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Italy / Constitutional Court / Decision No. 194 of 2018

Ordinary Court of Rome

Policy area:
Employment and social policy
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
26/09/2018

Key facts of the case:

A private citizen filed a complaint to the Ordinary Court of Rome against the dismissal she was communicated by the company she worked for. She was hired with an open-ended contract on 11 May 2015 and dismissed on 15 December 2015. The company justified this decision with the impossibility to sustain the costs of the worker due to economic and financial reasons. The possibility to fire the worker was ruled by art. 3.1 of the Legislative Decree No. 23 of 4 March 2015, on “Dispositions concerning open-ended contracts” (DecretoLegislativo 4 marzo 2015, n. 23, “Disposizioni in materia di lavoro a tempo indeterminato a tutelecrescenti”). The complainant decided to challenge the decision of the company before the Ordinary Court of Rome.

Key legal question raised by the Court:

The Ordinary Court of Rome challenged the constitutional legitimacy of the above-mentioned art. 3.1 of the Legislative Decree No. 23 of 4 March 2015. The challenged disposition concerns employees with an open-ended contract, hired after the entry-into-force of the Decree, that is 7 March 2015. According to the disposition, in case these workers are fired by the employers for an unfair reason, they are entitled to receive a financial compensation of two monthly wages for each year of seniority. According to the complaining Ordinary Court, this disposition violates several constitutional dispositions, including art. 76 and 117.1 of the Italian Constitution for the indirect violation of art. 30 of the EUCFR. This is because the compensation envisaged by the Law is considered inadequate to protect the employers against the possibility of an unfair dismissal: the company did not adequately justify the reason of the dismissal; moreover, if the worker had been hired before the entry-into-force of the Legislative Decree, she would have been entitled to 12 months of monthly wage as financial compensation, in compliance with the previous discipline (Law No. 300/1970). 

Outcome of the case:

The Constitutional court did not accept the argumentation of the Ordinary Court of Rome concerning the alleged violation of art. 76 and 117.1 of the Italian Constitution related to the indirect violation of art. 30 of the EUCFR. In fact – according to the Court – the Charter can be used as interposed parameter only in case the EU Member States are implementing the EU law. More specifically, the EUCFR can be used in a constitutional legitimacy proceeding only when the case subject to the internal legislation is directly ruled by the EU legislation and not only by national legislation deprived of any connection with the EU law. In the considered case, the challenged legislative disposition[URJ(1]  was still considered constitutionally illegitimate because of the violation of art. 3, 4.1, 35.1 and 76 of the Italian Constitution (for the indirect violation of art. 24 of the European Social Charter). According to the Constitutional court’s argumentation, the discipline ruled by the challenged decision is to be considered illegitimate because the compensation is merely based on the seniority criteria without taking into account all the diverse and individual factors that contribute to the estimation of a fair and balanced compensation for an unfair dismissal. Moreover, the challenged discipline [URJ(2] fails to constitute an adequate deterrent for the employers to unlawfully dismiss their employees.


 [URJ(1]it would be better to use the word ‘provision’ when referring to a legal article, rather than using ‘disposition’.

 [URJ(2]What does the word ‘discipline’ mean here and elsewhere?