JUDGMENT NO. 148
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 D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of articles 230-bis, paragraphs one and three, and, "derivatively", 230-ter of the Civil Code, initiated by the Court of Cassation, Joint Civil Divisions, in the proceedings between I. U. and C. D. and others, by order of 18 January 2024, registered under no. 36 of the 2024 register of orders and published in the Official Gazette of the Republic no. 12, first special series, of the year 2024, the hearing of which was scheduled for the meeting in the council chamber of 2 July 2024.
Heard in the council chamber of 4 July 2024, Justice Giovanni Amoroso, Rapporteur;
Deliberated in the council chamber of 4 July 2024.
Considered in Fact
1.– By order of 18 January 2024 (reg. ord. no. 36 of 2024), the Court of Cassation, Joint Civil Divisions, raised questions of constitutional legitimacy, with reference to articles 2, 3, 4, 35 and 36 of the Constitution, article 9 of the Charter of Fundamental Rights of the European Union (CFREU) and article 117, first paragraph, of the Constitution, in relation to articles 8 and 12 of the European Convention on Human Rights (ECHR), of article 230-bis (Family Business), first and third paragraphs, of the Civil Code, insofar as it does not include a cohabiting partner in the list of family members, and, "derivatively", of article 230-ter (Rights of the Cohabiting Partner) of the Civil Code, which "applies to a cohabiting partner, who stably performs their work in the business of the other cohabiting partner, a lower protection than that provided for a family member".
1.1.– The questions are raised in the course of proceedings introduced by I. U., against the children and co-heirs of E. D., previously married to another woman, stating that she had been in a stable cohabiting relationship with him from 2000 until his death in November 2012, before the Ordinary Court of Fermo, acting as a Labour Court, with a request for the ascertainment of the existence of a family business, relating to a farm, and for an order for the liquidation of the share due as a participant in the business.
The applicant had argued that the cohabitation, which began in another location, had continued at the farm acquired by the deceased – an acquisition that was followed by other acquisitions, the construction of a wine cellar, and the start-up of a tourist reception activity – and that she had worked continuously in the cohabiting partner's business from 2004 (the year of registration in the register of businesses) until 2012.
1.2.– The Court of Fermo had rejected the claim, noting that the de facto cohabiting partner could not be considered a "family member" within the meaning of article 230-bis, third paragraph, of the Civil Code.
The Court of Appeal of Ancona, Labour Division, had confirmed the rejection on the identical premise, also excluding the applicability of article 230-ter of the Civil Code, as the cohabitation relationship had ceased before the entry into force of Law No. 76 of 20 May 2016 (Regulation of Civil Unions between Persons of the Same Sex and Discipline of Cohabitation), which, with the addition of the aforementioned article, had partially extended the discipline of the family business to cohabiting partners.
1.3.– With the appeal to the Court of Cassation, the applicant denounced the violation and misapplication of article 230-bis of the Civil Code, in relation to article 360, first paragraph, number 3), of the Code of Civil Procedure, for failure to consider the changed social sensitivities in the matter of cohabitation, as well as the openness of the jurisprudence of both legitimacy and constitutional law, which would have allowed the discipline of the family business to be applied even in the absence of a rule that expressly provides for it, based on a constitutionally oriented reading of article 230-bis of the Civil Code; she then argued the violation of articles 230-bis and 230-ter of the Civil Code and article 11 of the pre-laws, as a derogation from the principle of non-retroactivity, not guaranteed by a constitutional rule, should be allowed where this responds to a criterion of reasonableness and greater justice.
1.4.– The Court of Cassation, Labour Division, by interlocutory order, requested the nomofilattic intervention of the Joint Divisions in order to clarify whether article 230-bis, third paragraph, of the Civil Code could be interpreted evolutionarily – in consideration of the change in customs as well as the constitutional jurisprudence and national legislation on civil unions between persons of the same sex – in terms of an exegesis oriented towards articles 2, 3, 4 and 35 of the Constitution, as well as article 8 ECHR, in the sense of providing for the applicability of the related discipline also to the de facto cohabiting partner, where the de facto cohabitation is characterised by stability.
1.5.– The referring Joint Divisions observe that the relevance of the questions stemmed from the fact that only as a result of a declaration of constitutional illegitimacy of the disputed rule, in the part in which it does not include the de facto cohabiting partner in the list of family members, would the need for that ascertainment in fact, omitted by the lower courts, be determined, regarding the effectiveness and continuity of the work contribution in the family business that is decisive for the purposes of increasing the productivity of the business.
