The future of social security rights under the italian constitutional standards in times of economic crisis

Answering this question, one must be realistic: the future of the right to social security in Italy will follow a line of progressive containment, essentially objective in scope (size of pensions paid by public entities); it’s not a secret thought that the discretionary nature will also be influenced by the legislature’s choices (Law no. 214/2011): ⁴⁷ the retirement age will continue to grow (based on demographic indexes) ⁴⁸ and therefore fewer and fewer people will enjoy the old-age pension (retirement based solely on years of contributions is formally abolished).

44 See: MOLA (2012), La prassi del Comitato europeo dei diritti sociali relativa alla garanzia degli standard di tutela sociale in tempi di crisi economica, at NAPOLETANO, SACCUCCI (ed.), Gestione internazionale delle emergenze globali regole e valori, Editoriale Scientifica, 195; RUSSO (2013), I vincoli internazionali in materia di tutela dei diritti sociali: alcuni spunti dalla giurisprudenza recente sulle “misure di austerità”, at http://www.osservatoriosullefonti.it/

component/docman/doc_download/618-d-russo; OLIVERI (2012) La Carta Sociale Europea come “strumento vivente”.

Riflessioni sulla prassi interpretativi del Comitato Europeo dei Diritti sociali, at https://www.juragentium.org/topics/

rights/oliveri.pdf; PANZERA (2011) Per i cinquant’anni della Carta Sociale Europea, at https://www.gruppodipisa.it/

content/uploads/2012/panzera.pdf; STRAZIUSO (2012) La Carta sociale del Consiglio d’Europa e l’organo di controllo:

il Comitato europeo dei diritti sociali. nuovi sviluppi e prospettive di tutela, at http://www.gruppodipisa.it/wp-content/

uploads/2012/06/trapanistraziuso.pdf.

45 Please refer to the exhaustive analysis of POLI (2014) Diritti sociali ed eguaglianza nello spazio giuridico europeo, at https://www.amministrazioneincammino.luiss.it/wp-content/uploads/2014/01/Poli_Diritti-sociali-spazio-giuridico-europeo.

pdf.

46 The list of countries with which Italy has concluded agreements of type betrays the original matrix of the strategy to extend the protection for Italian citizens working for extended periods in non-EU countries: Argentina, the Republic of Cape Verde, Australia, the Republic of Korea, Bosnia and Herzegovina, Republic of Croatia (from 1 July 2013 Croatia is an EU member state), Brazil, Republic of San Marino, Canada and Quebec, the Holy See, former Yugoslavia, Tunisia, Israel, Turkey, Jersey, Isle of Man and the Channel Islands, United States (USA), Republic of Macedonia, Uruguay, Mexico, Venezuela, Monaco.

47 See: SANDULLI (2012) Il sistema pensionistico tra una manovra e l’altra: prime riflessioni sulla legge no.

214/2011, in Rivista del diritto della sicurezza sociale,1 ff; CINELLI(2012), La riforma delle pensioni del Governo tecnico:

appunti sull’art. 24 della legge n. 214 del 2011, in Rivista italiana di diritto del lavoro, 385-414; FEDELE e MORRONE (2012), La legislazione sociale del 2011 tra crisi della finanza pubblica e riforma delle pensioni, in Rivista del diritto della sicurezza sociale, 105 ff.

48 For multifactorial analysis on the topic: VESHI (2013), Le sfide del futuro: i costi della vecchiaia e il long term care, in Rivista di Diritto della sicurezza sociale, 369 ff.

A special mention must be given to the painful story of hundreds of thousands of people (the so-called ‘income-deprived’, or rather: ‘unprotected’, regarding the innovations brought by the reform of 2011) who, on the basis of collective agreements, quit their jobs, trusting to be eligible for access to pensions, and now find themselves without any income (neither work, being too elderly to be attractive on the labour market, nor pension, as their situation ‘froze’, in some cases also for the next ten years).

