L'indebito retributivo nella disciplina del lavoro alle dipendenze delle pubbliche amministrazioni

Mastinu, Enrico

2023-01-01

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Abstract

This essay analyzes the matter of the payment of undue salaries to civil servants. The study develops two sides: the causes of undue payment; the conditions of its refund. At the level of the causes of undue, the study proposes a series of distinctions and makes the subject of separate analysis the so called undue contractual (invalidity of the contract), and the so called undue noncontractual (absence of contract). On the subject of contractual undue payments, which is the quantitatively largest hypothesis, the widespread idea that any situation of invalidity of the collective agreement on the basis of which emoluments were made to staff would automatically generate undue payments is subject to critical scrutiny. At the level of the conditions of the restitution of undue payments, the analysis critically confronts the recent arrest of the Constitutional Court (Constitutional Court 8/2023), which rejected the constitutional legitimacy objection raised in relation to Article 2033 of the Civil Code. Starting from the perspective of enhancing the resources present in the domestic legal system, endorsed by the “Consulta”, the study endeavors to recompose in a unified framework the various measures of protection of the public employee in the face of claims for restitution coming from the employing administration.