JUDGMENT NO. 156

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: 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, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy review proceedings concerning Article 19, first paragraph, of Law of May 20, 1970, n. 300 (Provisions on the protection of the freedom and dignity of workers, trade union freedom and trade union activity in workplaces, and provisions on employment placement), promoted by the Ordinary Court of Modena, acting as Labour Judge, in the proceedings between the Autonomous and Grassroots Trade Union Organization ORSA - Local Public Transport Sector - Provincial Secretariat of Modena and the Emilia Transport and Trolleybus Company SETA spa, by order of October 14, 2024, registered under no. 220 of the register of ordinary orders of 2024 and published in the Official Gazette of the Republic no. 49, first special series, of 2024.

Having seen the official submissions of the Autonomous and Grassroots Trade Union Organization ORSA - Local Public Transport Sector - Provincial Secretariat of Modena and the Emilia Transport and Trolleybus Company SETA spa, as well as the submissions of intervention by the Confederation of Local Public Services CONFSERVIZI - ASSTRA - UTILITALIA and the Transport Association ASSTRA;

having heard at the public hearing of October 8, 2025, the Reporting Judge Stefano Petitti;

having heard the lawyers Giovanni Stramenga for ORSA - Local Public Transport Sector and Arturo Maresca for SETA spa;

deliberated in the council chamber of October 8, 2025.

Facts Considered

1.– By order of October 14, 2024, registered under no. 220 of the register of ordinary orders of 2024, the Ordinary Court of Modena, acting as Labour Judge, raised a question of constitutional legitimacy concerning Article 19, first paragraph, letter b), (recte: Article 19, first paragraph), of Law of May 20, 1970, n. 300 (Provisions on the protection of the freedom and dignity of workers, trade union freedom and trade union activity in workplaces, and provisions on employment placement), in reference to Articles 3 and 39 of the Constitution, "insofar as it excludes trade union organizations ‘most or significantly representative’ from the possibility of establishing company trade union representatives”.

1.1.– The referring judge states that it is called to rule on the appeal filed pursuant to Article 28 of the Workers' Statute by the Autonomous and Grassroots Trade Union Organization ORSA - Local Public Transport Sector - Provincial Secretariat of Modena, for the ascertainment of the anti-union nature of the refusal opposed to it by the employer, Emilia Transport and Trolleybus Company SETA spa, regarding the establishment of a company trade union representative (RSA) in the Modena production unit.

1.1.1.– The *judge a quo* sets out that in the appeal the union alleged:

a) that it adheres to the ORSA Confederation, active in the local public transport sector, signatory of the protocol of May 4, 2017, signed at the national level with ASSTRA, the association of public transport companies to which SETA spa belongs;

b) that it is present in the operational structures of the latter, particularly boasting in the Modena production unit a number of members exceeding 20 per cent of unionized workers, equal to about 10 per cent of the total workforce;

c) that its strikes record an above-average participation and that it has collected the signatures of more than half of the employees to request elections for the unitary trade union representative body (RSU), without the other unions initiating the procedure;

d) that it participated in the institutional negotiations that resulted in the "Pact for Public Transport and Sustainable Mobility 2022-2024", approved by the Emilia-Romagna Region;

e) that, despite all this, it is disregarded by SETA spa, in the Modena production unit, as the employer does not admit it to negotiations for company union agreements, denies it the right to adhere to second-level union agreements, and does not recognize its right to establish an RSA.

1.1.2.– The referring judge states that SETA spa replied as follows:

a) ORSA has been granted all the union rights provided for in the aforementioned national protocol, which do not include the right to adhere to union agreements, nor the right to establish an RSA;

b) Article 19 of the Workers' Statute, in light of this Court's Judgment No. 231 of 2013, grants the right to establish an RSA exclusively to trade union organizations that are signatories to the collective agreements applied in the production unit or that participated in the related negotiations, both requirements being absent for ORSA;

c) the establishment of the RSA was indeed admitted only for CGIL, CISL, UIL, FAISA, and UGL, the unions signatory to the national collective labour agreement.

1.2.– The referring judge reports that, as emerges from the documents, ORSA does not have an RSA, nor does it participate in the RSU, within the production units of SETA spa, despite the employee subscription projections certifying that, in the Modena unit, it boasts a substantial number of members, such that it was the leading union force in 2021 (third in 2022, second in 2023).

1.3.– The referring judge doubts the constitutional legitimacy of the challenged norm, with reference to the parameters invoked, insofar as it does not grant the right to establish an RSA to trade union organizations that, although not having signed the collective agreements applied in the production unit, nor having participated in the related negotiation, are nevertheless, within that unit, "most or significantly representative".

1.3.1.– Regarding the relevance of the question, the Court of Modena deduces that its acceptance would render the company’s refusal to recognize ORSA’s right to an RSA unlawful, thus objectively integrating the anti-union nature of the employer's conduct; nor would the fact that the ORSA-ASSTRA national protocol does not provide for this right, and provides for others, particularly concerning leave, be an obstacle, since the challenged norm is "subject to constitutional review even if contractual instruments have provided for specific union rights in favour of the appealing union”.

