10.6092/issn.1561-8048/13370
This contribution aims to assess the effects on the Italian legal order of the proposed directive of the European Union on minimum wages. The approach adopted in the research was that of the legal-regulatory analysis of the provisions of the proposal and their effects on the Italian statutory and collective sources. The approval of the directive would require the Italian legislator to take transposition action even if it were not decided to introduce legislation on minimum wages. The research has the limit of placing a proposal for a directive at the centre of the investigation which is not known whether and in which version it will be approved but the contribution constitutes a useful tool available to the European and domestic legislators to understand the constraints and potential of regulatory intervention on the matter. The original features of the research are represented by the delimitation of the boundaries of the Union's competence in the field of remuneration and the interaction between the EU and Italian legal dimensions.
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Italian Labour Law e-Journal
EU Competence
The Proposal for an EU Directive on adequate Minimum Wages and its impact on Italy
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2021-07-29
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Massimiliano Delfino
2021/07/29
10.6092/issn.1561-8048/13370
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The Proposal for an EU Directive on adequate Minimum Wages and its impact on Italy
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The Proposal for an EU Directive on adequate Minimum Wages                          Italian Labour Law e-Journal
and its impact on Italy                                                                    Issue 1, Vol. 14 (2021)
Massimiliano Delfino                                                                             ISSN 1561-8048
delfino@unina.it                                                  https://doi.org/10.6092/issn.1561-8048/13370




          The Proposal for an EU Directive on adequate
             Minimum Wages and its impact on Italy
                                      Massimiliano Delfino


 1. The background of the proposal for a directive. 2. The disputed competence and the
 ‘toolbox’ shared between the Union and the Member States. 3. Some concerns about Article
 7 of the proposal. 4. The provisions of the proposal that apply to Italy and collective
 bargaining on wages. 5. The possible influence on the Italian legislation: from the field of
 application to the centrality of the legal reference to collective agreements. 6. The different
 ways to implement the aims of the directive in Italy.


                                                   Abstract

     This contribution aims to assess the effects on the Italian legal order of the proposed directive
     of the European Union on minimum wages. The approach adopted in the research was that of
     the legal-regulatory analysis of the provisions of the proposal and their effects on the Italian
     statutory and collective sources. The approval of the directive would require the Italian legislator
     to take transposition action even if it were not decided to introduce legislation on minimum
     wages. The research has the limit of placing a proposal for a directive at the centre of the
     investigation which is not known whether and in which version it will be approved but the
     contribution constitutes a useful tool available to the European and domestic legislators to
     understand the constraints and potential of regulatory intervention on the matter. The original
     features of the research are represented by the delimitation of the boundaries of the Union's
     competence in the field of remuneration and the interaction between the EU and Italian legal
     dimensions.

     Keywords: Minimum Wages; EU Competence; Collective Bargaining; Statutory Intervention.




 1. The background of the proposal for a directive.

    Examining the proposal for a directive on adequate minimum wages of 28 October 20201
 means first of all asking the question of whether the European Union has the competence
 to regulate the matter. To answer this question, however, it is useful to take a step back.


 
   Professor of Labour law and EU Labour law, University of Naples Federico II. This article has been submitted
 to a double-blind peer review process.
 1 COM(2020)682 final .
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    In January 2020, the Commission, according to Article 154.2 TFEU, before submitting
proposals in the field of social policy, consulted the social partners on the possible direction
of Union action. The Commission asked them if they considered: 1) the profiles and possible
areas of intervention; 2) necessary action on those profiles; 3) the advisability to start a
dialogue based on Article 155 TFEU.
    The profiles on which the Commission requested the opinion of the social partners were
clear while the plot of a regulatory intervention was inevitably undefined because it is at the
end of the second (possible) consultation that the Commission consults ‘management and
labour on the content of the envisaged proposal’.2 In the meantime, the Commission
confined itself to declaring that any action should be geared towards improving working
conditions, combating poverty in employment relationships and developing a level playing
field for businesses in the single market, without indicating the tools to achieve those aims.
    This consultation ended on 24 February 2020 and, after having assessed the positions of
the social partners, the Commission, with a document dated June 6 of the same year, in the
application of the principle of vertical subsidiarity, considered that an action by the Union
was appropriate and started the consultation on the content of the proposal.3 The document
through which the second consultation phase was set in motion contains the answers to the
questions posed previously. The most discussed topic was minimum wage, which saw
European workers' unions and the business associations on opposite sides. According to the
former, there would be room for Union action in that matter and specifically in two main
fields: 1) the promotion and protection of collective bargaining (sectorial and inter-sectorial)
and 2) the increase of minimum wages. On the contrary, all the consulted business
organizations, except CEEP, have expressed their opposition to a possible binding initiative
in the field of wages, pleading the lack of competence of the Union. According to the opinion
of the business organizations, such a problem would not arise if a non-binding form of
intervention was utilised.
    At first, the Commission did not take a position on the regulatory instrument to be
adopted but proposed two possible paths, namely a directive on working conditions, with
contents to be specified, or a Council recommendation inviting the Member States to ensure
fair minimum wages.
    As far as the second consultation is concerned, the social partners were urged to comment
on the aims and regulatory instruments to be used for the action of the Union. Moreover,
the social partners were requested about the willingness to proceed or not with the attempt
to conclude a collective agreement, according to Article 155 TFEU, aimed at achieving the
main aim identified by the Commission, which was to ensure a fair minimum wage for all

