The recent ruling by the Constitutional Court (No. 77 of April 19, 2018) did not exempt the employee from the reimbursement of legal fees to the counterpart in the case of losing the case.
Reading the newspapers and surfing the internet, we came across the news that the losing party would no longer be required to pay the legal fees due to the employer against whom he acted judicially. This is because the Constitutional Court, with sentence no. 77 of 19 April 2018, declared the unconstitutionality of article 92 of the Civil Code, in the part in which it does not consider the worker who is accusing the employer of illegitimate activity as a weak party and is therefore not required to reimburse expenses to the counterpart if the claims made by him are groundless.
Nothing could be further from the truth. The above was the opinion of the CGIL, whose intervention was even declared inadmissible, as well as the Court of Reggio Emilia, from which the Constitutional Court has expressly departed, declaring the question of constitutional legitimacy of the issue unjustified and accepting only the different lines of reasoning in common with the Court of Turin.
But let's take a step back, reminding ourselves that the regulation of court costs in civil proceedings should not be left to the discretion of the judge, responding to the general rule victus victori set by article 91, first paragraph, the Civil Code in the part in which - repeating the similar requirement of article 370, first paragraph, of the Civil Code of 1865 - states that "the judge, with the sentence that closes the trial before him, condemns the unsuccessful party to the reimbursement of expenses in favour of the other party and settles the amount together with defence fees”.
So, the loss is usually accompanied by the sentence to pay the costs of litigation, as it appears correct, according to the principle of responsibility always referred to by the Constitutional Court, that the risk of the trial is serious for the losing party: that the cost of the same is borne by those who have made the activity of the judge necessary and have incurred the costs of its development (see sentence No. 135 of 1987). Accordingly, it appears to be logical, from the legal point of view, to settle expenses and competences in favour of the victorious party (see judgment No. 303 of 1986), which should not be prejudiced by the unfairly suffered cause.
That said, it is also true that the institution of the order of the unsuccessful party to pay court costs, although general, has no absolute and mandatory scope, being able to outline the exceptionalness, with compensation for expenses in cases provided by law. And the Constitutional Court, in the past, has always been generous in recognizing the discretion of the Legislator in dictating procedural norms that establish derogations to the institution of the order of the losing party to recast the litigation costs in favour of the victorious party, (ex plurimis, cf. judgments No. 157 of 2014, No. 270 of 2012, No. 446 of 2007, No. 158 of 2003, No. 117 of 1999 and No. 196 of 1982).
In turn, the Legislator has long been generous in providing the judge, who best knew the peculiarities of the case to be decided, with a wide faculty to compensate the litigation expenses in all cases in which, according to his prudent appreciation, he recognized the "right reasons" mentioned by the article 370 Civil Code of 1865 and the second paragraph of the article 92 of the Civil Code of 1940.
But the discretion granted by the exception of the "serious reasons", in practice, has led to a very wide use of discretionary power to compensate the costs of the proceedings, with consequent incentives for litigation, since the loss lost its natural and significant cost, with equal damage for the part that turned out to have been right.
And here, with the main declared aim of reducing the amount of litigation (a purpose that has inspired new institutions such as mediation and assisted negotiation, as well as the provision of a conciliatory proposal "formally formulated" by the labour judge pursuant to the amended Article 420, first paragraph, of the Civil Code) the Legislator has decided to reduce the discretion of the judge with a series of measures, the last of which gave birth to the text currently in force and object of censure by the Constitutional Court: "If there is a mutual loss, or in the case of absolute novelty of the matter dealt with or change of the jurisprudence with respect to the impediments, the judge can compensate the expenses between the parties, partially or in full".
The compensation of litigation costs even in the event of the loss of a single part is therefore possible - according to the provisions of the current article 92, second paragraph, of the Civil code - no longer on the basis of the general clause of "serious and exceptional reasons", but only in the two named hypotheses, which are added to that of mutual loss which has never changed: the absolute novelty of the matter dealt with and the change in the jurisprudence (above all of legitimacy, but also of merit) with respect to the straightforward issues underlying it .
Against this limitation of the discretion of the judge (until now considered to be mandatory by the jurisprudence of legitimacy) the Ordinary Court of Turin and the Ordinary Court of Reggio Emilia have pronounced, referring to the Constitutional Court the question of constitutional legitimacy of the second paragraph of article 92 of the Civil Code with two different procedures for moving the trial to a new place (as we shall see, only partially coinciding), both assessed and decided by the Constitutional Court with the sentence of 19 April 2018 n. 77.
