ORDINANCE No. 78
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President: Augusto Antonio BARBERA; Judges: Giulio PROSPERETTI, 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 rendered the following
ORDINANCE
in the proceedings concerning the constitutional review of Article 1, paragraphs 44 and 45, of Law No. 228 of 24 December 2012, concerning "Provisions for the formation of the annual and multi-year State budget (Stability Law 2013)", referred by the Ordinary Court of Cagliari, Labour Section, in the proceedings between F. C. et al. and the Ministry of Education and Merit, by order of 30 October 2023, registered under No. 160 of the Register of Ordinances 2023 and published in the Official Gazette of the Republic No. 52, Special Series No. 1, of the year 2023, the hearing of which was set for the Chamber Council meeting of 9 April 2024.
Having seen the intervention of the President of the Council of Ministers;
Having heard the Reporting Judge, Angelo Buscema, at the Chamber Council meeting of 11 April 2024;
Having deliberated at the Chamber Council meeting of 11 April 2024.
Considering that, by order of 30 October 2023 (Reg. Ord. No. 160 of 2023), the Ordinary Court of Cagliari, Labour Section, raised a question of the constitutional legitimacy of Article 1, paragraphs 44 and 45, of Law No. 228 of 24 December 2012, concerning "Provisions for the formation of the annual and multi-year State budget (Stability Law 2013)", with reference to Articles 3, 36 and 117 of the Constitution, the latter in relation to Articles 1 and 2 of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, insofar as they provide that, from the 2012-2013 school year, administrative assistants assigned to perform the higher duties of director of general and administrative services (DSGA) shall be entitled to economic treatment equal to the difference between that provided for the DSGA at the initial level of economic progression and that enjoyed by the assigned administrative assistant, taking into account their remuneration based on their seniority in the latter position;
that the referring court reports that it is called upon to rule on a labour case brought against the Ministry of Education and Merit by a number of school sector workers, who had initiated legal proceedings to ascertain their right to recognition of the remuneration for the performance of the higher duties of DSGA;
that following the entry into force of the challenged provisions, the compensation due for the performance of the higher duties of the DSGA would have been significantly reduced compared to the previous provision (Article 52, paragraph 4, of Legislative Decree No. 165 of 30 March 2001, concerning "General rules on the organisation of work in the employ of public administrations"), which set the allowance for higher duties at the difference between the initial classification level of the DSGA and the initial classification level of the administrative assistant, and this because, in the case of administrative assistants with high seniority, a significant reduction or even the elimination of the allowance provided for the performance of higher duties would occur;
that, therefore, the questions of constitutional legitimacy would be relevant, since their acceptance would entail the revival of the aforementioned and more favourable previous provision;
that, according to the referring court, the question is not manifestly unfounded, first of all for violation of the principle of reasonableness pursuant to Article 3 of the Constitution, because it would entail, in the performance of higher duties, a progressive reduction of economic treatment in relation to seniority acquired as an administrative assistant;
that, furthermore, the challenged provisions would be in conflict with Article 36 of the Constitution, since the right to remuneration proportionate to the quantity and quality of work performed would require the full and additional payment of the economic treatment provided for the performance of higher duties;
that, finally, a violation of Article 117 of the Constitution would be apparent, with regard to Articles 1 and 2 of Directive 2000/78/EC (which prohibit discrimination against workers on grounds of age), since workers with greater seniority would be discriminated against compared to those with less seniority, since the latter would receive, in relation to higher duties, a greater additional economic treatment than the former;
that the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, observing that the same question was declared unfounded by judgment No. 71 of 2021 of this Court and that the re-submission of a question already declared unfounded, in the absence, as in this case, of new arguments, determines its manifest unfoundedness;
that the challenged provisions would not be in conflict with Articles 117 of the Constitution and 1 and 2 of Directive 2000/78/EC concerning the prohibition of discrimination against workers on grounds of age, since the alleged discriminatory treatment would not depend on the worker's age but on seniority and, in any case, the legislature would have guaranteed the proportionality of the overall remuneration considered.
Considering that this Court, in judgment No. 71 of 2021, has already deemed unfounded questions identical to those raised in the present proceedings;
that, with reference to the alleged violation of Article 3 of the Constitution for unreasonableness, this Court has repeatedly ruled on the need for an overall assessment of remuneration, for the purpose of judging its sufficiency and proportionality with respect to the work performed;
that, furthermore, with regard to the alleged violation of Article 36 of the Constitution, the recognition of economic progression undoubtedly enhances – and therefore already partly remunerates – the greater experience and professionalism acquired by the employee over the years of work, so that it is not unreasonable that, in the case of the conferral of the DSGA assignment, the system provides for overall remuneration based on the functions performed, even with a decreasing additional remuneration for the older employee; otherwise, it would be affirmed that, for the same duties performed, it is constitutionally necessary to grant the administrative assistant with more than 21 years of seniority higher compensation than that provided for the DSGA at the initial level, although the latter "is the holder of those functions belonging to a different role and the higher professional qualification has been objectively ascertained by means of a specific competitive selection, significant of a higher quality of work performed" (judgment No. 71 of 2021, which refers to judgments No. 115 of 2003 and No. 273 of 1997);
that, finally, as regards the complaint made with reference to Article 117 of the Constitution, in relation to Articles 1 and 2 of Directive 2000/78/EC, which has nothing to do with the longer or shorter period of work, the considerations made justify the difference in treatment reserved to the administrative assistant with less seniority and therefore destined to concretely benefit from an increase in remuneration in connection with the performance of the higher duties of DSGA compared to the one who has acquired a higher seniority, precisely because the overall assessment of the remuneration otherwise enjoyed by them is different;
that the criticisms in question, not introducing new arguments compared to those already examined by this Court in the aforementioned judgment No. 71 of 2021, nor adding new aspects to those already examined, must therefore be declared manifestly unfounded (ex multis, ordinances No. 214 of 2023, No. 220 of 2022, No. 165 and No. 111 of 2021).
Having seen Articles 26, second paragraph, of Law No. 87 of 11 March 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
declares the manifest unfoundedness of the questions of constitutional legitimacy of Article 1, paragraphs 44 and 45, of Law No. 228 of 24 December 2012, concerning "Provisions for the formation of the annual and multi-year State budget (Stability Law 2013)", raised, with reference to Articles 3, 36 and 117 of the Constitution, the latter in relation to Articles 1 and 2 of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation, by the Ordinary Court of Cagliari, Labour Section, by the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 11 April 2024.
Signed:
Augusto Antonio BARBERA, President
Angelo BUSCEMA, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 7 May 2024