2 Article 154.3 TFEU. See Lo Faro A., L’iniziativa della Commissione per il salario minimo europeo fra coraggio e
temerarietà, in Lavoro e Diritto, 3, 2020, 547 ff.
3 See Delfino M., La reinterpretazione del principio di sussidiarietà orizzontale nel diritto sociale europeo, in Diritti Lavori

Mercati, 1, 2020, 156-169; Dorssemont F., Lörcher K., Schmitt M., On the Duty to Implement European Framework
Agreements: Lessons to be Learned from the Hairdressers Case, in Industrial Law Journal, 48, 4, 2019, 571-603; Van
Malleghem P.A., Alcune considerazioni sulla sentenza Epsu nella prospettiva del diritto costituzionale dell’Unione europea, in
Diritti Lavori Mercati, 3, 2020, 577-601; Lo Faro A., Articles 154, 155 TFEU, in Ales E., Bell M., Deinert O.,
Robin-Olivier M. (eds.), International and European Labour Law, Nomos Verlagsgesellschaft, Baden Baden, 2018,
165-176; Tricart J.P., Legislative implementation of European social partners agreements: challenges and debates, Working
paper, 09, 2019, European Trade Union Institute, Brussels.

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workers in the Union, capable of allowing a decent life whatever the kind of job that was
performed. As it is known, it is at this point that the parties decided to stop the social dialogue
on the matter and the Commission presented the proposal for a directive of October 2020.4


2. The disputed competence and the ‘toolbox’ shared between the Union and the
Member States.

   The issue of competence remains very topical also regarding the proposed directive,
although the Commission deals with it rather hastily. As a matter of fact, in the explanatory
memorandum, you can read that the secondary source would be ‘based on Article 153(1) (b)
of Treaty on the Functioning of the European Union (TFEU), which prescribes the Union
to support and complement the activities of Member States in the field of working
conditions, ... Since it does not contain measures directly affecting the level of pay, it fully
respects the limits imposed to Union action by Article 153(5) TFEU’. Moreover, in the
application of the principle of subsidiarity, the memorandum explains that ‘while pay at
national level falls unequivocally under the competence of the Member States, the large
differences in standards for accessing an adequate minimum wage are part of working
conditions, and create important discrepancies in the Single Market, which can be best
addressed at Union level’.
   In short, the idea is to move along the crest between pay as a working condition, falling
within the competence of the Union, and pay in general, attributable to the prerogatives of
the Member States.
   This is what those who distinguish between pay as a social obligation, linked to working
conditions and pay as compensation, on which the competence of the Union is excluded, try
to do.5 Such a reconstruction is appreciable even if it implies a further opening to the social
dimension of the Union, which is too optimistic to sustain in this particular historical period.
The representation of pay as a ‘box’ from which it is possible to extract only some ‘tools’
while some others must remain in the ‘toolbox’ of national legal orders will prove very useful.
   Some other scholars6 refer to the difference between direct (prohibited) and indirect
(permitted) interference by the European Union in the matter of pay. An approach of this
kind is based on three profiles: 1) the Laval judgment of the Court of Justice of 2007,7 which
required Sweden to change the national rules on strikes, another matter excluded from the
competence of the Union; 2) the fact that the Member States shall respect the principle of
non-discrimination between men and women (and for other reasons) also in matters of pay;

4 On the change of pace of the European Union represented by the proposed directive, see Treu T., La proposta
sul salario minimo e la nuova politica della Commissione europea, in Diritto delle Relazioni Industriali, 1, 2021, 1-25.
5 Zoppoli L., Sulla proposta di direttiva del Parlamento europeo e del Consiglio relativa a salari minimi adeguati nell’Unione

europea del 28.10.2020 – COM(2020) 682 final, Memorandum for the Labour Commission of the Italian House
of Representatives (4.12.2020).
6 Bavaro V., Borrelli S., Orlandini G., La proposta di direttiva UE sul salario minimo adeguato, Memorandum for the

Labour Commission of the Italian House of Representatives, 2020. On the same wavelength, Treu T., nt. (4),
8-11.
7 CJEU (Grand Chamber), Case C-341/05, Laval un Partneri Ltd [2005].



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3) the conclusions of the Advocate General Sánchez-Bordona of 28 May 2020 concerning
the claim by Hungary to annul Directive 2018/957 on transnational posting of workers.
According to those conclusions Article 153.5 prevents the Union only from adopting
measures that ‘would amount to direct interference by the EU legislature in the determination of pay. That
would be the case if there were an attempt to standardise, in whole or in part, the constituent elements of pay
or the level of pay in the Member States’.8
    On closer inspection, however, it is possible to make some clarifications regarding each
of the profiles described above.
    1) Sweden has indeed intervened on its domestic legislation on strikes (and collective
bargaining) but this has happened because that legislation risked conflicting with the
fundamental freedoms of the Union and in particular with the freedom to provide services.
This is the meaning of the sentence in which the Court of Justice, in the Laval case, rules that
‘in the areas in which the Community does not have competence, the Member States remain,
in principle, free to lay down the conditions for the existence and exercise of the rights at
issue, [though] they must nevertheless exercise that competence consistently with
Community law’.9
    2) The reference to anti-discrimination law is pertinent but needs to be better investigated.
Indeed, one thing is an intervention of the Union in a matter in which it has no competence
by providing for some regulation, while it is quite another to ensure the prohibition of
discrimination or to provide for less favourable working conditions, including pay, on
grounds of sex, race, religion, age, etc. A similar argument can be made for the directives on
atypical work and the application of the principle, therein, of equal treatment to comparable
full-time and permanent workers. This issue, as it is known, was addressed by the Del Cerro
Alonso judgment of the Court of Justice,10 according to which ‘the question whether in
applying the principle of non-discrimination laid down in clause 4.1 of the framework
agreement, one of the constituent parts of the pay should, as an employment condition, be
granted to fixed-term workers in the same way as it is to permanent workers does come
within the scope of Article 137.1.b EC [now Article 153.1.b TFEU] and therefore of
Directive 1999/70 and the framework agreement adopted on that basis’.11 Furthermore, as
regards to discriminatory reasons on the grounds of sex, one has to remember that Article
153.5 had coexisted for a long time with Article 157 TFEU, according to which the Member
States shall ensure the application of the principle of equal pay for male and female workers
for the same work or work of equal value, without anyone ever doubting that the latter
provision contrasts with the exclusion of competence in the matter of pay.