1.6.– On the point of non-manifest groundlessness, the *a quo* court retraces the genesis of the family business institution governed by article 230-bis of the Civil Code, as an overcoming of the tacit family partnership provided for the agricultural sector by article 2140 of the previous Civil Code, and its purpose of conferring minimum protection on those common employment relationships that take place within family groups that cannot rely on more specific protection disciplines, both in the employment and corporate fields. It recalls its autonomous nature, special but not exceptional, and residual with respect to any other contractual relationship that may be configured (Court of Cassation, Labour Division, judgment of 15 June 2020, no. 11533); the individual form (Court of Cassation, Labour Division, judgments of 18 January 2005, no. 874 and 15 April 2004, no. 7223); incompatibility with corporate discipline (Court of Cassation, Joint Civil Divisions, judgment of 6 November 2014, no. 23676); the tax regime, with the incomes of family members defined as employment income, and therefore not comparable to business income (Court of Cassation, Fifth Division, judgment of 2 December 2008, no. 28558 and order of 20 December 2019, no. 34222); the rights deriving from it, both of a participatory and economic-patrimonial type, and the prerequisites, such as: a) the existence of an individual enterprise; b) the work performance carried out in the interest of the enterprise by a family member, with continuity, that is, with consistency and regularity, but not necessarily exclusive; c) alternatively, the provision of work in the family, but without the mere domestic activity being relevant, as a causal and functional connection with the business activity is always necessary.
1.7.– The referring court then highlights that legal scholarship had long questioned the possibility of applying article 230-bis of the Civil Code extensively to the de facto cohabiting partner, valuing the fact that the family business represents a general form of protection of the work performed for that spirit of solidarity that exists in relationships between relatives and between spouses, so that even a stable cohabiting partner has the right to participate in the family business because their gratuitous work collaboration within the scope of a stable emotional relationship finds its cause in the family solidarity itself. The *a quo* court further notes that the jurisprudence, both of merit and of legitimacy, after an initial closure (Court of Cassation, Labour Division, judgments of 29 November 2004, no. 22405 and 2 May 1994, no. 4204), had shown a certain change in trend (Court of Cassation, Labour Division, judgment of 15 March 2006, no. 5632); that Law No. 76 of 2016, in article 1, paragraph 36, had provided that "de facto cohabitants" means two adults who are stably united by emotional ties of a couple and mutual moral and material assistance, not bound by relationships of kinship, affinity or adoption, by marriage or by a civil union", and with article 1, paragraph 46, had introduced article 230-ter of the Civil Code, according to which: "[a] de facto cohabiting partner who stably provides their work within the business of the other cohabiting partner is entitled to a share of the profits of the family business and of the assets acquired with them as well as the increases of the business, also with regard to the goodwill, commensurate with the work performed. The right to participation does not apply if there is a partnership or subordinate employment relationship between the cohabitants", and with article 1, paragraph 20, had made article 230-bis of the Civil Code applicable to civil unions as well.
1.8.– The Joint Divisions therefore observe that, in the current system, while each of the parties to the civil union is included in the list of family members referred to in article 230-bis, third paragraph, of the Civil Code, for the stable cohabiting partner, pursuant to article 230-ter of the Civil Code, there is a lower level of protection than that of the family member; that, according to the principle of non-retroactivity referred to in article 11 of the preliminary provisions of the Civil Code, as already happened for article 230-bis of the Civil Code, article 230-ter of the Civil Code cannot be applied to legal situations definitively completed under the system prior to the 2016 reform, and it must be excluded that the rule, since it creates new rights, is applicable as it merely recognises principles already acquired in the existing legal framework; that, although the provision introduced in 2016 is significant of an extension of the protection in favour of the de facto cohabiting partner, the two articles – articles 230-bis and 230-ter of the Civil Code – are not perfectly coincident, as the second gives the cohabiting partner a series of rights lower than those recognised to the spouse.
