JUDGMENT NO. 55

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, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco DALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 18, paragraph 12, of Decree-Law No. 98 of July 6, 2011, converted, with amendments, into Law No. 111 of July 15, 2011 (Urgent provisions for financial stabilization), initiated by the Court of Cassation, Labour Division, in the proceedings between L. C. and the National Social Security Institute (INPS), with order dated July 24, 2023, registered under No. 127 of the 2023 Order Register and published in the Official Gazette of the Republic No. 40, first special series, of the year 2023.

Seen the instrument of constitution of INPS;

Heard at the public hearing of March 6, 2024, the Reporting Justice Giovanni Amoroso;

Heard the lawyer Carla d’Aloisio for INPS;

Resolved in the council chamber of March 7, 2024.

Considered in fact

1.– By order of July 24, 2023 (order reg. no. 127 of 2023), the Court of Cassation, Labour Division, raised, with reference to Article 3 of the Constitution, the issue of constitutional legitimacy of Article 18, paragraph 12, of Decree-Law No. 98 of July 6, 2011 (Urgent provisions for financial stabilization), converted, with amendments, into Law No. 111 of July 15, 2011, in the part in which it does not provide that engineers and architects, who cannot register with the reference social security fund (so-called Inarcassa), as they are simultaneously registered with another compulsory social security scheme, due to the prohibition referred to in Article 21, paragraph five, of Law No. 6 of January 3, 1981 (Provisions on social security for engineers and architects), and who are, therefore, subject to the obligation to register with the Separate Management established at the National Social Security Institute (hereinafter: INPS Separate Management), are exempt from payment to the social security institution of civil penalties for failure to register with regard to the period prior to its entry into force.

1.1.– The referring judge reports having to decide on the appeal against the judgment of the court of appeal which, amending the first instance ruling, had declared the obligation of a professional to register with the INPS Separate Management and to pay the related contributions, in relation to the self-employment activity of an engineer carried out in addition to that of an employee and, having rejected the plea of prescription of contributions due for the year 2009, had condemned him to the payment of penalties for contribution evasion; the appellant had variously contested the existence of his obligation to register and, with the brief filed close to the public hearing, had requested the annulment of the penalties applied by the Institute in the light of the judgment of this Court No. 238 of 2022.

1.2.– The referring judge, preliminarily, traces his own orientation (consolidated starting from the Court of Cassation, Labour Division, judgment of December 18, 2017, No. 30344) according to which engineers and architects, who are registered with other forms of compulsory social security and who consequently cannot register with the professional social security fund, remaining obligated to the latter only to the payment of the supplementary contribution as they are registered in the relevant professional registers, are still required to register with the Separate Management established at INPS; he then recalls both the declaration of constitutional illegitimacy of Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, referred to in the judgment of this Court No. 104 of 2022, "in the part in which it does not provide that self-employed lawyers not registered with the Forensic Social Security Fund for not reaching the thresholds of income or volume of business referred to in Article 22 of Law No. 576 of September 20, 1980 (Reform of the forensic social security system), subject to the obligation to register with the INPS Separate Management, are exempt from payment, in favour of the social security body, of civil penalties for failure to register with regard to the period prior to its entry into force", and the observations contained in the subsequent judgment No. 238 of 2022 which, also with regard to engineers and architects, evoked the problem of the protection of excusable reliance, placed by professionals on the restrictive interpretation adopted by the jurisprudence prior to the entry into force of the aforementioned Article 18, paragraph 12, however excluding its relevance in the proceedings a quo concerning "solely a period subsequent to the authentic interpretation norm".

1.3.– That being stated, the referring judge highlights in fact that the case submitted for his examination concerns, instead, contributions relating to a period prior to the entry into force of the interpretative norm, for which the protection of reliance, possibly to be ensured by exempting the professional from the payment of penalties, would become concretely relevant again.

1.4.– The judge a quo therefore believes that judgment No. 104 of 2022 would belong prima facie to the category of so-called additive judgments, in which the normative addition constitutes the effect of the integration between the challenged norm and another norm, implicit in the system and necessarily imposed by the Constitution, but whose application in the disputed relationship would however be impossible due to an undue limitation or exclusion operated by the legislator, and that, being able to achieve the elimination of such exclusion or limitation only by a constitutional judgment of acceptance, it must be excluded that it can be reached by way of a so-called conforming or constitutionally oriented interpretation, lacking the latter the necessary prerequisite, constituted by the circumstance that more normative meanings can be attached to the textual signifier of the provision of law, one of which is in accordance with the Constitution.

