Dopo aver rapidamente contestualizzato la problematica delle leggi provvedimento nel Diritto del lavoro, ravvisandone le ragioni della proliferazione nel passaggio dallo stato liberale classico allo stato sociale, l’autore rileva come il fenomeno non sia prettamente italiano, ma diffuso anche in altri Paesi, quali, esemplificativamente, la Germania. Il saggio prosegue con l’esame di alcuni limiti alle leggi provvedimento, intese nel significato ampio di atti normativi a carattere speciale, settoriale o locale: il focus dell’attenzione è centrato sul diritto della concorrenza dell’UE, sia sub specie di contrasto ai monopoli statali, sia con riguardo alla disciplina degli aiuti di Stato. L’analisi si conclude evidenziando come il diritto antitrust dell’UE abbia costituito un efficace antidoto a taluni tipi di leggi provvedimento soltanto in una fase iniziale, quando la costruzione europea era centrata sugli aspetti mercantilistici, mentre i più recenti sviluppi hanno visto rapidamente scemare tali effetti. Pertanto, occorre ritornare al diritto interno: qui la Corte Costituzionale può giocare senz’altro un ruolo più attivo nel controllo di ragionevolezza di tutte le tipologie di leggi provvedimento.

SOMMARIO:

1. The “leggi provvedimento” and Labour Law: introductory remarks from Italy and Germany - 2. Limits to the “leggi provvedimento” from the EU: Competition Law and ... - 3. ... State Aids regulation - 4. Conclusions: the ball is back in the court of the Italian Constitutional judges - NOTE

1. The “leggi provvedimento” and Labour Law: introductory remarks from Italy and Germany

This paper deals with the so-called “leggi provvedimento”, with particular reference to Labour Law. The subject is really challenging, and also quite new for Labour Law scholars: in fact, constitutional scholars are usually more concerned with pieces of legislation of this kind [1]. Classical “leggi provvedimento” contain provisions focused on one or on a very small number of cases, and there are a certain number of examples in the field of Labour Law as well. Let’s mention the legislative interventions done to save the national flag carrier (Alitalia, recently reborn as ITA) [2], or to secure the continuity of the Steel Plant in Taranto [3], or again the third subsection of sect. 8, decree law n. 138 of 2011, which specifically aimed at granting juridical support (namely the general effect) to the FIAT plant level agreements signed before the intersectoral agreement of 28 June 2011 [4]. This last case is very interesting, because the name of FIAT was not mentioned, but it was clear for everybody that the provision had been specifically introduced for this purpose. The phenomenon is not limited to Italy. In the German legal order, the “Volkswagen Law”, which dates to 1960 [5], still contains some provisions conferring employee representative on the supervisory board a right to veto in case of setting up, relocation or closure of company plants (sect. 4, subs. 2). All these decisions must be made through a qualified majority of the body (two thirds), which is not required by the usual legislation on codetermination (according to which the simple majority is sufficient) [6]. Since the body is composed of an even number of employee and shareholder representatives, this provision amounts to a veto right in favour of employee representatives. German codetermination seems to be the kingdom of “leggi provvedimento”. The peculiar – and very favourable for employees – regime introduced in 1951 only for the enterprises in the coalmining, iron and steel industry [7] was extended to their holding companies, albeit in a slightly watered-down version, already in 1956 [8]. In the following years, the share of coalmining, iron and steel business of the group, which triggered the special regime of codetermination, was lowered many times, with “leggi provvedimento” aimed at contrasting the strategies of the holdings (always a handful and sometimes even [continua ..]

2. Limits to the “leggi provvedimento” from the EU: Competition Law and ...

And now it is time to examine one of these limits to the “leggi prov­vedimento”, which is set by European Union law. In particular, this contribution to the debate will be devoted to the competition law of the European Union [14]. In general, it must be said that section 101 and the following ones of the Treaty on the Functioning of the European Union (hereafter: TFEU) aim at putting all the European enterprises on equal foot, by doing away with all the artificial obstacles which can fetter the competition, be they of private nature or created by the Member States. As far as the “leggi provvedimento” are concerned, provisions on national monopolies and on State aids are for sure the most relevant. Let’s start from provisions on monopolies created by the Member States. Section 106 of TFEU does not prevent Member States from setting up and maintaining monopolies, but it obliges them to respect all treaty rules, comprising antitrust ones. In particular, national monopolies charged with providing services of general economic interest have to respect antitrust rules only to the extent where such rules do not hinder them from fulfilling their specific mission (subsection 2). In the 90’s of the last century social monopolies started to be scrutinised in light of these provisions, with very interesting results. Indeed, in those years the case-law of the European Court of Justice contributed to the dismantling of national monopolies in the field of workers placement (public employment services). The first important decision was the Macrotron case, which involved the German public placement of managers [15]. In 1991, the European Court of Justice found that it ran against section 106 of the Treaty. The second decision, made in 1997, was much more important, because it did not refer to a partial monopoly on the labour market, but to the most comprehensive and powerful monopoly ever built in Western Europe: The Italian one [16]. In its golden age, it did not only prevent any other actor, be it private or public, from the placement of workers, but it also prevented employers from hiring unemployed people directly. In other words, employers were obliged to ask the Public Employment Service to send them unemployed workers registered on its lists, according to priorities established by the law. It must be said that this monopoly had been already weakened at the beginning of the 90’s, and its complete [continua ..]

3. ... State Aids regulation

TFEU contains no absolute ban on State aids [26]. According to section 107, State aids are divided into two categories: those which are automatically compatible with the internal market, such as aids to consumers which do not make differences according to the origin of the products; and those which are not automatically compatible, and must be preliminarily approved by the European Commission, such as aids aimed at easing the development of certain activities or economic regions, provided that they do not alter the competition in a way, inconsistent with the common interest. It is interesting to note that the notion of State aid contained in the Treaty is quite vague. State aids are «granted by a Member State or through State resources in any form whatsoever», are aimed at «favouring certain undertakings or the production of certain goods», and distort or threaten «to distort competition», while affecting «trade between Member States» (section 107, subsection 1). This vagueness has left considerable room for manoeuvre both to the Commission and to the Court of Justice on the subject. Moreover, the discretionary power conferred by the Treaty to the Commission on the approval of State aids has allowed it to develop a comprehensive European policy. In the beginning the Commission set down its orientation in Guidelines, and then started involving the Council in laying down regulations on sectoral State aids which do not require the preliminary approval by the Commission [27]. The definition of State aid contained in the Treaty makes it clear that it is individual or sectoral, and it comes from the State: but neither of the two features is unequivocal. Starting from the second one, the meaning is now quite uncontested: economic resources come directly or indirectly from the State. But in the past, there had been an attempt to interpret the phrasing of Treaty as referred to any economic advantage coming from a State regulation. It is evident that such an interpretation would have given the European Commission the possibility of checking almost every “legge provvedimento” in light of the common interest of the Union [28]. And it comes as no surprise that the European Court of Justice was called to decide three cases related to Labour Law: two from Germany and one from Italy. In the Sloman Neptun case of 1993, the German law allowed ships registered in Germany not to apply German Labour [continua ..]

4. Conclusions: the ball is back in the court of the Italian Constitutional judges

It is time to conclude this contribution to the debate on the “leggi prov­vedimento”, by summing up the preliminary results reached so far. The starting point was the evaluation of “leggi provvedimento”, in the broader sense of the expression. These pieces of legislation, whose content is limited to individual, special, sectoral, or local cases, are a natural consequence of the transition from the classical liberal State to the Welfare State. The first pursues the formal equality of the citizens (all citizens are equal under the law), whereas the second one aims at creating the conditions for the effective, substantial equality of all citizens. And this creation requires the adoption of legislative acts targeted at specific, sectoral, local situations. There is constant tension between the two dimensions of equality: since the “leggi provvedimento” may occasionally be a vehicle for abuse and unjustified preferences, it is always necessary to check their reasonableness, that is their justification in light of the general principle of formal equality. The system of multi-level governance to which Italy belongs helps the Country in many ways. The analysis was focused on the competition law of the European Union. This legislation aimed from the beginning to create a level playing field for all the enterprises in the internal market, by controlling and limiting, among other things, national monopolies and State aids. In this way, European Union law has helped to eliminate some ineffective State monopolies, like those of worker placement, and to rationalise the use of State aids, for example, in the field of: employment creation, and rescuing and restructuring enterprises in difficulty. However, the evolution from the Community to the Union and the recurrent crises seem to have weakened the action of the European Commission, which is ever more eager to behave as a political actor which pursues specific industrial strategies rather than as an arbitrator in charge of keeping the same conditions for all competitors. In this situation, a better control of the “leggi provvedimento” in Italy must be ensured in the first place by the Constitutional Court, which should scrutinize these pieces of legislation in light of the reasonableness principle and of the specific goals at constitutional level pursued by legislative provisions. Since the narrower the number of those addressed by the law, the stronger the risk of [continua ..]

NOTE