The social security legislation, and in this case the portion of this that is applicable to public employees (and especially the military), is no exception to the overall national legal framework: it is redundant, full of calls (internal and external) and this obscure, and certainly not of immediate comprehension. Similar opacities over the years have constituted fertile ground for the formulation of restrictive interpretations by the INPS, evidently justified by global needs to contain public spending.
Crushed by the convergence of the aforementioned factors, the recipient of the rules in question has only one chance: to become aware of his rights.
A contribution to this result will be able to come, if it will, from this and from the next articles in the field of administrative and social security law that will be published in this magazine and that will account for all the latest news (regulations and especially jurisprudential) of the sector .
The recalculation of military pensions based on the increased rate pursuant to art. 54 of the 29 dpr December 1973, n. 1092
Given the above, the last few months have seen the emergence and consolidation of a praetorian orientation (which has now been adopted by numerous Regional Jurisdictional Sections of the Court of Auditors), according to which the applicability of an increased rate is proposed for the recalculation of military pensions. , in the presence of certain conditions.
After the negative signings of the 2017, in particular, first the Court of Auditors of Sardinia (with sentence No. 2 / 2018) and then the Court of Auditors of Puglia (with the recent ruling No. 468 / 2018), have adopted a favorable position in relation to the application of art. 54 of the 29 dpr December 1973, n. 1092, with the consequent recognition of the rate to 44% in relation to the pension treatment of the military in mixed regime (salary and contributive), enrolled at the beginning of the 80 years.
But we proceed with order.
The controversial question and the two opposing positions:
The opposite orientation to the application of the increased rate
Following the INPS takeover at INPDAP, with effect from 1 January 2012, the INPS has held (and still erroneously believes) that the enlisted in any military body that have matured, at 31 December 1995, no less of 15 and no more than 20 years of service useful for pension purposes, are subject, in terms of the pension share regulated by the remuneration system, to the rate envisaged in the amount of 35,9% by art. 44 of the dprn 1092 / 1973 (moreover strictly for the civil employees of the State), and not that of 44%, provided for by art. 54 of the same normative text. This in the case in which the interested parties have accrued, beyond the date of the 31 December 1995, additional years of service, such as to determine an amount exceeding the threshold of 20 total years.
The solution proposed by INPS is based on a very rigorous reading of the aforementioned art. 54, which textually disposes, in the first paragraph, that "the pension due to the military who has matured at least fifteen years and no more than twenty years of useful service is equal to the 44 per cent of the pensionable base, except as provided in the penultimate paragraph of this article". By virtue of the adoption of a strictly literal interpretation criterion, the National Institute of Social Security therefore considers in extreme synthesis that the rule in question should be applied exclusively to the military who not only have accrued the aforementioned seniority contribution (as said, between 15 and 20 years of service) to 31 December 1995, but are then immediately terminated by the service, without adding additional annuities.
This exegetical hypothesis was unfortunately endorsed by a part of the jurisprudence.
It was specifically argued in this sense that "the rule, as a favor, can only be the subject of a strict interpretation, coming to constitute a substantial derogation from the ordinary pension scheme; it follows that it can not be applied outside the hypotheses specifically and exhaustively indicated by the relevant legislation, since the prohibition of analogical interpretation to which it would otherwise receive would be substantially violated, thus undermining the constitutional principles of reasonableness and equal treatment (art. 3 Cost.)"1. In other words, since the provision in question introduces a system of advantage for its addressees, its scope of application should be defined and circumscribed by virtue of the adoption of a strictly literal interpretative criterion, with the express exclusion of any appeal on the point analogy.
The majority favorable orientation
Such an interpretation is however more than unsatisfactory, to the extent that it limits itself to taking into consideration only the first of the paragraphs of the provision in question, without in any way taking into account the legislative context in which the aforementioned provision is placed, and - by paradox - of the other paragraphs of which it is composed.
The immediately following paragraph clearly contradicts this approach, as it establishes that "the percentage above is increased by 1,80 for each year of useful service beyond the twentieth". Now, how could there be a percentage increase even more than the rate of 44% for the following years (also) to the twentieth, accrued over 31 1995 December, if the criterion proposed by INPS was adopted? As is reconciled, otherwise stated, the exclusion from the subjective area of application of the aforementioned regime for employees who have matured, after this deadline, additional years of service useful for pension purposes, with the second paragraph of the same art. 54 of the 1092 / 1973 dprn, which on the contrary foresees an additional contribution increase "for every year of useful service beyond the twentieth"?
Precisely on this basis, several Regional Jurisdictional Sections of the Court of Auditors began between the end of the 2017 and the beginning of the 2018 to overcome the orientation sustained by the INPS, ending with pronouncing favorable sentences to the application of the increased rate also for who, after the end of the 1995, has gained a further contribution seniority.
And it should be borne in mind that the opposite argument is contradicted in its own assumptions: it is the same literal data to which the solution supported by the INPS refers to denies it, if only the indispensable canon is adopted alongside the literal exegetical criterion of systematic interpretation. If only it approaches - as necessary -, proceeding, in the first paragraph, the immediately following paragraph of the same provision.
