Palomar Italy - n. 17 - January 2012

With reference to the financial statement law, the Chamber derogated “nemine contradicente” from the Rules of Procedure

On October 11, 2011, the Italian Chamber of Deputies failed to approve by one vote article no. 1 of the Financial Statement Law for 2010 (“rendiconto generale dello Stato”, the 2010 state expenditure balance sheet) submitted to the Chamber for its approval by Silvio Berlusconi’s Government.
According to article no. 81, cl. 1 of the Italian Constitution, “The Houses approve every year the budgets and financial statements submitted by the Government”. On the basis of the clear content of this constitutional provision, approval of the Financial Statements is deemed indispensable in Italian constitutional law.
After the vote of the House (which resulted in 290 Deputies voting in favor of the approval and 290 voting against it) the President of the Chamber of Deputies, On. Gianfranco Fini, convened the Committee on the Rules of Procedure in a meeting. In Italian parliamentary law, the presiding officer is vested with the task to ensure that the Rules of Procedure are observed. In this context, the President requested an interpretative opinion from the Committee, a body of ten deputies appointed by the President. On October 12, 2011, the Committee, according to presidential interpretation, ruled the rejection of the whole law. In fact, from a procedural point of view, the rejection of article no. 1 of the financial statement prevents a vote on the other provisions of the law, therefore hindering their approval.
To face this unprecedented event, and in the midst of a major economic turmoil, on November 08, 2011, the Chamber of Deputies approved the same State Expenditure Balance Sheet rejected on October 11. With this procedural solution the Chamber derogated from Rule 72 of Rules of Procedure (“Bills which replicate the contents of bills previously rejected may not be referred to a Committee, unless six months have elapsed since the date of rejection”), according to the principle of the “nemine contradicente”.
“Nemine contradicente” is a special customary principle of Italian parliamentary law which allows to derogate from the Rules of Procedure if no one of the Members of Parliament raises an objection. Most scholars affirm that this principle cannot be applied with reference to constitutional rules, though.
A similar principle is established by German parliamentary law. In fact, according to Rule 126 of Rule of Procedure of Bundestag, “departures from the provisions of the Rules of Procedure may be decided upon in individual instances by a two-thirds majority of the Members of the Bundestag present, unless this is incompatible with the provisions of the Basic Law.” (Renato Ibrido)

The Italian Constitutional Court declares unconstitutional the joint holding of the offices of Mayor and Member of Parliament (Constitutional Court decision no. 277/2011)