According to the Court of Cassation, finally, the possibility of an analogical interpretation of the censured provision should also be excluded, as it results from the additive ruling of the judge of laws, given that recourse to the analogia legis would presuppose, pursuant to Article 12 of the preliminary provisions to the civil code, the existence of a lacuna in the legal system concerning the regulation of the concrete hypothesis, in this case not found; moreover, the circumscribed nature of the norm under examination, as it results from the aforementioned additive ruling, would in itself render such an interpretation non-feasible, with Article 14 of the preliminary provisions of the civil code prohibiting the application of norms that make an exception to general rules beyond the cases and times considered in them.

1.5.– On these premises, the referring judge doubts that Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted – in the part in which it does not provide, for engineers and architects, who cannot register with the professional fund because they are simultaneously registered with another compulsory social security scheme, and who are, therefore, obliged to register with the INPS Separate Management, the exemption from payment, in favour of the social security body, of civil penalties for failure to register with regard to the period prior to its entry into force –, violates Article 3 of the Constitution, for violation of the legitimate reliance of the professionals concerned on the certainty of the legal situations inherent in their social security position, as they result from the jurisprudential orientations prior to the entry into force of the aforementioned interpretative provision.

2.– By instrument filed on October 20, 2023, INPS constituted itself in the proceedings arguing the irrelevance, and in any case the unfoundedness, of the issue raised.

2.1.– The Institute states that it issued, on October 3, 2022, following the judgment of this Court No. 104 of 2022, Circular No. 107 of October 3, 2022 (Operation Poseidon. Holders of income from arts and professions, whose exercise is subject to registration with Registers and obliged to register with the Separate Management referred to in Article 2, paragraph 26, of Law No. 335 of August 8, 1995. Judgment of the Constitutional Court No. 104 of April 22, 2022) – of which it was noted in the subsequent judgment of the Court No. 238 of 2022 – to provide instructions to its offices regarding the exemption from the payment of civil penalties for failure to register with regard to all categories of self-employed workers registered and/or eligible to register with the Separate Management ex Article 2, paragraph 26, of Law No. 335 of August 8, 1995 (Reform of the compulsory and supplementary pension system), as interpreted by Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, relating to the period prior to the entry into force of the interpretative norm, and therefore, up to the year 2011.

2.2.– According to INPS, since judgment No. 104 of 2022, albeit additive, had affirmed a principle of general nature applicable to all subjects who, exercising by habitual profession, even if not exclusively, self-employment, are required to register with the relevant Separate Management, it would have been the burden of the judge a quo, in the absence of any other solution suitable to make the norm compatible with the principles expressed in the Constitution, to give concrete application to the principle already stated by extending it to engineers and/or architects.

3.– At the hearing of March 6, 2024, the party insisted on the acceptance of the conclusions presented in the defensive writings.

Considered in law

1.– By order of July 24, 2023 (order reg. no. 127 of 2023), the Court of Cassation, Labour Division, raised, with reference to Article 3 of the Constitution, the issue of constitutional legitimacy of Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, in the part in which it does not provide that engineers and architects, who cannot register with the reference social security fund (so-called Inarcassa), as they are simultaneously registered with another compulsory social security scheme, due to the prohibition referred to in Article 21, paragraph five, of Law No. 6 of 1981, and who are therefore subject to the obligation to register with the INPS Separate Management, are exempt from the payment, in favour of the social security institution, of civil penalties for failure to register with regard to the period prior to its entry into force.

1.1.– The issue is raised in the context of the appeal proceedings against the judgment of the court of appeal which, having ascertained the obligation of an engineer to register with the aforementioned Separate Management, in relation to the self-employment activity carried out in addition to that of an employee, had condemned him to the payment of contributions relating to the year 2009 as well as the related penalties for failure to register.

