JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS AND KŪRIS

1. We agree with the majority that there has been a violation of Article 6 § 1 of the Convention. To our regret, however, we cannot share the view that there has been no violation of Article 1 of Protocol No. 1 to the Convention. We also disagree on the amount of the just satisfaction to be awarded under Article 41 of the Convention.

2. Like the majority, we consider that the applicant companie s had claims which they could legitimately have expected to be determined in accordance with the applicable legislation as interpreted and applied , prior to the legislature ’ s intervention, by the domestic courts in at least one hundred and forty judgments, and that these claims were “possessions” within the meaning of Article 1 of Protocol No. 1 (see paragraph 98).

3. The majority further consider s that “the present case concerns the failure of the applicant companies to benefit from a double reduction on the social welfare contributions they pay in respect of their employees”. On that premise, the majority considers that the interference with the applicant companie s ’ claims falls within the scope of the rule contained in the second paragraph of Article 1 of Protocol No. 1, that is, the rule which allows a State “to enforce such laws as it deems necessary ... to secure the payment of taxes or other contributions ...” (see paragraph 100).

4. By examining the complaint from the perspective of Article 1 , second paragraph , the majority seems to consider that the applicant companie s are complaining about the fact that they could no longer enjoy the advantage created by Legislative Decree No. 536 of 30 December 1987, converted into statutory law by Law No. 48 of 29 February 1988. If that had indeed been the complaint, the Court would have had to examine whether there was some sort of legitimate expectation that the legal regime established in 1988 would remain in place for an indefinite period of time. We find it difficult to accept that such an expectation would exist, thus making it impossible, or at least very difficult, for the legislature to ever change the law ex nunc .

5. With all due respect, however, we are afraid that the majority has attributed to the applicant companie s a complaint that they did not make. Or rather, the majority has overlooked the crux of the complaint actually made. We read in the applicant companie s ’ submissions that they in fact presented for the Court ’ s examination one single complaint , which relates to the retrospective effect of the “authentic interpretation” given by Law No. 326 of 24 November 2003 to Law No. 67 of 11 March 1988. It does not appear to us that they raised two substantially different complaints. On the contrary, they complained that, solely by the fact of enacting the “interpretative law”, the legislature simultaneously violated both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1: it violated Article 6 § 1 in that the new law interfered with the judicial determination of pending disputes, and it violated Article 1 of Protocol No. 1 in that the new law abolished claims in respect of which the applicants had a legitimate expectation that they would be upheld by the courts. However, when the majority examined the complaint under Article 1 of Protocol No. 1, it detached it from the Article 6 § 1 complaint and barely mentioned the fact that the law in question had a retrospective effect (see paragraph 103).

6. We would also like to point out that the applicant companie s, as parties to the domestic proceedings, exercised their rights under Article 6 § 1 in order to obtain the “determination” of certain “civil rights”. The present judgment does not enter into detail with respect to the nature of these civil rights. However, it is clear that the applicants, in claiming the return of certain sums paid by them to the Istituto Nazionale della Previdenza Sociale (INPS), invoked civil rights of a proprietary nature. By declaring the applicants ’ claims well-founded, the domestic courts turned them into claims that constituted “possessions” within the meaning of Article 1 of Protocol No. 1. The partial finding of a violation of the Convention, namely one of Article 6 § 1 but not of Article 1 of Protocol No. 1, is internally inconsistent, as it tends to create the wrong impression that the finding of a violation of the right to a fair trial is in itself sufficient. We would like to emphasise that the domestic courts were unable to recognise the existence of the rights for which the applicant companie s sought a judicial determination precisely because of the legislature ’ s interference.

7. By downplaying the importance of the law ’ s retrospective effect for the examination of the complaint based on Article 1 of Protocol No. 1, the majority has in fact followed a line of reasoning that was initiated with Maggio and Others v. Italy (nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 31 May 2011) and continued with Arras and Others v. Italy (no. 17972/07, 14 February 2012). In these cases, the Court concluded that the retrospective reduction of social security or welfare benefits constituted a violation of Article 6 § 1, but not of Article 1 of Protocol No. 1. In two more recent cases the Court has had to deal, as in the present case, with interpretative laws: M.C. and Others v. Italy (no. 5376/11, 3 September 2013) and Stefanetti and Others v. Italy (nos. 21838/10, 21849/10, 21852/10, 21822/10, 21860/10, 21863/10, 21869/10, and 21870/10, 15 April 2014, not yet final). In these cases, the Court found that Article 1 of Protocol No. 1 had been violated, but that conclusion was not decisively based on the retrospective effect of the “ interpretative ” law. In that sense, these cases follow the Maggio - Arras line of reasoning. However, while in M.C. and Stefanetti the Court still found a violation not only of Article 6 § 1 of the Convention, but also of Article 1 of Protocol No. 1, i n the present case the majority concludes that there has been a violation only of Article 6 § 1, not of Article 1 of Protocol No. 1. The majority thus seems to cross a new line.

8. We consider that the interference complained of should be qualified, as argued by the applicants (see paragraph 92), as a deprivation of their possessions, within the meaning of Article 1, first paragraph, second sentence, of Protocol No. 1 (see, for an early qualification in that sense of a law with retrospective effect, Pressos Compania Naviera S.A. and Others v. Belgium , 20 November 1995, § 34, Series A no. 332). The fact that the applicants ’ claims for reimbursement were related to contributions they had previously made does not, in our opinion, mean that greater weight should be attached to the second paragraph of Article 1, at the expense of the second sentence of the first paragraph of Article 1.

