Italy

THE RIGHT TO SOCIAL SECURITY IN THE ITALIAN CONSTITUTIONAL SYSTEM

Fabrizio Proietti 

 

 Introduction

The Constitution of the Italian Democratic Republic (1948) (henceforth: CORI) is commonly described as a ‘rigid constitution’. This means that it is very difficult to make changes to its formal text, as any update or modification requires a complex revision procedure with a very high majority vote (2/3) in each of the two branches of Parliament (Chamber of Deputies and Senate of the Republic). At the foundation of the entire democratic structure lies regard for work ‘in all its forms’ as means of both economic and social elevation of a person and expression of social solidarity obligations incumbent on it. Consequently, evolution of the protection system and conditions for access to social security measures for an ordinary legislator has been focused on the status of the ‘worker’; that is, at least in the first phase of constitutional principles implementation.

 

1. THE ITALIAN CONSTITUTIONAL FRAMEWORK

1.1. Constitutional principles ruling the right to Social Security in the ‘living law’.

In the basic principles of the CORI (Part I, Art. 1-12) contain some elements that allow us to interpret correctly each formula contained in the articles included in other parts of the Constitution. In particular, it should be noted that Italy is a "Democratic Republic founded on work" (Art. 1, paragraph 1, CORI). Also, emphasising the close link between rights and duties, it states that: "The Republic recognises and guarantees the inviolable rights of man, both as an individual and in the social groups where his personality is expressed. The Republic expects that the intransgressible duties of political, economical and social solidarity be fulfilled"(Art. 2 CORI). The principle of equality is expressed in a broad and unreserved manner: "All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions," and, indeed, the State assumes a very ambitious task: "It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country" (Art. 3 CORI).

The adopted social model has open and inclusive dimensions: "The Republic recognises the right of all citizens to work and promotes those conditions which render this right effective. Every citizen has the duty, according to personal potential and individual choice, to perform an activity or a function that contributes to the material or spiritual progress of society" (Art. 4 CORI). The Italian Republic does not seem to guard its legal space particularly jealously, and in fact: "The Italian legal system conforms to the generally recognised rules of international law. The legal status of foreigners is regulated by law in conformity with international provisions and treaties" (Art. 10 CORI); as well as: "Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations. Italy promotes and encourages international organisations having such ends" (Art. 11 CORI).

The structure of the CORI distinguishes ethico-social relationships (Part II - Title II, Arts. 29-34) from economic relations (or better: socio-economic, as well as the literal wording of Title III of Part II) (Arts. 35-47).

The aforementioned Title II lays down specific formulas for the protection of the family:

 "The Republic recognises the rights of the family as a natural society founded on matrimony. Matrimony is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family." (Art. 29 CORI); "It is the duty and right of parents to support, raise and educate their children, even if born out of wedlock. In the case of incapacity of the parents, the law provides for the fulfilment of their duties. The law ensures to children born out of wedlock every form of legal and social protection that is compatible with the rights of members of the legitimate family. The law lays down the rules and limitations for the determination of paternity." (Art. 30 CORI); "The Republic assists the formation of the family and the fulfilment of its duties, with particular consideration for large families, through economic measures and other benefits. The Republic protects mothers, children and the young by adopting the necessary provisions." (Art. 31 CORI); of health: "The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. No one may be obliged to undergo any given health treatment except under the provisions of the law. The law cannot under any circumstances violate the limits imposed by respect for the human person." (Art. 32 CORI); of education: "The Republic guarantees the freedom of the arts and sciences, which may be freely taught. The Republic lays down general rules for education and establishes state schools for all branches and grades. Entities and private persons have the right to establish schools and institutions of education, at no cost to the State. The law, when setting out the rights and obligations for the non-state schools which request parity, shall ensure that these schools enjoy full liberty and offer their pupils an education and qualifications of the same standards as those afforded to pupils in state schools. State examinations are prescribed for admission to and graduation from the various branches and grades of schools and for qualification to exercise a profession. Institutions of higher learning, universities and academies, have the right to establish their own regulations within the limits laid down by the laws of the State." (Art. 33 CORI); "Schools are open to everyone. Primary education, which is imparted for at least eight years, is compulsory and free. Capable and deserving pupils, including those without adequate finances, have the right to attain the highest levels of education. The Republic renders this right effective through scholarships, allowances to families and other benefits, which shall be assigned through competitive examinations" (Art. 34 CORI).

Title III of Part II confirms the centrality of work in the constitutional vision: "The Republic protects work in all its forms and practices. It provides for the training and professional advancement of workers. It promotes and encourages international agreements and organisations that have the aim of establishing and regulating labour rights. It recognises the freedom to emigrate, subject to the obligations set out by law in the general interest, and protects Italian workers abroad." (Art. 35 CORI); also, contractual obligations regarding remuneration (compensation for work done) are functionalised to the development of the human person and fulfilment of the solidarity duties, and in the first place in the family: "Workers have the right to a remuneration commensurate to the quantity and quality of their work and in all cases to an adequate remuneration ensuring them and their families a free and dignified existence. Maximum daily working hours are established by law. Workers have the right to a weekly rest day and paid annual holidays. They cannot waive this right" (Art. 36 CORI).

The principle of equality between men and women (in this particular article in terms of employment relationships, although the field of social security is derived from this) is also clearly stated: "Working women have the same rights and are entitled to equal pay for equal work. Working conditions must allow women to fulfil their essential role in the family and ensure special appropriate protection for the mother and child. The law establishes the minimum age for paid work. The Republic protects the work of minors by means of special provisions and guarantees them the right to equal pay for equal work" (Art. 37 CORI).

As mentioned above, the right to social protection is strongly linked, primarily, to the condition of the worker: "Every citizen unable to work and without the necessary means of subsistence has a right to welfare support. Workers have the right to be assured adequate means for their needs and necessities in the case of accidents, illness, disability, old age and involuntary unemployment. Disabled and handicapped persons have the right to education and vocational training. The duties laid down in this article are provided for by entities and institutions established by or supported by the State. Private-sector assistance may be freely provided" (Art. 38 CORI).

The Italian constitutional system demonstrates a choice of perspective in defining the tasks of the social welfare state: the conceptual and legal distinction between "social welfare support" and "social security"[1].

These two lines of action are instrumental in the creation of a system of government programs and actions that aim to guarantee citizens the means to a free and dignified existence. This guarantee covers the fundamental principles of the Italian Republic (personalist principle[2] - protection of human dignity, life and health, education and vocational training; equality principle - equal rights and duties (other things being equal) between citizens and workers; labourist principle - protection of the right to work and livelihood; solidarist principle - actions of the State and private parties to the benefit of social groups/individuals in need).

This distinction, which is fundamental for our analysis because it is deeply rooted in the Italian constitutional tradition, is based on the same formulas as the main provision of the CORI devoted to these issues (Art. 38 CORI).

In the first paragraph, in fact, the right to ''welfare support" (literally: ‘right to maintenance’) is (formally) reserved for those with the status of a "citizen" (later in the text we will follow the evolution and expansion of this limit) and is tied (appropriately) to the condition of being "unable to work" and the absence of the "necessary means of subsistence".

In the following paragraphs, however, the right to "social security" is reserved for "workers" and concretized in the right to receive "adequate means for their needs and necessities" at the occurrence of events that create a situation of need; below we will analyse the evolving application of this fundamental provision, leading to certain 'openness' in the form of complementary social security managed by private companies under the supervision of the State.

The decision to include specific recognition of a large number of ‘social rights’ raised an extensive (and still unresolved) legal and political debate about the meaning of the commitments made by the Italian Republic in respect of various categories of persons as beneficiaries of protection.

I will try to give as concise and complete as possible a review of the various aspects related to the basic question: the ‘right to social security’ in the Italian constitutional experience[3].

The guarantees achieved by the Italian system have been a subject of careful analysis that also highlight certain contradictions in its evolution, largely a result of the 'clientelist' and demagogic approach of Italian policy makers over a long period of economic and social expansion in the wake of the Italian post-war reconstruction (1945-1969).

In fact, during this period there has been a proliferation of bodies created by the legislature to achieve the objectives of social protection provided for by the CORI, with a contextual (overly) generous formalisation of the promise of financial benefits adequacy to the income dynamics of protected persons (enactment of Law no. 153/1969 introduced a mechanism for calculating pensions based on pay, trusting in the miracles of the so-called PAYG system, and established retirement contribution upon attainment of the required 35 years; other rules (obviously dedicated to increase employees loyalty to the public authorities for political electoral support) granted the right to receive pension upon completing a rather small contribution period (in some cases: 15 years) regardless of actual age (so-called baby-pensioners).

Trend in the Italian economy (at the first symptoms of broader dynamics of globalisation) have profoundly changed the frame of reference: the number of employees with standard contracts (permanent full-time) is in steady decline; the birth rate in the demographic structure of the population is also declining; and there is massive growth in the immigration of foreign workers. These and other structural factors led the legislature to enact, in 1992, a series of laws that have reshaped the regulatory framework of the social security system in Italy.

This strenuous route (certainly unpopular during political elections, but constantly on the agenda of several governments of different political orientation that have occupied the seat in the past twenty years) focused on a giant spending review of the social security system. Yet, one can easily observe that reduction of public spending capacity in this area brings out an even stronger 'new perspective' of social rights in the Italian experience: on the one hand, an increasing role of the private sector (including non-profit) in setting up protective arrangements on top of those conferred on the State and public bodies; on the other, a shift of the legislative centre of gravity from the basic levels of protection to a supranational level (European Council and derived bodies [4]; European Union and its institutional bodies).

 

1.2. Constitutional Guarantees

As already mentioned, the provisions of the CORI dedicated to social security rights generally have a 'programmatic' character. This means that the legislature's task in giving effect to the constitutional provisions on the subject is constantly monitored, also because it is a result of an incessant political compromise. Nevertheless, it is necessary to point out that the analysis of constitutional formulas must be accompanied by an examination of the tools that ensure their effectiveness. These tools must ensure their concrete enforcement, as the nature of social rights is closely related to their implementation. The constitutional status given to social security rights consequently entails their constitutional protection, like that of all other rights guaranteed by the CORI. Violation of social security rights does, in fact, result in the unconstitutionality of laws in conflict with those rights. This defect can be detected by the Constitutional Court of the Italian Republic (henceforth: CCRI) in a legality review. This is also true in the case of purposeful violation of regulations whose implementation is entrusted to the legislature, which, despite being modest in relation to the legislature’s failure to act, can however repeal the laws that are contrary to those ends. The largest contribution to further definition and recognition of social security rights[5] came from the constant guarantees and promotion efforts of the CCRI that, in accompanying the evolution of these legal rights, has come to affirm them as 'perfect rights', even before the doctrine has adjusted its positions and its guidelines to ensure their immediate protection. The CCRI has often intervened to give effective recognition to social security rights well before the legislature, with awards and decisions containing solutions that gave rise to heated debates. The CCRI's tool of choice has been manipulative judgements, especially of the 'additive’ type, in which the Court declared the unconstitutionality of laws that indiscriminately and unjustifiably precluded certain categories of citizens/subjects from some benefits, especially in the field of social security and welfare. For all social rights included in the constitutional catalogue, according to the constant direction of the CCRI, the Court's guarantee is not merely a legal or legislative guarantee but that of constitutional rights (often the inviolable rights) and of constitutional values (often primary or supreme values). In fact, the basis of their claim lies not in the law which makes it gradually and eventually possible in practice, but in the Constitution.

Therefore, the views of those who, in the new conception of the constitutional State, contrast social rights (mere entitlement to benefits) to the rights of freedom (which, on the other hand, don't require any positive performance) are no longer tenable because the latter also depend on the organization of the State. Ultimately, the CCRI has offered social security rights full protection at the constitutional level, equating them to fundamental rights, both in terms of effectiveness (constitutional jurisprudence having recognised fundamental social security rights with as much efficacy with which classic constitutional freedoms are recognized), and with respect to legal status, for which they are indispensable, inalienable, non-renounceable and non-transferable, and have a primary legal status that, in many cases, is inviolable. Therefore, the CCRI has recognized the immediate effectiveness in relation to third parties and not only in relation to the State, confirming that the effects of guaranteeing social rights is an immediate product of mere recognition, without requiring therefore preventive implementation on the part of the legislature [6].

It seems appropriate to point out that the CCRI jurisprudence also comprises, increasingly and especially since the mid-eighties, the reasons for the stability of public finances with respect to social spending in an ongoing and difficult balance between social rights and equilibrium of the expanded State budget[7]. In this regard, in fact, a reversal of interpretation has been observed regarding the equality principle 'at the highest level'[8].

In parallel, the same constitutional doctrine has not failed to recognize this evolution and to attribute it to the crisis of the welfare state. It was noted, for example, that rulings of unconstitutionality qualifying as ‘benefit additives’[9], have given way to so-called judgements of ‘guarantee additives’[10]. Indeed, while the former involve acquisition by certain categories of persons of a right to funds or services previously unlawfully excluded or limited, the latter are limited, more sparingly, to determining the acquisition of a passive legal situation by the State, consisting of a non facere or a constraint.

It's the growing importance of economic and financial reasons that push the doctrine and the constitutional jurisprudence[11] to develop the concept of the minimum essential content of social rights, which then merged with essential levels of performance concerning civil and social rights[12].

It is certainly a relative notion, since in the assessment made by the judge, as is commonly recognized, the greatest weight is attributed to the economic and social context[13], as well as cultural content, referenced at the historical moment[14]. The CCRI itself (in particular, judgement no. 134/1982) had already left the legislature wide discretion in determining this minimum[15].

In sum, in any decision relating to social rights, the CCRI has a very delicate task: in analysis of the laws (state or regional) brought to its attention it must strike a subtle balance between the expansive principles (trends to universality, adequacy/sufficiency, equality) and limiting principles (sustainability, general financial stability, constraints arising from supranational treaties), especially in a scenario that has become the norm since the constitutional requirement of a balanced budget (Constitution Act 1 of 2012)[16].

To date, the CCRI still has not handled the real theme of the near future: that of solidarity between generations[17]. Youth unemployment statistics cause serious concerns regarding the fitness of the system and its current funding mechanism.

 

2. THE IMPACT OF CONSTITUTIONAL SOCIAL SECURITY PROVISIONS IN ESTABLISHING THE DOMESTIC LEGAL SYSTEM

2.1. Incorporation of international standards

It should be noted that the Italian Republic has, in general, always wanted to demonstrate its readiness to recognise (implementing Arts. 10 and 11 of the CORI), including from a formal point of view, the various provisions in the field of social rights contained in the supranational legal sources.

It has, in fact, signed and ratified:

- the International Convenant on Economic, Social and Cultural Rights (1966), ratified by Law No. 881 of 25 October 1977, entered into force on 15 December 1978;

- accepted (but not yet ratified) the Optional Protocol (2008) to the International Covenant on Economic, Social and Cultural Rights of 1996, which establishes a procedure for individual communications;

- accepted (but not yet ratified) the UN Convention (1990) on the Rights of all MIgrants Workers and Members of Their Families;

Regarding the ILO sources ILO, Italy has not ratified the following Conventions:

- 159 - Vocational rehabilitation and employment (disabled persons), 1983;

- 164 - Health Protection and Medical Care (Seafarers), 1987;

- 167 - Health and Safety in Construction, 1988;

- 170 - Chemicals, 1990;

- 175 - Part-Time Work, 1994;

- 183 - Maternity Protection, 2000;

- 189 - Domestic Workers, 2011.

It should be noted that Italy was one of the first countries to ratify ILO Convention no. 102 - Social Security (Minimum Standards), 1952, with Law no. 741 of 1956.