1.3.2.– Regarding non-manifest groundlessness, the referring judge assumes that the current selective criteria for holding the right to establish an RSA, and for the corresponding enhanced protection, i.e., having signed a collective agreement applied in the production unit or, as a result of this Court's Judgment No. 231 of 2013, having participated in the related negotiation, do not reflect "the sole criterion on which to base differential treatment—capable of justifying the 'practical rationality' of the norm—namely the consent of the workers in favour of a specific union".

Indeed, even "a trade union organization with representative strength may be precluded from participating in negotiations for company agreements," and in that case "it has no coercive instruments to compel the employer party to admit it to negotiations," so that, in this way, the employer is recognized as having "the possibility to condition internal relationships between unions, excluding 'inconvenient' union organizations from the negotiation process, even if they possess effective representativeness".

The case object of the main proceeding bears witness to the irrationality of the current regulatory framework, since, due to the non-signature and non-negotiation of the agreements applied in the company, an organization that, by number of members, percentage of strike participation, number of signatures collected for the election of the RSU, demonstrates the exercise of "real and effective union action to protect workers' interests" in the production unit, is excluded from the enhanced protection connected to the establishment of an RSA.

In the opinion of the Court of Modena, the violation of Article 3 of the Constitution is evident, "under the profile of unequal treatment between unions," exacerbated by the fact that RSAs are now recognized as having extensive powers, including the power to sign proximity contracts on matters of considerable importance, even in derogation of existing regulations and even with *erga omnes* effect.

At the same time, in the opinion of the referring judge, "[t]he disregard for real representativeness makes the breach of the principles of pluralism and freedom of union action under Article 39 of the Constitution manifest."

1.4.– For these reasons, and considering the time elapsed since Judgment No. 231 of 2013 without the legislature having responded to this Court's invitation to develop more suitable rules for access to union protection, the referring judge primarily requests "a demolition judgment," entrusting ordinary judges with the task of filling the legislative gap by employing empirical criteria for measuring union representativeness.

Alternatively, the Court of Modena requests "an additive judgment that allows the entitlement to establish RSAs to be extended also to unions that have acquired 'significant or majority representativeness' at the company level."

2.– The Autonomous and Grassroots Trade Union Organization ORSA - Local Public Transport Sector - Provincial Secretariat of Modena has officially submitted to the proceedings, requesting the acceptance of the question.

On the premise that the *ratio legis* of the challenged norm is "to promote and incentivize the activity of the union as a bearer of the interests of the largest number of workers," the party considers Articles 3 and 39 of the Constitution violated, insofar as "participation in negotiations for the applicable collective agreement in the company is attributed the value of a constitutive element, and not merely symptomatic, of the union's representativeness."

Thus, in this case, the right to the full exercise of union activity through the establishment of an RSA would be curtailed for a union, such as ORSA, which "has been among the top unions in the SETA company in Modena for years in terms of representation of employed workers."

3.– SETA spa has officially submitted to the proceedings, requesting that the question be declared inadmissible or rejected.

As for the inadmissibility of the question, the company objects that the challenge is actually directed not at the statutory norm, but at the aforementioned Judgment No. 231 of 2013, which the referring judge requests to be modified in an expansive sense, contesting the suitability of the criterion, introduced by that judgment, of union participation in negotiations.

The question would also be irrelevant, since ORSA "voluntarily signed a National Protocol" – not even denounced – "in which certain prerogatives were recognized for it, but not the right to establish an RSA."

The referring judge would also have "omitted a thorough examination of the circumstances related to the election of the RSU which, conversely, if adequately carried out, could have led to the resolution of the merits of the dispute without applying the norm deemed unconstitutional."

The inadmissibility of the question would in any case derive from the summary indication of the reasons for the challenge, which moreover involves discretionary choices regarding the configuration of industrial relations, which are the exclusive responsibility of the legislature.

On the merits, the question is not well-founded, given that the current criteria for access to differentiated protection are constitutionally suitable, since a trade union organization "is truly representative if it is able to impose itself as a negotiating counterpart."

The signature of the collective agreement or participation in negotiations is not a merely formal fact, but the expression of the union's ability to qualify itself in the company dynamics precisely because it possesses consent among the workers, thus being "at the same time an indicator of the trade union organization's representativeness and an effect thereof."

The case object of the main proceeding would be emblematic: in the opinion of SETA spa, ORSA has "a 'union force,' but it is a limited force, so much so that it has only signed agreements regulating the attribution of certain limited union prerogatives, while it has never signed any agreement that had a normative content."

The employer party believes that the *petitum* of the Court of Modena must therefore be rejected, both the demolition one, formulated primarily, and the additive one, proposed in the alternative.

A radically ablativa judgment would contradict the previous jurisprudence of this Court, which has subordinated the entitlement to establish an RSA to objective criteria of a contractual nature.

For its part, the additive request would excessively extend the entitlement to establish an RSA, attributing it also to trade union organizations that do not have the strength to impose themselves as contractual counterparts to the employer, to the extent that "the selective function of the norm would be nullified."

