JUDGMENT NO. 125
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Giovanni AMOROSO;
Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
JUDGMENT
in the proceedings regarding the constitutional legitimacy of Article 509, paragraph 3, of Legislative Decree no. 297 of April 16, 1994 (Approval of the consolidated text of legislative provisions in force concerning education, relating to schools of all levels and grades), initiated by the Court of Cassation, Fourth Civil Section, in the proceedings between R. P. and the Ministry of Education and Merit, by ordinance of September 6, 2025, registered under no. 258 of the 2025 register of ordinances and published in the Official Gazette of the Republic no. 2, special series, of the year 2026, the hearing for which was scheduled for the chambers session of May 18, 2026.
Having heard, in the chambers session of May 20, 2026, the Reporting Judge Massimo Luciani;
deliberated in the chambers session of May 20, 2026.
Statement of Facts
1.– By ordinance of September 6, 2025, registered under no. 258 of the 2025 register of ordinances, the Court of Cassation, Fourth Civil Section, raised *ex officio*, with reference to Article 38 of the Constitution and the principle of reasonableness, questions of constitutional legitimacy regarding Article 509, paragraph 3, of Legislative Decree no. 297 of April 16, 1994 (Approval of the consolidated text of legislative provisions in force concerning education, relating to schools of all levels and grades), "in the part where, in providing that 'Personnel who, upon reaching the age of sixty-five, have not reached the number of years required to obtain the minimum pension, may be retained in service until such minimum seniority is achieved', it stipulates that the employment relationship may continue 'and, in any case, not beyond the age of seventy' and not, instead, 'and, in any case, not beyond the age of seventy or the different older age identified by taking into account the adjustment to life expectancy pursuant to Article 12 of Decree-Law no. 78 of 2010'."
1.1.– The referring Court reports that it is called upon to decide on the preliminary referral ordered, pursuant to Article 363-bis of the Code of Civil Procedure, by the Ordinary Court of Lecce, acting as a labour court, by ordinance of February 27, 2025.
Regarding the facts, it states that R. P. had filed an action with said Court to ascertain and declare: a) the illegitimacy of the measure by which the Ministry of Education and Merit had ordered her termination from service; b) her right to be retained in service "up to the age of 71, thus being able to reach the minimum contribution by redeeming university years and the year of legal tenure or, in any case, reaching, at the age of 70/71, the minimum pension (Dini Law), having started paying contributions after 1996."
It specifies that R. P., having reached the age of sixty-seven and lacking sufficient contributions to obtain a pension, had filed an application on October 13, 2023, for retention in service "up to the age of 70/71" and that, following the rejection of the application and retirement without a pension on August 31, 2024, she had challenged the legitimacy of the latter measure in court and requested the ascertainment of the right to be retained in service (ordering the competent administrations to proceed accordingly), arguing for a constitutionally oriented interpretation of Article 509, paragraph 3, of Legislative Decree no. 297 of 1994. It also reports that R. P. had concurrently filed a subordinate claim for damages.
It adds that, in the opinion of the referring judge, since R. P. had not submitted any redemption application, the only relevant issue in the proceedings would concern the possibility of her retention in service up to the limit of seventy-one years of age, which would be inferable from the provision of Article 24, paragraph 7, of Decree-Law no. 201 of December 6, 2011 (Urgent provisions for growth, equity and the consolidation of public accounts), converted, with amendments, into Law no. 214 of December 22, 2011, according to which, for the purposes of obtaining the old-age pension, "[t]he aforementioned minimum amount requirement is waived if the person is seventy years of age, provided that there is a minimum effective contribution seniority of five years", in conjunction with Article 12 of Decree-Law no. 78 of May 31, 2010 (Urgent measures regarding financial stabilization and economic competitiveness), converted, with amendments, into Law no. 122 of July 30, 2010.
