CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 novembre 2022

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sC495962E { margin-top:0pt; margin-left:18pt; margin-bottom:0pt; font-size:10pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 12 December 2022   FIRST SECTION Application no. 55789/21 Donatella BRIGHENTI 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. 55869/21, 56003/21, 56025/21 and 55834/21, the applicants are invited to produce a copy of the first and the second instance judgments and of the first judgment of the Court of Cassation. 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. 55789/21 Brighenti v. Italy 08/11/2021 Donatella BRIGHENTI 1961 Vérone Verona District Court, R.C.L. 221/03, 07/06/2004 Venice Court of Appeal, R.G. 532/04, 19/12/2008 Court of Cassation, R.G. 26271/09, 21/02/2013 Brescia Court of Appeal, R.G. 63/14 and 64/14, 28/06/2014 Court of Cassation, R.G. 481/15, 12/05/2021 2. 55837/21 Bighellini v. Italy 09/11/2021 Paolo BIGHELLINI 1956 Vérone 3. 55877/21 Tamburini v. Italy 08/11/2021 Laura TAMBURINI 1949 Vérone 4. 55888/21 Scandola v. Italy 08/11/2021 Antonella SCANDOLA 1964 Bosco Chiesanuova 5. 55907/21 Gozzi v. Italy 08/11/2021 Monica GOZZI 1961 San Giovanni Lupatoto 6. 55915/21 Malago’ v. Italy 09/11/2021 Agostino MALAGO’ 1958 Nogarole Rocca 7. 55985/21 Vinco v. Italy 09/11/2021 Nello VINCO 1955 Vérone 8. 55993/21 Bissolo v. Italy 09/11/2021 Antonio BISSOLO 1955 Vérone 9. 56002/21 Tognella v. Italy 09/11/2021 Stefano TOGNELLA 1961 Vérone 10. 56005/21 Corsi v. Italy 09/11/2021 Elisabetta CORSI 1962 San Giovanni Lupatoto 11. 56006/21 Gozzi v. Italy 08/11/2021 Sara GOZZI 1965 Vérone 12. 56008/21 Vendrell v. Italy 08/11/2021 Juana VENDRELL 1953 Roverbella 13. 56031/21 Selmo v. Italy 08/11/2021 Stefania SELMO 1966 Schio 14. 56273/21 Toso v. Italy 11/11/2021 Susanna TOSO 1958 Vérone 15. 56277/21 Pisani v. Italy 09/11/2021 Luigi PISANI 1951 Vérone 16. 55869/21 Visentini v. Italy 08/11/2021 Paola VISENTINI 1964 Vérone n/a n/a n/a 17. 56003/21 Mizzon v. Italy 08/11/2021 Maria rosa MIZZON 1963 Vérone n/a n/a n/a 18. 56025/21 Perazzani v. Italy 08/11/2021 Ornella PERAZZANI 1962 Schio n/a n/a n/a 19. 55834/21 Scapini v. Italy 08/11/2021 Renata SCAPINI 1961 Vérone n/a n/a n/a 20. 55922/21 Maron v. Italy 11/11/2021 Anna Maria MARON 1958 San Martino Buon Albergo Verona District Court, R.C.L. 94/03, 15/12/2005 Venice Court of Appeal, R.G. 225/06, 02/01/2009 Court of Cassation, R.G. 26274/09, 17/12/2012 Trieste Court of Appeal, R.G. 447/13, 30/12/2014 Court of Cassation, R.G.17419/15, 12/05/2021 21. 55926/21 Billiani v. Italy 11/11/2021 Paola BILLIANI 1967 Vérone 22. 56276/21 Castagnetti v. Italy 11/11/2021 Lorenzo CASTAGNETTI 1956 Vérone 23. 56305/21 Lugoboni v. Italy 11/11/2021 Nicoletta LUGOBONI 1965 Castel D’Azzano 24. 56311/21 Slegers v. Italy 11/11/2021 Iacoba SLEGERS 1953 Vérone 25. 58069/21 Ceradini v. Italy 11/11/2021 Stefano CERADINI 1962 Negrar di Valpolicella 26. 55996/21 Ferro v. Italy 11/11/2021 Neviano FERRO 1952 Ceregnano Rovigo District Court, R.C.L. 751/03, 12/10/2005 Venice Court of Appeal, R.G. 155/06, 07/02/2008 Court of Cassation, R.G. 19457/08, 13/07/2012 Bologna Court of Appeal, R.G. 652/13, 23/02/2015 Court of Cassation, R.G. 17195/15, 12/05/2021 27. 55930/21 Costa v. Italy 11/11/2021 Maria Serena COSTA 1951 Schio Vicenza District Court, R.C.L. 1185/04, 01/09/2005 Venice Court of Appeal, R.G. 864/05 and 865/05, 19/12/2007 Court of Cassation, R.G. 19955/08, 13/07/2012 Bologna Court of Appeal, R.G. 638/13, 22/10/2014 Court of Cassation, R.G. 14160/15, 11/05/2021 28. 56300/21 Dal Cortivo v. Italy 11/11/2021 Gianfranca DAL CORTIVO 1956 Schio Vicenza District Court, R.C.L. 1209/04, 01/09/2005