JUDGMENT NO. 73

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Justices: 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 proceedings concerning the constitutional legitimacy of Art. 1, paragraph 1097, of Law no. 205 of 27 December 2017 (State Budget for the 2018 Financial Year and Multi-year Budget for the 2018-2020 Period), brought by the Court of Cassation, Joint Civil Divisions, in the proceedings between R. spa and the Ministry of Labour and Social Policies - Provincial Directorate of Labour, by referral order of 16 August 2025, registered as no. 231 of the 2025 register of orders and published in the Official Gazette of the Republic no. 49, special series, of the year 2025.

Having heard the Reporting Justice Francesco Saverio Marini in chambers on 13 April 2026;

having deliberated in chambers on 13 April 2026.

Statement of facts

1.– By order of 16 August 2025 (reg. ord. no. 231 of 2025), the Court of Cassation, Joint Civil Divisions, raised issues of constitutional legitimacy regarding Art. 1, paragraph 1097, of Law no. 205 of 27 December 2017 (State Budget for the 2018 Financial Year and Multi-year Budget for the 2018-2020 Period), with reference to Articles 3 and 117, first paragraph, of the Constitution—the latter in relation to Article 7 of the European Convention on Human Rights and Article 49(1) of the Charter of Fundamental Rights of the European Union.

2.– The referring court reports that R. spa filed an appeal for cassation against the judgment by which the Court of Appeal of Rome—overturning the first-instance ruling—rejected the opposition filed by said company against injunction-order no. 76 of 2009.

By said order, the Ministry of Labour and Social Policies - Provincial Directorate of Labour of Rome had imposed an administrative penalty of 269,255.00 euros, provided for by the then-applicable Art. 6, third paragraph, of Legislative Decree of the Provisional Head of State no. 708 of 16 July 1947 (Provisions concerning the National Social Security and Assistance Institute for Workers in the Entertainment Industry), ratified, with amendments, by Law no. 2388 of 29 November 1952, containing «Ratification, with amendments, of Legislative Decree no. 708 of 16 July 1947, concerning provisions on the National Social Security and Assistance Institute for Workers in the Entertainment Industry (E.N.P.A.L.S.)», for having employed entertainment workers, belonging to the categories referred to in Art. 3, first paragraph, numbers 1) to 14) of the same decree, without an eligibility certificate in the period from 11 February 1999 to 3 April 2001, in violation of the obligation under the same Art. 6, second paragraph.

In the a quo proceedings, the Ministry of Labour and Social Policies defended its position through a cross-appeal and the Prosecutor General filed written conclusions, raising the constitutional illegitimacy of Art. 1, paragraph 1097, of Law no. 205 of 2017; an exception to which the appellant company adhered in the brief filed in anticipation of the chamber hearing.

The Labour Section of the Court of Cassation, by interlocutory order no. 9396 of 8 April 2024, «referred the dispute to the First President for potential assignment to the Joint Divisions, due to the question of maximum importance which arose during the examination of the seventh ground of appeal, concerning the retroactive application, in the case at hand, of the subsequent regulation under Art. 1, paragraph 1097, of Law no. 205 of 2017», which abolished the requirement for an eligibility certificate for entertainment companies employing, at premises owned by them or to which they hold a personal right of use, workers hired under fixed-term or open-ended employment contracts, provided the employer has made the necessary social security contributions.

The conduct contested against R. spa, for which the injunction-order was adopted, «would not have been punishable in light of the subsequently introduced legislation», as it concerned «subordinate workers employed at the company's headquarters (for whom the insurance obligation appears to have been peacefully fulfilled)».

Given «the essentially criminal nature of the penalty, the failure to provide for the retroactive application of the subsequent lex mitior would be unreasonable, in view of the principles affirmed in this matter by constitutional and conventional jurisprudence».

3.– The dispute, due to the particular importance of the question of principle concerning «the retroactive application of subsequent law which provided more favourable treatment for the administrative offence, for past violations still sub iudice, by virtue of the principle of retroactivity of the lex mitior in criminal matters», was assigned to the Joint Divisions which, following a public hearing, reserved their decision.

4.– Regarding relevance, the referring Court reiterates that, against R. spa, the Provincial Directorate of Labour of Rome issued injunction-order no. 76 of 2009, in relation to, among other things, the violation of the obligation under Art. 6, second paragraph, of Legislative Decree no. 708 of 1947, as ratified, in the text applicable ratione temporis, for «having allowed certain workers to work at the RDS company headquarters lacking an ENPALS eligibility certificate in the period 11 February 1999-3 April 2001».

The subsequent Art. 1, paragraph 1097, of Law no. 205 of 2017 amended the aforementioned Art. 6, second paragraph, excluding from the eligibility certificate obligation those workers hired under an employment contract, for whom regular contributions have been paid, provided they are employed at premises owned by the employer or to which the employer holds a personal right of use.

However, the 2017 legislature did not dictate transitional provisions, with the consequence that—in the opinion of the referring court—pursuant to Art. 1 of Law no. 689 of 24 November 1981 (Amendments to the criminal system), the subsequent law would not be applicable, despite being more favourable, because it restrictively defines the eligibility certificate obligation, the violation of which is sanctioned administratively.

With the seventh ground of appeal, «whose treatment takes priority over other censures», the appellant company has, therefore, posited «the violation and false application of Art. 1, paragraph 1097, of Law no. 205 of 2017, of Art. 11 of the General Provisions on the Law, and of Art. 2 of the Criminal Code».