8 Conclusions of Advocate General Sánchez-Bordona, paragraph 92. The italics are mine.
9 Laval, paragraph 87.
10 CJEU (Grand Chamber), Case C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud [2005]. On these

profiles, see Ales E., Article 153 TFEU, in Ales E., Bell M., Deinert O., Robin-Olivier M. (eds.), International and
European Labour Law, Nomos Verlagsgesellschaft, Baden Baden, 2018, 155-165.
11 CJEU (Grand Chamber), Case C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud [2005],

paragraph 47. See Barbera M., Osservazioni sulla proposta di direttiva della Commissione relativa a salari minimi adeguati
nell’UE – COM(2020) 682 final, Memorandum for the Labour Commission of the Italian House of
Representatives, 2020.

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   3) The judgment of the Court of Justice,12 which the conclusions of the Advocate General
reported above refer to, does not seem to be as reassuring, as the Court does not rule on the
profile of competence.
   Hungary asked the Court to annul Directive (EU) 2018/957 by underlining that ‘Article
153(2) (b) TFEU could have constituted an appropriate legal basis since the contested
directive legislates on issues that fall within the scope of that provision more specifically than
within the scope of Articles 53 and 62 TFEU’,13 concerning the freedom of establishment
and the freedom to provide services respectively. However, the Luxembourg judges disagree
with this assumption.14 Furthermore, Hungary plead a violation of Article 153.5 since ‘the
contested directive imposes the application of mandatory rules under the law or national
practices of the host Member State’.15 The Court of Justice, while not agreeing with this
ground of appeal either, does not rule on the issue of competence of the Member States,
preferring laconically to state that there is no violation of the directive since it is true that
‘Article 153(5) TFEU provides for an exception to the competences that the Union derives
from the initial paragraphs of Article 153’ but it is also undeniable that such paragraphs
‘cannot serve as the legal basis for the contested directive and are not, therefore, applicable’.16
Therefore, this decision cannot be used to support the thesis of the compatibility of the
regulation of some aspects of pay with the exclusion of competence of the Union because
the Court of Justice keeps itself away from that issue, by using exclusively the argumentation
of the legal basis.17
   Therefore, the other above-mentioned judgments of the Court of Justice return to be
central. In such decisions, alongside the solution of the concrete case concerning the
treatment of fixed-term workers, it is stated that the action of the Union cannot cover
measures such as ‘the equivalence of all or some of the constituent parts of pay and/or the
level of pay in the Member States, or the setting of a minimum guaranteed Community wage’
since this would ‘amount to direct interference by Community law in the determination of
pay within the Community’.18 Or, again, it is explained that ‘fixing the level of wages falls
within the contractual freedom of the social partners at a national level and within the
relevant competence of Member States’.19
   Summarizing, therefore, from the case-law of the Court of Justice it is clear that the
European Union cannot intervene on the following aspects of pay.
   A) The standardization of the constituent elements of wages.

12 CJEU, Case C-620/18, Hungary v European Parliament [2018].
13 CJEU, Case C-620/18, Hungary v European Parliament, [2018], paragraph 36.
14 CJEU, Case C-620/18, Hungary v European Parliament, [2018], paragraph 69.
15 ‘With respect to the entirety, excepting only supplementary occupational retirement pension schemes, of the

terms and conditions of employment linked to pay, which includes the determination of the amount of that
pay’. Therefore ‘that directive … entails direct interference of EU law in the determination of pay’. CJEU, Case
C-620/18, Hungary v European Parliament, [2018], paragraph 74.
16 CJEU, Case C-620/18, Hungary v European Parliament, [2018], paragraph 80.
17 CJEU, Case C-620/18, Hungary v European Parliament, [2018], paragraph 84, according to which ‘the contested

directive was, correctly, adopted on the legal basis of Article 53(1) and Article 62 TFEU, and … the adoption
of that directive was not contrary to Article 153(5) TFEU’.
18 CJEU (Grand Chamber), Case C-268/06, Impact [2006], paragraph 124.
19 CJEU (Grand Chamber), Case C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud [2005],

paragraph 40.

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   B) The determination and standardization of wage levels.
   C) The setting of a minimum guaranteed EU wage.
   These case-law approaches do not seem limited to the discipline of atypical work but have
a general value. Therefore, returning to the previous metaphor, these are precisely the tools
that must remain in the ‘toolbox’ of the domestic regulation and cannot be traced back and
linked to the working conditions referred to in Article 153.2 TFEU.