The Government and Parliament have attempted to provide a solution (yet incomplete, for obvious reasons related to the austerity policies) to this difficult problem; the phenomenon is of such a size (also because caused by a mix of careless analysis of the social impact of the reform and fear of the Sword of Damocles placed over Italy by the well-known protagonists of the new form of supranational governing) that it deserves a compatibility check by a neutral assessor, such as the ESCR. It foreshadows a collective complaint on the heels of those who have affected the reform adopted in Greece.

It should also be noted that the law on pension reform (Law no. 214/2011) is actually the result of a conversion (in just three weeks and without any real parliamentary debate…) of an emergency decree (Decree-Law no. 201 / 2011, with the emblematic title: ‘Salva Italia’, save Italy…) suddenly issued by the current government (the experience was borrowed from the Decree-Law no. 384/1992, with which was denied the access to only contributory old-age pensions, due to the risk of default related to the first episode of speculative attack on the Italian public debt).

It should not be concealed that CCRI (on another occasion, to be precise) did not forget to criticize the use of “relaxed recourse to emergency decrees in such delicate matters (judgm. no. 220/2013 and no. 20/2012), ⁴⁹ but it is to be assumed that, if the question is raised (if only after three years…), the Court would find an excuse to the work of today’s Government (and Parliament) (as it already has in judgement no. 127 / 2014, concerning infringement of Articles 117 and 118, CORI on the questions raised – from a different angle – primarily from local communities with statutory autonomy)

5.1. Threats to social security rights in times of economic crisis

As mentioned above, the search for the delicate balance between the guarantee of social security rights and needs of restriction (containment) of public social expenditures may be affected by the recent constitutional reform of Art. 81, CORI.

The changes to the formula introduced not only the principle of a balanced budget, but also the prohibition of borrowing (except for the reasons set out in an exhaustive list).

This reform is undoubtedly likely to compress the effective protection of social rights both at the state and local levels: it will assess the impact that the new wording of Art. 81 will have on the jurisprudence of CCRI in its review of the reasonableness of the balance between “the principle of a balanced budget” and protection of social rights operated by the legislature, in conceiving and enacting individual acts. ⁵⁰

49 See: DICKMANN (2013), La Corte costituzionale si pronuncia sul modo d’uso del decreto-legge, at www.

consultaonline.it.

50 LUCIANI (2012) Costituzione, bilancio, diritti e doveri dei cittadini, at https://astrid-online/rassegna/

Rassegna-214/06-02-2013/Luciani_Varenna2012.pdf; LUCIANI (2013) L’equilibrio di bilancio e i principi fondamentali:

la prospettiva del controllo di costituzionalità, at https://www.cortecostituzionale.it/documenti/convegni_seminari/

Seminario2013_Luciani.pdf; MORRONE (2013), Pareggio di bilancio e Stato costituzionale, Lavoro e Diritto, 357 ff;

PIROZZOLI (2011) Il vincolo costituzionale del pareggio di bilancio, at http://www.rivistaaic.it/il-vincolo-costituzionale-del-pareggio-di-bilancio.html; PITRUZZELLA (2014) Crisi di governo e decisioni di governo, Quaderni costituzionali, 29 ff; RUGGERI (2012) Crisi economica e crisi della Costituzione, in http://www.giurcost.org/studi/Ruggeri19.pdf; TEGA (2014) Welfare e crisi davanti alla Corte costituzionale, in Giornale di Diritto del lavoro e delle relazioni industriali, 303 ff;

TOSATO (2013) La riforma costituzionale del 2012 alla luce della normativa dell’Unione: l’interazione fra i livelli europeo e interno, at https://www. cortecostituzionale.it/documenti/convegni_seminari/Seminario2013_Tosato.pdf; CIOLLI (2012) I diritti sociali alla prova della crisi economica, in ANGELINI, BENVENUTI (a cura di ), Il diritto costituzionale alla prova della crisi economica, Jovene; SALAZAR (2013) Crisi economica e diritti fondamentali – Relazione al XXVIII Congresso dell’AIC, at http://www.associazionedeicostituzionalisti.it/articolorivista/relazione-al-xxviii-convegno-annuale-dell-aic-crisi-economica-e-diritti-fondamentali.

