Since the Commissioner for the Spending Review addressed the issue in his hearing in the Senate, the issue of an intervention on pensions continues to be the subject of reflection, with the idea of ticking off, even through temporary interventions, at least the "highest" pensions. Whether there is agreement on which pensions are "higher" is difficult to say. They range from those who want to intervene on pensions exceeding 2.500 euros to those who believe that 10.000 euros is the adequate threshold, only to note that the recipients of such high pensions are only a handful. And how then? With an extraordinary tax, or permanent, or in relation to the difference between the value of the salary pension and what would have accrued on the basis of the contributions paid?
However, the different solutions and their feasibility must be considered not only in relation to the potential effects on the public budget, but their impact on the rights that the legal system guarantees to those who receive pensions: in a word, their constitutional legitimacy, and in particular of their adherence to the guiding principles established by the Constitutional Court. Indeed, there is no doubt that any reform will be questioned by the citizens who will be affected before the courts. And that these will end up asking the Court whether the rules are compatible with our charter of fundamental rights: and the Court will hardly be able to move much from the positions already affirmed several times.
In particular, in sentences 223 of 2012 and n. 116 of 2013, which declared the unconstitutionality of two laws which in 2011 established solidarity contributions, modulated by brackets and temporary (until 2014), towards the incomes of civil servants and pensions exceeding 90.000 euros, the Court has statute two principles. The first is that they are not compatible with the principles of equality before the law and of the ability to pay taxes that affect only some recipients of the same type of income: the sacrifices imposed by the need to deal with the fiscal crisis must fall on all taxpayers on the basis of their ability to pay, and cannot be concentrated on a certain class of taxpayers (in this case, pensioners)
The second, even more important for our purposes, is that pension income is entitled to special protection. In fact, unlike labor income, pension income corresponds to legal situations that are now concluded and no longer susceptible to revival; the pensioner cannot compensate for the reduction in his income as a result of the tax by working more or looking for another job: and this is why his income deserves special protection.
In the light of these principles, one wonders whether there is room for a specific intervention on pensions, respectful of the principles of fairness on which the principles affirmed by the Court are based. It seems difficult, but perhaps some ways can be attempted.
In particular, as regards the first principle, of equality in taxation in relation to the ability to pay, one may wonder whether alongside the principle of horizontal equity one should not take into account a principle of vertical equity. As noted when commenting on the 2013 ruling, the pensions paid to current pensioners are wholly or partly calculated with the wage system, while a large part of those who receive income from work, and in particular the younger ones, will receive a pension calculated with the method contributory. To the extent that the pension does not correspond to the income from the contributions paid, pensioners effectively receive an intergenerational transfer in their favor from the other taxpayers. Their incomes are qualitatively different. And this could justify a differential treatment on pensions whose value exceeds that of the pension calculated on the contributions paid.
Two observations could be made in this regard: the first is that the calculation of contributions applies only to private workers, since there was no accumulation of contributions for public workers until the transfer of management to INPS. But obviously this does not prevent the reconstruction of the "virtual" contributions of public employees by applying the most favorable INPS rates to historically received salaries. The main objection is instead that according to this criterion probably a good part of the low pensions (and here we mean the really low ones, just above the minimum pension) would not be covered by the contributions paid). And here it is necessary to consider two aspects concerning the second principle enunciated by the Court, which justifies the particular protection for retirement income.
Should the protection of the pensioner's legal situation be considered absolute? Or it can be held that the protection that must be guaranteed to those who have made irreversible choices relying on the guarantee of a pension income may find a limit in the fact that the latter is basically always a public transfer and that therefore could well know a limit on the basis of criteria of reasonableness and proportionality of the burden imposed on who finances the transfer? Put simply: it could be argued that the principle should certainly apply up to a certain pension level, but could it be relaxed beyond that? The problem seems to be that this level should be high enough. But if it were, then the idea of a pension tax above a certain level and only on the part exceeding the income stream deriving from contributions paid could be pursued.
