The Constitutional Court, in sentence no 214, 8 July 2009, filed July 14, 2009, declared the constitutional illegitimacy of article. 4-bis of Legislative Decree No 6 September 2001 368, by contrast with Article 3 of the Constitution.
follow the relevant steps of the award.
YEAR 2009
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
- President Francesco AMIRANTE
- Ugo DE Judge Siervo
- Paolo MADDALENA "
- Alfio Finocchiaro"
- Alfonso FORTY "
- France Gall"
- Luigi Mazzella "
- Gaetano SILVESTRI"
- Sabino Cassese "
- Maria Rita Saulle"
- Tesauro "
- Paolo Maria NAPOLITANO"
- Giuseppe FRIDGE "
- Alessandro Criscuolo"
- Paul BIG "
gives the following
JUDGEMENT
in the judgments of the constitutionality of Article. 2, paragraph 1 - bis of Legislative Decree No 6 September 2001 368 (Implementation of Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by UNICE, CEEP and the ETUC), Articles. 1, paragraph 1, and 11 of Legislative Decree 6 September 2001, No 368 and art. 4 - bis of legislative decree, introduced by art. 21, paragraph 1 - bis of Decree-Law of 25 June 2008, n. 112 (Urgent provisions for economic development, simplification, competitiveness, public finance stabilization and equalization tax), ratified with amendments by Law 6 August 2008, No 133, sponsored by the Rome Court by order of February 26, 2008 and September 26, 2008, the Court of Appeals by order of October 2, 2008, the Court of Trani, by order of April 21, 2008, the Court of Appeal Genoa by order of September 26, 2008, the Court of Ascoli Piceno by two orders of September 30, 2008, from Trieste, by order of the Court of 16 October 2008, the Court of Appeal of Bari, by order of September 22, 2008, the Court of Viterbo by order of October 10, 2008, the Court of Milan to four orders of November 19, 2008, the Court of Appeal of Caltanissetta by order of November 12 2008, the Court of Teramo, by order of October 17, 2008, the Court of Milan by two orders of December 24, 2008, the Court of Appeal of Venice by order of December 10, 2008, by the Appeal Court by order of L'Aquila January 14, 2009 and the Court of Appeal in Rome by order of October 21, 2008, respectively, registered as Nos. orders. 217, 413, 427, 434, 441, 442 and 443 of the 2008 Register of Orders and paragraphs. 4, 12, 22, 25, 26, 27, 28, 43, 70, 86, 87, 93, 95 and 102 of the Register of Orders 2009 and published in the Official Gazette of the Republic nn. 29 and 53, the first special series 2008 and nn. 1, 2, 3, 4, 5, 6, 8, 11, 13, 14 and 15, Special Series the year 2009.
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The facts
[omisiss]legal considerations
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5. - With nineteen separate orders, the Courts of Appeal of Turin (order No. 427 of 2008), Genoa (order No. 441 of 2008), Bari (order No. 12 of 2009), Caltanissetta (order No. 43 of 2009), Venice (order No. 93 of 2009) , L'Aquila (order No. 95 of 2009) and Rome (order No. 102 of 2009), and the courts of Rome (order No. 413 of 2008), Ascoli Piceno (ro nn. 442 and 443 of 2008), Trieste (ron 4 of 2009), Viterbo (order No. 22 of 2009), Milan (ro nn. 25, 26, 27, 28, 86 and 87 of 2009) and Teramo (order No. 70 of 2009), have raised questions of constitutionality of Article . 4 - bis of Legislative Decree no. 368, 2001, introduced by art. 21, paragraph 1 - bis of DL 112, 2008.
