THE ITALIAN SUPREME COURT RULES ON THE CREDITING BY INPS (ITALIAN NATIONAL SOCIAL SECURITY INSTITUTION) OF CONTRIBUTIONS OMITTED BY THE EMPLOYER.

With regard to the regularisation of the contribution position, the most recent ruling of the Italian Supreme Court – Labour Section, no. 701 of 9 January 2024 – concerning the worker’s right to the crediting of contributions omitted by the employer with INPS (Italian National Social Security Institution), is of particular relevance.

The plaintiff, in the context of a dispute with INPS (Italian National Social Security Institution) for the regularisation of his contribution position, raised several issues seeking clarity on the possibility of requesting the automatic crediting of contributions not paid by the employer.

The Supreme Court, in rejecting the appeal, clearly established some principles, namely:

1) “Except in the case of rejoining the insurance periods, referred to in law 29/79, and also without prejudice to the special hypothesis referred to in article 3, of Legislative Decree 80/92, the principle of automaticity of services, referred to in article 2116, paragraph 1, of the Italian Civil Code, does not entail any automatic crediting of non-required contributions whose payment has been omitted in whole or in part by the employer, but consists in guaranteeing the worker the social security benefits to which he is entitled pursuant to article 2114 of the Italian Civil Code even when the employer has failed to pay contributions";

2) «Due to the protection ensured by the principle of automaticity of social security benefits, referred to in article 2116, of the Italian Civil Code, and the compensation referred to in article 2116, paragraph 2 of the Italian Civil Code, the worker, in case of failure to contribute by the employer, has no right to take action against social security institutions to obtain the regularization of his/her contribution position, not even in the case in which these institutions , despite his complaint, have not recovered the contributions owed by the employer and these are timebarred, being able only to take action against the employer where the failure to comply with the contribution obligation has led to the loss of social security benefits;

3) «Article 54, law n. 88/89, guarantees the worker the right to correct information regarding the consistency of his contributory position, which, if unsatisfied  due to the failure or incorrect determination by the social security institution, can be asserted in court against the latter exclusively with regard to liability for any damages resulting from incorrect information, without derogating in any way this provision from the rule set out in the article 2116, paragraph 2, of the Italian Civil Code, according to which the employer is liable for  the damage resulting from failed or irregular contributions, which resulted in a total or partial loss of the benefits due to the worker pursuant to article 2114 of the Italian Civil Code;

4) Finally, «there is a necessary initial dispute between the worker, the employer and the social security institution, pursuant to art. 102 Code of Civil Procedure, only in the presence of a request from the worker aimed to obtain an order from the employer to pay to the social security instituions the omitted contributions, based on the need to ensure a useful result for the plaintiff, but not also when the worker has sued the social security institution in order to obtain the regularization of his contributory position, without prejudice to the possibility of the institution to sue the employer to have him condemned to pay the contributions due, pursuant to art. 106 Code of Civil Procedure, or of the judge to summon the employer, pursuant to art. 107 Code of Civil Procedure and without prejudice to the fact that, in such cases, the decision taken by the first judge, involving discretionary assessments, is not susceptible to either appeal or appeal to the Supreme Court ".

author: Dott. Federico Benedetti