Published on 19 September 2022

FIRST SECTION

Application no. 46210/18 Marina ANDREOLA against Italy lodged on 19 September 2018 communicated on 29 August 2022

SUBJECT MATTER OF THE CASE

The application concerns the application of retrospective legislation, specifically Article 1 § 218 of Law no. 266/2005 of 23 December 2005 to pending national proceedings commenced by the applicant.

The applicant had initially been employed by the local government authorities. After a transfer, under Article 8 of Law no. 124/1999, to the Ministry of Education, Universities and Research, her length of service with the local government authorities (her original employer) was not fully recognised for financial and legal purposes.

The applicant lodged proceedings before national courts (see appended table for details) arguing that the conversion of her salary into a notional length of service with the new employer upon transfer had been unlawful and detrimental. She sought placement in the professional grade corresponding to her full length of service from the date of the transfer as well as the determination of any compensation due to her.

After the issuance of the judgment of first instance, Article 1 § 218 of Law no. 266/2005 of 23 December 2005 entered into force. This provision intended to give effect to what the legislator claimed to be the original intention of the Parliament when adopting Article 8 of Law no. 124/1999. Relying on that interpretative law the domestic courts dismissed the applicant’s claims. The applicant challenged the judgment before the Court of Cassation.

During the proceedings, following the judgment of the Court of Justice of the European Union of 6 September 2011 in Scattolon , C-108/10, the Court of Cassation remitted the case to the court of appeal for determination of whether the transferred employees had suffered a substantial loss of salary solely as a result of the transfer. The domestic courts dismissed the applicant’s claims. The applicant appealed against this judgment and the Court of Cassation dismissed her appeal. The Court of Cassation refused to refer a question of constitutionality of Article 1 § 218 of Law no. 266/2005, stating that the matter had already been assessed by the Constitutional Court. According to the Court of Cassation, in particular, there was no reason to refer a new question of the constitutionality of the contested provision, even though the Constitutional Court had decided before the delivery of the Court’s judgment in Agrati and Others v. Italy , nos. 43549/08 and 2 others, 7 June 2011, since the Constitutional Court had recognised the existence of overriding reasons relating to the public interest which justified retrospective application of the contested law and had established that the power to make such assessment rested with the Constitutional Court itself.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her 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 on account of the retrospective application to their case of Article 1 § 218 of Law no. 266/2005 (see Agrati and Others v. Italy , nos. 43549/08 and 2 others, 7 June 2011, and Cicero and Others v. Italy , nos. 29483/11 and 4 others, 30 January 2020)?

If so, was that interference based on compelling grounds of general interest?

2. Has there been an interference with the applicants’ peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1, considering the enactment of Article 1 § 218 of Law no. 266/2005?

If so, did the interference impose an excessive individual burden on the applicant?

3. The Court of Cassation refused to refer a question of constitutionality of the contested law on the basis that the Constitutional Court had already decided a similar matter, even though this judgment (i) was issued before the Court’s judgment in Agrati and Others v. Italy , nos. 43549/08 and 2 others, 7 June 2011, and (ii) declared ill-founded the question of constitutionality and, therefore, did not preclude the referral of new questions of constitutionality on the same provision, especially when the development of the case-law of the Court provided for new arguments to consider a question of constitutionality not manifestly ill-founded.

In this context, the Government are requested to clarify under which conditions the domestic legal system requests national judges to bring the interpretation of the Convention’s provisions offered by the development of the case-law of the Court to the attention of the Constitutional Court.