Italy, Court of Cassation, 29 April 2016 8565/2016

Identification of the case

• Articles 3-36-38 Italian Constitution
• Article 7 638/83 Law
• Italian framework agreement related to the Directive 97/81/EC

• Directive 97/81/EC

Summary of the case

Since 4 January 1986, Mr. XXX had been an employee of Alitalia s.p.a. with duties of a flight attendant and, like the rest of the staff, enrolled in “Fondo Volo”, a special fund of the national security body (INPS). On 1 March 1995, he transformed his employment relationship from full-time to cyclic vertical part-time according to Article 5 of law 863/84. Later, he discovered that INPS recognised as pension contributions of part-time jobs only the hours worked and not the entire seniority contributions (52 weeks). Mr. XXX claimed that INPS applied an unmotivated different treatment of pensioners to cyclic vertical part-time employees compared to horizontal part-time employees (to which the entire seniority contributions of 52 weeks were recognised). Therefore, he argued that INPS applied a discriminatory treatment between workers in contrast with Articles 3, 36, and 38 of the Italian Constitution and Directive 97/81/EC. He took legal action against INPS before the Tribunal of Rome, seeking recognition of the discrimination and, consequently, due pension contributions. The Tribunal of Rome rejected the claim. Mr. XXX then brought the case before the Court of Appeal of Rome. The Court granted the claim recognising the right of Mr. XXX to obtain the total pension contributions. INPS took legal actions before the Court of Cassation against the Court of Appeal of Rome’s judgment.

• Civil judicial enforcement

Rejection of INPS’ claim and confirmation of the Court of Appeal of Rome’s decision.

Under Article 234 EC, the Court of Appeal of Rome (in previous case law that represents the legal basis of the present motivation) asked the Court of Justice:

1) Whether the calculation of only the worked hours of part-time employees with the purposes of pension contributions according to Italian law (Article 7 l. 638/83) was in contrast with directive 97/81/EC and, consequently, the related Article 4 of the Italian framework agreement concerning the non-discrimination principle; 2) Whether the Italian law (l. 638/83) was in contrast to the necessity to remove obstacles to a part-time job according to the directive 97/81/EC and the related Italian framework agreement; and 3) Whether the non-discrimination principle mentioned in the Italian framework agreement can include even the different categories of a part-time job.

The Court of Cassation judged INPS's claim to be unfounded due to substantial procedural flaws and an erroneous interpretation of the national social security and labour law and related case law (that are not relevant for the purposes of this summary and thus this will not be analysed). Moreover, the Court of Cassation recalled that a previous case (Court of Appeal of Rome, order 11 April 2008) was brought before the Court of Justice to request a preliminary ruling under Article 234 EC concerning the interpretation of the directive 97/81/EC and, more precisely, the same pension seniority of cyclic vertical part-time Alitalia s.p.a.’s employees.

The Court of Appeal of Rome asked for three questions: 1) Whether the calculation of only the worked hours of part-time employees with the purposes of pension contributions according to Italian law (Article 7 l. 638/83) was in contrast with directive 97/81/EC and, consequently, the related Article 4 of the Italian framework agreement concerning the non-discrimination principle; 2) Whether the Italian law (l. 638/83) was in contrast to the necessity to remove obstacles to a part-time job according to the directive 97/81/EC and the related Italian framework agreement; and 3) Whether the non-discrimination principle mentioned in the Italian framework agreement can include even the different categories of a part-time job.

The Court of Justice (C-395/08 and C-396/08) clarified that the above-mentioned Italian legal framework had the aim of eliminating the discriminations against part-time workers according to Directive 97/81/EC. Moreover, the Court of Justice highlighted that the Italian framework agreement mentioned the principle of pro rata temporis. It is recognised as a proportionate reduction of pension contributions expectations (as confirmed in Schöneit and Becker C-4/02 and C-5/02 and Gómez-Limón Sanchez-Camacho C-537/07). Concerning Alitalia s.p.a. part-time workers’ pension contributions, the Court of Justice affirmed that it is necessary to apply the non-discrimination principle between part-time and full-time workers by recognising same contributions period for part-time workers as for full-time workers (considering even the non-worked hours). It is necessary to interpret the Italian legal agreement to mean that national provisions excluding the recognition of pension contributions for the non-worked period to cyclic vertical part-time are forbidden, in lack of justified different treatments. The Court of Justice considered the fact that part-time workers obtained the recognition of pension contributions in a more extended period compared to full-time workers to be discriminatory. Finally, the Court of Justice considered that, under the principle of the prevalence of European law over national law, Article 7 of l. 638/83 had to be interpreted in the light of the principle of non-discrimination.

The preliminary ruling C-395/08 and C-396/08 was the legal basis of the Court of Cassation’s judgment.

Role of the Charter and role of the general principles on enforcement

• Article 3 of the Italian Constitution: the principle of equality
• Article 36 and 38 of the Italian Constitution: workers’ rights
• Italian framework agreement concerning the directive 97/81/EC about non-discrimination principle between workers

Elements of judicial dialogue

• Direct dialogue between CJEU and National court (preliminary reference)

• CJEU, C-395/08 and C-396/08
• CJEU, C-4/02 and C-5/02
• CJEU, C-537/07

Preliminary reference.

Conform interpretation with EU law as interpreted by the CJEU.

Disapplication of national law in favour of EU law.

To interpret national law according to European law.

Additional notes on the decision

This decision shaped other law cases concerning social security law for part-time workers (more precisely, cyclic vertical part-time).

The judgment has its grounds in a previous ruling of the Court of Appeal that requested a preliminary ruling under Article 234 EC before the Court of Justice. The Court of Cassation's motivation is based on the recalling of the related judgment of the Court of Justice.