JUDGMENT NO. 197
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 delivered the following
JUDGMENT
in the constitutional legitimacy proceeding concerning article 42, paragraph 5, of Legislative Decree No. 151 of March 26, 2001 (Consolidated Text of legislative provisions on the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of March 8, 2000), in the text preceding the legislative amendment introduced by article 2, paragraph 1, letter n), of Legislative Decree No. 105 of June 30, 2022, enacting "Implementation of Directive (EU) 2019/1158 of the European Parliament and of the Council of June 20, 2019, on work-life balance for parents and carers and repealing Council Directive 2010/18/EU”, promoted by the Court of Cassation, Labour Section, in the proceedings between the National Institute for Social Security (INPS) and A. R., with order of December 2, 2024, registered as no. 43 of the ordinary register of rulings of 2025 and published in the Official Gazette of the Republic no. 12, first special series, of 2025.
Having seen the statements of constitution of INPS and A. R., as well as the act of intervention of the President of the Council of Ministers;
having heard in the public hearing of November 4, 2025, the Reporting Judge Maria Rosaria San Giorgio;
having heard the lawyers Alberto Guariso for A. R., Samuela Pischedda, Dario Marinuzzi, and Mauro Sferrazza for INPS, as well as the State attorney Paolo Gentili for the President of the Council of Ministers;
deliberated in the council chamber of November 4, 2025.
Having considered the facts
1.– With order of December 2, 2024, registered as no. 43 of the ordinary register of rulings of 2025, the Court of Cassation, Labour Section, raised questions of constitutional legitimacy concerning article 42, paragraph 5, of Legislative Decree No. 151 of March 26, 2001 (Consolidated Text of legislative provisions on the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of March 8, 2000), in the text preceding the legislative amendment introduced by article 2, paragraph 1, letter n), of Legislative Decree No. 105 of June 30, 2022, enacting "Implementation of Directive (EU) 2019/1158 of the European Parliament and of the Council of June 20, 2019, on work-life balance for parents and carers and repealing Council Directive 2010/18/EU”, with reference to Articles 2, 3, and 32 of the Constitution, "insofar as it does not include the partner in a de facto cohabitation among the beneficiaries of the extraordinary leave for the assistance of a family member with a severe disability”.
The referring panel reports that it is called to rule on the appeal lodged by the National Institute for Social Security (INPS) against the judgment of the Court of Appeal of Milan which, based on an "evolutionary interpretation” of the contested provision, upheld the decision of the court of first instance to grant A. R.’s claim to have his right to benefit from the extraordinary leave provided for in the aforementioned article 42, paragraph 5, recognized, resulting in the related allowance, for the purpose of assisting a person with a "severe” disability, even in relation to the period during which he was in a de facto cohabitation with her before entering into a marriage with her. With regard to the period from July 27 to November 30, 2020, INPS rejected the claim (later granted with reference to the period subsequent to the marriage and until the woman's death) precisely on the ground of the absence of the marital bond, as the partner in a de facto cohabitation was not included among the subjects listed in the same provision, in the text applicable ratione temporis, among the beneficiaries of the requested provision, which was subsequently extended, with the aforementioned legislative amendment, to this category.
Given the foregoing, the referring court notes that, in the absence of a decision of acceptance by this Court, "the action brought should undoubtedly be dismissed”.
The contested provision, as formulated prior to the 2022 amendment – it is noted in the referral order – "lists a closed set of subjects entitled to receive the benefit” and this would preclude the practicality of a constitutionally oriented interpretation, as would be supported "by the four rulings of the Constitutional Court that have expanded the number of subjects entitled to receive the benefit” (the judgments of this Court No. 232 of 2018, No. 203 of 2013, No. 19 of 2009, and No. 233 of 2005 are cited).
The referring court takes into account Order of this Court No. 158 of 2023, by which, regarding a similar issue, the referring judge was requested to reassess the relevance and non-manifest unfoundedness thereof, in consideration of the subsequent law constituted by Legislative Decree No. 105 of 2022, whose article 2, paragraph 1, letter n), reformulated article 42, paragraph 5, of Legislative Decree No. 151 of 2001 by equating, for the purposes of enjoying the extraordinary leave for assistance of a family member with a severe disability, the partner in a de facto cohabitation to the cohabiting spouse. However, according to the referring panel, the changed regulatory framework does not allow for an "evolutionary interpretation” of the provision in the text prior to the reform "so as to deem it to include the equating of the partner in a de facto cohabitation […] since a time prior to the subsequent amendment”. In this regard, an extensive excerpt from the explanatory memorandum to Legislative Decree No. 105 of 2022 is cited, from which it appears that the legislator pursued a "clarifying intent” of the previous discipline only with reference to de facto unions "and not also to cohabitations”, which were inserted into the provision of article 42, paragraph 5, for "respect for the standard of reasonableness”. The 2022 amendment, ultimately, did not enhance cohabitation per se, but continued "that work of specific broadening of protection and rights for the disabled person” already initiated with Law No. 76 of 2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitations).
Rather than an "autonomous recognition of the de facto family”, there is, therefore, "a constant and progressive recognition of the catalogue of rights of the partner in a de facto cohabitation”, in a context where "pre-marital cohabitation is now an increasingly rooted custom”, having "equal dignity” compared to marital cohabitations and which jurisprudence should address.
The standard of "historical-evolutionary interpretation” cannot assist the interpreter in solving the current issue, having regard to the "limited framework of Legislative Decree No. 105 of 2022”, aimed at harmonizing the domestic law – through the delegation law of April 22, 2021, No. 53 (Delegation to the Government for the transposition of European directives and the implementation of other acts of the European Union - European Delegation Law 2019-2020) – Directive (EU) 2019/1158 of the European Parliament and of the Council of June 20, 2019, on work-life balance for parents and carers, and which repealed Council Directive 2010/18/EU.
