ORDER NO. 131
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
ORDER
in proceedings concerning the constitutionality of Article 9, paragraph 1, of Legislative Decree No. 23 of March 4, 2015 (Provisions concerning open-ended employment contracts with increasing protections, in implementation of Law No. 183 of December 10, 2014), brought by the Ordinary Court of Padua, acting as a labour court, in the proceedings pending between S. M. and M. srl, by means of the order of July 16, 2025, registered under No. 212 of the 2025 register of orders and published in the Official Journal of the Republic, 1st special series, No. 45, of the year 2025.
Having regard to the appearance entered by the President of the Council of Ministers;
having heard in chambers on March 23, 2026, the Judge Rapporteur Antonella Sciarrone Alibrandi;
having deliberated in chambers on March 23, 2026.
Whereas, by order of July 16, 2025, registered under No. 212 of the 2025 register of orders, the Ordinary Court of Padua, acting as a labour court, raised a question of constitutional legitimacy concerning Article 9, paragraph 1, of Legislative Decree No. 23 of March 4, 2015 (Provisions concerning open-ended employment contracts with increasing protections, in implementation of Law No. 183 of December 10, 2014), with reference to Articles 3, first paragraph, 4, 35, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 24 of the European Social Charter, adopted in Turin on October 18, 1961, and revised, with annex, in Strasbourg on May 3, 1996, ratified and made enforceable by Law No. 30 of February 9, 1999;
whereas the referring judge premised that they are called upon to rule on the claim brought by S. M. against the dismissal served upon her by M. srl for objective grounds, determined by the reorganization process of the sales department, with the consequent outsourcing of the sales activity;
whereas the same referring judge specifies that, contrary to the applicant's assertion – according to which the employment contract provided for the potential performance of her duties also at other companies within the group, so that the latter should have been considered as a single entity imputable for the employment relationship – the three respondent companies, having entered an appearance in the proceedings, requested that the claim be dismissed, contesting that the conditions existed to impute the employment relationship to them indiscriminately;
whereas, therefore, according to the Court of Padua – it being undisputed that M. srl, on its own, does not reach the workforce threshold provided for by Article 18 of Law No. 300 of May 20, 1970 (Rules on the protection of workers' freedom and dignity, trade union freedom and trade union activity in the workplace, and placement rules) – should the dismissal prove unlawful and the possibility be lacking to consider the three respondent companies unitarily as co-employers, application would have to be made of the censured provision, according to which the amount of the indemnity and the sums provided for by Articles 3, paragraph 1, 4, paragraph 1, and 6, paragraph 1, of the same Legislative Decree No. 23 of 2015 is halved and may not in any event exceed the limit of six months' salary;
whereas this provision – the referring judge further recalls – was the subject of this Court's judgment No. 183 of 2022, which – while ascertaining a breach of constitutional principles arising from the provision of an indemnity constrained within the narrow gap of a minimum of three and a maximum of six months' salary, such as not to allow the amount to be adjusted to the specificity of each individual case, the number of employees not being a sufficient indication to reflect the actual economic strength of the employer, especially within the framework determined by the incessant evolution of technology and the transformation of production processes – nevertheless declared that the indicated breach could not be remedied, it not being possible to redefine the maximum threshold of the indemnity, as requested, in the absence of pre-defined solutions;
whereas, in the aforementioned ruling, this Court had also stated that a further persistence of legislative inertia would not be tolerable and would lead it to take action if it were seized again;
whereas, according to the referring judge, the legislature's inertia, which has persisted since 2022, legitimizes the re-tabling of the questions concerning the constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2015, to which this Court should respond, this time by declaring the constitutional illegitimacy of the aforementioned provision;
whereas, in support of the inadequacy of the censured provision to allow for the individualization of the penalty, the specific features of the concrete case forming the subject of the main proceedings would militate, revealing an actual discrepancy between the number of employees and the actual economic strength of the enterprise (as the employer), as demonstrated by the existence, in this case, of a turnover higher than that provided for by the Decree of the Minister of Productive Activities of April 18, 2005 (Adaptation to Community rules of the criteria for identifying small and medium-sized enterprises) for micro-enterprises, as well as by the presence of synergies with other companies in the group, such as to constitute a factor of economic stability, cost reduction, and operational flexibility, including with regard to personnel management;
