Brief summary
4. Constitutional guarantees of social security rights 1. The important role played by the Italian Constitutional Court
In the first (expansion) phase, CCRI, inspired by the strong guarantee of the privileged status of social security rights (Art. 32 and Art. 38, CORI), played its role in achieving the objectives of social justice, giving great dynamism to the Italian social security system. Especially in the decisions referencing the principle of equality (Article 3, CORI), through ‘additive’ judgements, it has often extended the discretionary nature of protections (CCRI judgements nos. 103/1968, 108/1977, 369/1985, 880/1988, with regard to the protection of health and measures of social security and assistance, judgements nos. 137/1989, 476/1987, 332/1992, 171/2002, as regards the protection against accidents and occupational diseases).
With regard to the principle of equal treatment between men and women in the access to social security rights, CCRI has expressed adherence to the socio-economic patterns even in conflict with the evolutionary lines of the European Union law (on difference in retirement age for men and women, see judgement no. 123/1969, based on a vision of the role of women rooted in outdated prejudices; judgement no. 201/1972, based on the probability of women’s widowhood being higher than that of men, a position, however, surpassed by the judgements nos. 587/1988, 189/1991, 450/1991 and 1/1992 which abolished preclusion of survivors from access to pensions conditioned to the retirement age requirements in the marriage relationship, in the light of the evolution of social custom and relevance of the protection itself).
Similarly, a broad evolution has been seen in protecting the surviving children, using the concept of
39 See: GIUBILEO (2013), Qualche ragionamento sul reddito minimo tra teoria, sperimentazione e problemi dello strumento, in Rivista di Diritto della sicurezza sociale, 337 ff.
40 Especially illuminating on this matter are the reflections of EICHENHOFER (2013), in Rivista di Diritto della sicurezza sociale, 525 ff, whose conclusions evoke sanctions inspired by the moderation for the subjects found guilty of
‘misconduct’ along the path of social reintegration.
‘family burden’ (judgement nos. 42/1999 and 180/1999, which give significant attention to the known instability of employment opportunities for Italian young people under the age to twenty; no. 164/1975, which gave access to the survivors protection to married children at the date of death of the deceased;
no. 140/1979, which protected daughters in case of marriage after the death of the deceased. Both decisions are influenced by contemporary Italian reform of family law, moving it further and further away from the patriarchal modes.
Significantly, CCRI has never had to specifically address the problem of acquisition (jure proprio and non in jure successionis, renunciation of inheritance by a family member being irrelevant) of the right to survivors protection, as such solution is the result of interpretation of the common law of legitimacy, which has drawn a constitutionally oriented line without the need to cross-reference to the CCRI.
Another significant application of the principle of equality in terms of assessing the unjustified inequality of the disciplines related to differing protection schemes managed by different entities (generally not amenable to comparison, for constant orientation of CCRI) (e.g. judgement no. 202/2008), or in terms of the extension or reinforcement of some protection for pensions (judgements no. 822/1988 and no. 61/1999), or to ensure the most favourable treatment (in particular for calculation of pensions:
judgements nos. 307/1989; 428/1992; 264/1994, 388/1995, 160/1971, 230/1974). Under the latter profile, because of the obvious implications for public finance, the legislature often has been forced to intervene with rebalancing rules of great technical complexity.
More recently, in the face of attempts by the legislature, driven by the urgency of the containment of public spending, to introduce drastic restrictive measures (obviously contrary to the principle of equality or recessive with respect to the already recognised guarantees), CCRI has interpreted – dynamically, through a continuous monitoring of regulatory changes made by ordinary judges as a common remitting – its role as guarantor of the principles, especially when the legislature has attempted to evade or paralyse the effects of previous decisions of the same Court (no. 283/1989, no. 418/1991, no. 240/1994, all containing rulings to stop and demolish the regulations elusive in terms of integration to the minimum pension;
no. 134/1994, no. 246/1992, no. 20/1994, all relating to the aspects of the judicial process on the matter of social benefits clearly foreordained to severely limit the recognition of these rights by foreclosures, forfeitures and court costs regimes).
In the same vein, the Court also struck the abuse of the rules of authentic interpretation (judgements no. 246/1992 and no. 421/1995) or retroactive regulations (judgements no. 191/2005, no. 1/2006), all taken with a clear intention to evade the principles of protection.
A distinct interpretative line of CCRI’s has proven more benevolent towards the need to limit spending on social services, enhancing the two-way character of the principle of equal treatment (judgement no. 429/2000, which has not assimilated rules on the accumulation of legal interest and the monetary revaluation index – instead effective for labour claims – for welfare benefits; no. 400/1999, which for the purposes of social allowance has ruled out the possibility of considering other situations of need, considering the prevailing needs those to contain public spending).