The Court of Turin (in agreement with Reggio Emilia) on this point considered the question of constitutional legitimacy detectable with reference to article 3, first paragraph, 24, first paragraph, and 111, first paragraph, of the Constitution, observing that the ratio of the two hypotheses provided by the Legislator (i.e. the change of the reference frame of the trial that alters the terms of the dispute without this being ascribable to the procedural conduct of the parties) is to be found not only in cases of novelty of the matter dealt with and in the change of the jurisprudence but also in other similar cases of change in the terms of the dispute which cannot be debited to the parties. One thinks of a rule of authentic interpretation or more generally of ius superveniens, especially if in the form of a norm with retroactive effect; or a ruling by the Constitutional Court, in particular if it is constitutional illegitimacy; or a decision of a European Court; or a new regulation in European Union law; or other similar contingencies. All of which, where concerning a "decisive question" for the purpose of the decision of the dispute, are characterized by equal "seriousness" and "exceptionality" and, although not included in a rigid catalogue of appointed hypotheses, must necessarily be submitted to the prudent assessment of the judge of the dispute.
Again, according to the judges of merit in question, the same can also be said for the other hypothesis foreseen by the contested provision (the absolute novelty of the question: attributable to a situation of objective and marked uncertainty, not oriented by jurisprudence), it is possible to hypothesize other analogous situations of absolute uncertainty - in law, but also in fact - of the dispute, similarly attributable to "serious and exceptional reasons".
The Constitutional Court has therefore agreed with the findings of the Courts of Turin and Reggio Emilia, declaring the constitutional illegitimacy of article 92, second paragraph, Civil Code in the part in which it does not provide that the judge, in the event of a total loss of the case, may nevertheless compensate the expenses between the parties, in part or in full, even if there are other similar serious and exceptional reasons.
The aforementioned lack of provision, according to the Constitutional Court, in fact contrasts with the principle of reasonableness and with that of equality (Article 3, first paragraph, of the Constitution) and also constitutes a violation of due process (Article 111, first paragraph, of the Constitution) and the right to judicial protection (Article 24, first paragraph, of the Constitution) because the prospect of the sentence to pay litigation costs even in any totally unexpected and unpredictable situation for the party who acts or resists in court may constitute unjustified hesitation to assert its rights.
As a result of this sentence of the Constitutional Court, the court could be able to compensate the expenses also in those hypotheses, which, although not expressly considered by the contested provision, are similar to those typified by name, in the sense that they must be of equal or greater severity and exceptionality.
The hypotheses provided for by the second paragraph of article 92 of the Civil Code (the "absolute novelty of the matter dealt with" and the "change of the jurisprudence with regard to direct issues") must therefore always be taken into particular consideration, but are no longer mandatory, being recognized both parametric and explanatory functions of the general clause to be related to the existence of other serious and exceptional reasons that are similar to those expressed by the law (with which the Legislator minus dixit quam voluit (i.e. a literal interpretation)) and have led the unsuccessful party to bring a case which is unfounded and then which has been found to be unfounded.
The Constitutional Court has also expressly rejected the censorship profile, invoked by the CGIL and by the Court of Reggio Emilia alone, which, in referring to the principle of substantial equality as per article 3, second paragraph of the Constitution and to the position of greater weakness of the worker in the labour dispute, has requested that the procedural law in question be brought back to legitimacy by introducing a further reason for compensating the costs of litigation that takes into account the nature of the relationship legal argument - that is to say the employment relationship - and the subjective condition of the plaintiff when it is the worker who acts against the employer.
The Constitutional Court has indeed observed that the procedural par condicio (equal footing) provided by the second paragraph of article 111 of the Constitution ("every trial takes place [...] between the parties, on an equal footing") is already guaranteed, even on a substantial level, according to the provisions of the third paragraph of article 24 of the Constitution, from "special institutes" (for example, legal aid) aimed at ensuring “that those without resources [...] have the means to act and defend themselves before any jurisdiction", as well as by reducing to half the unified contribution for the costs of justice due to individual labour disputes.
Only for disputes concerning social security, proposals towards social security institutions, article 9 of the law n. 533 of 1973 has ordered that the unsuccessful citizen in the judgments brought to obtain social security benefits is not subjected to the payment of expenses, duties and fees in favour of welfare and social security institutions, unless the claim is not manifestly unfounded and rash (provision subsequently extended also to welfare disputes by sentence No. 85 of 1979).
The subjective condition of "worker" has never in itself entailed any exemption from the obligation to pay the court costs in case of total loss in the disputes brought against the employer: it is not, in itself, sufficient reason - even in the light of the tendential removal of the economic and social obstacles to judicial protection (Article 3, second paragraph of the Constitution) - to derogate from the general level of par condicio the obligation to recast the costs of the proceedings against the entirely unsuccessful party.
The Constitutional Court has therefore not considered at all that, in the case of total loss of the worker, that the expenses must be compensated as a rule. The faculty of the judge to compensate them, partially or totally, may at most subsist, pursuant to article 92 of the Civil Code, as interpreted following the sentence commented here, in all cases in which there are "serious and exceptional reasons" coinciding with an absolute novelty of the issue due to a situation of marked uncertainty, not only in law but also in fact, for the worker not having been previously aware of documentary evidence or evidence perhaps known only to the employer or which emerged only in the preliminary phase.
Once again, the compensation of expenses, in the case of total loss of the worker, should be the exception and not the rule: an exception can be made, however, based not on subjective data, but on clearly recognizable objective and concrete elements, excluding however that such a decision can be based on the mere discretion of the judge. (LC)
