The impact of constitutional social security provisions in establishing the domestic legal system

2.1. Incorporation of international standards

It should be noted that the Italian Republic has, in general, always wanted to demonstrate its readiness to recognise (implementing Arts. 10 and 11 of the CORI), including from a formal point of view, the various provisions in the field of social rights contained in the supranational legal sources.

It has, in fact, signed and ratified:

– the International Covenant (ONU-1966) on Economic, Social and Cultural Rights, ratified by Law no. 881 of 25 October 1977, entered into force on 15 December 1978;

– accepted (but not yet ratified) the Optional Protocol (2008) to the International Covenant on Economic, Social and Cultural Rights of 1996, which establishes a procedure for individual communications;

– accepted (but not yet ratified) the UN Convention (1990) on the Rights of All Migrant Workers and Members of Their Families;

Regarding the ILO sources ILO, Italy has not ratified the following Conventions:

– 159 – Vocational rehabilitation and employment (disabled persons), 1983;

– 164 – Health Protection and Medical Care (Seafarers), 1987;

– 167 – Health and Safety in Construction, 1988;

– 170 – Chemicals, 1990;

– 175 – Part-Time Work, 1994;

– 183 – Maternity Protection, 2000;

– 189 – Domestic Workers, 2011.

It should be noted that Italy was one of the first countries to ratify ILO Convention no. 102 – Social Security (Minimum Standards), 1952, with Law no. 741 of 1956.

In the European legal space, with reference to the Council of Europe, it should be noted that Italy has ratified, in their entirety, both the ECHR and the European Social Charter (the latter in its updated 1996version; it has also ratified the Additional Protocol of 1995 providing for a system of collective complaints, with the only limitation that national NGOs are excluded), subject to ratification (restricted to parts V, VI, VII and VIII) of the European Code of Social Security (1964) by Law no. 1977, which came into force in 1978.

In the periodic reporting activity of the European Committee of Social Rights in the Council of Europe, Italy has often been spurred on to improve the level of social protection, with particular reference to the protection of disabled people and the amount of minimum pension; economic protection against unemployment is also the object of Committee’s attention.

With regard to decisions on collective complaints, we note the claim on the right to housing of Sinti and Roma populations (58/2009 COHRE vs. Italy).

It must be said that from the small number of collective complaints presented against Italy, much still has to be processed to spread good practice. ¹⁸

18 It may be helpful to take into account the collective complaints presented against the Italian Republic:

No. 105/2014 Union Association “La Voce dei Giusti” vs. Italy

The complaint registered on 22 April 2014, relates to Article 10 (right to vocational training) of the Revised European Social Charter, read alone or in conjunction with the non-discrimination clause set forth in Article E. The complainant organisation alleges that teaching staff in a certain category is prevented from undertaking or continuing specialised studies in view of the increasing burden of workload imposed on it, in violation of the above-mentioned provisions. The complaint is still pending.

No. 102/2013 National Association of Justices of the Peace vs. Italy

The complaint, registered on 2 August 2013, relates to Article 12 (right to social security) of the European Social Charter. The complainant organisation, the Associazione Nazionale Giudici di Pace (the National Association of Justices of the Peace), alleges that Italian law does not provide any social security and welfare protection for this category of honorary Judges, in violation of the Charter provision relied on. The complaint is still pending.

Note 18 continued on page 130

It foreshadows activation of the remedy through the collective complaints procedure, with reference to certain abnormal situations resulting from enactment of regulations that entail considerable restriction of social rights as a result of reforms that aren’t always well thought out by the legislature, which is in turn pressed by the public finance crisis.

Within the ECHR, ¹⁹ we note (as emblematic of heated debates among the Courts) an ECHR judgement of 31 May 2011 regarding Swiss pensions paid to Italian workers, from which a clearly restrictive decision (for obvious reasons of public finance) of the CORI originated (judgement no. 264 of 2012). ²⁰ Although more limited in scope, also very interesting is the ECHR judgement of 14 February 2012 on the Arras case, in terms of the enactment of a law of authentic interpretation, which removed the right to automatic equalization of pension. We should also mention the judgement of 4 December 2012 by the ECHR on Hamidovic case, which condemned Italy for the expulsion of a Bosnian-Roma woman, mother of five children.

19 A critical review is found CINELLI (2006), La tutela dei diritti sociali nella giurisprudenza della CEDU (“Protection of social rights in the jurisprudence of the ECtHR”), Rivista italiana di Diritto della sicurezza sociale (Italian Journal of the Law of Social Security), 731 ff.