4.– The Confederation of Local Public Services CONFSERVIZI - ASSTRA - UTILITALIA and the Transport Association ASSTRA have intervened in opposition.

The intervenors represent that ASSTRA, a member of CONFSERVIZI, is a signatory to the national collective agreement for road and tram workers, has SETA spa among its members, and signed the national protocol of May 4, 2017, with ORSA, in implementation of which a company agreement was subsequently signed on February 5, 2020.

Given that in the aforementioned protocol, together with the implementing agreement, ORSA accepted union agency prerogatives other than the possibility of establishing an RSA, the Court of Modena, by raising the current question of constitutional legitimacy, would have substantially disregarded the contractual framework, "directly and immediately infringing the position of the intervenors."

Hence the request for admission of the act of intervention, which is entirely similar to the act of official submission by the affiliated SETA spa.

5.– Four written opinions of *amici curiae* have been filed, all aimed at accepting the question.

5.1.– On December 16, 2024, the opinion of the Association Comma2 - Work is Dignity was filed.

The brief identifies in the current regulatory context "a logical-legal vicious circle," since collective bargaining is assumed therein as a prerequisite for union agency, whereas it is rather the result thereof.

This would thus allow "the employer to choose its union counterpart, and to exclude the one deemed inconvenient (and in the operating units where it deems it inconvenient)."

The acceptance of the present question would not be prevented by this Court's Judgment No. 231 of 2013, as the latter "concerned the more limited issue of the union that had indeed participated in the negotiations, but did not intend to sign the collective agreement under the conditions imposed by the company, unlike the case at hand, in which the discussion concerns a [trade union organization] that was not even considered for negotiation."

5.2.– On December 17, 2024, the joint opinion of the Grassroots Union of Private Work - USB Lavoro privato and the Basic Unitary Confederation - CUB was filed.

It assumes the irrationality of the current selective model, according to which it could happen that "unions with entitlement have no representativeness, while the union with maximum representativeness has no entitlement."

This would result in "a 'neo-corporatist' conception of union relations in the company, under which the employer chooses and accredits the union organization admitted to the legal protections," so that "the union is improperly pushed towards obligatorily concertative, and therefore necessarily accommodating, positions, with the aim of being accredited with the employer party and thus succeeding in 'surviving'."

5.3.– On December 20, 2024, the opinion of the Italian General Confederation of Labour - CGIL was filed.

It shares the constitutional necessity of including the criterion indicated by the referring judge, or "significant or majority representativeness at the company level," in the body of the challenged norm, a notion that CGIL deems sufficiently "anchored to social typicality data."

The opinion suggests taking as a reference the Consolidated Text on Representation of January 10, 2014, between Confindustria and CGIL, CISL, and UIL, according to which, also for the purposes of recognizing union rights, organizations that have achieved 5 percent representation are considered participants in negotiations.

Since this is a parameter already used in the public sector, pursuant to Articles 42 and 43 of Legislative Decree March 30, 2001, n. 165 (General provisions on the organization of employment relationships with public administrations), its reference would have the positive effect of "linking" Article 19 of the Workers' Statute "to the inter-union system and, even before that, to the achievements of the union system in public administrations."

According to CGIL, this does not restore the original criterion of letter a) of the first paragraph of Article 19 of the Workers' Statute, repealed by referendum, because that criterion measured representativeness at the national and inter-category level, whereas now a parameter "calibrated to the company level because reasonably related only to the purposes of entitlement to establish an RSA" would be introduced.

5.4.– On December 24, 2024, the opinion of the Italian Federation of Journalism, Publishing, and Communication - FIGEC was filed.

A newly established union, FIGEC asks this Court to evaluate the challenged norm also "insofar as it does not recognize representation in favour of recently established unions that, although unable to sign previous employment contracts because they had not yet been established at the time, have nevertheless amply demonstrated that they possess all the legal requirements for their official recognition based on the number of members and their presence in the company and in the territory."

5.5.– By Presidential Decree of July 10, 2025, the first three opinions were admitted; by Decree of July 29, 2025, the FIGEC opinion was also admitted.

6.– On September 16, 2025, SETA spa and the intervening parties in opposition CONFSERVIZI and ASSTRA filed explanatory briefs.

The briefs, being of a similar nature, reiterate the arguments set out in the initial submissions, in support of the inadmissibility of the question, and in any case of its lack of foundation.

They insist on the thesis that the failure to participate in contractual negotiations highlights the lack of representativeness, since a trade union organization "is truly representative if it is able to impose itself as a negotiating counterpart thanks to the strength of its union action"; moreover, the notions of majority or significant representativeness, to which the referring judge refers, remain "undefined as they lack measurement tools," so that accepting the *petitum* "would lead to judicial interference in the dynamics of union relations, which have always been regulated on the basis of the power relations operating within the workplaces."

7.– On September 17, 2025, ORSA also filed an explanatory brief.