In any case, according to the *a quo* court, the recognition of the "fact" of cohabitation as a legal position worthy of protection as such, constitutes a real obligation imposed by the systematic reading of the constitutional (articles 2, 3, 4, 35 and 36), union (article 9 CFREU) and conventional (article 8 ECHR) rules, with respect to which the national legislator remained free, within the limits of reasonableness and effectiveness, in the choice of the measure of intervention, leaving a margin of discretion between the discipline provided for marriage and civil unions and cohabitation, in consideration of the particular social feeling of the national community. The referring court therefore highlights that from the evolution of society, legislation and constitutional and supranational jurisprudence, it would now emerge that the family must be considered both in the traditional version, composed of two members of different sexes united in marriage, and in the modern version constituted by couples not united in marriage, but simply cohabiting, whether they are of different sex or of the same sex; that no situation expressing the choice of a different family model can remain without protection and that with the introduction of article 230-ter of the Civil Code the Italian legislator would have fulfilled the obligation described above, defining the limits and boundaries by identifying an essential minimum of protection to be recognised for de facto families, as opposed to the broader guarantees typical of "de jure" or "formal" families, with a legislative technique "by subtraction", in the sense of providing for a specific discipline that is more restrictive and lighter, less protective for the position of the cohabiting working partner than that of the family worker referred to in article 230-bis of the Civil Code.
1.9.– Having established the foregoing, the *a quo* court notes that, while aware of an inalienable structural difference between the condition of a spouse and that of a de facto cohabiting partner, if the ratio of the family business institution were identified in the rejection of the even presumed gratuity of work performed in the context of a certain social, life, affection and solidarity relationship, this ratio could legitimately be transferred to relationships, other than that of marriage, in which analogous characteristics are found and that if the continuous performance of the family member were placed as the basis of the protection identified by article 230-bis of the Civil Code, regarded as participation in a work project common to the group, seeing the fulcrum of the discipline in the protection of the person who works, the objections about the substantial difference between positions of legitimate family and de facto family would lose persuasive force, in the presence of constitutional reference values such as dignity, freedom and equality. In the opinion of the Joint Divisions, if article 230-bis is pre-ordained to protect the asset "work" in all its forms, this asset does not change depending on the subject who carries it out, so that, without having to place marriage and de facto cohabitation on the same level, it would be a question of recognising a special right for the cohabiting partner within an institution that cannot be considered exceptional having a residual and supplementary function, aimed at providing a minimum and non-derogable protection to those common employment relationships that take place in family groups and that in the past saw some members of the family community carry out a valuable work activity, in many forms, without any economic and legal guarantee.
1.10.– The referring court also recalls that the constitutional reference for the de facto family must be identified in article 2 of the Constitution, as a stable and lasting social formation in which the personality of the individual is developed, an expression of an existential, free and conscious choice; that although marriage and, by the will of the legislator, civil union, belong to so-called "institutional" models, while de facto cohabitation is a "family model not of institutional structure", in both cases there would be family models from which obligations of moral and material solidarity arise, even after the cessation of the institutional union and the de facto union, where de facto cohabitation is in fact capable of meeting the same needs for the realisation of the fundamental emotional needs of the person in the same way as the marital relationship; that the indication of article 2 of the Constitution, in the sense of a unitary consideration of the two situations and not a differentiated one, is destined to operate also with respect to the collaborative contribution referred to in article 230-bis of the Civil Code, which always finds its cause in the bonds of solidarity and affection that exist, regardless of the formal bond; that the unreasonable exclusion by the aforementioned provision of any protection, even minimal, towards the de facto cohabiting partner is relevant: a) with regard to article 3 of the Constitution, in terms of violation of the principle of equality, given that it determines discrimination between subjects who perform the same activity on a continuous basis in the family business, based on the (sole) personal condition (the quality of spouse) in the face of a substantial equivalence in the activity of the business, ending up by placing an obstacle of an economic nature to the equality of citizens; b) with regard to article 4 of the Constitution, for the violation of the close link between work, which is not an end in itself or a mere instrument of gain, but a means of affirmation of the personality of the individual as well as a guarantee of the development of human capacities and their use, and the values of effective freedom and dignity of each person; c) with regard to articles 35, first paragraph, and 36, first paragraph, of the Constitution, as bulwarks to guarantee work and remuneration, considering that the work performed within the scope of a de facto cohabitation relationship, moved by the same spirit of solidarity that characterises marital work, would be destined to remain without protection.
