JUDGMENT NO. 73
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Judges: Franco MODUGNO, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, 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 13 of Law No. 70 of 20 March 1975 (Provisions on the Reorganisation of Public Bodies and the Employment Relationship of Dependent Personnel), promoted by the Ordinary Court of Rome, acting as Labour Judge, in the proceedings between the National Institute for Insurance against Accidents at Work (INAIL) and L. V., with order of 5 April 2023, registered under No. 86 of the 2023 Register of Orders and published in the Official Gazette of the Republic No. 27, special series I, of the year 2023.
Having considered the acts of constitution of INAIL and of L. V., as well as the acts of intervention of the Federation of Legal Professionals of the Parastate (FLEPAR) and of the President of the Council of Ministers;
Having heard Judge Maria Rosaria San Giorgio as Rapporteur at the public hearing of 6 February 2024;
Having heard the lawyers Marcello Cecchetti for FLEPAR, Massimo Luciani and Antonio Pileggi for L. V., Gioia Vaccari for INAIL and the State Attorney Fabrizio Urbani Neri for the President of the Council of Ministers;
Having deliberated in the Council Chamber of 7 March 2024.
Facts of the Case
1.– By order of 5 April 2023, registered under No. 86 of the 2023 Register of Orders, the Ordinary Court of Rome, acting as Labour Judge, raised, with reference to Articles 3 and 36 of the Constitution, questions of constitutional legitimacy of Article 13 of Law No. 70 of 20 March 1975 (Provisions on the Reorganisation of Public Bodies and the Employment Relationship of Dependent Personnel), insofar as, in the interpretation provided by the case-law of the Court of Cassation, which has become established law, it does not allow the portion of fees and emoluments judicially awarded to non-economic public bodies and attributed, pursuant to Article 26, fourth paragraph, of the same law, to members of the legal professional role dependent on them, to be calculated, even in part, in the calculation of the seniority allowance due to them.
1.1.– The referring court reports that in the proceedings pending before it, the National Institute for Insurance against Accidents at Work (INAIL) requested the condemnation of one of its employees in the legal professional area, who had been retired, to the return of a part of what had been paid to him as a seniority allowance, on the assumption that in the calculation of such treatment the fees and emoluments judicially awarded to the Institute and attributed to the lawyer pursuant to Article 26, fourth paragraph, of Law No. 70 of 1975 had been unduly considered.
In support of the claim for the repayment of undue payment – the court of reference continues – INAIL stated that, after the liquidation of the seniority allowance, carried out, however with reservation, under the aforementioned terms, it «had to acknowledge» that the Court of Cassation, United Civil Sections, by judgment of 25 March 2010, No. 7158, had stated that the calculation basis of the severance pay for the employees of non-economic public bodies (so-called parastatal) should exclude pay items other than the basic salary and its integration by means of seniority increments or similar pay components and that the provisions of the regulations that provided, for the purposes of severance pay or retirement benefits, however denominated, for the calculation of fixed and continuous fees, were to be considered repealed or illegitimate, and in any case, not applicable.
The referring court has, therefore, reconstructed with a wealth of references the evolution of the legislation and the jurisprudential framework in which the aforementioned decision of the Court of Cassation was inserted, recalling that, prior to the reform on the privatisation of public employment, the administrative judge, who had jurisdiction over the severance pay in question, considered that the concept of total salary included also the fees and emoluments referred to in Article 26, fourth paragraph, of Law No. 70 of 1975, identifying in such payments the natural and continuous compensation for the advocacy activities carried out by the employee on behalf of the body and, therefore, an ordinary component of the pay.
The referring court has, therefore, observed that the interpretation of the legislation in question has «radically changed» when jurisdiction in the matter was attributed to the ordinary judge, recalling, in particular, that in the case-law of the Court of Cassation formed on the calculation basis of the seniority allowance for employees of non-economic public bodies, opposing orientations have emerged.
