JUDGMENT NO. 44

YEAR 2024

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 delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 1, paragraph 3, of Legislative Decree No. 23 of 4 March 2015 (Provisions on open-ended employment contracts with increasing protection, implementing Law No. 183 of 10 December 2014), initiated by the Ordinary Court of Lecce, Labour Division, in the proceedings between I. A. and P. spa, by order of 20 April 2023, registered under No. 71 of the 2023 register of orders and published in the Official Gazette of the Republic No. 22, first special series, of the year 2023, the hearing of which was scheduled for the deliberation in chambers of 6 February 2024.

Heard in the deliberation in chambers of 22 February 2024, the Reporting Justice Giovanni Amoroso;

Deliberated in the deliberation in chambers of 22 February 2024.

Facts of the Case

1.– By order of 20 April 2023 (reg. ord. No. 71 of 2023), the Ordinary Court of Lecce, Labour Division, raised questions of constitutional legitimacy, with reference to Articles 76 and 77, first paragraph, of the Constitution, of Article 1, paragraph 3, of Legislative Decree No. 23 of 4 March 2015 (Provisions on open-ended employment contracts with increasing protection, implementing Law No. 183 of 10 December 2014), censured for nonconformity with the delegation criterion set out in Article 1, paragraph 7, letter c), of Law No. 183 of 10 December 2014 (Delegations to the Government concerning the reform of social safety nets, employment services and active policies, as well as the reorganization of the regulations of employment relationships and inspection activities and the protection and conciliation of care, life and work needs).

1.1.– The questions are raised within the context of the appeal proceedings against a dismissal for justified objective reasons issued on 8 July 2022, to a worker who, from 2011, had been employed on a full-time and open-ended basis, with the duties of administrative collaborator.

In the proceedings a quo, the applicant, premising the existence of a workforce exceeding the thresholds set out in Article 18, paragraphs eight and nine, of the Workers' Statute (Law No. 300 of 20 May 1970, containing «Rules on the protection of the freedom and dignity of workers, freedom of association and trade union activity in the workplace and rules on employment»), had challenged the company's error in the application of the selection criteria, the failure to fulfill the burden of repêchage, and the failure to carry out the procedure provided for in Article 7 of Law No. 604 of 15 July 1966 (Rules on individual dismissals). The applicant had therefore requested, primarily, the attenuated reinstatement protection referred to in the fourth paragraph of Article 18 of the Workers' Statute, secondarily, the strong indemnity protection referred to in the fifth and seventh paragraphs of the same article, and in a further graded manner, the reduced indemnity protection referred to in the sixth paragraph.

1.2.– The respondent, invoking the application of Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, had preliminarily objected to the inapplicability of the substantive regulations referred to in Article 18 of the Workers' Statute, as well as to the procedure ex Article 1, paragraphs 47 et seq., of Law No. 92 of 28 June 2012 (Provisions on the reform of the labor market in a growth perspective), and, reiterating the correctness of its actions, had insisted on the existence of the prerequisites for dismissal for justified objective reason.

1.3.– The judge a quo – premising that any error in the choice of procedure would not, in any case, result in the inadmissibility of the introductory appeal, but at most in the conversion of the procedure – observes that the questions of constitutional legitimacy of Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, would have a direct, and immediately decisive, impact, not only on the identification of the procedure, but also on the substantive regulations of the dismissal.

1.4.– In terms of relevance, the referring judge reports that the documents on file confirmed that at the time of dismissal the requirements ex Article 18, paragraphs eight and nine, of the Workers' Statute were fully met, but also that the numerical threshold had been exceeded after the entry into force of Legislative Decree No. 23 of 2015, so that, given the presence of the required numerical requirement at the time of dismissal, in the event of acceptance of the questions of constitutional legitimacy, the worker employed on an open-ended basis before 7 March 2015 would have been subject to the sanctioning system provided for in Article 18 of the Workers' Statute, as well as the procedure referred to in Article 1, paragraphs 47 et seq., of Law No. 92 of 2012; conversely, in the event of rejection, the change of procedure was to be ordered and the same worker would have been subject to the different protection regime provided for so-called contracts with increasing protection.

