evoked in the previous constitutional challenges concerning the same provision.
6. – On the merits, the questions are well-founded with reference to Articles 3, 111, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 6 ECHR.
7. – It is first of all necessary to highlight that, unlike what was maintained by the State Attorney General’s Office, the challenged provision lacks the characteristics of a law of authentic interpretation, having instead the scope of an innovative law with retroactive effect.
7.1. – According to the consolidated case law of this Court, "the provision of authentic interpretation is that which, formally qualified as such by the legislator itself, expresses, also in substance, a meaning belonging to those that can be attributed to the interpreted provision according to the ordinary criteria of the interpretation of the law" (judgment No. 133 of 2020). Differently, in the event that "the provision, although self-qualifying as interpretative, attributes to the interpreted provision a new meaning, not falling within those already extractable from the original text of the provision itself, it is innovative with retroactive effect (judgments No. 61 of 2022, No. 133 of 2020, No. 209 of 2010 and No. 155 of 1990)" (judgment No. 104 of 2022).
7.2. – In the case in question, Article 51, paragraph 3, of Law No. 388 of 2000, far from having assigned to Article 7, paragraph 1, of Decree-Law No. 384 of 1992, as converted, one of the possible normative meanings attributable to it, has conferred on it a new meaning that was not obtainable from the text of the law.
7.2.1. – On this point, it is necessary to premise that the institution of RIA had been regulated by D.P.R. No. 44 of 1990, which had implemented the trade union agreement of 26 September 1989 concerning the personnel of the Ministries and other bodies referred to in Article 2 of the Decree of the President of the Republic of 5 March 1986, No. 68 (Determination and composition of the collective bargaining sectors, referred to in Article 5 of the framework law on public employment, No. 93 of 29 March 1983).
In particular, Article 9, paragraph 4, of D.P.R. No. 44 of 1990 had recognised some increases in the RIA in favour of the personnel who "on the date of 1 January 1990" had "acquired professional experience with at least five years of actual service" or who had accrued "said five-year period within the term of the contract"; in the subsequent paragraph 5, it was provided for the doubling or quadrupling of the sums due by way of an increase in the RIA to the personnel who, "within the term of the contract", had accrued, respectively, "ten or twenty years of service, after the absorption of the previous increases".
Article 7, paragraph 1, of Decree-Law No. 384 of 1992, as converted – keeping "the current discipline issued on the basis of the sectoral agreements referred to in Law No. 93 of 29 March 1983, and subsequent amendments and additions, in place until 31 December 1993" – has extended to the three-year period 1991-1993 the effectiveness of the entire D.P.R. No. 44 of 1990, the original expiry date of which was set at 31 December 1990 (Article 1, paragraph 1, of the aforementioned D.P.R.).
In light of this legislative extension, the "term of the contract" – which the aforementioned paragraphs 4 and 5 of Article 9 of said D.P.R. referred to for the purposes of the accrual of seniority for the recognition of the increase in RIA – had to be clearly understood as referring to the new term of effectiveness of said D.P.R. (31 December 1993) and not to the term originally provided for (31 December 1990).
On the other hand, as noted by the administrative case law, the discipline of contractual origin contained in said decree represented a "unicum indivisible" (Council of State, Fourth Section, 17 October 2000, No. 5522). Precisely by virtue of this indivisibility, the possible will of the legislator to exclude from the extension some pay institutions contained in D.P.R. No. 44 of 1990 – such as those linked to the increases in RIA – would have required an explicit regulatory provision, as has also happened with reference to the provision that has expressly prevented, for the needs of containing expenditure, the operability of the pay automatisms for the year 1993 alone (Article 7, paragraph 3, of Decree-Law No. 384 of 1992, as converted).
7.2.2. – Ultimately, given the absence in Article 7, paragraph 1, of Decree-Law No. 384 of 1992, as converted, of any textual data from which the legislator's will to prevent the operability of the discipline on the RIA in the three-year period 1991-1993 could be derived, Article 51, paragraph 3, of Law No. 388 of 2000 – in excluding that the extension of D.P.R. No. 44 of 1990 to 31 December 1993 could also extend the deadline for the accrual of seniority for the purposes of the increases in RIA – has retroactively attributed to the original provision a new meaning, not falling within those extractable from its text.
8. – Once the authentically interpretative nature of the provision has been excluded, this Court is called upon to exercise a particularly rigorous scrutiny when faced with laws having retroactive effect: this is by virtue of the centrality that the principle of non-retroactivity of the law assumes, "understood as a fundamental value of legal civilisation, not only in criminal matters (Article 25 of the Constitution), but also in other sectors of the legal system (judgments No. 174 of 2019, No. 73 of 2017, No. 260 of 2015 and No. 170 of 2013)" (judgment No. 145 of 2022).
The review of constitutionality becomes even more stringent if the retroactive legislative intervention affects ongoing proceedings, especially in the event that a public administration is involved in the proceedings. In fact, both the constitutional principles relating to the relationships between the legislative and judicial powers, and the principles concerning the effectiveness of judicial protection and the equality of arms in court, prevent the legislator from resolving specific disputes by law and from determining, by this means, an imbalance between the positions of the parties involved in the proceedings (among others, judgments No. 201 and No. 46 of 2021, No. 12 of 2018 and No. 191 of 2014).
8.1. – With regard to the review of constitutionality of retroactive laws affecting ongoing proceedings, the case law of the ECHR has assumed an increasingly decisive importance (among others, judgments of 24 June 2014, Azienda agricola Silverfunghi sas and others v. Italy, paragraph 76; 25 March 2014, Biasucci and others v. Italy, paragraph 47; 14 January 2014, Montalto and others v. Italy, paragraph 47). This is by virtue of the "eminent interpretative function that the contracting States have recognised to the European Court" (judgment No. 348 of 2007).
As clarified by this Court, in fact, in the review of constitutionality of retroactive laws, a "solid synergy between internal constitutional principles and principles contained in the ECHR" has now been reached, which allows the internal parameters to be read in close coordination with the conventional ones "in order to maximise their expansion in a "relationship of reciprocal integration" (judgment No. 145 of 2022).
On the basis of this synergy, this Court is first of all called upon to verify if the retroactive legislative intervention is actually pre-arranged to condition the outcome of pending proceedings. To this end, some "elements, considered indicative of the distorted use of the legislative function" and referable mainly to the "method and timing followed by the legislator" are important – based on the case law of the ECHR – (thus, judgment No. 12 of 2018; in the same sense, judgments No. 145 of 2022 and No. 174 of 2019). It is therefore necessary to carry out a verification of constitutional legitimacy that – in a way not