According to a first interpretative approach, the regulations set forth by Articles 5 and 31 of the previous Ministerial Decree of 30 May 1969, approving the «Regulation for the treatment of welfare and retirement of the employed personnel» continued to apply to employees in service on the date of entry into force of Law No. 70 of 1975, provided that it ensured a more favourable treatment. The same decisions stated that the concept of pay contemplated by the aforementioned regulatory provisions coincided with the all-inclusive concept adopted by Article 2121 of the Civil Code, which included all fixed and continuous pay items, such being understood as all pay components that were not merely contingent, that is, not characterised by occasionality, temporariness or intermittency.
A different approach observed that, following the entry into force of Article 13 of Law No. 70 of 1975, legislation with which it was intended to rationalise and homogenise the financial and regulatory treatment of the parastate, the concept of total annual salary, taken by the aforementioned provision as the calculation basis of the seniority allowance, was to be understood as basic pay, not inclusive, that is, of all other payments disbursed continuously and on a fixed date. Furthermore, the continued validity of the previous regulatory provisions was to be excluded, nor could the provisions of Article 2120 of the Civil Code be considered applicable, which, for employees in service on 31 December 1995, was conditional, pursuant to Article 69, paragraph 2, of Legislative Decree No. 165 of 30 March 2001 (General rules on the organisation of work in public administrations), on the intervention, not yet realised, of national collective bargaining, without prejudice, in the absence thereof, to the regulations on severance pay in force at the time of termination of the employment relationship.
The Court of Rome has, therefore, recalled that the interpretative contrast was settled by the aforementioned judgment of the United Civil Sections No. 7158 of 2010, to whose statements – with particular regard to the clarification according to which Article 13 of Law No. 70 of 1975 establishes an unavoidable regulation to be interpreted restrictively, also with reference to the concept of «total salary» mentioned therein – the subsequent case-law has given continuity.
Having established this, the referring court considers it «entirely acquired by the so-called living law» that in the calculation basis of the seniority allowance due to parastatal employees, only the basic salary and the increments or increases strictly dependent on seniority should be considered, without the possibility of invoking the different regulation dictated by regulations or collective agreements, and that, therefore, the “fees portion” cannot be included among the computable pay items, only because this component also depends on seniority. Moreover, this compensation, although presumably continuous, is not fixed.
The referring court believes that, in the presence of an interpretative orientation that has become established law, a different reconstruction of the institution, even if supported by a constitutionally oriented interpretation of the relevant regulation, would prove useless, also in consideration of the tendency of the Court of Cassation to avoid, as a guarantee of legitimate expectations, unpredictable changes of direction.
The referring court then reviews a series of possible arguments to the contrary, to highlight their unsuitability to support an interpretative solution different from that constructed by the case-law of the Court of Cassation on «solid and insurmountable textual and systemic bases».
The same referring court considers it, on the other hand, impossible to overcome through interpretation the conflict of this established law with the Constitution, especially «on the level of rationality/legal reasonableness».
1.2.– The restrictive concept of salary, argues the referring court, «although plausibly derived from the regulatory practice of the sector», would prove to be unreasonably formalistic, especially in relation to the regulation of the parastate, according to which the seniority allowance does not have a contributory structure, but is borne by the employer body, nor is there, with respect to this treatment, an express rule of legal specificity similar to that established by Articles 3 and 38 of Presidential Decree No. 1032 of 29 December 1973 (Approval of the consolidated text of the rules on welfare benefits for civilian and military employees of the State), for the severance pay, and by Articles 4 and 11 of Law No. 152 of 8 March 1968 (New regulations on welfare for local authority personnel), for the service premium allowance.
In this regard, the referring court observes that, in the regulatory context in which Law No. 70 of 1975 was inserted, on the one hand, the financial treatments of personnel were established by regulation by the same public employer bodies and the concept of salary «could not be anchored to a predefined practice of legal standardisation of the computable items» and, on the other hand, with Article 26 of the aforementioned law, anticipating a system that would first be generalised with Law No. 93 of 29 March 1983 (Framework Law on Public Employment) and, subsequently, with «the reform of public employment of the 1990s», the structure of financial treatments was, in essence, left to collective bargaining.
The referring court further argues that a restrictive reading such as that accepted by the case-law of the Court of Cassation could have been understood in a «system of legal specificity» of the items computable for the purposes of determining severance pay, but certainly not in a regulatory environment in which, on the contrary, such treatments «have never been established and qualified by law».