The Court of Lecce excludes the possibility of reaching a constitutionally oriented interpretation, given the clear wording of the challenged provision in the identification of the factual prerequisite for its application (i.e., the exceeding of the legal threshold ex Article 18, paragraphs eight and nine, cited after the entry into force of Legislative Decree No. 23 of 2015), as well as the effects deriving therefrom (the attraction to the regime of increasing protection).

1.5.– On the point of non-manifest groundlessness, the judge a quo denounces the violation of Articles 76 and 77, first paragraph, of the Constitution, by Article 1, paragraph 3, of Legislative Decree No. 23 of 2015 – with respect to the delegation criterion referred to in Article 1, paragraph 7, letter c), of the delegation law No. 183 of 2014, which with regard to the new regulations on dismissals refers only to «new hirings» – in the part in which it would have extended the new regulations also to those who, employed previously, found themselves working in a reality that exceeded certain numerical thresholds of employed workers after the entry into force of Legislative Decree No. 23 of 2015.

This factual circumstance – observes the referring judge – is not attributable, from the point of view of literal and systematic interpretation, to the concept of «new hiring» provided for by the delegating legislator; the supervening exceeding of the numerical threshold referred to the position of those who were already employees would not, therefore, be a circumstance attributable to the notion of «new hiring», nor would this eventuality have otherwise been taken into consideration by the delegating legislator.

The challenged extension would not even be attributable to a teleological interpretation of the delegation criterion, identified in the aim of strengthening the opportunities for entry into the world of work by those who are looking for employment, since the ratio of the regulation is focused on the newly hired, on the asserted assumption that greater flexibility "in exit" results in greater dynamism in the trend of hirings, and never addresses those already integrated into the world of work. Nor, from a systematic point of view, would the evident intention of the delegated legislator to prevent – in the event of the threshold ex Article 18 cited being reached after the entry into force of Legislative Decree No. 23 of 2015 – that relationships established when Law No. 604 of 1966 was applicable to them, from being subjected to Article 18 of the Workers' Statute, find confirmation in the regulation of the delegation law expressly limited to the regulation of the dismissals of the "newly hired".

1.6.– In conclusion, the denounced defect of excess of delegation of Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, due to extraneousness – literal, systematic and teleological – to the case that the delegating legislator wanted to introduce with the clear limit to new hirings, would be found in the extension of the regulation to subjects, such as the applicant, who were already employed on the date of entry into force of the decree itself.

2.– None of the parties to the main proceedings appeared; nor did the President of the Council of Ministers intervene.

Considered in Law

1.– By order of 20 April 2023 (reg. ord. No. 71 of 2023), the Ordinary Court of Lecce, Labour Division, raised questions of constitutional legitimacy, with reference to Articles 76 and 77, first paragraph, of the Constitution, of Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, censured for nonconformity with the delegation criterion set out in Article 1, paragraph 7, letter c), of Law No. 183 of 2014 (the so-called Jobs Act).

1.1.– In the context of appeal proceedings against a dismissal for justified objective reasons issued on 8 July 2022, to a worker who, as of 2011, had been employed on a full-time and open-ended basis, introduced with the procedure referred to in Article 1, paragraphs 47 et seq., of Law No. 92 of 2012, to request the protection referred to in Article 18 of the Workers' Statute, the respondent had invoked the application of Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, objecting that, although at the time of dismissal the requirements ex Article 18, paragraphs eight and nine, of the Workers' Statute were met, the numerical threshold had been exceeded after the entry into force of the aforementioned Legislative Decree No. 23 of 2015.

1.2.– The judge a quo, having to apply Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, both for the purposes of identifying the procedure and of the substantive regulation applicable to the dismissal, doubts the constitutional legitimacy of this provision, in the part in which, in the case of an employer that meets the employment requirement referred to in Article 18, paragraphs eight and nine, of the Workers' Statute, as a result of open-ended hirings that took place after the entry into force of Legislative Decree No. 23 of 2015, extends the application of the regime of protection against unlawful dismissal provided for contracts with increasing protection also to workers hired before the entry into force of the same decree.