9. Accordingly, we consider that the Court should have examined whether the deprivation of the applicants ’ possessions was “provided by law”, whether it was “in the public interest”, and whether it struck a fair balance between the demands of the general interest (if any) and the requirement of the protection of the applicants ’ fundamental rights (see, inter alia , Pressos Compania Naviera S.A. , cited above, § 35).

10. When it comes to verifying whether the above-mentioned conditions are met, we find inspiration in the reasoning adopted by the Court in the case of Agrati and Others v. Italy ( nos. 43549/08, 6107/09 and 5087/09, 7 June 2011). In that case the Court found, as in the present case, that a legislative act which interfered in pending disputes constituted a violation of Article 6 § 1 of the Convention (§§ 58-66). It then went on to analyse the act as an interference with the applicants ’ right to the peaceful enjoyment of their possessions, namely as a deprivation of their possessions (§ 75). It found that, while the interference was (obviously) “provided by law” (§ 76), it was doubtful whether the sole financial interest of the State could constitute a “public interest” sufficient to justify a retrospective interference by the legislature (§§ 80-81). Leaving that question open, it considered that the legislative interference had in any event made it decisively impossible for the applicants to have their claims upheld (§ 83), thus obliging them to bear an individual and excessive burden and upsetting the balance between the general interest and the rights of the applicants (§ 84). The Court concluded that Article 1 of Protocol No. 1 had been violated.

11. We find no reason to come to a different conclusion in the present case. Once the Court has found that there was no justification for the legislative interference in pending proceedings – in particular in proceedings to which the applicants were parties – because of the absence of “any compelling general interest reasons” (see paragraph 87), it is hard to see how, in the present case, there could be public interest reasons that would justify a retrospective interference with the applicants ’ right to protection of their possessions. Again, the question whether the legislature could abolish the benefit created by Legislative Decree No. 536/87 with prospective effect, would, in our opinion, be a different matter.

12. The majority ’ s finding that Article 1 of Protocol No. 1 has not been violated by the application of retrospective “interpretive” legislation is unfortunate. We note that according to the applicants “in Italy it [has become] common practice to introduce ‘ interpretative ’ provisions in matters involving financial interests to secure higher income (or lower expenditure) for the public administration” (see paragraph 63). This statement has not been contradicted by the Government. Having regard to similar cases that the Court has dealt with in the recent past and to certain cases that are still pending before it, we tend to agree with the applicants that the Italian legislature is regularly tempted to intervene in pending proceedings when it appears that the outcome of such proceedings may have a significant impact on the State ’ s budget. In the present case, the so-called interpretative act was adopted almost sixteen years after the original act. We find this practice particularly disturbing, and regret that the majority has not condemned it inter alia from the perspective of Article 1 of Protocol No. 1.

13. Finally, with respect to the just satisfaction to be awarded to the applicants (Article 41 of the Convention), to our regret we are unable to share the majority ’ s view that the applicants suffered only “a loss of real opportunities” (see paragraph 111). The applicants ’ claims were upheld at first instance and on appeal. Their claims were based on a legislative provision that left no discretion to the public authorities. The only question was whether the reduction of the contributions to be paid under Legislative Decree No. 536/87 could be combined with the exemptions granted by Law No. 67/88, and, as the Court notes (see paragraph 78), that question had consistently been answered by the Italian courts in a way that was favourable to companies such as the applicant companie s. In these circumstances we agree with the applicants that, had Law No. 326/03 not been enacted, they “[would have had] not only [ ... ] a legitimate expectation to obtain their claims, they [would have] been almost certain of it” ( see paragraph 91). It was only on account of the enactment of the latter law that the judgments rendered in their favour were quashed by the Court of Cassation and their claims unexpectedly dismissed. We consider that in these circumstances the just satisfaction to be awarded to each applicant company in respect of pecuniary damage should in principle amount to the sum claimed by it from the Istituto Nazionale della Previdenza Sociale (INPS) (see paragraph 109) and awarded in full by the court of appeal (respectively EUR 89,729 for Azienda Agricola Silverfunghi, EUR 213,776 for Scarpellini, EUR 108,770 for S.A.P. Pietrafitta, and EUR 84,375 for Floricultura Zanchi Di Zanchi Fratelli). However, where applicable the sum received by the applicant company from the INPS by execution of the first ‑ instance judgment and not yet returned by that applicant company following the Court of Cassation ’ s judgment should be deducted from this amount. Finally, to the amount thus calculated should be added the statutory interest applicable under domestic law.

14. There is some inconsistency in the Court ’ s case-law about how the operative points relating to the just satisfaction should be understood. This uncertainty has resulted in us voting in different ways, which basically reflect two competing patterns of voting in this Court on just compensation (Article 41 of the Convention): Paul Lemmens voted in favour of point 4 and against point 5 (because the sums indicated in point 4 are seen as due to be paid to the applicants in any event, irrespective of the fact that they are insufficient), while Egidijus Kūris voted against both points 4 and 5 (because the sums indicated in point 4 are insufficient). In substance, however, we are in full agreement, as we would both award the applicant companie s more than the majority has decided to award.

[1] Which stated that “the percentage of contributions [had] to be calculated without taking the concession into account” (“ la percentuale dei contributi dovuti va calcolata senza ritenere conto delle quote fiscalizzate ” ) .

[2] Where it was stated that “the norm [was] intended to avoid greater burdens than those borne in previous years” ( “ La norma è pertanto funzionale ad evitare maggiori oneri rispetto agli andamenti tendenziali con riferimento ai periodi pregressi ” ) .

[3] “Diritto e processo del lavoro e della previdenza sociale” G. Santoro Passarelli p.1174