The aforementioned directive, in fact, although intended to ensure greater protection of the right to health of the disabled person, does not contain "references suitable to limit, unlimitedly and indefinitely, in national legislation, since a time prior to the amendment, the protection of the caregiver and assistant in de facto cohabitation and to equate the partner in a de facto cohabitation to the spouse and the partner in a civil union”. Ultimately, there is a lack of a primary normative source in the legal system that extends the provisions established in favor of spouses to the partner in a de facto cohabitation, unlike what happened (with article 1, paragraph 20, of Law No. 76 of 2016) for the partners in a civil union.
Regarding the non-manifest unfoundedness, the referring panel observes that the contested provision, in the text applicable ratione temporis, "violates the constitutional protection afforded to the aggregation constituted by de facto cohabitation and therefore by the de facto family, as a community of affection in which the individual develops their personality in the guarantee of inviolable rights”.
The right to psychophysical health (Article 32 of the Constitution) of the "severely disabled person”, to be understood as an "inviolable right of man under Article 2 of the Constitution”, would be unreasonably curtailed (Article 3 of the Constitution), by limiting "assistance within their own community of life based on a regulatory data supplemented ‘by the mere fact of marriage’ (Article 29 of the Constitution)”. Various regulatory indicators contribute to the "preeminent assessment” of the de facto family: the referring court cites, in this regard, the rules on parental responsibility in proceedings concerning children born outside of marriage (Articles 337-bis et seq. of the Civil Code), the elimination of distinctions between legitimate children and natural children (Law No. 219 of December 10, 2012, "Provisions regarding the recognition of natural children”), the institution of shared custody of children valid also for parents not bound by marriage (Law No. 54 of February 8, 2006, "Provisions on parental separation and shared custody of children”) and the rules that allow the appointment, as a support administrator, also of the person permanently cohabiting with the beneficiary (Law No. 6 of January 9, 2004, "Introduction into Book One, Title XII, of the Civil Code of Chapter I, relating to the establishment of support administration and amendment of Articles 388, 414, 417, 418, 424, 426, 427 and 429 of the Civil Code regarding interdictions and incapacitation, as well as related implementation, coordination and final provisions”).
The referral order recalls Judgment of this Court No. 213 of 2016, which recognized the partner in a de facto cohabitation the paid monthly leave referred to in Article 33 of Law No. 104 of February 5, 1992 (Framework Law for the assistance, social integration and rights of persons with disabilities), necessary to prevent the unreasonable compression of the right of the disabled person to receive assistance within their community of life, constitutionally protected. Furthermore, the case law of the European Court of Human Rights is recalled, which, since the judgment of June 13, 1979, Marckx v. Belgium, has extended the notion of family life, under Article 8 of the European Convention on Human Rights (ECHR), also to families not born from marriage. In this regard, the referring court provides a rich overview of the rulings of the Strasbourg Court that have followed this precedent, up to the most recent decision of the Fourth Section, judgment of July 21, 2015, Oliari and Others v. Italy, which noted, the referring judge reports, "omissions by the Italian Government […] for not having fulfilled the positive obligation to ensure same-sex couples the availability of a specific instrument/institution for the protection of their rights and duties”.
The aforementioned constitutional and European case law, therefore, while acknowledging the legislator's discretion in providing for different thresholds of protection for bonds deriving from marriage and de facto cohabitation, emphasized "that no situation expressing the choice of a different family model can remain unprotected”. The legislator is called upon to strike a balance between opposing values, on the assumption that the psychophysical health of the disabled person, as a fundamental right, "is among the inviolable rights” under Article 2 of the Constitution.
Moreover, it is emphasized that the fundamental role played by the family in the care and assistance of persons with disabilities has also been affirmed by this Court (Judgments No. 42 of 2024 and No. 203 of 2013 are cited), and it is recalled that, with article 1, paragraph 255, of Law No. 205 of December 27, 2017 (State Budget for the financial year 2018 and multi-year budget for the three-year period 2018-2020), a definition of family caregiver was introduced at the legislative level, referring to the person who takes care of the partner in a de facto cohabitation pursuant to Law No. 76 of 2016. Moreover, the "right to found a family”, distinct from the "right to marry”, is guaranteed by European Union law based on the wording of Article 8 of the Charter of Fundamental Rights of the European Union (CFR), which keeps the two aspects separate. The same Strasbourg judges, with the decisions already indicated by the referring panel, have "evolutionarily interpreted the notion of family life under Article 8 ECHR”, having included therein, in addition to the marriage relationship in the strict sense, also kinship between grandparents and grandchildren and between uncles and nieces, provided that the existence of affective personal bonds is proven, and also the relationship of a same-sex couple.
2.– By an act filed on March 31, 2025, INPS constituted itself in the present proceedings, requesting that the raised issues be declared inadmissible or manifestly unfounded.
Reconstructing the relevant regulatory framework, characterized by an evolution that, under Law No. 76 of 2016 – it is noted in the brief – ended up distinguishing civil unions from de facto cohabitations, qualifying only the former as social formations pursuant to Articles 2 and 3 of the Constitution – the Institute observes that even the amendment introduced by article 2, paragraph 1, letter n), of Legislative Decree No. 105 of 2022 did not recognize de facto cohabitation as a social formation protected by Article 2 of the Constitution, having limited itself to equating the partner in a de facto cohabitation to the spouse for the purposes of enjoying the extraordinary leave, based on a discretionary choice guided by a "criterion of reasonableness”.
Regarding the relevance of the issues, INPS deems it necessary to emphasize that what is requested to this Court would represent "a substitute intervention […] in relation to choices typically entrusted to the legislator’s assessment, which also imply an economic assessment of the burdens connected to an expansion, for the temporal period preceding Legislative Decree No. 105/2022, of the pool of beneficiaries”.
