Right to strike v. right to economic activity: striking the balance in Italy

Transcription

1 Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 4th Edition Right to strike v. right to economic activity: striking the balance in a globalized socio-liberal Europe? Italy Right to strike v. right to economic activity: striking the balance in Italy Prepared by: Alberto Maria Febbrajo 1

2 Right to strike v. right to economic activity: striking the balance in Italy Alberto Maria Febbrajo * 1. Introduction The right to strike and the right to economic activity have both been guaranteed by the Italian Constitution since it entered into force on January 1 st However, the right to strike notwithstanding the wording of art. 40 of the Constitution, stating that it «shall be exercised in compliance with the law» has not been the object of any specific regulation for over forty years, until Law 146/1990 «on the right to strike in essential public services» was adopted. During this period of time it was the Court of Cassation and the Constitutional Court who had a primary role in defining its content and the extent. The normative framework in which those two courts developed their case-law was however particularly unclear and to some extent incoherent. In fact, while the absence of a law regulating the right to strike made it difficult, on the one hand, to provide a concrete interpretation of Article 40, on the other hand, the Court had to deal with the application of some provisions of the Criminal Code which were the expression * PhD candidate, Comparative Constitutional Law, University of Salento; Visiting Scholar, Boston University School of Law. 1 According to Article 40 «the right to strike shall be exercised in compliance with the law», while article 41 states that «private economic enterprise is free. It may not be carried out against the common good or in such a manner that could damage safety, liberty and human dignity. The law shall provide for appropriate programmes and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes» 2

3 of the corporative culture of the previous regime and were therefore under many aspects clearly incompatible with the newly adopted set of constitutional values 2. With the adoption of Law 146/1990 there has been an attempt to set up a balance between the right to strike and the other fundamental rights that could be affected by it. A very important role in defining, on a case-by-case basis, this delicate balancing, was conferred to a new independent body, the Guarantee Authority, which inspired, with its indications, the further amendment of Law 146/1990. Today, although the right to strike has received a rather precise regulation, some aspects of its relationship with the right to economic activity remain unclear. More precisely, the boundaries between those two rights may be uncertain outside the field of the essential public services. The present work will be divided in three parts. The first one will deal with the evolving interpretation of the right to strike resulting from the case-law of the Constitutional Court and the Court of Cassation. In the second part, attention will be drawn to the statutory regulation of the right to strike, giving a brief description of the main provisions of Law 146/1990 and of the main innovations introduced by Law. 83/2000. Finally, the third part will provide some conclusive remarks on the criteria used in Italy to solve the conflict between right to strike and the right to economic activity in the light of the general principles coming from both case-law and legislation. 2. The right to strike and the courts: the doctrine of external limits 2 More precisely, the provisions of the Criminal Code incompatible with the constitutional right to strike were: articles 330 (collective leave of public offices, employments, services or works), 333 (individual leave of public office, service or work), 502 (lockout and strike for contractual purposes), 503 (lockout and strike for non-contractual purposes), 504 (coercion on Public Authority through lockout or strike) and 505 (lockout or strike for the purpose of solidarity or protest). 3

4 As mentioned, article 40 of the Constitution, which provides that «the right to strike shall be exercised in compliance with the law», has not been given full implementation for over forty years, during which, in the absence of a specific law on the matter, the normative content of the provision resided exclusively in its judicial interpretation by the Court of Cassation and the Constitutional Court. For this reason, some Italian scholars have observed that during this period it was as if art. 40 of the Constitution stated that the right to strike shall be exercised in compliance with caselaw 3. The situation was however confused on both cultural and normative level as some Criminal Code provisions from the previous fascist period, which were in clear contrast with the constitutional protection of the right to strike, had not yet been repealed. The approach of the judges to this incoherence of the legal system has been very cautious, reflecting the difficulties which are typical of every transition from one legal culture to another. As the Constitutional Court was not operative before 1955, the first interpretations of article 40 of the Constitution has been given by the Court of Cassation. In a very significant decision, the Court of Cassation held that: «The lack of legislation doesn t mean that the right to strike can be considered lawful only if exercised within certain limits and only if certain conditions are observed. [ ] The right to strike, as any other right, is subject to the limits deriving from the 3 L. Gaeta, Le teorie dello sciopero nella dottrina italiana. Una guida alla lettura, in Rivista Trimestrale di Diritto e Procedura Civile, 1990,