1.11.– With regard to Union law, the Joint Divisions invoke article 9 of the CFREU, where the "right to marry" is recognised among the fundamental freedoms protected by chapter two in a separate way from the "right to found a family", thus achieving a significant opening towards de facto families, since the merit of the interests pursued through the perfectly legitimate choice to cohabit without marriage is recognised and protected even outside the presence of formal bonds in family relationships, while, with regard to conventional law, the reference is to articles 8, paragraph 1, and 12 ECHR, which, respectively, sanction the right to respect for private and family life and the right to marry and to found a family, on the basis of which a consolidated jurisprudence of the ECHR has developed a notion of "family" that is not limited to relations based on marriage but can include other de facto "family" ties, if the parties live together outside the bond of marriage, while recognising to the contracting States the power to grant diversified protection to couples united in marriage.
1.12.– Finally, the *a quo* court highlights that an extensive reading of article 230-bis of the Civil Code, constitutionally oriented in the sense of a recognition to the de facto cohabiting partner of the same rights provided for the spouse, both economic-participatory and managerial, as a set of necessary and indissoluble application, would determine a systemic disharmony by granting ex post to the cohabiting partner, whose activity in the family business until 2016 was not only not typified but, according to the prevailing jurisprudence, even excluded from the scope of application of article 230-bis of the Civil Code, a protection for the facts prior to 2016 even higher than that then expressly provided for by the legislator with Law No. 76 of 2016, and that an unreasonableness of article 230-ter of the Civil Code, relevant for the purposes of the possible derived constitutional illegitimacy of this provision, would be found in the fact that the recognition of the mere right to participate in the profits, assets and increases does not appear in any case suitable to ensure sufficient protection on a patrimonial level for the cohabiting worker, who, in the event of a lack of profit production, would end up being deprived of any compensation for the work carried out, in contrast with the same obligation for the legal system to prefigure for them an essential core of protection, as well as with the principle of equal treatment of the work carried out.
1.13.– In conclusion, the Joint Divisions believe that article 230-bis of the Civil Code, providing, in the first paragraph, that "the family member who continuously provides their work in the family or in the family business is entitled to maintenance according to the family's patrimonial condition and participates in the profits of the family business and in the assets acquired with them as well as in the increases of the company, also with regard to the goodwill, in proportion to the quantity and quality of the work performed" and indicating, in the third paragraph, that "[f]or the purposes of the provision referred to in the first paragraph, a family member is understood to be the spouse, relatives within the third degree, relatives by affinity within the second; a family business is one to which the spouse, relatives within the third degree, relatives by affinity within the second contribute", raises concrete doubts of constitutional illegitimacy in the part in which it does not include the de facto cohabiting partner in the list of family members, for violation of articles 2, 3, 4, 35 and 36 of the Constitution, as well as for violation of article 9 CFREU and article 117, first paragraph, of the Constitution, as amended by Constitutional Law 18 October 2001, no. 3 (Amendments to Title V of Part Two of the Constitution), in relation to articles 8 and 12 ECHR; the charges of constitutional illegitimacy would also be reflected, in terms of derived illegitimacy, on article 230-ter of the Civil Code which would not have recognised the same protection for the de facto cohabiting partner as for the spouse/family member but a differentiated protection of a lower scope.
2.– None of the parties to the main proceedings has appeared, nor has the President of the Council of Ministers intervened.
Considered in Law
1.– By order of 18 January 2024 (reg. ord. no. 36 of 2024), the Court of Cassation, Joint Civil Divisions, raised questions of constitutional legitimacy, with reference to articles 2, 3, 4, 35 and 36 of the Constitution, as well as article 9 of the CFREU and article 117, first paragraph, of the Constitution, in relation to articles 8 and 12 ECHR, of article 230-bis (Family Business), first and third paragraphs, of the Civil Code, in the part in which it does not include the de facto cohabiting partner in the list of family members, and "derivatively" of article 230-ter (Rights of the Cohabiting Partner) of the Civil Code, "which applies to a de facto cohabiting partner who stably performs their work in the business of the other cohabiting partner a lower protection than that provided for a family member".
1.1.– The *a quo* court is called upon to decide on the claim for the ascertainment of the existence of a family business, and for an order for the liquidation of the share due as a participant in the business, brought by I. U., before the Court of Fermo, acting as a Labour Court, against the children and co-heirs of E. D., previously married, with whom she stated that she had been in a stable cohabiting relationship from 2000 until the date of his death in November 2012, and in whose farm she claimed to have worked continuously from 2004 (the year of registration in the register of businesses) until 2012 (the year of death).