3. Some concerns about Article 7 of the proposal.

    Here it is first of all necessary to verify that the proposed directive does not affect one of
the just indicated profiles. To carry out this analysis, one has to distinguish between the
provisions of the proposal applicable to the Member States that do not have a statutory
minimum wage and those concerning the countries in which some statutory provisions on
minimum wage exist. As it will be seen shortly, while there is no objection to the issue of
competence, as regards to the rules applicable to countries without a statutory minimum
wage, at least a provision of the part of the directive which applies to countries that have a
statutory minimum wage (or aspire to have it) may cause some perplexed reactions. Article
7 provides for that the ‘Member States shall take the necessary measures to ensure that the
social partners are involved in a timely and effective manner in statutory minimum wage
setting and updating’ and therefore requires that the States, in the event it has not been
already provided, give the social partners a leading role in setting and updating the statutory
minimum wage.
    At this point, it is good to open a parenthesis. As regards to the role played by the social
partners in legislation on minimum wages, it is known that the most common models in
Europe are through negotiation and thorough consultation. In the former, the social actors
are an integral part of the body that sets the minimum wage.20 In the latter model, however,
the social partners are only consulted by the institutional body without being part of it.21 On
closer inspection, there is also a third model, less widespread, which could be defined as
unilateral, namely the one in which the Parliament (or the Government) sets the minimum
wage without even consulting the social partners.22



20 Or they directly set minimum wages.
21 See Bavaro V., Il salario minimo legale fra Jobs Act e dottrina dell’austerità, in Quaderni di rassegna sindacale, 4, 2014,
70.
22 See Eurofound, Statutory minimum wages in the EU 2016, Dublin, 2016, which refers to the existing rules on this

matter in the EU Member States. Summarizing the report, in some countries the social partners negotiate and
decide independently on the minimum wage level and the state implements it with a legal source. This is the
case of Belgium that does not have a statutory minimum wage, and the social partners negotiate the minimum
wage in the "Conseil National du Travail". In some countries, the social partners negotiate on the minimum
wage and the state only decides when they do not reach an agreement, as in the Slovak Republic and the Czech
Republic. In all the other EU countries, the social partners are consulted as in France but the final decision on
minimum wage increase is taken by the state. In Ireland, an independent Low Pay Commission, with some
members appointed by the social partners (although not delegated by their organizations) and academics,
proposes to raise the minimum wage each year. The state may, however, depart from these recommendations.

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    Then, if the directive were approved without amendments, Article 7 would prevent legal
mechanisms for setting minimum wages that do not contemplate the involvement of the
social partners and, consequently, would require countries that have not already provided for
such mechanisms to amend their national laws in the direction of assigning an at least
consultative role to the social partners. However, this provision seems to exceed the
competence of the Union since it affects a profile closely related to the determination of
wage levels, on which, as mentioned, according to the decisions of the Court of Justice, the
European Union cannot intervene. In a few words, Article 153 TFEU does not seem that it
can be interpreted as meaning that the Union, despite having very limited competence in the
field of pay can impose on the Member States the model of legislation on minimum wages
even only regarding the role that the social partners shall play. Moreover, the fact that the
aim of the directive is precisely to impose constraints of this kind, relating to the choice of
the model of wage legislation, is also evident from the detailed explanation of the specific
provisions of the proposal. The explanation concerning Article 7 says that such a provision
‘requires the Member States to involve social partners in the definition of the criteria referred to in Article 5,
the updates of minimum wages, the establishment of variations and deductions mentioned in Article 6, and
the collection of data and carrying out studies in the field’.23 These are crucial aspects of the minimum
wage, since it is a question, in the former case, of participating in the development of the
criteria to be taken into consideration for wage-setting and updating wages; 24 in the latter, to
possibly provide deductions again by law ‘that reduce the remuneration paid to workers to a
level below that of the statutory minimum wage’.25


4. The provisions of the proposal that apply to Italy and collective bargaining on
wages.

   At this point, it is appropriate to go beyond the issue of Member State/European Union
competence.
   As far as countries that do not have a statutory discipline on the subject are concerned,
such as Italy, the proposed directive on wages is characterized by an implicit admission of
weakness where it states that ‘nothing in this Directive shall be construed as imposing an
obligation on the Member States where wage setting is ensured exclusively via collective
agreements ... to make the collective agreements universally applicable’. This is provided for
in Article 1.3 of the proposal and anticipates that all the provisions applicable to countries in
which there is no legislation on minimum wage do not attribute any obligation to implement
EU law to the social partners if collective agreements are not universally applicable. Indeed,



23 The italics are mine.
24 According to Article 5.2, those criteria shall include the following elements: the purchasing power of statutory
minimum wages, taking into account the cost of living and the contribution of taxes and social benefits; the
general level of gross wages and their distribution; the growth rate of gross wages; labour productivity
developments.
25 Article 6, paragraph 2.



