In collaboration with the magazine “Lavoro, Diritti, Europa”
How far does the right of workers to strike go – a social achievement that dates back a century and a half – and the equally right of citizens not to suffer excessive inconveniences that compromise their daily lives, protected by the power of injunction by of Government and Prefectures? The online labor law magazine Lavoro Diritti Europa, directed by Piero Martello, dedicates an extensive dossier to the issue, on the very day of the general strike of public services called by CGIL, UIL and other independent trade unions.
A recent ruling by the TAR of Lazio clarified the limits of the power of injunction, redefining the role of the government authorities and the Guarantee Commission. Injunction, an institution that allows the Government or Prefects to order the resumption of work in the event of strikes, has been the subject of debate for some time. This instrument is provided for by law 146/1990, which entrusts the Guarantee Commission with the task of reporting situations of “serious and imminent damage” to constitutionally protected rights. However, government authorities retain an autonomous power to intervene in cases of “necessity and urgency”, an overlap that has generated frequent interpretative conflicts.
The clarification of the TAR
With the ruling of March 2024, the Lazio TAR set more stringent limits for the exercise of the power of precept by the Government or the Prefects. The judges underlined that this power can only be exercised in extraordinary and unexpected situations, which do not fall within the assessments already carried out by the Guarantee Commission. Any seizure order that does not comply with these criteria risks being considered an abuse of power.
Second Maria Paola Monacoprofessor at the University of Florence, this decision reaffirms the principle of separation between the competences of the independent authority (the Guarantee Commission) and those of the government authorities. Umberto Izzo, of La Sapienza University, adds that the ruling represents an important step forward in the “actio finium regundorum” between the two bodies (a Latin phrase which literally translates as “action to regulate borders”), helping to reduce ambiguities and overlaps.
A clearer future for the right to strike
The central role of the Guarantee Commission is further strengthened: it is up to this body to evaluate the strike methods in advance and propose any corrective measures, leaving the government authorities with residual and extraordinary intervention. This structure aims to guarantee greater balance and transparency, preventing injunction from becoming an ordinary tool for limiting conflict.
As the professor observes Giovanni Pinohead of cabinet of the Guarantee Commission on the right to strike, who offers in an article of the dossier a real excursus of the precept, the real objective remains that of protecting the rights of users without compromising the freedom to strike, in compliance with the principles constitutional. The TAR ruling thus marks a turning point, bringing the need for clearer regulation that respects the competences of each institutional actor back to the center of the debate.
According to Pino, the recent sentence of the TAR of Lazio n. 6084 of 28 March 2024 has shed new light on the complex relationship between the Guarantee Commission and the authorities holding the power of precept, such as the Government and the Prefects. This jurisprudential intervention has highlighted the ambiguities and overlaps that characterize the application of law 146/1990, a fundamental regulation for the management of strikes in essential public services.
The critical issues of the current system
Law 146 assigns the Guarantee Commission the task of reporting situations in which a strike could put constitutionally protected rights at risk, while leaving the Government and Prefects the possibility of adopting precept orders in cases of necessity and urgency. However, in practice, this autonomy has often been exercised without respecting the “serious and imminent harm” criteria required by the legislation. There has been no shortage of cases in which strikes deemed legitimate by the Commission were nevertheless precluded, often with reasons that reflected more political or economic interests than real urgent needs.
Furthermore, the intersection of responsibilities between the Commission and the precepting authorities has generated confusion. The Commission, although it does not have the direct power to precept, can defer strikes or propose specific measures to limit their impact, but these indications are not always respected.
A structural problem
The use of injunction has shown its limits, highlighting the urgency of a reform. Gino Giugni, one of the main architects of law 146, had already proposed to overcome this institution, considering it a repressive rather than regulatory legacy. His idea was to entrust conflict management in essential public services to an independent authority, such as the Guarantee Commission, to avoid political interference and ensure balanced and impartial decisions.
However, the resistance of the Government, in particular of the Ministry of the Interior, blocked any hypothesis of radical reform. Instead, we opted for a review of the system, introducing more stringent procedural rules, but without completely eliminating regulatory overlaps.
The role of the Lazio TAR ruling
The TAR ruling further strengthened the role of the Guarantee Commission, underlining that the autonomous power of precept must be exercised only in the presence of extraordinary and unexpected needs, which cannot be foreseen by the Commission. Any ordinance that does not respect these criteria risks being seen as an excess of power, delegitimizing the intervention of the precepting authorities.
The TAR clarified that the Government and the Prefects cannot ignore the assessments of the Commission, whose task remains that of guaranteeing the balance between the right to strike and the protection of users’ fundamental rights.
Future prospects
In light of this ruling, the need for an overall rethink of the system for regulating strikes in essential public services appears clear. Devolving all responsibility to the Guarantee Commission could represent a decisive step towards more transparent and effective management, preventing it from becoming the object of exploitation and political convenience of consensus.
