Lexploria

Published on 12 December 2022

FIRST SECTION

Application no. 60920/21 Antonio BORTOLONI against Italy and 27 other applications (see list appended) communicated on 21 November 2022

SUBJECT MATTER OF THE CASE

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 involving the applicants.

The applicants, who are all represented by the lawyer N. Zampieri, were 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 was not fully recognised for financial and legal purposes. The applicants lodged proceedings before the national district courts (see appended table), arguing that the conversion of their salary into a notional length of service with the new employer upon transfer had been unlawful and detrimental to them. 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 on appeal, 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 applicants’ claims.

The applicants challenged the judgments before the Court of Cassation. 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 competent courts of appeal for determination of whether the transferred employees had suffered a substantial loss of salary solely as a result of the transfer. The appellate courts 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 appellate courts’ 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 issuance of the judgments 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, 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.

The applicants complain under Article 6 § 1 of the Convention about the legislative interference pending the proceedings which, in their view, infringed their right to a fair trial. They also complain under Article 1 of Protocol No. 1 to the Convention that the retroactive application of Article 1 § 218 of Law no. 266/2005 of 23 December 2005 deprived them of their property insofar as this provision put an end to the dispute between them and the administration.

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 an 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 judgments in 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), 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.

4. The applicants are invited to submit a declaration concerning the status of enforcement of the domestic judgments on the merit in their regard. If a domestic judgment has been enforced in their regard, the applicants are invited to include in the declaration the following information: the number, the R.G. and the date of the judgment in their favour, the sums received, and possibly the sums subsequently recovered by the administration. The applicants are invited to provide all the relevant documents concerning the enforcement of the judgments and, where applicable, the recovery of the sums.

5. With regards to the applications nos. 60920/21 and 1017/22, the applicants are invited to produce a copy of the first instance judgments.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence

First instance judgment

Second instance judgment

First judgment of the Court of Cassation

Referral to the Court of Appeal

Final order of the Court of Cassation

1.

60920/21

Bortoloni v. Italy

30/11/2021

Antonio BORTOLONI 1946 Rovigo

n/a

Venice Court of Appeal,

R.G. 477/07,

18/12/2008

Court of Cassation,

R.G. 6978/09 and 10623/09,

13/07/2012

Bologna Court of Appeal,

R.G. 645/13,

29/01/2015

Court of Cassation,

R.G. 17198/15,

03/06/2021

2.

61122/21

Ruzzier v. Italy

06/12/2021

Sergio RUZZIER 1957 Trieste

Trieste District Court,

R.G. 274/04,

09/02/2005

Trieste Court of Appeal,

R.G. 51/05,

07/12/2007

Court of Cassation,

R.G. 18386/08,

20/12/2012

Venice Court of Appeal,

R.G. 1195/13,

02/01/2015

Court of Cassation,

R.G. 3371/16,

07/06/2021

3.

61170/21

Bacci v. Italy

06/12/2021

Flavio BACCI 1954 Trieste

Trieste District Court,

R.G. 273/04,

09/02/2005

4.

1017/22

Marsiglio v. Italy

21/12/2021

Maria Raffaella MARSIGLIO 1957 Torrebelvicino

n/a

Venice Court of Appeal,

R.G. 831/05,

07/12/2007

Court of Cassation,

R.G. 19965/08,

13/07/2012

Bologna Court of Appeal,

R.G. 644/13,

01/122014

Court of Cassation,

R.G. 17184/15,

23/06/2021

5.

1019/22

Cusin v. Italy

21/12/2021

Chiara CUSIN 1965 Stanghella

Rovigo District Court,

R.G.C.L. 553/03,

21/07/2005

Venice Court of Appeal,

R.G. 1022/05,

25/03/2008

Court of Cassation,

R.G. 16728/08,

13/07/2012

Bologna Court of Appeal,

R.G. 642/13,

20/11/2014

Court of Cassation,

R.G. 17178/15,

23/06/2021

6.