The conduct contested against R. spa, for which the aforementioned injunction-order was adopted, in fact, «would not have been punishable in light of the subsequently introduced legislation», as it related to «subordinate workers employed at the company's headquarters (and for whom the insurance obligation appears to have been peacefully fulfilled)». The eventual upholding of the questions would lead to the retroactive application of Law no. 205 of 2017 and, therefore, the upholding of the appeal for cassation.

5.– With reference to the non-manifest groundlessness, the referring Court reconstructs the constitutional jurisprudence regarding the foundation of the principle of retroactivity of the lex mitior, recalling how it has been identified both in Art. 3 of the Constitution and in Art. 117, first paragraph, of the Constitution in relation to Art. 7 of the ECHR, as interpreted by the European Court of Human Rights, as well as other international human rights law norms binding on Italy which state the same principle, including Art. 15(1) of the International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16 December 1966, and Art. 49(1) of the CFREU.

The referring judge then recalls that the principle of retroactivity in mitius, according to the most recent jurisprudence of this Court, extends to «administrative sanctions having a "punitive” nature and function», to which the violation of the eligibility certificate obligation for entertainment workers is reportedly attributable.

The Court of Cassation observes, in fact, that Art. 6, second paragraph, of Legislative Decree no. 708 of 1947 established the obligation, for «theatrical, cinematographic and circus businesses, tent theatres, entities, associations, public establishment businesses, hotels, radio-television broadcasters and sports facilities», to request the eligibility certificate for all entertainment workers, «when used in premises owned or to which they have a personal right of use». The subsequent third paragraph imposed the «administrative penalty of [129 euros] for each worker and for each working day performed by each», in case of failure to comply with said obligation.

This administrative offence would have a conventionally criminal nature because the penalty «is set at a fixed amount [...] for each day of work performed in the absence of a certificate, without the possibility of adjustment in relation to the criteria of Art. 11 of [Law] no. 689 of 24 November 1981». Said sanction, therefore, would show «indices of significant affliction, as it is calculated not in consideration of the severity of the omission itself, but of its persistence, regardless of the existence and extent of the damage, through a mere mathematical operation, which may cover the entire duration of the subordinate relationship, without the provision of a maximum ceiling».

6.– In the opinion of the a quo judge, Art. 1, paragraph 1097, of Law no. 205 of 2017, where it amends in mitius the mentioned Art. 6, second paragraph, of Legislative Decree no. 708 of 1947, as ratified, by excluding the obligation for entertainment businesses to request the eligibility certificate for workers hired «with an employment contract when used in premises owned or to which they have a personal right of use for which the same companies carry out regular social security contributions to the INPS», without providing for the retroactive application of the more favourable discipline it dictates, would conflict with Articles 3 and 117, first paragraph, of the Constitution, the latter in relation to Articles 7 of the ECHR and 49(1) of the CFREU.

Considerations in law

7.– With the order indicated in the epigraph, the Court of Cassation, Joint Civil Divisions, doubts the constitutional legitimacy of Art. 1, paragraph 1097, of Law no. 205 of 2017, in the part in which it does not provide for the retroactive application of the more favourable discipline dictated by it regarding the violation of the eligibility certificate obligation for entertainment workers.

The censured provision would violate both national parameters (Art. 3 of the Constitution) and conventional and European Union law interpreted parameters (Arts. 7 ECHR and 49(1) CFREU), through Art. 117, first paragraph, of the Constitution.

In particular, the referring Court complains that the censured Art. 1, paragraph 1097, has amended in mitius the administrative offence—consisting of the employment of entertainment workers lacking the eligibility certificate—provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified, limiting the cases in which said certificate is mandatory. The subsequent provision, in fact, has eliminated this obligation for those who, in premises owned by them or to which they have a personal right of use, employ workers, belonging to one of the professional categories referred to in Art. 3, first paragraph, numbers 1) to 14), of the same decree, hired under an employment contract and for whom regular social security contributions have been made.

From the referral order—which refers in this regard to the report of the offence drawn up by officials of the National Social Security and Assistance Institute for Workers in the Entertainment Industry (ENPALS) and the injunction-order opposed—it emerges that the appellant company in the a quo proceedings was accused of not having requested the eligibility certificate for subordinate workers, employed at its headquarters and for whom the contribution obligation had been fulfilled. Consequently, the aforementioned conduct would no longer be punishable under the mentioned Art. 6, as amended by Art. 1, paragraph 1097, of Law no. 205 of 2017, the retroactive applicability of which would lead to the upholding of the appeal and the annulment of the injunction-order opposed.

Said provision, however, would not apply to violations committed before its entry into force, as Art. 1 of Law no. 689 of 1981 would entail the subjection of the conduct to the law at the time of its occurrence, with the consequent inapplicability of the subsequent more favourable discipline, in the absence of an explicit legislative choice to the contrary.

Hence, the complained violation of Arts. 3 and 117, first paragraph, of the Constitution, the latter in relation to Arts. 7 ECHR and 49(1) CFREU, because the pecuniary administrative penalty provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified, would have a punitive nature for the purposes of the ECHR and the CFREU and, therefore, should benefit from the guarantees provided by them, including the principle of retroactivity of the lex mitior.

