Article 28 - Right of collective bargaining and action
Key facts of the case:
The ordinary courts submitted to the Constitutional Court a question on the constitutional legitimacy of several provisions of Decree Law No. 98 of 6 July 2011, Urgent provisions on financial stabilisation. The courts raised doubts about the legitimacy of the suspension of collective bargaining and action of civils servants, which, pursuant to the abovementioned provision and to the following Article 1, paragraph 255 of Law No. 190 of 23 December 2014, Provisions for the preparations of the annual and multi-annual state budget (2015 Stability Law), was extended from 2011 up to the end of 2015. This choice, made by the Italian Government with the aim of cutting public expenditures, was considered likely to breach some relevant constitutional rights, such as the right to strike actions and trade union representation (Article 39 of the Italian Constitution), which is deeply connected to the possibility to negotiate and conclude collective bargaining agreements and implement collective actions.
Outcome of the case:
Analysing the provisions challenged by the ordinary courts, the Constitutional Court decided that the suspension of collective bargaining and action for civil servants was to be considered in breach of the Italian Constitution because it violates not only Article 39 of the Italian Constitution but also all the international law provisions that enshrine the indissoluble connection between the right to trade union action, and collective bargaining actions. One of the international law provisions explicitly mentioned by the Constitutional Court is Article 28 of the EU Charter of Fundamental Rights, which guarantees the “right of collective bargaining and action”.
Trade union freedom is protected by Article 39, paragraph 1 of the Italian Constitution, in both its individual and collective dimension, and finds its fulfilment in bargaining autonomy (see, among others, judgments Nos. 697 of 1998, point 3 of de jure considerations, and 34 of 1985, point 4 of de jure considerations). Several international law sources contribute to defining the functional link between a collective right, such as the right of collective bargaining, and trade union freedom. Therefore, the interpretation of the Italian constitutional source is closely related to the evolution of supranational sources, and its coherence depends on the latter. The ‘right to negotiate and conclude collective agreements’ is recognised also by Article 28 of the EU Charter of Fundamental Rights, proclaimed on 7 December 2000 in Nice, and adopted in a modified version on 12 December 2007 in Strasbourg. The Charter has now ‘the same legal value of the treaties’, pursuant to Article 6, paragraph 1 of the Treaty on European Union (TEU), as modified by the Treaty of Lisbon, signed on 13 December 2007, ratified and enforced with Law No. 130 of 2 August 2008, and become effective on 1 December 2009.