The challenged legislation, continuing to link the calculation basis of the seniority allowance «to a formal fact of 1975», thus excluding that collective bargaining can affect it – to which, however, in the current context, the same law attributes «dominion […] over the arrangements of financial treatments» –, would reveal an intrinsic irrationality.
1.3.– The referring court believes that the fees in question do not constitute an ancillary or secondary pay component. This would be confirmed by Article 26, fourth paragraph, of Law No. 70 of 1975, which shows «in a unique and exceptional way» that legal professionals of parastatal bodies are entitled to a percentage of fees and emoluments, as a «natural compensation» «for the type of activity» carried out, payments that could not be fully collected by the employer body simply because the counsel representing it in court receives a salary, since for such legal representation the same body does not bear any disbursement.
The referring court further points out that the “fees portion” accrued by the respondent in the last year of service represents sixty-five per cent of his parametric financial treatment of activity, with the consequence that, in the event of failure to calculate the same for the purposes of the seniority allowance, the option for the severance pay would be more convenient, an option that, however, the same respondent «evidently did not exercise because when he left the service it was entirely peaceful, according to the administrative case-law formed at the time, and also for INAIL, that the “fees portion” was computable in the seniority allowance, and in full».
The referring court recalls, therefore, that, as confirmed by the constitutional case-law, severance pay, constituting a form of deferred pay, is protected by Article 36 of the Constitution, with the consequence that a reasonable criterion of proportion to the quality and quantity of work performed must be observed in its calculation and, «for it, it seems to be implied, to the treatment of activity».
The same referring court observes, therefore, that, although a recurring statement of the constitutional case-law specifies that compliance with Article 36 of the Constitution must be assessed in relation to the treatment as a whole, in judgment No. 243 of 1993 this Court deduced the unconstitutionality of the failure to take into account, in the calculation of the seniority allowance, the special integrative allowance from the significant impact assumed by this component with respect to the overall financial treatment.
The judgment No. 159 of 2019 is then recalled, with which this Court has clarified that the nature of deferred pay of severance pay is supported by the correlation of the extent of the benefits to the duration of service and to the continuous pay received during the employment relationship and that, also for this payment, the principle of proportionality imposed by Article 36 of the Constitution must be observed, also through a tendential, progressive assimilation to the rules of private employment, in which collective bargaining plays a fundamental role.
1.4.– According to the referring court, the principle of equality under Article 3 of the Constitution would also be violated, as the difference in the position of an INAIL employee belonging to the legal professional role with respect to that of another higher level employee, such as a manager, would be unjustified, who, although enjoying financial treatment equal to that granted to the former, receives a greater seniority allowance only because, not performing legal functions, does not receive a portion of the fees referred to in Article 26 of Law No. 70 of 1975 and «all his financial treatment consists of salary and increments» and «collective bargaining continues not to regulate the matter as a whole, nor has it ever cared […] to call the “fees portion” a “percentage salary”».
1.5.– Lastly, the referring court, in support of the relevance of the questions of constitutional legitimacy raised, deduces that, in the absence of «a modifying intervention by the Constitutional Court», the restitution claim advanced by INAIL would be «worthy of acceptance», given that the further issue raised in the main proceedings – coinciding with the violation of the legitimate expectation generated in the respondent by the interpretation of the provision under examination followed before the decision of the Court of Cassation of 2010 – would be supported by non-decisive arguments in the light of the pronouncements contained in judgment No. 8 of 2023 of this Court.
2.– In the present proceedings, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened, requesting that the questions of constitutional legitimacy raised be declared inadmissible and in any case unfounded.
2.1.– The state defence first objects that the objections of unconstitutionality do not concern the content of the provision under scrutiny so much as the interpretation given to it by the established law and, specifically, by a series of decisions of the Court of Cassation, from which the referring court could depart with adequate reasoning.
Moreover, the State Attorney's Office considers that the questions raised are formulated generically. Although the “fees portion” whose lack of consideration is denounced, by Article 13 of Law No. 75 of 1970, for the purposes of calculating the seniority allowance, constitutes only one of the components of the «varied genus of integrative and/or ancillary allowances, recognised in activity to the employees of non-economic public bodies», the objections of the referring court would not concern the concept of total pay, including, that is, all the different allowances.
