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28/05/2014

Processo del lavoro, certezza del diritto ed effettività delle tutele

WP C.S.D.L.E. “Massimo D’Antona”.IT – 215/2014



Rielaborazione della Relazione tenuta a Milano il 23 novembre 2012 nel Convegno Diritto e processo: rapporti ed interferenze, organizzato dall'Università degli Studi di Milano "Bicocca".




The essay starts by analyzing the problem of the “binding precedent” in jurisprudence, focusing on some new articles of the Italian procedural code which increased the strength of the precedent on the interpretation of the judges and introducing a mechanism closer to the stare decisis of the Anglo Saxon system. On the other hand, the jurisprudence plays an increasingly “creative” role due to the social mediation functions it is called to exercise in the modern society. Then the article examines two basic concepts of the general theory, namely certainty of law and enforceability of law protection. The latter has an essential role in Labour Law, because the employment contract is characterized by fundamental rights the breach of which cannot be compensated with an indemnity, but rather the reinstatement of the original right. This approach is coherent with some principles stated by the Italian Constitution and with the right to effective remedy expressed at a European level, also considering the importance of Labour protection in the Italian Constitution. In order to guarantee the effectiveness of these rights, the Labour Law trial is characterized by some specific rules – which are briefly analyzed -  finalized to ensuring these objectives and giving the judges incisive powers, which can sometimes strongly affect the managerial prerogatives of the employer. And, in this way, the judges have an important function of collective social mediation finding a balance between the “conflicting powers” of the Labour contract. The essay also focuses on the certainty of law, which is today considered a different concept compared to the original one. Today the certainty is conceived not as predictability of the jurisprudence, but as the “immunity” of managerial prerogatives, which cannot be controlled by judges. This approach, coherent with the Law and Economics theory, is realized in different ways (reduction of mandatory norms; abolition of general clauses limiting the employer’s powers; introduction of alternative arbitration procedures based on equity; substitution of the reinstatement of the right with compensation etc.).      

In conclusion the article underlines that two different trends are present in the Italian system. The first, more traditional, is directed to guaranteeing the enforceability of the employees’ rights with the traditional tools (like, for example, reinstatement). The second based on the compensation and the absence of the judges’ control on the managerial prerogatives. At the moment it is impossible to say which of this two approaches will prevail, even though the second seems to be the predominant.


author(s): Speziale, Valerio
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