Reiterating the arguments already made in support of the admissibility and foundation of the question, the party reiterates that the norm in question, by conditioning the promotional protection of workers' organizations on their admission to the negotiation table, "effectively allows the employer to choose its union counterpart and, at the same time, prevents the appointment of RSAs for excluded unions."

The brief therefore suggests the possibility that this Court "recognizes the presence in the legal system of a potential negotiating obligation on the part of the employer—and consequently a virtual union right to negotiate—towards representative unions, albeit only for the purpose of entitlement to establish RSAs."

ORSA informs that, by a note of July 21, 2025, attached to the brief, ASSTRA has withdrawn from the *inter partes* protocol, which ASSTRA itself referred to in its defense.

Considered in Law

1.– With the order indicated in the heading (reg. ord. no. 220 of 2024), the Court of Modena, acting as Labour Judge, raised a question of constitutional legitimacy of Article 19, first paragraph, of the Workers' Statute, with reference to Articles 3 and 39 of the Constitution.

In the opinion of the referring judge, the challenged norm violates the invoked parameters insofar as it does not provide that RSAs may be established within trade union organizations that, although they have not signed a collective agreement applied in the production unit, nor participated in the related negotiation, are nevertheless, within that unit, "most or significantly representative."

1.1.– Being seized of an appeal for the repression of anti-union conduct, filed by ORSA – local public transport, against the refusal by the employer SETA spa to establish an RSA in the Modena production unit, the *judge a quo* sets out the factual circumstances which, in its opinion, highlight the significant representativeness of the appealing organization within that production unit, with particular reference to the number of members among the workers.

1.2.– The Court of Modena maintains that the acceptance of the question would reveal the alleged anti-union nature of the employer's refusal, thereby ensuring the relevance of the constitutional legitimacy incident.

On the merits, the referring judge assumes that the current regulatory framework is conducive to instrumental unequal treatment among unions, with a consequent violation of the pluralistic principle, since it would allow the employer to deny the promotional protection of the RSA to any unwanted union, excluding it both from signing the collective agreement applied in the production unit and from participating in the corresponding negotiations, thus excluding it from both titles that, under the challenged provision, entitle the union to access that protection.

For these reasons, the Court of Modena requests a radically ablativa judgment, so that ordinary judges, for the purposes of establishing the RSA, may assess effective union representativeness through empirical criteria; alternatively, it requests an additive judgment, which extends entitlement to establish the RSA in favour of unions that, although not having taken part in contractual activity, possess "significant or majority representativeness" at the company level.

2.– Preliminarily, the intervention in opposition filed by CONFSERVIZI and ASSTRA must be declared admissible.

In fact, the intervenors are interested in the application of the national protocol of May 4, 2017, as stipulated by ASSTRA, a member of CONFSERVIZI; this protocol, as well as the company implementing agreement of February 5, 2020, are discussed in the present proceedings, in relation to an exception of inadmissibility raised by the SETA spa party, affiliated with ASSTRA.

Therefore, CONFSERVIZI and ASSTRA hold a qualified interest, directly and immediately related to the relationship alleged in the proceedings, which legitimizes their intervention in the incidental judgment, pursuant to Article 4, paragraph 3, of the Supplementary Provisions for proceedings before the Constitutional Court.

3.– Before examining the exceptions of inadmissibility and assessing the merits, a brief illustration of the events concerning the challenged provision and the constitutional jurisprudence developed in relation thereto must precede.

3.1.– As this Court has highlighted, the protection granted to trade union organizations by the Workers' Statute is articulated "on two levels," one common relating to freedom guarantees, and a second "promotional" level, which implies a selection based on "effective representativeness" (Judgment No. 30 of 1990).

The first level includes protection against discriminatory acts (Articles 15 and 16), the prohibition of company-controlled unions (Article 17), and the repression of anti-union conduct (Article 28).

The second level is concentrated in Title III of the Statute, and is centred precisely on Article 19, which opens the same Title, which already signals that the RSA is the driving force behind the so-called enhanced or privileged protection.

In fact, the RSA convenes assemblies and referendums in the production unit (Articles 20 and 21), has the right to post notices in the unit (Article 25), has suitable premises for its activity there (Article 27), and its leaders cannot be unilaterally transferred and benefit from paid and unpaid leave (Articles 22, 23, and 24).

Privileged protection is subject to selective enjoyment: "supportive rules for union action in production units, as they supersede the constitutional guarantee of union freedom, may well be reserved to certain unions identified by criteria chosen at the discretion of the legislature within the limits of rationality" (Judgment No. 244 of 1996); "[t]he difference between the two levels of protection mentioned above [...] consists, as stated, in the different and higher degree of effective representativeness that the organizations admitted to the enhanced protection under Title III of the Statute must demonstrate" (Judgment No. 30 of 1990).

The legal selection criterion is not available to the parties; rather, it is an "unwaivable criterion," because "pact-based access to support measures offers no objectively verifiable guarantee, as it is structurally linked solely to the employer's accreditation power" (Judgment No. 30 of 1990).

If this power were able to affect the legal criterion, the employer could "influence the free union dialectic within the company, favouring those organizations that pursue a claim policy less unwelcome to it" (again Judgment No. 30 of 1990).