Thus we read in the praetory seat that "the letter of the first paragraph of the art. 54, on which the interpretation given by INPS is substantially based, must instead be understood to mean that the rate indicated therein must be applied to those who possess (at 31 December 1995) a contributory age comprised between 15 and 20 years, while the following paragraph clarifies that the provision of the paragraph 1 can not be considered limited to those who cease with a maximum of twenty years of service (as opined by the INPS), given that it provides that it is up to the military the rate of 1.80% (in the case of the non-commissioned officers of the Carabinieri, the 3,60%) for every year of service beyond the twentieth. (...) The provision would not make sense if one were to enter the administration's thesis"2.
Moreover, the contrary hypothesis would lead to a juridically absurd outcome, as art. 44 of the 1092 / 1973 dprn is intended for civilian personnel, and could never be applied to the military. About that literal canon of interpretation that the INPS and some Regional Jurisdictional Sections of the Court of Auditors say they want to scrupulously respect, it was noted that "this last provision can not under any circumstances be applied to military personnel (...) since this provision is expressly included in Title III, entitled "Normal retirement treatment", Chapter I, entitled "Civilian personnel", while, correctly, the invoked art . 54 falls into Chapter II, entitled "Military Personnel". It follows that in no way can this reference be made for the purpose of calculating military pensions"3.
A further confirmation - if anything had been needed, once read in conjunction the first two paragraphs of the art. 54 - of the validity of the thesis that supports the applicability of the increased rate in relation to the cases in question.
Who can appeal: the requirements
It can appeal for the recalculation of the pension every military and military police force (military, carabinieri, former forest ranger, aeronautics, finance guard, body of the port authorities - coast guard), whose pension has been liquidated with the mixed system (remuneration and contribution) from the INPS (former INPDAP management), in compliance with the provisions of law no. 335 / 1995, and that can boast at 31 1995 December a service age useful for pension purposes between the 15 and 20 years.
What to do to get the recalculation and what can be obtained in case of acceptance
To obtain the recalculation of one's pension by applying the increased rate to 44%, it is first necessary to introduce an extrajudicial review request to the INPS office of the place of residence of the person concerned. So (in case of rejection or non-response, after 120 days have elapsed from the date of receipt of the application), it will be an appeal (within the next 3 years, under penalty of forfeiture) to the Court of Auditors territorially competent.
In case of acceptance of the appeal, the military will obtain the relief of his pension based on the most favorable rate provided for by art. 54 of the 1092 / 1973 dprn, with an increase in envelope as a rule between 150,00 and 300,00 euro on a monthly basis. Moreover, this increase will be due with retroactive application to the 5 years preceding the submission of the application, in which case the INPS must also correspond to the relative arrears (without prejudice to the fact that this must be the object of a specific request judicial procedure in the formulation of the appeal).
Finally, it does not mention the introduction of the judgment, the fact that the person concerned has for years had access to pension treatment: the decadent term of 3 years from the liquidation of the pension, within which only it is possible to ask for the recalculation of the own pension, is in fact established by the 639 / 1970 dprn with reference only to employees of the private sector, and is not included in any provision of the 1092 / 1973 dprn in relation to public employees4. With regard to the latter, a triennial forfeiture on the other hand will maturity - as mentioned - only starting from the date on which the INPS extrajudicial request will be sent to the INPS, in the terms set out above.
The course of time, then, will not affect the right to retirement of the pension on the basis of the aforementioned increased rate, which can always be applied for, but will only be relevant for the purposes of prescribing the right to arrears, which can be recovered no later than the fifth year ( included) prior to the initiation of the judicial initiative.
Avv. Francesco Fameli
expert in military administrative law
1In these terms, Corte dei Conti Emilia Romagna, Sec. Jurisd., 25 January 2018, n. 29. In the same sense, Corte dei Conti Veneto, Sec. Giurisd., 30 March 2018, n. 46, as well as Corte dei Conti Sardegna, Sec. Giurisd., 20 June 2017, n. 87.
2This was the expression of Corte dei Conti Sardegna, Sec. Jurisd., 4 April 2018, n. 68. In the same sense, of the same judicial organ, Corte dei Conti Sardegna, Sec. Jurisd., 4 January 2018, n. 2 and 27 February 2018, nos. 42 and 43). See also, ex multis, Court of Auditors of Puglia, Sec. Giurisd., N. 446 / 2018.
3See in this sense Corte dei Conti Calabria, Sec. Jurisd., 19 April 2018, n. 46. In a completely similar manner, of the same judicial organ, Corte dei Conti Calabria, Sec. Giurisd., Nos. 12, 13 and 44 / 2018.
4This interpretation has also recently been reiterated by the Labor Courts of Florence and Milan, as well as by the Jurisdictional Sections of the Court of Auditors of Lazio and Trentino Alto Adige (in reference to the latter, for example, the sentence 31 can be cited October 2017, No. 44).
