Newsletter 3/2019

In recent months some courts have deemed worth the exception of the constitutional illegitimacy of art. 7 ter raised by some clients in underway judgments.

We specify that in these cases the (sub) carrier is entitled to request the injunction pursuant to art. 7 ter, being a regular carrier pursuant to Legislative Decree 286/2005, having documented the services and being his duties performed after the entry into force of the law.

Since this rule was introduced in the context of maritime transport regulations when converting the law decree n. 103 of 2010 on “Urgent provisions to ensure the regularity of the public maritime transport service” with the addition of the phrase “and the support of productivity in the transport sector”, … it would be considered that “the introduction of the art. 7 ter in this context is therefore completely dystonic with respect to the object and the purposes of the decree ”. This by virtue of the limits provided for the amendment of a decree.

According to the two ordinances of the Courts of Pesaro and Prato the question of the constitutional legitimacy of Article 1 bis of Law Decree 103/2010 in relation to Article 77 II of the Constitution – in the part in which it introduces the Article 7 ter- would therefore be relevant and not manifestly groundless.

Let us remember how some time ago another similar case ended with a pronouncement of rejection by the Constitutional Court.

We recall that through the decisions of acceptance or unconstitutionality, the Court declares that one or more provisions or norms object of the question of constitutionality are in contrast with the Constitution and can not be applied from the day following the publication of the acceptance sentence in the Official Gazette (Article 136 of the Constitution).

In these cases the ongoing judgments are suspended until the decision of the Constitutional court. If the Constitutional Court were to accept this exception, the scenario for the underway judgments based exclusively on Article 7b would change. From that moment the Judge would in fact have the obligation to disapply the rule declared unconstitutional.

In this sense we speak of the retroactive effect of the sentences of acceptance of the Constitutional Court, which finds the limit in the notion of “relazioni esaurite” which indicates those relations that have been definitively resolved at the judicial level or which are not more operable.