5 general legal system, which do not allow the violation of norms protecting other goods or interests» 4. By affirming that the right to strike is «subject to the limits from the general legal system», the Court has set an important interpretative criterion which has served as the basis for the future development of the so called doctrine of the external limits 5, which was fully accepted only in the 80, when the idea of a fixed pattern of strike, considering illegitimate every form of strike which doesn t meet some pre-defined conditions, was completely rejected. The characterizing feature of the first wave of interpretation of the right to strike was however to confine it within the framework of economical and professional relationships. The rules which were taken into consideration in order to assess whether the right was exercised in a legitimate manner were in fact those governing contractual relationships. After 1955, after it started to function, it was the Italian Constitutional Court that played the most important role in giving a legal content to art. 40 of the Fundamental Law. Under the interpretation of the Court, the right to strike encountered two major expansions of its scope of application. that: The first expansion took place in the 60s, when the Constitutional Court held «The Court considers groundless the assumption [ ] according to which strike should be lawful only when it is carried out within the frame of a conflict based on contractual reasons [ ]. Indeed, it is undisputable that there are interests which are 4 Court of Cassation, II division, decision n. 1628/ See O. Roselli, La dimensione costituzionale dello sciopero, Torino, Giappichelli, 2005, 64. 5

6 common to entire categories of workers. Those interests, because of their broad character, could be affected [ ] as soon as an individual worker or a limited group of workers are damaged» 6. This decision served as the judicial ground for legitimizing the so called solidarity strike, by enlarging the boundaries of the right to strike from mere economical interests to the «interests which are common to entire categories of workers». The second expansive interpretation of the right to strike can be found in two Constitutional Court decisions of According to the first one 7, the right to strike should be guaranteed also when its purposes fit into «the workers general economical interests», while the second one defined the right to strike in the following terms: The right to strike acquires constitutional relevance in a twofold direction: as a specific tool for the workers interests [ ] and as the expression of a freedom which can only be limited by provisions of criminal law, for the protection of constitutionally relevant interests. Strike is a tool [ ] which is able to favour the achievement of the purposes of art. 3 para. 2 of the Constitution [the effective participation of all workers in the political, economic and social organization of the country] 8. By declaring the unconstitutionality of art. 503 of the Criminal Code, which sanctioned the «lockout and strike for non-contractual purposes», the Italian 6 Constitutional Court, decision n. 123/ Constitutional Court, decision n. 1/ Constitutional Court, decision n. 290/

7 Constitutional Court held that the so-called political strike has generally to be considered legal, confining the possibility to declare it illegitimate to two rather improbable cases: when the political strike is designed to «subvert the constitutional order» and when the method used for exercising the strike consist in a form of pressure which hinders «the free exercise of those rights and powers whereby the people s sovereignty is expressed» 9. The constant development of new forms of strike 10 has led the Court of Cassation to develop a doctrine that identifies the limits of the right to strike in two notions taken from the field of private law: the unjust damage and the proportionality of damage. With its decision 711/1980, the Court of Cassation marked however a very important turning point in the definition of the right to strike, holding that: «Strike is a collective abstention from work, organized by a plurality of employees, in order to achieve a common goal. [ ] As a consequence, the setting up of any kind of measure has to be considered incompatible with the notion of strike. The illegitimacy of the so called anomalous forms of strike cannot be based on general clauses such as the good faith or the abuse of right. Therefore, the limits to the right of strike should be found in the rules that protect competing subjective positions, on a priority or equal level, and therefore the eventual illegitimacy of the strike should be ascertained by the judge on a case by case basis, according to the concrete ways of exercising the right to strike and also according 9 An example of this second case could be the hindering of free elections. 10 Among the various forms of strike, the most popular were the so-called surprise strike (without ant preventive notice), hiccup strike (series of short abstentions), and chessboard strike (alternation of abstentions of different groups of workers in different places). 7

8 to the concrete damages or dangers to which are exposed the right to life, the people s safety and the integrity of the means of production. [ ] Strike is per se legal, no matter what its form or the damage caused to production might be. It is on the contrary illegal when, by damaging or putting into danger the firm, it affects basic constitutionally protected interests» 11. This decision provides a broad notion of strike, which is incompatible with any kind of measure. Moreover, the Court fully embraces the external limits approach by affirming that the right to strike, whatever its form and the nature of the damage, is only subject to the limits inherent in the rules that protect competing interests on a priority or equal level. 3. The right to strike and the law: balancing rights in the frame of essential public services With the adoption of Law 146/1990 «on the right to strike in essential public services» 12 a more than forty years old legislative hole finally came to an end. The main purpose of the new regulation is to set up a balance between different fundamental rights. More precisely, as art. 1 of the Law points out: 1. For the purposes of the present law, by essential public services should be understood [ ] those who guarantee individual constitutional rights to life, health, 11 Court of Cassation, labor division, January 30 th 1980, n Law n. 146, June 12 th 1990, Gazz. Uff., June 14 th 1990, n