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looking at the provisions of the proposal, prudently none of the duties deriving from the EU
source is placed on the charge of collective bargaining.
    The general provisions apply both to countries that do not have a legal minimum wage
and to those that have passed legislation on the matter.
    Among these, apart from the defining rules, the aim of the directive stands out, i.e. ‘setting
adequate levels of minimum wages’ and guaranteeing ‘access of workers to minimum wage
protection, in the form of wages set out by collective agreements’ (Article 1.1),26 in addition
to the provision on the promotion of collective bargaining (Article 4.1), where, in order to
increase the collective bargaining coverage, Member States shall provide for two measures:
1) promote the building and strengthening of the capacity of the social partners to engage in
collective bargaining on wage setting and 2) encourage constructive, meaningful and
informed negotiations on wages among social partners.
    On the contrary, the provision according to which the States shall establish by law a
framework of conditions favourable to collective bargaining and define an action plan to
promote the same bargaining concerns only the countries where there is a collective
bargaining coverage of less than 70% (Article 4.2).
    As has been already mentioned, therefore, the collective source is not called upon to
implement any aim of the directive. So that the two above-indicated general measures shall
be implemented by the Member States through legal sources, at least in countries such as
Italy where collective bargaining does not have the universal applicability necessary to
implement EU secondary sources.27 For this reason, even Article 13, which allows for the
implementation of the directive to be entrusted to the social partners upon their joint request,
cannot be applied in Italy.
    The horizontal provisions (Articles 9-11) must be added to these. They apply to all the
countries with slight differences depending on whether or not such countries have legislation
on minimum wages.28 Leaving aside the provision on public procurement which I will return
to shortly, attention must be paid to Article 10. Based on this provision, Member States are
required to develop ‘effective data collection tools to monitor the coverage and adequacy of
minimum wages’ and to report to the Commission on an annual basis a set of differentiated
information according to the presence or not of statutory minimum wages. As regards to the
wage protection provided exclusively by collective agreements, the Member States shall
communicate to the Commission: a) the wage distribution weighted by the share of covered
workers; b) the rate of collective bargaining coverage; c) the level of wages for workers not
having minimum wage protection provided by collective agreements and its relation to the
level of wages of workers having such minimum protection.29 Added to this is the duty for

26 On these profiles, see Menegatti E., Il salario minimo nel quadro europeo e comparato. A proposito della proposta di
direttiva relativa a salari minimi adeguati nell’Unione europea, in Diritto delle Relazioni Industriali, 1, 2021, 41-58.
27 On the issue of collective bargaining with a limited applicability, albeit from a different perspective, see Ratti

L., La proposta di direttiva sui salari minimi adeguati nella prospettiva di contrasto all’in-work poverty, in Diritto delle Relazioni
Industriali, 1, 2021, 59-76.
28 On the horizontal provisions see Proia G., La proposta di direttiva sull’adeguatezza dei salari minimi, in Diritto delle

Relazioni Industriali, 1, 2021, 26-40.
29 The provision concerning statutory minimum wages is very similar. In such a case Member States shall report

the following data to the Commission: a) the level of the statutory minimum wage and the share of workers
covered by it; b) the existing variations and the share of workers covered by them; c) the existing deductions;

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the Member States that information regarding minimum wage protection, including
collective agreements and wage provisions therein, is transparent and publicly accessible.30
    Therefore, the implementation duties imposed on Italy are only apparently marginal. The
legislator will have to intervene while the trade unions will not since their sources, as
mentioned, are unable to implement the supranational provisions.
    Moreover, the Italian trade union system is regulated in this matter by the Pact of the
Factory of 2018, which assigns to the national collective agreements the setting of the two
new "containers" of pay, namely the overall wage (TEC) and the minimum wage (TEM). The
former treatment includes the latter, together with all those economic treatments that the
national collective agreement shall qualify as common to all workers in the concerned sector,
regardless of the level of bargaining to which the same national collective agreement will
entrust the discipline.31 According to these clauses, the national collective agreement plays a
dual role: on the one hand, it is the instrument for regulating the TEM; on the other hand, it
is the "director" of the additional economic factors making up the TEC, in the sense that it
is called to identify the common treatments in the concerned sector, by deciding whether to
regulate them directly or entrust their discipline to the firm-level collective bargaining.
    TEC and TEM do not seem to shift the terms of the matter, as case law already takes into
account the minimum wages set by collective agreements.32 Thus, both the difficulty of the
Italian trade union system to self-reform and the fact that such a system cannot deal with the
implementation of a European directive on minimum wages paves the way for a statutory
intervention, the outlines of which are still to be defined.


5. The possible influence on the Italian legislation: from the field of application to
the centrality of the legal reference to collective agreements.

    In addition to the articles that could affect the Italian legal order whether it had to decide
to adopt legislation on minimum wages,33 there are two other provisions of the proposed
directive that could affect our legal order as regards to the current legislation. They are Article
2 and Article 6.1. The former provision concerns the scope of the directive which applies to
‘workers in the Union who have an employment contract or employment relationship as
defined by law, collective agreements or practice in force in each Member State, with
consideration to the case-law of the Court of Justice of the European Union’. The provision
is decisive but it is even more important for Italy that, despite not having general legislation
on minimum wages, presents a series of statutory provisions, to which it is important to
understand whether or not the directive of the Union shall apply.


d) the rate of collective bargaining coverage.
30 Reference has to be made to Article 10.3, according to which ‘Member States shall ensure that information

regarding minimum wage protection, including collective agreements and wage provisions therein, is
transparent and publicly accessible’.
31 Paragraph 5.f, Intersectorial Agreement of 2018.
32 Pascucci P., Giusta retribuzione e contratti di lavoro. Verso un salario minimo legale?, Franco Angeli, Milano, 2018,

104.
33 Please refer to what will be said in paragraph 5.



