ORDER NO. 155
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
ORDER
in the proceedings concerning the constitutional review of Article 32 of Law No. 183 of 4 November 2010 (Delegations to the Government concerning arduous work, reorganization of bodies, leave, expectations and permits, social safety nets, employment services, employment incentives, apprenticeships, female employment, as well as measures against undeclared work and provisions on public employment and labor disputes) and, subordinately, of Article 18 of Law No. 300 of 20 May 1970 (Regulations on the protection of the freedom and dignity of workers, trade union freedom and activity in the workplace and regulations on placement), referred by the Ordinary Court of Siena, acting as labor court, in the proceedings between GSK Vaccines srl and L. Q. and others, with order of 1 January 2024, registered at no. 18 of the register of orders 2024 and published in the Official Gazette of the Republic No. 9, first special series, of the year 2024, the hearing of which was set for the chamber hearing of 4 June 2024.
Having considered the intervention of the President of the Council of Ministers;
having heard, at the chamber hearing of 5 June 2024, the Reporting Judge Antonella Sciarrone Alibrandi;
having deliberated at the chamber hearing of 5 June 2024.
Considering that, by order of 1 January 2024, registered at no. 18 of the register of orders 2024, the Ordinary Court of Siena, acting as labor court, raised, with reference to Article 3 of the Constitution, a question of constitutional review of Article 32 of Law No. 183 of 4 November 2010 (Delegations to the Government concerning arduous work, reorganization of bodies, leave, expectations and permits, social safety nets, employment services, employment incentives, apprenticeships, female employment, as well as measures against undeclared work and provisions on public employment and labor disputes) and, subordinately, of Article 18 of Law No. 300 of 20 May 1970 (Regulations on the protection of the freedom and dignity of workers, trade union freedom and activity in the workplace and regulations on placement), insofar as they do not provide, for fixed-term employees, the right to claim compensation in lieu of reinstatement, granted to an employee who has been unlawfully dismissed;
that, in terms of fact, the referring court, seized in opposition proceedings to a writ of execution pursuant to Articles 615 and 618-bis of the Code of Civil Procedure, reports that it must decide the case brought by GSK Vaccines srl, the opposing employer, against L. Q., the opposing employee, following the service of a writ of execution ordering payment of the sum of Euro 30,755.10 "as the amount of the compensatory allowance (equal to Euro 2,050.34 r.g.f. x 15 months)" plus legal interest and costs, for a total of Euro 31,309.51, together with similar oppositions brought by the same company against two other opposing employees, partially connected by subject matter and identity of issues and differing as to the sums claimed;
that the referring court states that the writ of execution relied upon is the order of the Court of Appeal of Florence, labor section, No. 388 of 2022, published on 19 May 2022, the content of which is as follows: "The Court, definitively deciding as the referring judge, having dismissed all other claims and exceptions, orders: (...) 2) As regards the positions of the workers [M. M. and F.P. M.], having declared the nullity of the temporary employment contracts under which the services of [M. M. and F.P. M.] were employed by GSK Vaccine s.r.l. (formerly known as Novartis Vaccines and diagnostic s.r.l.) from 9.6.2009 to 31.12.2009, declares the existence of distinct subordinate employment relationships of indefinite duration between the workers [M. M. and F.P. M.] and GSK Vaccines s.r.l. from 9.6.2009 and orders the company to reinstate the workers. It also orders GSK to pay, in favour of each of the two workers, the compensatory allowance pursuant to Article 32, paragraph 5, of Law No. 183/2010 in the amount of twelve months of the last actual global remuneration, increased by monetary revaluation and legal interest ex Article 429 c.p.c. from the apparent termination of the employment relationship to the settlement. As regards the position of the worker [L. Q.], it declares the nullity of the term affixed to the fixed-term contract concluded between the worker and GSK Vaccines s.r.l. (formerly known as Novartis Vaccines and diagnostic s.r.l.), with original commencement date 19.2.2009. For the purpose, it declares the existence of a subordinate employment relationship of indefinite duration between [L. Q.] and GSK Vaccines s.r.l. from 19.2.2009 and orders the company to reinstate the worker. It also orders GSK to pay, in favour of [L. Q.], the compensatory allowance pursuant to Article 32, paragraph 5, of Law No. 183/2010 in the amount of twelve months of the last actual global remuneration, increased by monetary revaluation and legal interest ex Article 429 c.p.c. from the apparent termination of the employment relationship to the settlement. It orders GSK to reimburse the costs of the entire proceedings in favour of the workers, which it sets at Euro 12,087.00 plus legal accessories for the first instance, Euro 8,782.50 plus legal accessories for the appeal, Euro 9,212.50 plus legal accessories for the Supreme Court proceedings and Euro 8,782.50 plus legal accessories for this referral phase, these sums to be divided equally among the workers. It declares the procedural costs of Randstad Italia s.p.a. and Manpower s.p.a. to be offset. Nothing on the costs of (...) remaining in default. So decided in Florence at the chamber hearing of 19.5.2022";
that, according to the opponent GSK, the writ of execution, ordering payment of a sum by way of compensation pursuant to Article 18 of Law No. 300 of 1970, would be without a supporting writ of execution, as the judgment order - the writ of execution relied upon - contains only the order to pay compensation pursuant to Article 32, paragraph 5, of Law No. 183 of 2010;