20 To reconstruct the controversy, see: DE MICHELE (2014) Il dialogo tra Corte di giustizia, Corte europea dei diritti dell’uomo, Corte costituzionale e Corte di Cassazione sulla tutela effettiva dei diritti fondamentali dei lavoratori a termine:

la sentenza Carratù-Papalia della Corte del Lussemburgo, at http://www.cde.unict.it/quadernieuropei/giuridiche/60_2014.

For the general outlines of the dialogue between the Courts, see:RUGGERI (2011) La Corte costituzionale “equilibrista”, tra continuità e innovazione, sul filo dei rapporti con la Corte EDU, in Diritto pubblico comparato ed europeo, 1757 ff;

RUGGERI (2012) La Consulta rimette abilmente a punto la strategia dei suoi rapporti con la Corte EDU e, indossando la maschera della consonanza, cela il volto di un sostanziale, perdurante dissenso nei riguardi della giurisprudenza convenzionale (“a prima lettura” di Corte cost. n. 264 del 2012), at http://www.giurcost.org/studi/Ruggeri23.pdf; RUGGERI (2012) La Corte di giustizia marca la distanza tra il diritto dell’Unione e la CEDU e offre un puntello alla giurisprudenza costituzionale in tema di (non) applicazione diretta della Convenzione (a margine di Corte giust., Grande Sez., 24 aprile 2012), at http://www.giurcost.org/studi/Ruggeri15.pdf; RUGGERI (2012) Costituzione e CEDU, alla sofferta ricerca dei modi con cui comporsi in “sistema”, at http://www.giurcost.org/studi/ruggeri14.pdf.

No. 94/2013 Association for the Protection of All Children (APPROACH) Ltd vs. Italy.

The complaint was registered on 4 February 2013. The complainant organisation alleges that many children in Italy are still suffering corporal punishment, and violent punishment of children is still culturally and socially accepted.

APPROACH complains of the failure of Italy to adopt the necessary legislation and its lack of diligence to eliminate violent punishment of children in practice in violation of Article 17 (the right of mothers and children to social and economic protection) of the European Social Charter. The complaint is still pending.

No. 91/2013 Italian General Confederation of Labour (CGIL) vs. Italy

The complaint was registered on 17 January 2013. The complainant trade union, Confederazione Generale italiana del Lavoro (CGIL), alleges that the formulation of Article 9 of Law No. 194 of 1978, which governs the conscientious objection of medical practitioners in relation to the termination of pregnancy, is in violation of Article 11 (the right to health) of the European Social Charter, read alone or in conjunction with the non-discrimination clause in Article E, in that it does not does not protect the right guaranteed to women with respect to the access to termination of pregnancy procedures. It alleges also a violation of Article 1 (the right to work), 2 (the right to just conditions of work), 3 (the right to safe and healthy working conditions), 26 (the right of dignity at work) of the European Social Charter, the latter articles read alone or in conjunction with the non-discrimination clause in Article E, in that it not does not protect the rights of the workers involved in the above-mentioned procedures. Moreover, the complainant organisation asks the Committee to recognise, with respect to the subject matter of the complaint, the relevance of Articles 21 (the right to information and consultation) and 22 (the right to take part in the determination and improvement of the working conditions and working environment) of the European Social Charter. The complaint is still pending.

No. 87/2012 International Planned Parenthood Federation European Network (IPPF EN) vs. Italy

The complaint was registered on 9 August 2012. The complainant organisation alleges that the formulation of Article 9 of Law No. 194 of 1978, which governs the conscientious objection of medical practitioners in relation to the termination of pregnancy, is in violation of Article 11 (the right to health) of the European Social Charter, read alone or in conjunction with the non-discrimination clause in Article E, in that it does not does not protect the right to access termination of pregnancy procedures.

The European Committee of Social Rights concluded that there was a violation of Article 11§1 and of Article E read in conjunction with Article 11 of the Charter and transmitted its report containing its decision on the merits of the complaint to the Parties and to the Committee of Ministers on 7 November 2013.

The Committee of Ministers adopted Resolution Res/CM ChS (2014) 6 on 30 April 2014.

Note 18 continued from page 129

Italy

Often, issues regarding protection of social rights are – with the procedural restrictions in the well-known domestic scope – conveyed by reference to violations of the instrumental provisions of the ECHR Convention, ²¹ almost always on the right to a fair trial and the prohibition of discrimination.

For an interesting combination of different (but converging) sources from the European legal area, note a CORI decision (judgement no. 40/2013), which removed an irrational obstacle to the release of long-term residence permits for non-EU citizens with reference to a social security benefit (disability pension). ²²

the contribution that can be offered by the primary legal basis (Charter of Fundamental Rights of the European Union – CFREU) ²³ is genetically restricted ²⁴ (in the current attitude of the Court of Justice of the European Union – CJEU) both due to a formal referral limited to the laws (secondary level) of the Union, and due to the assignment of assessment of the scope of application in each case to the CJEU.