whereas, therefore, the aforementioned provisions of Article 9, paragraph 1, of Legislative Decree No. 23 of 2015, by failing to take into account the aforementioned discrepancy, would negatively affect both the adequacy of the compensation and the dissuasive scope of the applicable penalty, in violation of the right to work referred to in Articles 4 and 35, first paragraph, of the Constitution, which require that limits on the employer's power of withdrawal correct an existing factual imbalance in the employment contract;
whereas, finally, the declaration of constitutional illegitimacy limited to the provision of the maximum compensation of six months' salary would, on the one hand, preserve the differentiation in rules between larger and smaller enterprises and, on the other hand, offer the judge a broader punitive spectrum with which to adapt the compensatory indemnity to the specificities of the case, leaving unprejudiced the legislature's power to introduce more significant amendments to the substantive rules;
whereas, therefore, the Court of Padua requests that the constitutional illegitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2015 be declared, limited to the words "and may not in any event exceed the limit of six months' salary” due to violation of Articles 3, first paragraph, 4, 35, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 24 of the European Social Charter;
whereas the President of the Council of Ministers, intervening in the proceedings through the State Attorney General's Office, requested that the question be declared inadmissible due to the supervening lack of an object, since, by judgment No. 118 of 2025, this Court has already declared the constitutional illegitimacy of the aforementioned Article 9, paragraph 1, of Legislative Decree No. 23 of 2015, limited to the words "and may not in any event exceed the limit of six months' salary”.
Considered that, by the order indicated in the heading (reg. ord. No. 212 of 2025), the Court of Padua, acting as a labour court, raised a question concerning the constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2015, with reference to Articles 3, first paragraph, 4, 35, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 24 of the ESC;
whereas the censured provision – pursuant to which the amount of the indemnity and the sums provided for by Articles 3, paragraph 1, 4, paragraph 1, and 6, paragraph 1, of the same Legislative Decree No. 23 of 2015 is halved and may not in any event exceed the limit of six months' salary – would not allow the amount, squeezed within the narrow gap between a minimum of three and a maximum of six months' salary, to be adjusted to the specificity of each individual case, the number of employees not being a sufficient indication to reflect the actual economic strength of the employer, especially in light of the incessant evolution of technology and the transformation of production processes;
whereas, subsequent to the referring order, this Court, by judgment No. 118 of 2025, declared the constitutional illegitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2015, limited to the words "and may not in any event exceed the limit of six months' salary”;
whereas, by such ruling, this Court identified a breach of Articles 3, first paragraph, 4, 35, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 24 of the ESC, not in the provision halving the amounts of the compensatory indemnities provided for by Articles 3, paragraph 1, 4, paragraph 1, and 6, paragraph 1, of the same Legislative Decree No. 23 of 2015, which may be modulated within a range differently determined in relation to each type of defect in the dismissal, but, specifically, in the imposition of a cap on the compensatory indemnity for unlawful dismissals by small enterprises, set at six months' reference salary for the calculation of the severance indemnity and insurmountable even in the presence of dismissals vitiated by the most serious forms of illegitimacy, such as to excessively compress the amount of the indemnity, "giving rise to monetary protection incompatible with the necessary 'personalization of the harm suffered by the worker' (judgment No. 194 of 2018)” (judgment No. 118 of 2025);
whereas the supervening declaration of constitutional illegitimacy of the censured norm, in upholding a question overlapping with the one under review, renders the latter devoid of an object and therefore determines its manifest inadmissibility (inter alia, orders No. 209, No. 208, and No. 35 of 2025);
whereas this ground of inadmissibility, due to its manifest and radical nature, absorbs the assessment of any other potential procedural defects that might be discernible.
on these grounds
THE CONSTITUTIONAL COURT
declares the manifest inadmissibility of the question concerning the constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of March 4, 2015 (Provisions concerning open-ended employment contracts with increasing protections, in implementation of Law No. 183 of December 10, 2014), raised, with reference to Articles 3, first paragraph, 4, 35, first paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 24 of the European Social Charter, adopted in Turin on October 18, 1961, and revised, with annex, in Strasbourg on May 3, 1996, ratified and made enforceable by Law No. 30 of February 9, 1999, by the Ordinary Court of Padua, acting as a labour court, by means of the order indicated in the heading.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on March 23, 2026.
Signed:
Giovanni AMOROSO, President
Antonella SCIARRONE ALIBRANDI, Rapporteur
Igor DI BERNARDINI, Registrar
Filed in the Registry on July 17, 2026
The anonymized version conforms in text to the original