CASE OF AZIENDA AGRICOLA SILVERFUNGHI S.A.S. AND OTHERS v. ITALY
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - award;Non-pecuniary damage - award
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicants are agricultural firms operating in northern and/or disadvantaged areas in Italy as defined in the relevant Italian laws. 6. In the 1980s the Italian legislator instituted a series of norms to favour economic activity in general and, more specifically, agricultural activity. 7. More precisely, Article 1(6) of Law no. 48 of 1988 (Legislative Decree no. 536 of 30 December 1987) (see “Relevant domestic law”, below) provided a concession (fiscalizzazione), namely, that as of 1 January 1987 the State would bear a portion of the contributions paid by employers in the agricultural sector for the purposes of Article 31(1) of Law no. 41/48 in respect of each employee. 8. Furthermore, Article 9(5) of Law No. 67 of 1988 (Legge finanziaria 1988) (see “Relevant domestic law” below) introduced a system of exemptions (sgravi contributivi) in respect of payments for the purposes of premiums and contributions related to welfare and assistance. Such payments were due in the measure of 15% (later 30%) by employers in the agricultural sector in northern regions and 40% (later 60%) by employers in the agricultural sector working in disadvantaged agricultural zones in the south of Italy. 9. According to the applicant companies, Article 9(6) of Law No. 67 of 1988 (see “Relevant domestic law” below) indicated that the latter benefit was not alternative to the one provided for by Law no. 48 of 1988. That sub-article specified that for the purposes of the calculation of the exemption mentioned above, the concession was not to be taken into account. This, they considered, was also clear from the explanatory memorandum (scheda di lettura) to the law (see “Relevant domestic law” below). 10. Following further normative changes between 1988 and 1996, the burden to be taken over by the State amounted to the following: a) 85,000 Italian lire (approximately 44 euros (EUR)) per employee for twelve monthly salaries; b) a global 5.62 percentage points for exemptions in respect of contributions for the purposes of TBC (Tuberculosis), ENAOLI (Orphans of Italian Employees) and the SSN (National Health Service); c) a global 4.92 percentage points for exemptions regarding the said contributions in respect of labourers and 5.02 percentage points for employees and directors, as from 1 June 1996. 11. Despite the law, by circular no. 160 of 18 July 1988 the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, considered that the two benefits (concession and exemption) could not be accumulated and had to be considered as alternative. 12. In fact, the applicant companies benefited only from the exemption (sgravi contributivi) and not from the concession (fiscalizzazione). They considered that this interpretation was contrary to what was provided for in the law. 13. Indeed, from as early as 1994 a number of agricultural firms (in particular Floramiata Spa) instituted proceedings (following administrative refusals) complaining about the matter, and consistent case-law in favour of the agricultural firms was established by the Italian courts, including the Court of Cassation. The applicant companies submitted that between 1997 and 2003 more than twenty-five first-instance judgments and more than five appeal judgments on the same subject matter had been delivered, together with two Court of Cassation judgments (see “Relevant domestic law and practice”, below) finding in favour of the agricultural firms. 14. In this light, in 2000/2002 the applicant companies instituted proceedings as explained below. Pending these judicial proceedings Law no. 326 of 24 November 2003 (hereinafter Law no. 326/03) was enacted (see “Relevant domestic law” below), providing that the benefits could not be accumulated. 15. By judgment no. 274 of 7 July 2006 the Constitutional Court considered that Law no. 326/03 was legitimate and not unconstitutional (see “Relevant domestic law and practice” below). 16. On 7 November 2000 the applicant company requested the INPS to return the monies which it had held contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1990 and 31 December 1997, amounting to 173,738,951 Italian lire (approximately EUR 90,000) plus interest and subject to revaluation. 17. The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 26 June 2001 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply. 18. Thus, on 4 January 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription (2000 onwards). 19. By a judgment (no. 56/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant company had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums (from 2000 onwards), with interest and subject to revaluation, and to pay its share of the costs of the proceedings. 20. By a judgment (no. 276/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 21. Following the entry into force of Law no. 326/03 the INPS appealed to the Court of Cassation. 