The italian constitutional framework

1.1. Constitutional principles ruling the right to social security in the ‘living law’

In the basic principles of the CORI (Part I, Art. 1-12) contain some elements that allow us to interpret correctly each formula contained in the articles included in other parts of the Constitution.

In particular, it should be noted that Italy is a “Democratic Republic founded on work” (Art. 1, paragraph 1, CORI).

Also, emphasising the close link between rights and duties, it states that: “The Republic recognises and guarantees the inviolable rights of man, both as an individual and in the social groups where his personality is expressed. The Republic expects that the intransgressible duties of political, economical and social solidarity be fulfilled” (Art. 2 CORI).

The principle of equality is expressed in a broad and unreserved manner: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions,” and, indeed, the State assumes a very ambitious task: “It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country”

(Art. 3 CORI).

The adopted social model has open and inclusive dimensions: “The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective. Every citizen has

the duty, according to personal potential and individual choice, to perform an activity or a function that contributes to the material or spiritual progress of society” (Art. 4 CORI).

The Italian Republic does not seem to guard its legal space particularly jealously, and in fact: “The Italian legal system conforms to the generally recognised rules of international law. The legal status of foreigners is regulated by law in conformity with international provisions and treaties” (Art. 10 CORI);

as well as: “Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organisations having such ends” (Art. 11 CORI).

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The structure of the CORI distinguishes ethico-social relationships (Part II – Title II, Arts. 29-34) from economic relations (or better: socio-economic, as well as the literal wording of Title III of Part II) (Arts. 35-47).

The aforementioned Title II lays down specific formulas for the protection of the family: “The Republic recognises the rights of the family as a natural society founded on matrimony. Matrimony is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family.” (Art. 29 CORI); “It is the duty and right of parents to support, raise and educate their children, even if born out of wedlock. In the case of incapacity of the parents, the law provides for the fulfilment of their duties. The law ensures to children born out of wedlock every form of legal and social protection that is compatible with the rights of members of the legitimate family. The law lays down the rules and limitations for the determination of paternity.” (Art. 30 CORI); “The Republic assists the formation of the family and the fulfilment of its duties, with particular consideration for large families, through economic measures and other benefits. The Republic protects mothers, children and the young by adopting the necessary provisions.” (Art. 31 CORI); of health: “The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. No one may be obliged to undergo any given health treatment except under the provisions of the law. The law cannot under any circumstances violate the limits imposed by respect for the human person.” (Art. 32 CORI); of education: “The Republic guarantees the freedom of the arts and sciences, which may be freely taught. The Republic lays down general rules for education and establishes state schools for all branches and grades. Entities and private persons have the right to establish schools and institutions of education, at no cost to the State. The law, when setting out the rights and obligations for the non-state schools which request parity, shall ensure that these schools enjoy full liberty and offer their pupils an education and qualifications of the same standards as those afforded to pupils in state schools.

State examinations are prescribed for admission to and graduation from the various branches and grades of schools and for qualification to exercise a profession. Institutions of higher learning, universities and academies, have the right to establish their own regulations within the limits laid down by the laws of the State.” (Art. 33 CORI); “Schools are open to everyone. Primary education, which is imparted for at least eight years, is compulsory and free. Capable and deserving pupils, including those without adequate finances, have the right to attain the highest levels of education. The Republic renders this right effective through scholarships, allowances to families and other benefits, which shall be assigned through competitive examinations” (Art. 34 CORI).

Title III of Part II confirms the centrality of work in the constitutional vision: “The Republic protects work in all its forms and practices. It provides for the training and professional advancement of workers.

It promotes and encourages international agreements and organisations that have the aim of establishing and regulating labour rights. It recognises the freedom to emigrate, subject to the obligations set out by law in the general interest, and protects Italian workers abroad.” (Art. 35 CORI); also, contractual obligations regarding remuneration (compensation for work done) are functionalised to the development of the human person and fulfilment of the solidarity duties, and in the first place in the family: “Workers have the right to a remuneration commensurate to the quantity and quality of their work and in all cases to an adequate remuneration ensuring them and their families a free and dignified existence. Maximum

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daily working hours are established by law. Workers have the right to a weekly rest day and paid annual holidays. They cannot waive this right” (Art. 36 CORI).

The principle of equality between men and women (in this particular article in terms of employment relationships, although the field of social security is derived from this) is also clearly stated: “Working women have the same rights and are entitled to equal pay for equal work. Working conditions must allow women to fulfil their essential role in the family and ensure special appropriate protection for the mother and child. The law establishes the minimum age for paid work. The Republic protects the work of minors by means of special provisions and guarantees them the right to equal pay for equal work”

(Art. 37 CORI).

As mentioned above, the right to social protection is strongly linked, primarily, to the condition of the worker: “Every citizen unable to work and without the necessary means of subsistence has a right to welfare support. Workers have the right to be assured adequate means for their needs and necessities in the case of accidents, illness, disability, old age and involuntary unemployment. Disabled and handicapped persons have the right to education and vocational training. The duties laid down in this article are provided for by entities and institutions established by or supported by the State. Private-sector assistance may be freely provided” (Art. 38 CORI).

