CASSA NAZIONALE DI PREVIDENZA E ASSISTENZA FORENSE proti Itálii

FIRST SECTION

DECISION

Application no. 15646/22
CASSA NAZIONALE DI PREVIDENZA E ASSISTENZA FORENSE against Italy
and 5 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 9 July 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 against the Italian Republic listed in the appended table lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Cassa Nazionale di Previdenza e Assistenza Forense (“the applicant entity”), represented by Mr L. Del Federico, on the various dates indicated therein;

the decision to give notice of the complaints raised under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia, and to declare the remainder of the applications inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present applications were lodged by the National Social Security and Legal Assistance Fund (commonly known as “Cassa Forense”), with which all lawyers registered with territorial Bar Associations must be insured pursuant to Article 21 paragraphs 7 and 10 of Professional Law no. 247 of 12 December 2012.

2. With effect from January 1995, the legal status of the applicant entity, and of many other similar entities carrying out activities in the social security sphere, was transformed by Legislative Decree no. 509 of 30 June 1994 (“Legislative Decree no. 509/1994”) into that of a private legal fund.

3. Between 1998 and 1999 the applicant entity delegated to local State‑owned agencies its right to collect receivables from its registered lawyers. The sums were only partially transferred to the applicant entity, which then brought actions to recover the outstanding amounts by means of the various proceedings referred to in the appended table. While those proceedings were pending, Law no. 228 of 24 December 2012 (“Law no. 228/2012”) was enacted: it waived the liability of the State-owned debt collection agencies, wrote off claims below 2,000 euros (annullamento del credito) and discharged higher claims (annullamento del ruolo) generated up until 31 December 1999.

4. As a result, the applicant entity’s requests to recover the outstanding amounts owed to it were eventually rejected by final decisions of the Court of Cassation.

5. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant entity complained that the automatic writing off of its claims had generated consistent losses. Under Article 6 § 1 of the Convention, it further alleged that the waiving of the liability of State-owned agencies under Law no. 228/2012 had hindered the equality of arms principle in the proceedings.

THE COURT’S ASSESSMENT

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

7. The Government preliminarily objected that the applicant entity was a “governmental organisation” and that it accordingly lacked locus standi under Article 34 of the Convention. In that connection, they referred to the main activity carried out by the applicant entity, namely its social security function.

8. They further emphasised that the applicant entity was subject to ministerial supervision and accounting scrutiny by the Ministry of Labour and Social Security, the Ministry of the Treasury, and the other ministries responsible for supervision of transformed entities, as set out in Article 3 of Legislative Decree no. 509/1994.

9. In the light of ruling no. 4882/2014 of 1 October 2014 of the Consiglio di Stato, the Government also pointed out that entities which had been transformed in compliance with the above-mentioned Legislative Decree had retained a “substantially public nature” precisely because of the ministerial supervision provided for by the same decree. Furthermore, on the basis of the same ruling, the Government stressed that the obligation to pay contributions, along with the obligation to enrol and the payment of a fixed minimum contribution by the members of professional funds, were key elements which confirmed the public nature of such entities.

10. The Government also drew a comparison between the applicant entity and the certified public accountants’ pension fund. They pointed out that, by judgment no. 13398/2007 of 8 June 2007, the Plenary Court of Cassation had found that despite their status having been changed into that of a private legal entity, as provided for by Legislative Decree no. 509/1994, the entities discharging compulsory social security functions continued to pursue aims serving the general interest and thus they were not of a purely commercial or industry-focused nature. The Government submitted that the same reasoning applied, mutatis mutandis, to the present case and they consequently emphasised the “governmental” nature of the applicant entity.

11. Moreover, the Government submitted that this assumption was further evidenced by the inclusion of the applicant entity in the list of public administration institutions issued by the National Statistics Institute (Istituto Nazionale di Statistica – ISTAT) pursuant to Article 1 paragraph 2 of Law no. 196 of 31 December 2009. In the Government’s view, this inclusion meant that the applicant entity was a body governed by public law characterised by three main features: its legal personality, its pursuit of general interest aims (lack of a business or industry-focused nature) and the public scrutiny of its activity.

12. Furthermore, the Government pointed out that the use of local State‑owned agencies to collect receivables could be exclusively delegated to a “governmental organisation” that performed a public function such as social security (they referred to judgment no. 10132/2012 of the Plenary Court of Cassation of 21 December 2012). The use of such State-owned agencies emphasised the public profile of the activity carried out in absolute compliance with the functions enshrined in paragraph 2 of Article 38 of the Italian Constitution.