In particular, the two-way nature of the equality principle has, at times, permitted the Court to remove the unjustified privilege of a more favourable discipline over that given for comparison (judgements no. 62/1994, no. 219/1995, no. 421/1995).
A latent principle in the Italian constitutional system on the right to social security is the protection of legitimate expectations (this principle obviously has general value, but it assumes a fundamental importance for the gradually developing cases, among which those on legal relationship of the social security are perhaps the most important, having on their horizon the entire span of life – and not just work – of a person). According to CCRI, compliance with this standard did not have as a necessary consequence the inviolability of expectations (e.g. of maturation of requirements for access to a certain type of protection) and even social benefits in the course of their application: the legislature can intervene with pejorative laws on the pensions currently paid, provided this complies with the principle of reasonableness (judgements no. 349/1985, no. 822/1988, no. 211/1997, no. 416/1999, no. 446/2002).
Fewer decisions of CCRI are based on the principle of adequacy of social security benefits. In a first stage, the Court emphasized the corresponding nature of the social insurance; later (judgements
Italy
no. 160/1974, no. 26/1980, no. 173/1986, no. 501/1988) it established the dynamic direction: proportionality and adequacy of welfare should exist not only at the time of the first payment, but must be guaranteed in future periods with respect to the change in the purchasing power of the currency, the so-called equalization, adopted by the legislature with various automatic or semi-automatic mechanisms, with heavy restrictions introduced by the Reform Act of 2011; recognition of the need for a mechanism for re-evaluation of the monetary value of social benefits has become an established element in the constitutional jurisprudence (judgements no. 497/1988, no. 141/1989, no. 156/1991, no. 78/1993, No. 196/1993).stage
With reference to the problem of determining the minimum level of benefits (‘adequacy’ and
‘sufficiency’), the Court has always shown respect for the discretion of the legislature, declaring the absolute immunity of the matter, with the only constraints being the balance with other rights guaranteed by the Constitution and the limits of financial compatibility (emblematic in this sense are the judgements no. 157/1980, no. 34/1981, no. 506/2002, no. 822/1988, no. 240/1194, no. 99/1995, no. 361/1996, no. 417/1996, no. 287/2004).
A new perspective for evaluating mechanisms for determining the minimum levels of social security benefits entered in play following the reform of Title V of the CORI; in particular, CCRI has been facing the problem of having to define the essential service levels concerning civil and social rights (judgements no. 283/2002, no. 88/2003, no. 423/2004, no. 50/2005, no. 120/2005).
With regard to the distinction between social security and social welfare support, the Court in its guidance grants the legislature a greater freedom of choice in the identification of combinations of disciplines and implementation of protection models, which can also be changed over time (judgement n. 31/1986); aware of the open nature of the protections provided for in Article 38, CORI, the Court has also played a role in the push to active the legislature in the new legal institutions in order to offer an expansion of the overall protection of the social security rights. In particular, we note the decisions on the recognition of the constitutional basis of the supplementary pension (judgement no. 427/1990, followed by later ones) and one on the preservation of the integrity of individual positions in the social security system, especially in retirement (called the aggregation mechanism, judgement no. 61/1999).
Albeit with some initial mistrust, the Court acknowledged that integration of the EU law into Italian state regulations (as long as directly applicable) is a natural consequence of the principles enshrined in Article 10, CORI (judgements no. 232/1989 and n. 160/1991); this approach was strengthened by the new text of Article 117, CORI, requiring the ordinary legislature, as well as local governments of the regions, to comply with the provisions of international conventions.
4.2. The opening to social security international standards
We have already made some references to the impact 41 of international provisions on the development of Italy’s legal system of social security rights.
The evolution of the CCRI jurisprudence in terms of verifying the implementation of the provisions contained in this type of rules has not been linear.
In a nutshell, and without any pretence to a systematic and complete analysis, we can give some examples of the ongoing dialogue – with regard to social rights – between CCRI and supranational control organs.
– with the Strasbourg Court (ECHR):
CCRI (in the first phase and up to 2007) has consistently held a restrictive position: ECHR decisions are not binding on the Italian Constitutional Court which is responsible for the assessment (independent and originating) of compatibility of internal rules considered by the ECHR differing with respect to international standards with the CORI. Those internal rules, however, as assessed by the ECHR, could not be automatically waived by the Italian court. A detection of differences could represent, at most, a reliable basis for an interpretation consistent with compliance with those obligations. However, through