On October 21, 2011, the Italian Constitutional Court, with decision no. 277/2011, addressed the issue of the joint holding of offices for Members of Parliament (MPs) with an “additive judgment” in which it found unconstitutional articles 1, 2, 3 and 4 of Law no. 60/1953 (on parliamentary incompatibilities) to the extent that these articles did not establish an incompatibility between the offices of MP and Mayor of a municipality with over 20.000 residents. The Italian Constitutional Court resorts to “additive judgments” whenever it declares the unconstitutionality of a law to the extent (and only to that extent) that it lacks a constitutionally necessary rule or principle, saving from a declaration of unconstitutionality the remaining provisions; with such type of decisions the Court “adds” the missing norm to the statute and therefore “fills the gap,” avoiding altogether a declaration of unconstitutionality of the law in its entirety Additive judgments were developed by the Italian Constitutional Court as part of a broader typology of decisions, called “manipulative judgments,” in which the Court intervenes to modify or integrate the challenged provisions. In the case at issue the referring court raised at the same time, a question of constitutionality of both the provisions of the abovementioned national law and the provisions of the Regional Law on the eligibility of a MP as a Mayor in a municipality with over 20.000 residents.
In the judgment at issue, the Italian Constitutional Court considered the following four elements. The first was the legal provision prohibiting city mayors to be candidate in the national elections for the Chamber of Deputies (but not addressing the opposed case of members of Parliament running for mayor). As a matter of fact article 7, lect. c) of the DPR no. 361/1957 (“Consolidated Law on the election for the Chamber of Deputies”) states the ineligibility to the Chamber of Deputies of “Mayors of municipalities with population exceeding 20.000 inhabitants.” The Constitutional Court pointed out at the outset the absence in the law of an analogous ban for the specular case, i.e. a MP running for the election as Mayor of a municipality with over 20.000 residents.
The second element taken into account was the “reservation clause” expressed in article no. 65 of the Italian Constitution “to ensure a homogeneous framework that respects and protects both the principle of quality of citizens in terms of political rights and the unit of the State” (decision no. 277/2011). This clause states that “the law determines the cases of ineligibility and incompatibility with the office of Deputy or Senator”, therefore the Regional legislation cannot be enacted to provide a discipline in this area. On this ground, the Court excluded the admissibility of the question of constitutionality raised against the Regional legislation and limited its scrutiny to the exam of the national legislation.
The third element is the view developed and consolidated by the “committees for the elections” of both the Senate and the Chamber of Deputies over the ineligibility of a MP to the office of mayor. These Committees are the internal bodies of each of the two parliamentary chambers in charge of verifying the qualifications of every elected member and assuring the absence of conditions of disqualification. Since 2002 these bodies have affirmed that the lack of an express ban for the aforementioned case cannot be addressed through an analogical application of the existing ineligibility provisions.
The fourth element considered by the Court is the recent article 13, sec. 3, of Law Decree no. 138/2011 (converted into Law no. 148/2011) that states that the office of member of parliament is incompatible with “any other single elective public office related to local governments with population over 5.000 inhabitants at the date of the election or the appointment …”. This provision, however, shall apply only from the first legislature beginning after the entry into force of the Decree.
In light of all these elements, the question raised before the Constitutional Court involved the opportunity of the “extension of a condition of ineligibility to a condition of incompatibility”, thus declaring the existence of an incompatibility between the office of MP and the office of Mayor of a municipality with over 20.000 residents, with a parallelism among the two conditions (see decision no. 143/2010). Considering the supervening condition of ineligibility as a condition of incompatibility for the purpose of “preserving the freedom in the exercise of the office” the Court declared the unconstitutionality of the provisions at issue to the extent that they did not provide for the incompatibility among the office of MP and the office of a Mayor of a municipality with over 20.000 residents.
The decision no. 277/2011 of the Constitutional Court has been applied by the Chamber of Deputies of the Italian parliament, particularly by its “Committee for the elections” that has recognized the “principle of parallelism” and thus declared the incompatibility between the two offices at stake. Nevertheless the “Committee for the elections and parliamentary immunities” of the Senate has not applied the sentence of the Court to the two cases of Senators Azzolini and Nespoli that continue to perform the joint functions of MP and Mayor. The Committee has assumed this decision, after several sessions’ debates (nn. 97-98 and 100-101-102), in December 21, 2011 session no. 103, in which it was decided “not to extend to cases on which the Committee has already ruled – that is the cases of Senators Azzolini and Nespoli – the effects of the ruling of the Constitutional Court no. 277/2011 concerning the incompatibility.” The decision of the Committee seems to point out a limit in the retroactive effectiveness of the constitutional judgment and reopen the contentious issue of the self-jurisdiction (“autodichia”) of the Italian parliamentary system. (Luca Marfoli)

The Italian Constitutional Court upholds a retroactive law providing less favorable reparations for employees in labor controversies, following ECHR principles on legislative interference in judicial proceedings (Corte cost. no. 303/2011)

