COOPERATIVA LATTERIA VIPITENO S.A. A OSTATNÍ proti Itálii

FIRST SECTION

DECISION

Applications nos. 19158/19 and 19376/19
COOPERATIVA LATTERIA VIPITENO S.A.
and Others against Italy
and SOCIETÀ AGRICOLA MELAVÌ - SOCIETÀ COOPERATIVA
and Others against Italy

The European Court of Human Rights (First Section), sitting on 9 January 2024 as a Committee composed of:

Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications nos. 19158/19 and 19376/19 against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 April 2019 by the applicant companies listed in the appended table (“the applicant companies”) whose main representative was Ms A. Mari, a lawyer practising in Rome;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the national courts’ refusal to grant the applicant companies – agricultural firms operating in mountain areas – the recovery of sums paid in respect of their workers for social security contributions (contributi unificati in agricoltura).

2. Section 8 of Law no. 991 of 25 July 1952 (Law no. 991 of 1952) exempted employers operating in mountain areas in the agricultural sector from the payment of social security contributions.

3. Section 9(5) of Law no. 67 of 11 March 1988 (Law no. 67 of 1988) introduced a system of partial exemptions for employers operating in mountain areas in the agricultural sector in respect of payments of premiums and contributions related to welfare and assistance.

4. Under section 14(14) of Law no. 246 of 28 November 2005 (Law no. 246 of 2005), entitled “simplification of legislation”, Parliament delegated to the executive the adoption of legislative decrees listing legislative provisions predating 1970 that the executive considered necessary to maintain in force. Section 14(14)(a) further required the executive not to include in that list provisions that had already been either tacitly or implicitly repealed and section 14(17) identified several provisions which it considered necessary to maintain in force. All other provisions predating 1970 were repealed (section 14(14 ter)).

5. Law no. 246 of 2005 was based on Articles 76 and 77 § 1 of the Italian Constitution, whereby Parliament may delegate the exercise of the legislative function to the executive only for a limited time and for specific purposes. Moreover, the delegating law shall establish principles and guiding criteria for the executive to comply with. The Constitutional Court guarantees that in issuing legislative decrees the executive complies with the limits set out in the delegating law, operating as an “interposed provision” (norma interposta) in combination with Article 76 of the Italian Constitution.

6. Annex 1 to section 1 of Legislative Decree no. 179 of 1 December 2009 (Legislative Decree no. 179 of 2009, the so-called “salva leggi” Legislative Decree) listed several provisions predating 1970 considered necessary to maintain in force. It also included a reference to section 8 of Law no. 991 of 1952.

7. On several dates from 2010 to 2016, considering that section 8 of Law no. 991 of 1952 was still in force, as confirmed by Legislative Decree no. 179 of 2009, the applicant companies requested the National Social Security Institute (Istituto Nazionale della Previdenza Sociale – INPS) to return the sums which they considered to have unduly paid for social security contributions for the period not covered by prescription.

8. Following the INPS’s rejection of their requests, the applicant companies instituted several sets of judicial proceedings before the District Courts of Sondrio, Bolzano, Belluno, Pisa, Siena, Perugia, Forlì and Grosseto.

9. In the context of one of those sets of proceedings, considering that section 9(5) of Law no. 67 of 1988 had already repealed section 8 of Law no. 991 of 1952 and therefore – by including it in the list of provisions to maintain in force – Legislative Decree no. 179 of 2009 had been issued by the executive in breach of the requirements set out in Law no. 246 of 2005, the Sondrio District Court raised a question of constitutionality before the Constitutional Court.

10. By judgment no. 182 of 4 October 2018, the Constitutional Court observed that section 9(5) of Law no. 67 of 1988 had tacitly repealed section 8 of Law no. 991 of 1952, since it had introduced a system of partial exemptions which was incompatible with the total exemption regime set out in the latter provision. In reaching this conclusion, it also relied on the judgments of the Court of Cassation nos. 19420 of 2013 and 7976 of 2016 and on the order of the Court of Cassation no. 7214 of 2018. According to the Constitutional Court, by including in Legislative Decree no. 179 of 2009 a provision that had already been repealed, the executive had breached section 14(14)(a) of Law no. 246 of 2005 and thereby overstepped the limits it had to abide by pursuant to the delegating law and Article 76 of the Italian Constitution. It thus declared annex 1 to section 1 of Legislative Decree no. 179 of 2009 unconstitutional, insofar as it considered necessary to maintain in force section 8 of Law no. 991 of 1952. The declaration of unconstitutionality rendered the law in question unconstitutional from the time of its entry into force, annulled it with retroactive effect and made it inapplicable to any non-final situation. As a result, the annulled provision could no longer be relied on, even with respect to situations which had arisen prior to the declaration of unconstitutionality.

