Published on 28 February 2022
FIRST SECTION
Applications nos. 27897/16 and 27952/16
Elio ANTONIOLLI and Others against Italy
and Patrizia AMOROSO and Others against Italy
lodged on 10 May 2016
communicated on 7 February 2022
SUBJECT MATTER OF THE CASES
The applications concern the application of retrospective legislation, specifically Article 1 § 218 of Law no. 266/2005 of 23 December 2005 to pending national proceedings commenced by the applicants.
The applicants (or their ascendants or spouses) had initially been employed by the local government authorities. When they were transferred, under Article 8 of Law no. 124/1999, to work for the Ministry of Education, Universities and Research, their length of service with the local government authorities, their original employer, was not fully recognised for financial and legal purposes. The applicants lodged proceedings before the national courts (see appended table for details) arguing that the conversion of their salary into a notional length of service with the new employer upon transfer had been unlawful and detrimental. They sought placement in the professional grade corresponding to their full length of service from the date of the transfer as well as the determination of any compensation due to them. When those proceedings were pending at different levels of jurisdiction, Article 1 § 218 of Law no. 266/2005 of 23 December 2005 entered into force. This provision intended to give effect to what the legislator claimed to be the original intention of the Parliament when adopting Article 8 of Law no. 124/1999. Relying on that interpretative law the domestic court dismissed the applicants’ claims. In the course of the proceedings, following the judgment of the Court of Justice of the European Union of 6 September 2011 in Scattolon, C-108/10, the Court of Cassation remitted the case to the Court of Appeal for determination of whether the transferred employees had suffered a substantial loss of salary solely as a result of the transfer. The Court of Appeal of Trieste and the Court of Appeal of Venice ruled that the applicants had not suffered a substantial loss of salary. The applicants appealed against these judgments and the Court of Cassation upheld the Court of Appeals’ findings and conclusions. The Court of Cassation refused to refer a question of constitutionality of Article 1 § 218 of Law no. 266/2005, stating that the matter had already been assessed by the Constitutional Court in its judgment no. 311 of 2009. According to the Court of Cassation, in particular, there was no reason to refer a new question of the constitutionality of the contested provision, even though the Constitutional Court had decided before the delivery of the Court’s judgment in Agrati and Others v. Italy, nos. 43549/08 and 2 others, 7 June 2011, since the Constitutional Court had recognised the existence of overriding reasons relating to the public interest which justified retrospective application of the contested law and had established that the power to make such assessment rested with the Constitutional Court itself.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
In particular, was there interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute on account of the retrospective application to their case of Article 1 § 218 of Law no. 266/2005 (see Agrati and Others v. Italy, nos. 43549/08 and 2 others, 7 June 2011, and Cicero and Others v. Italy, nos. 29483/11 and 4 others, 30 January 2020)?
If so, was that interference based on compelling grounds of general interest?
2. Has there been an interference with the applicants’ peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1, considering the enactment of Article 1 § 218 of Law no. 266/2005?
If so, did the interference impose an excessive individual burden on the applicants?
3. Having regard to the refusal of the Court of Cassation to refer a question of constitutionality of the contested law on the basis that the Constitutional Court had already decided a similar matter in its judgment no. 311 of 2009, even though this judgment (i) was issued before the publication of the Court’s judgment in Agrati and Others v. Italy, nos. 43549/08 and 2 others, 7 June 2011, and (ii) declared ill-founded the question of constitutionality and, therefore, did not preclude the referral of new questions of constitutionality on the same provision, especially when the development of the case-law of the Court provided for new arguments to consider a question of constitutionality not manifestly ill-founded, the Government are requested to clarify under which conditions the domestic legal system requests national judges to bring the interpretation of the Convention’s provisions offered by the development of the case-law of the Court to the attention of the Constitutional Court.
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
First instance judgment
Second instance judgment
First judgment of the Court of Cassation
Referral to the Court of Appeal
Final judgment of the Court of Cassation
1.
