In recent weeks the administrative courts of some Italian regions have been called to decide on the following question: whether a regional law that adversely affects regional councillors’ entitlement to life annuity is legitimate, or whether the annuity falls under the so-called “acquired rights”.
By means of a regional law (as allowed by Legislative Decree October 10, 2012, n. 174), many Italian regions have, in fact, increased the minimum age for obtaining the end-of-service annuity cheque from 50 to 65. Due to the economic crisis some regions have also imposed an additional “solidarity contribution” on cheques which were already being paid.
Lazio, Molise, Trentino Alto Adige, Lombardy, Basilicata, Abruzzo and Piedmont have already done so by passing a regional law, while others have drafted a law proposal which is now under discussion.
However, some Regional Councillors, stating that life annuity falls under the so-called acquired rights, have announced their intention to refer the matter to the Italian Constitutional Court, or they have chosen to appeal to the Administrative Court of their own region against the provisions which they consider to be detrimental (forty appeals have already been submitted in Trentino alone).
Acquired rights are rights that become immutable since they are linked to well established legal situations, so any subsequent changes in the law, which are detrimental to the treatment provided by the previous laws, cannot in any case affect the well established right of the person holding it.
Scholars and case law have not yet found a common point of view regarding the effective consistency of such subjective situations: indeed, while the scholars have always sustained their unassailability, building on the principle of non-retro-activity of the Law to guarantee legal certainty and protection of the good faith of the recipients; case law, on the contrary, has always allowed the change of acquired rights – or of those rights whose effects are intended to last over time – if the change of the social and economic situation so require.
According to the Constitutional Court – with due regard to the principle that a new law may provide only for the future – the laws whose effects can be retrospective are also constitutionally legitimate whenever a situation, albeit already governed by previous laws, should be revisited for superior reasons.
The legislator can indeed issue retroactive norms “provided they are adequately justified in terms of reason and do not conflict with other constitutionally protected values and interests, so that they do not arbitrarily affect the substantive situations created by previous laws […] if these conditions are met, retro-activity by itself, cannot be considered to amount to a defect of the law, not even with reference to the specific case of impact on rights of economic nature” (Constitutional Court 385, 1994).
That said, if the reason of the new laws concerning life annuities of regional councilors is to cut public spending and limit the preferential treatment of politicians, in a time of major economic crisis which is now afflicting Italy, there seems to exist the precondition for reasonableness, as required by the Constitutional Court.
However, the fate of the regional laws on life annuities will only be known in the coming months, when the administrative courts will decide whether to refer to the Constitutional Court, or to decide themselves –and in what terms- on the merits of the case.
(Trieste Office – Alberto Pasino – 0039(0)407600 281)