It should be stressed that the ongoing workings of the operators in the European legal space (hoping for an awakening of the conscience of Italian jurists) will harness more and more paths of integrated protection of social rights, based on the principle of indivisibility – a clever combination of instruments activated in parallel: before the ECHR, before the European Commission, before the CJEU, before the ECSR. The result of this effort for the emergence of the legal substance of social rights must then

21 SERINO (2014) La tutela dei diritti sociali in Europa tra Corte di Giustizia e Corte Europea dei Diritti dell’uomo, at https://www.duitbase.it/articoli/la-tutela-dei-diritti-sociali-in-europa-tra-corte-di-giustizia-e-corte-europea-dei-diritti-dell-uomo; SICLARI D. (2013), La legge sotto condizione sospensiva di efficacia nel costituzionalismo europeo multilivello, at http://www.forumcostituzionale.it/site/images/stories/pdf/documenti_forum/paper/0401_siclari.pdf.

22 Article 80, paragraph 19 of Law no. 388 of 2000 was declared unconstitutional, in so far as it sets the requirement for holders of residence permits granted to foreigners legally residing in the territory of the State an attendance allowance as per Art. 1 of Law no. 18 of 1980, no. 18 and disability pension as per Art. 12 of Law no. 118 of 1971. The Court stated that the contested provision – heavily restricting the scope of Art. 41 of Legislative Decree no. 286 of 1998, relating to social security benefits and welfare in favour of non-EU nationals – subordinated concession of the benefits constituting individual rights under the law in force in the field of social services to the ownership of the residence card, later replaced, with effect from 2007, with a long-term EC residence permit. It has been repeatedly scrutinised by the Court in reference to the institutions of disability pension (judgement no. 11 of 2009 and judgement no. 324 of 2006) and attendance allowance (judgement no. 306 of 2008), that is to say, the same benefits covered by the current referral orders. In the above judgements, it was reported how it was manifestly unreasonable to subordinate allocation of assistance benefits (which require a state of invalidity and disability) to the possession of a leave to remain in the territory of the State that for its issue demands, among other things, a certain income, while not taking into account the requirement – on which the Court was asked to rule in the present case – of possession, for at least five years, of a valid residence permit (also required for the attainment of the above residence status). The Court then noted that the provision of this latter requirement was, however, scrutinized with reference to other benefits, that is, for the monthly disability allowance as per Art. 13 of Law no. 118 of 1971 (in judgement no. 187 of 2010) and for the attendance allowance as per Art. 1 of Law no. 289 of 11 October 1990 (in judgement no. 329 of 2011). In both of these latter times, in declaring the unconstitutionality of the legislation complained of, it has been, in particular, stressed that – in those cases, as is the cases under present consideration, the benefits intended for the support of individuals and the maintenance of acceptable living conditions in the family context in which the disabled person is placed – any distinction between citizens and foreigners legally residing in the territory of the State, based on requirements other than those provided for the general population of subjects, results in a contradiction to the principle of non-discrimination of Art. 14 of the Convention, having regard to the strict interpretation of this provision that was offered in the case law of the European Court. And identical order for relief is also considered applicable by the Court – albeit mutatis mutandis – in the current judgement, having regard to the nature and the ratio of benefits under consideration here. In fact, this case is also dealing with the benefits targeting subjects in serious health conditions, with highly debilitating handicaps (in one of the two judgements it was also a minor), whose attribution implies the involvement of a series of values of essential prominence, all of them of constitutional significance and covered by the principles invoked, and among them Art. 2 of the Constitution. These values – also in light of the various international conventions that regulate them – render unjustified the application of a restrictive regime (ratione temporis, as well as ratione census) in respect of non-EU citizens legally residing in the territory of the State already for an appreciable and non-episodic period, as in the present cases.

23 On the role of national constitutional traditions, see: GAMBINO (2012), identità costituzionali e primauté eurounitaria, in Quaderni costituzionali, 533 ff.

24 STERN (2005) Dalla Convenzione europea dei diritti dell’uomo alla Carta europea dei diritti fondamentali.

Prospettive di tutela dei diritti fondamentali in Europa, in The European Charter of Fundamental Rights in the Constitution, comparison evaluation (ed.: STERN, TETTINGER), Berliner Wissenschafts-Verlag, Berlin, 13 ff; STERN (2006) Costituzione europea e la Carta dei diritti fondamentali dopo il No francese e olandese , in Costituzione europea in divenire (eds.: STERN, TETTINGER), Berliner Wissenschafts-Verlag, Berlin, 25 ff; also in: Teoria del Diritto e dello Stato – Rivista europea di cultura e scienza giuridica 2005,97 ff.

be carefully evaluated by national Judges who will be the ones to apply these in accordance with the principles to the specific facts placed before them.

