The Constitutional Court, with its ruling no. 254 filed on 26 November 2020, declared inadmissible the constitutional legitimacy issues raised by the Naples Court of Appeal on the Jobs Act provisions concerning collective redundancies which violated the selection criteria. the Board considered the judge’s reasoning on the relevance insufficient and any request for corrective action uncertain.
The Court of Appeal of Naples challenged constitutional legitimacy in relation to art. 1, paragraph 7 of Law 10 December 2014, no.; 183 and articles 1,3 and 10 of Italian Legislative Decree 4 March 2015 no. 23.
According to the Neapolitan Court, the contested provisions unreasonably introduced a differentiated sanctioning system for violation of the selection criteria within the collective dismissal procedure. Reinstatement protection was granted just for employment relationships established on 7 March 2015, while only indemnity protection was granted for later relationships.
According to the judges’ objections, this sanctioning system, was a violation of the principles laid down in articles 3, 4, 24, 35, 38, 41, 111, 10 and 117, paragraph 1, of the Constitution, and conflicted with principles of the Charter of Fundamental Rights of the European Union, better known as the Nice Charter.
Regarding the infringement of the rules of the Nice Charter, a preliminary ruling to the Court of Justice of the European Union was brought simultaneously as an issue of consistency with constitutional principles.
On 4 June 2020, the Strasbourg Court declared the action manifestly inadmissible, finding no connection between the national legislation, i.e. the selection criteria within collective redundancies and an act of Union law. It did not comment on the alleged infringement of the Nice Charter.
The Constitutional Court, in the ruling under analysis, declared the question of constitutional legitimacy inadmissible. This is because the Court of Appeal failed to (i) describe the case and provide information on the reasons for the unlawfulness of the collective dismissal of the case for selection criteria violation – and (ii) attach the elements that would support the appeal acceptance based on a selection criteria violation. This prevented the Court from assessing the relevance of the issues raised.
The Constitutional Court merely reiterated its agreement with the indications of the Court of Justice regarding the EU law scope of application. It stated that there is an inseparable link between the role of the Court of Justice, which is called upon to safeguard “respect for the law in the interpretation and application of the Treaties” and the role of national courts, which must ensure “effective judicial protection in areas governed by EU law.”
In the Board’s view, in an integrated system of safeguards, loyal and constructive cooperation between the various jurisdictions, each called upon to safeguard fundamental rights in a systemic and unbroken protection manner, plays a crucial role.
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With judgment No. 150 lodged last 16 July, the Constitutional Court has declared article 4 of Legislative Decree No. 23 of 4 March 2015 constitutionally unlawful , with limitation to the words “for an amount equal to a monthly salary of the last pay of reference for calculating the severance pay for each year of employment”.
The constitutionality issue had been raised by the Courts of Bari and of Rome with orders dated 18 April 2019 and 9 August 2019, respectively, within the scope of legal proceedings having as subject matter the unfairness of dismissals notified in breach of the relevant procedural rules, amongst which, article 7 of Law No. 300/1970.
In the opinion of the Judges a quo, any dismissal notified in breach of the formal rules (i) shall entail the breach of mandatory provisions, established beforehand in view of ensuring the “audiatur et altera pars” principle of legal civilisation and (ii) would always take the shape of “a breach of the law which must entail ‘adequate and customised compensation’, even if by way of a lump sum”.
By aligning itself with the principles set forth in the previous judgment No. 194/2018, the Constitutional Court has found that the method for quantifying the compensation applied to those dismissals for defects of formal nature only “enhances the marginality of the formal and procedural defects, also further belittling the role of guaranteeing fundamental values of legal civilisation, aimed at protecting the worker’s personal dignity”. Indeed, such mathematical criteria does not prove to be “adequate compared to the purpose of dissuading employers from bringing about dismissals affected by formal defects”.
Furthermore, seniority of employment “neglects the assessment of the specificity of the actual case” and is unfit to disclose “the wide range of variables directly affecting the employee personally”.Therefore, it has no reasonable relation with the disvalue of the dismissal affected by formal and procedural defects, which the legislator has intended to punish and which may not be exhausted in the mere arithmetic calculation of the seniority of employment. Therefore, according to the Constitutional Court, in compliance with the minimum and maximum limit set forth by the legislator, in calculating the relevant compensation, the Judge seized must, above all, take the seniority of employment into consideration, that is “the starting point of the assessment”. In any case, in no way can the Judge set aside the application “with a properly grounded assessment” of other criteria, which contribute “in a corrective vein” to make the calculation of the compensation concerned close to the peculiarities of the specific case. Amongst these, it is worth mentioning the seriousness of the breaches, pursuant to article 18, sixth paragraph, of Law No. 300/1970, the number of people employed, the size of the company, the behaviour and the conditions of the parties, cross-referenced by article 8 of Law No. 604 of 1966.
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