41 BALBONI (2008) La tutela multilivello dei diritti sociali, Jovene.
two fundamental judgements (no. 348 and no. 349 of 2007), 42 as a result of the new wording of Article 117, CORI (2001) CCRI imposed an obligation on any legislator of the Italian Republic (both national and local) to comply with the standards contained in international conventions (and therefore also in the ECHR); consequently, a domestic provision incompatible with the international obligations is automatically contrary to the constitutional principle (Art. 117, CORI). The current legal mechanism, therefore, sees international standards as an interposed standard that must be referred to by CCRI to assess the degree of compatibility with the CORI. Further consequence is that the court is required to interpret the national domestic rules in conformity with the said constitutional principle (i.e. constitutional interpretation); where this is not possible, the ordinary judge is obliged to refer the conflicting matter to the CCRI, with a reference to the parameter of Art. 117, CORI. 43
A further enrichment of the framework (in constant evolution, for the natural attitude of the ECHR regulation-standard to provide a vehicle for the legal issues of great depth in terms of social rights) will be offered when Protocol 16 ECHR will become operational, which will allow national courts of the last instance to ask for an opinion (non-binding but authoritative and certainly such as to promote – in advance – the harmonization of the dialogue between the courts) of the ECHR; it is hoped that the Strasbourg Court will enact guidelines similar to those adopted by the CJEU in Luxembourg.
– with the Court of Luxembourg (CJEU):
the importance of the issue is in the obligation to disapply the national legislation contrary to the directly applicable EU law (Treaties and Regulations, with so-called direct horizontal effect).
On this point, the CCRI has sometimes been found to disagree with the Court of Justice of the European Union (CJEU).
In a first stage, the CCRI, while recognizing the primacy of EU law, considered that this assessment was restricted (Art. 11, CORI) only to the Court and not to the ordinary courts (see judgements no. 187/1973 and no. 232/1975).
In a second stage it has changed this approach and granted the ordinary courts a prerogative to determine what is the prevailing norm, always subject to the possibility of returning to the CCRI (for violation of Article 138, CORI), even against the EU regulation if it violates the fundamental principles of the CORI.
An acceptable degree of arrangement on the matter was reached by two judgements in 1989 (no. 232 and no. 389), which recognized that the inclusion of directly applicable EU provisions in the Italian regulations is the natural consequence of their origin in an external source, whose constitutional principle is laid down in Article 10, CORI. In case of a conflict between an internal standard and an EU provision, the only remedy is non-application by the national common court. This solution is also applicable to interpretative decisions of the CJEU and unconditional provisions of directives (CCRI judgements no. 113/1985 and no. 168/1991).
In any case, CCRI reserves, by assessment, the internal implementation discipline if the interpretation and application of EU law does not result in a conflict with the fundamental principles of the CORI or no inalienable rights of the human person are violated (see CCRI judgement no. 509/1995).
With regard to the provisions contained in directives (even if they contain unconditional and sufficiently precise provisions), there is an established position (CCRI judgements no. 113/1985 and no. 389/1989) under which they are provided only with an effective vertical (i.e. in respect of the Member State and not between private persons). This approach has the following consequence: ordinary courts, when a dispute between private parties finds a contrast between an internal regulation and a provision of a directive, will have to raise the question before the CJEU; if it recognizes this contrast, the effects of its judgement will be
42 TEGA (2007) Le sentenze della Corte costituzionale nos. 348 and 349 of 2007:la Cedu da fonte ordinaria a fonte “subcostituzionale” del diritto, at http://www.forumcostituzionale.it/wordpress/images/stories/pdf/documenti_forum/
giurisprudenza/2007/0013_ tega_ nota_348_349_2007.pdf.
43 BONOMI (2012) Brevi note sul rapporto tra l’obbligo di conformarsi alla giurisprudenza della Corte di Strasburgo e l’art. 101, c.2 Cost., at http://www.giurcost.org/studi/Bonomi.pdf.
Italy
limited to a single case, although it can take the interpretation offered by the CJEU as an interpretative parameter of the national standard. The private party will ask the state for damages resulting from the infringement of the obligation to implement the Directive.
– with the European Committee of Social Rights (ESRC) under the legal system of the European Social Charter:
as already commented, a growing importance is played by 44 the dual role of the ESRC in the evolution of the 45 European legal space.
In the Italian experience, beyond the formal ratification of both the European Social Charter (ESC) that the revised Protocol on collective complaints, except for an occasional reminder of their style in some of CCRI’s decisions, one cannot say that enough of the mechanisms provided in the ESC system has been implemented.
It is hoped that, just in the wake of the new issues raised by the effects of the economic crisis, we will see a beginning of a constructive dialogue between the Committee and the CCRI.
Particular attention is drawn by bilateral international agreements 46 in the field; it should be noted that only in the last thirty years, Italy has become a country of immigration and is no longer (for now …) merely a country of emigrants.