As to the merits of the issues, it is observed that, from the perspective of the reasonableness review under Article 3 of the Constitution, the situations intended to be equated are not superimposed, because "they lend themselves to being regulated differently in the exercise of a reasonable discretion by the legislator”, taking into account the "concession of social security benefits with burdens on public finance”. Moreover – it is noted – any declaration of constitutional illegitimacy "would constitute a source of unequal treatment”, creating a discrimination between the private party in the main proceedings and "the entire pool of those who, relying on the literal interpretation of the same Article 42 ratione temporis, considered themselves unable to benefit from the leave”.
3.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office, concluding for the inadmissibility of the issues.
From a first perspective, the State defense argues the contradiction in the referring court's reasoning regarding the requirement of non-manifest unfoundedness. Indeed – it is pointed out – the referral order, after an initial approach that would seem to "denounce a discrimination of de facto cohabitation situations compared to those formalized in marriage or civil union”, subsequently adopted a "logically opposite” perspective, focused on the violation not of the rights of the partner in a de facto cohabitation, but of the right of the disabled person to receive assistance within the context of their affective relationships. As it is not possible to understand "which of the two lines of argument is actually the basis for the raised issue”, inadmissibility would follow "due to lack of reasoning, in the form of contradictory reasoning, regarding non-manifest unfoundedness”.
Furthermore, the issues would be inadmissible due to the lack of engagement "with the regulatory changes that have occurred in the field of assistance, including family assistance, to severely disabled persons”. It is recalled that, with article 1, paragraphs 210 to 214, of Law No. 213 of December 30, 2023 (State Budget for the financial year 2024 and multi-year budget for the three-year period 2024-2026), "an articulated system of supplementary support for severely disabled persons” was established through the provision of a "Single Fund for the Inclusion of Persons with Disabilities”. This demonstrates that "assistance and inclusion of severely disabled persons, also leveraging the area of their affective relationships, including de facto cohabitation, is an objective clearly pursued by the legislator, who exercises discretionary power over the methods and means, also to account for the impact of the related measures on the overall financial balance”. The failure to consider this legislation would result in the inadmissibility of the issues, "due to a lack of a complete investigation into the rules that systematically relate to the denounced rule and complete its protection content”.
From a different and related perspective, a further reason for inadmissibility is highlighted, arising from the fact that "a constitutionally mandatory solution for recognizing and protecting the right of the disabled person to assistance and inclusion also through their affective environment” is not viable. More specifically, it is observed in the act that the "'additive of provision'” requested by the referring judge would involve a provision "much more burdensome for public finance and impactful on the working environment than the mere monthly leave of three days referred to in Law 104/92”, which was the subject of Judgment of this Court No. 213 of 2016: extraordinary leave would indeed be "compensated with an allowance charged to INPS equal to the last remuneration, which can extend for up to two consecutive years”. This provision, while "useful for better protecting the rights of the disabled person”, would not, however, be such as to affect the essential core of those rights, already protected by other measures provided for by the legal system. Therefore, it is not configured as a constitutionally mandatory solution but rather falls within the discretion of the legislator; nor can it be the subject of an additive judgment by this Court. In this context, the choice to extend the pool of beneficiaries only from the date of entry into force of Legislative Decree No. 105 of 2022 would constitute "the only one compatible with the overall financial balance of the system and depended on a complex assessment of financial policy”.
4.– A. R., the party in the main proceedings, constituted itself in the proceedings with a subsequently filed brief, concluding for the acceptance of the issues.
The private party's defense refers extensively to excerpts from the aforementioned Judgment of this Court No. 213 of 2016. It is recalled that, according to that judgment, the rationale for the welfare protection of the disabled person and the aim of ensuring the continuity of care and assistance within the family constitute common requirements for both the institution of paid monthly leave under Article 33, paragraph 3, of Law No. 104 of 1992, and the institution of extraordinary leave under Article 42, paragraph 5, of Legislative Decree No. 151 of 2001. Therefore, in the private party's opinion, the conclusions of the cited Judgment No. 213 of 2016 should be applied, "by a sort of transposition principle”, also to extraordinary leave. This, moreover, would not eliminate the difference existing in the legal system between a spouse and a partner in a de facto cohabitation: after all – it is specified in the brief – the protective needs underlying this institution refer to and are inherent not in the subject requesting the leave, but in the person requiring intensive support. In order to assess the constitutional legitimacy issues raised, it would indeed be necessary to consider the matter "from the perspective […] of the person with a handicap in a situation of gravity: it is, in fact, the latter who has the constitutionally guaranteed right to receive assistance for their health conditions in their private and family context”. The different economic impact that this institution has compared to the leave under Article 33 of Law No. 104 of 1992 would be irrelevant from this perspective, "an impact that will, however, exist in any case due to the legislative amendment” referred to in Legislative Decree No. 105 of 2022.
5.– With a brief subsequently filed, INPS reasserted its defenses, insisting on the inadmissibility or manifest unfoundedness of the issues.
The Institute observes that the notion of de facto cohabitation relevant for the enjoyment of extraordinary leave pursuant to the amended Article 42, paragraph 5, of Legislative Decree No. 151 of 2001, is that referred to in Article 1, paragraphs 36 and 37, of Law No. 76 of 2016, which requires cohabitation and the establishment of a registry family according to the provisions of Articles 4 and 13, paragraph 1, letter b), of Presidential Decree No. 223 of May 30, 1989 (Approval of the new registry regulation for the resident population). Not all partners in a de facto cohabitation could, therefore, benefit from extraordinary leave, but only those who have made the registry declaration required by the latter provision at the municipality of residence.
Having omitted to address the legal notion of cohabitation, the referring court has incurred in a "deficient or, in any case, incomplete description of the factual situation that is the subject of the proceedings”, resulting in the inadmissibility of the issues due to "lack of reasoning regarding relevance”.