1.2.– The applicant, who had been unsuccessful in the lower court proceedings, had denounced, in the appeal to the Court of Cassation, the violation and misapplication of article 230-bis of the Civil Code, in relation to article 360, first paragraph, number 3), of the Code of Civil Procedure, the application of which she invoked in consideration of the changed social sensitivities in the matter of cohabitation, as well as the openness of the jurisprudence of legitimacy and constitutional jurisprudence towards the de facto cohabiting partner, as well as the violation of articles 230-bis and 230-ter of the Civil Code and article 11 of the pre-laws, the application of which in derogation from the principle of non-retroactivity would have responded to a criterion of reasonableness and greater justice.
1.3.– The referring Joint Divisions state that the decision under appeal found its basis in the inapplicability *ratione temporis* of article 230-ter of the Civil Code and in the impossibility of an extensive application of article 230-bis of the Civil Code, so that the relevance of the questions would stem from the fact that only as a result of a declaration of constitutional illegitimacy of the disputed provision, in the part in which it does not include the de facto cohabiting partner in the list of family members, would the need for that ascertainment in fact, omitted by the lower courts, be determined, regarding the effectiveness and continuity of the work contribution in the family business that is decisive for the purposes of increasing the productivity of the business; they also highlight that an extensive reading of article 230-bis of the Civil Code, constitutionally oriented in the sense of a recognition to the de facto cohabiting partner of the same rights provided for the spouse, both economic-participatory and managerial, would determine a systemic disharmony by granting ex post to the cohabiting partner, whose activity in the family business until 2016 was excluded from the scope of application of the provision, a protection for the facts prior to 2016 even higher than that then provided for by the legislator with Law No. 76 of 2016.
1.4.– Not believing that the path of a conforming interpretation is feasible, given the insurmountability of the letter of the provision and the highlighted risks of disharmony of the system, the *a quo* court doubts the constitutional legitimacy of article 230-bis, first and third paragraphs, of the Civil Code, in the part in which it does not include the de facto cohabiting partner in the list of family members who continuously perform work in the family or in the family business.
1.4.1.– The disputed provision would be in conflict with article 2 of the Constitution, considering in a differentiated and non-unitary way a collaborative contribution which, regardless of the formal bond, always finds its cause in the bonds of solidarity and affection existing within family models, such as marriage and civil union on the one hand and de facto cohabitation on the other, capable of corresponding in the same way to the needs for the fulfilment of the fundamental emotional needs of the person and from which, even after the termination, obligations of moral and material solidarity arise. Furthermore, in violation of article 3 of the Constitution, it would operate a real discrimination between subjects who, on a continuous basis, perform the same work activity in the family business, thus determining a disparity of treatment based on the (sole) personal condition (the quality of spouse) which, in the face of an equivalent contribution to the activity of the business, ends up placing an economic obstacle to the equality of citizens.
1.4.2.– In contrast with article 4 of the Constitution, article 230-bis of the Civil Code would affect the close link between work, which is not an end in itself or a mere instrument of gain, but also an instrument of affirmation of the personality of the individual as well as a guarantee of the development of human capacities and their use, and the values of effective freedom and dignity of each person, and, also violating articles 35 and 36 of the Constitution, would leave without the protection recognised in the presence of a formal bond, work performed in the context of a de facto cohabitation relationship moved by the same spirit of solidarity that characterises marital work, although, since the family business institution has a residual character, the same risk exists that the same, not being possible to provide specific proof of a performance for consideration, are presumed to be provided free of charge.
1.4.3.– The referring court then denounces the violation of article 9 of the CFREU which, recognising the "right to marry" among the fundamental freedoms protected by Chapter two in a separate way from the "right to found a family", achieves a significant opening towards de facto families, protecting, even outside the presence of formal bonds in family relationships, the merit of the interests pursued through the perfectly legitimate choice to cohabit without marriage, replacing the traditional favour for marriage with the equal dignity of any form of cohabitation that a national legislation decides to regulate. It would also be in conflict with article 117, first paragraph, of the Constitution, in relation to articles 8 and 12 ECHR, as evolutionarily interpreted by the case law of the ECHR in the sense of not limiting the notion of "family" to relations based on marriage, but of extending it also to other de facto "family" ties, if the parties live together outside the bond of marriage, so as to circumscribe the possibility of interference by national States in the rights to "family life" of both married and de facto couples, with the necessary observance of the principles of legality, necessity and proportionality, developing in certain circumstances real positive obligations aimed at the promotion of the aforementioned rights.