In the case decided with decision no. 303/2011 the Italian Constitutional Court was called upon to assess the constitutionality of recently-enacted domestic legislation addressing on reparation for conversion of a fixed-term employment contract into permanent contract and unlawful termination of employees.
Italian labor law provides that, in those cases when an employer chooses to hire a perspective employee with a fixed-term contract (except in cases expressly provided by the law), with the purpose to hide a de facto permanent employment relationship behind a relationship that does not offer the same degree of legal protection, the employee unlawfully terminated can ask for judicial conversion of the contract and reparation.
The provision at issue, article 32 of Law n. 183/2010 (“Delegation to the Government for the regulation, among other subjects, of labor controversies”), in the a quo judges’ view, should have been declared unconstitutional for violation of various constitutional parameters.
First, it would violate article 3 Const. (principle of equality) as it provides an unreasonably less favorable reparation for employees than the one granted under the previous discipline; furthermore, it would not comply with the constitutional provisions protecting the defense right and the rights to judicial protection and judicial remedy and due process (articles 24, 101, 102, 111 Const.), because the employer, given the small reparation he would be eventually sentenced to, would be drawn to delay the judgment rather than fulfill his implied-contract commitments; it would thus also breach article 4 Const. (right to work) as it would not recognize and protect the right to work discouraging short-term employment relationships; finally, the provision at issue would violate articles 11 and 117, cl. 2 Const. (commitment to international obligations with regard to, respectively, European Union law and international treaties) with respect to article 6 ECHR and the Court of Strasbourg’s jurisprudence concerning the legislative interference in judicial proceedings.
The Italian Constitutional Court dismissed the question of constitutionality raised with reference to article 3 Const., because the new legislation had been introduced to bring to an end the unreasonably differentiated application of the previous law. The constitutional judges, however, imposed a constitutionally-oriented interpretation of the provision, requiring that the restoration be considered referred to the damages suffered in the period between the termination and the conversion of the contract, being understood that the employee has the right to salary from the moment of the judicial conversion of the contract.
Concerning the right to work, the Court reaffirmed that the implementation of this right falls under the discretional power of the Legislator, who nonetheless provided for a guarantee to this right through the prevision of the judicial conversion of the unlawful contract.
The Court also rejected the claims of violation of the defense right and the right to effective judicial protection, basing its judgment on the fact that the new discipline does not reform the existing judicial protection remedies.
With regard to the interposed parameter represented by article 6 ECHR and the Court of Strasbourg’s jurisprudence, the Constitutional Court found there was no incompatibility for the presence of all the conditions under which the Court of Strasbourg considers admissible a retroactive law regulating civil relations and well-established rights.
The Court’s reasoning on the issue is interesting, as the Court makes reference to its own jurisprudence on the status of the ECHR within the Italian legal system, confirming to be bound by both the Convention and the European jurisprudence, but nevertheless reaffirming its right to interpret a Convention provision in light of the national context of application, as long as the interpretation complies with the European jurisprudence, considered in its entirety.
With specific focus on article 6 ECHR and the prohibition of interference in judicial proceedings, the Court affirmed the existence of the exceptional conditions required by the Court of Strasbourg, in the interpretation given by the Constitutional Court in the light of national current context..
As a matter of fact, the new legislative discipline does not favor the State nor public entities, but, conversely, it applies to all employment relationships, public or private. Secondly, the Court found the existence of the “imperative reasons of general interest,” whose verification falls within the margin of appreciation granted to national bodies. Those reasons, in the opinion of the Court, consist in the willing to provide for equal and constant criteria for the determination of restoration in labor controversies.
Finally, the Court rejected the additional claims of infringement to article 6 ECHR, this time, through article 11 Const., since, even though the referring judge found that the adhesion of the European Union to the ECHR would have as a consequence the constitutional commitment to respect the Convention also under article 11 Const., the Court observed that such adhesion has not become effective yet, and therefore the European Convention on Human Rights still finds its exclusive constitutional basis only in article 117 cl. 2. (Anna Maria Lecis)

The Italian Constitutional Court declares unconstitutional the denial of disability benefits to foreign nationals lacking a residence permit and focuses on the condition of children (Italian Constitutional Court, decision no. 329/2011)

With decision no. 329 of December 16, 2011, the Italian Constitutional Court declared the unconstitutionality of article 80, cl. 19, of Law no. 388 of December 23, 2000 (“Annual and multi-annual State budget law – 2001 Finance Bill”) for stating that the monthly compensation for school attendance, introduced for disabled children by article 1 of Law no. 288/1990, can be granted only to non-European kids (without European Union citizenship) in possession of a residence permit for EC long-term residents.
With this ruling, the Constitutional Court returns to state on a provision previously declared partially unconstitutional (see Palomar Italy n. 11). As a matter of fact with decisions no. 306/2008, the Court declared unconstitutional the same article in the part in which it provided that the disability benefit – recognized by article 1 of Law n. 18/1980 for persons completely dependent on external support for performance of activities of daily living – had to be denied to those who had been lawfully living in Italy for more than five years but did not meet the income level mandatorily required to be granted a residence card; with decision no. 11/2009, the Constitutional Court declared unconstitutional article 80, cl. 19 of Law no. 388, in the part in which it excluded the right to disability pensions – established by article 12 of Law no. 118/1971 – for foreign nationals whose income did not reach the minimum level mandatorily required to be granted a residence card according to Italian law; finally, with decision no. 187/2010, the Italian Constitutional Court declared the unconstitutionality of article 80, clause 19, of Law no. 388/2000 in the part in which the provision granted the right to social benefits and economic allowances – including a monthly disability check established by article 13 of Law no. 118/1971 – only to foreign nationals with a regular residence permit.
In the judgment at issue here – i.e. decision no. 329/2011 – the Court declares unconstitutional that part of the article which so far had prevented the disabled children, holding a residence permit for less than five years and therefore not entitled to a residence permit for EC long-term residents,, to enjoy a benefit introduced for the purpose of facilitating the care, rehabilitation and education of children suffering from civil disability. In particular, the Constitutional Court in its judgment finds the issue of constitutionality raised by the Court of Appeal of Genoa founded, and emphasizes that the school attendance benefit is a providence which allows the concrete fulfillment of needs and values fundamental for the human being (child and health protection, recognition of acceptable conditions of life for the child and his family), according to articles 2 and 3 Const. and to the UN Convention on the Rights of Persons with Disabilities (adopted on December 13, 2006 and ratified by Italy with Law no. 18/2009), that prohibits discriminations based on citizenship or residence. (Elisa Ciardelli)