In the European legal space, with reference to the Council of Europe, it should be noted that Italy has ratified, in their entirety, both the ECHR and the European Social Charter (the latter in its updated 1996version; it has also ratified the Additional Protocol of 1995 providing for a system of collective complaints, with the only limitation that national NGOs are excluded), subject to ratification (restricted to parts V, VI, VII and VIII) of the European Code of Social Security (1964) by Law no. 1977, which came into force in 1978

In the periodic reporting activity of the European Committee of Social Rights in the Council of Europe, Italy has often been spurred on to improve the level of social protection, with particular reference to the protection of disabled people and the amount of minimum pension; economic protection against unemployment is also the object of Committee's attention.

With regard to decisions on collective complaints, we note the claim on the right to housing of Sinti and Roma populations (58/2009 COHRE vs. Italy).

It must be said that from the small number of collective complaints presented against Italy, much still has to be processed to spread good practice[18].

It foreshadows activation of the remedy through the collective complaints procedure, with reference to certain abnormal situations resulting from enactment of regulations that entail considerable restriction of social rights as a result of reforms that aren't always well thought out by the legislature, which is in turn pressed by the public finance crisis.

Within the ECHR[19], we note (as emblematic of heated debates among the Courts) an ECHR judgement of 31 May 2011 regarding Swiss pensions paid to Italian workers, from which a clearly restrictive decision (for obvious reasons of public finance) of the CORI originated (judgement no. 264 of 2012)[20]. Although more limited in scope, also very interesting is the ECHR judgement of 14 February 2012 on the Arras case, in terms of the enactment of a law of authentic interpretation, which removed the right to automatic equalization of pension. We should also mention the judgement of 4 December 2012 by the ECHR on Hamidovic case, which condemned Italy for the expulsion of a Bosnian-Roma woman, mother of five children.

Often, issues regarding protection of social rights are - with the procedural restrictions in the well-known domestic scope - conveyed by reference to violations of the instrumental provisions of the ECHR Convention[21], almost always on the right to a fair trial and the prohibition of discrimination.

For an interesting combination of different (but converging) sources from the European legal area, note a CORI decision (judgement no. 40/2013), which removed an irrational obstacle to the release of long-term residence permits for non-EU citizens with reference to a social security benefit (disability pension)[22].

the contribution that can be offered by the primary legal basis (Charter of Fundamental Rights of the European Union - CFREU)[23] is genetically restricted[24] (in the current attitude of the Court of Justice of the European Union - CJEU) both due to a formal referral limited to the laws (secondary level) of the Union, and due to the assignment of assessment of the scope of application in each case to the CJEU.

It should be stressed that the ongoing workings of the operators in the European legal space (hoping for an awakening of the conscience of Italian jurists) will harness more and more paths of integrated protection of social rights, based on the principle of indivisibility - a clever combination of instruments activated in parallel: before the ECHR, before the European Commission, before the CJEU, before the ECSR. The result of this effort for the emergence of the legal substance of social rights must then be carefully evaluated by national Judges who will be the ones to apply these in accordance with the principles to the specific facts placed before them.

Another essential aspect is cultural diffusion through the ANESC (Academic Network on the European Social Charter and Social Rights), which has an established presence in Italy and in other countries in the European legal space.

The greatest impact the EU law has in terms of implementation of the right to social security is caused by the Council Regulation (EEC) no. 1408/71, later amended by Regulation (EC) no. 883/2004, through which thousands of Italian and non-Italian workers were able to accrue the requirements to access social benefits, thanks to the pro rata mechanism. The Regulation (EC) no. 859/2003 dedicated to equal treatment in access to social security benefits for citizens of non-EU states (and their families), provided that they are ordinarily resident in the territory of the Union, is finding progressive application in relation to the development of demographic dynamics of immigration for employment purposes. Regarding the matters of family reunification for non-EU workers, Directive no. 86/2003 has been implemented; similarly with Legislative Decree no. 30/2007, Directive no. 2004/38 was implemented (free movement of EU workers and their families).

Directives concerning the protection of health and safety at work gave rise to a legislative corpus (Legislative Decree no. 81/2008) that is very complex and strongly implemented, thanks to a system of incentives (reduction of contribution), controls (by the State) and monitoring (by the workers' representatives) that over the past twenty years helped achieve some important results in terms of the progressive reduction of workplace fatalities, even though injuries and deaths affecting undocumented workers are still a great concern, especially regarding workers from outside the EU who work in agriculture in some areas of Italy.

The principle of equal treatment between men and women in matters of social security has found significant application in public employment.

The award of 13 November 2008 in Case C - 46/07, the CJEU has condemned Italy (in infringement proceedings) for unlawful age differentiation (more favourable to women) in terms of access to old age pension. Consequently, the Italian government had to issue regulations on equality between the sexes (most recently, Law no. 214/2011).

Also, note that the integrity of tax status of employees of insolvent employers (imposed by Directive no. 987/1980 and Directive no. 2002/74) is protected by law (Legislative Decree no. 80/1982; Legislative Decree no. 186/2005), and that this is valid both for the forms of compulsory social security and welfare managed by the State, and for private pension funds.

Legislative Decree no. 28/2007 of 6 February 2007 implemented Directive 2003/41/EC regarding the activities and supervision of institutions for occupational retirement; however, this sector also has a separate supervisory authority (COVIP).

 

2.2. The main legal institutions to Implement the Principles of constitutional protection of the rights of social security

The principles of adequacy, sufficiency and essential social benefits (Art. 38, CORI) are the foundation of a number of important legal institutions.

 First of all, since 1942 (Art. 2116, Italian Civil Code) has been in place a mechanism that automatically recognizes entitlement to social benefits, even if the relative contribution has not been paid by the employer; however, it must be said that this principle works only to a limited extent (until expiration of the limitation period of five years) for benefits other than those due to accidents and occupational diseases (in which it operates fully automatically).

Secondly, in many cases of non-performance of work (illness, accident, maternity, recourse to subsidies for full or partial unemployment, etc.) the periods concerned are considered relevant and covered by contributions (the so-called figurative contribution), which are charged to the State. It is a tool intended to implement the principle of effectiveness.

Another significant institution, although relating to the use of pensions and dedicated to the application of the principle of adequacy, for a long time has been the so-called automatic equalization, based on the constant indexation of pensions to the cost of living. In a radical move, starting from 2012 and for higher pensions such mechanism has been abolished, for obvious reasons of saving in pension expenditure.

Moreover, another mechanism for adjusting the amount of social benefits was delimited some time ago, for cases where they are awarded on the basis of Court judgement. In such cases, the amount will be increased by only one of the components set in Art. 429 of the Italian Code of Civil Procedure (legal interest; index of currency appreciation) and never cumulatively by these (Law no. 724/1994).

An important (and unfailing) type of institution, inspired by the principles of universality and solidarity, is represented by measures to ensure a minimum amount of pension, either with a contribution base (so-called integration to a minimum) or where access is not tied to a defined contribution (for situations of serious socio-economic hardship) (so-called welfare benefits for the elderly over 65 years). A similar measure is true for all economic treatments provided to protect the disabled, whether they are former workers or not.

The Italian social model has given importance to the principles of subsidiarity between the State and local communities (Arts. 117 and 118 CORI)[25]. In particular, the matter of social security is left to the exclusive legislative competence of the State (except for the autonomous provinces of Trento and Bolzano, as well as for regions with special status), while the concurrent legislative competence is applied in relation to: workplace safety, health, complementary social security (pension funds, etc.), social assistance - in these matters it is the government's responsibility to establish minimum performance levels. In the above matters local communities are allowed to participate in decisions that form legal acts of the EU, as well as implementation and enforcement of international treaties and EU acts (Art. 117, paragraph 5, CORI).

It should be noted that the organization of health services in general (Servizio Sanitario, the Italian Health Service) is the responsibility of local governments; while the funding system is still largely controlled by the State.

It is easy to imagine that significant problems will arise from the implementation of Directive 2011/24 on the application of patients' rights in cross-border healthcare, precisely due to the mechanism for reimbursement of costs[26].