9 freedom and security, freedom of movement, social assistance and social security, education and freedom of communication. 2. In order to balance the right to strike with the individual constitutional rights at para. 1, the present law sets out the rules and the procedures to be followed in case of collective conflict, in order to ensure the effectiveness of the basic content of the mentioned rights, especially in the following services [ ]: a) in what concerns the protection of life, health, freedom and security of persons, of the environment and of the historical/cultural heritage: health care; public health; civil defence; collection and disposal of waste [ ]; customs, [ ]; supplying of energy, energy goods, natural resources, relief goods [ ]; administration of justice [ ]; services for the protection of the environment and vigilance on cultural heritage; b) in what concerns the protection of the freedom of movement: public transportation, as well as naval transportation only when linking to islands; c) in what concerns social assistance and social security [ ]: services supplying them, also through the banking system; d) in what concerns education: public education, with special reference to the need of ensuring continuity in nursery and elementary school services, [ ] and university education, with particular reference to final exams; e) in what concerns freedom of communication: mail, telecommunications and public broadcasting information. 13 The law assures the balance between the right to strike and the other rights listed in art. 1 by setting a special procedure to be followed for the abstention from work, establishing the duty to an advance notice and sanctioning both the workers suspending 13 Id., art. 1 para. 1. 9

10 their activity and the trade unions when the strike is carried out in ways and forms that violate the purpose of the law. A very important innovation introduced by Law 146/1990 has been the creation of a new body, the Guarantee Authority, which has been given the difficult task of establishing a link between the legal order and the social reality 14. The Authority, in fact, constantly updates the balance between fundamental rights by controlling, on a case-by-case basis, the concrete behaviour of the actors of the social conflict. The law also repealed two articles of the Criminal Code which were still in force despite of the fact that they had been drafted during the fascist regime and were clearly in conflict with the external limits approach to the right to strike: article 330 on the «collective leave of public offices, employments, services or works» and article 333 on «individual leave of public office, service or work». Following the indications coming from the Guarantee Authority and from the case law of the Constitutional Court, Law 146/1990 has been amended by Law 83/2000. The main features of the new law can be summarized as follows: 1) the development of free, spontaneous forms of prevention, cooling-off and moderation of conflicts; 2) the extension of the principles of Law 146/1990 also to the collective abstentions of selfemployed workers engaged in essential public services; 3) the strengthening of the role of customers, through their associations; 4) the broadening of the powers of the Guarantee Authority, which has now the possibility to intervene for preventing conflicts and for promoting advanced agreements in order to ensure essential services. 4. Final remarks The regulatory system which has been described so far is quite unique if analyzed in a comparative perspective. Its peculiar character comes from the fact that it 14 Id., art

11 is structured on different levels: the law sets up the general principles, while the social partners (i.e. trades unions and work councils, individual companies, industrial and professional associations) regulate the conflict within the legal framework provided; finally, the independent Guarantee Authority makes sure that the balance between constitutional values and rights is respected. As it has been observed 15, this kind of system applies the principle of horizontal subsidiarity, as the social partners are entitled to regulate the ways in which the right to strike shall be exercised, and the law will be applied only in case those regulations lack or prove to be inadequate. The specific purpose of the law raised the question whether the regulation of the right to strike has a broad application or is a specific discipline, confined within the field of essential public services. According to some Italian scholars, the statutory regulation of the right to strike has a special character and therefore, when essential public services are not involved, the general principles on the interpretation of article 40 of the Constitution shall apply 16. This view is shared also by the Constitutional Court, which has pointed out that: The provisions of Law 146/1990 are exclusively referred to the relationships between the right to strike and the personal rights of service users and citizens in general. It is excluded from the purposes of the law under examination the regulation of the relationships between the right to strike and the interests of the company per se, even in case those interests are constitutionally protected. The so called external limits of the right to strike [ ] are therefore relied on the rules and principles 15 M. Olivetti, L attività paranormativa della Commissione di garanzia di cui alla legge n. 146/1990, tra diritto dello Stato e diritto dei privati, in U. De Siervo (ed.), Osservatorio sulle fonti 1999, Giappichelli, Torino, 2000, E.g., A. Pilati, I diritti di sciopero, Cedam, Padova, 2004,

12 developed on that matter by case-law [ ] with special reference to the productivity of the company, understood as the protection of the integrity of the structural and material elements of the undertaking s organization 17. Although there is a tendency to broaden the meaning of essential public services, the provisions of Law 146/1990 do not apply to every strike. In case a collective abstention from the working activity doesn t fall within the scope of the reported legislation, the criteria for setting the balance between the right to strike and the right to economic activity are those enshrined by the Court of Cassation in its landmark decision 711/1980. In compliance with the doctrine of external limits, the strike will be legal as long as it doesn t affect other constitutionally protected interests and, with special reference to the right to economic activity, as long as it doesn t damage the productivity of the undertaking. 17 Constituional Court, decision 317/