8.– As a preliminary matter, the inadmissibility of the question raised in reference to Art. 117, first paragraph, of the Constitution, in relation to Art. 49(1) of the CFREU, must be declared ex officio, for insufficient motivation on the non-manifest groundlessness.

The referring Court, in fact, did not illustrate the reasons that would cause the censured provision to fall within the scope of European Union law, a condition—this—to which is subordinated, pursuant to Art. 51 of the CFREU, «the very applicability of the norms of the Charter, including their suitability to constitute interpreted parameters in the judgment of constitutional legitimacy» (judgments no. 137 of 2025 and no. 85 of 2024; in the same sense, judgments no. 214, no. 113, no. 69, no. 31 and no. 7 of 2025).

This, according to constitutional jurisprudence, does not exclude «that the norms of the Charter may be used, even outside the scope of application of European Union law, as interpretative criteria of the same relevant constitutional parameters» (judgment no. 85 of 2024; in the same sense, ex multis, judgments 219 of 2023 and no. 33 of 2021). And this Court, in judgment no. 198 of 2022, clarified that Art. 7 ECHR and Art. 49(1) CFREU converge with Art. 3 of the Constitution «in delineating a homogeneous structure of protection» on the subject of the applicability of the rule of retroactivity in mitius also to administrative sanctions having a punitive-afflictive character.

9.– The remaining questions are admissible.

In the a quo proceedings, the question of principle arose—considered of particular importance—regarding the «retroactive application of the subsequent law [Art. 1, paragraph 1097, of Law no. 205 of 2017] which provided more favourable treatment for the administrative offence», consisting of the employment of entertainment workers lacking the eligibility certificate, provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified.

In fact, as anticipated, the censured Art. 1, paragraph 1097, excluded the obligation of said certificate for subordinate workers, provided that the employer has made «regular social security contributions», retaining it only for self-employed workers, except for works contracts of less than thirty days.

The Joint Divisions of the Court of Cassation—seized of the dispute pursuant to Art. 374, second paragraph, of the Code of Civil Procedure—have therefore raised issues of constitutional legitimacy of the mentioned Art. 1, paragraph 1097, in the part in which it amended in mitius Art. 6 of Legislative Decree no. 708 of 1947, as ratified, without providing for its retroactive application.

The upholding of the questions, in the opinion of the a quo judge, would lead to the annulment of the injunction-order opposed, because the conduct contested against the appellant company does not fall within the more limited perimeter of the administrative offence, as modified by the censured Art. 1, paragraph 1097.

Still on the point of relevance, the referring Court then acknowledged that Art. 6 of Legislative Decree no. 708 of 1947, as ratified, was further amended by Art. 3-quinquies, paragraph 1, letter a), of Decree-Law no. 135 of 14 December 2018 (Urgent provisions regarding support and simplification for businesses and public administration), converted, with amendments, by Law no. 12 of 11 February 2019. This provision, currently in force, however—in the opinion of the Joint Divisions of the Cassation—«would not affect the ius superveniens [...] the application of which is disputed and the constitutional legitimacy of which is doubted».

It, in fact, introduces an amendment not further favourable compared to that of 2017, as, even though it excludes the obligation of the eligibility certificate for subordinate workers regardless of the employer having made «regular social security contributions», it extends it to all «self-employed entertainment workers, including those with collaboration relationships», even those of a duration shorter than thirty days, who were previously exempted.

Operating such an extension of the eligibility certificate obligation, undoubtedly, in peius, not implausibly the referrer only censured Art. 1, paragraph 1097, of Law no. 205 of 2017, which introduced a more favourable regulation and which, therefore, by virtue of the principle of retroactivity of the lex mitior, should have been extended to violations committed before its entry into force.

The motivation of the referral order, therefore, exceeds the threshold of non-implausibility regarding the premise of relevance, the examination of which is delegated to this Court (ex multis, judgments no. 30 of 2026, no. 137 of 2025 and no. 172 of 2024; order no. 22 of 2026).

10.– Still as a preliminary matter, it is necessary to verify the correctness of the argumentative premises on which the referral order rests, according to which—having qualified the administrative sanction referred to in Art. 6 of Legislative Decree no. 708 of 1947, as ratified, as punitive for the effects of the ECHR and having considered the regulation dictated by the subsequent Art. 1, paragraph 1097, of Law no. 205 of 2017 more favourable—the a quo judge could not have applied, retroactively, said provision, without a prior ruling of unconstitutionality.

Today's issues of constitutional legitimacy therefore require establishing whether, on the subject of administrative sanctions of a punitive-afflictive character, the ordinary judge may apply the more favourable «subsequent law» in the absence of an express transitional regulation, as provided for formally criminal sanctions by Art. 2, paragraphs two, three and four, of the Criminal Code; or whether, in the absence of an express provision on retroactivity, the repealing norm has, in accordance with general principles, merely ultra-active efficacy, subject to the control of this Court. In this second perspective, it will only be the Constitutional Court that must evaluate whether these are punitive sanctions and whether, for this reason, there is a violation of the constitutional parameters which impose, in the absence of effective justifying reasons, the retroactivity of the more favourable legislative provision.

10.1.– In this regard, it is appropriate to recall that the precedents of this Court, intervening on the subject in question—including judgment no. 63 of 2019, which, for the first time, affirmed the applicability of the rule of retroactivity in mitius also to administrative sanctions, referring to the jurisprudence of the ECtHR—concerned specific transitional provisions, which expressly limited the application of the lex mitior only to violations committed after its entry into force (judgments no. 198 of 2022 and no. 63 of 2019).