3.2.– The original text of Article 19, first paragraph, of the Workers' Statute contained two distinct criteria for entitlement to establish RSAs.

These could, in fact, be established, at the initiative of the workers, within: a) the organizations affiliated with the most representative confederations at the national level; b) the organizations, not affiliated with such confederations, that were nevertheless signatories to collective agreements, national or provincial, applied in the production unit.

Through the criterion in letter a), the legislature presumed that an organization affiliated with a most representative national confederation was also representative at the company level (in this sense, "presumed representativeness" was spoken of); through the criterion in letter b), the union's representativeness was ascertained through a negotiation index, namely the stipulation of a collective agreement applied in the production unit, albeit an agreement of at least provincial level, thus excluding the company agreement.

3.3.– As a result of Article 1 of Presidential Decree of July 28, 1995, n. 312, concerning "Repeal, following a popular referendum, of letter a) and partially of letter b) of Article 19, first paragraph, of Law of May 20, 1970, n. 300, on the establishment of company trade union representatives, as well as deferral of the entry into force of the repeal," the first paragraph of Article 19 of the Workers' Statute is formulated such that RSAs "may be established at the initiative of the workers in every production unit, within: trade union organizations that are signatories to collective labour agreements applied in the production unit."

With the removal of the confederation affiliation criterion, the signature criterion remained, extended to company agreements by the omission of the words "national or provincial."

Incidentally, Article 1 of Presidential Decree no. 312 of 1995 also repealed letter b) itself, and obviously, since letter a) no longer exists: in challenging, literally, letter b) of the first paragraph of Article 19 of the Workers' Statute, the present referring judge thus falls into a formal inaccuracy, since he is actually challenging the first paragraph of Article 19 of the Workers' Statute, which no longer has a letter distinction.

3.4.– As this Court had already emphasized, the criterion of the contract signature is "an empirical verification mechanism of representativeness in the individual production context" (Judgment No. 30 of 1990).

Therefore, it should not be understood in a formal sense, but as an indicator of effective representativeness, manifested through that typical act of union action which is the stipulation of the collective agreement.

"Mere formal adherence to a contract negotiated by other unions is therefore not sufficient, but active participation in the process of forming the contract is required," and "neither is the stipulation of any contract sufficient, but it must be a normative contract that regulates labour relations in an organic manner, at least for an important sector or institute of their discipline" (Judgment No. 244 of 1996).

3.5.– With Judgment No. 231 of 2013, this Court addressed a case that, regulated based on the signature criterion, would have had an outcome misaligned with constitutional principles.

It was in fact a workers' organization of proven representativeness which, despite having actively participated in the negotiations for the conclusion of the collective agreement, finally decided not to sign it, thus remaining deprived of union agency rights, unlike the other unions, which did reach the signature.

This Court noted that, "at the moment when it fails in its function of selecting subjects based on their representativeness and, through a sort of *heterogenesis of ends*, instead transforms into a mechanism for excluding a subject who is most representative at the company level or in any case significantly representative, such that its exclusion from negotiations cannot be justified, the criterion of signing the agreement applied in the company inevitably clashes with the precepts of Articles 2, 3, and 39 of the Constitution."

It further observed that the signature criterion, applied in absolute terms, is subject to deviations and abuses, as it may result in "an improper form of sanction for dissent," to the point of becoming an "illegitimate *accord ad excludendum*."

It therefore declared the unconstitutionality of Article 19, first paragraph, of the Workers' Statute, "insofar as it does not provide that the company trade union representative body may also be established within trade union organizations that, although not signatories to the collective agreements applied in the production unit, have nevertheless participated in the negotiations relating to the same agreements as representatives of the company's workers."

The aforementioned judgment clarifies that the "additive intervention" was necessarily limited by the *petitum*, or limited to the specific case of the lack of contractual signature, without being able to extend to the different case of the "lack of negotiation activity."

With regard to this further hypothesis, this Court had, moreover, hypothesized "a multiplicity of solutions," recognizing that the choice between them belonged to the legislature.

3.6.– The case under review concerns precisely a lack of preliminary negotiation activity preceding the signature, realized by the alleged exclusion of a workers' organization—of which significant representativeness is assumed—not only from the signing of the contract, but, upstream, from the negotiation table.

4.– The party SETA spa (and with it the intervening parties in opposition CONFSERVIZI and ASSTRA) objected to the inadmissibility of the question in question, under distinct profiles, all unfounded.

4.1.– First, it objected that the question, concerning the first paragraph of Article 19 of the Workers' Statute in the text resulting from the cited Judgment No. 231 of 2013, actually concerns not the statutory norm, but a judgment of this Court.

However, it must be noted that the already indicated difference in facts excludes the alleged overlap, since the cited precedent concerns the "negotiating and non-signing" union, while the current question concerns the "non-negotiating and non-signing" union.

4.2.– Another profile of inadmissibility refers to the circumstance that ORSA claims a right, that of establishing the RSA, which it allegedly waived in the contractual setting, specifically in the protocol of May 4, 2017.