A new line of the legislature’s action regards the groups under the strongest risk of social exclusion (usually elderly people who live alone, with incomes close to the poverty line). Among the various measures introduced at the national level under the concurrent jurisdiction with local authorities (reduction of tariffs for water supply, electricity and gas, shopping vouchers, etc.), and at the local level (Solidarity Fund for the contribution to the cost of rent) the subject of two CORI decisions[27] (judgements no. 62/2013 and no. 10/2010) has been the most sensitive (the shopping voucher)[28]. For these actions, it was deemed lawful to pass the competence from local authorities on to the State.

In general, the real issue will be the impact of constitutional regulations on the content of social security rights in the domestic legal system.

The justiciability of social rights has traditionally been doubly problematic: a) on a technical level - the ability to set them up as an object of judicial protection;[29]and b) institutional legitimacy and/or jurisdiction of the courts (i.e. municipal judge - in the Italian judiciary system he is or should be specialized in accordance with Law no. 533/1973 - in primis). It must be emphasized that the ordinary forms of judicial protection of social rights (e.g. the right to health, welfare, equitable remuneration for work) are not only technically feasible, but they do exist and are numerous, with a decent incentiveness which is too often almost nullified by the long processing times. In the context of constitutional[30], the possibilities of intervention - as illustrated - are varied, ranging from institutional censorship of illegitimacy of the acts in conflict with the constitutional provisions that enshrine social rights, to the setting of terms within which the institutions are required to intervene and satisfy these rights, and to the explicit formulation of coordinated legal proceedings which the institutions are required to adopt and intervene[31].

This, therefore, give the possibility of a negative intervention - to censor laws or regulatory actions that mark a setback in the protection of social rights, in the regulations where they are already prepared; as well as positive - to give impetus to inert political institutions (the emblematic case decided in the CCRI judgement no. 240/1994 concerning the so-called integration to a minimum of separate pension benefits).

In summary, it is possible to highlight some critical issues: development of an interpretative/argumentative strategy that allows to focus on the aspects of justiciable social rights and work on them; framework of obligations arising from those rights; assessment of the costs of their conservation[32].

It should be noted that CCRI has always been aware that an exponential growth of social spending reliably corresponds to the crisis of social security rights.

The aforementioned trends for the use of social security rights (by the political power) to ensure continuous electoral support gave impetus to the ongoing crisis of the Italian welfare system (and the protected social rights) that is taking progressively wider and more worrying dimensions, to the point of outlining in the scientific debate the idea of ¿¿the inevitable disappearance of this form of state intervention.

The legislature necessarily has to deal with this phenomenon, and, in an effort to strengthen and renew the traditional methods and procedures for satisfying the social security rights, overcome the inefficiencies and contradictions of the system.

Since the 1990s, the Italian legislature, both at the ordinary and the constitutional levels, has changed the institutional structure and organization of the welfare system, through a process of decentralization of institutional powers from the central State to the regions and to local authorities.

Based on the principle of subsidiarity, the management and financial responsibilities regarding social benefits have thus been transferred to the government levels closest to the protected person, for their (alleged) ability to better interpret the social needs and the gaps in the services networks.

The systems for protection of social security rights have thus been opened also to local authorities.

The fundamental steps along this path were the Law no. 328/2000 on the integrated system of services and social interventions, which has provided a comprehensive reform of the social services sector, and, later, the constitutional reform of Title V of the CORI, implemented by the Constitution Act no. 3/2001: it has introduced a new criterion for the division of legislative powers between the State and the regions destined to have a major effect on the protection of fundamental rights, both social and civil.

Thus has been amended Article 117, CORI, which identifies the areas of exclusive competence of the State and the areas of shared competence of the State/regions, where the former is responsible for determining the fundamental principles and the latter for the discipline in the specific sectors and areas of exclusive competence of the regions.

The constitutional legislature allocates to the exclusive jurisdiction of the State "determination of the basic level of benefits relating to civil and social entitlements to be guaranteed throughout the national territory" (Art. 117, paragraph II, letter. m).

This means that the exercise of powers conferred to the regions, both shared and exclusive, is still subject to the negative limit of compliance with the minimum levels of performance in the field of civil and social rights, and must adapt to the ('external') limit consisting of the fundamental principles whose determination is reserved to the State legislation in relation to competences shared with the regions.

The scientific debate[33] regarding this innovation in the field of social security rights has often demonstrated conflicting positions, especially with regard to the identification of essential character of the levels of performance in terms of social rights; the legislature has often been criticized for the reform as having caused a real erosion of the principle of equality.

In fact, this limitation of national legislature's involvement in determining the basic level of benefits relating to social rights is in some respects an undeniable regression in relation to the principle of equality of the individual, as set out in Art. 3, CORI, now considered worthy of protection only in its minimum.

It must be observed that the new Art. 117, CORI attributes to the concurrent regional legislation the matters of protection and safety, education and health; these are all areas characterised by a particularly urgent problem of 'retraction' of the principle of equal treatment resulting from the imbalance in the enjoyment of the benefits.

The risk is to create an asymmetry in the provision of social benefits and a serious risk of weakening the constitutional guarantees of equality and solidarity.

Such situation could be remedied only by the necessary respect for the basic performance levels set by the State, pursuant to Art. 117 letter m), or intervention of the State Government in exercise of replacement powers under Article 120, CORI, to guarantee the basic level of social security benefits.

Even in Italy, as in the evolution of other national regulations (strongly characterized by the phenomena of globalization and European integration), we see a relocation of the social protection tasks from the national to the local level.

Thus is born - also in the political-institutional experience of Italy - a phenomenon of multi-level protection of social rights.

The State has lost (wanted to lose) a monopoly on the protection of social rights and shifted the guarantee thereof to supranational and international levels on the one hand, and regional and local levels on the other.

A new scenario is emerging through the various assessments that will be carried out by supranational subjects, both in the scope of European Union law (Commission, Court of Justice, especially in the light of the Charter of Fundamental Rights of the European Union), and in the conventional international law in the legal area of ¿¿the Council of Europe (European Committee of Social Rights, in the light of the provisions of the European Social Charter that are binding States to respect the commitments made, either through regular reporting or through decisions made on collective complaints).

 

3. PERSONAL AND MATERIAL SCOPE OF SOCIAL SECURITY RIGHTS GUARANTEED BY THE ITALIAN CONSTITUTION

As already stated, the body of the Italian system of social security revolves around Art. 38, CORI, in which the essential figure is that of the worker (for the purpose of constructing a pension model, for a long time - until 1995, but with effects still relevant to the workers of a more advanced age - on a contributory base, whereas the final calculation is based on remuneration for the purposes of financial benefits).

The figure of the ‘worker’ has been focused on a salaried employee; until 1996, most of atypical workers (about two million, used under autonomous coordinated collaboration agreements) were not enrolled in any pension system base and therefore could not claim any useful years of contributions[34].

Therefore, over time has been constructed a basic pension protection that will ensure, however, only rather modest benefits.

For a long time, the Italian pension system was characterized by a large number of pension protection management bodies, both for public sector employees and for private sector workers, and the self-employed. Only recently, the reform imposed by the crisis (Law no. 214/2012) united both sectors under the management of a single body: the National Institute of Social Security (INPS); some exceptions still remain (sales agents, professionals[35], etc.).

Over the past twenty years, the legislature, through a broad interpretation of Art. 38, CORI, has created a body of legislation (Legislative Decree no. 124/11994), which led to a (moderate) development[36] of complementary social security (pension funds, often born out of forecasts of collective bargaining at a category level and not at a corporate level) under the supervision of a public authority (COVIP) in order to avoid or reduce the risk of default.

As part of the constitutional prerogatives (Arts. 117 and 118, CORI), some local communities with statutory autonomy have established pension funds of limited discretionary scope.

At the same time, with a certain degree of homogeneity has been regulated the development of the so-called 'third pillar', i.e. forms of private savings for retirement purposes (mainly based on insurance policies). Both forms have (more and more modest) tax incentives at the individual level.

The above-mentioned social security protection model obviously does not exclude workers who are non-EU nationals; of course, if they leave the Italian territory (and as long as they do not move to work in another EU country), to obtain the pension benefit (i.e., the financial capital corresponding to taxes paid in Italy) they have to achieve the retirement age (subject to constant adjustment, based on the demographic indicators of life expectancy).

As for the Italian workers hired to work abroad, in non-EU countries with which Italy does not have bilateral social security treaties, the ruling principle is that of extraterritoriality of the Italian system (considered the most protective), implementing the provision of Art. 35, CORI (Law no. 398/1987, issued after the CCRI ruling no. 369/1985).

The coexistence of these two approaches in the Art. 38, CORI (principle of expansive solidarity, from a professional category to a larger number of subjects, and principle - trend - of universality, typical for social security models) has led to the development of a model focused on the situation of need upon the occurrence of certain events that limit the person in the enjoyment of a free and dignified life.

This strong emphasis on personalistic element has marked - and still marks - the rationale for each intervention of the legislature (and consequently of the CCRI, if called upon to make the assessment of legality of the legislature's decisions).

 Here lie the foundations of a series of remarkable protective measures:

• cash benefits in the event of partial or total unemployment (with an attempt at standardization of the discipline - Law no. 92/2012 - which introduced the ASPI measure (which can not be universal in character, as it is still tied to a minimum contribution requirement);
• measures for disability/incapacity, both for the workers and for the non-workers;
• measures of economic support for the elderly in poor economic conditions (social allowance, social card, tariff reductions);
• cash benefits in case of ordinary sickness, occupational disease or injury (managed by the National Institute for Occupational Accidents - INAIL);
• protection of the survivors, both in case of natural death and that for work-related reasons (INAIL), albeit with some difficulties for undocumented workers and their families);
• measures to support the family burden: household allowance; allowance for the third child (the Government announced the introduction of a special allowance for birth, from the first child born into families with low and middle income).

In general, the subjective scope of the protections provided by the Italian social security system may be judged as somewhat stabilized in its expansive force; however, in the background remains the large latent phenomenon: lack of access to the system by the younger generations (Italy's youth unemployment rate is over 50%) and demographic prospects that see a steady decline in new births (now chronically overtaken by deaths), with the variable (perhaps not unexpected) component of non-EU origin of a considerable part of the new born (although with strong critical issues relating to the difficult access to the citizen status, with jus sanguinis prevailing in the Italian system).

Separate discussion (created pursuant to Art. 32, CORI) must be dedicated to the national health system (SSN) that sees an increasing involvement of the local communities (regions) in the choices (and related liability).

The universal nature of the protection (not related to insurance records, but based on a mix of funding from general and special taxation and participation - with a significant objective and subjective scopes of exemption - of individual health services provided in the costs) is a major crisis (representing about 90% of the costs of the regions, including explosion of spending on medical drugs in the last twenty years)[37].

The government has imposed austerity measures, but it is very difficult to implement efficient monitoring that could lead to swift changes in the deeply rooted behaviour. Instead, aside from some patchy situations of excellence, there are 'endemic' problems of long waiting time and functional and organizational inefficiency.

The scenario could definitely change (probably for the worse for the economic and financial balance of the system) once the mechanism of the European cross-border patient mobility becomes fully operational (Directive 2011/24)[38].

Of course, access to the health care system is open even to non-EU citizens, without sensitive discrimination (especially with regard to essential services and emergencies).

Thanks to the social partners’ initiative, collective bargaining has long since introduced some form of collective insurance cover dedicated to the workers and their families, in order to ensure timely and efficient healthcare services offered by the private healthcare sector.

As regards the scope of the so-called ‘social welfare support’ (protections not based on years of contributions and/or dedicated to situations of need or social problems), we must note that the measures in this regard, while focusing on the principle of freedom/subsidiarity (horizontal), as per Articles. 38, 117 and 118, CORI, see a coexistence of public (primarily INPS, but we also see a strong impetus from local communities) and private subjects (belonging to the so-called third sector: associations, foundations, etc.). In this regard, we'll point out that Italy has more than twenty years ago adopted a framework law on volunteer activities (Law no. 266/1991), involving a huge number of people; Such solidarity network (which often intercepts and captures the new individual and social needs, and pushes for the recognition (even legal) of new rights is a really valuable asset to the Italian society, inspired by several (but not conflicting) religious, cultural and ideological directions.

In Italy, as in the rest of Europe, there is an open debate on the need/opportunity to introduce a measure of integrated financial support (with measures of active employment policy), a universal measure (so-called basic income **** BRONZINI et al)[39] which limits the risk of social exclusion.

Recently (2013) the Government has introduced a measure devoted to the so-called NEET (under the European Youth Guarantee program): the data currently available do not show any significant progress in a strategy that - it must be said - is just at its beginnings (and with a considerable delay).

Ultimately (and without getting into the known classification of distinctive social rights as 'conditional rights' or 'unconditional rights')[40] one could argue that talking of "material and personal social security rights" might seem like a stretch, as such term is borrowed from the international law (in particular, the immigration law).

Perhaps it is possible, under the social security law, to grasp the dual aspect: their strong correlation to the essential characteristics of the person, and their basilar nature for a free and dignified existence (which does not mean that they are necessarily measured by a simple ruler of minimum standards).

It is clear that, in times of economic crisis such as those which trouble the people of Europe today, the policies of progressive reduction of social spending bring out the question of identifying the 'red lines', overstepping which will push the social security rights to lose their full features.

 

4. CONSTITUTIONAL GUARANTEES OF SOCIAL SECURITY RIGHTS

4.1. The important role played by the Italian Constitutional Court.

In the first (expansion) phase, CCRI, inspired by the strong guarantee of the privileged status of social security rights (Art. 32 and Art. 38, CORI), played its role in achieving the objectives of social justice, giving great dynamism to the Italian social security system. Especially in the decisions referencing the principle of equality (Article 3, CORI), through 'additive' judgements, it has often extended the discretionary nature of protections (CCRI judgements nos. 103/1968, 108/1977, 369/1985, 880/1988, with regard to the protection of health and measures of social security and assistance, judgements nos. 137/1989, 476/1987, 332/1992, 171/2002, as regards the protection against accidents and occupational diseases).

With regard to the principle of equal treatment between men and women in the access to social security rights, CCRI has expressed adherence to the socio-economic patterns even in conflict with the evolutionary lines of the European Union law (on difference in retirement age for men and women, see judgement no. 123/1969, based on a vision of the role of women rooted in outdated prejudices; judgement no. 201/1972, based on the probability of women's widowhood being higher than that of men, a position, however, surpassed by the judgements nos. 587/1988, 189/1991, 450/1991 and 1/1992 which abolished preclusion of survivors from access to pensions conditioned to the retirement age requirements in the marriage relationship, in the light of the evolution of social custom and relevance of the protection itself). Similarly, a broad evolution has been seen in protecting the surviving children, using the concept of ‘family burden’ (judgement nos. 42/1999 and 180/1999, which give significant attention to the known instability of employment opportunities for Italian young people under the age to twenty; no. 164/1975, which gave access to the survivors protection to married children at the date of death of the deceased; no. 140/1979, which protected daughters in case of marriage after the death of the deceased. Both decisions are influenced by contemporary Italian reform of family law, moving it further and further away from the patriarchal modes.

Significantly, CCRI has never had to specifically address the problem of acquisition (jure proprio and non in jure successionis, renunciation of inheritance by a family member being irrelevant) of the right to survivors protection, as such solution is the result of interpretation of the common law of legitimacy, which has drawn a constitutionally oriented line without the need to cross-reference to the CCRI.

Another significant application of the principle of equality in terms of assessing the unjustified inequality of the disciplines related to differing protection schemes managed by different entities (generally not amenable to comparison, for constant orientation of CCRI) (e.g. judgement no. 202/2008), or in terms of the extension or reinforcement of some protection for pensions (judgements no. 822/1988 and no. 61/1999), or to ensure the most favourable treatment (in particular for calculation of pensions: judgements nos. 307/1989; 428/1992; 264/1994, 388/1995, 160/1971, 230/1974). Under the latter profile, because of the obvious implications for public finance, the legislature often has been forced to intervene with rebalancing rules of great technical complexity.