Given this, it reports that the preliminary referral ordered by the Court of Lecce concerns the following question of law: "whether Article 509, paragraph 3, of Legislative Decree 297/1994 must be interpreted in the sense that the relative retention in service can be ordered only if it allows reaching – by the 71st year of age – the minimum contribution of 20 years for the enjoyment of the old-age pension (and, for those to whom it applies, if the amount of the pension will not be lower than the threshold amount of 1.5 times the annually revalued social allowance) or if it can be ordered, even regardless of the contribution requirement, in order to allow the applicant to reach the maximum age provided for by the rule (including adjustment to life expectancy) with consequent acquisition of the right to the enjoyment of the old-age pension ex Article 24, paragraph 7, last period, of Decree-Law 201/2011 cit. (current requirements: 71 years of age and 5 years of contributions)."
1.2.– Regarding relevance, the referring Court considers that the questions of constitutional legitimacy are preliminary to the decision of the question posed to it by the Court of Lecce, which concerns two possible interpretations of the aforementioned Article 509, paragraph 3, of Legislative Decree no. 297 of 1994.
According to a first interpretative option, the right to retention in service "would subsist even if, upon reaching the age of seventy, the contribution requirement is not achieved." The literal wording of the provision would be relevant in this sense, "which would not expressly link retention in service to whether or not the contribution seniority required by law is achieved, but, instead, would provide for the sole limit constituted by the chronological age of 70 years", so that retention in service would be possible "beyond the limit of 67 years" even to allow "the worker to increase contribution seniority in any case, with possible repercussions on the pension amount."
According to an opposing interpretative orientation, conversely, the retention in service of school personnel would be possible "only if it allows reaching the minimum contribution seniority essential for obtaining the right to the old-age pension." Decisive, from this perspective, would be the expression "until the achievement of such minimum seniority", which would indicate "the functionalization of the retention in service of school personnel to the achievement of the contribution requirement for the old-age pension and not to the mere prolongation of the working career."
Given this, relevance would derive from the fact that, "even if this Panel were to accept the broader interpretation of the aforementioned Article 509, paragraph 3", the retention in service of the applicant could not continue beyond the age of seventy and "[i]n this way [...] the worker's subordinate claim could not be fully accepted, given that, in her case, the simple prolongation of service up to 70 years would not guarantee her the achievement of a pension treatment", it being "procedurally established that [...] she would have to wait, in the best case, for [...] her 71st birthday." And "[w]hile the question posed by the Court of Lecce [...] pertains, effectively, to the interpretation of a provision of law, this further profile concerns a different problem, as what is at stake, rather, is the existence of an axiological gap that cannot be overcome by way of hermeneutics."
The provision of Article 24, paragraph 4, second period, of Decree-Law no. 201 of 2011 would not assist in this purpose, in the converted text to which reference is made here and below, as also for other decree-laws, which – in the text in force on August 31, 2024, the date of the worker's retirement and prior to the amendment made by Article 1, paragraph 162, of Law no. 207 of December 30, 2024 (State budget for the financial year 2025 and multi-year budget for the 2025-2027 three-year period) – provided that "[t]he continuation of working activity is incentivized, without prejudice to the organizational limits of the respective sectors to which they belong, by the operation of transformation coefficients calculated up to the age of seventy, without prejudice to adjustments to life expectancy, as provided for by Article 12 of Decree-Law no. 78 of May 31, 2010, converted, with amendments, by Law no. 122 of July 30, 2010, and subsequent amendments and additions." By express regulatory provision, in fact, the incentive for the continuation of working activity deriving from the operation of transformation coefficients calculated taking into account adjustments to life expectancy must still respect "the organizational limits of the respective sectors to which they belong", while – pursuant to the provision of Article 24, paragraph 4, first period, of Decree-Law no. 201 of 2011 – the old-age pension "may be obtained at the age at which the minimum requirements provided for by the following paragraphs operate", thus including paragraph 7, according to which "[t]he right to the old-age pension referred to in paragraph 6 is obtained in the presence of a minimum contribution seniority equal to 20 years, provided that the pension amount results in being not lower, for workers for whom the first contribution credit starts after January 1, 1996, than the amount of the social allowance referred to in Article 3, paragraph 6, of Law no. 335 of August 8, 1995", without prejudice to the possibility of waiving "the aforementioned minimum amount requirement if in possession of a chronological age equal to seventy years, provided that there is a minimum effective contribution seniority of five years."
