Published on 22 July 2024
FIRST SECTION
Application no. 3852/23
Ennio CASCETTA
against Italy
lodged on 11 January 2023
communicated on 2 July 2024
SUBJECT MATTER OF THE CASE
The application concerns the question whether the domestic provision regulating the activities as “scientific collaboration” and “consultancy” that full-time university professors are allowed to carry out without the need of any authorisation was sufficiently clear and foreseeable, and, accordingly, compatible with the principle of lawfulness, within the meaning of Article 1 of Protocol No. 1 to the Convention.
The applicant, a full-time university professor, carried out between 2012 and 2015 paid consultancy activities pursuant to section 6 (10) of Law no. 240 of 30 December 2010, which provides that such activities can be undertaken “freely” (liberamente), notably without the need of a prior authorisation, provided that they are “compatible with the institutional commitments” of a full-time university professor (fatto salvo il rispetto dei loro obblighi istituzionali).
On 14 June 2019 the public prosecutor of the Court of Audit (Corte dei Conti) instituted proceedings against the applicant, claiming 871,408.41 euros (EUR) on account of the damages allegedly caused to the public administration. The prosecutor’s action was partially upheld by the Court of Audit on 15 September 2022, which found him liable to pay EUR 369,609.10.
The applicant complains under Article 1 of Protocol No. 1 that provision regulating the distinction between activities that he could have undertaken without any authorisation and those that required such an authorisation was not clear and foreseeable, thereby preventing him from properly regulating his future conducts. He relies, in particular: (i) on the vagueness of the text of section 6 (10) of Law no. 240 of 30 December 2010; (ii) on Resolution no. 1208 of 22 November 2017 of the National Anti-Corruption Authority (Agenzia Nazionale Anticorruzione), which observed that the notions of “scientific collaboration” and “consultancy” in that provision were not sufficiently clear and that each university had interpreted those concepts in different ways, thereby establishing contradictory practices; (iii) on the Guidelines of 14 May 2018 of the Ministry of University and Education, which observed that there was conflicting case-law on the subject matter and provided some clarifications. In the applicant’s view, the latter guidelines were not sufficient to clarify the relevant provision, and this would be demonstrated by the existence of subsequent conflicting case-law and by the fact that in 2023 the legislature adopted an interpretative provision (norma di interpretazione autentica) aimed at clarifying the meaning of section 6 (10) of Law no. 240 of 30 December 2010. He submits that, had such provision been applied in his case, the Court of Audits would have ruled in his favour.
QUESTION TO THE PARTIES
Was the domestic provision regulating the activities that the applicant was allowed to undertake without any authorisation, as expounded by the relevant domestic practice and case-law, sufficiently clear and foreseeable, as required by the principle of lawfulness, for the purposes of Article 1 of Protocol No. 1 to the Convention (see, mutatis mutandis, Carbonara and Ventura v. Italy, no. 24638/94, § 65, ECHR 2000‑VI, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 187, ECHR 2012, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 97, 25 October 2012, Lekić v. Slovenia [GC], no. 36480/07, § 97, 11 December 2018, and the case-law cited therein, and Bežanić and Baškarad v. Croatia, nos. 16140/15 and 13322/16, § 63, 19 May 2022)?
The parties are invited:
(i) to provide relevant case-law examples and to clarify whether a jurisprudential conflict persisted after the adoption of the Guidelines of 14 May 2018 of the Ministry of University and Education (taking into account the principles summarised in Žaja v. Croatia, no. 37462/09, §§ 103‑104, 4 October 2016);
(ii) to take into account the text of section 9 (2-ter) of Decree Law no. 44 of 22 April 2023, as converted into Law no. 74 of 21 June 2023, which clarified the interpretation to be given to section 6 (10) of Law no. 240 of 30 December 2010.