Published on 28 February 2022

FIRST SECTION

Applications nos. 27897/16 and 27952/16 Elio ANTONIOLLI and Others against Italy and Patrizia AMOROSO and Others against Italy lodged on 10 May 2016 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 (or their ascendants or spouses) 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 the domestic court dismissed the applicants’ claims. In the course of 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 Court of Appeal of Trieste and the Court of Appeal of Venice ruled that the applicants had not suffered a substantial loss of salary. The applicants appealed against these judgments and the Court of Cassation upheld the Court of Appeals’ findings and conclusions. 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

First judgment of the Court of Cassation

Referral to the Court of Appeal

Final judgment of the Court of Cassation

1.

27897/16

Antoniolli and Others

v. Italy

10/05/2016

Elio ANTONIOLLI 1946 Sacile Italian Liliana AZZANO 1948 Pordenone Italian Erta ASQUINI 1948 Pordenone Italian Paola BABUIN 1958 Pordenone Italian

Maria BABUIN 1960 Pordenone Italian Loredana Alda BORGONUOVO 1946 S. Quirino Italian Margherita BOVE 1953 Maddaloni Italian Maria Pia BRAVIN 1940 Pordenone Italian Anna CESA 1962 Pordenone Italian Luciana CLEMENTI 1956 Cordemons Italian Marco CODEGLIA 1962 Aviano Italian Carla DAMO 1943 Maniago Italian Attilio DA PIEVE 1954 Porcia Italian Learco DRIGO 1952 San Vito al Tagliamento Italian Edda FRANCESCHINA 1943 Maniago Italian

Adriana FRATTOLIN Gaiarine Italian Stella GOBBO 1941 Maniago Italian Claudia LEMBO 1966 Pordenone Italian Giorgio MAESTRELLO 1951 Sesto Al Reghena Italian Angela MASERIN 1958 Maniago Italian Onorio MAZZETTI 1959 Azzano Decimo Italian Pierluigi MIOTTO 1966 Pordenone Italian Pierina MORO 1955 Fiume Veneto Italian Loredana MOZZON 1959 Pordenone Italian Sabina NASSUTTI 1944 Spilimbergo Italian Lucia PAGLIARO 1948 Roveredo in Piano Italian

Lorena PERISSINOTTI 1964 Pordenone Italian Lauretta PUPPO 1949 Pordenone Italian Rita SALVONI 1967 Pordenone Italian Silverio SANTAROSSA 1963 Pordenone Italian Marta SIST 1959 Pordenone Italian Maria Crisitina SPERTI 1960 Roveredo in Piano Italian Gianni ZAMMATTIO 1950 Maniago Italian

Giovanni ROMANO

Judgment

of Pordenone

District Court

of 05/02/2004, no. 30

Judgment

of Court of Appeal of Trieste

of 29/10/2005,

no. 133

Judgment

of 20/12/2011,

no. 27699

Judgment

of Court of Appeal of Trieste of 18/06/2013,

no. 122

Judgment

of 12/11/2015,

no. 23139

2.

27952/16

Amoroso and Others

v. Italy

10/05/2016

Patrizia AMOROSO 1951 Dorai Piccolo Porcia Italian Sonia GATTI 1960 Casarsa della Delizia Italian Sandra ROSSIT 1959 Cinto Caomaggiore (Ve) Italian Emiliana TOMMEI 1948 Fontanafredda Italian Gabriela LATOCHA 1958 Pordenone (PN) Italian Ermida ODORICO 1955 Pravisdomini Italian Rosella GNESUTTA 1959 Morsano al Tagliamento Italian Manuela MENEGUZZI 1964 Sesto al Reghena (PN) Italian Laura DEL ZOTTO 1962 Chions Italian Gelsomina VITALE 1947 Aviano Italian Daniele PIOVESANA 1957 Sacile Italian Rita MAIORINO 1944 Cordenons (PN) Italian Graziella PELLEGRINON 1950 Maniago (PN) Italian

Giovanni ROMANO

Judgment

of Pordenone

District Court

of 30/09/2004, no. 169

Judgment

of Court of Appeal of Trieste

of 31/08/2006,

no. 90

Judgment

of 22/11/2011,

no. 24583

Judgment

of Court of Appeal of Venice of 20/05/2013,

no. 80

Judgment

of 10/11/2015,

no. 22913