Since the maximum age limit of seventy years must therefore be considered unchanged, the judge *a quo* adds that Article 2, paragraph 5, of Decree-Law no. 101 of August 31, 2013 (Urgent provisions for the pursuit of rationalization objectives in public administrations), converted, with amendments, into Law no. 125 of October 30, 2013, could not lead to different conclusions either, which, in authentically interpreting Article 24, paragraph 4, second period, of Decree-Law no. 201 of 2011, established that "for employees of public administrations the organizational limit, provided for by the individual sectors of belonging for retirement *ex officio* and in force on the date of entry into force of the decree-law itself, is not modified by the increase in the chronological requirements provided for the old-age pension and constitutes the limit that cannot be exceeded, if not for retention in service or to allow the interested party to achieve the first useful effective date of the pension where it is not immediate, upon reaching which the administration must terminate the employment or service relationship if the worker has achieved, for any reason, the requirements for the right to a pension." It would, in fact, be "a provision that interprets the aforementioned Article 24, paragraph 4, with the consequence that it remains subject to its own limits (including that, of seventy years, of the following paragraph 7", so that it would allow "the interested party to remain in service until the achievement of the pension treatment, always, however, in compliance with the limits [...] of paragraph 7."
1.3.– Regarding the non-manifest groundlessness, the judge *a quo* highlights that it would be supported by the precedents of this Court regarding retention in service. It would, in fact, emerge "the need to protect both the minimum pension and the legislature's discretion in [...] varying treatments in relation to different professional figures", save for the constraint of allowing workers to achieve the "minimum pension, through the instrument of derogation from the ordinary age limits provided for each category of public employee" (judgments no. 33 of 2013 and no. 227 of 1997 and ordinances no. 195 of 2000 and no. 57 of 1992 are cited) and without prejudice, moreover, to the fact that "[t]he derogation from maximum age thresholds, for the purpose of achieving the primary good of the minimum pension", encounters, in turn, the physiological limit of "energy compatible with the continuation of the relationship", obviously to be updated in relation to the "positive reflections of the general improvement in the living and health conditions of workers on their work capacity" (judgments no. 90 of 1992, no. 282 of 1991, no. 444 of 1990 and no. 461 of 1989 are cited).
Given this, the judge *a quo* considers it inconsistent with Article 38, second paragraph, of the Constitution, that a worker, at the time of the termination of the employment relationship due to reaching age limits, may find themselves deprived simultaneously of salary and pension. It highlights that such a need has also been felt by the jurisprudence of legitimacy, when it stated that the chronological limit, which the legislation imposes on the public administration for the retention in service of its employees, can be derogated only if its application deprives the employee of the right to a pension (Court of Cassation, Labour Section, ordinance November 12, 2024, no. 29183 is cited) and that the legislature itself "tends to avoid as much as possible the occurrence, for school personnel, of cases of failure to achieve the right to a pension at the time of termination from service due to age and, indeed, extends the applicability of institutes having a similar purpose also to other sectors of the legal system" (again, judgments of this Court no. 444 of 1990, no. 461 of 1989 and no. 238 of 1988 are cited, and Article 24, paragraphs 4 and 7, of Decree-Law no. 201 of 2011 and Article 2, paragraph 5, of Decree-Law no. 101 of 2013 are recalled).
Therefore, reiterated that "it cannot [...] be considered that a rule has been introduced into our legal system, at least with reference to public employment, that imposes an automatic adaptation of the maximum age of retention in service provided for in individual sectors to the life expectancy referred to in Article 12 of Decree-Law no. 78 of 2010, conv., with amendments, by Law no. 122 of 2010", the referrer asks this Court to clarify "whether Article 38 of the Constitution must be interpreted in the sense that it opposes a provision that precludes a public employee who ceases service due to reaching age limits from obtaining a pension treatment immediately (or in acceptably short times)" and, specifically, whether the provision of "a maximum age ceiling for retention in service in the school sector that is fixed and untied from any connection with the adjustment to life expectancy" is consistent with it, especially considering that the trend towards liberalization of the age limit for participation in public competitions, introduced by Article 3, paragraph 6, of Law no. 127 of May 15, 1997 (Urgent measures for the streamlining of administrative activity and decision-making and control procedures), now makes it much more likely that someone who has been hired in the employ of a public administration at an advanced age will reach the chronological threshold provided as a maximum limit for retention in service without having achieved the right to a pension.