6.– The private party also, with a brief filed on the eve of the public hearing, put forward further defenses, insisting on the conclusions already formulated.
The brief, first of all, contains a reply to the exception of inadmissibility, raised by the State Attorney's Office, concerning an alleged contradiction in the reasoning provided by the referral order. According to the private party, there is no uncertainty in the present case regarding the petitum, referring to the "declaration of unconstitutionality of the rule insofar as it does not include the partner in a de facto cohabitation among the beneficiaries of extraordinary leave”. Nor is there any dual line of reasoning discernible in the referral order, as it focused attention on the constitutional rights of the disabled person according to the indications in this Court's Judgment No. 213 of 2016.
Furthermore, the referring judge requested a review of reasonableness only on "a specific exclusion” (that of the partner in a de facto cohabitation from the possibility of enjoying extraordinary leave), considering in this regard "only the subsequent rules that are actually relevant”, and "certainly not a judgment on the overall interventions of the legislator in favor of disabled persons”, as argued by the State defense. The rules governing the single fund for the inclusion of persons with disabilities would therefore be irrelevant for the purposes of the decision.
The exception of inadmissibility focused on the additive nature of the intervention requested from this Court and the consequent public finance implications would also be unfounded. Such a thesis, according to the private party, would be "contradicted by the interventions that this Court has already made on the text of Article 42, paragraph 5, Legislative Decree 151/01 to make it compliant with the constitutional mandate, with regard to the aspects previously brought to its attention”.
As to the merits, the brief insists on the well-foundedness of the issue, recalling that, according to the case law of this Court, the primary interest protected by Article 42, paragraph 5, of Legislative Decree No. 151 of 2001 "is that of 'primarily ensuring the continuity of care and assistance for the disabled person that takes place within the family sphere' (see, inter alia, Judgments No. 158/07 and No. 19/09)”, in the perspective, equally valued, of allowing the person requiring intensive support to receive care and assistance "within their community of life, whatever its legal form, also in order to allow them to maintain existing relationships”. The perspective from which to judge the present issue, therefore, should exclusively be that of the disabled person.
In any case – the private party emphasizes – de facto cohabitation would, today, be "attributable among the social formations referred to in Article 2 of the Constitution”. Reference is made, in this regard, to Judgments of this Court No. 148 of 2024 and No. 213 of 2016.
Furthermore, "any aspect relating to the economic sustainability of the consequences” resulting from an acceptance judgment would be irrelevant, given that, according to the case law of this Court, it is "the guarantee of inalienable rights that affects the budget, and not the balance of the latter that conditions its due provision” (Judgment No. 275 of 2016 is cited).
Considerations in law
1.– The Court of Cassation, Labour Section, challenges Article 42, paragraph 5, of Legislative Decree No. 151 of 2001 in the text applicable prior to the amendments introduced by Article 2, paragraph 1, letter n), of Legislative Decree No. 105 of 2022. The provision, which introduces the worker's right to benefit from extraordinary leave to provide assistance to a relative "with a handicap in a situation of gravity ascertained pursuant to Article 4, paragraph 1, of Law No. 104 of February 5, 1992”, is challenged insofar as it does not include the partner in a de facto cohabitation in the list of beneficiaries of the leave, as subsequently provided for by the aforementioned legislative amendment.
The questions of constitutional legitimacy were raised within the context of proceedings originating from the rejection, by INPS, of the request for extraordinary leave, with payment of the related allowance, pursuant to the provision now challenged, filed by a worker, partner in a de facto cohabitation, and subsequently spouse, of a disabled woman in a situation of gravity. The request – later granted for the period following the marriage and until the woman's death – had been rejected on the grounds that, ratione temporis, the benefit in question was not due in the absence of a marital bond. The Court of Appeal, upholding the decision of the court of first instance, had decided to adopt an "evolutionary interpretation, also in light of the interpretation given by the Constitutional Court to extraordinary leave, equating the cohabiting partner to the cohabiting spouse and the partner in a civil union”, and had therefore included the partner in a de facto cohabitation of the severely disabled person in the pool of beneficiaries of the institute in question.
The Court of Cassation, before which INPS appealed against this decision, not considering the path of a conforming interpretation feasible, given the impossibility of adhering to the letter of the provision in question, and plausibly excluding the retroactive application of the legislative amendment that occurred in the manner sought by the referring panel itself, suspects the conflict of Article 42, paragraph 5, of Legislative Decree No. 151 of 2001, in the text applicable ratione temporis, with Articles 2, 3, and 32 of the Constitution, due to the unreasonable violation of the right to psychophysical health of the person requiring intensive support, to be understood as an "inviolable right of man under Article 2 of the Constitution”, which cannot be limited by the legislator "based on a regulatory datum supplemented ‘by the mere fact of marriage’ (Article 29 of the Constitution)”. In invoking Judgment of this Court No. 213 of 2016 – which, through an additive ruling, included the partner in a de facto cohabitation in the list of workers who can obtain the paid monthly leave referred to in Article 33, paragraph 3, of Law No. 104 of 1992 – the referring court argues, in particular, that the current case should be placed in the same perspective as that precedent, in the awareness that care, support, and protection of the disabled person, together with their need for socialization, "constitute fundamental factors for the development of personality”, pertaining to "the fundamental inspiring principles of the constitutional design”, which must find realization preferably within the community of life and affection of the vulnerable person, according to "the fundamental role played by the family”.
2.– As previously stated, the reasoning of the referring court proceeds from the assumption, concerning the requirement of relevance of the raised issues, which must be verified preliminarily, that the contested provision, in its text applicable ratione temporis, cannot be read as providing for the right claimed in the main proceedings.