In no case, however, has this Court decided on the merits of issues, such as today's, in which the more favourable subsequent provision is directly censured in the part in which it does not provide for its applicability to past facts.

It is true that order no. 199 of 2023 held that, in the main proceedings, the subsequent provision «could find retroactive application for the favourable effect that derives from it compared to the previous sanctioning regime»; but, without taking a position on the subject, this Court limited itself to ordering the restitution of the acts to the a quibus judges, to allow them to evaluate the possible incidence of the ius superveniens on the relevance and non-manifest groundlessness of the issues raised.

For its part, legitimacy jurisprudence has often admitted that, where the sanction has an essentially criminal nature and «in the absence of transitional law provisions that provide otherwise, there are no obstacles [...] to the application of the general principle of the retroactive application of the lex mitior» (Court of Cassation, Labour Section, order no. 13182 of 18 May 2025; in the same sense, ex multis, Court of Cassation, Second Civil Section, order no. 1698 of 16 January 2024).

However, the Joint Divisions—which, seized by the First President of questions of maximum importance, «constitute the highest and most authoritative form of exercise of the nomophylactic function delegated by Art. 65 of Royal Decree no. 12 of 30 January 1941 (Judicial System) to the Court of Cassation» (judgment no. 13 of 2022)—have contradicted this interpretation.

In raising today's issues of constitutional legitimacy, in fact, the aforementioned body, as already highlighted, moves from the assumption that Art. 1 of Law no. 689 of 1981 constitutes an obstacle to the retroactive applicability of the provision that modifies the administrative offence or the relative sanction in a way more favourable to the offender; an obstacle that it is the responsibility of this Court to remove with reference to «individual and specific sanctioning disciplines, and in particular those that, while qualifying as administrative pursuant to the internal system, are suitable for acquiring "punitive” characteristics in light of the conventional system» (judgment no. 193 of 2016).

10.2.– The assumption from which the referring judge moves is agreeable.

On the subject of administrative sanctions, regardless of their essentially criminal nature, Art. 1 of Law no. 689 of 1981 limits itself to providing, in its second paragraph, that «[t]he laws that provide for administrative sanctions apply only in the cases and for the times considered in them», confirming the applicability to such matter of the principle sanctioned in general by Art. 11 of the general provisions on the law, according to which «[t]he law does not provide except for the future [and] has no retroactive effect». Principle which is instead derogated from, with exclusive reference to formally criminal sanctions, by Art. 2, paragraphs two, three and four, of the Criminal Code, which sanctions precisely the rule of «retroactivity of the law more favourable to the accused, [...] circumscribed [however] to the succession of laws both criminal» (judgment no. 96 of 2020).

By reason of Art. 11 of the general provisions, which denies retroactive efficacy to the subsequent provision, therefore, the recognition of the punitive-afflictive character of the administrative sanction is not sufficient to allow the automatic applicability of the principle of retroactivity in mitius. Rather, a problem of constitutional legitimacy of the lex mitior will arise, in the part in which it did not provide for a derogation from the prohibition of retroactivity generally applicable to administrative sanctions.

It is, in short, the task of this Court—having verified the traceability of the measure object of its review to the "criminal matter” pursuant to the ECHR—to verify whether the failure to provide for the retroactive efficacy of the lex mitior, which affects it, conflicts with Arts. 3 and 117, first paragraph, of the Constitution. Within the scope of such verification, it is necessary to ascertain whether there are any «compelling reasons for protecting counter-interests of constitutional rank», in line with that «"positive test of reasonableness”, by the yardstick of which, in general terms, derogations from the principle of retroactivity in mitius in criminal matters must be evaluated» (judgment no. 63 of 2019).

The intervention of this Court is, moreover, also necessary to ensure certainty regarding the efficacy over time of the «laws providing for administrative sanctions» of a punitive-afflictive character and, consequently, equality of treatment among associates. Otherwise, in fact, than what happens for criminal sanctions in the strict sense, with respect to which the formal fact satisfies this requirement, for administrative sanctions the margin of uncertainty is greater and the power of the judge to apply the more favourable subsequent provision must be «adequately delimited by precise indications provided by the legislature or by a ruling of this Court capable of replacing, with erga omnes effect, legislative prescriptions judged incompatible with constitutional principles» on the retroactivity, barring justified exceptions, of the lex mitior (judgment no. 7 of 2025, regarding the different principle of proportionality of the penalty).

In conclusion, on the subject of succession of laws over time relating to administrative sanctions essentially criminal pursuant to the ECHR, the ordinary judge is obliged to invest this Court with the evaluation of the constitutional legitimacy—by the yardstick of both the national parameters (Art. 3 of the Constitution) and the conventional interpreted parameter (Art. 7 ECHR), through Art. 117, first paragraph, of the Constitution—of provisions that exclude or limit the retroactivity of the lex mitior, as well as provisions that, by not expressly providing for such retroactivity, pursuant to Art. 11 of the general provisions, have merely ultra-active efficacy.