27897/16
Antoniolli and Others
v. Italy
10/05/2016
Elio ANTONIOLLI
1946
Sacile
Italian
Liliana AZZANO
1948
Pordenone
Italian
Erta ASQUINI
1948
Pordenone
Italian
Paola BABUIN
1958
Pordenone
Italian
Maria BABUIN
1960
Pordenone
Italian
Loredana Alda BORGONUOVO
1946
S. Quirino
Italian
Margherita BOVE
1953
Maddaloni
Italian
Maria Pia BRAVIN
1940
Pordenone
Italian
Anna CESA
1962
Pordenone
Italian
Luciana CLEMENTI
1956
Cordemons
Italian
Marco CODEGLIA
1962
Aviano
Italian
Carla DAMO
1943
Maniago
Italian
Attilio DA PIEVE
1954
Porcia
Italian
Learco DRIGO
1952
San Vito al Tagliamento
Italian
Edda FRANCESCHINA
1943
Maniago
Italian
Adriana FRATTOLIN
Gaiarine
Italian
Stella GOBBO
1941
Maniago
Italian
Claudia LEMBO
1966
Pordenone
Italian
Giorgio MAESTRELLO
1951
Sesto Al Reghena
Italian
Angela MASERIN
1958
Maniago
Italian
Onorio MAZZETTI
1959
Azzano Decimo
Italian
Pierluigi MIOTTO
1966
Pordenone
Italian
Pierina MORO
1955
Fiume Veneto
Italian
Loredana MOZZON
1959
Pordenone
Italian
Sabina NASSUTTI
1944
Spilimbergo
Italian
Lucia PAGLIARO
1948
Roveredo in Piano
Italian
Lorena PERISSINOTTI
1964
Pordenone
Italian
Lauretta PUPPO
1949
Pordenone
Italian
Rita SALVONI
1967
Pordenone
Italian
Silverio SANTAROSSA
1963
Pordenone
Italian
Marta SIST
1959
Pordenone
Italian
Maria Crisitina SPERTI
1960
Roveredo in Piano
Italian
Gianni ZAMMATTIO
1950
Maniago
Italian
Giovanni ROMANO
Judgment
of Pordenone
District Court
of 05/02/2004, no. 30
Judgment
of Court of Appeal of Trieste
of 29/10/2005,
no. 133
Judgment
of 20/12/2011,
no. 27699
Judgment
of Court of Appeal of Trieste of 18/06/2013,
no. 122
Judgment
of 12/11/2015,
no. 23139
2.
27952/16
Amoroso and Others
v. Italy
10/05/2016
Patrizia AMOROSO
1951
Dorai Piccolo Porcia
Italian
Sonia GATTI
1960
Casarsa della Delizia
Italian
Sandra ROSSIT
1959
Cinto Caomaggiore (Ve)
Italian
Emiliana TOMMEI
1948
Fontanafredda
Italian
Gabriela LATOCHA
1958
Pordenone (PN)
Italian
Ermida ODORICO
1955
Pravisdomini
Italian
Rosella GNESUTTA
1959
Morsano al Tagliamento
Italian
Manuela MENEGUZZI
1964
Sesto al Reghena (PN)
Italian
Laura DEL ZOTTO
1962
Chions
Italian
Gelsomina VITALE
1947
Aviano
Italian
Daniele PIOVESANA
1957
Sacile
Italian
Rita MAIORINO
1944
Cordenons (PN)
Italian
Graziella PELLEGRINON
1950
Maniago (PN)
Italian
Giovanni ROMANO
Judgment
of Pordenone
District Court
of 30/09/2004, no. 169
Judgment
of Court of Appeal of Trieste
of 31/08/2006,
no. 90
Judgment
of 22/11/2011,
no. 24583
Judgment
of Court of Appeal of Venice of 20/05/2013,
no. 80
Judgment
of 10/11/2015,
no. 22913