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     Whereas clause n° 17 of the proposal shows that the scope of the directive is broad but
it is not so broad as to include self-employment. As a matter of fact, ‘genuinely self-employed
persons do not fall within the scope of this Directive since they do not fulfil’ the criteria
established by the Court of Justice for determining the status of a worker, which are well
summarised in the FNV Kunsten decision.34
     Therefore, none of the provisions of the directive would apply to Italian legislation
concerning the remuneration of some categories of self-employed workers, such as Article
1.1, Law 233/2012 on independent journalistic work,35 Article 13-bis, Law 247/2012 on self-
employed work performed within and outside professional associations,36 and Article 47-
quater, Legislative Decree 81/2015 on independent delivery workers.37
     More attention should be paid, however, to those cases in which legislation refers to
dependent work by not intervening directly to set minimum wage but assigning this function
to the collective agreements concluded by the comparatively most representative social
partners at the national level.
     The most important case is that of co-operative work. The provision relating to this is
Article 7.4, Law Decree 248/2007, converted into Law 31/2008.38 The legislator considers

34  ‘It is settled case-law that the essential feature of that relationship is that for a certain period of time one
person performs services for and under the direction of another person in return for which he receives
remuneration’: CJEU, Case C-413/13, FNV Kunsten Informatie en Media, [2013], paragraph 34. On this profile,
it is allowed to refer to Delfino M., Statutory minimum wage and subordination. FNV Kunsten Informatie Judgment
and Beyond, in Laga M., Bellomo S., Gundt N., Miranda Boto J.M. (eds.), Labour law and Social rights in Europe: the
Jurisprudence of the International Courts, Gdańsk University Press, Gdańsk, 2017, 39-46.
35 The law provides for the payment of a “fair compensation” proportionate to the quantity and quality of the

work performed. In addition, fair remuneration shall be determined taking into account consistency with the
treatments provided for by the national collective bargaining, which applies to journalists with a contract of
employment. Fair compensation is set by the Commission referred to in Article 2, Law 233/2012, established
at the Department for Information and Publishing of the Presidency of the Council of Ministers and chaired
by the Secretary to the Presidency of the Council with responsibility for information. The Commission has an
atypical equal composition since of its seven members only two are representatives of the social partners; three,
including the chairman, are members or representatives of the Government; one member is appointed by the
National Council of the Journalists Association and another one by the National Insurance Institute for Italian
Journalists.
36 The provision refers to lawyers enrolled in the register who provide professional services (under a self-

employment status) regulated by agreements concerning the performance of the activities typical of the legal
profession. These services shall be performed in favour of banking and insurance companies, as well as
companies that do not fall within the categories of micro or small or medium-sized enterprises. Article 13-bis.2
requires that the professional is entitled of fair compensation, which has to be proportionate to the quality and
quantity of the work performed as well as to the content and characteristics of the legal service, without any
reference to sufficiency. Instead, a difference from self-employed journalists is that there is no mechanism for
determining the compensation and its setting is left to some conventions, which however shall take into account
the parameters contained in the regulation referred to in the decree of the Minister of justice adopted under
Article 13.6, Law 247/2012.
37 1. The collective agreements concluded by the comparatively most representative trade union and employers’

organizations at the national level can define criteria for determining the overall compensation. Such criteria
shall take into account the methods of performance of the service and the organization of the client.
2. Lacking these agreements, the workers referred to in Article 47-bis cannot be remunerated on the basis of
the deliveries made and the same workers shall be guaranteed with a minimum hourly compensation
parameterized to minimum wages set by national collective agreements of similar or equivalent sectors
concluded by the comparatively most representative trade unions and employers' organizations at the national
level.
38 According to this provision, in the presence of a plurality of collective agreements of the same sector, the

cooperative companies that carry out activities included in the scope of application of those agreements shall

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as the reference pay that is provided in the collective agreements concluded by the trade
unions that have higher representativeness in the concerned sector.39
    If this intervention were considered a statutory minimum wage, although limited to some
workers, the proposed directive would be applicable with the consequence of having to verify
the compliance of the domestic discipline with the provisions of EU law. However, some
indications, in EU and domestic law, suggest a negative answer to the question. Indeed, from
the provisions of the proposal concerning minimum wages, including the whereas clause, it
is clear that the European Union, when it refers to the statutory minimum wage, is thinking
of a model in which this minimum is set directly by the law or is set, directly or indirectly (i.e.
by delegating to a body established for this purposes), by the legal source and not instead to
a reference to collective bargaining. The Italian Constitutional Court seems to agree. This
Court, in affirming the legitimacy of the law on cooperative work, ruled that the collective
agreements referred to in Article 7.4, Law Decree 248/2007 and more precisely the total
minimum wage provided therein can be considered as an external parameter of
commensuration by the judge in defining the proportionality and sufficiency of pay
according to Article 36 of the Constitution.40 Therefore, even the Constitutional Court does
not consider this to be a provision introducing a statutory minimum wage for cooperative
workers but rather an article that identifies in those collective agreements the external
parameter of proportionate and sufficient pay.
    A similar discourse can be conducted for workers in the third sector. It should be
remembered that the profiles on which the Legislative Decree 3 July 2017 n° 112 (the so-
called Social Enterprise Reform) are twofold. First, the decree provides that the workers of
the social enterprise have the right to an economic and regulatory treatment not less than
that provided for by the collective agreements referred to in Article 51 of Legislative Decree
81/2015.41 The second profile concerns only social enterprises, one of the types of bodies
operating in the third sector,42 for which a ban on even indirect distribution of profits is
established and the distribution of profits is equated with the payment to the dependent
workers or self-employed salaries or remuneration higher than 40% compared to those
provided, for the same qualifications, by the collective agreements referred to in Article 51
of Legislative Decree 81/2015 except for proven needs relating to the need to acquire
specific skills to carry out activities of general interest.43 However, this is not minimum wage