2.2.– On the merits, the state defence assumes the unfoundedness of the question raised with reference to Article 36 of the Constitution, observing that the concept of «total salary in enjoyment» that Article 13 of Law No. 70 of 1975 establishes as the basis for the calculation of the seniority allowance constitutes a measure proportional to the work performed and sufficient to ensure a dignified livelihood for the worker and his family, regardless of the calculation criteria and the amount of individual items.
The objection with which the vulnus to Article 3 of the Constitution is denounced for the disparity of treatment between the legal professionals of INAIL and the managers of the same body would also be unfounded, the two categories compared not being subject to the same regulation.
3.– In the present proceedings, INAIL, the applicant in the main proceedings, also constituted itself, requesting that the questions be declared inadmissible and in any case unfounded.
3.1.– The Institute imputes, first of all, to the referring court for not having opted for the constitutionally oriented interpretation of the provision under scrutiny, deemed plausible by the same, but not practicable as it is in conflict with the principle of law expressed by the United Civil Sections of the Court of Cassation in the recalled judgment No. 7158 of 2010.
To this end, the party observes that a question of constitutional legitimacy can be considered admissible only where a constitutionally compatible interpretative solution is impossible or in any case difficult to support.
The present objections would also be inadmissible because the referring court omitted any reasoning regarding the profile of the origin from third parties of the amounts due to lawyers of non-economic public bodies as fees. The disbursement of such payments is made by the losing parties in the cases in which the parastatal body is a party and, as regards INAIL, the relative amount is attributed to the Fund provided for by the deliberation of the Extraordinary Commissioner of that institute No. 788 of 25 September 2003, containing the «Regulation for the payment of professional fees of lawyers», from which the amounts to be paid to individual lawyers are drawn. Conversely, the seniority allowance is entirely borne by the employer body.
INAIL identifies a further profile of inadmissibility in the fact that the referring court has requested an intervention by this Court «to modify» Article 13 of Law No. 70 of 1975, by virtue of which the term "salary”, provided therein as the calculation basis of the seniority allowance, is to be replaced with that of "total” pay, thus including the payments made to lawyers for professional fees, without, however, considering the professional fees paid to the same by means of disbursements borne by the public body for transactions following favourable judgments or the compensation of litigation expenses, as established by the aforementioned deliberation of INAIL No. 788 of 2003.
The modifying intervention hoped for by the referring court would also be inadmissible because it would determine effects that go beyond the limits of the objections under scrutiny, as it would involve the entire genus of the integrative or ancillary payments recognised in activity to employees of non-economic public bodies.
3.2.– On the merits, INAIL argues the unfoundedness of the question raised with reference to Article 36 of the Constitution, recalling the constitutional case-law according to which the criteria of sufficiency and proportionality deducible from this constitutional precept are inextricably linked, so that the relative verification requires a global and synthetic assessment of the entire pay structure guaranteed to the worker, regardless of the calculation criteria of the amount of the individual items.
According to the Institute, the concept of total salary in enjoyment – and not that of pay, inclusive of additional and ancillary elements –, on which the provision under examination bases the calculation of the seniority allowance, on the one hand, would be consistent with the power of the legislator to take into account the needs of public finance and, on the other hand, would not affect the sufficiency and proportionality of the pay with respect to the work performed, since the verification of these criteria must concern the financial treatment in its entirety and not the individual items of which it is composed.
As for the question relating to the alleged violation of Article 3 of the Constitution, INAIL notes the absence of adequate reasoning in support of both the objection of unreasonableness and irrationality of the provision under scrutiny and the alleged disparity of treatment.
3.3.– In the imminence of the public hearing, INAIL filed an explanatory memorandum with which it confirmed the conclusions assumed in the act of constitution, specifying and corroborating them with further jurisprudential references.
4.– L. V., respondent in the main proceedings, also constituted himself in the proceedings, requesting that the questions of constitutional legitimacy raised be accepted.