that, as regards relevance, the referring court considers that "for the interpretation and application to the case at hand for its decision, in order to allow the implementation of the pecuniary, compensatory and alternative obligatory relationship, at the workers' request, or to prevent it, in the opposing employer's interest", both the aforementioned provisions are relevant, of which Article 32, because it concerns the fixed-term employment relationship, "becomes the main object of reading, interpretation and application in order to decide the specific case", while Article 18 of Law No. 300 of 1970 is relevant "only in a subordinate hypothesis";
that, as regards the lack of manifest unfoundedness, the referring court perceives a conflict between the challenged provisions and Article 3 of the Constitution, insofar as they do not provide for the right of the temporary worker, who does not intend to accept the reinstatement offer following the finding of the nullity of the fixed-term contract, to opt for compensatory relief instead of reinstatement;
that, according to the referral order, there would be unreasonable disparity of treatment between the situation of the unlawfully dismissed worker, who is granted the right of choice in question, and the position of the fixed-term worker, who does not benefit from it, despite the analogy between the two situations;
that, by document filed on 19 March 2024, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Department, arguing for the inadmissibility and unfoundedness of the question of constitutional review raised;
that, in the opinion of the government's counsel, the question would be irrelevant, as it stems from opposition proceedings to a writ of execution served pursuant to a judgment delivered in labour proceedings, in respect of which the opposition judge must limit himself to verifying the existence of the right to proceed with forced execution in relation to the debt claimed, without being able to decide again on the issue already established in the writ of execution;
that, therefore, the resolution of the dispute under consideration by the referring court would be independent of the application of the provision suspected of unconstitutionality;
that, on the merits, the question would in any case be unfounded by reason of the wide margin of legislative discretion underlying the choice to diversify compensatory protection in relation to employer conduct not characterized by the same social disvalue.
Considering that the referring court challenges Article 32 of Law No. 183 of 2010 and, subordinately, Article 18 of Law No. 300 of 1970, for violation of Article 3 of the Constitution, in terms of unreasonable disparity of treatment, insofar as it does not provide for the temporary worker, who does not intend to accept reinstatement following the finding of the nullity of the term affixed to the contract, the possibility of claiming compensation in lieu of reinstatement, which is instead provided for the unlawfully dismissed worker;
that the question of constitutional review was raised in the course of opposition proceedings to a writ of execution, served on the basis of a ruling by the Court of Appeal of Florence which ordered the employer, the opponent, to reinstate the worker and to pay, in his favour, the compensation referred to in Article 32, paragraph 5, of Law No. 183 of 2010;
that the objection of inadmissibility raised by the State Legal Department is well-founded;
that, in fact, the opposition judge in execution does not have the power to decide on the validity of the underlying relationship of the writ itself and, therefore, the question of the scope of compensatory protection for the fixed-term worker is not relevant in the a quo proceedings;
that, as this Court has already had occasion to affirm in a similar case, "in the course of opposition proceedings to execution, brought ex Article 615 c.p.c. (when the enforcement action is based on a judgment, as in this case) challenges concerning the subject matter of the judgment which gave rise to the judgment relied upon in executivis are not admissible. Such challenges, indeed, can only be brought before the appellate court or the Court of Cassation, but never before the opposition judge in execution, as it is prohibited in this context to repeat the already concluded judgment proceedings under any aspect. With this premise, it is evident that the system of procedural preclusions just mentioned prevents the a quo judge from applying the rules denounced by him, which relate to the judgment proceedings, with the consequent irrelevance of the questions submitted to this Court" (judgment No. 18 of 1978);
that, therefore, "in the enforcement phase, questions concerning rules relating to the judgment proceedings are irrelevant (see judgments No. 208 of 1987 and No. 18 of 1978, as well as orders No. 14 of 2000, No. 143 of 1999 and No. 437 of 1997) (order No. 574 of 2000);
that for this reason, the question of constitutional review must be declared manifestly inadmissible.
Having considered 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 inadmissibility of the question of constitutional review of Article 32 of Law No. 183 of 4 November 2010 (Delegations to the Government concerning arduous work, reorganization of bodies, leave, expectations and permits, social safety nets, employment services, employment incentives, apprenticeships, female employment, as well as measures against undeclared work and provisions on public employment and labor disputes) and, subordinately, of Article 18 of Law No. 300 of 20 May 1970 (Regulations on the protection of the freedom and dignity of workers, trade union freedom and activity in the workplace and regulations on placement), raised, with reference to Article 3 of the Constitution, by the Ordinary Court of Siena, acting as labor court, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 June 2024.
Signed:
Augusto Antonio BARBERA, President
Antonella SCIARRONE ALIBRANDI, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on 30 July 2024