Published on 28 February 2022

FIRST SECTION

Application no. 45343/18 Giuseppina OTTAVIANI against Italy and 5 other applications (see list appended) communicated on 7 February 2022

SUBJECT MATTER OF THE CASES

The applications concern 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 applicants.

The applicants had initially been employed by the local government authorities. When they were transferred, under Article 8 of Law no. 124/1999, to work for the Ministry of Education, Universities and Research, their length of service with the local government authorities, their original employer, was not fully recognised for financial and legal purposes. The applicants lodged proceedings before the national courts (see appended table for details) arguing that the conversion of their salary into a notional length of service with the new employer upon transfer had been unlawful and detrimental. They sought placement in the professional grade corresponding to their full length of service from the date of the transfer as well as the determination of any compensation due to them. When those proceedings were pending at different levels of jurisdiction, 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 and on the judgment of the Court of Justice of the European Union of 6 September 2011 in Scattolon , C-108/10, the Court of Appel of Rome and the Court of Appeal of Venice dismissed the applicants’ claims. The applicants challenged the judgments before the Court of Cassation, which upheld the findings and conclusions of the courts of second instance. 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 in its judgment no. 311 of 2009. 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 applicants 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 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 their 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 applicants?

3. Having regard to the refusal of the Court of Cassation to refer a question of constitutionality of the contested law on the basis that the Constitutional Court had already decided a similar matter in its judgment no. 311 of 2009, even though this judgment (i) was issued before the publication of 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, 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.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented

by

First instance judgment

Second instance judgment

Third instance judgment

1.

45343/18

Ottaviani v. Italy

18/09/2018

Giuseppina OTTAVIANI 1945 Blera Italian

Massimo PISTILLI

Judgment

of Viterbo

District Court

of 07/05/2007, no. 349

Judgment

of Court of Appeal of Rome of 04/12/2012,

no. 8479

Order

of the Court of Cassation of 19/03/2018,

no. 6780

2.

45376/18

Valeri

v. Italy

18/09/2018

Francesca VALERI 1947 Villa San Giovanni in Tuscia Italian

Massimo PISTILLI

3.

45440/18

Caciola

v. Italy

18/09/2018

Vanda CACIOLA 1944 Vetralla Italian

Massimo PISTILLI

4.

45903/18

Santinelli v. Italy

18/09/2018

Maddalena SANTINELLI 1944 Vetralla Italian

Massimo PISTILLI

5.

25790/19

Boscato

v. Italy

07/05/2019

Michela BOSCATO 1962 Carbonera Italian

Nicola ZAMPIERI

Judgment

of Treviso

District Court

of 13/01/2012, no. 25

Judgment

of Court of Appeal of Venice of 27/02/2014,

no. 787/2013

Order

of the Court of Cassation of 07/11/2018,

no. 28463

6.

45683/19

Milani and Others

v. Italy

13/08/2019

Geltrude MILANI 1960 Este Italian Laura VALVASON 1940 Legnano Italian Gastone BARISON 1960 Conselve Italian

Giovannina MILANI 1950 Battaglia Terme Italian

Elisa SCOIZZATO 1947 Santa Giustina in Colle Italian Luciana ZUCCOLO 1953 Monselice (PD) Italian Vera RUZZON 1963 Conselve Italian

Gledis Elena AGOSTINI 1958 Cadoneghe Italian Laura BOLDRIN 1954 Legnano Italian

Adriano FACCIN 1959 Cervarese Santa Croce Italian Luigia FRANCESCHINI 1943 Borgoricco Italian Enrico BUSINARO 1957 Battaglia Terme Italian Fiorella GASTALDELLO 1958 Conselve Italian Elsa DAMINATO 1948 Piombino Dese Italian

Giulia VETTORATO 1949 Monselice Italian Francesca POLATO 1966 Solesino Italian

Anna Lisa FRISON 1955 Arre Italian

Giovanni GALLOCCHIO

1949Cartura (PD)

Italian

Nicola ZAMPIERI

Judgment

of Padua

District Court

of 09/03/2012, no. 145

Judgment

of Court of Appeal of Venice of 14/05/2013,

no. 656/2012

Order

of the Court of Cassation of 14/02/2019,

no. 4437