4.1.– The party, after having described in detail the terms of the main proceedings and reconstructed the regulatory framework of reference, has developed extensive arguments in support of the admissibility of the questions raised.
4.2.– On the merits, the party retraces, giving its adherence, the reasons given in the referral order in support of the alleged violations.
As for the objection formulated with reference to Article 36 of the Constitution, L. V. recalls how this Court has included severance pays in the «common paradigm of deferred pay with a concurrent welfare function», constituting such treatments «a component of the compensation conquered “through the performance of work activity and as a result thereof” (judgment No. 106 of 1996)» (in particular, judgments No. 159 of 2019 and No. 130 of 2023 are cited).
In the light of this framework, the regulation of severance pay, in order to comply with the principles enunciated in Article 36 of the Constitution, should guarantee the proportionality between these payments and the continuous pay received by the right holder during the course of the employment relationship.
The exclusion of the “fees portion” from the calculation basis of the seniority allowance sanctioned by the interpretation of Article 13 of Law No. 70 of 1975 prevailing in the established law would, therefore, be «absolutely incomprehensible».
The fees – argues the party – are part of the pay ordinarily due to the lawyers of INAIL (the judgment of this Court No. 33 of 2009) is recalled and constitute a component of their overall financial treatment that is fixed in the an and variable only in the quantum.
The conflict with Article 36 of the Constitution of their exclusion by the established law would manifest itself with particular evidence in the case under examination, in which the “fees portion” due to L. V. represents more than fifty per cent of the total pay received by the same during the employment relationship.
Therefore, continues the party, the lack of proportionality between pay and severance pay would, in this case, be clear, having regard to the clarifications provided by this Court in the judgment No. 243 of 1993 in declaring the unconstitutionality of the failure to include the special integrative allowance in the calculation of severance pay.
The aforementioned decision – recalls L. V. – noted that this pay item has become increasingly substantial over time, so that its exclusion from the calculation of severance pay has caused effects of impoverishment of such treatments that are increasingly significant.
The party has, therefore, retraced the reasons given by the referring court in support of the objections of unreasonableness and irrationality of the provision under scrutiny and of disparity of treatment, corroborating them with further arguments of supporting nature.
It is finally highlighted that the case-law interpretation object of objection has also determined the violation, in contrast with Articles 3 and 36 of the Constitution, of the legitimate expectation of the respondent in the a quo proceedings, who is now called upon to return to INAIL a sum (€272,527.70), equal to about seventy per cent of the severance pay originally received, in the face of the choice, which prior to the aforementioned decision of the Court of Cassation, No. 7158 of 2010, appeared to be the most advantageous, not to exercise the option for the severance pay.
4.3.– In view of the public hearing, L. V. filed an explanatory memorandum with which he confirmed the conclusions assumed in the act of constitution and replied to the deductions made by the state defence and INAIL.
5.– In the proceedings concerning constitutional legitimacy, the Federation of Legal Professionals of the Parastate - FLEPAR, made an intervention in support.
5.1.– The intervening party stated that it is a federal non-profit association of a trade union nature whose purpose is to protect the dignity, professional autonomy, legal status, as well as the economic rights of the legal professionals of the member associations, to be constantly present in the conduct of negotiations with the Agency for the collective bargaining representation of public administrations (ARAN) and to have signed several national collective agreements.
As a basis for its legitimacy to intervene, FLEPAR has argued that it is the holder of an interest, different from that linked to trade union representation, «profoundly shaped» by the provision under examination and inherent directly and immediately in the relationship brought forward in the main proceedings.
In the opinion of the association, the questions under scrutiny would involve the definition of the area reserved for collective autonomy in the matter of financial treatment of employees of non-economic public bodies and, in particular, the question of whether, in the light of Article 13 of Law No. 70 of 1975, as interpreted by the case-law of the Court of Cassation, collective agreements can regulate only pay for activity, or whether the regulation of severance pay is also delegated to them.
