Published on 19 April 2021
FIRST SECTION
Application no. 4906/21
Provino MAGRO against Italy
and 42 other applications
(see list appended)
communicated on 30 March 2021
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 commenced by the applicants.
The applicants 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 Tribunal of Rovigo on 31 January 2003 and the Tribunal of Treviso on 4 April 2003 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 before the Court of Appeal of Venice, 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. 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 Court of Appeal of Brescia 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 Brescia ruled that the applicants had not suffered a substantial loss of salary. The applicants appealed against this judgment and the Court of Cassation upheld the Court of Appeal’s 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.
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; 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 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.
APPENDIX
No.
Application no.
Case name
Applicant
Year of Birth
Place of Residence
Proceeding
1.
4906/21
Magro v. Italy
Provino MAGRO
1947
TreviseTribunal of Treviso, judgments no. 82/04 and no. 382/04 deposited respectively on 16 March 2004 and 11 October 2004Court of Appeal of Venice judgment no. 252/08 deposited on 2 January 2009Court of Cassation judgment no. 4317/13 deposited on 21 February 2013Court of Appeal of Brescia judgment no. 334/14 deposited on 15 July 2014Court of Cassation judgment no. 14892/20 deposited on 13 July 2020
2.
4909/21
Alaimo v. Italy
Mascia ALAIMO
1966
Asolo
3.
4911/21
Lovisotto v. Italy
Antonella LOVISOTTO
1960
Mareno di Piave
4.
4912/21
Mario v. Italy
Donatella MARIO
1963
Conegliano
5.
5033/21
Cia v. Italy
Augusta CIA
1941
Oderzo
6.
5034/21
Pasquot v. Italy
Pierluigi PASQUOT
1959
Conegliano
7.
5035/21
Foschini v. Italy
Paola FOSCHINI
1952
Zero Bianco
8.
5036/21
Tonello v. Italy
Patrizia TONELLO
1964
Oderzo
9.
5037/21
Bernardon v. Italy
Renata BERNARDON
1949
Trevise
10.
5038/21
Gazzola v. Italy
Bruno GAZZOLA
1949
Trevise
11.
5039/21
Rado v. Italy
Luciana RADO
1955
Oderzo
12.
5040/21
Schiavon v. Italy
Paola SCHIAVON
1949
Mogliano Veneto
13.
5041/21
D’Ambrosi v. Italy
Graziella D’AMBROSI
1942
Paese
14.
5042/21
Forner v. Italy
Lina FORNER
1953
Asolo
15.
5170/21
Bellotto v. Italy
Paolo BELLOTTO
1954
Trévise
16.
5171/21
Piccolo v. Italy
Annalisa PICCOLO
1965
See representative’s address
17.
5172/21
Cimitan v. Italy
Gianna CIMITAN
1966
San Paolo di Piave
18.
5173/21
Cappellazzo v. Italy
Maria CAPPELLAZZO
1951
Trevise
19.
5174/21
Bellese v. Italy
Erminia BELLESE
1948
Ormelle
20.
5175/21
Girotto v. Italy
Maria Grazia GIROTTO
1964
Paese
21.
5932/21
Mazziotti v. Italy
Luisa MAZZIOTTI
1944
Trevise
22.
5935/21
Durante v. Italy
Raffaele DURANTE
1952
Villorba
23.
5938/21
Da Deppo v. Italy
Vanna DA DEPPO
1942
Trevise
24.
5943/21
Carpene v. Italy
Pierina CARPENE
1947
Revine Lago
25.
5948/21
Tognon v. Italy
Galliano TOGNON
1943
Castelfranco Veneto
26.
5958/21
Botta v. Italy
Maria Pia BOTTA
1944
Oderzo
27.
6156/21
Zorzi v. Italy
Maria ZORZI
1943
Trevise
28.
6157/21
Botteon v. Italy
Donatella BOTTEON
1960
Oderzo
29.
6160/21
Dam v. Italy
Renata DAM
1952
Conegliano
30.
6176/21
Mattiacci v. Italy
Franca MATTIACCI
1951
Casier
31.
6209/21
Merlo v. Italy
Attilio MERLO
1957
Vittorio Veneto
32.
6218/21
Da Rodda v. Italy
Donatella DA RODDA
1962
Revine Lago
33.
6223/21
Urso v. Italy
Milena URSO
1947
Cornuda
34.
6226/21
Masutti v. Italy
Paola MASUTTI
1963
Anzano di Cappella Maggiore
35.
6262/21
Codogno v. Italy
Maurizio CODOGNO
1954
San Vendemmiano
36.
6263/21
Bordignon v. Italy
Anna BORDIGNON
1962
Postomia
37.
6264/21
Casagrande v. Italy
Paolo CASAGRANDE
1957
Trevise
38.
6266/21
Rossi Mori v. Italy
Antonio ROSSI MORI
1960
Arquà PolesineTribunal of Rovigo, judgment no. 520/04 deposited on 30 August 2004Court of Appeal of Venice judgment no. 261/08 deposited on 9 December 2008Court of Cassation judgment no. 4556/13 deposited on 22 February 2013Court of Appeal of Brescia judgment no. 334/14 deposited on 15 July 2014Court of Cassation judgment no. 14892/20 deposited on 13 July 2020
39.
6267/21
Ceotto v. Italy
Francesco CEOTTO
1944
Vittorio VenetoTribunal of Treviso, judgments no. 82/04 and no. 382/04 deposited respectively on 16 March 2004 and 11 October 2004Court of Appeal of Venice judgment no. 252/08 deposited on 2 January 2009Court of Cassation judgment no. 4317/13 deposited on 21 February 2013Court of Appeal of Brescia judgment no. 334/14 deposited on 15 July 2014Court of Cassation judgment no. 14892/20 deposited on 13 July 2020
40.
6273/21
Benetton v. Italy
Angelo BENETTON
1947
Villorba
41.
6993/21
Gobbo v. Italy
Lucia GOBBO
1961
Zero Branco
42.
7209/21
Vazzoler v. Italy
Fabio VAZZOLER
1949
Trevise
43.
7265/21
Sartor v. Italy
Dorina SARTOR
1953
Zero Branco
Full & Egal Universal Law Academy