Lexploria

Communicated on 27 August 2014

SECOND SECTION

Application no. 20035/07 Giuseppa AIELLO and others against Italy lodged on 4 May 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 was 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 TO THE PARTIES

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

Massimo BRANDIGI

heir of Osvaldo BRANDIGI

08/05/1947

Firenze

Stefano BRANDIGI

heir of Osvaldo BRANDIGI

09/01/1952

Firenze

Carlo CIAMARONE

heir of Rocco CIAMARONE

18/06/1954

Pescara

Paolo CIAMARONE

heir of Rocco CIAMARONE

12/09/1950

Pescara

Cabiria BRANDIMARTE

heir of Rocco CIAMARONE

21/02/1921

Pescara

Angela BOTTA

heir of Chiara CIOMPI

01/03/1938

Napoli

Antonella COSTA

heir of Giovanni COSTA

14/05/1963

Foggia

Giuseppe COSTA

heir of Giovanni COSTA

29/03/1958

Foggia

Pierluigi COSTA

heir of Giovanni COSTA

02/09/1964

Foggia

Maria Antonietta BATTAGLINI

heir of Giovanni COSTA

09/04/1937

Foggia

Marisa BOSI

heir of Silvio DE ROSE

12/02/1932

Marradi (FI)

Maria DE ROSE

heir of Silvio DE ROSE

10/12/1959

Cosenza

Ottavio DE ROSE

heir of Silvio DE ROSE

08/08/1964

Cosenza

Giorgia FALANGA

heir of Lorenzo FALANGA

19/01/1963

Napoli

Maria Grazia FENU

heir of Lorenzo FALANGA

27/03/1939

Napoli

Rossana LANDI

heir of Velia FORLANI

01/01/1932

Pescara

Margherita DI GIGLIO,

heir of Mauro Antonio DI GIGLIO

10/11/1959

Napoli

Rosanna DI GIGLIO,

heir of Mauro Antonio DI GIGLIO

23/03/1964

Torre del Greco

Carmine DI GIGLIO,

heir of Mauro Antonio DI GIGLIO

27/01/1967

Fiumicino (RO)

Claudio DI NOIA,

heir of Giovanni DI NOIA

17/05/1949

Milano

Maria Donata DI NOIA,

heir of Giovanni DI NOIA

06/03/1955

Milano

Massimo DI NOIA,

heir of Giovanni DI NOIA

12/02/1948

Milano

Raffaele DI NOIA,

heir of Giovanni DI NOIA

22/04/1952

Milano

Amalia TAVEGGIA,

heir of Giovanni DI NOIA

10/04/1919

Milano

Carlo GABRIELE,

heir of Renato GABRIELE

12/11/1962

Caserta

Olimpia GABRIELE,

heir of Renato GABRIELE

25/08/1961

Caserta

Maria Rosara AVETA,

heir of Renato GABRIELE

03/02/1935

Caserta

TABLE II

N o .

Firstname LASTNAME

Birth date

Place of residence

Giuseppa AIELLO

05/08/1928

Milano

Luisa ANSELMO

09/07/1927

Milano

Tommaso BASTI

24/03/1923

Pescara

Osvaldo BATTIMIELLO

06/11/1925

Milano

Romano BERGAMI

10/06/1936

Bologna

Luigi BIANCO

24/09/1934

Genova

Sandra BOLDRER

17/03/1954

Bolzano

Franco BOLOGNA

15/03/1920

Alassio

Paolo BOMBARDI

10/08/1939

Genova

Maria BONICA

23/09/1924

Napoli

Sergio BUTTA ’

21/02/1939

Telese Terme

Livio CALCINAI

21/11/1920

Molino del Piano

Renza CALLIARI

17/08/1955

Taio (TN)

Assunta CANTONE

08/09/1922

Napoli

Antonio CARACCIOLO

29/01/1917

Milano

Antonietta CASAZZA

20/10/1928

Castrolibero

Nicola CASCIELLO

13/10/1937

Battipaglia

Rocco CASONE

22/03/1932

Acquaviva di Fonti

Wanda CATALINI

16/03/1947

Napoli

Igino CATANZARITI

31/05/1938

Lecce

Elisabetta CERESA

21/09/1946

Ercolano

Angelo CESARI

10/01/1919

Genova

Malio CHIARIELLO

06/07/1942

Gallipoli

Antonio Donatello CHINICO ’

22/10/1948

Rossano

Rosa CIAMPITTI

14/03/1922

Nola

Anna CIBELLI

14/09/1920

S. Nicola la Strada

Caterina CINO

01/03/1948

Caserta

Giuseppe COMPAGNONE

04/11/1931

Benevento

Caterina COSCIA

28/11/1925

Torre del Greco

Eleonora COSENTINO

20/12/1952

Salerno

Mario D ’ ALIA

25/07/1936

Terracina

Aida D ’ APUZZO

09/04/1936

Gragnano

Maria DE FINA

07/04/1951

Potenza

Bruno DE GREGORIIS

05/06/1926

Sulmona

Antonino DE GREGORIO

27/09/1939

Genova

Giovanna DE JATTA

20/07/1948

Conversano

Vincenzo DEL GRIPPO

20/03/1931

Salerno

Ciro DE LUCA

07/04/1938

Pagani

Eduardo DE STASIO

08/09/1935

Marano

Carmela DE STEFANO

04/03/1947

S. Nicola La Strada

Vittorio ELLERO

18/01/1938

Arese

Rosa ESPOSITO

04/11/1933

Napoli

Mattia FAIELLA

06/02/1939

Nocera Inferiore

Silvia FILIPPI

15/08/1943

Portici

Remo DI GIOVANNI

21/08/1922

Pescara

Giancarlo DI IORIO

04/09/1940

Chieti

Pasquale DI RAIMONDO

15/04/1935

Roseto degli Abruzzi

Gustavo DI RUGGIERO

14/03/1940

Trani

Olmitella DI TARANTO

01/01/1932

Foggia

Mafalda GALANTE

04/12/1922

Pescara

Angelo GALIMBERTI

01/11/1930

Lido di Venezia

Giuseppe GAMBINO

18/11/1935

Scafati

Diana Lucia GIANCANE

09/03/1944

Lecce

Pia BOY

heir of Giorgio BUONERBA , dead on 4/05/2008

08/03/1921

Atripalda

Carla BUONERBA

heir of Giorgio BUONERBA, died on 4/05/2008

03/02/1949

Atripalda

Maurizio Antonio BUONERBA

heir of Giorgio BUONERBA, who died on 4/05/2008

09/07/1958

Atripalda

Fabrizio CALDARAZZO

heir of Guido CALDARAZZO, who died on 4/07/2008

26/06/1978

Savona

Maria ROCCOCELLI

heir of Guido CALDARAZZO, who died on 4/07/2008

12/01/1933

Savona

Lucio CARBONE

On his own behalf and as heir of Luigi CARBONE, who died on 15/05/2009

02/03/1940

Milano

Paolo CARBONE

heir of Luigi CARBONE, who died on 15/05/2009

22/07/1943

Bologna

Alfonso CARBONE

heir of Luigi CARBONE, who died on 15/05/2009

03/09/1938

Alessandria

Giorgio CARBONE

heir of Luigi CARBONE, who died on 15/05/2009

29/07/1946

Napoli

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AIELLO AND OTHERS v. ITALY

AIELLO AND OTHERS v. ITALY

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