Lexploria

Communicated on 27 August 2014

SECOND SECTION

Application no. 26056/07 Rosario ADAMI and others against Italy lodged on 15 June 2007

STATEMENT OF FACTS

A list of the applicants is set out in the appendix. The applicants are all Italian nationals and are represented before the Court by Mr G. Ferraro, Mr R. Mastroianni and Mr F. Ferraro, lawyers practising in Naples.

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The circumstances of the case

A detailed description of the background of the case is set out in Arras and Others v. Italy (no. 17972/07 , §§ 7-25, 14 February 2012) . A brief description of the relevant facts , as submitted by the applicants, may be summarised as follows.

1. Background of the case

The applicants or their ascendants or spouses (in the cases where the applicants are heirs of a deceased individual) are or were all pensioners (retired prior to 31 December 1990) and former employees of the Banco Di Napoli, a banking group which was originally a public entity and which was later privatised by means of Law no. 218/1990, the so-called “Amato reform”, which suppressed exclusive pension regimes.

Before the aforementioned privatisation, the applicants used to benefit from a more favourable equalisation mechanism ( meccanismo perequativo ) than that available to persons registered with the general compulsory insurance ( assicurazione generale obligatoria ), as their annual pension increase was calculated on the basis of the salary increases of working employees in equal grades of service ( perequazione aziendale ).

In 1993 a number of former employees entered into a dispute with the Banco di Napoli about the application of certain provisions of two laws (Section 9 of Law no. 503/1992 and Section 3 of Law no. 421/1991), which the aforementioned bank had interpreted in the sense that the system of perequazione aziendale had been suppressed also in respect of those persons who were already retired at the date of 31 December 1990. The latter stand was taken notwithstanding that, according to the applicants, the Amato reform limited the suppression of perequazione aziendale solely to persons still employed and not persons already receiving a pension, as the latter had not been given the option of taking up other benefits as agreed by means of corporate collective bargaining.

As a consequence, given the less substantial pension they were receiving, a number of pensioners (or their heirs) in the applicants ’ position instituted civil proceedings requesting the courts to find that they had a right to retain the system of perequazione aziendale , and to order the Banco di Napoli to pay the sums it had failed to pay them.

In 1994 the domestic courts upheld the claimants ’ arguments, holding that the impugned amendments did not apply to persons who had retired on or before 31 December 1990. This interpretation became settled domestic case-law, also upheld by the plenary session of the Court of Cassation ( Sezione Unite ), which in 2001 found that, due to the enactment of other legislative amendments, the system of perequazione aziendale would have applied to the above-mentioned pensioners from 1 January 1994 (date when a general suspension of pension adjustments ceased) to 26 July 1996 (date when a new suspension of such adjustments started in respect of the Banco di Napoli). This interpretation continued to be followed by all the judges sitting in such cases.

On 23 August 2004 section 1 paragraph 55 of Law no. 243/04 was enacted. It interpreted the relevant law to the effect that retired employees of the Banco di Napoli could no longer benefit from the system of perequazione aziendale and made it effective retroactively, with effect from 1992.

Issues concerning the constitutionality of Law no. 243/04 were rejected by the Constitutional Court by a judgment filed in the registry on 7 November 2008, on the ground that the impugned law was an interpretative norm to the provisions of Law no. 503/92 which eradicated perequazione aziendale for all pensioners, irrespective of their date of retirement. The impugned law had been reasonable because it aimed to achieve recognition of an equal and homogenous treatment of all pensioners under the current integrative regimes. It further considered that the legislator could enact interpretative laws, once they were based on one of the possible meanings of the original text, even if there had been consistent jurisprudence about the matter, and this did not affect the role of the Court of Cassation.

2. The applicants ’ domestic proceedings

On 20 December 1993 the applicants or their predecessors instituted proceedings on the lines of the proceedings mentioned above, namely they argued that Laws nos. 503/92 and 421/92 safeguarded any more favorable treatment applicable to persons who had retired prior to 31 December 1990. Thus, they requested the Napoli Magistrate ( pretore ) (in his function of Labour judge) to find that they had a right to retain the system of perequazione aziendale as applied before the enactment of such laws and to order the Banco di Napoli to pay the sums it had failed to pay them.

By a judgment no. 1978 of 1 February 1995 the Napoli Magistrate granted the applicants ’ claims .