The violation of Articles 76 and 77, first paragraph, of the Constitution is argued, for conflict with Article 1, paragraph 7, letter c), of Law No. 183 of 2014, which, delegating to the Government the provision of the open-ended employment contract with increasing protection, limits its application to «new hirings», without this notion being suitable, from a literal, systematic and teleological point of view, to include within it the position of subjects already employed on an open-ended basis before 7 March 2015.

2.– The question, as raised, does not present profiles of inadmissibility.

2.1.– As for the relevance, the descriptive elements regarding the main proceedings and the arguments in support of the interpretative premise are sufficient.

Indeed, the referring Court – which must decide on the appeal against a dismissal issued on 8 July 2022, to a worker already in service on 7 March 2015, having been hired in 2011, with the integration of the employment requirement ex Article 18, eighth and ninth paragraph, of the Workers' Statute, being undisputed between the parties at the time of the dismissal – has acknowledged that the documents exhibited by the employing company revealed that this numerical threshold had been exceeded after the entry into force of the aforementioned Legislative Decree No. 23 of 2015.

This factual circumstance (the integration of the employment requirement after 7 March 2015) would entail the application, in the main proceedings, of the challenged provision, which provides that the dismissal of workers, even if employed before that date, is governed by the provisions of Legislative Decree No. 23 of 2015 and not by Article 18 of the Workers' Statute.

This would have consequences from a dual point of view: a) procedural, since the dispute, introduced with the procedure ex Article 1, paragraphs 47 et seq., of Law No. 92 of 2012, would instead be subject to the ordinary labor trial ex Article 414 et seq. of the Code of Civil Procedure, thus making the change of procedure necessary; b) substantive, with reference to the applicable protection, since the applicant, although employed before 7 March 2015, would become subject to the substantive regulations provided for newly hired workers by Legislative Decree No. 23 of 2015, instead of that dictated by Article 18 of the Workers' Statute.

Therefore, the questions – insofar as they affect the path leading to the decision with reference to both the applicable procedure and the substantive regulation of the dismissal – are relevant.

2.2.– Furthermore, the judge a quo excludes the possibility of reaching a constitutionally oriented interpretation in light of the clear wording of the challenged provision in the identification of the factual prerequisite for its application (the exceeding of the employment threshold ex Article 18, eighth and ninth paragraph, cited after the entry into force of Legislative Decree No. 23 of 2015), as well as the effects deriving from this (in particular, the extension of the increasing protection regime also to workers already in service on the date of entry into force of Legislative Decree No. 23 of 2015, because they were hired before).

This employment threshold concerns individual dismissals, and that is the subject of the main proceedings. The textual reference of the challenged Article 1, paragraph 3, to the dimensional criterion of Article 18, paragraphs eight and nine, of the Workers' Statute, entails the exclusion from its scope of application of collective dismissals, for which the different dimensional requirement referred to in Article 24 of Law No. 223 of 23 July 1991 (Rules on wage supplementation, mobility, unemployment benefits, implementation of directives of the European Community, job placement and other provisions on the labor market) operates for the purposes of configuring the case and the applicable regulation.

The jurisprudence of this Court is constant «for which the unambiguous tenor of the provision marks the boundary in the presence of which the attempt at a conforming interpretation must give way to the review of constitutional legitimacy (judgments No. 150 of 2022, No. 118 of 2020, No. 221 of 2019 and No. 83 of 2017)» (judgment No. 203 of 2022).

2.3.– As for the non-manifest groundlessness, the referring judge has extensively argued on the reasons for which, in his opinion, the challenged provision is susceptible to the prospect of constitutional legitimacy, focused exclusively on the violation of the guiding criterion referred to in Article 1, paragraph 7, letter c), of Law No. 183 of 2014 and, therefore, Articles 76 and 77, first paragraph, of the Constitution.

