ITA 
Published on Sole24Ore - NT Lavoro - on 29/03/2023
The Constituional Court, with the judgement 52/2023, declared inadmissible the question of legitimacy raised with reference to Article no. 8 of the Decree-Law no. 138/2011.
The issue has been raised by the Court of Appeal of Naples, called upon to decide about the legitimacy of the employees’ claims refereed to the non-payment of some amounts by the employer, justified by the subscription of a proximity agreement that was pejorative compared to the sector's NCBA. The employees who weren’t members of the Union association that signed the proximity agreement claimed that they weren’t subject to the application of that agreement and demanded the payment of the corresponding salary differences.
The Court of First instance rejected the employees' claims, noting the erga omnes effectiveness of the proximity agreement signed by the most representative Union association, due to the Article no. 8 Decree-Law 138/2011. The Court of Appeal of Naples, suspecting the constitutional illegitimacy of the rule and noting that the issue could only be decided through its application, referred the issue to the Constitutional Court.
According to the Court of Appeal, the rule would be in contrast with Articles no. 2 and 39, first paragraph, of the Constitution, because of the infringement of the freedom of the organization of the Union association, understood both like the freedom of the employee to join Unions associations or to start one, as like the freedom of the Unions to organize themselves for carry out the representative function of their members.
On the one hand, the erga omnes effectiveness of the agreements concluded by a Union association would violate the freedom of the employees of be member of another Union association, by expressing their disagreement to those agreements. On the other hand, also the non-signatory Union association’s ability to carry out its representative function of the dissenting employees would be compressed.
In addition, the rule would contrast with the Article no. 39, paragraph 4, of the Constitution by allowing the conclusion of collective agreement with erga omnes effectiveness, also in the absence of procedural and subjective condition laid down in the Article.
As a preliminary point the Constitutional Court took care to identify the object of the issue, noting that the constitutional legitimacy issues were posed with reference to the only proximity company agreement and not also to the territorial one, despite the Court of Appeal contested the erga omnes effect of the «company level or territorial level» agreements.
That being clarified, the Court didn’t directly decide about the constitutionality of the rule censored, noting the inadmissibility of the raised issues for incomplete reconstruction of the case by the Court of Appeal of Naples, which didn’t explain the traceability of the censored case, object of the main judgment, to the legal one of the proximity agreement, since it was not sufficient that during the trial an ordinary company agreement come to the fore.
Indeed, the rule censured assigns erga omnes effectiveness only to proximity collective agreement, while the ordinary company agreement is endowed with “an effectiveness only tendentially extended to all the workers in the company”, finding a limit in the express dissent of workers or Union association. This system is consistent with the traceability of such agreements to the system of collective bargaining based on private principles, as is the case for national and territorial bargaining, a direct consequence of the non-application of Article 39 of the Constitution and the absence of regulation of representation in the private sector.
The employees and Unions associations’ declared dissent does not affect the validity of the agreement, but it affects its effectiveness which, in this case, result to be not “general”.
It is precisely this possible limitation of the applicability of company collective agreements that is regulated by the censured provision with reference to a particular form of company collective agreement, the so-called 'proximity' agreement, and this exceptionality is even more pronounced if one considers that such an agreement may derogate from the provisions of law and collective bargaining.
The general effectiveness of this kind of agreements, precisely because it’s exceptional, exist only if the requirements laid down in the same rule are met, in particular that the agreement:
- is signed by the national most representative Union association or by their organization active in the company;
- has been approved on the basis of a majority criterion;
- it is aimed at achieving one of the objectives provided by the same Article 8, paragraph 1;
- regulates specific matters, expressly provided by the Article 8, paragraph 2, (Constitutional Court 221/2012).
The ordinance of the Court of Appeal omits to ascertain whether or not the company agreement, relevant in the main proceedings, falls within the scope of the proximity agreement, rendering the questions raised inadmissible.