Italy

Following a realistic approach, it seems unreasonable to argue that in the future CCRI ought to deviate from its tradition, briefly described above.

It should however be noted that CCRI has (many years ago, actually, but the financial crisis of welfare system was the talk even then…) stated that “In particular, we can not allow a statutory amendment which, occurring either at an advanced stage of the employment relationship or already in the state of quiescence, without any mandatory requirement significantly and permanently pejorates a previously payable pension, thus resulting in irreparable frustration of legitimate expectations nourished by the work for the time after the termination of their employment” (judgement no. 822/1988).

In addition, in the same judgement, CCRI has specified that “other reasonings are of secondary importance, such as generation of tax revenue […] as well as the successful raising of the retirement age, adjustment of pension and increase in minimum benefits, together with the need to contain pension costs:

reasons such as these do not justify the curtailment of pension to the detriment of those workers who have contributed their efforts, for the whole or in part, in the legitimate expectation to achieve an adequate pension”. In fact, “shall apply the principle of guaranteeing social security, which is also embedded in the Constitution (Art. 38), as well as the undeniable reasons of social justice and equity, for which reasons the reforms or actions may not be permitted that result in damage to categories of workers in general and, more particularly, those who are close to retirement or are already retired”.

Therefore, in the opinion of the Italian Constitutional Court of the generation prior to the current one, although it is possible that the legislature intervenes with legislative changes that provide new requirements for access to pension, surely the same rules should adopt measures necessary to define the position of who has in the meantime ceased to work, because he or she has met the requirements prior to the reform.

As stated by CCRI, the legislature can not intervene in an advanced stage of the employment relationship or even when, as has happened in several cases under consideration, the person was already retired, undermining and decidedly worsening the retirement position in respect of pension previously payable.

We are not sure that today CCRI would respond to the same question with quite the same words. ⁵¹ In the case law of the CCRI other significant statements can be found on this matter.

With the sentence quoted above, which, in fact, is considered as the leading case of constitutional jurisprudence, the Court stated that “in our constitutional system, the legislature may enact regulations that adversely alter the regulation of long-term relationships, even if their object is made up of perfect individual rights […]. These provisions, however, like any legal precept, can not translate in an irrational regulation and arbitrarily affect substantial cases brought by the previous laws, thus also worsening citizens’ trust in public security, which is a fundamental and indispensable element of the rule of law (see judgements no. 36 of 1985, no. 210 of 1971)”.

Therefore, the Court concludes that “Although legislative actions that change public regulations on pensions must be considered permissible, we can not, however, admit that such actions are absolutely discretionary”.

It is not however, in the very serious present day, guaranteed that CCRI recognizes among its parameters that, in truth, has been identified very clearly in judgement no. 822 of 1988: the protection of the principle of trust, even if only in the right of access to social security benefits (pension); in essence, we

51 See: VALERIANI (2014) I limiti costituzionali alla revisione delle pensioni: le prospettive per il futuro – Working Paper no. 152/2014, ADAPT; ABBIATE (2014) Ancora in materia di misure anti-crisi. Il distinguishing della Corte, at http://www.federalismi.it/ www.federalismi.it/ApplMostraDoc.cfm?Artid=24704; ABBIATE (2014) Le Corti costituzionali di fronte alla crisi finanziaria: un soluzione di compromesso del Tribunale costituzionale portoghese, in Quaderni costituzionali, 146 ff; AA.VV. (edited by: FIERRO, NEVOLA, DIACO, FULGENZI, NORELLI) (2013), La tutela dei diritti e i vincoli finanziari, Quaderno di giurisprudenza costituzionale, at https://www.cortecostituzionale.it/

documenti/convegni_seminari/tuteladiritti.pdf; BIFULCO (2011) Il custode della democrazia parlamentare. Nota a prima lettura alla sentenza del Tribunale costituzionale federale tedesco del 7 settembre 2011 sui meccanismi europei di stabilità finanziaria, at http://www.rivistaaic.it/il-custode-della-democrazia-parlamentare-nota-a-prima-lettura-alla-sentenza-del-tribunale-costituzionale-federale-tedesco-del-7settembre-2011-sui-meccanismi-europei-di-stabilit-finanziaria.html.

