Company collective agreements and proximity agreements: the Constitutional Court defines the scope of effectiveness

Prepared by Francesca Tironi, Giulia Spalazzi and Marco Bove

The Constitutional Court, with Judgment No. 52 released on 28 March 2023, confirmed that proximity company collective agreements – in the presence of all the requirements set forth by Article 8 of Decree-Law No. 138/2011 – are effective vis-à-vis all those affected by the agreement. Conversely, “ordinary” company collective agreements do not take effect vis-à-vis trade unions and workers who are not signatories to the aforementioned agreements and who disagree with them.

The case that led to the appeal by the Court of Appeal of Naples to the highest constitutional body originated from the judicial dispute started by some workers who had requested the payment of salary differences due to the fact that a proximity collective agreement – signed by the employer with a trade union considered to be the most representative – had led to a worsening of the economic conditions of the workers themselves compared to the NCLA for the sector. Specifically, the workers had argued that they had joined a trade union other than the one that had signed the proximity collective agreement and that they had expressly “denied”, through their trade union, the same agreement.

The Constitutional Court was called upon to rule on the question of constitutionality raised by the Court of Appeal of Naples with reference to Article 8 of Decree-Law No. 138/2011, which regulates the proximity company agreement. In the opinion of the Court of Appeal of Naples, in fact, this provision – by extending the effectiveness of company or proximity contracts to all the workers concerned even if they are not signatories to the agreement or belong to a trade union that is not party to the agreement – would have resulted in the violation of Articles 2 and 39 paragraphs 2 and 4 of the Constitution (violation of the freedom of trade union organization, understood both as the freedom of individual workers to join trade unions and as the freedom of trade unions to organize themselves in order to carry out the function of representing their members).

The Constitutional Court, in declaring inadmissible the question of legitimacy raised by the Court of Appeal of Naples, found that the Court of Naples had not adequately motivated the traceability of the censured case to the legal case of the proximity agreement. Secondly, the Constitutional Court noted that, according to recurring case law, the “ordinary” company collective agreement has effectiveness only tendentially “erga omnes”, not being able to extend its effectiveness also towards workers and trade union associations which, on the occasion of the signing of the agreement itself, are expressly dissenting.

In the Constitutional Court’s opinion, the “ordinary” company collective agreement – which, as mentioned above, only tends to be effective erga omnes – differs from the proximity company agreement, which, by meeting all the specific requirements of Article 8 of Decree-Law No. 138/2011, is effective vis-à-vis all workers.

Specifically, in declaring inadmissible the question of legitimacy raised by the Court of Appeal of Naples, the Constitutional Court accurately referred to Article 8 of Decree-Law No. 138/2011, which, as is known, in order to be effective with respect to all workers, shall: (i) have been signed by workers’ associations that are comparatively more representative at the national or territorial level or by their trade union representatives operating in the company; (ii) be aimed at increasing employment, the quality of employment contracts, the adoption of forms of worker participation, the emersion of irregular employment, increases in competitiveness and wages, the management of company and employment crises, investments and the start-up of new activities; (iii) concern the regulation of matters relating to the organization of work and production with reference to specific sectors listed in paragraph 2.

In the absence of the aforementioned requirements, the agreement is merely an “ordinary” company collective agreement, which is not effective vis-à-vis workers and trade union associations that expressly disagree with it when the agreement is signed.

The Constitutional Court, therefore, taking into account the lack – in the referral order – of a plausible reasoning regarding the circumstance that in the main proceedings there is a dispute regarding a company collective contract of proximity pursuant to art. 8 of Decree-Law No. 138/2011, declared the inadmissibility of the raised questions of constitutionality for incomplete reconstruction of the case.

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Francesca Tironi

PwC TLS Avvocati e Commercialisti