Only if one is within the scope of application of European Union law and the guarantee referred to in Art. 49(1) of the CFREU also operates (Court of Justice of the European Union, Grand Chamber, judgment of 1 August 2025, case C-544/23, T. T. and Baji Trans sro), may the judge «not apply the internal regulation, if necessary after a preliminary ruling to the Court of Justice (Art. 267 TFEU), or raise a question of constitutional legitimacy for violation of Art. 117, first paragraph, and of Art. 11 of the Constitution», bearing in mind that «[t]he interlocution with this Court, called upon to render an erga omnes ruling, proves particularly profitable», because it is destined «to unfold its effects well beyond the concrete case», after «balancing principles of a constitutional nature» (judgment no. 181 of 2024).

11.– On the merits, the questions are well-founded with reference to both parameters evoked by the referrer, «which can be scrutinized jointly, given that the principle of retroactivity of the lex mitior in criminal matters finds foundation in the constitutional system, both directly and by effect of the action [of Art.] 7 ECHR, by force [of Art.] 117, first paragraph, of the Constitution» (judgment no. 198 of 2022). Parameters that must be interpreted in light of Art. 49(1) of the CFREU.

12.– According to the constant jurisprudence of this Court (judgments no. 238 of 2020, no. 63 of 2019, no. 236 of 2011, no. 215 of 2008 and no. 393 of 2006), the principle of retroactivity of the lex mitior in criminal matters is not traceable to the sphere of protection of Art. 25, second paragraph, of the Constitution, according to which «[n]o one may be punished except by force of a law that has entered into force before the fact committed».

The principle sanctioned by this constitutional provision must «be interpreted in the sense of prohibiting the retroactive application of only criminal laws that establish new incriminations, or that aggravate the sanctioning treatment already provided for a crime, thus not standing against a possible retroactive application of laws that, conversely, abolish previous incriminations or attenuate the sanctioning treatment already provided for a crime» (judgments no. 198 of 2022 and no. 63 of 2019).

As this Court has clarified, in fact, «the immediate ratio of said norm is—in part qua—that of protecting individual freedom of self-determination, guaranteeing the individual not to be surprised by the infliction of a criminal sanction not foreseeable for him at the moment of the commission of the fact. Such a guarantee is not called into question by the application of a criminal norm, albeit more burdensome than those that entered into force subsequently, which was in any case in force at the moment of the fact: and this "for the obvious reason that, in the case considered, the lex mitior supervenes the commission of the fact, to which the author had freely self-determined himself on the basis of the previous (and for him less favourable) regulatory panorama (judgment no. 394 of 2006)” (judgments no. 238 of 2020 and no. 63 of 2019)» (judgment no. 198 of 2022; lastly, judgments no. 123 of 2025 and no. 176 of 2024).

However, the principle of retroactivity in mitius, sanctioned by Art. 2, paragraphs two, three and four, of the Criminal Code, has in any case «a double, and concurrent, [constitutional] foundation. One—of domestic matrix—[is] traceable to the spectrum of protection of the principle of equality referred to in Art. 3 of the Constitution» (again, judgment no. 63 of 2019 and, more recently, judgment no. 123 of 2025), which «imposes, in principle, to equate the sanctioning treatment of the same facts, regardless of the circumstance that they were committed before or after the entry into force of the norm that provided for the abolitio criminis or the mitigating modification» (judgments no. 198 of 2022, no. 238 of 2020, no. 63 of 2019 and no. 394 of 2006). This is because, in general, «[i]t would not be reasonable to punish (or continue to punish more severely) a person for a fact that, according to the subsequent law, anyone else can impunely commit (or for which a lighter penalty is provided)» (judgment no. 236 of 2011; and, again, more recently, judgments no. 123 and no. 176 of 2024, as well as, in a similar sense, judgment no. 95 of 2025).

The other foundation—of international origin and having entry into our system through Art. 117, first paragraph, of the Constitution—is «traceable to Art. 7 ECHR, in the reading offered by the Strasbourg jurisprudence» (in addition to the ECtHR, Grand Chamber, judgment of 7 September 2009, Scoppola v. Italy; judgments of 10 July 2025, Wulffaert and Wulffaert Beheer NV v. Belgium; 17 October 2024, Cesarano v. Italy; 18 February 2020, Jidic v. Romania; 3 December 2019, Parmak and Bakir v. Turkey; 12 July 2016, Ruban v. Ukraine; 12 January 2016, Gouarré Patte v. Andorra; 24 January 2012, Mihai Toma v. Romania, as well as decision of 27 April 2010, Morabito v. Italy), «as well as to other norms of international human rights law binding on Italy which state the same principle, including the same Arts. 15(1) of the International Covenant on Civil and Political Rights and 49(1) of the CFREU, the latter relevant in our system also pursuant to Art. 11 of the Constitution» (judgment no. 63 of 2019; similarly also the already cited judgments no. 123 and no. 95 of 2025, no. 198 of 2022, no. 238 of 2020 and no. 236 of 2011).

On the substantial correspondence of content between the cited parameters, this Court has lastly clarified that the ratio of the principle in question is still identifiable in substance in the «right of the author of the crime to be judged, and if the case punished, on the basis of the current appreciation of the system relative to the disvalue of the fact realized by him, rather than on the basis of the appreciation underlying the law in force at the moment of its commission» (again, judgments no. 123 of 2025, no. 198 of 2022 and no. 63 of 2019).