1022/22

Valente v. Italy

21/12/2021

Anita VALENTE 1965 Bolzano Vicentino

Vicenza District Court,

R.G. 1192/04,

04/08/2005

Venice Court of Appeal,

R.G. 768/05, 769/05 and 772/05,

14/12/2007

Court of Cassation,

R.G. 19937/08, 13/07/2012

Bologna Court of Appeal,

R.G. 633/13,

20/10/2017

Court of Cassation,

R.G. 17186/15,

22/06/2021

7.

1595/22

Ruzza v. Italy

28/12/2021

Anna Carmela RUZZA 1946 Rosolina

Rovigo District Court,

R.G. 82/04,

12/10/2005

Venice Court of Appeal,

R.G. 158/06, 159/06 and 160/06,

25/02/2008

Court of Cassation,

R.G. 16709/08, 13/07/2012

Bologna Court of Appeal,

R.G. 654/13, 24/02/2015

Court of Cassation,

R.G. 17188/15,

22/06/2021

8.

2290/22

Viale v. Italy

23/12/2021

Marisa VIALE 1961 Rovigo

Rovigo District Court,

R.G. 752/03,

12/10/2005

9.

2299/22

Dalla Vecchia v. Italy

21/12/2021

Maria Maddalena DALLA VECCHIA 1953 Schio

Vicenza District Court,

R.G. 1210/04,

04/08/2005

Venice Court of Appeal,

R.G. 828/05,

26/11/2007

Court of Cassation,

R.G. 19964/08,

13/07/2012

Bologna District Court,

R.G. 630/13,

20/10/2014

Court of Cassation,

R.G. 14164/15,

22/06/2021

10.

2815/22

Dalla Vecchia v. Italy

22/12/2021

Virginia DALLA VECCHIA 1956 Schio

Vicenza District Court,

R.G. 16/04,

10/05/2005

Venice Court of Appeal,

R.G. 458/05,

19/12/2007

Court of Cassation,

R.G. 28486/08, 13/07/2012

Bologna District Court,

R.G. 631/13,

22/10/2014

Court of Cassation,

R.G. 17181/15, 23/06/2021

11.

3605/22

Bena’ v. Italy

22/12/2021

Lucia BENA’ 1952 Rovigo

Rovigo District Court,

R.G. 547/03,

03/05/2005

Venice Court of Appeal,

R.G. 468/05, 469/05, 473/05, 474/05 and 475/05,

05/12/2007

Court of Cassation,

R.G. 16732/08,

13/07/2012

Bologna Court of Appeal,

R.G. 639/13,

22/10/2014

Court of Cassation,

R.G. 14165/15,

22/06/2021

12.

3671/22

Berto v. Italy

22/12/2021

Giancarlo BERTO 1955 Rovigo

Rovigo District Court,

R.G. 548/03,

03/05/2005

13.

10328/22

Nibrandt v. Italy

10/02/2022

Xenia NIBRANDT 1948 Trieste

Trieste District Court,

R.G. 83/02,

04/05/2004

Trieste Court of Appeal,

R.G. 157/04,

02/09/2006

Court of Cassation,

R.G. 15035/07 and 23369/07,

13/12/2012

Venice Court of Appeal,

R.G. 1129/13 and 1152/13,

02/01/2015

Court of Cassation,

R.G. 6628/15,

10/08/2021

14.

10343/22

Licen v. Italy

11/02/2022

Roberto LICEN 1948 San Canzian d’Isonzo

Gorizia District Court,

R.G. 231/02,

25/11/2003

Trieste Court of Appeal,

R.G. 160/04,

02/09/2006

Court of Cassation,

R.G. 23366/07,

17/12/2012

Venice Court of Appeal,

R.G. 1166/13,

08/01/2015

Court of Cassation,

R.G. 3949/16,

11/08/2021

15.

10348/22

Novelli v. Italy

11/02/2022

Flavio NOVELLI 1945 Ronchi dei Legionari

Gorizia District Court,

R.G. 230/02,

25/11/2003

16.

10353/22

Scopel v. Italy

11/02/2022

Livio SCOPEL 1950 Seren del Grappa

Belluno District Court,

R.G. 224/04,

13/06/2005

Venezia Court of Appeal,

R.G. 869/05, 871/05, 872/05, 907/05, 908/05, 909/05,

19/11/2007

Court of Cassation,

R.G. 29918/08,

17/12/2012

Trieste Court of Appeal,

R.G. 443/13,

30/12/2014

Court of Cassation,

R.G. 3115/16,

11/08/2021

17.

