Military pensions: no to the multiplier for all the Reformed by the Appellate Section of the Court of Auditors. But…

19/03/19

We have given you an account in recent months (v.articolo) of the evolution of the jurisprudence of the Regional Jurisdictional Sections of the Court of Auditors in the matter of recognition of the right to the so-called multiplier for the soldiers discharged for reform.

A very recent ruling by the Appeals Section of the Court of Auditors - the first one pronounced in the second grade on the subject - marks a further chapter of this affair, leaving many questions open.

But we proceed with order.

The picture of the situation to date: postponement

It will be recalled in this regard that the legal question that arises in this regard can essentially be reduced to the following: the benefit referred to in art. 3, paragraph 7, of Legislative Decree n. 165 / 1997 must be considered only for the Reformed soldiers who, at the time of the leave, had in any case achieved the retirement age, or on the contrary must be considered extended also to those who had not reached this age limit, and therefore must recognize themselves in all dismissed for reform?

It will also be recalled that in the above-mentioned contribution account was taken of the conflicting positions taken on the subject by the jurisprudence, and of the fact that the orientation, so to speak, extensive, under which the multiplier must be applied to all the reformed, was made precisely from most of the Regional Jurisdictional Sections of the Court of Auditors. Suffice to mention in this regard, in addition to C. Conti, Section Jur. Abruzzo, n. 28 / 2012, which paved the way for such an interpretative solution, the sentences that have followed in this regard in the 2017 (C. Conti, Section Giur. Sardegna, n. 156 / 2017; C. Conti, Section Giur . Abruzzo, N. 27 / 2017, C. Conti, Section Molise, No. 53 / 2017); pronunciations of the same sign were then recorded in Lazio, in Tuscany and in Piedmont, while in Calabria, Lombardy and Emilia Romagna favorable and contrary decisions were followed throughout the 2018.

Moreover, the favorable orientation towards the recognition of the multiplier to all the reformed soldiers is preferable, because it satisfies the greater degree ratio legis compensatory of the disposition in the game, evidently dictated in order to counterbalance the loss of the title to the auxiliary allowance for the person concerned, which moreover, in case of early leave, inevitably ends up seeing a reduced pension treatment accrued.

Having said this, the theme of the necessary requirements and the steps to be taken concretely to obtain recognition of the benefit in question will not be discussed here: we refer to the point, once again, of the aforementioned article, in which it was already widely said about it.

The decision of the Appellate Section of the Court of Auditors

Rather, it is necessary to account for current events. For the first time, in fact, the Appeals Section of the Court of Auditors found itself deciding on the issue, and did so by denying the validity of the aforementioned interpretation.

With sentence no. 29 / 2019, filed on 7 February 2019 and 12 February 2019 communicated to the parties, the Court was asked to rule on the aforementioned sentence no. 53 of 2017, issued on 6 October 2017 by the Jurisdictional Section of the Court of Accounts of Molise, and has in fact overturned the outcome, accepting the thesis proposed by INPS.

In the judgment of the Appeal Section, in fact, the so-called multiplier must be recognized only to those who, at the time of the reform leave, had reached retirement age, in relation to the degree covered. According to a literal interpretation of the art. 3, paragraph 7, of Legislative Decree n. 165 / 1997 - argues the Appeal Section -, the increase in the contribution amount envisaged thereinOpera alternatively to the auxiliary placement", And since in turn access to the auxiliary presupposes - in addition to the intention manifested in this sense by the interested party - the achievement of the age limits for retirement, the benefit being discussed"therefore operates in favor of those who, despite having reached the retirement age provided for the degree of membership, id est for transit as an auxiliary, they cannot physically access it due to psycho-physical inability, as well as in favor of those who, having already passed through the auxiliary, have subsequently become physically unsuitable".

And it is noted, again, that because "The so-called multiplier was expressly configured by the legislator as an" alternative to the auxiliary ", it is essential that the person concerned is entitled to placement as an auxiliary and, therefore, that he ceases to serve exclusively for age limits (as provided for the coated grade)".

Only those who have reached retirement age, therefore, will be able to choose whether to transit in an auxiliary or make use of the benefit in question, since they are respectively subject to the economic treatment referred to in Articles. 1864 and 1865 com

Otherwise - that is to say, if one adheres to the thesis according to which the multiplier should be recognized to all the reformed soldiers, regardless of the age limits referred to in art. 992 com -, the auxiliary institution would be “debased", As - in the Court's opinion -,"in fact, it would end up becoming "substitute" - and not already alternative as per law - of an institution not envisaged (and not conceived) for those who have ceased early with respect to the personal data limits of the active service. In other words, we would come to recognize the equivalent contribution (not by chance equal to the duration of the auxiliary period) of the economic treatment of the auxiliary to those not entitled to this legal position".

Conclusions (and criticisms)

The sentence n. 29 / 2019 of the Appeals Section of the Court of Accounts unreservedly embraces the INPS thesis, making - for the moment - the claims of thousands of soldiers discharged for psychophysical unfitness for employment. Such an approach can only be criticized, as it is the result of a purely formal interpretation of the rules at stake.

The need for substantial justice underlying the opposite extensive interpretation of the same provision escapes completely from the judging panel: if it is true, according to the letter of the art. 3, c. 7, cited above, that the multiplier is an alternative to the auxiliary, and that the auxiliary is accessed only once the retirement age has been reached, it is also true that whoever is forced to leave early, moreover due to a psycho-physical illness, is thus found to be twice damaged: a first time, because precisely his pension treatment will certainly be reduced compared to those colleagues who instead - only thanks to their best health conditions - they can reach retirement age; a second one, because, according to the above, they will also be excluded from the contributory amount in question.

It can only be repeated on the point that the multiplier was evidently conceived by the legislator as a compensatory benefit, for those soldiers who - discharged precisely for reform - cannot access as an auxiliary. Whether this occurs once the retirement age has been reached or before it represents a distinctive element that is not explicitly stated by the rules, and on which instead the Appeal Section based its argument.

It is not known whether this sentence could represent the end of years of jurisprudential contrasts: certainly, in the months that follow, other disputes concerning the same question will come to a decision (even before other Appeal Sections of the same Court of Auditors) legal, with the concrete (and hoped for) possibility of new reversals in the face.

Certainly, on the question of the multiplier - as in relation to that of art. 54 of the dprn 1092 / 1973, for those enrolled in the early Eighties, on which instead the Appeals Section itself gave a favorable opinion in November of the 2018 -, one would expect, more than a continuous seesaw of jurisprudential decisions, a clarification intervention ( yes, really definitive) by the legislator.

And one wonders also why the issue - which involves so many soldiers - is not addressed clearly and directly, once and for all, by the Government itself. Even if many can already foresee - rightly or wrongly - the answer, with an effort of imagination that is certainly not titanic.

As for us, we will not, in any case, keep you updated.

Avv. Francesco Fameli

expert in military administrative law

Photo: US DoD