More recently, in the face of attempts by the legislature, driven by the urgency of the containment of public spending, to introduce drastic restrictive measures (obviously contrary to the principle of equality or recessive with respect to the already recognised guarantees), CCRI has interpreted - dynamically, through a continuous monitoring of regulatory changes made by ordinary judges as a common remitting - its role as guarantor of the principles, especially when the legislature has attempted to evade or paralyse the effects of previous decisions of the same Court (no. 283/1989, no. 418/1991, no. 240/1994, all containing rulings to stop and demolish the regulations elusive in terms of integration to the minimum pension; no. 134/1994, no. 246/1992, no. 20/1994, all relating to the aspects of the judicial process on the matter of social benefits clearly foreordained to severely limit the recognition of these rights by foreclosures, forfeitures and court costs regimes).

In the same vein, the Court also struck the abuse of the rules of authentic interpretation (judgements no. 246/1992 and no. 421/1995) or retroactive regulations (judgements no. 191/2005, no. 1/2006), all taken with a clear intention to evade the principles of protection.

A distinct interpretative line of CCRI's has proven more benevolent towards the need to limit spending on social services, enhancing the two-way character of the principle of equal treatment (judgement no. 429/2000, which has not assimilated rules on the accumulation of legal interest and the monetary revaluation index - instead effective for labour claims - for welfare benefits; no. 400/1999, which for the purposes of social allowance has ruled out the possibility of considering other situations of need, considering the prevailing needs those to contain public spending).

In particular, the two-way nature of the equality principle has, at times, permitted the Court to remove the unjustified privilege of a more favourable discipline over that given for comparison (judgements no. 62/1994, no. 219/1995, no. 421/1995).

A latent principle in the Italian constitutional system on the right to social security is the protection of legitimate expectations (this principle obviously has general value, but it assumes a fundamental importance for the gradually developing cases, among which those on legal relationship of the social security are perhaps the most important, having on their horizon the entire span of life - and not just work - of a person). According to CCRI, compliance with this standard did not have as a necessary consequence the inviolability of expectations (e.g. of maturation of requirements for access to a certain type of protection) and even social benefits in the course of their application: the legislature can intervene with pejorative laws on the pensions currently paid, provided this complies with the principle of reasonableness (judgements no. 349/1985, no. 822/1988, no. 211/1997, no. 416/1999, no. 446/2002).

Fewer decisions of CCRI are based on the principle of adequacy of social security benefits. In a first stage, the Court emphasized the corresponding nature of the social insurance; later (judgements no. 160/1974, no. 26/1980, no. 173/1986, no. 501/1988) it established the dynamic direction: proportionality and adequacy of welfare should exist not only at the time of the first payment, but must be guaranteed in future periods with respect to the change in the purchasing power of the currency, the so-called equalization, adopted by the legislature with various automatic or semi-automatic mechanisms, with heavy restrictions introduced by the Reform Act of 2011; recognition of the need for a mechanism for re-evaluation of the monetary value of social benefits has become an established element in the constitutional jurisprudence (judgements no. 497/1988, no. 141/1989, no. 156/1991, no. 78/1993, No. . 196/1993).stage

With reference to the problem of determining the minimum level of benefits ('adequacy' and 'sufficiency'), the Court has always shown respect for the discretion of the legislature, declaring the absolute immunity of the matter, with the only constraints being the balance with other rights guaranteed by the Constitution and the limits of financial compatibility (emblematic in this sense are the judgements no. 157/1980, no. 34/1981, no. 506/2002, no. 822/1988, no. 240/1194, no. 99/1995, no. 361/1996, no. 417/1996, no. 287/2004).

A new perspective for evaluating mechanisms for determining the minimum levels of social security benefits entered in play following the reform of Title V of the CORI; in particular, CCRI has been facing the problem of having to define the essential service levels concerning civil and social rights (judgements no. 283/2002, no. 88/2003, no. 423/2004, no. 50/2005, no. 120/2005).

With regard to the distinction between social security and social welfare support, the Court in its guidance grants the legislature a greater freedom of choice in the identification of combinations of disciplines and implementation of protection models, which can also be changed over time (judgement n. 31/1986); aware of the open nature of the protections provided for in Article 38, CORI, the Court has also played a role in the push to active the legislature in the new legal institutions in order to offer an expansion of the overall protection of the social security rights. In particular, we note the decisions on the recognition of the constitutional basis of the supplementary pension (judgement no. 427/1990, followed by later ones) and one on the preservation of the integrity of individual positions in the social security system, especially in retirement (called the aggregation mechanism, judgement no. 61/1999).

Albeit with some initial mistrust, the Court acknowledged that integration of the EU law into Italian state regulations (as long as directly applicable) is a natural consequence of the principles enshrined in Article 10, CORI (judgements no. 232/1989 and n. 160/1991); this approach was strengthened by the new text of Article 117, CORI, requiring the ordinary legislature, as well as local governments of the regions, to comply with the provisions of international conventions.

 

4.2. The opening to social security international standards

We have already made some references to the impact [41]of international provisions on the development of Italy's legal system of social security rights. The evolution of the CCRI jurisprudence in terms of verifying the implementation of the provisions contained in this type of rules has not been linear. In a nutshell, and without any pretence to a systematic and complete analysis, we can give some examples of the ongoing dialogue - with regard to social rights - between CCRI and supranational control organs.

° with the Strasbourg Court (ECHR):

CCRI (in the first phase and up to 2007) has consistently held a restrictive position: ECHR decisions are not binding on the Italian Constitutional Court which is responsible for the assessment (independent and originating) of compatibility of internal rules considered by the ECHR differing with respect to international standards with the CORI. Those internal rules, however, as assessed by the ECHR, could not be automatically waived by the Italian court. A detection of differences could represent, at most, a reliable basis for an interpretation consistent with compliance with those obligations. However, through two fundamental judgements (no. 348 and no. 349 of 2007)[42], as a result of the new wording of Article 117, CORI (2001) CCRI imposed an obligation on any legislator of the Italian Republic (both national and local) to comply with the standards contained in international conventions (and therefore also in the ECHR); consequently, a domestic provision incompatible with the international obligations is automatically contrary to the constitutional principle (Art. 117, CORI). The current legal mechanism, therefore, sees international standards as an interposed standard that must be referred to by CCRI to assess the degree of compatibility with the CORI. Further consequence is that the court is required to interpret the national domestic rules in conformity with the said constitutional principle (i.e. constitutional interpretation); where this is not possible, the ordinary judge is obliged to refer the conflicting matter to the CCRI, with a reference to the parameter of Art. 117, CORI.[43]

A further enrichment of the framework (in constant evolution, for the natural attitude of the ECHR regulation-standard to provide a vehicle for the legal issues of great depth in terms of social rights) will be offered when Protocol 16 ECHR will become operational, which will allow national courts of the last instance to ask for an opinion (non-binding but authoritative and certainly such as to promote - in advance - the harmonization of the dialogue between the courts) of the ECHR; it is hoped that the Strasbourg Court will enact guidelines similar to those adopted by the CJEU in Luxembourg.

° with the Court of Luxembourg (CJEU):

the importance of the issue is in the obligation to disapply the national legislation contrary to the directly applicable EU law (Treaties and Regulations, with so-called direct horizontal effect). On this point, the CCRI has sometimes been found to disagree with the Court of Justice of the European Union (CJEU). In a first stage, the CCRI, while recognizing the primacy of EU law, considered that this assessment was restricted (Art. 11, CORI) only to the Court and not to the ordinary courts (see judgements no. 187/1973 and no. 232/1975). In a second stage it has changed this approach and granted the ordinary courts a prerogative to determine what is the prevailing norm, always subject to the possibility of returning to the CCRI (for violation of Article 138, CORI), even against the EU regulation if it violates the fundamental principles of the CORI.