From which it would derive, in the opinion of the intervening association, that, as a result of a possible decision to accept, the trade union agreements signed by the same in implementation of Article 26, fourth paragraph, of Law No. 70 of 1975 and Article 9 of Decree-Law No. 90 of 24 June 2014 (Urgent measures for the simplification and administrative transparency and for the efficiency of judicial offices), converted, with amendments, into Law No. 114 of 11 August 2014, «would also contribute to determine the deferred pay of lawyers employed by the bodies of the so-called "parastate”».
Moreover, according to FLEPAR, a decision to accept would, at the same time, affect future collective bargaining and, in particular, the way in which the intervening association, as well as other trade union organisations, «will have to modulate their activity for the time to come».
5.2.– On the merits, the intervening party requested that the questions of constitutional legitimacy raised be accepted, developing detailed arguments substantially overlapping, from the content point of view, with those developed by the respondent in the a quo proceedings.
5.3.– These deductions were further clarified by means of the explanatory memorandum filed in the imminence of the public hearing.
6.– Lastly, on 20 July 2023, the National Association of Lawyers and Attorneys of INPS – FLEPAR INPS filed a written opinion as amicus curiae in support of the objections made by the referring court.
6.1.– The association stated that it adheres to the Confederation of Managers of the Republic – CODIRP, which represents the managers of the central functions, of the Education and Research Area and of health, not to pursue profit-making purposes and to have a non-partisan and trade union nature.
The amicus curiae also pointed out that among the institutional purposes enshrined in its statute there is that of protecting and guaranteeing the character, prerogatives and professional functions of the institutional legal profession, as well as safeguarding the moral and economic interests of the lawyers of INPS.
6.2.– The association has, therefore, developed arguments in support of both the admissibility and the merits of the questions of constitutional legitimacy raised, focusing, in particular, on the nature of deferred pay of the seniority allowance referred to in the challenged Article 13 of Law No. 70 of 1975 and on the contrariety to the principle of proportionality ex Article 36 of the Constitution and unreasonableness of the failure to include the "fees portion” in the calculation of such treatment.
6.3.– The opinion was admitted by decree of the President of the Court of 27 December 2023.
Legal Reasoning
1.– The Court of Rome, acting as Labour Judge, doubts the constitutional legitimacy of Article 13 of Law No. 70 of 1975 – in the interpretation given by the case-law of the Court of Cassation, constituting established law –, insofar as it does not allow the portion of fees and emoluments judicially awarded to non-economic public bodies, attributed by Article 26, fourth paragraph, of the same law to members of the legal professional role dependent on them, to be calculated, even in part, in the calculation of the seniority allowance due to them.
According to the principle of law enunciated by the judgment of the United Civil Sections of the Court of Cassation No. 7158 of 2010, in fact, the concept of pay that the provision under scrutiny establishes as the basis for the calculation of the aforementioned allowance coincides with only the basic salary and its integration by means of seniority increments or similar pay components, with the exclusion of any other ancillary payment, and is not derogable by the regulatory source, nor by collective autonomy.
1.1.– In the opinion of the referring court, thus restrictively interpreted, the challenged provision presents, first of all, a defect of reasonableness and rationality, in contrast with Article 3 of the Constitution, as it establishes an unreasonably formalistic regulation not modifiable by collective bargaining, despite the fact that Law No. 70 of 1975 itself reserves the regulation of pay for activity to the negotiating source.
1.2.– The interpretation of Article 13 of Law No. 70 of 1975 crystallised by the established law would also create an unjustified disparity of treatment between the position of the employee of a non-economic public body – in this case INAIL – belonging to the legal professional role and that of another employee of the same body of a higher level, such as a manager, who, while enjoying a pay equal to that recognised to the former, receives a higher seniority allowance, only because, not performing legal functions, does not receive a portion of the fees referred to in Article 26 of the aforementioned law and «all his financial treatment consists of salary and increments».
1.3.– The challenged regulation, as interpreted by the case-law of the Court of Cassation, would ultimately conflict with Article 36 of the Constitution, as it would exclude «any reasonable proportion» between the seniority allowance due to the parastatal employee belonging to the legal professional role and the financial treatment of activity received by the same during and at the end of his career.
2.‒ Preliminarily, the inadmissibility of the ad adiuvandum intervention made by FLEPAR must be reiterated, for the reasons illustrated in the