The Constitutional Court has declared unconstitutional Article 6(2) of Law 604/1966, where does not recognize filing of an interim injunction (ante causam) as able to interrupt prescription
Constitutional Court, Judgement no. 212 of 14 October 2020
A worker may challenge the transfer – as well as other measures taken by an employer that are subject to prescription – even if it is only by means of an injunction, pursuant to Articles 669-bis, 669-ter and 700 of the Italian Civil Procedural Code, prior to the ordinary case being brought.
Thus decided the Constitutional Court, with Judgement no. 212/2020.
The case concerns an employee who promptly appealed his transfer out-of-court, and within 180 days thereafter judicially, by filing an injunction ante causam ex art. 700 of the Italian civil procedural code.
The defendant company filed an appearance, contesting, among other things, the intervening prescription pursuant to art. 6(2) of Law 604/1966.
As is well known, in fact, the aforementioned provision provides for the ineffectiveness of the out-of-court challenge if not followed, within 180 days, by the filing of a claim or request for arbitration or mediation.
In this regard, according to the consolidated interpretation of the Court of Cassation, an injunction ante causam is not sufficient to prevent the right to such an appeal prescribing.
The Court of Catania, hearing the matter in first instance, raised the question of constitutional legitimacy of Art. 6(2) of Law. 604/1966 «in the part in which it does not provide that the out-of-court challengel referred to in the first paragraph of the same provision is ineffective if it is not followed, within one hundred and eighty days, in addition to the requirements specified therein, also by the filing of an injunction ante causam pursuant to Articles 669-bis, 669-ter and 700 of the Civil Procedural Code, for violation of Articles 3, 24, 111, 117, first paragraph, of the Constitution».
In assessing of the lack of manifest unfoundedness, the Court noted that the provision in question entails for the worker a «sanction excessively serious, disproportionate and unreasonable», as it is suitable to determine the paradoxical result of precluding the judge hearing the injunction from ruling on the applicant’s request where the deadline of 180 days expires while the trial is pending.
According to the Court, moreover, the said provision would render useless an injunction granted before the expiry of the period of forfeiture in the event that, within the same period, no appeal on the merits had been made or an attempt at conciliation or a request for arbitration.
Finally, according to the Court, the doubts of legitimacy raised are further corroborated, with regard to the inferred unreasonableness (ex art. 3 Cost.) of the censured rule, by the circumstance that for the purposes of the aforementioned term injunctions are not recognized, while extrajudicial acts (attempt at conciliation and request for arbitration) are expressly recognized.
The Constitutional Court, starting from this final observation, has analyzed the tools in favor of the worker, provided by the censured rule, to avoid prescription.
In this regard, the Council argues that where the power to suspend prescription is recognized in acts of an extrajudicial nature, such as the request for conciliation and arbitration, it must recognize the importance of a precautionary measure ante causam, with which the worker appeals directly to the judge.
The Constitutional Court has analyzed the rationale behind the rule, as amended by the legislator with art. 32 of Law no. 183/2010, from another angle: the need to bring to the fore quickly litigation against the employer’s act.
Also from this point of view, the Chamber has criticized the provision as contrary to the principle of reasonableness (Article 3 of the Constitution), since the request for an injunction is certainly appropriate in this case to challenge the employer’s behaviour.
In light of the above, with the judgment under discussion, the Council has declared the constitutional illegitimacy of Article 6(2) of Law No. 6. 604/1966 «where it does not provide that the appeal is ineffective if it is not followed, within one hundred and eighty days, not only by the filing of a claim with the court clerk or the communication to the other party of the request for conciliation or arbitration attempt, but also by the filing of an injunction prior to the case pursuant to Articles 669-bis, 669-ter and 700 of the Code of Civil Procedure».