1.2.– The referring judge, after having retraced his own consolidated orientation, according to which engineers and architects, who are registered with other forms of compulsory social security and who consequently cannot register with the professional fund, remaining obligated to the latter only to the payment of the supplementary contribution as they are registered in the respective register, are still required to register with the Separate Management established at INPS, recalls both the declaration of constitutional illegitimacy of Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, referred to in the judgment of this Court No. 104 of 2022 – in the part in which, for the category of self-employed lawyers in a similar position, it did not provide for exemption from the payment of civil penalties for failure to register with regard to the period prior to its entry into force –, and the observations contained in the subsequent judgment No. 238 of 2022 which, while evoking the problem of the protection of excusable reliance also for engineers and architects, had, however, excluded its relevance in that judgment concerning "solely a period subsequent to the authentic interpretation norm".

1.3.– The judge a quo highlights that the case submitted for his examination concerns, contributions relating to a period prior to the entry into force of the interpretative norm, for which the protection of reliance would become relevant again, and therefore doubts that Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, – in the part in which it does not provide, for engineers and architects who cannot register with the professional fund because they are simultaneously registered with another compulsory social security scheme, and who, therefore, are obliged to register with the INPS Separate Management, the exemption from the payment of civil penalties for violation of this obligation with regard to the period prior to its entry into force – violates Article 3 of the Constitution, for violation of the legitimate reliance of the aforementioned professionals on the certainty of the legal situations inherent in their social security position, as they result from the jurisprudential orientations prior to the entry into force of the aforementioned interpretative provision.

2.– Preliminarily, the plea of inadmissibility, for lack of relevance of the issue, raised by INPS, must be rejected.

2.1.– In more general terms, the jurisprudence of this Court is known according to which for the admissibility of issues, also in the perspective of a wider access to the review of constitutional legitimacy and a more effective guarantee of the exercise of the scrutiny of the conformity of legislation to the Constitution (judgments No. 160 of 2023, No. 59 of 2021 and No. 77 of 2018), it is sufficient that the censured norm is applicable in the proceedings a quo and that the judgment of acceptance may influence the exercise of the judicial function (ex plurimis, judgments No. 164 of 2023, No. 247 and No. 215 of 2021).

2.2.– On the point of relevance, the descriptive elements regarding the main proceedings and the arguments, contained in the referring order, in support of the non-implausibility of the interpretative assumption are sufficient to support the applicability ratione temporis of the censured provision and, with it, the requirement of relevance of the doubt of constitutionality (ex plurimis, judgments No. 160 and No. 139 of 2023, No. 192 of 2022, No. 152 and No. 59 of 2021, No. 218 of 2020), as the referring judge has extensively stated that he must decide on the application of penalties for failure to register relating to 2009, a year prior to the entry into force of Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, with respect to which there would be a problem of protection of excusable reliance in the face of the previous and contrary restrictive orientation of the obligation to register with the INPS Separate Management, on the basis of which the professionals concerned had failed to pay the due contributions.

2.3.– The judge a quo, in line with the constant jurisprudence of this Court, according to which the "literal tenor of the provision" absolves the referring judge from the obligation to experiment with the conforming interpretation (most recently, judgments No. 202, No. 178, No. 104 of 2023, and ex plurimis, judgments No. 18 of 2022, No. 59 and No. 32 of 2021, No. 32 of 2020), excludes the possibility of arriving at a constitutionally oriented interpretation in the light of the clear wording of the censured provision in the sense of the failure to provide protection of reliance for all recipients of the obligation to register, as well as the specificity of the professional category of lawyers towards whom such protection has already been recognised with judgment No. 104 of 2022.

2.4.– It should also be considered that the referring judge was called, in the main proceedings, to apply social security rules referring to individual professional categories, the peculiarity of which required "a specific intervention on the applicable legislation in consideration of the specificity of the situations involved" (in a similar sense, judgments No. 224 of 2022 and No. 82 of 2017); nor – according to the same Court – could a cessation of the matter in dispute in the main proceedings be deduced, on the point of penalties, from the adoption by INPS of circular No. 107 of 2022, with both the procedural conduct of full contestation of the appeal on cassation, assumed by the Institute and not rectified after judgments No. 104 and No. 238 of 2022, and the lack of normative effectiveness of the aforementioned circular, which in any case – as shown by the pendency of the main proceedings – does not yet rise to the level of "constant administrative practice" (judgment No. 274 of 2006).