1.5.– Finally, the Joint Divisions propose the constitutional illegitimacy "derivatively" (recte: consequentially) of article 230-ter of the Civil Code which, by recognising to the de facto cohabiting partner who stably performs their work in the business of the other cohabiting partner the mere right to participate in the profits, assets and increases, would apply to them a lower patrimonial protection than that recognised to the family member by article 230-bis of the Civil Code, depriving them of any compensation for the work performed in the event of lack of profit production.
2.– Preliminarily, the admissibility of the questions must be affirmed.
2.1.– According to the constant guidance of this Court, the question of constitutional legitimacy is admissible when the referral order is argued in such a way as to allow "external" control of the relevance through a non-implausible motivation of the logical path taken and the reasons why the referring court affirms that it must apply the disputed provision in the main proceedings (ex plurimis, judgments no. 94 of 2023, no. 237 of 2022 and no. 259 of 2021).
In the present case, the parties are in dispute regarding the effects of the participation, protracted for years, of the de facto cohabiting partner in the family business, of which the "partner" was the owner; the relationship ceased in 2012 due to the death of the latter. At that date, and for the entire duration of the relationship – observes the referring Court – the only provision in force was the disputed article 230-bis of the Civil Code and not article 230-ter of the Civil Code, which, while concerning the participation of the de facto cohabiting partner in the family business, was not applicable *ratione temporis*, having been introduced only subsequently by Law No. 76 of 2016.
This interpretative assumption is based on the non-retroactive applicability of article 230-ter of the Civil Code, a provision that, having regulated for the first time the institution of the family business for de facto cohabitants, would not be applicable to the case in question in the *a quo* proceedings, since the cohabitation and the work carried out in the family business were concluded in 2012 due to the death of the cohabiting partner of the applicant.
In the presence of a legal relationship already completed at the date of entry into force of the new rule, the interpretative assumption is not implausible, appearing, in fact, to conform to the letter and the ratio of Law No. 76 of 2016.
By introducing article 230-ter of the Civil Code – as will be better explained below – the legislator did not intend to limit the pre-existing discipline of article 230-bis of the Civil Code, excluding the de facto cohabiting partner from some rights (such as the right to maintenance) due to participants in the family business, but recognised a new protection in the case of a family business in which a de facto cohabiting partner participates, on the presumed, implicit but unequivocal assumption, that it was not previously provided for. It has therefore introduced a new, autonomous and specific discipline, although of a lesser scope than that of article 230-bis of the Civil Code; a discipline that could therefore only operate for the future, as the referring Court believes.
With reference to other institutions introduced by Law No. 76 of 2016, the jurisprudence of legitimacy has already been similarly oriented in the sense of their non-retroactive scope (on the subject of survivor's pension, Court of Cassation, Labour Division, judgment of 14 September 2021, no. 24694; First Civil Division, order of 14 March 2022, no. 8241).
Moreover, at the time of the reform of family law in 1975, when article 230-bis of the Civil Code was introduced, the jurisprudence had expressed itself in the sense of the non-retroactivity of this new provision (Court of Cassation, Labour Division, judgment of 2 April 2013, no. 7981; Second Civil Division, judgment of 21 October 1992, no. 11500; First Civil Division, judgment of 6 April 1990, no. 2909; Third Civil Division, judgment of 23 October 1985, no. 5195).
Consequently, and with good reason, the referring Court questioned the applicability of the provision in force at the time of the facts (article 230-bis of the Civil Code), rather than a provision that did not yet exist (article 230-ter of the Civil Code) and of which it plausibly considered that it was not possible to predicate retroactive application.
2.2.– The referring Court then excluded the possibility of an interpretative adaptation of the disputed provision (article 230-bis of the Civil Code), oriented towards compliance with the evoked parameters.
It is true that, on the one hand, the affirmation of the exclusion of the de facto cohabiting partner among the possible components of the family business was found in some non-recent decisions of that Court (Court of Cassation, Labour Division, judgment of 2 May 1994, no. 4204 and Second Civil Division, judgment of 29 November 2004, no. 22405); but they were not in line with other rulings which, instead, had considered the possibility, for the same cohabiting partner, of being a component of a tacit family partnership (Court of Cassation, Labour Division, judgments of 19 December 1994, no. 10927 and 15 March 2006, no. 5632).
On the other hand, the Joint Criminal Divisions (Court of Cassation, judgment of 26 November 2020-17 March 2021, no. 10381), faced with a similar question – whether in the notion of "close relatives", provided for by article 384, first paragraph, of