The Italian constitutional system demonstrates a choice of perspective in defining the tasks of the social welfare state: the conceptual and legal distinction between “social welfare support” and “social security”. ¹

These two lines of action are instrumental in the creation of a system of government programs and actions that aim to guarantee citizens the means to a free and dignified existence. This guarantee covers the fundamental principles of the Italian Republic (personalist principle ² – protection of human dignity, life and health, education and vocational training; equality principle – equal rights and duties (other things being equal) between citizens and workers; labourist principle – protection of the right to work and livelihood; solidarist principle – actions of the State and private parties to the benefit of social groups/individuals in need).

This distinction, which is fundamental for our analysis because it is deeply rooted in the Italian constitutional tradition, is based on the same formulas as the main provision of the CORI devoted to these issues (Art. 38 CORI).

In the first paragraph, in fact, the right to “welfare support” (literally: ‘right to maintenance’) is (formally) reserved for those with the status of a “citizen” (later in the text we will follow the evolution and expansion of this limit) and is tied (appropriately) to the condition of being “unable to work” and the absence of the “necessary means of subsistence”.

In the following paragraphs, however, the right to “social security” is reserved for “workers” and concretized in the right to receive “adequate means for their needs and necessities” at the occurrence of events that create a situation of need; below we will analyse the evolving application of this fundamental provision, leading to certain ‘openness’ in the form of complementary social security managed by private companies under the supervision of the State.

The decision to include specific recognition of a large number of ‘social rights’ raised an extensive (and still unresolved) legal and political debate about the meaning of the commitments made by the Italian Republic in respect of various categories of persons as beneficiaries of protection.

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1 For more on the apparent dilemma, see: CATINI (2010), Il difficile rapporto tra previdenza e assistenza in Italia, in Rivista del Diritto della sicurezza sociale, 643 ff.

2 Further on the subject: BALDASSARRE (1997), Diritti Della persona e valori costituzionali, Giappichelli.

I will try to give as concise and complete as possible a review of the various aspects related to the basic question: the ‘right to social security’ in the Italian constitutional experience. ³

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The guarantees achieved by the Italian system have been a subject of careful analysis that also highlight certain contradictions in its evolution, largely a result of the ‘clientelist’ and demagogic approach of Italian policy makers over a long period of economic and social expansion in the wake of the Italian post-war reconstruction (1945-1969).

In fact, during this period there has been a proliferation of bodies created by the legislature to achieve the objectives of social protection provided for by the CORI, with a contextual (overly) generous formalisation of the promise of financial benefits adequacy to the income dynamics of protected persons (enactment of Law no. 153/1969 introduced a mechanism for calculating pensions based on pay, trusting in the miracles of the so-called PAYG system, and established retirement contribution upon attainment of the required 35 years; other rules (obviously dedicated to increase employees loyalty to the public authorities for political electoral support) granted the right to receive pension upon completing a rather small contribution period (in some cases: 15 years) regardless of actual age (so-called baby-pensioners).

Trend in the Italian economy (at the first symptoms of broader dynamics of globalisation) have profoundly changed the frame of reference: the number of employees with standard contracts (permanent full-time) is in steady decline; the birth rate in the demographic structure of the population is also declining; and there is massive growth in the immigration of foreign workers. These and other structural factors led the legislature to enact, in 1992, a series of laws that have reshaped the regulatory framework of the social security system in Italy.

This strenuous route (certainly unpopular during political elections, but constantly on the agenda of several governments of different political orientation that have occupied the seat in the past twenty years) focused on a giant spending review of the social security system. Yet, one can easily observe that reduction of public spending capacity in this area brings out an even stronger ‘new perspective’ of social rights in the Italian experience: on the one hand, an increasing role of the private sector (including non-profit) in setting up protective arrangements on top of those conferred on the State and public bodies; on the other, a shift of the legislative centre of gravity from the basic levels of protection to a supranational level (European Council and derived bodies; ⁴ European Union and its institutional bodies).

1.2. Constitutional Guarantees

As already mentioned, the provisions of the CORI dedicated to social security rights generally have a ‘programmatic’ character.

This means that the legislature’s task in giving effect to the constitutional provisions on the subject is constantly monitored, also because it is a result of an incessant political compromise.

3 I wish to honestly highlight that the chosen line of inquiry is deliberately free from the common ‘vice’ of self-reference; I do not wish to bore the reader with exhausting accounts of endless debates with a distinctly nominalistic flavour that risk, in the views professed by the Curators of this collective work, to distract us from the heart of the issue: what are the prospects of social rights protection in a global context of economic and financial crisis?

This paper is not addressed to the national specialist scientific community (it would be presumptuous for a professor who does not teach constitutional Italian and comparative law, but rather a related subject called Legal Foundations of Social security…) – it is aimed at scholars and operators (including policy makers) in other European countries, as well as supranational institutions, who wish to understand what might be called the ‘Italian anomaly’.