According to the constant orientation of this Court, the question of constitutional legitimacy is admissible when the referral order is reasoned in such a way as to allow for the "external” review of relevance through a non-implausible reasoning of the logical path taken and the reasons why the referring judge states that they must apply the contested provision in the main proceedings (ex plurimis, Judgments No. 148 of 2024 and No. 94 of 2023).
In the present case, the interpretative premise referred to by the referring panel is consistent with the letter of the contested provision. The Court of Cassation has therefore correctly, having excluded the possibility of an adapting interpretation, and plausibly denied the retroactive applicability of the legislative amendment in light of its rationale, proposed the constitutional legitimacy incident.
3.– The exceptions of inadmissibility raised by the President of the Council of Ministers and by INPS must still be examined preliminarily.
3.1.– With the first of these, argued by both defenses, it is asserted that this Court cannot intervene in the manner sought by the referral order as a constitutionally necessary solution is not found in the system. Rather, it is for the legislator's discretion to choose the most appropriate measure to meet the needs of workers who, in the period preceding the amendments introduced by Legislative Decree No. 105 of 2022, intended to provide assistance to their partner in a de facto cohabitation requiring intensive support pursuant to Article 3, paragraph 3, of Law No. 104 of 1992. It is emphasized, in particular, that the 2022 legislator consciously intended to limit the extension of the benefit temporally only pro futuro, due to the connected financial burdens, which were the subject of balancing.
The exception is unfounded.
Apart from the fact that, according to the case law of this Court, the presence in the legal system of one or more "constitutionally adequate solutions”, which fit into the regulatory fabric consistently with the logic pursued by the legislator, is sufficient for the admissibility review of the raised questions of constitutional legitimacy (thus, among many others, Judgments No. 6 of 2024 and No. 95 of 2022), it must be considered that, in the present case, it emerges from the system that – in the event of a decision of acceptance – the restoration of constitutional legitimacy for the current case could only be modeled on what is already provided for both the homologous institution of paid leave under Article 33, paragraph 3, of Law No. 104 of 1992, and for the institution of extraordinary leave itself, which is the subject of regulation with the legislation updated by Legislative Decree No. 105 of 2022. On the one hand, in fact (as will be seen further below), this Court has already repeatedly emphasized that the institutions of paid leave and extraordinary leave in question are united by the primary interest protected, which "is that of 'primarily ensuring the continuity of care and assistance for the disabled person that takes place within the family sphere, irrespective of the age or status as a child of the assisted person' (Judgments No. 19 of 2009 and No. 158 of 2007)” (Judgment No. 213 of 2016, point 3.3. of Considerations in law). Therefore, just as the provision on paid leave was integrated, through the additive intervention of Judgment No. 213 of 2016, with the inclusion of the cohabiting partner among the subjects entitled to benefit from it, the same can be done, in the event of its constitutional illegitimacy, for the provision concerning the institution of extraordinary leave. On the other hand, the same legislative integration has already been implemented by the legislator, albeit for the period subsequent to the entry into force of Legislative Decree No. 105 of 2022, as further evidence that a precise reference point is present in the current evolution of our legal system, usable, at least, as a constitutionally adequate solution to resolve any constitutional illegitimacy.
Nor can such an expansive solution encounter an obstacle, as argued by the defenses of INPS and the President of the Council of Ministers, in the financial burdens resulting from an acceptance decision. This Court, in fact, has long since clarified that, when fundamental rights of the person are at stake, it is the guarantee of these rights that affects the budget "and not the balance of the latter that conditions its due provision” (Judgment No. 275 of 2016, point 11 of Considerations in law; in the same vein, more recently also Judgment No. 152 of 2020, point 6 of Considerations in law, as well as Judgment No. 192 of 2024, point 14 of Considerations in law). The right to psychophysical health of the person requiring intensive support must certainly be included in the category of inalienable rights, as fundamental, which "'also postulates the adoption of supplementary economic support measures for families whose role remains fundamental in the care and assistance of subjects with disabilities' (Judgments No. 19 of 2009, No. 158 of 2007, and No. 233 of 2005)” (Judgment No. 203 of 2013)” (thus, most recently, Judgment No. 42 of 2024, point 5.2. of Considerations in law).
3.2.– The President of the Council of Ministers then objected to the inadmissibility of the issues due to the contradiction in the referral order, whose reasoning allegedly oscillates between two different and allegedly conflicting parameters: on the one hand, that of protecting the health of the person requiring intensive support, and on the other, that of non-discrimination between de facto cohabitation and marriage. Since it is not possible to understand, according to the State defense, which line of argument the referring judge has chosen to support the constitutional illegitimacy of the challenged rule, the issues cannot be examined on the merits.
The Attorney General's observations are unfounded.
It is true that the referral measure emphasized, in addition to the need for protection claimed by the right to psychophysical health of the disabled person, also the aspect of non-discrimination between the figure of the spouse and that of the partner in a de facto cohabitation. However, in the overall reasoning provided by the referring court, this reference assumes an ancillary and mere reinforcing role compared to the parameter used to raise the questions of constitutional legitimacy, which is solely that concerning the protection of the vulnerable subject. The referral is, in fact, framed from the perspective of family assistance as the context within which assistance should be provided to the person requiring intensive support, and in this context, the constitutional norms invoked (Articles 2, 3, and 32 of the Constitution) are directly referred to the need for protection that characterizes the vulnerable subject. The reference to the recent evolution of the notion of "family life", which values the existence of affective personal bonds (through reference to numerous rulings of the Strasbourg Court concerning Article 8 ECHR, already considered by the case law of this Court on the matter, as, most recently, in Judgments No. 33 of 2025 and No. 148 of 2024), far from contradicting the parameter of the right to health of the disabled person (as argued by the State defense), appears rather functional, in the referring court's reasoning, to the reassertion of that right, which is constitutionally protected and whose realization must be placed within the community of life of the person in need of protection.