However, as noted above in the illustration of this Court's jurisprudence, the legal criterion for entitlement to establish an RSA is mandatory (Judgment No. 30 of 1990).

Therefore, setting aside the issue of the subsequent withdrawal by the employer from the said Protocol, it is necessary that such a contractual source is already *a priori* unsuitable to alter the legal criterion, which, moreover, does not exclusively concern the union, but also, and primarily, the workers.

It is not superfluous to recall that the establishment of the RSA does not occur at the initiative of the union, but, as the challenged norm establishes, "within" the union, but "at the initiative of the workers"; and this initiative constitutes a requirement for legitimacy (Court of Cassation, Labour Section, judgment of June 16, 2000, no. 8207).

4.3.– A third profile of inadmissibility relates to the omission to elect the RSU, the circumstances of which should have led the referring judge not to raise the question, which is irrelevant.

It is not entirely clear why the failure to elect the RSU should preclude ORSA from establishing the RSA: if the exception is to be referred to the safeguard clause of Article 8 of the Inter-confederation Agreement for the establishment of unitary trade union representatives of December 20, 1993, and even assuming that this source is subjectively effective for ORSA, the lack of foundation of the exception would follow from the fact that this clause entails the waiver of establishing RSAs only as a consequence of participation in the RSU election, an election which, in this case, did not take place.

4.4.– The fourth and final profile of inadmissibility concerns the alleged summary nature of the challenge, which touches upon the sphere of legislative discretion.

In reality, the question is well defined by the referral order of the Court of Modena, nor does legislative discretion pose an insurmountable obstacle if it is exercised in violation of constitutional principles, as demonstrated by the additive judgment in Judgment No. 231 of 2013.

This judgment, as recalled above, reserved to the legislature the choice between multiple options for the hypothesis of a lack of negotiation activity, but did not exclude that in such a hypothesis a constitutional breach could be found, nor that any legislative orientations could indicate, regarding said breach, a path of return to legitimacy.

5.– On the merits, the question is well-founded.

5.1.– It underlies the complex dialectic, a crucial junction of industrial relations law, between the balance of power and pluralistic demands.

5.1.1.– The defenses of the submitting party SETA spa and the intervening parties in opposition are inspired by the logic of the balance of power between the company and the union, and the connected principle of mutual recognition.

According to this approach, there would be no union representativeness outside of negotiation indices, because a union that fails to get admitted to the negotiation table, and therefore fails to be recognized by the company as a counterpart, would, for this reason alone, be a non-representative union, lacking adequate consent among the workers.

5.1.2.– Conversely, the thesis set out by the referring judge, and taken up by both the submitting party ORSA and the *amici curiae*, denounces the compromise of union pluralism as a reflection of an instrumental exercise of the so-called employer power of accreditation.

The negotiation indices, such as that of contract signing, as well as that of participation in negotiations, would show their inadequacy whenever the company strategically selects trade union organizations, admitting them to negotiations and signature, or excluding them from the same, not based on their effective consent among the workers, but on the basis of the different degree of claim of their respective platforms.

5.2.– The jurisprudence of this Court has developed in a perspective of mediation between these antithetical visions.

Although the dynamics of industrial relations cannot be abstracted from the tensions naturally inherent in the relationship between social partners, they cannot be tainted by instrumental conduct of one party to the detriment of the other.

5.2.1.– With Judgment No. 244 of 1996, this Court therefore ruled out that the criterion of contract signature, *per se*, violates Articles 3 and 39 of the Constitution, since the signature, understood not as "mere formal adherence to a contract negotiated by other unions," but as the outcome of "active participation in the process of contract formation," corresponds to "the typical instrument for measuring the strength of a union, and consequently its representativeness, within the union system," indeed demonstrating "the union's ability to impose itself on the employer, directly or through its association, as a contractual counterpart."

5.2.2.– Judgment No. 231 of 2013 focused on the risks of the employer's accreditation power, as manifested throughout the negotiation process, within which unions could be "favoured or discriminated against on the basis not of the relationship with the workers, which refers to the objective (and value) data of their representativeness and, therefore, justifies participation in the negotiation itself, but of the relationship with the company, due to the conditioning significance attributed to the contingent fact of having consented to the conclusion of a contract with the same."

5.3.– In light of this ruling, the present question is then resolved on the level of verifying the suitability of the negotiation criterion to prevent any distortion that may falsify its practical rationality.

Under the current state of the law, this suitability is not assured in the private law union system, unlike what happens in the realm of contractualized public employment.

5.3.1.– Pursuant to Articles 42 and 43 of Legislative Decree no. 165 of 2001, the Agency for Negotiation Representation of Public Administrations (ARAN), or the institutional representative of the public employer party, admits to national collective bargaining those trade union organizations that have a representativeness of no less than 5 percent in the sector or area, considering for this purpose the average between the associative data (membership fees issued by workers) and the electoral data (votes obtained in RSU elections), from which derives the entitlement to establish an RSA for the trade union organization admitted to negotiation on this percentage basis.