3.– Preliminarily, the regulations concerning the relevance of the size of the company, in terms of the number of workers employed, for the purposes of selecting the regulations on dismissals must be recalled in summary.

3.1.– The distinction between "small" companies and "medium/large" companies based on the number of workers employed, in the single production unit or in the complex, is a constant in the regulations of dismissals, individual and collective.

The employment requirement, already present in the first law on dismissals No. 604 of 1966 (in Article 11), is joined, a few years later, to that contemplated by the Workers' Statute (Article 35), which introduces (in Article 18) the protection of the worker's reinstatement in the workplace in the event of unlawful dismissal; protection (so-called real) in the face of the indemnity protection (so-called obligatory), already contemplated by the previous Law No. 604 of 1966 (in Article 8), thus creating that binomial "reinstatement/indemnity", which will be destined to last over time, albeit with different application areas which, in recent years, starting from Law No. 92 of 2012, have seen a progressive reduction in reinstatement protection.

While the relevance of the dimensional criterion remains, the relevant employment thresholds change over time: more than thirty-five employees for Law No. 604 of 1966, for the purposes of the application of a restrictive regulation of unjustified individual dismissals (without just cause or justified reason) with respect to the civil law rule of the employer's withdrawal ad nutum ex Article 2118 of the Civil Code; not less than fifteen employees in the production unit, or in several production units in the same municipality, for the applicability of the reinstatement protection ex Article 18 of the Workers' Statute; the single dimensional requirement of not less than fifteen employees in the individual production units or within the same municipality, or not less than sixty in the entire company, for the extension of reinstatement protection following the 1990 reform (Law No. 108 of 11 May 1990, containing «Regulation of individual dismissals»).

Conversely, the threshold of fifteen employees is the autonomous and distinct criterion set out in Article 24 of Law No. 223 of 1991 to integrate the case of collective dismissal and access the reinstatement protection provided for violations of the specific regulation set out by the same law. As a result of the introduction of this new criterion, in the medium-sized company (with more than fifteen employees, but not more than sixty, employed in the complex and not in the single production unit or in the municipality), the reinstatement protection could find application in the event of collective dismissal, for the violation of the prior procedure of trade union consultation and the criteria for selecting workers to be dismissed, but not also in the event of illegitimacy of an individual dismissal.

The subsequent Law No. 92 of 2012, amending Article 18 of the Workers' Statute, in the sense of an innovative differentiation into multiple regimes of protection, reinstatement and indemnity, for individual and collective dismissals, has, however, left the dimensional requirement of access for reinstatement protection to one or the other case unchanged, only modifying the sequence of the paragraphs (current eighth and ninth) of the aforementioned article.

The dimensional requirement has, therefore, remained unchanged even when «in an even broader reform context that has touched multiple aspects of the subject matter of labor (the so-called Jobs Act: Law No. 183 of 2014), this regulation, amended in 2012, has been joined – without replacing it – by the regulation of what, in the legislator's intentions, was a new type of open-ended subordinate employment contract – so-called with increasing protection – which overlaps the previous ordinary one» (judgments No. 22 and No. 7 of 2024).

In fact, the subsequent Legislative Decree No. 23 of 2015, in establishing a distinct protection regime, in the event of unlawful dismissal, for workers hired with the employment contract with increasing protection, therefore necessarily after its entry into force (7 March 2015), did not change the dimensional requirement, limiting itself to recalling the eighth and ninth paragraphs of Article 18 of the Workers' Statute to regulate dismissal in small businesses (Article 9).

3.2.– Ultimately, the regulation of the dimensional requirement has remained that provided for by Law No. 108 of 1990 for individual dismissals, recalled by the challenged provision, and that of Law No. 223 of 1991 for collective dismissals.

4.– Coming to the merits, the question under scrutiny concerns the compatibility of the choice made by Article 1, paragraph 3, of Legislative Decree No. 23 of 2015, with respect to the delegation law No. 183 of 2014; the vulnus denounced by the judge a quo, with reference to Articles 76 and 77, first paragraph, of the Constitution, concerns the object of the delegation, which would be limited to «new hirings», that is, to "young" workers hired from 7 March 2015, which the worker whose dismissal is the subject of the dispute in the main proceedings is not.