Another essential aspect is cultural diffusion through the ANESC (Academic Network on the European Social Charter and Social Rights), which has an established presence in Italy and in other countries in the European legal space.

The greatest impact the EU law has in terms of implementation of the right to social security is caused by the Council Regulation (EEC) no. 1408/71, later amended by Regulation (EC) no. 883/2004, through which thousands of Italian and non-Italian workers were able to accrue the requirements to access social benefits, thanks to the pro rata mechanism. The Regulation (EC) no. 859/2003 dedicated to equal treatment in access to social security benefits for citizens of non-EU states (and their families), provided that they are ordinarily resident in the territory of the Union, is finding progressive application in relation to the development of demographic dynamics of immigration for employment purposes. Regarding the matters of family reunification for non-EU workers, Directive no. 86/2003 has been implemented;

similarly with Legislative Decree no. 30/2007, Directive no. 2004/38 was implemented (free movement of EU workers and their families).

Directives concerning the protection of health and safety at work gave rise to a legislative corpus (Legislative Decree no. 81/2008) that is very complex and strongly implemented, thanks to a system of incentives (reduction of contribution), controls (by the State) and monitoring (by the workers’ representatives) that over the past twenty years helped achieve some important results in terms of the progressive reduction of workplace fatalities, even though injuries and deaths affecting undocumented workers are still a great concern, especially regarding workers from outside the EU who work in agriculture in some areas of Italy.

The principle of equal treatment between men and women in matters of social security has found significant application in public employment.

The award of 13 November 2008 in Case C – 46/07, the CJEU has condemned Italy (in infringement proceedings) for unlawful age differentiation (more favourable to women) in terms of access to old age pension. Consequently, the Italian government had to issue regulations on equality between the sexes (most recently, Law no. 214/2011).

Also, note that the integrity of tax status of employees of insolvent employers (imposed by Directive no. 987/1980 and Directive no. 2002/74) is protected by law (Legislative Decree no. 80/1982;

Legislative Decree no. 186/2005), and that this is valid both for the forms of compulsory social security and welfare managed by the State, and for private pension funds.

Legislative Decree no. 28/2007 of 6 February 2007 implemented Directive 2003/41/EC regarding the activities and supervision of institutions for occupational retirement; however, this sector also has a separate supervisory authority (COVIP).

2.2. The main legal institutions to Implement the Principles of constitutional protection of the rights of social security

The principles of adequacy, sufficiency and essential social benefits (Art. 38, CORI) are the foundation of a number of important legal institutions.

First of all, since 1942 (Art. 2116, Italian Civil Code) has been in place a mechanism that automatically recognizes entitlement to social benefits, even if the relative contribution has not been paid by the employer; however, it must be said that this principle works only to a limited extent (until expiration of the limitation period of five years) for benefits other than those due to accidents and occupational diseases (in which it operates fully automatically).

Secondly, in many cases of non-performance of work (illness, accident, maternity, recourse to subsidies for full or partial unemployment, etc.) the periods concerned are considered relevant and covered by contributions (the so-called figurative contribution), which are charged to the State. It is a tool intended to implement the principle of effectiveness.

Another significant institution, although relating to the use of pensions and dedicated to the application of the principle of adequacy, for a long time has been the so-called automatic equalization, based on the

Italy

constant indexation of pensions to the cost of living. In a radical move, starting from 2012 and for higher pensions such mechanism has been abolished, for obvious reasons of saving in pension expenditure.

Moreover, another mechanism for adjusting the amount of social benefits was delimited some time ago, for cases where they are awarded on the basis of Court judgement. In such cases, the amount will be increased by only one of the components set in Art. 429 of the Italian Code of Civil Procedure (legal interest; index of currency appreciation) and never cumulatively by these (Law no. 724/1994).

An important (and unfailing) type of institution, inspired by the principles of universality and solidarity, is represented by measures to ensure a minimum amount of pension, either with a contribution base (so-called integration to a minimum) or where access is not tied to a defined contribution (for situations of serious socio-economic hardship) (so-called welfare benefits for the elderly over 65 years).

A similar measure is true for all economic treatments provided to protect the disabled, whether they are former workers or not.

The Italian social model has given importance to the principles of subsidiarity between the State and

The Italian social model has given importance to the principles of subsidiarity between the State and