In line with the principles of good administration and impartiality set out in Article 97 of the Constitution, the selection of negotiating counterparts, and the consequent access to promotional protection, does not therefore occur at the discretion of the public administration, the employer, but by virtue of objective measurement, which uses a system of certification of union representativeness, safeguarded by the parity committee referred to in paragraph 8 of the aforementioned Article 43.

5.3.2.– The need to objectify the entry criterion for second-level union protection was also felt in the private sector, finding a point of composition in the inter-confederation system, with the Consolidated Text on Representation, signed on January 10, 2014, by CONFINDUSTRIA, CGIL, CISL, and UIL.

With evident reference to the legal model of contractualized public employment, the Consolidated Text provided for a system of representativeness certification, the impartiality of which is guaranteed by the participation of the National Institute for Social Security (INPS), for the detection of memberships, and the National Council for Economics and Labour, for the weighting of data, on the basis of which the workers' organization that reaches the threshold of 5 percent, as the average between associative data and electoral data, is considered a participant in contractual negotiations, for the purposes of entitlement to the union rights referred to in Articles 19 et seq. of the Workers' Statute.

5.3.3.– Apart from the specificity of the legal regulation of public employment (characterized by the peculiar configuration of social actors), and disregarding the subjective limits of effectiveness of the contractual self-regulation (which is largely unimplemented, however), it remains that, in private law union relations external to the inter-confederation system, such as the one in question, the admission of a workers' organization to negotiations, and therefore to the prerogatives of Title III of the Statute, is conditioned by the discretionary choices of the employer party.

Therefore, in this area, the only safeguard is that of common law, namely the canon of objective good faith, established by Article 1337 of the Civil Code, in the conduct of negotiations and in the formation of the contract, which is limited to guaranteeing, with its own remedial apparatus, that there is no abuse of contractual freedom with possible violation of union freedom.

5.3.4.– The discretion of the private employer in selecting the negotiating counterpart is moreover guaranteed as a manifestation of the freedom of the contracting party.

Indeed, according to constant case law of the Court of Cassation, such an employer is not obligated to negotiate with all trade union organizations, as the principle of equal treatment among them does not apply, so that an anti-union conduct, repressible under Article 28 of the Workers' Statute, can only be configured when the company makes distorted use of negotiating freedom, objectively discriminatory, productive of a perceptible harm to the union freedom of the excluded organization (ex multis, Court of Cassation, Labour Section, judgments of June 10, 2013, no. 14511, and January 9, 2008, no. 212).

In the gap between the company's freedom to negotiate with whom it wishes and the right of the representative union to access the legal prerogatives, the unconstitutional gap in protection, denounced by the present referring judge, opens up.

As this Court had occasion to point out already in Judgment No. 231 of 2013, the workers' organization, "if it finds, upstream, by reason of its acquired representativeness, the protection of Article 28 of the Statute in the event of a denied, unjustified, access to the negotiation table, then encounters, downstream, the legal effect of exclusion from the union prerogatives that the challenged provision automatically links to its decision not to sign the contract."

6.– If the negotiating freedom of the private employer, in the absence of legal or contractual obligations to negotiate, cannot be compressed, as it is a reflection of the freedom of economic initiative, the exercise of the same freedom cannot result in a surreptitious obstacle to the enjoyment of the agency measures that the law grants to representative workers' organizations.

The *ratio decidendi* expressed in Judgment No. 231 of 2013 applies, transposed from the criterion of contract signature to the criterion of participation in negotiations: when it does not realize the function of selecting subjects based on their effective representativeness, but instead transforms into a mechanism for excluding subjects who are effectively representative, the negotiation criterion collides, as the signature criterion collided, with the principles of reasonableness and pluralism, established by Articles 3 and 39 of the Constitution.

The risk, just signaled, that the negotiation criterion becomes an instrument aimed at exclusion can manifest itself in the most diverse ways, more or less exposed, not only because formal access to the negotiation table is denied to an even highly representative union, but also because an unacceptable and non-negotiable platform is opposed to it, or the opening of negotiations with any union is refused; in the latter case, the harm is not inflicted on a specific workers' organization, but on all collectively, through the compromise of the RSA institution.

7.– This Court is aware that, detached from the negotiation indices of signature and negotiation, or having reduced them to their exact presumptive and non-constitutive function, union representativeness presents itself in an abstract form, and therefore requires a measurement criterion.

However, this does not concern the existence of the breach, which has already been ascertained, but the identification of the remedy, which, in order to respect legislative discretion, must correspond to a parameter found in the regulatory framework.

7.1.– In this regard, the Court of Modena first evokes a ruling that eliminates any selection requirement in workers' access to the possibility of establishing an RSA within a union, leaving the task of identifying single cases of effective representativeness, capable of legitimizing the initiative, to the work of the judiciary.

This solution does not appear to be in line with the jurisprudence of this Court on the point previously mentioned, which has highlighted that access to the protection of Title III of the Workers' Statute ("second level") evokes the need to identify selection criteria; on the other hand, the criterion resulting from the 1995 referendum consultation and the addition made by Judgment No. 231 of 2013, if not characterized by discriminatory elements, certainly constitutes a suitable index of representativeness.