3.– The referring order does not present further profiles of inadmissibility.

3.1.– As regards the non-manifest lack of merit, the referring judge has extensively motivated the reasons for which, in his opinion, the censured provision would be susceptible to the proposed doubt of constitutionality; clear is also the indication of the type of intervention required which is limited to the exemption from penalties against the professionals who are recipients of the obligation to register with the INPS Separate Management, limited to the period prior to the entry into force of the censured interpretative provision.

4.– Coming to the reconstruction of the regulatory framework, it is useful to premise that this Court, in judgment No. 104 of 2022, with reference to forensic social security, and, in judgment No. 238 of 2022, with regard to the parallel social security system of engineers and architects, "has already carried out a reconstruction of the reference regulatory framework, with regard to the position of the INPS Separate Management in the general system of social security protection for professionals (with particular reference to the relationships between this new social security management and the professional category funds), as well as with regard to the jurisprudential interpretation of the discipline laid down by Article 2, paragraph 26, of Law No. 335 of 1995, before and after the entry into force of the interpretative norm introduced with Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted".

4.1.– In the aforementioned rulings, this Court also considered that Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, is a genuinely authentic interpretative provision, insofar as the norm expressed by it already fell within the scope of the meanings plausibly deducible from the interpreted provision, and that the interpretation of the plausible meaning of the norm so interpreted – which prevailed in the jurisprudence of legitimacy starting from the Court of Cassation, Labour Division, judgments of December 18, 2017, No. 30344 and No. 30345 – has now consolidated into a living rule of law according to which not only are those subjects who habitually carry out self-employment activities whose exercise is not subject to registration with specific professional registers obliged to register with the INPS Separate Management, but also those subjects registered with other forms of compulsory social security for whom registration with the professional category social security fund is precluded, who pay exclusively a supplementary contribution of a solidarity nature as they are registered in the registers, which does not follow the constitution of any social security position for their benefit (most recently, with specific reference to architects and engineers, Court of Cassation, Labour Division, judgments of December 4, 2023, No. 33850, November 3, 2023, No. 30675 and July 21, 2023, No. 21962).

5.– The censured provision, in the exegesis consolidated in the jurisprudence of legitimacy and assumed as a living rule of law, has been the object of scrutiny of constitutional legitimacy with reference both to self-employed lawyers and to engineers and architects not registered with the respective category funds.

5.1.– In particular, with judgment No. 104 of 2022, this Court declared unfounded the issue of constitutional legitimacy, raised with reference to Article 3 of the Constitution, of Article 2, paragraph 26, of Law No. 335 of 1995, as interpreted by Article 18, paragraph 12, of Decree-Law No. 98 of 2011, in the part in which it provided for the obligation to register with the INPS Separate Management for self-employed lawyers not registered with the Forensic Social Security Fund for failure to reach the thresholds of income or volume of business referred to in Article 22 of Law No. 576 of 1980. The Court noted that the censured norm, resulting from the fusion between the interpreted provision and the interpretative provision, has the purpose of extending general compulsory insurance to self-employment activities that have remained excluded from the category pension schemes already previously operating or that would have been subsequently established; it therefore has a closing function of the system and finds its basis in the need for the "universalisation" of social security protection, both at the subjective and objective levels.

5.2.– The same ruling has, however, declared the constitutional illegitimacy of the censured provision in the part in which it does not provide that the same lawyers, subject to the obligation to register with the INPS Separate Management, are exempt from payment, in favour of the social security body, of civil penalties for failure to register with regard to the period prior to its entry into force.

On this point, this Court observed that the aforementioned provision, although genuinely of authentic interpretation, by reversing the previous restrictive interpretation of Article 2, paragraph 26, of Law No. 335 of 1995, which had already become living law, had violated the legitimate reliance of the recipients on the certainty of legal situations, so that the professionals in compliance with the payment of the supplementary contribution, relying on that interpretation, had developed the legitimate conviction that they should not register with the Separate Management, consequently orienting their choices regarding the methods and limits of exercising the professional activity and the decision whether or not to exercise the option of registering with the category fund.