On appeal, by a judgment no. 2075 of 10 June 2004, the Napoli District Court (Labour Section) upheld the applicants ’ right to be covered by the system of perequazione aziendale , but referring to the highest judicial authorities ’ jurisprudence on the matter, it found that they had such a right only for the period from 1 January 1994 (date when a general suspension of pension adjustments ceased) to 26 July 1996 (date when a new suspension of such adjustments started in respect of the Banco di Napoli).

By a judgment no. 27020 of 19 September 2006, deposited in the relevant registry on 18 December 2006, the Court of Cassation reversed the lower courts ’ judgments and found against the applicants, ordering the costs of the three court instances to be paid equally between the parties. It upheld the ground of appeal that the lower courts could not take account of Law no. 243/04, not yet into force at the time of their judgments, which had been enacted to resolve the question whether Articles 9 and 11 of Law no. 503/92 applied only to employees still in service or also to retired pensioners, and provided that as from 1994 onwards only a perequazione legale (increase according to the standard of living) had to apply to “all” pensioners, irrespective of their date of retirement. It rejected a claim of unconstitutionality in so far as this interpretative law had retroactive effects impinging on the principle of legal and judicial certainty, along the lines of the Constitutional Court ’ s judgments on the matter.

B. Relevant domestic law and practice

A detailed description of the relevant domestic law and practice is set out in Arras and Others (cited above, §§ 25-31) .

COMPLAINT

The applicants complained that Law no. 243/04 as interpreted by the Court of Cassation in its judgment of 7 November 2006, constituted a legislative interference with pending proceedings which was in breach of their fair trial rights under Article 6.

QUESTIONS

1. In respect of the applicants listed in Table I of the Annex, did the applicants ’ predecessors who brought the original claims before the domestic courts die pending the outcome of those domestic proceedings? If so, did the applicants listed in Table I intervene in their stead in the domestic proceedings in their capacity of heirs? In that connection, can the applicants listed in Table I claim to be victims of a violation of Article 6 § 1 of the Convention, within the meaning of Article 34?

2. Did the applicants mentioned in Tables I and II of the Annex have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was there interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute? If so, was the interference based on compelling grounds of general interest? Lastly, was the interference compatible with the principles of legal certainty (see Arras and Others v. Italy, no. 17972/07, 14 February 2012)?

Appendix

TABLE I

N o .

Firstname LASTNAME

Birth date

Place of residence

Rosario ADAMI

heir of Renato ADAMI

25/06/1943

Napoli

Giancarlo ADAMI

heir of Renato ADAMI

07/04/1946

Napoli

Donatella ADAMI

heir of Renato ADAMI

04/11/1955

Napoli

Roberto BOSSI

heir of Ernesta ANTONELLI

20/11/1953

Sestri Levante (GE)

Concetta BORZACCHIELLO

heir of Sergio DALL ’ AGLIO

07/06/1936

Napoli

Stefania DALL ’ AGLIO

heir of Sergio DALL ’ AGLIO

20/04/1968

Napoli

Alessandro DALL ’ AGLIO

heir of Sergio DALL ’ AGLIO

13/02/1965

Napoli

Valva Isabella D ’ AYALA

heir of Claudio SAVARESE

10/06/1930

Napoli

Paolo SAVARESE

heir of Claudio SAVARESE

28/10/1958

Napoli

Riccardo SAVARESE

heir of Claudio SAVARESE

28/04/1960

Napoli

Caterina LECCESE

heir of Cosimo TESTA

13/06/1921

Gaeta

Antonio TESTA

heir of Cosimo TESTA

12/06/1959

Gaeta

Maria TESTA

heir of Cosimo TESTA

07/12/1955

Gaeta

Giusta ORIONI

heir of Ferdinando ZAMPI

23/09/1938

Cagliari

Luigi ZAMPI

heir of Ferdinando ZAMPI

01/06/1967

Cagliari

Alessandro ZAMPI

heir of Ferdinando ZAMPI

30/01/1969

Cagliari

Francesca ZAMPI

heir of Ferdinando ZAMPI

14/06/1970

Cagliari

Valeria ZAMPI

heir of Ferdinando ZAMPI

13/01/1977

Cagliari

Barbara ZAMPI

heir of Ferdinando ZAMPI

13/01/1977

Cagliari

Guido MAZZA

Heir of Elena AVETA

12/07/1945

Pescara

Fernanda BERNONI

heir of Gaetano DE FABRITIIS

21/09/1915

Tortoreto

Alessandro DE FABRITIIS

heir of Gaetano DE FABRITIIS

28/06/1940

Tortoreto

Paolo DE FABRITIIS

heir of Gaetano DE FABRITIIS

30/11/1954

Tortoreto

Annarosa DE FABRITIIS

heir of Gaetano DE FABRITIIS

30/06/1957

Tortoreto

Renata MARINI

heir of Giuseppe DI NOZZI

30/05/1924

Firenze

Rosaria DI NOZZI

heir of Giuseppe DI NOZZI

07/09/1954

Firenze

Giovanna D ’ AGOSTINO

heir of Francesco IACONIS

02/08/1927

Padova

Gianfranco IACONIS

heir of Francesco IACONIS

01/01/1956

Padova

Nicola IACONIS

heir of Francesco IACONIS

21/09/1951

Padova

TABLE II

N o .