are confident that CCRI reaffirms that the impassable limit of the legislature is to not annul the recourse requirements which the protected person was convinced to have met and to have secured for his/herself the right to a certain social benefit. This parameter will have vital importance in all situations in which the legislature’s attempt to save on social spending will (as has already been brought by Law no. 214 of 2011) put a number of obstacles so detailed and complex as to make it virtually impossible for many people to have access to a retirement pension.

It should however be noted that recently, on the subject of solidarity contribution from higher pensions (in particular those of managers, senior public managers and judges), CCRI, in its judgement no. 116/2013, declared the unconstitutionality of the levy. ⁵²

Even more delicate issues are contemplated in all cases in which the economic value of the reduction or the amount of pension casts a doubt upon compliance with the constitutional principle of ‘means appropriate’ to the needs of life, as established in Art. 38, CORI.

For example, the Court of Palermo, Section Labor Disputes, by order dated 6 November 2013 has raised the issue of the constitutionality of Article 24, paragraph 25, of the Legislative Decree no. 201 of 6 December 2011, converted into Law no. 214 of 22 December 2011, to the extent available, for the 2012-2013 period, the block of automatic equalization of pensions amounting to more than three times the minimum INPS (€1,441.58 per month in 2012, and €1,486.29 per month in 2013, before tax).

The legislature of the ‘crisis’ has set a decidedly low-end income that has strongly affected more than six million retirees who, in the face of constant loss of purchasing power of the currency, which has long been recorded in the country, have seen their pension benefits impoverish even further, against all logic and in defiance of their constitutionally protected rights.

From the moment when the above pension holders undergo, by law, the automatic revaluation block, they bear a financial loss of considerable scope that is not only imminent, but also for the future, in the absence of any provisions for recovery in the subsequent years, will continue bringing losses, without interruption, endlessly and so far as to affect the extent of survivors’ pensions, and the benefits that the survivors can expect will be substantially reduced in respect of the real value of pensions, which appears manifestly unjust and irrational since it ignores inflation’s objective impact on income, with serious repercussions on the economies of families. Hence the doubt as for the constitutionality of the regulations in consideration, since they would be detrimental to some of the principles enshrined in the Constitution, particularly those of the “adequacy” and “proportionality” protected by Articles 3, 36, paragraph 1 and Article 38 paragraph 2, CORI.

Accepting raised constitutionality issue, the CCRI, with the judgment no. 70/2015, declared unconstitutional Article 24, paragraph 25 of Decree-Law no. 201/2011, in so far as, for the years 2012 and 2013, limited the appreciation exclusively on pension benefits in total amount up to three times the minimum INPS treatment.

The Italian government was quick to limit the impact of this judgment, with the enactment of art. 1 of Decree-Law no. 65 of 21 May 2015, converted with amendments into Law no. 109 of July 17, 2015.

Numerous criticisms have been raised in relation to this legislative intervention, because it can not be considered fully respectful of the “appropriateness” and “proportionality” principles set by the CCRI in the judgment no. 70/2015.

It seems clear, in fact, that substitution rules introduced by Decree-Law no. 65/2015 for the years 2012/2013, similarly to the ones declared unconstitutional, deviate significantly from the regulations in force prior to 2012 and one introduced from 2014.