An acceptable degree of arrangement on the matter was reached by two judgements in 1989 (no. 232 and no. 389), which recognized that the inclusion of directly applicable EU provisions in the Italian regulations is the natural consequence of their origin in an external source, whose constitutional principle is laid down in Article 10, CORI. In case of a conflict between an internal standard and an EU provision, the only remedy is non-application by the national common court. This solution is also applicable to interpretative decisions of the CJEU and unconditional provisions of directives (CCRI judgements no. 113/1985 and no. 168/1991). In any case, CCRI reserves, by assessment, the internal implementation discipline if the interpretation and application of EU law does not result in a conflict with the fundamental principles of the CORI or no inalienable rights of the human person are violated (see CCRI judgement no. 509/1995).

With regard to the provisions contained in directives (even if they contain unconditional and sufficiently precise provisions), there is an established position (CCRI judgements no. 113/1985 and no. 389/1989) under which they are provided only with an effective vertical (i.e. in respect of the Member State and not between private persons). This approach has the following consequence: ordinary courts, when a dispute between private parties finds a contrast between an internal regulation and a provision of a directive, will have to raise the question before the CJEU; if it recognizes this contrast, the effects of its judgement will be limited to a single case, although it can take the interpretation offered by the CJEU as an interpretative parameter of the national standard. The private party will ask the state for damages resulting from the infringement of the obligation to implement the Directive.

 

° with the European Committee of Social Rights (ESRC) under the legal system of the European Social Charter:

As already commented, a growing importance is played by [44]the dual role of the ESRC in the evolution of the[45] European legal space. In the Italian experience, beyond the formal ratification of both the European Social Charter (ESC) that the revised Protocol on collective complaints, except for an occasional reminder of their style in some of CCRI's decisions, one cannot say that enough of the mechanisms provided in the ESC system has been implemented. It is hoped that, just in the wake of the new issues raised by the effects of the economic crisis, we will see a beginning of a constructive dialogue between the Committee and the CCRI. Particular attention is drawn by bilateral international agreements[46] in the field; it should be noted that only in the last thirty years, Italy has become a country of immigration and is no longer (for now ...) merely a country of emigrants.

 

5. THE FUTURE OF SOCIAL SECURITY RIGHTS UNDER THE ITALIAN CONSTITUTIONAL STANDARDS IN TIMES OF ECONOMIC CRISIS

Answering this question, one must be realistic: the future of the right to social security in Italy will follow a line of progressive containment, essentially objective in scope (size of pensions paid by public entities); it's not a secret thought that the discretionary nature will also be influenced by the legislature's choices (Law no. 214/2011)[47]: the retirement age will continue to grow (based on demographic indexes)[48] and therefore fewer and fewer people will enjoy the old-age pension (retirement based solely on years of contributions is formally abolished).

A special mention must be given to the painful story of hundreds of thousands of people (the so-called ‘income-deprived’, or rather: ‘unprotected’, regarding the innovations brought by the reform of 2011) who, on the basis of collective agreements, quit their jobs, trusting to be eligible for access to pensions, and now find themselves without any income (neither work, being too elderly to be attractive on the labour market, nor pension, as their situation 'froze', in some cases also for the next ten years). The Government and Parliament have attempted to provide a solution (yet incomplete, for obvious reasons related to the austerity policies) to this difficult problem; the phenomenon is of such a size (also because caused by a mix of careless analysis of the social impact of the reform and fear of the Sword of Damocles placed over Italy by the well-known protagonists of the new form of supranational governing) that it deserves a compatibility check by a neutral assessor, such as the ESCR. It foreshadows a collective complaint on the heels of those who have affected the reform adopted in Greece.

It should also be noted that the law on pension reform (Law no. 214/2011) is actually the result of a conversion (in just three weeks and without any real parliamentary debate...) of an emergency decree (Decree-Law no. 201 / 2011, with the emblematic title: ‘Salva Italia’, save Italy...) suddenly issued by the current government (the experience was borrowed from the Decree-Law no. 384/1992, with which was denied the access to only contributory old-age pensions, due to the risk of default related to the first episode of speculative attack on the Italian public debt).

It should not be concealed that CCRI (on another occasion, to be precise) did not forget to criticize the use of "relaxed recourse to emergency decrees in such delicate matters (judgm. no. 220/2013 and no. 20/2012)[49], but it is to be assumed that, if the question is raised (if only after three years...), the Court would find an excuse to the work of today's Government (and Parliament) (as it already has in judgement no. 127 / 2014, concerning infringement of Articles 117 and 118, CORI on the questions raised - from a different angle - primarily from local communities with statutory autonomy)

 

5.1. Threats to social security rights in times of economic crisis

As mentioned above, the search for the delicate balance between the guarantee of social security rights and needs of restriction (containment) of public social expenditures may be affected by the recent constitutional reform of Art. 81, CORI.

The changes to the formula introduced not only the principle of a balanced budget, but also the prohibition of borrowing (except for the reasons set out in an exhaustive list).

This reform is undoubtedly likely to compress the effective protection of social rights both at the state and local levels: it will assess the impact that the new wording of Art. 81 will have on the jurisprudence of CCRI in its review of the reasonableness of the balance between "the principle of a balanced budget" and protection of social rights operated by the legislature, in conceiving and enacting individual acts. [50]

Following a realistic approach, it seems unreasonable to argue that in the future CCRI ought to deviate from its tradition, briefly described above.

It should however be noted that CCRI has (many years ago, actually, but the financial crisis of welfare system was the talk even then ..) stated that "In particular, we can not allow a statutory amendment which, occurring either at an advanced stage of the employment relationship or already in the state of quiescence, without any mandatory requirement significantly and permanently pejorates a previously payable pension, thus resulting in irreparable frustration of legitimate expectations nourished by the work for the time after the termination of their employment" (judgement no. 822/1988).

In addition, in the same judgement, CCRI has specified that "other reasonings are of secondary importance, such as generation of tax revenue [...] as well as the successful raising of the retirement age, adjustment of pension and increase in minimum benefits, together with the need to contain pension costs: reasons such as these do not justify the curtailment of pension to the detriment of those workers who have contributed their efforts, for the whole or in part, in the legitimate expectation to achieve an adequate pension". In fact, "shall apply the principle of guaranteeing social security, which is also embedded in the Constitution (Art. 38), as well as the undeniable reasons of social justice and equity, for which reasons the reforms or actions may not be permitted that result in damage to categories of workers in general and, more particularly, those who are close to retirement or are already retired".

Therefore, in the opinion of the Italian Constitutional Court of the generation prior to the current one, although it is possible that the legislature intervenes with legislative changes that provide new requirements for access to pension, surely the same rules should adopt measures necessary to define the position of who has in the meantime ceased to work, because he or she has met the requirements prior to the reform.

As stated by CCRI, the legislature can not intervene in an advanced stage of the employment relationship or even when, as has happened in several cases under consideration, the person was already retired, undermining and decidedly worsening the retirement position in respect of pension previously payable.

We are not sure that today CCRI would respond to the same question with quite the same words.[51]

In the case law of the CCRI other significant statements can be found on this matter.

With the sentence quoted above, which, in fact, is considered as the leading case of constitutional jurisprudence, the Court stated that "in our constitutional system, the legislature may enact regulations that adversely alter the regulation of long-term relationships, even if their object is made up of perfect individual rights [...]. These provisions, however, like any legal precept, can not translate in an irrational regulation and arbitrarily affect substantial cases brought by the previous laws, thus also worsening citizens' trust in public security, which is a fundamental and indispensable element of the rule of law (see judgements no. 36 of 1985, no. 210 of 1971)".

Therefore, the Court concludes that "Although legislative actions that change public regulations on pensions must be considered permissible, we can not, however, admit that such actions are absolutely discretionary".