22. The applicant company cross-appealed, arguing that the application of Law no. 326 of 24 November 2003 to its case would amount to a violation of Article 6 of the Convention and a violation of the Italian Constitution in so far as it obliged the State to abide by the European Convention, a matter which had not been considered at all by the Constitutional Court in its judgment of 7 July 2006. 23. By a judgment (no. 10110/07) filed in the relevant registry on 2 May 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326/03. The remaining grounds of appeal were dismissed on the basis that Law no. 326/03 had an authentic interpretative nature and was therefore only apparently retroactive, it having now been given the original intended meaning of the law. Indeed, as a thorough examination of the relevant laws revealed, the benefits at issue could not be awarded cumulatively; rather, one had to identify the most favourable benefits to a firm according to its specific position. Furthermore, the State had legitimate discretion to decide whether benefits could be granted cumulatively or not, thus no issue relating to a fair trial could be considered to arise. Each party was to bear its own costs for the entire proceedings. 24. On 9 July 2001 and again on 29 January 2002 the applicant company requested the INPS to return the monies which it had witheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1990 and 31 December 1997, amounting to 413,928,856 Italian lire (approximately EUR 213,776) plus interest and subject to revaluation. 25. The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 7 June 2002 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply. 26. Thus, on 11 June 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription. 27. By a judgment (no. 58/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Holding that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums (from 2001 onwards, the date on which prescription was interrupted), with interest and subject to revaluation, and to pay its share of the costs of the proceedings. 28. By a judgment (no. 277/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 29. Following the entry into force of Law no. 326 of 24 November 2003 the INPS appealed to the Court of Cassation. 30. The applicant company cross-appealed along the lines mentioned above. 31. By a judgment (no. 12863/07) filed in the relevant registry on 1 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings. 32. On 14 and 30 July 1999 the applicant company requested the INPS to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 January 1989 and 31 December 1997, amounting to 210,609,000 Italian lire (approximately EUR 108,770) plus interest and subject to revaluation. 33. The INPS failed to reply. 34. Thus, on 25 January 2000 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription. 35. By a judgment (no. 8/2001) of 3 April 2001 the Siena Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums, with interest and revaluation (from 1999, the date of its administrative claim, onwards), together with the full costs of the proceedings. 36. By a judgment (no. 249/02) of 16 April 2002 filed in the relevant registry on 24 April 2002 the Florence Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 37. Following the entry into force of Law no. 326 of 24 November 2003 the INPS appealed to the Court of Cassation. 38. The applicant company cross-appealed along the lines mentioned above. 39. By a judgment (no. 13291/07) filed in the relevant registry on 7 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings. 40. On 10 December 2001 the applicant company requested the INPS to return the monies which it had withheld contrary to what was provided for by law when it failed to apply the concession in its respect, for the period between 1 April 1991 and 31 December 1997, amounting to 163,373,972 Italian lire (approximately EUR 84,375) plus interest and revaluation. 41. The INPS’s failure to reply amounting to an implicit rejection (silenzio-rifiuto), on 15 May 2002 the applicant company instituted an administrative procedure before the INPS. The latter again failed to reply. 42. Thus, on 11 September 2002 the applicant company instituted judicial proceedings to recover the monies due (as mentioned above) for the period not covered by prescription (2001 onwards). 43. By a judgment (no. 57/2003) of 13 February 2003 the Bergamo Tribunal found in favour of the applicant company. Considering that the two benefits could be accumulated and that the applicant had paid the relevant dues, it ordered the INPS to pay back the misappropriated sums, with interest and subject to revaluation (from 2001 onwards), and to pay its share of the costs of the proceedings. 44. By a judgment (no. 278/03) of 25 September 2003 filed in the relevant registry on 4 November 2003 the Brescia Court of Appeal dismissed the INPS’s appeal and upheld the first-instance judgment. 45. Following the entry into force of Law no. 326 of 24 November 2003 the INPS appealed to the Court of Cassation. 46. The applicant company cross-appealed along the lines mentioned above. 47. By a judgment (no. 12864/07) filed in the relevant registry on 1 June 2007 the INPS’s appeal was allowed by the Court of Cassation on the basis of Law no. 326 of 24 November 2003. The remaining grounds of appeal were dismissed for the same reasons outlined above. Each party was to bear its own costs for the entire proceedings.