Therefore, no contradiction can be found in the referral order, whose argumentative structure is clearly oriented towards the reassertion of the protection of the vulnerable subject.
3.3.– From a further perspective, the Attorney General objected to the inadmissibility of the issues due to the referring court's failure to consider the discipline introduced by Article 1, paragraphs 210 et seq., of Law No. 213 of 2023. The latter, by providing for a "Single Fund for the Inclusion of Persons with Disabilities”, would have established "an articulated system of supplementary support for severely disabled persons”, through modalities that would fall within the legislator's discretion and which would not have failed to take into account the necessary balance with available resources. By not engaging with these provisions, the referring panel would have incurred a "lack of complete investigation into the rules that systematically relate to the denounced rule and complete its protection content”.
This exception cannot be accepted either.
The system of support referred to by the State defense constitutes a system of support, centered on direct financial disbursements, which is part of a much broader catalogue of measures charged to public finances, recently strengthened by further provisions aimed at promoting, in the most diverse areas of life, the effective social inclusion of persons with disabilities. Mention may be made, by way of example, of measures aimed at making access to the education system effective (by strengthening the specialization paths for educational support activities for students with disabilities, as well as provisions aimed at guaranteeing the continuity of fixed-term teachers in support positions, referred to, respectively, in Articles 6 and 7 and Article 8 of Decree-Law No. 71 of May 31, 2024, "Urgent provisions on sport, on educational support for students with disabilities, for the regular start of the 2024/2025 school year and on universities and research”, converted, with amendments, into Law No. 106 of July 29, 2024), or, in a more general sense, the provision of direct financial support measures aimed at promoting the provision of services for persons with disabilities (in this direction, among others, the recent provisions of Legislative Decree No. 62 of May 3, 2024, "Definition of the condition of disability, of basic assessment, of reasonable accommodation, of multidimensional assessment for the elaboration and implementation of the personalized and participatory life project”), which, in Article 31, paragraph 1, established the "Fund for the implementation of life projects”, with an initial endowment of 25 million euros per year starting from 2025, aimed at making the discipline on the so-called life project of the disabled person effective).
In the general framework just described, the legislator has therefore prepared a series of initiatives financed by public resources, to support inclusion, accessibility, and support for persons with disabilities, as also emerges from the indication of the eligible interventions found in Article 1, paragraph 213, of Law No. 213 of 2023 (among which, for example, the strengthening of services for students with disabilities, school transport, infrastructures for inclusion policies, interventions aimed at recognizing the social and economic value of the non-professional care activity of the family caregiver). This is, therefore, a system of support of a different nature, as well as concurrent and additional, compared to that under discussion in this forum, which instead, indirectly (in the form, that is, of a right recognized in favor of the one who undertakes to assist the person in difficulty), aims to guarantee, within the family community of the individual disabled person, the actual welfare and care services, aimed at satisfying the needs of daily life.
Therefore, there was no need for the referring court, for the purposes of admissibility of the raised issues, to address this different and concurrent support system.
3.4.– Finally, in its supplementary brief filed on the eve of the public hearing, INPS objected to the inadmissibility of the issues due to an alleged lack of reconstruction of the legal framework offered by the referring judge, this time found in the omission to consider the legal notion of "partner in a de facto cohabitation”, as outlined by Article 1, paragraphs 36 and 37, of Law No. 76 of 2016.
The resisting Institute observes, in particular, that the new wording of Article 42, paragraph 5, of Legislative Decree No. 151 of 2001, as introduced in 2022, refers to the figure of the "partner in a de facto cohabitation referred to in Article 1, paragraph 36” of Law No. 76 of 2016, intending thereby to indicate not any form of cohabitation, but only that specifically referred to therein, established between subjects who have made the appropriate registry declaration at the municipality of residence, as stipulated by the aforementioned paragraph 37. The lack of information on this specific aspect would result in an "incomplete description of the factual situation that is the subject of the proceedings”, which "consequently leads to a lack of reasoning regarding relevance”.
This exception must also be dismissed.
It must, in fact, be observed that the existence of a de facto cohabitation between the applicant and the person who needed his assistance in the family sphere is undisputed among the parties to the main proceedings. This is reported in the premises of the referral order as the factual prerequisite of the proceedings, without any of the opposing parties, having intervened in this incidental judgment, having called it into question, even by mere allegation. The defenses of the social security institute, rather, insist on the absence of the further factual element, that of the registry declaration at the municipal offices pursuant to Articles 4 and 13, paragraph 1, letter b), of Presidential Decree No. 223 of 1989, as referred to in Article 1, paragraph 37, of Law No. 76 of 2016.
In this regard, it must be observed that, as established by the cited provisions, the ascertainment of stable cohabitation presupposes that the aforementioned registry declaration has been made. The latter, however, constitutes a compliance that is not a constitutive element of the factual situation of de facto cohabitation, but only contributes to its "ascertainment” (as expressed by the cited paragraph 37), with purely probative purposes. In this sense, moreover, the case law of the Court of Cassation is oriented (in particular, Third Penal Section, judgment of October 18 – December 17, 2018, No. 56673).
This Court has also had the occasion to affirm that "[t]he registry declaration creates a presumption of stability of the affective bond of the couple and facilitates, on the evidentiary level, the recognition of rights in favor of partners in de facto cohabitation” (Judgment No. 148 of 2024, point 3.7. of Considerations in law).
In the absence of any dispute, among the parties, regarding the actual existence of the de facto cohabitation, it was therefore not necessary, for the purpose of reasoning on relevance, for the referring judge to account for the submission of the registry declaration to the competent municipality.
4.– On the merits, the issues are well-founded.