Finally, it must be reiterated that, «while the non-retroactivity in peius of criminal law constitutes an absolute and non-derogable value, the rule of retroactivity in mitius of the same criminal law is susceptible to legitimate limitations and derogations on the constitutional level, "provided they are justifiable by the yardstick of that ῾positive test of reasonableness’ […], in relation to the need to protect interests of constitutional rank prevailing over the individual interest at stake” (judgment no. 63 of 2019; in the same sense, judgment no. 236 of 2011)» (judgment no. 198 of 2022). In other words, «a derogation from the right [of the defendant to be judged according to the more favourable law that entered into force after the commission of the fact] can find justification on the constitutional level only in so far as it results proportionate to the need to safeguard other constitutionally relevant interests, which would risk being prejudiced where the retroactive application of the more favourable criminal law were to take place» (judgment no. 123 of 2025).

13.– According to the constant jurisprudence of this Court, «[t]he assimilation of "punitive” administrative sanctions to criminal sanctions has, as a corollary, the extension of a large part of the substantial "constitutional statute” of criminal sanctions and therefore not only that based on Art. 25 of the Constitution, but also [...] on the retroactivity, barring justified exceptions, of the lex mitior» (judgment no. 101 of 2025).

In fact, «[a]fter a first affirmation of principle contained in judgment no. 193 of 2016, this Court, with ruling no. 63 of 2019, has [...] expressly affirmed the applicability of the rule of retroactivity in mitius also to administrative sanctions, referring to the jurisprudence of the ECtHR» (judgment no. 198 of 2022).

It was clarified, that is, that the aforementioned rule cannot but extend also to «individual administrative sanctions that have a "punitive” nature and purpose» (judgments no. 198 of 2022 and no. 63 of 2019; in the same sense, no. 68 of 2021 and no. 193 of 2016) and that this «"is consistent [also] with the logic underlying the constitutional jurisprudence that has developed, on the basis of Art. 3 of the Constitution, regarding strictly criminal sanctions. Where, in fact, the administrative sanction has a ‘punitive’ nature, as a rule there will be no reason to continue to apply to [the author of the offence] such a sanction, if the fact is subsequently considered no longer illicit; nor to continue to apply it in a measure considered by now excessive (and for this very reason disproportionate) compared to the changed appreciation of the severity of the offence by the system. And this unless there are compelling reasons for protecting counter-interests of constitutional rank, such as to resist the same ‘positive test of reasonableness’, by the yardstick of which, in general terms, derogations from the principle of retroactivity in mitius in criminal matters must be evaluated” (judgment no. 63 of 2019; in the same sense, judgment no. 68 of 2021)» (again, judgment no. 198 of 2022).

From the observations just made, however, it does not follow that the overall legal regime provided for formally criminal sanctions must be applied to administrative sanctions of a punitive-afflictive character, with identical methods. Regarding the subject of succession of laws over time, in particular, it must be reiterated that, where the legislature remodels in a more favourable sense the discipline of an administrative sanction of a punitive-afflictive character, without jointly attributing an express retroactive efficacy to the subsequent provision, the automatic applicability of the principle of retroactivity in mitius pursuant to Art. 2, paragraphs two, three and four, of the Criminal Code will not find space, opening instead, for the judge, the path of activating the review of constitutional legitimacy on such legislative choice.

14.– Given this, the examination of today's issues of constitutional legitimacy requires verifying the correctness of the further interpretative premise from which the referral order moves, according to which the sanction provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified, for the violation of the obligation of the eligibility certificate for entertainment workers, has a punitive nature for the effects of the ECHR and, therefore, is subject to the guarantees provided by it, including the principle of retroactivity of the lex mitior.

14.1.– This Court considers it appropriate to briefly reconstruct the regulatory framework of reference.

14.1.1.– Art. 6 of Legislative Decree no. 708 of 1947, as ratified, in the text in force ratione temporis, established, in the second paragraph, that «[t]heatrical, cinematographic and circus businesses, tent theatres, entities, associations, public establishment businesses, hotels, radio-television broadcasters and sports facilities [could not] allow entertainment workers belonging to the categories indicated from no. 1 to no. 14 of article 3, who [were] not in possession of the eligibility certificate provided for by article 10, to work in premises owned or to which they [had] a personal right of use».

The third paragraph established that «[i]n case of failure to comply with the provisions of the preceding paragraph, companies [were] subject to the administrative sanction [of 129 euros] for each worker and for each working day performed by each».

Following the amendments made by Art. 1, paragraph 1097, of Law no. 205 of 2017—object of today's issues of constitutional legitimacy—the new paragraph 1 of the amended Art. 6 provided that, for the same subjects, the obligation of the aforementioned certificate «did not exist regarding entertainment workers belonging to the categories indicated from number 1) to number 14) of the first paragraph of article 3 with an employment contract when used in premises owned or to which they [had] a personal right of use for which the same companies carried out regular social security contributions to the INPS». The aforementioned obligation persisted, instead, for self-employed workers belonging to the same categories, «with a works contract of a duration exceeding thirty days and contracted for specific events, of limited duration within the span of time of the overall programming of the enterprise, singular and not repeated compared to the seasons or production cycles» and, in any case, «whenever a performance [was] rendered» by said workers «in premises owned or to which the commissioning companies [had] a personal right of use».

Paragraph 2 left unchanged the administrative sanction applicable in case of violation of the eligibility certificate obligation, in the measure «of 129 euros for each worker and for each working day performed by each».

Following the amendments made in 2017, therefore, this obligation was provided for solely in relation to self-employment relationships, including those of collaboration, of a duration not less than thirty days, with the exclusion of subordinate employment relationships provided the employer had made «regular social security contributions». The requirement of the worker's membership in one of the professional categories referred to in Art. 3, first paragraph, numbers 1) to 14), of Legislative Decree no. 708 of 1947 and that of their employment in premises owned by the commissioner or to which the latter had a personal right of use remained, for the purposes of the rise of the eligibility certificate obligation.