2.– On January 29, 2026, the National Association of Teachers and Trainers (ANIEF) filed a written opinion in its capacity as *amicus curiae*.
In urging the acceptance of the questions of constitutional legitimacy raised by the judge *a quo*, the *amicus* remarks that, while Article 24, paragraph 7, of Decree-Law no. 201 of 2011 provides that the old-age pension calculated according to the contributory system is achieved upon reaching the chronological age of seventy, gradually adjusted to the increase in life expectancy, and provided that there are at least five years of effective contribution, Article 509, paragraph 3, of Legislative Decree no. 297 of 1994 allows the employee's retention in service "in a rigid manner and not connected to the adjustment to life expectancy [...] for which the worker, ceasing service at 70 years, remains for one year deprived of both salary and pension."
ANIEF also highlights that "[t]he category most affected is that of workers under the pure contributory system, hired after January 1, 1996, for whom the achievement of the ordinary old-age pension requires 20 years of contributions and the reaching of a minimum amount threshold equal to 1.5 times the social allowance", since "[t]hose who do not reach these requirements can access the pension only upon reaching 71 years of age with at least 5 years of contributions."
On the merits, it recalls the jurisprudence of this Court on the "right to the achievement of the minimum pension constitutionally protected by Article 38 of the Constitution" (judgments no. 94 of 2025, no. 195 of 2024, no. 70 of 2015 and no. 215 of 2014 are cited) and on retention in service (judgments no. 131 of 2018, no. 33 of 2013 and no. 227 of 1997 are cited) and points out that Article 4 of Decree-Law no. 198 of December 29, 2022 (Urgent provisions regarding legislative terms), converted, with amendments, into Law no. 14 of February 24, 2023, derogated for the companies of the National Health Service from the limit of seventy years set for retention in service, establishing, in paragraph 9-*octiesdecies*, that "[i]n order to meet the needs of the National Health Service and to guarantee the essential levels of assistance, in the absence of an offer of contract-based medical personnel who can be placed, the companies of the National Health Service, until December 31, 2026, may retain in service, at the request of the interested parties, medical personnel under the contract-based regime with the National Health Service referred to in Legislative Decree no. 502 of December 30, 1992, in derogation from the limits provided for by the provisions in force for retirement, up to the completion of the seventy-second year of age and in any case within the aforementioned date."
Finally, recalling the jurisprudence of legitimacy in which it was acknowledged that "[e]ven for central European Courts, budgetary reasons and spending containment, while constituting a legitimate purpose, do not respond to the principles of proportionality when their application determines the injury of fundamental rights of persons" (Court of Cassation, Labour Section, ordinances October 29, 2024, no. 27872 and no. 27874 are cited) and that the organizational age limit can be derogated if its application deprives the employee of the right to a pension (Cass., no. 29183 of 2024 is cited), the *amicus* highlights that Article 509, paragraph 3, of Legislative Decree no. 297 of 1994 would violate "also Article 117, first paragraph, of the Constitution, in relation to Article 34 of the CFR, which guarantees 'the right of access to social security benefits and social services which provide protection'."
3.– The above-described opinion was admitted by presidential decree of April 13, 2026.
Considered in Law
4.– The Court of Cassation, Fourth Civil Section, with the ordinance indicated in the header (reg. ord. no. 258 of 2025) raised *ex officio*, with reference to Article 38 of the Constitution and the principle of reasonableness, questions of constitutional legitimacy of Article 509, paragraph 3, of Legislative Decree no. 297 of 1994, in the part where, in providing that "[p]ersonnel who, upon reaching the age of sixty-five, have not reached the number of years required to obtain the minimum pension, may be retained in service until the achievement of such minimum seniority", it establishes that the employment relationship may continue "not beyond the age of seventy" and not, instead, not beyond the age of seventy or the different older age identified by taking into account the adjustment to life expectancy pursuant to Article 12 of Decree-Law no. 78 of 2010, to which, as already indicated in the narrative, reference is made, as for other decree-laws, in the text following the conversion.