5.3.– The subsequent judgment of this Court No. 238 of 2022, reiterating the considerations already made regarding the constitutional basis of the institution (judgment No. 104 of 2022), then declared unfounded the issues of constitutional legitimacy – raised with reference to Articles 3, 23, 41 and 117 of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention for Human Rights as well as Article 118, paragraph four, of the Constitution – of Article 2, paragraph 26, of Law No. 335 of 1995 and of Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, which, according to the interpretation of living law, provide for the obligation to register with the INPS Separate Management for architects and engineers registered in the relevant professional registers, who cannot register with their social security fund as they also simultaneously carry out another work activity, with consequent registration with the corresponding form of compulsory social security; in that ruling this Court did not instead express itself on the problem of the protection of excusable reliance, placed by the professionals who are recipients of the censured norm in the restrictive interpretation of the aforementioned provision, highlighting its irrelevance in the proceedings a quo, concerning solely a period subsequent to the entry into force of the authentic interpretation norm.

6.– That being stated, the issue subject to today's scrutiny, limited to the topic of civil penalties for the failure of engineers and architects to register with the INPS Separate Management, relating to the period prior to the entry into force of the censured provision, is well-founded.

6.1.– According to living law (most recently, Court of Cassation, judgments No. 33850; No. 30675 and No. 21962 of 2023; as well as, ex plurimis, Court of Cassation, Sixth Civil Section, Labour Subsection, order of June 23, 2022, No. 20288) engineers and architects registered with other forms of compulsory social security, who cannot register with the category fund (Inarcassa), to which they pay exclusively a supplementary contribution of a solidarity nature as they are registered in the registers, which does not follow the constitution of any social security position for their benefit, are still required to register with the INPS Separate Management, as, according to the ratio of Article 2, paragraph 26, of Law No. 335 of 1995, the only contribution payment relevant for the purposes of excluding the said obligation to register is that likely to constitute a correlated social security benefit for the self-employed worker.

6.2.– With reference to the social security system of engineers and architects, this Court has considered the constitutional legitimacy of the unitary normative precept resulting from the fusion between the interpreted provision, referred to in Article 2, paragraph 26, of Law No. 335 of 1995, and the interpretative provision, referred to in Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, in the exegesis consolidated in the jurisprudence of legitimacy (judgment No. 238 of 2022).

6.3.– As for, instead, the topic of civil penalties for failure to register with the INPS Separate Management, relating to the period prior to the entry into force of the authentic interpretation norm, for this professional category the same conditions exist that led this Court to consider the censure of violation of Article 3 of the Constitution well-founded in the part in which the interpretative norm did not provide for exemption from it, in order to protect the excusable reliance placed by the professionals concerned on the possible interpretation that exempted them from the obligation to register with the Separate Management and to pay the related contributions (on which, on the topic of forensic social security, judgment No. 104 of 2022).

6.4.– Without prejudice to the genuinely authentic nature of the interpretation of Article 18, paragraph 12, of Decree-Law No. 98 of 2011, as converted, it is unquestionable that the interpreted provision (Article 2, paragraph 26, of Law No. 335 of 1995), due to its placement immediately after paragraph 25, was potentially suitable to orient towards a restrictive interpretation aimed at circumscribing the obligation to register with the INPS Separate Management to self-employed workers carrying out activities for which registration in registers or lists was not provided.

This is confirmed by the fact that this restrictive interpretation had been endorsed by the jurisprudence of legitimacy, formed, prior to the entry into force of the interpretative provision, in the sense of the exclusion from the scope of application of the interpreted provision of professionals registered in the registers, leaving the obligation to register with the INPS Separate Management only for those self-employed workers who carried out a professional activity for which registration in registers or lists was not provided at all, and who therefore do not have any body appointed to keep them that can decide on the form of management of social security protection (Court of Cassation, Labour Division, judgments of June 19, 2006, No. 14069, February 16, 2007, No. 3622 and May 22, 2008, No. 13218).

6.5.– By reason of this endorsement, the reliance on this interpretation "took on a more incisive connotation, reaching a level of greater significance, of which the legislator could not fail to take account when it introduced the provision of authentic interpretation under examination" (judgment No. 104 of 2022).

7.– Before the entry into force of