apply to their working members the overall remuneration not lower than those set by the collective agreements
stipulated by the comparatively most representative employers and trade union's organizations at national level
in the sector.
39 Bellavista A., Il salario minimo legale, in Diritto delle Relazioni Industriali, 3, 2014, 741-755 and Ichino P., La nozione

di giusta retribuzione nell'articolo 36 della Costituzione, in Rivista Italiana di Diritto del Lavoro, 4, 2010, I, 719-768.
40 Constitutional Court’s decision 50/2015, paragraph 5.3.
41 Article 16, Legislative Decree 112/2017.
42 That is, according to Article 1.1, Legislative Decree 112/2017, private bodies that carry out business activity

of general interest, non-profit, for civic, solidarity, and social utility purposes on a stable and main basis, by
adopting responsible and transparent management and favouring the widest involvement in their activities of
workers, users and other interested individuals.
43 Article 3, Legislative Decree 112/2017. In these cases, the wage protection of workers remains in the

background since the rationale is above all to avoid the abuse of the advantages provided by the legislator for
carrying out activities characterized by purposes of primary social importance: Zoppoli L., L’«equo compenso» tra
contratto collettivo e legge, in Carabelli U., Fassina L. (eds.), Il lavoro autonomo e il lavoro agile alla luce della legge n.
81/2017, Ediesse, Roma, 2018, 73.

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legislation either, so that there would be no problem of compliance with the directive once
it was passed.
    On the other hand, the issue of minimum wages appears different concerning work in
public procurement because, in this area, there is a specific provision in the proposed
directive, Article 9, i.e., as mentioned, one of the horizontal provisions. According to that
article, ‘Member States shall take appropriate measures to ensure that in the performance of
public procurement or concession contracts economic operators comply with the wages set
out by collective agreements for the relevant sector and geographical area and with the
statutory minimum wages where they exist’.
    Looking at the rules of the 2016 public contracts code44 on this profile, the economic (and
regulatory) treatment provided for by the collective agreements concluded by the
comparatively most representative employees’ and employers' associations at the national
level is considered crucial in the procurement discipline.45
    In particular, this treatment has the following characteristics:
          1) It is a principle for the award and execution of contracts,46 to be applied even in
             the case of subcontracts.47
          2) It is crucial in assessing the adequacy of the offer with which you participate in
             the tender,48 or the obligations regarding subcontracting.
          3) It is decisive for participation in the tender procedure.49
    Finally, Article 50 of the code of the public contract provides that for the awarding of
concession contracts and contracts for works and services other than those of an intellectual
nature, the calls for tender notices and invitations insert specific social clauses aimed at
promoting employment stability of the staff, providing for the application by the successful
bidder of the national collective agreements referred to in Article 51 of Legislative Decree
81/2015. It should be emphasized that in the latter case the reference is not generically to
the national or territorial collective agreements concluded by the comparatively most
representative associations of employers and workers at the national level but to the
collective agreements, and moreover only the sectorial ones, provided for by Article 51,
Legislative Decree 81/2015, thus highlighting a strong analogy with the provisions regarding
work in the third sector.

44 The reference is to Legislative Decree 18 April 2016 n° 50, as amended by Legislative Decree 19 April 2017
n° 56.
45 Izzi D., Lavoro negli appalti e dumping salariale, Giappichelli, Torino, 2018, 105-113 and Forlivesi M., La

rappresentatività datoriale: funzioni, modelli, indici di accertamento, in Lavoro e Diritto, 3, 2018, 529.
46 The national and territorial collective agreements in force for the sector and the area in which the work is

performed are applied to the personnel employed in the works, services and supplies within public
procurement: Article 30.4, Legislative Decree 50/2016, as amended by Article 20.1.a, of Legislative Decree 19
April 2017 n° 56.
47 The legislator reiterates that the contractor is required to fully observe the economic and regulatory treatment

established by the national and territorial collective agreements in force for the sector and the area in which the
services are performed (Article 105.9, Legislative Decree 50/2016).
48 The offer is considered abnormally low if the contracting authority has ascertained non-compliance with the

environmental, social and labour duties established by EU and domestic legislation, and also by collective
agreements (Article 30.4, which is recalled by Article 97.5, Legislative Decree 50/2016).
49 This is because the economic operator can be excluded when the contracting authority demonstrates the

presence of serious infringements duly ascertained to the rules on health and safety at work as well as to the
duties referred to in Article 30.3 (see Article 80.5.a, Legislative Decree 50/2016).

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   The centrality of collective bargaining in determining minimum wages in public contracts
and concessions makes Italian legislation compliant with the relevant provision of the
proposed directive. Therefore, if the directive were approved in the version that has been
described here, it would be difficult to repeal the domestic provisions contained in the code
of the public contracts.
   A different issue is the possibility to amend those rules so that it would be legitimate from
a supranational point of view if the Italian legal order intervened on the bargaining levels of
and/or otherwise selected the collective agreements because the EU secondary source does
not deal with these profiles. Therefore, the domestic legislator, after the possible approval of
the directive, could reform the provisions on the matter, for example by standardizing the
rules on work in public procurement with those on cooperative work.


