Italy: The Limit of Expression of Opinions in the Exercise of Trade Union Activities

The expression, during the exercise of trade union activities, of opinions extended even to political sphere is legitimate, on condition that the limits of formal and substantive restraint and the principle of relevance are respected.

The expression of opinions in the exercise of trade union activities is legitimate, even when it extends to the political sphere, provided that the limits of formal and substantive restraint are respected, as well as the principle of relevance. This was affirmed by the Supreme Court, with Order no. 2844 of February 9, 2026, ruling on a case involving a trade union representative within Customs and Monopolies Agency, who was disciplined due to certain statements released during an interview on a television investigative program.

In particular, in the context of a broader account of irregularities regarding the contest procedure at the Customs and Monopolies Agency in which the trade union representative had participated, she claimed that there was a link between the alteration of the contest procedures and the aim of creating a “ruling class loyal” to an alleged institutional policy aimed at targeting small taxpayers, while leaving large tax evaders unpunished. These statements led the Customs and Monopolies Agency to initiate against the trade union delegate disciplinary proceedings, which resulted in a verbal reprimand. The trade union to which the representative belonged then brought a legal action under Article 28 of the Workers’ Statute, denouncing the retaliatory and intimidating nature of the employer’s initiative, which was considered to be a restriction of trade union freedom and of the right to criticize. However, this complaint was not upheld either by the Court of first degree or by the Appeal Court.

The decision was, then, challenged by the trade union before the Supreme Court, on the grounds that the Court of first degree had, on the one hand, excluded the anti-union nature of the disciplinary action and, on the other, considered that the statements made by the trade union representative had exceeded the limits of the legitimate exercise of the right to criticize. The Supreme Court, which was requested to rule on the matter, first confirmed that the assessment of whether the employer’s behaviour was retaliatory is a matter of fact reserved to the Court of Merits, and that the burden of proving the subjective element of intimidatory intent lies with the party alleging it. Furthermore, the Supreme Court ruled that the sanction’s possible extra-disciplinary effects are not enough to automatically constitute a violation of trade union freedom protected by Article 28 of the Workers’ Statute.

From a substantive viewpoint, the Supreme Court, then, referred to the established principles on the right to criticize, clarifying that, while it is true that trade union activity can also extend to the political sphere and the broader “democratic structure of society”, it is equally true that it remains subject to the limits of formal and substantive restraint, as well as to the principle of relevance. In the case at hand – the Supreme Court continued – since the tone and manner of communication cannot be considered socially inappropriate, (only) substantive restraint and the principle of relevance come into importance: the former does not need the absolute truth of the facts on which the criticism is based, but requires at least putative truthfulness, i.e. that the statements can be subjectively inferred from the context and known facts; the latter, on the other hand, requires that the statements be traceable to an interest worthy of protection, directly or indirectly related to working conditions and the company, since criticism that is objectively unrelated to the employment relationship and wantonly aimed at damaging the employer’s reputation must be considered to exceed this limit.

That said, the Supreme Court upheld the decision of the Appeal Court, considering correct the distinction made by the latter between the report of irregularities in the competition – which was not included in the disciplinary proceedings – and the further statement that these irregularities were part of a deliberate “policy of fiscal harassment against small taxpayers”. That last statement, in the absence of even circumstantial evidence, was found to be a mere inference, capable of seriously damaging Public Authority’s image and undermining the relationship of trust between citizens and the State, so that the violation of both the requirement of putative truthfulness and the principle of relevance is, according to the Supreme Court, beyond doubt.

Key Action Points for Human Resources and In-House Counsel

• The right to criticize can allow opinions extended even to political sphere on condition that this is in compliance with either the limits of formal and substantive restraint and the principle of relevance;
• Formal and substantive restraint does not need the absolute truth of the facts on which the criticism is based, but requires at least putative truthfulness, i.e. that the statements can be subjectively inferred from the context and known facts; whereas the principle of relevance, on the other hand, requires that the statements be traceable to an interest worthy of protection, directly or indirectly related to working conditions and the company, since criticism that is objectively unrelated to the employment relationship and wantonly aimed at damaging the employer’s reputation must be considered to exceed this limit.