Instead, by effect of the challenged provision, also the employees of small companies, already hired on 7 March 2015, are attracted to the regime of increasing protection introduced by Legislative Decree No. 23 of 2015, in concomitance and as a result of additional open-ended hirings, subsequent to the entry into force of the same decree, and which involve the exceeding of the dimensional limits provided for by Article 18, paragraphs eight and nine, of the Workers' Statute.

Only for these workers does the temporal commencement of application of Legislative Decree No. 23 of 2015 depend not on the date of hiring, which is indeed prior, but on the employer's decision to increase the workforce after 7 March 2015.

5.– The questions are unfounded.

6.– Article 1, paragraph 7, of Law No. 183 of 2014, in the context of a broad intervention in the field of labor law and the social security and welfare system, delegated the Government to adopt, in particular, a «simplified organic text of the regulations of contractual types and labor relations» and to this end indicated both the purpose pursued and specific principles and guiding criteria.

On the one hand, the overall «purpose» aimed at by the legislator was to strengthen the opportunities for entry into the world of work by those who are looking for employment, as well as to reorganize the existing employment contracts to make them more consistent with the current needs of the employment and production context. Combating youth unemployment and overcoming the precariousness of various contractual forms, other than the open-ended subordinate employment contract, was the strategic objective pursued by the legislator.

On the other hand, the «principles and guiding criteria» were defined, among which, in particular, that of letter c) of the aforementioned paragraph 7, the violation of which is denounced by the referring judge: «provision, for new hirings, of the open-ended contract with increasing protection in relation to the length of service, excluding for economic dismissals the possibility of the worker's reinstatement in the workplace, providing for a certain economic compensation, increasing with the length of service, and limiting the right to reinstatement to void and discriminatory dismissals and to specific cases of unjustified disciplinary dismissal, as well as providing for certain terms for challenging the dismissal».

The remodulation of the regulations of dismissals with regard to the scope of reinstatement in the workplace and the calculation of the compensatory indemnity was to contribute – according to the choices of the delegating legislator – to giving greater certainty to employers, entrepreneurs and non-entrepreneurs, in order to remove rigidities and diffidence that hindered the increase in employment through open-ended employment contracts and that had favored forms of precarious work (fixed-term, autonomous collaboration, project-based).

7.– To this end, according to the legislative delegation, the regulation of dismissals should have been revised «for new hirings» – with an open-ended contract with increasing protection – in two fundamental aspects of the worker's protection in the event of unlawful employer withdrawal: the indemnity protection and the reinstatement protection (both provided for by Article 18 of the Workers' Statute in the formulation amended by Law No. 92 of 2012).

For the indemnity protection, the provision of «a certain economic compensation, increasing with the length of service» was prescribed; for the reinstatement protection, a limitation of the area of applicability was envisaged.

The convergence of these two aspects – the calculability of the economic consequences in the event of unlawful dismissal and the resizing of the area of reinstatement protection – would have contributed to favoring, in the vision of economic policy of the delegating legislator, employment to the extent that the automatic determination of the amount of the compensation and greater flexibility in exit were deemed suitable to "reassure" the entrepreneurial world, moreover in a context in which the previous Law No. 92 of 2012 had already intervened, for the same «purpose» and with a similar regulation.

8.– The further reduction of reinstatement protection – which is the relevant aspect for the purpose of the review of the raised questions of constitutional legitimacy – was envisaged on the basis of a compromise criterion, which represented the point of equilibrium, reached in Parliament, in the approval of the delegation law: it could and should have concerned only «new hirings», those with an open-ended contract with increasing protection.

