Published on 28 February 2022
FIRST SECTION
Application no. 45343/18
Giuseppina OTTAVIANI against Italy
and 5 other applications
(see list appended)
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 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 and on the judgment of the Court of Justice of the European Union of 6 September 2011 in Scattolon, C-108/10, the Court of Appel of Rome and the Court of Appeal of Venice dismissed the applicants’ claims. The applicants challenged the judgments before the Court of Cassation, which upheld the findings and conclusions of the courts of second instance. 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
Third instance judgment
1.
45343/18
Ottaviani v. Italy
18/09/2018
Giuseppina OTTAVIANI
1945
Blera
Italian
Massimo PISTILLI
Judgment
of Viterbo
District Court
of 07/05/2007, no. 349
Judgment
of Court of Appeal of Rome of 04/12/2012,
no. 8479
Order
of the Court of Cassation of 19/03/2018,
no. 6780
2.
45376/18
Valeri
v. Italy
18/09/2018
Francesca VALERI
1947
Villa San Giovanni in Tuscia
Italian
Massimo PISTILLI
3.
45440/18
Caciola
v. Italy
18/09/2018
Vanda CACIOLA
1944
Vetralla
Italian
Massimo PISTILLI
4.
45903/18
Santinelli v. Italy
18/09/2018
Maddalena SANTINELLI
1944
Vetralla
Italian
Massimo PISTILLI
5.
25790/19
Boscato
v. Italy
07/05/2019
Michela BOSCATO
1962
Carbonera
Italian
Nicola ZAMPIERI
Judgment
of Treviso
District Court
of 13/01/2012, no. 25
Judgment
of Court of Appeal of Venice of 27/02/2014,
no. 787/2013
Order
of the Court of Cassation of 07/11/2018,
no. 28463
6.
45683/19
Milani and Others
v. Italy
13/08/2019
Geltrude MILANI
1960
Este
Italian
Laura VALVASON
1940
Legnano
Italian
Gastone BARISON
1960
Conselve
Italian
Giovannina MILANI
1950
Battaglia Terme
Italian
Elisa SCOIZZATO
1947
Santa Giustina in Colle
Italian
Luciana ZUCCOLO
1953
Monselice (PD)
Italian
Vera RUZZON
1963
Conselve
Italian
Gledis Elena AGOSTINI
1958
Cadoneghe
Italian
Laura BOLDRIN
1954
Legnano
Italian
Adriano FACCIN
1959
Cervarese Santa Croce
Italian
Luigia FRANCESCHINI
1943
Borgoricco
Italian
Enrico BUSINARO
1957
Battaglia Terme
Italian
Fiorella GASTALDELLO
1958
Conselve
Italian
Elsa DAMINATO
1948
Piombino Dese
Italian
Giulia VETTORATO
1949
Monselice
Italian
Francesca POLATO
1966
Solesino
Italian
Anna Lisa FRISON
1955
Arre
Italian
Giovanni GALLOCCHIO
1949
Cartura (PD)
Italian
Nicola ZAMPIERI
Judgment
of Padua
District Court
of 09/03/2012, no. 145
Judgment
of Court of Appeal of Venice of 14/05/2013,
no. 656/2012
Order
of the Court of Cassation of 14/02/2019,
no. 4437