13. Lastly, in their observations submitted in case no. 51056/22, the Government stated that, on 29 December 2023, the relevant public authorities had exercised their powers of control over the applicant entity’s activity by temporarily deferring the entry into force of a new pension reform devised by the applicant entity.

14. While confirming the supervision by State authorities over its activity, the applicant entity maintained that it enjoyed sufficient institutional and operational independence to be considered a “non-governmental organisation” for the purposes of Article 34 of the Convention.

15. The applicant entity added that it enjoyed full accounting and financial autonomy and was prevented from receiving direct or indirect public funding pursuant to Article 1 paragraph 3 of Legislative Decree no. 509/1994.

16. It further stressed that its social security function did not make it a governmental organisation in view of its autonomy in its decision‑making process as provided by Article 2 of the same Legislative Decree.

17. In its submissions in application no. 51056/22, the applicant entity noted that Law no. 197 of 29 December 2022 had ruled out the “writing off” of the outstanding claims generated from January 2000 to June 2022 with respect to the tax rolls issued by private social security funds. In the applicant entity’s view, the legislative change implemented at national level further proved its non-governmental nature and demonstrated the unfairness of the measures provided for by Law no. 228/2012 (see paragraph 3 above).

18. Lastly, the applicant entity argued that it was irrelevant for the establishment of its legal nature that the collection of receivables was carried out through the tax roll.

19. The Court reiterates that a legal entity claiming to be the victim of a violation by a member State of the rights set forth in the Convention and the Protocols has standing before the Court only if it is a “non-governmental organisation” within the meaning of Article 34 of the Convention. The category of “governmental organisations”, as opposed to “non-governmental organisations” within the meaning of Article 34, includes legal entities which participate in the exercise of governmental powers or run a public service under government control. In order to determine whether any given legal person other than a territorial authority falls within that category, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities (see Radio France and Others v. France (dec.), no. 53984/00, § 26, ECHR 2003-X; State Holding Company Luganskvugillya v. Ukraine (dec.), no. 23938/05, 27 January 2009; and JKP Vodovod Kraljevo v. Serbia (dec.), nos. 57691/09 and 19719/10, § 23, 16 October 2018).

20. Applying these principles to the present case, the Court takes into account the fact that as from January 1995, the applicant entity’s legal status was transformed into that of a legal fund pursuant to Legislative Decree no. 509/1994. The transformation took place within a wider privatisation process occurring at national level.

21. The Court further acknowledges that the applicant entity is incorporated under domestic law as a legal entity. However, its legal status under domestic law is not decisive in determining whether it is a “non‑governmental organisation” within the meaning of Article 34 of the Convention. The Court has previously determined that companies lacked locus standi under Article 34 regardless of their formal classification under domestic law (see JKP Vodovod Kraljevo, cited above, § 25).

22. In this context, the Court observes that the pursuit of a general interest is paramount in the activity carried out by the applicant entity. Accordingly, the Court is of the view that the applicant entity discharges governmental functions by offering a public service to a specific group of professionals under governmental control (see Croatian Radio-Television v. Croatia, nos. 52132/19 and 19 others, § 99, 2 March 2023).

23. In addition, the delegation of the collection of debts to local State‑owned agencies affects the context in which the applicant entity’s activity is performed and confirms the social nature of the functions carried out by it.

24. Moreover, the Court observes that the mandatory presence of representatives of the State authorities on the board of the statutory auditor of the fund, as provided for in Article 3 of Legislative Decree no. 509/1994, further confirms the public nature of the applicant entity.

25. The Court also acknowledges the powers of control and veto recently exercised by the competent Ministries over the pension reform devised by the applicant entity (see paragraph 13 above) and considers that such control further proves the existence of public supervision over its activities.

26. In the light of all of the above, the Court finds that in spite of the fact that the applicant entity is a legally independent fund under domestic law, it cannot be regarded as an independent “non-governmental organisation” within the meaning of Article 34 of the Convention owing to the indisputable control of the State over its activity (see Croatian Radio-Television, cited above, § 100).

27. For these reasons, the Court concludes that the applicant entity lacks locus standi in the present case. The present applications are therefore incompatible ratione personae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 12 September 2024.

Liv Tigerstedt Péter Paczolay
Deputy Registrar President

Appendix

List of applications: