Published on 12 December 2022
FIRST SECTION
Application no. 55789/21
Donatella BRIGHENTI against Italy
and 27 other applications
(see list appended)
communicated on 21 November 2022
SUBJECT MATTER OF THE CASE
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 involving the applicants.
The applicants, who are all represented by the lawyer N. Zampieri, were 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 was not fully recognised for financial and legal purposes. The applicants lodged proceedings before the national district courts (see appended table), arguing that the conversion of their salary into a notional length of service with the new employer upon transfer had been unlawful and detrimental to them. 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 on appeal, 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 courts dismissed the applicants’ claims.
The applicants challenged the judgments before the Court of Cassation. 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 competent courts of appeal for determination of whether the transferred employees had suffered a substantial loss of salary solely as a result of the transfer. The appellate courts 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 appellate courts’ 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 issuance of the judgments 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, 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.
The applicants complain under Article 6 § 1 of the Convention about the legislative interference pending the proceedings which, in their view, infringed their right to a fair trial. They also complain under Article 1 of Protocol No. 1 to the Convention that the retroactive application of Article 1 § 218 of Law no. 266/2005 of 23 December 2005 deprived them of their property insofar as this provision put an end to the dispute between them and the administration.
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 an 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 judgments in 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), 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.
4. The applicants are invited to submit a declaration concerning the status of enforcement of the domestic judgments on the merit in their regard. If a domestic judgment has been enforced in their regard, the applicants are invited to include in the declaration the following information: the number, the R.G. and the date of the judgment in their favour, the sums received, and possibly the sums subsequently recovered by the administration. The applicants are invited to provide all the relevant documents concerning the enforcement of the judgments and, where applicable, the recovery of the sums.
5. With regards to the applications nos. 55869/21, 56003/21, 56025/21 and 55834/21, the applicants are invited to produce a copy of the first and the second instance judgments and of the first judgment of the Court of Cassation.
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
First instance judgment
Second instance judgment
First judgment of the Court of Cassation
Referral to the Court of Appeal
Final order of the Court of Cassation
1.
55789/21
Brighenti v. Italy
08/11/2021
Donatella BRIGHENTI
1961
Vérone
Verona District Court,
R.C.L. 221/03,
07/06/2004
Venice Court of Appeal,
R.G. 532/04,
19/12/2008
Court of Cassation,
R.G. 26271/09,
21/02/2013
Brescia Court of Appeal,
R.G. 63/14 and 64/14,
28/06/2014
Court of Cassation,
R.G. 481/15,
12/05/2021
2.
55837/21
Bighellini v. Italy
09/11/2021
Paolo BIGHELLINI
1956
Vérone
3.
55877/21
Tamburini v. Italy
08/11/2021
Laura TAMBURINI
1949
Vérone
4.
55888/21
Scandola v. Italy
08/11/2021
Antonella SCANDOLA
1964
Bosco Chiesanuova
5.
55907/21
Gozzi v. Italy
08/11/2021
Monica GOZZI
1961
San Giovanni Lupatoto
6.
55915/21
Malago’ v. Italy
09/11/2021
Agostino MALAGO’
1958
Nogarole Rocca
7.
55985/21
Vinco v. Italy
09/11/2021
Nello VINCO
1955
Vérone
8.
55993/21
Bissolo v. Italy
09/11/2021
Antonio BISSOLO
1955
Vérone
9.
56002/21
Tognella v. Italy
09/11/2021
Stefano TOGNELLA
1961
Vérone
10.
56005/21
Corsi v. Italy
09/11/2021
Elisabetta CORSI
1962
San Giovanni Lupatoto
11.
56006/21
Gozzi v. Italy
08/11/2021
Sara GOZZI
1965
Vérone
12.
56008/21
Vendrell v. Italy
08/11/2021
Juana VENDRELL
1953
Roverbella
13.
56031/21
Selmo v. Italy
08/11/2021
Stefania SELMO
1966
Schio
14.
56273/21
Toso v. Italy
11/11/2021
Susanna TOSO
1958
Vérone
15.
56277/21
Pisani v. Italy
09/11/2021
Luigi PISANI
1951
Vérone
16.
55869/21
Visentini v. Italy
08/11/2021
Paola VISENTINI
1964
Vérone
n/a
n/a
n/a
17.
56003/21
Mizzon v. Italy
08/11/2021
Maria rosa MIZZON
1963
Vérone
n/a
n/a
n/a
18.
56025/21
Perazzani v. Italy
08/11/2021
Ornella PERAZZANI
1962
Schio
n/a
n/a
n/a
19.
55834/21
Scapini v. Italy
08/11/2021
Renata SCAPINI
1961
Vérone
n/a
n/a
n/a
20.
55922/21
Maron v. Italy
11/11/2021
Anna Maria MARON
1958
San Martino Buon Albergo
Verona District Court,
R.C.L. 94/03,
15/12/2005
Venice Court of Appeal,
R.G. 225/06,
02/01/2009
Court of Cassation,
R.G. 26274/09,
17/12/2012
Trieste Court of Appeal,
R.G. 447/13,
30/12/2014
Court of Cassation,
R.G.17419/15,
12/05/2021
21.
55926/21
Billiani v. Italy
11/11/2021
Paola BILLIANI
1967
Vérone
22.
56276/21
Castagnetti v. Italy
11/11/2021
Lorenzo CASTAGNETTI
1956
Vérone
23.
56305/21
Lugoboni v. Italy
11/11/2021
Nicoletta LUGOBONI
1965
Castel D’Azzano
24.
56311/21
Slegers v. Italy
11/11/2021
Iacoba SLEGERS
1953
Vérone
25.
58069/21
Ceradini v. Italy
11/11/2021
Stefano CERADINI
1962
Negrar di Valpolicella
26.
55996/21
Ferro v. Italy
11/11/2021
Neviano FERRO
1952
Ceregnano
Rovigo District Court,
R.C.L. 751/03,
12/10/2005
Venice Court of Appeal,
R.G. 155/06,
07/02/2008
Court of Cassation,
R.G. 19457/08,
13/07/2012
Bologna Court of Appeal,
R.G. 652/13,
23/02/2015
Court of Cassation,
R.G. 17195/15,
12/05/2021
27.
55930/21
Costa v. Italy
11/11/2021
Maria Serena COSTA
1951
Schio
Vicenza District Court,
R.C.L. 1185/04,
01/09/2005
Venice Court of Appeal,
R.G. 864/05 and 865/05,
19/12/2007
Court of Cassation,
R.G. 19955/08,
13/07/2012
Bologna Court of Appeal,
R.G. 638/13,
22/10/2014
Court of Cassation,
R.G. 14160/15,
11/05/2021
28.
56300/21
Dal Cortivo v. Italy
11/11/2021
Gianfranca DAL CORTIVO
1956
Schio
Vicenza District Court,
R.C.L. 1209/04,
01/09/2005