4 I refer to the recent report (Conclusions 2013) of the European Committee of Social Rights (ECSR) on Italy, defined in January 2014, which states: “The Committee concludes that the situation in Italy is not in conformity with Article 12§1 of the Charter on the grounds that it has not been established that the minimum level of sickness benefit is adequate;

the minimum level of pension benefit is inadequate”.

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Nevertheless, it is necessary to point out that the analysis of constitutional formulas must be accompanied by an examination of the tools that ensure their effectiveness.

These tools must ensure their concrete enforcement, as the nature of social rights is closely related to their implementation.

The constitutional status given to social security rights consequently entails their constitutional protection, like that of all other rights guaranteed by the CORI.

Violation of social security rights does, in fact, result in the unconstitutionality of laws in conflict with those rights.

This defect can be detected by the Constitutional Court of the Italian Republic (henceforth: CCRI) in a legality review. This is also true in the case of purposeful violation of regulations whose implementation is entrusted to the legislature, which, despite being modest in relation to the legislature’s failure to act, can however repeal the laws that are contrary to those ends.

The largest contribution to further definition and recognition of social security rights ⁵ came from the constant guarantees and promotion efforts of the CCRI that, in accompanying the evolution of these legal rights, has come to affirm them as ‘perfect rights’, even before the doctrine has adjusted its positions and its guidelines to ensure their immediate protection.

The CCRI has often intervened to give effective recognition to social security rights well before the legislature, with awards and decisions containing solutions that gave rise to heated debates.

The CCRI’s tool of choice has been manipulative judgements, especially of the ‘additive’ type, in which the Court declared the unconstitutionality of laws that indiscriminately and unjustifiably precluded certain categories of citizens/subjects from some benefits, especially in the field of social security and welfare.

For all social rights included in the constitutional catalogue, according to the constant direction of the CCRI, the Court’s guarantee is not merely a legal or legislative guarantee but that of constitutional rights (often the inviolable rights) and of constitutional values (often primary or supreme values).

In fact, the basis of their claim lies not in the law which makes it gradually and eventually possible in practice, but in the Constitution.

Therefore, the views of those who, in the new conception of the constitutional State, contrast social rights (mere entitlement to benefits) to the rights of freedom (which, on the other hand, don’t require any positive performance) are no longer tenable because the latter also depend on the organization of the State.

Ultimately, the CCRI has offered social security rights full protection at the constitutional level, equating them to fundamental rights, both in terms of effectiveness (constitutional jurisprudence having recognised fundamental social security rights with as much efficacy with which classic constitutional freedoms are recognized), and with respect to legal status, for which they are indispensable, inalienable, non-renounceable and non-transferable, and have a primary legal status that, in many cases, is inviolable.

Therefore, the CCRI has recognized the immediate effectiveness in relation to third parties and not only in relation to the State, confirming that the effects of guaranteeing social rights is an immediate product of mere recognition, without requiring therefore preventive implementation on the part of the legislature. ⁶

It seems appropriate to point out that the CCRI jurisprudence also comprises, increasingly and especially since the mid-eighties, the reasons for the stability of public finances with respect to social spending in an ongoing and difficult balance between social rights and equilibrium of the expanded State

5 On the genesis of social rights in the Italian experience, see: BENVENUTI (2102), Diritti sociali (digesto discipline pubblicistiche- Aggiornamento, Vol V, 219 ff.

6 For a complete reconstruction of the dynamics: COLAPIETRO (1996), La giurisprudenza costituzionale nella crisi dello stato sociale, Cedam.

budget. ⁷ In this regard, in fact, a reversal of interpretation has been observed regarding the equality principle ‘at the highest level’. ⁸

In parallel, the same constitutional doctrine has not failed to recognize this evolution and to attribute it to the crisis of the welfare state. It was noted, for example, that rulings of unconstitutionality qualifying as ‘benefit additives’, ⁹ have given way to so-called judgements of ‘guarantee additives’. ¹⁰ Indeed, while the former involve acquisition by certain categories of persons of a right to funds or services previously unlawfully excluded or limited, the latter are limited, more sparingly, to determining the acquisition of a passive legal situation by the State, consisting of a non facere or a constraint.

It’s the growing importance of economic and financial reasons that push the doctrine and the constitutional jurisprudence ¹¹ to develop the concept of the minimum essential content of social rights, which then merged with essential levels of performance concerning civil and social rights. ¹²

It is certainly a relative notion, since in the assessment made by the judge, as is commonly recognized, the greatest weight is attributed to the economic and social context, ¹³ as well as cultural content, referenced at the historical moment. ¹⁴ The CCRI itself (in particular, judgement no. 134/1982) had already left the legislature wide discretion in determining this minimum. ¹⁵

In sum, in any decision relating to social rights, the CCRI has a very delicate task: in analysis of the laws (state or regional) brought to its attention it must strike a subtle balance between the expansive principles (trends to universality, adequacy/sufficiency, equality) and limiting principles (sustainability, general financial stability, constraints arising from supranational treaties), especially in a scenario that has become the norm since the constitutional requirement of a balanced budget (Constitution Act 1 of 2012). ¹⁶

To date, the CCRI still has not handled the real theme of the near future: that of solidarity between

To date, the CCRI still has not handled the real theme of the near future: that of solidarity between