52 For a masterful reconstruction of the story: SANDULLI (2013) Le “pensioni d’oro” di fronte alla Corte europea dei diritti dell’uomo, alla Corte costituzionale e al legislatore, Rivista di Diritto della sicurezza sociale, 683 ff.; SANDULLI(2013), La Corte costituzionale distingue fra equità fiscale ed equità previdenziale: a proposito della sentenza n. 116/2013, at:

http://www.amministrazioneincammino.luiss.it/wp-content/uploads/2013/08/Sandulli_commento-CC_116_2013.pdf.

In the same vein, the Italian Court of Cassation, judgement no. 17892/2014, reaffirmed the non-retroactivity of laws or administrative acts that result in reductions in the amount of pensions already in payment.

Italy

This divergence is moreover identified by the CCRI as a ground of irrationality of the legislation and it therefore can be further complainted of unconstitutionality as soon as possible.

The question is whether any of the Italian policy makers have comprehensive awareness of the commitments made at the time of signing and ratification of the revised European Social Charter (1996) and its Protocol on collective complaints; recent positions taken by the European Committee of Social Rights against Italy (I’m referring to the warning on inadequacy of economic levels of protection highlighted with reference to the minimum pension and disability benefits contained in the 2013 Report on Italy; in perspective it is not possible to exclude a path similar to that followed by the pension reform in Greece, with respect to a significant number of people at risk of social exclusion further penalized by the Italian reform of 2011).

In particular, one wonders whether anyone in Italy has been questioning the nature of the commitment (compliance with the European Code of Social Security) taken at the time of signing and ratification of the revised European Social Charter (1996), in terms of non-regressivity of social policies.

With regard to the assessment of the future of social security rights, it’s quite a common impression that social rights (and not only in Italy) are slipping more and more towards the area of human rights tout court ⁵³ (which could mean, given the trend to evaluate them according to the logic of minimum standards, that the dream of the Constitution’s legislators based on the idea of welfare is definitively waning…) and that now in the limelight are the so-called “new rights” (so-called “third generation rights”, such as for e.g., the right to proper use of Information Communication Technology ⁵⁴). ⁵⁵

53 Such a scenario seems to be the occupation of MODUGNO (2007) in I diritti del consumatore: una nuova generazione di diritti?, in Diritti dell’individuo e diritti del consumatore (ed. COCCO), Giuffrè 2010, 1, ff; the author reminds us that

“The substantive equality is a necessary condition for positive freedom; but such an equality is inconceivable if not within the group or the community to which each person is integral, and therefore by virtue of decisions of the group or community the inequalities between people concretely considered are then removed (or tend to be removed). The need for such a determination is satisfied by the recognition of social rights – the rights of individuals that ensure (or tend to ensure) the

“freedom through or by means of the State” (BOBBIO). In other words, while the formal equality – that in itself does not require specific services – is sufficient for the recognition (in addition to the civil rights) of political rights, only reference to the concept of substantive or factual equality makes it possible to conceive the social rights as co-essential to the person as a concrete dimension”.

54 Not coincidentally, in the last months of 2014 in Italy – promoted by the president of the Chamber of Deputies – has opened a public consultation (naturally, on the web) on a “Decalogue” to protect Internet users; the scientific coordinator of the initiative is Prof. Stephen Rodotà, the author of, among other, of Il diritto di avere diritti, Laterza 2012.

55 They even shared the concerns of MODUGNO, cit .: “Now, apart from the preliminary finding that, with reference to the so-called ‘third generation’ rights, these constitute a category too heterogeneous and vague to enable us to understand what exactly they are, and a subsequent observation that it is difficult to find any unifying concept serving as a marker of such a distinct ‘generation’, it can not be denied that the very authors that propose them appear doubtful of

55 They even shared the concerns of MODUGNO, cit .: “Now, apart from the preliminary finding that, with reference to the so-called ‘third generation’ rights, these constitute a category too heterogeneous and vague to enable us to understand what exactly they are, and a subsequent observation that it is difficult to find any unifying concept serving as a marker of such a distinct ‘generation’, it can not be denied that the very authors that propose them appear doubtful of