11. Invoking Article 1 of Protocol No. 1, the applicant companies argued that following the judgment of the Constitutional Court their claims to recover the sums that they had unduly paid under section 8 of Law no. 991 of 1952 were bound to be rejected.

THE COURT’S ASSESSMENT

12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

13. The Court reiterates that a legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. Moreover, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 142-43 and 149, 20 March 2018; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I; and Kopecký v. Slovakia [GC], no. 44912/98, §§ 49-50, ECHR 2004-IX).

14. In the present case, as noted by the Constitutional Court and by the Court of Cassation (see paragraph 10 above), section 9(5) of Law no. 67 of 1988 set out a system of partial exemptions from social security contributions which was incompatible with the total exemption regime originally provided for by section 8 of Law no. 991 of 1952. Consequently, the latter provision had to be considered as having been tacitly repealed well before the Legislative Decree no. 179 of 2009 listed it among the provisions that the executive deemed necessary to maintain in force. While the applicant companies argued that the executive had correctly considered section 8 of Law no. 991 of 1952 to be still in force at the time of the entry into force of the Legislative Decree no. 179 of 2009, and that the domestic courts had misapplied the relevant domestic law, the Court observes that the interpretation offered by national courts was neither arbitrary nor manifestly unreasonable. On the contrary, it appears from the case file that for several years the applicant companies paid social security contributions without considering themselves as having a right to obtain a total exemption under section 8 of Law no. 991 of 1952. In fact, they requested the INPS to return those sums only in the years 2010-2016, after the entry into force of Legislative Decree no. 179 of 2009.

15. The Court must examine whether the inclusion of section 8 of Law no. 991 of 1952 in the list appended to Legislative Decree no. 179 of 2009 amounted per se to a sufficient legal basis in national law (see paragraphs 4-6 above).

16. The Court observes that, as noted by the domestic courts, the purpose of section 14 of the Law no. 246 of 2005 was to carry out a general simplification of the legislation. It repealed all outdated and unnecessary provisions predating 1970 and delegated to the executive the adoption of legislative decrees to identify the provisions that had to be exempted based on the executive’s assessment that their effects were still useful and desirable. It thus follows from the rationale of section 14 of the Law no. 246 of 2005 that the executive was to include among the provisions that it deemed necessary to maintain in force only those which were still producing legal effects at that time. This rule was also clearly stated in its section 14(14)(a) as one of the principles and guiding criteria that the executive was bound to comply with under Article 76 of the Italian Constitution.

17. It follows from the above that under domestic law Legislative Decree no. 179 of 2009 was neither intended nor could have legitimately included – among the provisions predating 1970 that it listed in its annex – a provision which had already been implicitly or tacitly repealed before its entry into force.

18. Moreover, the Court observes that the judgment of the Constitutional Court did not generate any retroactive deprivation of the property interest of the applicant companies but, rather, it was based on the assumption that such a property interest had already ceased to exist under national law, following the tacit repeal of section 8 of Law no. 991 of 1952 by section 9(5) of Law no. 67 of 1988. The Court considers that this interpretation of domestic law was neither arbitrary nor manifestly unreasonable (see paragraph 14 above).

19. Therefore, having regard to the fact that the substantive provision relied on by the applicant companies (section 8 of Law no. 991 of 1952) had been repealed since 1988 and its inclusion in Legislative Decree no. 179 of 2009 was quashed with retrospective effect by the Constitutional Court as being in breach of the principles and guiding criteria set out in the delegating law (see paragraphs 4, 5 and 10 above), the Court is not persuaded that a mere reference to section 8 of Law no. 991 of 1952 in the annex appended to Legislative Decree no. 179 of 2009 constituted a sufficient basis in national law to qualify the applicant companies’ claims as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.

20. It follows that these applications must be rejected as incompatible ratione materiae, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 1 February 2024.

Liv Tigerstedt Péter Paczolay
Deputy Registrar President

APPENDIX