Firstname LASTNAME

Birth date

Place of residence

30Francesco BERETTA

09/09/1925

Genova

31Alfio BIONDI

12/02/1942

Roma

32Brunetto BRUNELLI

20/10/1920

La Spezia

33Salvatore CALDERONI

23/12/1935

Bari

34Cataldo CAPANO

12/03/1939

Trani

35Angelo CONSOLE

09/10/1940

Avellino

36Vito Filippo DE SANTIS

25/11/1937

Pescara

37Dario DI MATTIA

28/05/1928

Ancona

38Pierluigi FERRATI

21/06/1931

Firenze

39Tito Italo GRECO

30/03/1941

Rende

40Iolanda MODOLO

14/11/1925

Trieste

41Giuseppe PANTANO

12/11/1921

Taranto

42Giovanni PRIVITERA

20/12/1929

Napoli

43Rosanna RAGOZZINO

26/04/1951

Napoli

44Carmine ROSSI

07/01/1922

Napoli

45Stefano SODANO

14/05/1938

Montefiascone

46Giorgio TERSIGNI

17/11/1931

Sora (Fr)

47Mario TROTTA

14/11/1932

Matera

48Francesco FALCO

27/02/1922

Napoli

49Edda GHERSEVICH

19/02/1934

Cuveglio (Va)

5 0

Lidia IANNELLI

20/07/1924

Potenza

51Grazia MARESCA

04/06/1924

Barletta

52Mario Marco PASANISI

25/04/1940

Taranto

53Luigi PERELLI

19/05/1930

Avellino

54Carmen CARVELLI

06/12/1919

Roma

55Giuseppina DE GENNARO

03/07/1922

Roma

56Cosimo DE LUCA

05/02/1933

Codevigo (PD)

57Marisa DE NAPOLI

19/06/1947

Casetl di Casio (BO)

58Maria DE NICOLA

13/09/1925

Roma

59Ercole FARRUGIA

23/06/1941

Roma

60Egisto Mario GERINI

03/02/1933

Perugia

61Athos PORCU

11/03/1937

Greve C. (FI)

62Liliana SALVI

15/07/1926

Nettuno

63Ugo SANTORO

21/11/1934

Roma

64Gidemore VIAGGIO

01/11/1934

Roma

65Anna Maria BADOLATO

27/11/1924

Roma

66Maria Michele CIANI

04/04/1946

Ariccia

67Bruna GIORDANO

21/10/1948

Roma

68Lydia IUZZOLINO

26/08/1941

Roma

69Filomena LIBERTINI

15/02/1937

Salerne

70Lucia LIBERTINI

26/12/1941

Salerne

7 1

Maria MAURO

13/07/1946

Rome

72Luigi MAZZITELLI

24/09/1934

Castelvolturno

73Maria MICHELUTTI

05/02/1918

Verona

74Elda MONTANARI

10/06/1923

Roma

75Maria PETRACCONE

27/08/1941

Napoli

76Mario PIAZZOLLA

18/01/1938

Roma

77Marianna PODDA

21/07/1942

Nuoro

78Jole Maria POL

13/10/1926

Lanuvio

79Emilia RADDINO

14/09/1915

Verona

80Aldo TANGO

01/12/1924

Naples

81Grazia Maria SOLINAS

18/12/1931

Perouse

82Luigi VECCHIONE

17/03/1937

Milano

83Vincenzo GAETANIELLO

23/01/1933

Napoli

84Elena PARRELLA

13/12/1935

Napoli

85Anna Maria AIELLO, heir of Vincenzo LOI, who died on 20/06/01

07/09/1924

Napoli

86Maria Iolanda DIONISO, heir of Nicola RAFFONE

06/02/1923

Roma

87Giuseppina VALENTE, heir of Giuseppe BARONE

25/02/1920

Roma

Menu

ADAMI AND OTHERS v. ITALY

ADAMI AND OTHERS v. ITALY

LEXI