4.1.– This Court, with the already cited Judgment No. 213 of 2016, declared the constitutional illegitimacy of Article 33, paragraph 3, of Law No. 104 of 1992, as amended by Article 24, paragraph 1, letter a), of Law No. 183 of November 4, 2010 (Delegations to the Government regarding arduous work, reorganization of entities, leave, secondment, and permits, social safety nets, employment services, incentives for employment, apprenticeship, female employment, as well as measures against undeclared work and provisions on public employment and labor disputes), insofar as it did not include the cohabiting partner – in the sense specified in the reasoning – among the subjects entitled to benefit from the paid monthly leave for the assistance of a person with a handicap in a situation of gravity, as an alternative to the spouse, relative, or in-law within the second degree.
A decisive role, on that occasion, was played – following, moreover, other precedents cited therein – by the family dimension that the provision then under examination must characterize, in favor of the person requiring intensive support, the provision of care and assistance. The primary interest protected by the provision then under examination, in fact, consists in "primarily ensuring the continuity of care and assistance for the disabled person that takes place within the family sphere, irrespective of the age or status as a child of the assisted person” (Judgment No. 213 of 2016, point 3.3. of Considerations in law); this, in a manner analogous to what this Court had already affirmed in relation to the institution that is the subject of the current examination, that of extraordinary leave, with Judgments No. 19 of 2009 and No. 158 of 2007 (not by chance cited by the former). In both cases (paid leave and extraordinary leave), in fact, the legislator pursued the same objective, that of meeting the needs of the worker who – as prescribed by the conditions indicated by Article 3, paragraph 3, of Law No. 104 of 1992 – provides "permanent, continuous, and global assistance intervention in the individual or relational sphere” in favor of a relative affected by a limitation of personal autonomy with a "situation of gravity” (still Judgment No. 213 of 2016, in the aforementioned point).
On another significant occasion, this Court, called this time to rule on the constitutional legitimacy of Article 42, paragraph 5, of Legislative Decree No. 151 of 2001 insofar as it did not include the cohabiting relative or in-law within the third degree among the subjects entitled to benefit from extraordinary leave, observed that the legal relevance of the mentioned family ties was already recognized by the parallel provision concerning paid leave under Article 33, paragraph 3, of Law No. 104 of 1992. Therefore, considering the preeminent purpose of ensuring care and assistance for the same category of persons (according to the conditions of "gravity” set by Article 3, paragraph 3, of Law No. 104 of 1992), the existing "regulatory asymmetry” between the two employment institutions was resolved through an additive ruling that inserted the cohabiting relative and in-law within the third degree, under the conditions specified therein, in the list of workers entitled to extraordinary leave, emphasizing that this very asymmetry constituted "a further argument in support of the declaration of constitutional illegitimacy of the omission to mention such subjects among those entitled to request the extraordinary leave governed in the challenged provision” (Judgment No. 203 of 2013, point 4 of Considerations in law).
4.2.– It is true that, from a strictly applicative point of view, the two institutions considered differ both with regard to the time duration of the absence from work, and partially, with regard to the conditions and modalities of use. In the case provided for by Article 33, paragraph 3, of Law No. 104 of 1992, "three days of paid monthly leave covered by figurative contribution, even continuously”, are recognized, provided that the disabled person is in a "situation of gravity” and "is not hospitalized full-time”, with the possibility of alternative use, to assist the same person, also by multiple entitled workers, or with the possibility for the same worker to assist more than one disabled person, without prejudice to the aforementioned subjective conditions. The economic, regulatory, and social security treatment of leave is regulated by reference to the corresponding provisions of Articles 43 and 44 of Legislative Decree No. 151 of 2001 (Article 33, paragraph 4, of Law No. 104 of 1992, updated with subsequent amendments). In the case, instead, of Article 42, paragraph 5, of Legislative Decree No. 151 of 2001, a longer period of absence from work is recognized, up to a maximum of "a total duration of two years for each person with a handicap and throughout the working life” and "on condition that the person to be assisted is not hospitalized full-time, unless the presence of the subject providing assistance is required by medical personnel” (paragraph 5-bis of Article 42). For the worker on leave, an "allowance corresponding to the last remuneration, with reference to the fixed and continuous items of the treatment” is provided, and the leave period "is covered by figurative contribution”, without prejudice to the fact that the allowance and figurative contribution are due up to a maximum total amount, indicated by law and updated annually (paragraph 5-ter of Article 42). The allowance in favor of the worker on leave is paid by the employer who then deducts the amount from the social security contributions due (still, paragraph 5-ter). The conditions for the enjoyment of leave under Article 33, paragraph 3, of Law No. 104 of 1992 and for the recognition of leave, in relation to the assistance to be provided to the same person, are also regulated by Article 42, paragraph 5-bis, of Legislative Decree No. 151 of 2001.
Nevertheless, the institutions in question are both "an expression of the welfare state that provides indirect provision, through facilities and incentives to relatives who take charge of assisting a severely disabled relative”: in both cases, as this Court has specified, these are tools of "socio-welfare policy” based "on the recognition of care provided to persons with a handicap in a situation of gravity by relatives and on the valorization of interpersonal and intergenerational solidarity relationships” (Judgment No. 213 of 2016). The paramount importance of family relationships, capable of offering the person in difficulty the best support in daily life activities, has also led the legislator to establish, for both institutions, a hierarchical gradation of entitled persons, modeled on the intensity of the affective relationship that comes into play. This gradation, moreover, cannot fail to include first of all the figure of the spouse, as the one indicated by the law as holder of the "obligations of moral and material assistance” to their consort (Judgment No. 158 of 2007): and this with reference not only to the traditional figure of marriage (Article 433 of the Civil Code), but today also to civil unions and de facto cohabitations, which give rise to the duty of "mutual moral and material assistance” (Article 1, paragraph 36, of Law No. 76 of 2016).