8.– The Court of Modena, alternatively, requests that the selection criteria provided for in Article 19, first paragraph, of the Workers' Statute be supplemented, invoking, as alternatives to each other, the concepts of "majority" representativeness and "significant" representativeness.

However, these are concepts that are unused or at least obsolete in legislative sources (moreover, majority representativeness was affected by the referendum outcome), while the legislature has increasingly resorted to the parameter of comparative representativeness in recent years.

8.1.– Elevated to a model by Article 2, paragraph 1, letter m), of Legislative Decree of September 10, 2003, n. 276 (Implementation of delegations on employment and the labour market, pursuant to Law of February 14, 2003, n. 30), the figure of the comparatively most representative unions at the national level is the reference point for regulatory evolution, especially in the field of collective bargaining, also in order to counteract dumping phenomena induced by the practice of so-called "pirate contracts."

Trade union organizations comparatively most representative at the national level are referred to, among others, by Article 8, paragraph 1, of Decree-Law of August 13, 2011, n. 138 (Further urgent measures for financial stabilization and development), converted, with amendments, into Law of September 14, 2011, n. 148, relating to proximity collective bargaining (on this topic, see this Court's Judgment No. 52 of 2023), and Article 51, paragraph 1, of Legislative Decree of June 15, 2015, n. 81 (Organic regulation of employment contracts and revision of regulations regarding duties, pursuant to Article 1, paragraph 7, of Law of December 10, 2014, n. 183), concerning contractual integration of the contract type.

More recently, this reference is also found in Article 11, paragraph 1, of Legislative Decree of March 31, 2023, n. 36 (Public contracts code implementing Article 1 of Law of June 21, 2022, n. 78, delegating the Government in matters of public contracts), regarding the collective agreement applicable to personnel employed in public works, services, and supplies that are the subject of public contracts and concessions, and in Article 2, paragraph 1, letter e), of Law of May 15, 2025, n. 76 (Provisions for workers' participation in the management, capital, and profits of companies), concerning workers' participatory rights.

8.2.– The parameter of comparative representativeness, due to the selective character that qualifies it and the national basis of its perimeter, might be restrictive, especially for an institution such as the RSA, which operates in a typically company-based dimension.

However, this Court can only settle, for the purpose of *reductio ad legitimitatem*, on a solution supported by precise regulatory findings, already present in the legal system.

8.3.– Concerning this parameter, to which this Court now refers in an interim capacity pending a future legislative review, it is worth highlighting some aspects that contribute to supporting its relevance and adequacy.

Firstly, it must be noted that the present solution, although referring to a national standard, does not constitute a re-edition of letter a) of the first paragraph of Article 19 of the Workers' Statute, repealed by referendum, given that that letter referred to confederation affiliation, thus to a different and peculiar criterion.

Furthermore, it must be noted that the legislature itself often links the comparatively most representative trade unions at the national level with "their trade union representatives operating in the company" (Article 8, paragraph 1, of Decree-Law no. 138 of 2011, as converted) or with "their company trade union representatives" (Article 51, paragraph 1, of Legislative Decree no. 81 of 2015 and Article 2, paragraph 1, letter e, of Law no. 76 of 2025).

Finally, recalling that the title of entitlement to establish an RSA and the title of entitlement to appeal for repression of anti-union conduct do not coincide due to the "national" requirement, laid down for the latter by Article 28, first paragraph, of the Workers' Statute (Court of Cassation, Labour Section, judgment of July 20, 2017, no. 17915), it can be found, in the present reference to the criterion of comparability on a national basis, a useful alignment of titles, always pending a systematic intervention by the legislature, extended to the procedural aspects of the matter.

9.– The unconstitutionality of Article 19, first paragraph, of the Workers' Statute is therefore declared, insofar as it does not provide that company trade union representatives may be established at the initiative of the workers in every production unit also within trade union organizations that are comparatively most representative at the national level.

It is incumbent upon the legislature to carry out an organic rewriting of the challenged provision so that it, after being profoundly affected by the referendum outcome, and subsequently amended by this Court, may outline a regulatory framework capable of enhancing effective company representativeness as a criterion for access to the promotional protection of workers' organizations.

for these reasons

THE CONSTITUTIONAL COURT

1) declares admissible the intervention filed by the Confederation of Local Public Services CONFSERVIZI - ASSTRA - UTILITALIA and by the Transport Association ASSTRA;

2) declares the unconstitutionality of Article 19, first paragraph, of Law of May 20, 1970, n. 300 (Provisions on the protection of the freedom and dignity of workers, trade union freedom and trade union activity in workplaces, and provisions on employment placement), insofar as it does not provide that company trade union representatives may be established at the initiative of the workers in every production unit also within trade union organizations that are comparatively most representative at the national level.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 8, 2025.

Signed:

Giovanni AMOROSO, President

Stefano PETITTI, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on October 30, 2025