This meant that the workers already in service, who met the conditions to benefit from reinstatement protection, would have kept it unchanged (even within the reduced terms, provided for by Article 18 of the Workers' Statute, as amended by Law No. 92 of 2012). For these workers, employees of employers that met the employment requirement referred to in the eighth and ninth paragraphs of the same Article 18, there was therefore no change in peius with regard to the scope of application of the reinstatement protection, insofar as this, already applicable to them previously, would have been applicable in the same terms also later.

Instead, the "new" hires, starting from 7 March 2015, would have acquired the "new" reinstatement protection in the version, with the reduced perimeter, of Legislative Decree No. 23 of 2015 and not in the broader one of Article 18 of the Workers' Statute. For these, the more limited character of the reinstatement protection would not have meant a change in peius, because the subordinate employment relationship would have been established ab initio with this protection regime, the reinstatement and indemnity component of which is entrusted to the discretion of the legislator (most recently, judgment No. 7 of 2024).

And in fact, in implementation of this guiding criterion, Article 1 of Legislative Decree No. 23 of 2015 begins, in paragraph 1, establishing in general that «[f]or workers who have the qualification of blue-collar worker, employee or manager, hired with an open-ended subordinate employment contract from the date of entry into force of this decree, the protection regime in the case of unlawful dismissal is governed by the provisions of this decree». This date (of 7 March 2015) is the watershed between the "old" reinstatement protection (ex Law No. 92 of 2012), which continues to benefit workers in service on the aforementioned date and who were already provided with it, and the "new" reinstatement protection (that designed in even more restrictive terms by Legislative Decree No. 23 of 2015) provided for new hires.

9.– This distinction, with a dual and parallel protection regime, has already been examined by this Court with reference to collective dismissals, as "economic dismissals", in the judgment No. 7 of 2024, which declared unfounded the questions of constitutional legitimacy of Articles 3, paragraph 1, and 10 of Legislative Decree No. 23 of 2015, raised denouncing the violation of the same delegation criterion indicated in the referral order currently under examination. The reinstatement protection provided for by Article 5, paragraph 3, of Law No. 223 of 1991, as amended by Law No. 92 of 2012, in the event of collective dismissal – a case that can be configured in the occurrence of the requirements referred to in Article 24 of the same law, including the specific dimensional requirement consisting of the employment of more than fifteen employees in the complex – has been retained for workers already in service before the aforementioned date. Instead, for workers hired from that date, with an open-ended subordinate employment contract with increasing protection, the protection against collective dismissals is mainly indemnity-based (Article 10).

Below the aforementioned dimensional requirement it was not even configurable – on the date of entry into force of the legislative decree – the case of collective dismissal, but only that of individual dismissals, possibly multiple, with the consequence that the challenged provision was applied to them, insofar as they were individual, where the requirements were met (i.e., according to whether or not there was the different dimensional requirement referred to in that provision).

10.– In summary, the provision in the mentioned delegation criterion – according to which the regulation that the delegated legislator was called to lay down concerned «new hirings» with an open-ended contract with increasing protection – has legitimized precisely this "dual-track" arrangement, inspired by the logic according to which workers in service on the aforementioned date, who already had reinstatement protection ex Article 18 of the Workers' Statute, keep it also in the event of dismissals issued after 7 March 2015, while workers hired from that date directly access the more limited reinstatement protection regime of Legislative Decree No. 23 of 2015.

The particular case of workers who were indeed already in service on the aforementioned date, but who did not benefit from reinstatement protection because the employment requirement provided for individual dismissals by the eighth and ninth paragraph of Article 18 of the Workers' Statute was not met, also falls within this parallelism. In this eventuality, of workers employed in small companies, the protection against unlawful dismissals was not that dictated by Article 18, but rather that, only indemnity-based, of Law No. 604 of 1966.

The delegated legislator – in the exercise of the power to complete the regulation, as this Court has recognized precisely with reference to the same delegation law here under examination (judgment No. 22 of 2024) – could also regulate this particular case, taking into account the «purpose» of the delegation and the balancing desired by the delegating legislator (the non-regression from the reinstatement protection of those who, being already in service, had it on the date of entry into force of the new regulation).

This need for completion – as already noted – arose precisely for individual dismissals because only for these