4.3.– The foregoing makes it clear that the commonality of the legislative rationale appreciated between the paid leave under Article 33, paragraph 3, of Law No. 104 of 1992 and the extraordinary leave under Article 42, paragraph 5, of Legislative Decree No. 151 of 2001 can only lead this Court, in the present case, to reassert the conclusions reached in the cited Judgment No. 213 of 2016.
As already noted by constitutional case law, the legal status of the disabled person is at the crossroads of "a complex of values that draw from the fundamental inspiring principles of the constitutional design” and the safeguarding of their rights finds "constitutional basis in the guarantee of the dignity of the person and the fundamental right to health of the interested parties, understood in the sense proper to Article 32 of the Constitution, including psychic as well as physical health” (Judgment No. 251 of 2008).
In the development of the personality of the disabled subject, the family dimension of assistance assumes a preeminent relevance (Judgments No. 203 of 2013, No. 19 of 2009, No. 158 of 2007, and No. 233 of 2005), and the primary interest entrusted to the provision of Article 42, paragraph 5, of Legislative Decree No. 151 of 2001 is situated in this context, which is precisely that of "primarily ensuring the continuity of care and assistance for the disabled person that takes place within the family sphere” (Judgments No. 19 of 2009 and No. 158 of 2007). This applies even more so to persons who have "intensive support needs” (according to the terminology introduced by Article 4, paragraph 1, letter d, of Legislative Decree No. 62 of 2024), already identified by law as those whose personal autonomy is compromised due to illness with a "situation of gravity” (Article 3, paragraph 3, of Law No. 104 of 1992). It is therefore unreasonable that the partner of the person in the described situation of disability is not included among the subjects entitled to benefit from extraordinary leave. Article 3 of the Constitution is violated, in particular, due to the logical contradiction found in a rule that, on the one hand, aims to protect the disabled person within their family sphere and, on the other hand, excludes their partner in a de facto cohabitation from the material possibility of providing assistance, thus ignoring the existence of a stable affective bond of the couple, characterized by "mutual moral and material assistance”, having legal relevance (Article 1, paragraph 36, of Law No. 76 of 2016). As this Court has affirmed, the described unreasonableness is even more pronounced "in cases where the cohabitation is based on an affective relationship, typical of the 'family relationship', within the scope of the solidarity values postulated by the 'aggregations' referred to in Article 2 of the Constitution”, given that "the distinct constitutional consideration of de facto cohabitation and marital relationship does not exclude the comparability of the regulations concerning particular aspects of one and the other that may present analogies for the purpose of the reasonableness review under Article 3 of the Constitution (Judgments No. 416 and No. 8 of 1996; Order No. 121 of 2004)” (Judgment No. 213 of 2016).
The differentiated regulation between the partner in a de facto cohabitation and the cohabiting spouse in the enjoyment of the right to the extraordinary leave in question therefore entails the violation, simultaneously, of Article 3 of the Constitution, for the described unreasonableness of the contested provision, and of Articles 2 and 32 of the Constitution for the infringement of the fundamental right to psychophysical health of the severely disabled person, it being necessary to reiterate that this right, "comprising assistance and socialization, must therefore be guaranteed and protected, for the subject with a handicap in a situation of gravity, both as an individual and as a member of a social formation for which, pursuant to Article 2 of the Constitution, 'any form of community, simple or complex, suitable to allow and promote the free development of the person in social relations, in the context of the valorization of the pluralistic model' must be understood” (Judgment No. 138 of 2010)” (Judgment No. 213 of 2016).
This Court has, moreover, also recently reaffirmed that, unlike marriage, protected directly by Article 29 of the Constitution, "de facto cohabitations, like civil unions, belong to the social formations referred to in Article 2 of the Constitution, within which the individual asserts and develops their personality” (Judgment No. 148 of 2024, point 5 of Considerations in law).
Therefore, the constitutional illegitimacy of Article 42, paragraph 5, of Legislative Decree No. 151 of 2001, in the text preceding the legislative amendment introduced by Article 2, paragraph 1, letter n), of Legislative Decree No. 105 of 2022, is declared, insofar as it does not include the partner in a de facto cohabitation among the subjects entitled to benefit from extraordinary leave for the assistance of the person requiring intensive support, in a position equated to that of the cohabiting spouse.
It is needless to emphasize that the application of the benefit in question presupposes the rigorous ascertainment of the actual existence of a de facto cohabitation.
It remains established that, in light of the natural retroactive scope of this decision of acceptance, the right to benefit from extraordinary leave for the worker who can assert the position of partner in a de facto cohabitation, for the period preceding the legislative amendments introduced by Article 2, paragraph 1, letter n), of Legislative Decree No. 105 of 2022, remains linked only to the actual provision of care and assistance in favor of the person requiring intensive support, under the conditions and according to the modalities indicated by Article 42, paragraphs 5 et seq., of Legislative Decree No. 151 of 2001.
for these reasons
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy of Article 42, paragraph 5, of Legislative Decree No. 151 of March 26, 2001 (Consolidated Text of legislative provisions on the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of March 8, 2000), in the text preceding the legislative amendment introduced by Article 2, paragraph 1, letter n), of Legislative Decree No. 105 of June 30, 2022, enacting "Implementation of Directive (EU) 2019/1158 of the European Parliament and of the Council of June 20, 2019, on work-life balance for parents and carers and repealing Council Directive 2010/18/EU”, insofar as it does not include the partner in a de facto cohabitation among the subjects entitled to benefit from extraordinary leave for the assistance of the person requiring intensive support, in a position equated to that of the cohabiting spouse.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on November 4, 2025.
Signed:
Giovanni AMOROSO, President
Maria Rosaria SAN GIORGIO, Rapporteur
Roberto MILANA, Registrar
Filed in the Registry on December 23, 2025
The anonymized version is textually compliant with the original