It is not however, in the very serious present day, guaranteed that CCRI recognizes among its parameters that, in truth, has been identified very clearly in judgement no. 822 of 1988: the protection of the principle of trust, even if only in the right of access to social security benefits (pension); in essence, we are confident that CCRI reaffirms that the impassable limit of the legislature is to not annul the recourse requirements which the protected person was convinced to have met and to have secured for his/herself the right to a certain social benefit. This parameter will have vital importance in all situations in which the legislature's attempt to save on social spending will (as has already been brought by Law no. 214 of 2011) put a number of obstacles so detailed and complex as to make it virtually impossible for many people to have access to a retirement pension.

It should however be noted that recently, on the subject of solidarity contribution from higher pensions (in particular those of managers, senior public managers and judges), CCRI, in its judgement no. 116/2013, declared the unconstitutionality of the levy[52].

Even more delicate issues are contemplated in all cases in which the economic value of the reduction or the amount of pension casts a doubt upon compliance with the constitutional principle of 'means appropriate' to the needs of life, as established in Art. 38, CORI.

For example, the Court of Palermo, Employment Division, by order dated 6 November 2013 has raised the issue of the constitutionality of Article 24, paragraph 25, of the Legislative Decree no. 201 of 6 December 2011, converted into Law no. 214 of 22 December 2011, to the extent available, for the 2012-2013 period, the block of automatic equalization of pensions amounting to more than three times the minimum INPS (€ 1,441.58 per month in 2012, and € 1,486.29 per month in 2013, before tax).

The legislature of the 'crisis' has set a decidedly low-end income that has strongly affected more than six million retirees who, in the face of constant loss of purchasing power of the currency, which has long been recorded in the country, have seen their pension benefits impoverish even further, against all logic and in defiance of their constitutionally protected rights.

From the moment when the above pension holders undergo, by law, the automatic revaluation block, they bear a financial loss of considerable scope that is not only imminent, but also for the future, in the absence of any provisions for recovery in the subsequent years, will continue bringing losses, without interruption, endlessly and so far as to affect the extent of survivors' pensions, and the benefits that the survivors can expect will be substantially reduced in respect of the real value of pensions, which appears manifestly unjust and irrational since it ignores inflation's objective impact on income, with serious repercussions on the economies of families. Hence the doubt as for the constitutionality of the regulations in consideration, since they would be detrimental to some of the principles enshrined in the Constitution, particularly those of the "adequacy" and "proportionality" protected by Articles 3, 36, paragraph 1 and Article 38 paragraph 2, CORI.

The question is whether any of the Italian policy makers have comprehensive awareness of the commitments made at the time of signing and ratification of the revised European Social Charter (1996) and its Protocol on collective complaints; recent positions taken by the European Committee of Social Rights against Italy (I'm referring to the warning on inadequacy of economic levels of protection highlighted with reference to the minimum pension and disability benefits contained in the 2013 Report on Italy; in perspective it is not possible to exclude a path similar to that followed by the pension reform in Greece, with respect to a significant number of people at risk of social exclusion further penalized by the Italian reform of 2011).

In particular, one wonders whether anyone in Italy has been questioning the nature of the commitment (compliance with the European Code of Social Security) taken at the time of signing and ratification of the revised European Social Charter (1996), in terms of non-regressivity of social policies.

With regard to the assessment of the future of social security rights, it's quite a common impression that social rights (and not only in Italy) are slipping more and more towards the area of human rights tout court[53] (which could mean, given the trend to evaluate them according to the logic of minimum standards, that the dream of the Constitution’s legislators based on the idea of welfare is definitively waning...) and that now in the limelight are the so-called "new rights" (so-called "third generation rights", such as for e.g., the right to proper use of Information Communication Technology[54])[55].

 

5.2. A look at the scenario. A meta-right: the right to take advantage of rights.

The problem of social exclusion, as a de facto denial of the recognized rights (civil, political, social, economic, cultural), this 'new emergency', seems to be able to draw increasingly significant legal attention, which in fact also refers to the aspects of the law (in the subjective sense meant not only for rendering of specific services, but for living in way that fully corresponds to the objective of human dignity) independently, that is, from the point of view of "full development of the human person" (Art. 3), and expression of the same human personality (Art. 2) to be impossible and to nullify the recognition and guarantee of fundamental human rights and to achieve equal social status.

Recognize and guarantee the inviolable rights to those who are marginalized or socially excluded is simply and hypocritically a flatus vocis.

Those who are socially outcast, while their rights can be recognized and protected, must be able to take advantage of those rights.

Hence a precondition right: the right to take advantage of the rights, which in Art. 12 of the Swiss Constitution of 2000 is proclaimed with a pragmatic formula as "right to assistance in cases of need": "those in need and unable to provide for themselves have the right to be helped and assisted and to receive appropriate means for a dignified existence".

Is it perhaps difficult to construct this 'new' way of conceiving[56] the right to social security in the Italian constitutional context on the basis of the expectation that "fundamental duties of political, economic and social solidarity be fulfilled" per Art. 2, CORI and bearing in mind the "equal social dignity" mentioned in Art. 3, CORI?

The sign of the acquired, express relevance of such a 'precondition' right, such a primary and fundamental right, is offered today generally by Art. 117, paragraph 2, letter. m), CORI, that, in listing the exclusive competence of the state legislature, requires "determination of the basic level of benefits relating to civil and social entitlements to be guaranteed throughout the national territory".

It is a law conditioning the guarantee of other rights, a meta-right, and at the same time a "right to minimum conditions of existence". Today it is certainly not enforceable (but maybe with more chances of success in the future), but can receive effectiveness from positive institutions, subject to testing proposals, such as the "minimum income guarantee" or that of "citizen's income" [57]which have already seen, under Italian law, a partial attempt at implementation through Legislative Decree no. 237/1988 and later by Art. 23 of Law no. 328/2000 - discipline of the integrated system of social services - which deferred to a subsequent legislative act the determination of the terms and resources for the extension of the RMI institution as a general measure to combat poverty, which represents the central values/non-values which regroup other work income support), and again as in the case of the so-called social card, issued to residents of Italian nationality who are in conditions of need (Art. 81, paragraph 32, of Leg. Decree no. 112/2008, converted into Law no. 133/2008).

In this evolutionary scenario we also ought to point out the explicit recognition (and effective compliance) of the "right to social and housing assistance" contained in Article. 34, paragraph 3 of the Charter of Fundamental Rights (CFREU), "to ensure dignified care to all those who lack sufficient resources ... " and "in order to combat social exclusion and poverty".[58]

Consequently, the European Parliament on 20 October 2010 adopted a "Resolution on the role of minimum income in combating poverty and promoting an inclusive society in Europe" (2010/2039 (INI))[59]. The same perspective is raised by the judgement of the German Constitutional Court on 9 February 2010, which declared unconstitutional a part of the Hartz IV system, calling it "unreliable" for the selective parameters adopted.

And - at least to the interpretative, if not supplementary effects - an explicit recognition that allows more comprehensive and adequate interpretation of this "right to welfare support" that Article 38, CORI recognizes as a right of "every citizen unable to work and without the necessary means of subsistence".

In conclusion - and at a glance - in the dynamic perspective of the rights-values, it can be said that a right, even if in the early stage of its grounding it is not accompanied by instruments of judicial defence (individual or collective), can still be fundamental in the ability to link to the core values spread throughout the legal system, and to stimulate a strong cultural and political pressure, which ends up... remodelling its formal and substantive quality.

A fundamental right-value transcends, in this sense, both the dimension of constitutional law (in the sense of recognition/guarantee at the hands of formal constitutional provisions), and the constitutional and legislative dimension, the structure/discipline of an individual right and a protected interest[60].

Considerations such as those above can not therefore be in contrast with the lines of development [61]of the supranational institutions: the commitment made by EU Commission (from the Impact Assessment Guidelines - SEC (2009) 92, according to an ever more effective Roadmap) to include in the process of formation of its initiatives a (hopefully increasingly) specific impact assessment (economic, social and environmental) shows that the objective of creating a 'social Europe'[62] has not disappeared, even in a crisis like the current one.