The Constitutional Court declares inadmissible the referendum petitions to abrogate the electoral law (Constitutional Court decision no. 13/2012)

On January 12, 2012, the Constitutional Court issued decision n. 13/2012 declaring inadmissible two referendum petitions on the electoral law currently in effect. The judgment of the Court came after the decision issued by the Central Office for Referendum, located within the Court of Cassation, which declared the legitimacy of the petitions on December 12, 2011. The Constitutional Court was therefore called upon to determine the constitutionality of the petitions.
The first petition proposed the abrogation of Law n. 270/2005, while the second, subordinate petition, proposed to abrogate many provisions of the same law. The purpose of both petitions was unitary, the only difference between the two being that the second wanted to remove the provisions that expressly abrogated the previous electoral law.
Law n. 270/2005 introduced a proportional system with closed lists (“liste bloccate”) and a majority bonus (“premio di maggioranza”, automatic majority for the largest party) to the most voted list (regardless of the percentage of votes obtained) in the allocation of parliamentary seats, in order to ensure the formation of a political majority within the Parliament. This is in contrast to the previous discipline, provided by Legislative Decree n. 535/1993 and n. 536/1993, which outlined a mixed system, where 3/4 of the votes were assigned with a majority system, and 1/4 was assigned with a proportional system.
Before the Constitutional Court issued its judgement, the Committee promoting the referendum submitted its brief in support of the admissibility of the petitions. In the Committee’s opinion the purpose of the first petition was to re-establish the previous electoral discipline, abrogated by Law n. 270/2005. In the Committee’s view, the previous legislative decrees (abrogated by Law n. 270/2005) should have been considered again in force, had the electoral body decided to abrogate the current electoral law. The same logic supported the second petition, where the specific abrogation of some provisions of the current election law, would have led to the revival of the previous discipline.
In the decision at issue, the Constitutional Court states at the outset that, in that context, her duty was not to analyze the constitutionality of Law n. 270/2005, but only to consider the admissibility of the referendum petitions. Then, it underlines that electoral laws are “constitutionally necessary law,” which means that they can be subjected to abrogative referendum only if the petitions are homogeneous, coherent, clear and plain and if the resulting discipline, after the abrogative vote, can find immediate application, so as to prevent the consequences of possible inactivity/inertia of the lawmaker. The Court also assumes that referendum petitions on electoral laws must be partial, concerning only part of the provisions and not the entire law itself. That is why the first petition was considered inadmissible by the Court.
Moreover the Court rejects the thesis of the revival of the law abrogated in 2005 (“reviviscenza”). According to this thesis, when a law or another act having force of law (decree-law or legislative decree) is abrogated, the previous law should come back to life, even though it had been abrogated by the introduction of a new, different discipline on the same topic. The Constitutional Court states that, as a general principle, the “reviviscenza” does not operate after the abrogation of a law due to a referendum. Otherwise, this would mean that each provision, even if superseded, would remain quiescent and ready to re-expand its legal content, with unpredictable consequences for the lawmakers and the legal system. Therefore, according to the reasoning of the Court, if the electoral body decided to abrogate Law n. 270/2005 this would create a legal void, since any previous alternative electoral law did not exist anymore and it would not be possible to revive a discipline no longer in force. For this reason the Court rejected the thesis according to which the “reviviscenza” could operate in this case, since the electoral discipline is “constitutionally necessary”.
The Court adds that the “reviviscenza” can exist only in very typical and specific hypothesis, for example when the Constitutional Judge declares unconstitutional a provision that had specifically abrogated another; in the case at issue though, Law n. 270/2005 not only did abrogate the previous discipline, but also introduced a new and different electoral discipline.
For all those reasons, and also because the Court found that the referendum petitions were not clear, plain and coherent, these were declared inadmissible and therefore could not be presented to the citizens for a vote. (Elena Sorda)