10485/22

Casagrande v. Italy

11/02/2022

Luigina CASAGRANDE 1948 Seren del Grappa

Belluno District Court,

R.G. 22/04,

13/06/2005

18.

24348/22

Fiorindo v. Italy

06/05/2022

Domenica FIORINDO 1951 Eraclea

Venice District Court,

R.G. 2028/04,

03/11/2005

Venice Court of Appeal,

R.G. 1099/05, 28-31/06,

03/01/2008

Court of Cassation,

R.G. 19436/08-6977/09,

13/07/2012

Bologna Court of Appeal,

R.G. 655/13,

24/02/2015

Court of Cassation,

R.G. 6041/16,

08/11/2021

19.

24447/22

Mazzocchetti v. Italy

06/05/2022

Luciana MAZZOCCHETTI 1953 Torre di Fine

Venice District Court,

R.G. 2004/04,

03/11/2005

20.

24434/22

Lionello v. Italy

28/04/2022

Maria LIONELLO 1956 Montegalda

Vicenza District Court,

R.G. 1271/03,

02/12/2004

Venezia Court of Appeal,

R.G. 65-69/05, 76-79/05,

30/11/2007

Court of Cassation,

R.G. 19950/08, 29740/08,

13/07/2012

Bologna Court of Appeal,

R.G. 651/13,

23/02/2015

Court of Cassation,

R.G. 5052/16,

28/10/2021

21.

25005/22

Toniolo v. Italy

28/04/2022

Agnese TONIOLO 1948 Nove

Vicenza District Court,

R.G. 1282/03,

02/12/2004

22.

25208/22

Filippis v. Italy

28/04/2022

Paola FILIPPIS 1962 Noventa Vicentina

Vicenza District Court,

R.G. 1269/03,

02/12/2004

23.

25497/22

Bruscato v. Italy

28/04/2022

Donatella BRUSCATO 1975 Arcugnano

Vicenza District Court,

R.G. 15/04,

02/12/2004

24.

24663/22

Manente v. Italy

28/04/2022

Manente MANENTE 1967 Spinea

Venice District Court,

R.G. 1868/04,

04 /11/2005

Venice Court of Appeal,

R.G. 20/06, 21/06, 37/06, 40/06, 52-58/06,

20/02/2008

Court of Cassation,

R.G. 19971/08, 5814/09,

13/07/2012

Bologna Court of Appeal,

R.G. 653/13,

23/02/2015

Court of Cassation,

R.G. 5842/16,

08/10/2021

25.

25493/22

Bizzo v. Italy

28/04/2022

Fabia BIZZO 1952 Campagnia Lupia

Venice District Court,

R.G. 1834/04,

04/11/2005

26.

24708/22

Dall’Armellina v. Italy

28/04/2022

Roberto DALL’ARMELLINA 1951 Poiana Maggiore

Vicenza District Court,

R.G. 1186/04,

02/09/2005

Venezia Court of Appeal,

R.G. 773/05, 774/05, 775/05,

05/12/2007

Court of Cassation,

R.G. 19957/08,

13/07/2012

Bologna Court of Appeal,

R.G. 647/13,

09/02/2015

Court of Cassation,

R.G. 5061/16,

29/10/2021

27.

24918/22

Coin v. Italy

28/04/2022

Margherita COIN 1948 Mirano

Venezia District Court,

R.N. 2053/03,

10/01/2005

Venezia Court of Appeal,

R.G. 185/05, 186/05, 188/05, 189/05, 190/05, 212/05, 228/05,

04/12/2007

Court of Cassation,

R.G. 19966/08,

13/07/2012

Bologna Court of Appeal,

R.G. 649/13,

23/02/2015

Court of Cassation,

R.G. 5058/16,

28/10/2021

28.

25496/22

Gambalunga v. Italy

28/04/2022

Silvana GAMBALUNGA 1949 Mirano

Venezia District Court,

R.N. 597/03,

18/01/2005

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BORTOLONI v. ITALY and 27 other applications

BORTOLONI v. ITALY and 27 other applications

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