4.1.– The questions were raised in the context of a proceeding originating from a preliminary referral ex Article 363-bis of the Code of Civil Procedure, ordered by the Court of Lecce. The referring Court reports that said judge was called upon to decide on the appeal filed by R. P. against the measure by which her retirement had been ordered, due to reaching age limits, without her having yet achieved the right to the old-age pension. The Court of Lecce deemed it appropriate to consult it to resolve the doubt whether Article 509, paragraph 3, of Legislative Decree no. 297 of 1994 must be interpreted in the sense that the retention in service of the public employee can be ordered only if it allows him/her to reach the minimum contribution of twenty years provided for the enjoyment of the old-age pension by Article 24, paragraph 6, of Decree-Law no. 201 of 2011, or if it can be ordered also in order to allow him/her to reach the maximum chronological age provided by the rule (which, in the Court's perspective, should be understood as including adjustments to life expectancy referred to in Article 12 of Decree-Law no. 78 of 2010) for the purposes of the enjoyment of the old-age pension referred to in Article 24, paragraph 7, last period, of the same decree-law, which – as far as is relevant here – certainly grants such provision to employees who have reached seventy years, provided with "a minimum effective contribution seniority of five years."
4.2.– The regulatory data highlight the possibility that, during the proceeding introduced by Article 363-bis of the Code of Civil Procedure, questions of constitutional legitimacy may be raised. The Court of Cassation, in fact, is called upon there to resolve "an exclusively legal question" proposed to it by the referring judge, enunciating a "principle of law" which – pursuant to the last paragraph of Article 363-bis of the Code of Civil Procedure and in a manner quite similar to what is provided by Articles 384, second paragraph, and 393 of the Code of Civil Procedure – will be "binding in the proceeding within which the question was referred and, if this expires, also in the new trial in which the same question is proposed between the same parties."
That the enunciation of the principle of law by the Court of Cassation relates strictly to the judicial function, "as the maximum expression of the nomophylactic function that the Court of Cassation itself is institutionally called upon to perform", was affirmed by this Court also with regard to the different case of Article 363, third paragraph, of the Code of Civil Procedure, in which – as is known – such enunciation occurs by abstracting from "the composition of the substantive interests asserted in the previous phases of the judgment *a quo*", the nomophylactic pronouncement remaining "unproductive of effects on the measures of the judges of the previous degrees of the judgment" (judgment no. 119 of 2015).
Also in the proceeding ex Article 363-bis of the Code of Civil Procedure the judge of legitimacy, although – this time – in a preliminary referral, exercises the judicial function and also in this case does so by enunciating a principle of law. Article 23, second paragraph, of Law no. 87 of March 11, 1953 (Rules on the constitution and functioning of the Constitutional Court), provides that "if the judgment cannot be defined independently of the resolution of the question of constitutional legitimacy" the judge can promote the constitutional incident. In the vast majority of cases this prerequisite occurs when the rule object of the doubt of constitutionality must be immediately applied to the relationships deduced in the main judgment, but it may well happen that such immediate application is lacking. It is indeed necessary to consider that the promotion of the incidental question of constitutional legitimacy is the instrument that ensures the primacy of the Constitution, allowing the judge not to make use of a rule in a hypothetically unconstitutional hypothesis, so that the resort to said instrument cannot be precluded to a judge who, like that (of legitimacy) proceeding ex Article 363, third paragraph, or ex Article 363-bis of the Code of Civil Procedure, is undoubtedly called upon to use the rules from whose interpretation depends the content of the principle of law that he must enunciate. The very logic of Article 23, second paragraph, of Law no. 87 of 1953 imposes this conclusion, but it can also be added that, if this were not so, an intolerable gap would be determined in the system, causing one of those "shadow zones" of the constitutional review that this Court has repeatedly intended to eliminate (judgments no. 120 of 2024, no. 89 of 2023 and no. 13 of 2019), precisely because their presence prevents the full expansion of the principle of the primacy of the Constitution.