Paragraph 1 of the mentioned Art. 6 was further amended by Art. 3-quinquies, paragraph 1, letter a), of Decree-Law no. 135 of 2018, as converted; but—as already highlighted in the previous point 9—this amendment does not apply in these proceedings.

14.1.2.– The offence provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified, consists in "allowing to work”, i.e., employing, workers (now only self-employed) belonging to one of the professional categories referred to in the previous Art. 3, first paragraph, numbers 1) to 14), who are not in possession of the eligibility certificate, the regulation of which is dictated by the subsequent Arts. 9 and 10.

In brief summary, the aforementioned certificate must be requested from ENPALS by entertainment businesses and by other subjects indicated in the same Art. 6, «not later than five days from the conclusion of the contracts» and, in any case, before the performance of the working activity, following the indication of the «daily remuneration paid and [of] all other information that will be requested by the Institute for registration and for the assessment of contributions» (Art. 9, paragraphs third and first); its issuance is «subordinated to the fulfillment by the company of the obligations placed by law on its charge» (Art. 10, second paragraph).

The eligibility certificate obligation responds, in substance, to the «purpose [...] of making known to the supervisory bodies the presence of certain workers in the workplace, so as to enable them to carry out as best as possible and completely the controls of their competence» regarding the contribution regularity of the company requesting it; regularity which constitutes in fact the premise of its issuance (Cass., ord. no. 9396 of 2024).

The offence under examination, however, does not consist in the non-fulfillment of the contribution obligation, but in the mere violation of the obligation to request and obtain the issuance of the aforementioned certificate for each worker employed, configuring itself as a permanent offence, the consumption of which lasts as long as the worker who is lacking it is employed (Court of Cassation, Labour Section, order no. 19527 of 10 July 2023 and judgment no. 3579 of 7 April 1998).

The sanction is determined by the second paragraph of Art. 6 in the fixed measure of 129 euros for each worker and for each day of work. The perpetuation of the illicit conduct resolves, therefore, «into a proportional increase of the single sanction provided for by the norm», with the consequence that—as the referring Court observes—neither the rules regarding concurrence or continuation of offences referred to in Art. 8 of Law no. 689 of 1981, nor the discipline referred to in Art. 11 of the same law, «expressly dictated with regard to the different case of the determination of the pecuniary administrative sanction fixed by the law between a minimum limit and a maximum limit» are applicable (Cass., no. 3579 of 1998).

14.2.– This Court shares the reconstruction of the referral order regarding the punitive nature pursuant to the ECHR of the sanction provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified.

14.2.1.– According to the constant jurisprudence of the Strasbourg Court, «"the existence or not of a ῾criminal charge’ must be evaluated on the basis of three criteria, indicated commonly by the name of ῾Engel criteria’ (Engel and others v. Netherlands, 8 June 1976, § 82, series A no. 22, A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016, and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and others 2, § 122, 6 November 2018). The first is the legal qualification of the crime in the internal law, the second is the nature itself of the crime and the third is the degree of severity of the sanction which the interested party incurs. The second and the third criterion can be alternative and not necessarily cumulative” (European Court of Human Rights, Grand Chamber, 8 July 2019, Mihalache v. Romania), even if "this does not prevent adopting a cumulative approach if the separate analysis of each criterion does not allow reaching a clear conclusion regarding the existence of a criminal charge” (European Court of Human Rights, Second Section, 4 March 2014, Grande Stevens v. Italy)» (judgment no. 198 of 2022).

With reference to the first criterion, «[i]t is irrelevant that the sanction is qualified as administrative by the internal system and that it is not imposed as a result of a criminal proceeding, in so far as "subordinating the criminal character of a measure, within the scope of the Convention, to the fact that the individual has committed an act qualified as a crime by the internal law and has been convicted for this crime by a criminal judge would clash with the autonomy of the concept of penalty” (European Court of Human Rights, Grand Chamber, judgment of 28 June 2018, GIEM srl and others v. Italy, paragraph 216, in coherence with the principles already affirmed by the same Court, Grand Chamber, judgment of 9 February 1995, Welch and others v. United Kingdom, paragraph 27)» (judgment no. 101 of 2025).

Conversely, «[w]hen the measure is not imposed following the conviction for a crime [as in the case in question], it is necessary to have regard to other aspects, which touch "the nature and the end of the measure in question; its qualification pursuant to the internal law; the procedures involved in the emission and implementation of the measure; and its severity” (ECtHR, First Section, judgment of 19 December 2024, Episcopo and Bassani v. Italy, paragraph 68; in the same sense, Third Section, judgment of 10 July 2012, Del Rio Prada v. Spain, paragraph 48, and the already cited Welch judgment, paragraph 28)» (again, judgment no. 101 of 2025).

In this case, the sanction provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified, for the violation of the obligation of the eligibility certificate for entertainment workers, is not formally qualified by the national system as a criminal sanction, but as an administrative sanction.

Its eventual punitive character must then be appreciated on the basis of the two substantial criteria of which it was said: «on one hand, the nature of the violation, inferred from its application scope, in that, to be "criminal”, it must be addressed to the "generality of associates” and not to those belonging to a particular system, and, above all, from the scope pursued, which must be "not merely compensatory, but repressive and preventive”; on the other, the nature and the severity of the sanction to which the interested party finds himself exposed, which must present "an afflictive connotation, being able to reach a significant degree of severity” (judgment no. 43 of 2017)» (again, judgment no. 198 of 2022).

14.2.2.– The sanction provided for by the mentioned Art. 6 has a function, at the same time, repressive and dissuasive, «entirely and completely superimposable to that characteristic of criminal sanctions» (judgment no. 149 of 2022). It, in fact, pursues the main objective of punishing—as emerges from its qualification as "sanction”, albeit administrative for the internal law—the failure to fulfill the obligation to request and achieve the issuance of the eligibility certificate before employing entertainment workers, resulting in being in charge of protecting general interests of society, usually protected by criminal law: the function of supervision over the correct contribution fulfillment.

The sanction in question is, in short, imposed as an «unfailing consequence of the offence» and expresses «the disapproval of the system for the conduct of the offender» (again, judgment no. 101 of 2025). It is, moreover, a merely formal violation, not requiring the integration of the offence, as already placed in evidence, the actual non-fulfillment of the contribution obligation and not having, therefore, the provision a compensatory purpose.

As regards severity, despite the pecuniary sanction not being of significant economic entity (129 euros), its calculation method can lead to a considerable amount, inflicting a notable economic sacrifice on the offender. It, in fact, is due in a fixed measure «for each day of work performed by each worker», without the determination of a maximum ceiling.

Being then a permanent offence, «i.e., of a single conduct that perpetuates itself in time» as long as the worker lacking the eligibility certificate is employed (Cass., no. 3579 of 1998 and, in the same sense, no. 19527 of 2023), the sanction can assume, already by its edictal frame, a significant degree of affliction, especially with reference to the hypothesis—which is relevant here—of subordinate employment relationships, given the stable and continuous character of the working performance.

14.2.3.– Having traced the pecuniary administrative sanction provided for by Art. 6 of Legislative Decree no. 708 of 1947, as ratified, to the "criminal matter” for the effects of the ECHR, it remains to verify whether the censured provision can be considered legitimate by the yardstick of the «"positive test of reasonableness” […], in relation to the need to protect interests of constitutional rank prevailing over the individual interest at stake» (judgment no. 63 of 2019).

This question must be answered negatively.

The need not to punish anymore the employer who, according to the subsequent law of 2017, can commit the same conduct—employing, without an eligibility certificate, workers hired with an employment contract—without incurring any sanction prevails, in the opinion of this Court, over the need to protect interests of analogous importance, such as that aimed at facilitating the function of supervision over the correct contribution fulfillment in protection of entertainment workers. Moreover, in the case in question, the introduction of limits to retroactivity in mitius could not even be justified by the need to protect other possible counter-interests of constitutional rank.

In the case in question, furthermore, one is not in the presence of a «revision of the entire sanctioning system» of a broad sector of the system (Court of Cassation, Tax Section, judgment no. 1274 of 19 January 2025), nor of a sanction which, due to its vast application scope, could have a huge incidence on the financial interests of the State, were it to come to an end for the past.

Moreover, as already placed in evidence, the offence for which the cause is sanctioned is a merely formal violation, to which does not correspond, or does not necessarily correspond, the actual non-payment of the contributions due.

Furthermore, as the referring Court correctly observes, the eligibility certificate obligation stands, with reference to subordinate employment relationships, as a duplicate of the obligation, imposed by Art. 9, first paragraph, of Legislative Decree no. 708 of 1947, as ratified, and autonomously sanctioned, «to denounce to the [National Social Security and Assistance Institute for Entertainment Workers] the persons occupied, indicating the daily remuneration paid and all other information that will be requested by the Institute for registration and for the assessment of contributions»; obligation which has the same purpose of allowing supervisory bodies to carry out the controls of their competence, in guarantee of the fulfillment of contribution obligations by the companies that hire entertainment workers.

The legislative choice not to apply retroactively the new discipline on the subject of violation of the eligibility certificate obligation does not pass the positive test of reasonableness and is, therefore, constitutionally illegitimate.

15.– For the reasons exposed above, the constitutional illegitimacy of Art. 1, paragraph 1097, of Law no. 205 of 2017 must be declared, in the part in which it does not provide for the retroactive application of the more favourable discipline dictated by it regarding the violation of the eligibility certificate obligation for entertainment workers.

for these reasons

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Art. 1, paragraph 1097, of Law no. 205 of 27 December 2017 (State Budget for the 2018 Financial Year and Multi-year Budget for the 2018-2020 Period), in the part in which it does not provide for the retroactive application of the more favourable discipline dictated by it regarding the violation of the eligibility certificate obligation for entertainment workers

2) declares inadmissible the question of constitutional legitimacy of Art. 1, paragraph 1097, of Law no. 205 of 2017, raised, in reference to Art. 117, first paragraph, of the Constitution, in relation to Art. 49(1) of the Charter of Fundamental Rights of the European Union, by the Court of Cassation, Joint Civil Divisions, with the order indicated in the epigraph.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 13 April 2026.

Signed:

Giovanni AMOROSO, President

Francesco Saverio MARINI, Reporting Justice

Igor DI BERNARDINI, Chancellor

Deposited in the Chancellor's office on 12 May 2026

 

The anonymized version is conformant, in text, to the original