Judgment No. 59 of 2021

Giancarlo CORAGGIO, President, Silvana SCIARRA, Author of the Judgment

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In this case, the Court heard a referral order from the Court of Ravenna questioning the constitutionality of Article 18 of the Workers’ Statute insofar as it provides that when a court finds that the circumstances adduced in support of a dismissal made on grounds of good cause do not exist it must order reinstatement whereas a similar finding in a case of a dismissal on business grounds does not trigger reinstatement, which is for the court to decide as an option to mere compensation and then only when non-existence of the adduced circumstances is clear and when, according to case law, reinstatement would not be excessively onerous for the employer. The referring court did not contest the power of the legislator to rule out reinstatement as a remedy for dismissal but argued that once it has chosen to provide protection in that form under certain circumstances it could not treat identical situations differently thereby infringing inter alia Article 3 of the Constitution on equality. The Court ruled that the question was well founded in that there was no plausible justification for distinguishing between what were essentially comparable situations and that the criteria developed by case law to support courts in their decision as to whether to opt for reinstatement or compensation were unreasonable, echoing the referring court’s concerns on that issue. Accordingly, it declared that the challenged provision of the Workers’ Statute providing that a court “may” rather than “shall” order reinstatement was unconstitutional.

Judgment No. 37 of 2021

Giancarlo CORAGGIO, President, Augusto Antonio BARBERA, Author of the Judgment

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In this case, the Court considered an application from the President of the Council of Ministers challenging a law of the Valle d’Aosta Region that sought to regulate aspects of the COVID-19 pandemic response. The Court had previously suspended the entire regional law with Order No. 4 of 2021. The Court struck down two Articles of the law and several provisions of a third article, on the grounds that they were an unconstitutional attempt to regulate an area reserved to the exclusive competence of the State legislator. In particular, the Court held that the constitutional system implicitly prohibits the use of regional laws to interfere with a regulatory scheme established by the State legislator in an area of its own competence. The regulation in this case involved the area of “international prophylaxis,” an area of indisputable State-level competence, which, according to the Court, necessarily entailed “uniformity at the national level”. The Court reiterated that the Regional health systems serve the aims of the National Health Service, and that the duties of Regions with regard to the COVID-19 response were delegated by the State legislator, and did not entitle the Regions to act independently in fighting the virus. Accordingly, the Court referred to the rules and procedures established by the State legislator for exercising this delegated, regional responsibility, and pointed out that they did not allow for the forms of intervention described in the unconstitutional provisions. In its reasoning, the Court also clarified that the lawfulness of the emergency Decrees of the President of the Council of Ministers [DPCMs], to which the State legislator has entrusted the daily calibrating of measures to contain the virus, was not at issue in this case and that the decrees remained subject to review by the administrative courts.

Judgment No. 33 of 2021

Giancarlo CORAGGIO, President, Francesco VIGANÒ, Author of the Judgment

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In this case, the Court ruled on the question raised by the Court of Cassation as to whether it is constitutional for the Italian judicial authorities to refuse to give effect to a foreign decree that has recognised two Italian men, who have entered into a civil partnership, as the parents of a child born abroad to a surrogate mother. The Constitutional Court started by reiterating that the prohibition on surrogate pregnancy, which is enshrined in criminal law, pursues the objective of protecting the dignity of women whilst also seeking to avoid the risk of particularly vulnerable women being exploited due to circumstances of social and economic hardship. However, the Court observed that the priority issue in the case now before it was the “best interests” of the child, who has an obvious interest to “to obtain legal recognition of the ties which already exist in respect of both of them, without prejudice to the possible establishment of a legal relationship with the surrogate mother”. These ties are in fact an essential part of the child’s very identity, as a person raised and cared for by a given couple, whether hetero- or homosexual, as there is no reason to assume that homosexual couples are not suited to bear parental responsibilities. In addition, the child has a clear interest in obtaining recognition for the legal duties of both partners towards his or her by virtue of their parental responsibility. On the other hand, the Court acknowledged that the child’s best interests may be balanced against the legitimate aim of discouraging recourse to surrogate pregnancy, which is prohibited in Italy. It also stressed that the European Court of Human Rights does not require States to give effect within their legal orders to foreign birth certificates presented by a couple (hetero- or homosexual) who have had recourse to surrogate pregnancy abroad. Under these circumstances, the Court held that the legislator certainly enjoys a wide margin of appreciation on how to strike a fair balance between competing interests and legitimate aims, and is undoubtedly in a better position than the Court itself to find an appropriate solution. As a consequence, the Court ruled the question inadmissible, while stressing the need for urgent legislation to ensure due protection of the child’s best interests, including recognition of the legal relationship with the non-biological parent. The Court underlined that recourse to “adoption under special circumstances”, under Article 44(1)(d) of Law No. 184 of 1983, which the Court of Cassation already considers to be available, offers a a level of protection for the child’s best interests that is welcomed, but not entirely consistent with constitutional and supranational principles. Adoption under special circumstances does not grant full parental status to the non-biological parent. In addition, it is not clear whether it establishes any family relationship between the adopted child and those whom he or she perceives, on a social level, as his or her grandparents, uncles and aunts – or even brothers and sisters. Finally, this form of adoption is conditional upon the consent of the “biological” parent, which may potentially be denied in the event of a crisis within the couple. The Court therefore urges a reform capable of ensuring full protection of the interests of a child born from a surrogate motherhood.

Judgment No. 32 of 2021

Giancarlo CORAGGIO, President Silvana, SCIARRA, Author of the Judgment

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In this case, the Court heard a referral order from the Court of Padua questioning the constitutionality of legislation on medically assisted procreation on the basis that it allegedly did not allow a child born through recourse to a heterologous medically assisted procreation process, undertaken by a same-sex couple, to be granted the status of child recognised also by the intentional mother where the conditions for ‘‘adoption in special cases’’ are not fulfilled even though the courts have established that such recognition would be in the interests of the child. The Court was of the view that there were shortcomings in the legal system as regards protecting the best interests of the child in the present case in view of the latter’s need for ties with both parents and their legal recognition. However, it ruled the question inadmissible on the basis that it is primarily for the legislator to take action to provide systemic protection to children’s rights thereby avoiding inconsistencies in the legal system that would arise from fragmented intervention by the Court. It renewed its previous appeal for legislation to be enacted urgently in order to guarantee all children full rights to care, upbringing, education and stable parental bonds.