ITA 
Constitutional Court confirms constitutional legitimacy of Article 25(3) of Legislative Decree 148/2015 on the sanctioning of late submission of the CIGS application
Case ref: Constitutional Court judgment no. 90 of 15 May 2020
The challenge of the constitutional legitimacy of Article 25(3) of Legislative Decree 148/2015 with reference to Article 3 of the Constitution, with regard to the principles of reasonableness and proportionality, is unfounded. This is the conclusion of the Constitutional Court, in its ruling of May 15, 2020, following the referral of the Lazio Regional Administrative Court Order. As is well known, article 25(1) of Legislative Decree 148/2015 provides that «the application for extraordinary wage-support scheme (CIGS) is submitted within seven days from the date of conclusion of the trade union consultation procedure or from the date of signing of the company collective bargaining agreement relating to the application for CIGS». The following paragraph 3, which is the subject of the Chamber’s examination, provides that «in case of late submission of the application, the treatment starts from the thirtieth day after the submission of the application”, with the further consequence, provided for by paragraph 4, that «if the omission or late submission of the application results in the partial or total loss of the right to wage supplement to the detriment of the workers, the company is required to pay the workers a sum equivalent to the wage supplement not received».
In the case that led to the Constitutional Court’s ruling, on the back of a solidarity agreement signed on 1 October 2015, the company filed an application for CIGS on 30 November 2015, i.e. well after the seven-day deadline that had expired on 8 October 2015.
Faced with this delay, the Ministry of Labour authorized the CIGS only as of 30 December 2015, in application of art. 25(3), of the said Legislative Decree.
The company appealed to the TAR, claiming, among other things, that Article 25(3) violated Article 3 of the Constitution «with reference to the principles of reasonableness and proportionality, as it would result in an unjustifiably onerous “sanction” for the company submitting the application beyond the seven-day period established by Article 25(1) of said Decree. In addition, the provision is detrimental to Article 3 of the Constitution itself, but with reference to the principle of equality, in that it discriminates against companies (such as the applicant in the main proceedings) who take over service contracts and which must therefore comply with the so-called social clause».
A fronte di tale ritardo, il ministero del Lavoro aveva autorizzato la CIGS soltanto a partire dal 30 dicembre 2015, in applicazione dell’art. 25, terzo comma, D. Lgs. citato.
Avverso il provvedimento amministrativo la società ricorreva al Tar sostenendo, tra l’altro, che il citato comma 3 violasse l’articolo 3 della Costituzione «in riferimento ai principi di ragionevolezza e proporzionalità, in quanto comporterebbe una “sanzione” ingiustificatamente onerosa per l’impresa che presenti la domanda oltre il termine di sette giorni stabilito dal comma 1 del medesimo art. 25 del d.lgs. n. 148 del 2015. Inoltre, la disposizione sarebbe lesiva dello stesso art. 3 Cost., ma in riferimento al principio di uguaglianza, in quanto opererebbe una discriminazione nei confronti delle imprese (quale è la ricorrente nel giudizio principale) che subentrano in appalti e che devono quindi rispettare la cosiddetta clausola sociale».
Those criticisms were held to be unfounded by the Constitutional Court. The Chamber, as a preliminary point, notes the wide discretion enjoyed by the legislature in regulating the matter of social shock absorbers and, specifically, in bringing the related administrative procedures into line «with the sole limit of the manifest unreasonableness or arbitrariness of the choices made». A limit which, according to the Constitutional Court “cannot be considered to have been exceeded in the case in question, also in light of the recognition of the overall structure of the regulations on the subject and their evolution». In fact, according to the judgement, the procedure pursuant to Article 25 of Legislative Decree 148/2015 is aimed at avoiding situations of uncertainty for the workers, the trade unions concerned and the company itself and «In this sense, the company is required to submit the application as soon as possible, an obligation to which the employer is now called to respond in more rigorous terms, to avoid that its inertia negatively affects the implementation of the interests involved». The Constitutional Court goes on to say that the claims of unreasonableness of the provision with reference to the application of penalties even for one day’s delay, as complained of by the Company, appear to be of no merit, given that «every time a deadline is set, exceeding it, even marginally, in any case produces the effects complained of even if a wider time margin than the seven days provided for in paragraph 1 of the said Article 25 of Legislative Decree no. 148 of 2015 is established”. Equally irrelevant, according to the Constitutional Court, is the reference made by the parties to the “anguish” of the seven-day period established by the aforementioned paragraph. The term, although limited, according to the Judges «is not, in fact, such as to make it impossible, difficult, or in any case excessively onerous to comply with. This is all the more so when it is considered that the application for the granting of the extraordinary wage-support scheme must be submitted electronically through the CIGS on-line procedure». On the basis of the above arguments, the Constitutional Court has therefore declared «the question of constitutional legitimacy of Article 25(3) of Legislative Decree No. 148 of 2015 as unfounded» with reference to «Article 3 of the Constitution in terms of violation of the principles of reasonableness and proportionality».