4.3.– It must also, preliminarily, be considered that the specific case originates from the resolution of the employment relationship that was operated by the Ministry of Education to the detriment of an employee who, although having reached the chronological age provided for the old-age pension (currently set at 67 years), has not, however, achieved such pension because she is lacking the minimum contribution requirement useful for the maturation of the relative right.
The contribution requirements for access to the old-age pension are in fact independently established by Article 24, paragraphs 4 et seq., of Decree-Law no. 201 of 2011 and are set at 20 years of contributions (paragraph 7). Moreover, for pensions calculated entirely according to the contributory regime, it is necessary that the amount of the pension deriving from the total amount of contributions paid is at least equal to the social allowance, unless 70 years have been reached and there is a contribution seniority of at least 5 years (paragraph 7).
Given this, it is observed that, regarding relevance, the referring Court considers the premise from which the Court of Lecce started in the proposal of the preliminary question erroneous, that is to say that the age limit for retention in service provided for by Article 509, paragraph 3, of Legislative Decree no. 297 of 1994 must be considered as including the adjustments to life expectancy introduced by Article 12 of Decree-Law no. 78 of 2010 and can therefore also extend beyond the seventieth year of age. The aforementioned Article 509, in fact, in providing on the subject of retirement of school personnel due to reaching age limits, establishes textually that "[p]ersonnel who, upon reaching the age of sixty-five, have not reached the number of years required to obtain the minimum pension, may be retained in service until the achievement of such minimum seniority and, in any case, not beyond the age of seventy." For its part, Article 24, paragraph 4, of Decree-Law no. 201 of 2011, in the text in force at the time of the events for which the case is brought, still identified in the "organizational limits of the respective sectors to which they belong" the maximum threshold for the retention in service of public employees in dependence on adjustments to life expectancy. Consequently, according to the referring Court, even accessing the hermeneutical option aimed at allowing the public employee to be retained in service in order to reach the maximum chronological age useful for the old-age pension with a reduced contribution requirement, ex Article 24, paragraph 7, of Decree-Law no. 201 of 2011, the retention in service of the applicant could never last beyond the seventieth year of age, which would negatively affect the acceptance of her request, it being "procedurally established that [R. P.] could not go on pension at 70 years, but would have to wait, in the best case, [...] the completion of 71 years." Of the two treatments provided – respectively – by paragraphs 6 and 7 of Article 24 of Decree-Law no. 201 of 2011, therefore, in the main judgment the second is relevant, as of now.
Correctly the referring Court observes that, in order to deny relevance to the *quaestio*, it would not be useful to recall Article 2, paragraph 5, of Decree-Law no. 101 of 2013, which – in dictating the authentic interpretation of Article 24, paragraph 4, second period, of Decree-Law no. 201 of 2011, before being repealed by Article 1, paragraph 163, of Law no. 207 of 2024 – had specified that the organizational limit provided by the individual sectors of belonging for retirement *ex officio* "constitutes the limit that cannot be exceeded, if not for retention in service or to allow the interested party to achieve the first useful effective date of the pension where it is not immediate." Putting aside the – nevertheless decisive – observation of the referrer that, being a rule of interpretation of the aforementioned Article 24, paragraph 4, second period, it would remain subject to the same limits as the latter, including that of seventy years referred to in the following paragraph 7, it results from the preparatory works that the aforementioned Article 2, paragraph 5, was aimed at "clarifying in an unequivocal manner [...] the regime applicable to workers who have achieved the pension requirement by 2011 and the saving of the organizational limits for public employees", saving that had become controversial following a judgment of the administrative judge (Regional Administrative Court for Lazio, section first quater, judgment January 10, 2013, no. 2446) which, partially annulling a circular of the Department of the Public Function, had allowed an employee who had achieved the right to a pension prior to the entry into force of Article 24 of Decree-Law no. 201 of 2011 to remain in service until the completion of the sixty-sixth year of age.
4.4.– Taking into account that, for the purposes of the admissibility of the questions, it is sufficient that the challenged rule is applicable in the judgment *a quo* and that the judgment of acceptance can affect the exercise of the judicial function, at least for the profile of the argumentative path that supports the decision of the main process (thus, among the most recent, judgment no. 129 of 2025), the questions raised appear undoubtedly relevant, the doubt of constitutional legitimacy invalidating one of the two possible interpretations of the rule object of the preliminary referral.
4.5.– As for, finally, the profiles of constitutional illegitimacy indicated by the *amicus curiae* in addition to those of the referral ordinance, they "are not subject to evaluation by this Court" (judgment no. 180 of 2021), it not being permitted to the parties (nor – obviously – to the *amicus curiae*) to expand the *thema decidendum* (lately, judgment no. 4 of 2025).
5.– On the merits, the questions are well-founded.
Constitutional jurisprudence has long consolidated a trend aimed at recognizing in Article 38, second paragraph, of the Constitution, an insurmountable obstacle with respect to the possibility that the legislature misaligns the chronological age set as a limit for the permanence in the roles of public employment with respect to the chronological age set for the achievement of the minimum pension. More precisely, in recognizing the legislature wide discretion in determining the retirement age, this Court has subjected to stricter scrutiny the rules that set the chronological age limit for the permanence in the roles of the public administration, declaring their constitutional illegitimacy whenever the mandatory resolution of the relationship that they imposed intervened at a time when the public employee had not yet matured the right to a pension or, at the very least, some other utility that allowed him to have means adequate to live (judgments no. 131 of 2018, no. 33 of 2013, no. 227 of 1997, no. 90 of 1992, no. 282 of 1991, no. 444 of 1990 and no. 461 of 1989). This, not without specifying that "on the constitutional level the good protected is represented by the achievement of the pension at the 'minimum', while the achievement of the maximum pension treatment does not enjoy equal protection; and that in particular the discipline of retention in service, beyond the age limit set for retirement, falls within the discretionary sphere of the legislature, provided that the canon of reasonableness is not violated" (ordinance no. 195 of 2000; in the same sense, judgment no. 227 of 1997 and ordinance no. 57 of 1992).
It is true that the determination of a chronological age threshold beyond which permanence in service is no longer possible is justified by the progressive decrease, as age increases, of the energies necessary for the profitable performance of the work service. It is, however, no less true that "the presumption according to which at the completion of sixty-five years one arrives at a diminished availability of energy incompatible with the continuation of the relationship 'is destined to be increasingly invalidated by the positive reflections of the general improvement in the living and health conditions of workers on their work capacity'" (judgment no. 444 of 1990). It is in this perspective that the periodic adjustment of access requirements to the pension system to increases in life expectancy must be read, as now regulated by Article 12, paragraph 12-*bis*, of Decree-Law no. 78 of 2010.
5.1.– This established, the referral ordinance has highlighted that, in the specific case, "the worker [remained] deprived, simultaneously, of salary, because by now become too old to work, and [of] pension, not having reached the age ceiling imposed by the adjustment to life expectancy pursuant to Article 12 of Decree-Law no. 78 of 2010", specifying that such situation "would have occurred even if [...] she had remained in service up to 70 years of age (maximum ceiling established by Article 509, paragraph 3, cited)." Hence the doubt "whether the legislature can impose a maximum age ceiling for retention in service in the school sector that is fixed and untied from any connection with the adjustment to life expectancy pursuant to Article 12 of Decree-Law no. 78 of 2010 [...] or if, rather, this is not a choice of the legislature that violates the provision of Article 38 of the Constitution, it being clearly unreasonable to admit the possibility of a retention in service to mature the minimum pension requirements and, however, to impose a maximum ceiling to said retention which, certainly, will prevent, for those who entered service too late in public employment, from obtaining a pension."