6. The different ways to implement the aims of the directive in Italy.

   It seems very evident from what has been said so far that the appearance of the proposed
directive is deceiving. The main consequence for the Italian legal order would not be the
need to approve a law on minimum wages, which is being discussed in Parliament where
some bills have been presented,50 being conscious that, if one chose to follow this path, the
presence of such a directive would impose some constraints. Rather, if the minimum wage
were not intended to be regulated by law, the legislator would not be exempted from
regulating the field of pay. As we have seen, the directive also imposes some duties on
domestic systems without statutory minimum wages, which collective bargaining would not
be able to implement in the Italian order. Therefore, given that it would not be necessary to
implement Article 7, which, as mentioned, seems to exceed the competence of the Union,
there are two options: either the Italian legal order is considered as already compliant with
the provisions contained in the proposed directive or a domestic statutory intervention is

50In this legislature, the Five Star Movement proposed a bill on minimum wages (12 July 2018 n° 658, entitled
Provisions for the establishment of the minimum hourly wage) quite different from that presented in the
previous legislature (27 November 2014 n° 1697), which is essentially aimed at generalizing the mechanism set
up in co-operative work. The new bill contemplates the value of 9 euros per hour gross of social security
contributions as a minimum wage threshold. At the same time, it considers as the proportionate and sufficient
overall remuneration that one set in the national collective agreement in force for the sector in which work is
carried out, which was concluded by the most representative employers 'and workers' associations at the
national level defined according to the procedure for the appointment of the representatives in the CNEL, i.e.
taking into account the extent and diffusion of their organizational structures, the number of their members,
their effective participation in the of national collective agreements and the settlement of individual and
collective labour disputes. And this provision should also extend to hetero-organized collaborations according
to Article 2, Legislative Decree 81/2015. In the 18th legislature, another bill was presented (3 May 2018 n°
310), entitled Establishment of the minimum hourly wage, on the initiative of some senators of the centre-left
opposition to the Five Star Movement-League Administration (Laus, Astorre, Boldrini, Cirinnà, Cucca,
Garavini, Giacobbe, Manca, Misiani and Pittella). This bill also chooses to set the minimum hourly wage at 9
euros net per hour, to be increased every year according to Istat parameters. However, it is proposed to assign
a leading role to a ministerial decree which, after an agreement with the comparatively most representative
employers' and workers' associations at the national level, should identify the contracts to which the discipline
of the minimum hourly wage should be extended, as well as the cases of exclusion of the same discipline. Failure
to comply with the proposed provisions by employers is hit with an administrative fine ranging from a minimum
of 5,000 to a maximum of 15,000 euros.

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necessary. It has already been said that, regarding public procurement, there is a (casual)
compliance with the corresponding provision of the directive, while the situation is different
for the other provisions, from the general provisions to the horizontal ones, to the rules
concerning the countries where minimum wages are set by collective bargaining. Indeed, it
should be noted that it is up to the Member States to implement some aims such as to a)
promote the building and strengthening of the capacity of the social partners to engage in
collective bargaining on wage-setting; b) encourage constructive, meaningful, and informed
negotiations on wages among social partners (Article 4.1); c) develop effective data collection
tools to monitor the coverage and adequacy of minimum wages (Article 10.1); d) ensure that
information regarding minimum wage protection, including collective agreements and wage
provisions therein, is transparent and publicly accessible (Article 10.3). On closer inspection,
the last two aims could be considered to have already been achieved thanks to the presence
of the CNEL, a body of constitutional importance, which is responsible, among other things,
for collecting the concluded national collective agreements.51 On the contrary, the first two
aims, actually rather generic, do not seem to be pursued by Italian legislation. The
generalization of the mechanism for determining the minimums provided for cooperative
work or the selective recourse to collective bargaining would facilitate the achievement of
the first two aims. Of course, this is not essential. Alternatively, one could: 1) intervene with
some statutory provisions aimed at supporting the social partners that would achieve the
same aims with different means; or 2) decide to introduce a statutory minimum wage, which,
however, would bring with it the need not only to implement the aforementioned aims but
also to fulfil the EU duties contained in the part of the directive reserved precisely for legal
minimum wages.
    However, one fact is clear. The proposed directive has the merit of having rekindled the
lights on the issue of statutory minimum wage, at the centre of attention of the political
debate, as shown by the bills mentioned above but also case law because the highest Italian
courts, i.e. the Constitutional Court and the Corte di Cassazione, seem to support an
intervention by the legislator on the matter, naturally limiting themselves only to tracing the
paths that can be followed. An example of this is the decision of the Corte di Cassazione of
20 February 2019 n° 4951 on minimum wages for cooperative work, according to which,
following the judgment of the Constitutional Court no. 50 of 2015, the fact that over time
collective bargaining has been the source implementing the protection referred to in Article
36 of the Constitution, does not prevent the legislator from intervening to set the sufficient
pay, through for instance the provision of statutory minimum wage, suggested by the ILO
as a policy to ensure a fair wage.52 The impression is that the approval of the directive, and
ultimately the implementation of its provisions in Italy, could constitute an opportunity to
address the issue of statutory intervention, proposing again the choice between a general law

51 Article 10, l. December 30, 1986, n. 936, a source that implements Article 99 of the Constitution, in specifying
the scope of the matters in which the CNEL activity insists, refers to the regulatory and remuneration structures
expressed by collective bargaining and to the keeping of the National Archive of collective agreements.
52 That is, in the matter under examination, the overall remuneration not lower than those set in the collective

agreements concluded by the comparatively most representative employers and trade union organizations at
the national level in the sector (Article 7.4, Law Decree 248 of 2007, converted into Law 31 of 2008, precisely
on cooperative work on which I focused above).

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on trade union representation and representativeness, a 'lighter' law to support collective
bargaining or the introduction of proper statutory minimum wage.




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Copyright © 2021 Massimiliano Delfino. This article is released under a Creative Commons
Attribution 4.0 International License




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