The contested provision provides that "With reference only to proceedings in progress at the date of entry into force of this provision, and subject to the judgments become final, in case of violation of the provisions of Articles 1, 2 and 4, the employer is only required to compensate the employee with an allowance of an amount between a minimum of 2.5 and a maximum of six months' final total remuneration of fact, having regard to criteria stated in Article 8 of Law July 15, 1966, No 604 (Regulations on individual dismissals), and subsequent amendments. "
The referring court, the premise that, according to the "living law", in case of violation of the provisions contained in Art. 1 of Legislative Decree no. 368, 2001, can be prepared in the conversion of the employment contract for an indefinite period and recognized a claim for redress to the employee full, say the art. 4 - bis of Legislative Decree no. 368, 2001 would violate that Article. 3 of the Constitution, because it is unreasonable source of unequal treatment, since only connected to storm the court when the appeal is upheld, among workers who are in the same factual situation (ro nn. 413, 427, 441, 442 and 443 of 2008, 4, 12, 25, 26, 27, 28, 43, 86, 87 and 93 of 2009); art. 3 of the Constitution, as it introduces a discipline devoid of reason, because: a) intervenes in the relations of private law arbitrarily sacrificing the rights of workers illegally recruited fixed-term benefit from the protection guaranteed by the law applicable at the time of the establishment relationship while helping the employer that gave rise to the unlawfulness (ro nn. 442 and 443 of 2008); b) is no apparent rationale was that the provision does not alter the substantive rule with respect to a class of individuals, reducing the protection while hanging judgments, and its only because you have a pending case (ro No 102 of 2009); c) the open ended nature of the discriminatory treatment simply refers to the slope of the process, and then to a circumstance entirely accidental (ro nn. 22, 70 and 95 of 2009); Articles. 3, first paragraph, and Article 24 of the Constitution because it violates the general principle of legitimate expectations raised by the citizen on the certainty of the legal system (ro nn. 413 of 2008, 12, 22 and 70 of 2009); art. 10 of the Constitution, it violates the principle of equal treatment that is the general principle of international law and community that Italy is committed to (ro nn. 25, 26, 27, 28, 86 and 87 of 2009), the Articles. 11 second period, and 117, first paragraph of the Constitution, because, by reducing the protection previously granted by the authorizing officer workers employed under fixed-term contract, violates the clause 8, paragraph 3 of the Framework Agreement on part-time determined by transposed Directive 1999/70/EC and, consequently, the obligation to respect the legislature's internal constraints deriving from EU and international (ro nn. 442 and 443 of 2008); art. 24 of the Constitution because it undermines the right to defend workers' applicants, depriving them of the possibility of obtaining the benefit of the conversion of the employment contract of indefinite duration, whose prospect had directly affected the exercise of their right of action (ro nn. 427 of 2008, 24, 25, 26, 27, 28, 43, 86, 87, 93 and 102 of 2009), art. 111 of the Constitution, with reference to the principle of due process, because the contested provision is altered during the court proceedings, the substantive protection accorded to the law operated, without meeting appropriate objective or general (ro nn. 93, 102, 2009) ; Articles. 101, 102, paragraph 104, first paragraph Constitution, because of legislative action which involves only a few reviews under way at a certain time without the requirement of abstraction is just the legal rules and assumes a general character provvedimentale invasive scope reserved for the jurisdiction (ro nn. 413 of 2008 and 22 of 2009), art. 117, first paragraph of the Constitution, in connection with the art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (ratified by Law 4 August 1955, No. 848), which prevents the legislature to intervene with ad hoc rules for resolution of litigation in progress (ro nn. 413 and 441 of 2008, 4, 12, 22, 43, 25, 26, 27, 28, 70, 86, 87, 93, 95 and 102 of 2009), art. 117, first paragraph of the Constitution, since the contested provision is a completion or an amendment to the Legislative Decree no. 368, 2001 and therefore application of Directive 1999/70/EC and therefore had to respect the non-regression clause set out in clause 8, paragraph 3 of the framework agreement implemented by the directive (ro nn. 25, 26, 27 , 28, 86 and 87, 2009).
[snip]5.7. - In about the issues raised in relation to art. 3 of the Constitution by the Courts of Appeal of Genoa and Rome and by the courts of Rome, Ascoli Piceno, Trieste and Viterbo are based.
In fact, factual situations identical (fixed-term employment contracts concluded during the same period for the same duration, for the same reasons and with the same vices) are the beneficiaries of various substantive disciplines (on the one hand, as the living law, the conversion ratio in relation to permanent and temporary damages, and second, provision of a modest economic benefits), for the simple and totally random fact of the existence of a trial date (also detached from any justifiable reason) of 22 August 2008 (date of entry into force of Article. 4 - bis of Legislative Decree no. 368, 2001, introduced by art. 21, paragraph 1 - bis of Decree-Law June 25, 2008, No 112).
Such discrimination has no reason, nor is it linked to the need to accompany the transition from a regulatory regime to another. In fact, the intervention of the legislature has not touched the rules governing the conditions for the application of the term or the extension of fixed-term contracts, but has simply changed the consequences of violation of the rules already in force up to a group of cases selected on the basis the fact, entirely accidental, the slope of a litigation between the parties of the employment relationship.
must therefore be declared unconstitutional art. 4 - bis of Legislative Decree no. 368, 2001, with absorption of the issues raised in relation to other parameters by the Constitutional Courts of Appeal of Genoa and Rome and by the courts of Rome, Ascoli Piceno, Trieste and Viterbo.
THE CONSTITUTIONAL COURT
meeting reviews,
1) hereby declares that Article. 4 - bis of Legislative Decree 6 September 2001, No 368 (Implementation of Directive 1999/70/EC concerning the framework agreement on fixed-term work concluded by UNICE, CEEP and CES), introduced by art. 21, paragraph 1 - bis of Decree-Law of 25 June 2008, n. 112 (Urgent provisions for economic development, simplification, competitiveness, the stabilization of public finance and tax equalization), ratified with amendments by Law 6 August 2008, No 133;
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Decided in Rome, the seat of the Constitutional Court, Palazzo della Consulta, on July 8, 2009.
F.to:
AMIRANTE Francis, President
Luigi Mazzella, Editor
Joseph DI PAOLA, Registrar
Filed in Chancery 14 July 2009.
The Director of Stationery
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