5.2.– In this regard, it should be recalled that, in the past, the jurisprudence of this Court considered the completion of seventy years of age as the maximum limit for derogating from the chronological age threshold provided by the various systems for retirement (see, in particular, judgments no. 33 of 2013, no. 90 of 1992, no. 282 of 1991 and no. 444 of 1990). However, in the presence of a mechanism such as that now regulated by Article 12, paragraph 12-*bis*, of Decree-Law no. 78 of 2010, which periodically adjusts the requirements for access to the old-age pension to increases in life expectancy, the setting of a maximum age ceiling for retention in service, which is not modulated on it, is destined to enter into tension not only with Article 38, second paragraph, of the Constitution, but also with the principle of reasonableness (in the case, intrinsic) that this Court has constantly derived from Article 3, first paragraph, of the Constitution (among the most recent, judgments no. 7 of 2026, no. 95 of 2024, no. 83 of 2021; ordinance no. 3 of 2020).
Without prejudice to the fact that – pursuant to the constant constitutional jurisprudence recalled *supra*, in point 5 – it cannot be admitted that the public employee must obligatorily suffer the automatic resolution of the employment relationship before having achieved the minimum requirements for the right to the old-age pension or, at the very least, to some other economic utility (otherwise resulting in a violation of Article 38, second paragraph, of the Constitution), it must in addition be noted that the logic of the contributory system, applicable in the relationship deduced in the main judgment, is governed by "a judgment of disvalue expressed by the legal system towards the anticipated exit from the labor market of the subject who, although still in possession of work capacity, has not however accumulated a [notional] financial provision suitable to guarantee him, in old age, an amount of pension treatment adequate to the social security function that the latter must perform" (judgment no. 94 of 2025).
It follows that the legislature cannot set a maximum chronological threshold for the retention in service of the employee that is *a priori* detached from the moment in which he will mature the contribution and chronological seniority minimum required for the right to the old-age pension. Being an "exception with respect to the rule of retirement upon reaching the organizational age limit", which has the purpose of "protecting 'the interest of the worker to be retained in service for the time necessary for the achievement of the normal pension', 'in the perspective of a broader implementation of the right guaranteed by Article 38, second paragraph, of the Constitution'" (judgment no. 131 of 2018), the setting of a maximum chronological threshold for retention in service, which is not correlated to the progressive adjustment of access requirements to the old-age pension to increases in life expectancy, provides a remedy potentially unsuitable for achieving the purpose and, betraying the very *ratio legis*, highlights the intrinsic unreasonableness of the rule.
Nor is there to fear that the reference to life expectancy can lead to the retention of personnel who, due to age and related conditions of psycho-physical fitness, result unsuitable for service. Leaving aside, in fact, every consideration on the fact that, at current law, a retention *ad libitum* could not intervene, since the measure is functional to the achievement of the minimum pension, the legal system knows legal instruments, implementing Articles 32 and 97 of the Constitution, useful to protect the interest of the administration in having available personnel always efficient and suitable and the right of employees to health.
Therefore, the constitutional illegitimacy of Article 509, paragraph 3, of Legislative Decree no. 297 of 1994 must be declared, in the part in which, in providing that "[p]ersonnel who, upon reaching the age of sixty-five, have not reached the number of years required to obtain the minimum pension, may be retained in service until the achievement of such minimum seniority", it establishes that the employment relationship may continue "not beyond the age of seventy" and not, instead, "not beyond the age of seventy or the different older age identified by taking into account the adjustment to the increases in life expectancy of the requirements for access to the old-age pension."
for these reasons
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy of Article 509, paragraph 3, of Legislative Decree no. 297 of April 16, 1994 (Approval of the consolidated text of legislative provisions in force concerning education, relating to schools of all levels and grades), in the part in which, in providing that "[p]ersonnel who, upon reaching the age of sixty-five, have not reached the number of years required to obtain the minimum pension, may be retained in service until the achievement of such minimum seniority", it establishes that the employment relationship may continue "not beyond the age of seventy" and not, instead, "not beyond the age of seventy or the different older age identified by taking into account the adjustment to the increases in life expectancy of the requirements for access to the old-age pension."
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 20, 2026.
Signed:
Giovanni AMOROSO, President
Massimo LUCIANI, Reporting Judge
Valeria EMMA, Chancellor
Deposited in the Registry on July 14, 2026
The anonymized version is consistent, in the text, with the original