Failure to pay social security contributions: the Constitutional Court upholds the validity of the administrative sanction

In Judgment No. 103 of 8 July 2025, the Constitutional Court rejected the question of constitutionality raised by the Brescia Court in relation to Article 3 of the Constitution, concerning Article 2, paragraph 1-bis, of Decree-Law No. 463/1983, as amended by Article 23, paragraph 1, of Decree-Law No. 48/2023 (“Labour Decree”). The contested provision stipulates that, in the event of failure to pay social security and welfare contributions withheld from employees’ wages — for amounts not exceeding €10,000 per year — the employer is subject to an administrative fine ranging from one and a half to four times the unpaid amount.

The question raised by the Brescia Court

The constitutional issue was referred in August 2024 by the Brescia Court, acting as a labour court, in proceedings relating to unpaid contributions for the period 2013–2015 amounting to €7,153. Initially, the National Social Security Institute (INPS) imposed an administrative fine of €73,000. Following the entry into force of Decree-Law No. 48/2023, the Constitutional Court ordered the case to be returned for reconsideration, and INPS recalculated the fine, reducing it to €13,714. Article 23 of the Decree provides for a sanction “from one and a half to four times the unpaid amount”, based on the contributions not paid, with the aim of ensuring a proportional and sustainable application for non-compliant parties.

Persistence of the constitutional question

Despite the legislative amendment, the referring court maintained that doubts of constitutionality persisted, again highlighting the disproportionate nature of the statutory minimum fine in relation to the actual seriousness of the breach. The Court also stressed the potential for unreasonable outcomes, including the possibility that those failing to pay amounts below the €10,000 threshold might be subject to a harsher sanction than the criminal penalty — when converted into a pecuniary fine — imposed on an employer responsible for higher omissions. Furthermore, according to the Brescia judges, the legislation fails to adjust penalties for omissions caused by external circumstances, disregarding the offender’s personal situation and thereby infringing the principle of equality under Article 3 of the Constitution.

The Constitutional Court’s position

In Judgment No. 103/2025, the Constitutional Court upheld the validity of the provision. In rejecting the constitutional challenge, it first reaffirmed that the legislature enjoys wide discretion in determining applicable penalties for criminal offences and, by extension, for administrative sanctions. The Court also found that the sanction is neither unreasonable nor arbitrary, as the conduct in question involves appropriating funds belonging to employees and intended for the social security system, which finances essential benefits. Consequently, the sanction was deemed proportionate to the seriousness of the conduct and consistent with the level of protection accorded to workers as the weaker party in the employment relationship.

Moreover, when assessing the comparison between criminal and administrative liability, the Court stressed that such a comparison — based purely on arithmetic — lacks genuine legal significance if carried out in isolation. In its view, the observation that exceeding the €10,000 threshold could result in a criminal fine arithmetically lower than the administrative penalty below that threshold fails to take into account the more severe nature of criminal sanctions. Criminal proceedings carry significantly more burdensome indirect consequences, such as accessory penalties or compensation obligations, which materially affect the overall severity of the sanction.

In light of these considerations, the Court found no grounds for declaring the sanction regime for unpaid contributions unconstitutional, recognising the adequacy of the measure in deterring conduct that undermines compliance with social security obligations.