President: P. D’Ascola
Speaker: C. Marotta
The United Civil Sections, ruling on a general question of particular importance (referred by the Labor Section with interlocutory order no. 2121 of 24 January 2023), declared it relevant and not manifestly unfounded – in reference to the articles. 2, 3, 4, 35 and 36 Constitution, art. 9 of the Charter of Fundamental Rights of the European Union and art. 117, paragraph 1, Constitution, in reference to articles. 8 and 12 of the European Convention on Human Rights – the question of constitutional legitimacy of the art. 230 bis of the Civil Code, a rule which, in the first paragraph, provides that «the family member who continuously works in the family or in the family business has the right to maintenance according to the financial condition of the family and participates in the profits of the business family member and the goods purchased with them as well as the increases of the company, also with regard to goodwill, in proportion to the quantity and quality of the work performed” and, in the third paragraph, indicates that “for the purposes of the provision referred to in the first paragraph family members include the spouse, relatives up to the third degree, relatives up to the second degree; a family business is one in which the spouse, relatives up to the third degree, and relatives up to the second degree collaborate”, but does not include the more uxorio cohabitant among the family members.
Starting from the preliminary consideration regarding the inapplicability ratione temporis of the art. 230 ter cc (introduced by art. 1, paragraph 46, ln 76 of 2016), which is also insusceptible of application or retroactive interpretation, the doubt of constitutional legitimacy concerns the potential unreasonableness of the differentiated treatment of the work performed in the company by the cohabitant compared to that of the family member, which cannot be overcome by the SC through an extensive interpretation – and compliant with the Constitution, the Charter of Fundamental Rights of the European Union and the principles enunciated by the ECtHR – of the art. 230 bis of the Civil Code due to the insurmountable text of the provision and the risks of system dystonia generated by such a reading.