It is news in the public domain that a few days ago the Minister of Defense signed the deed with which the first military union (or rather, the first "trade union association") was recognized in Italy. Soon, the example of the Carabinieri will be followed by others.
This is evidently - however we think - of a historical moment for our system.
Then we try to clarify and define the normative framework of reference, to try to reconstruct what the conditions for such a landing have been and what the prospects will be, certainly not easy, and for several reasons.
1. The normative reference frame
"The military can not exercise the right to strike, establish trade union associations, join other trade unions": this is the starting point of the whole story, crystallized first in the text of art. 8, c. 1, of the 11 law July 1978, n. 382 (Rules of principle on military discipline), then in the provision of art. 1475, c. 2, of the legislative decree 15 March 2010, n. 66 (Code of the military system).
On the other hand, it was envisaged, in addition to the possibility of constituting associations of non-union soldiers after a ministerial assent, an institutional system of military representative bodies (Cobar, Coir, Cocer), now governed by Articles. 1476 - 1482 of the legislative decree n. 66 of the 2010, destined to constitute the adaptation to the military context of the trade union. A structure within the hierarchy, but at the same time able - at least for the purpose of the legislator - to act as spokesperson for the demands of the "base". From the competences, the ordering, the training, the operations, the logistic-operative sector, the hierarchical-functional relationship and the employment of the personnel are excluded. But they include "all matters that are subject to legislative or regulatory provisions concerning the condition, treatment, protection - of the legal, economic, welfare, health, cultural and moral - of the military", then detailed and integrated into the letters da a) ag) of the comma 8 of the art. 1478.
To this must be added the conciliation procedure pursuant to art. 2 of the legislative decree 12 May 1995, n. 195 (for the implementation of the 2 article 6 law 1992 March, 216, on the subject of procedures for regulating the contents of the employment relationship of the Police and Armed Forces personnel).
Thus, the (historical) prohibition of autonomously constituting trade union organizations was accompanied, by way of compensation, the structured system just described, which, although criticized, indeed already assured the possibility for the military to formulate demands in relation to their working conditions.
2. The stages of the story: history (in brief) of the military unions in Italy
A part of the military world, some associative realities (think, for example, As.so.di.pro., Solidarity law and progress association, always in the first row on the topic) and a fringe of the same political panorama (at least initially , especially the Radical party) have looked with distrust to an institutionalized representation and cut out in the hierarchical framework, like the one just described. No autonomy, no freedom, it has always been said.
The idea of applying the trade union paradigm proper and in a strict sense to the military bodies, then, has been revived in our country in a cyclical way.
Limiting ourselves of necessity in the last decades, it must be remembered that the Constitutional Court had already expressed itself on the point - before last year - in the 1999. The sentence n. 449 of that year had nevertheless considered the perfect conformity to the Constitution of the art. 8 of the 11 law July 1978, n. 382, referred to above. The ordinary legislator - argued the Council - can well exclude the military from the exercise of certain rights, even if constitutionally sanctioned (such as the freedom of trade union), where this affects the discipline, the true foundation of the military system, as this constitutes the very presupposition of the efficiency of the Armed Forces and therefore, ultimately, the pursuit of those ends which the Constitution solemnly protects them through.
The debate on the introduction of real military unions in our country has thus suffered a setback, but has been repeated (after alternating minor events) especially with the presentation, on 31 July 2014, a bill by the then parliamentary minority expression of the 5 Stars Movement (deputies Corda, Artini and others). In the aforesaid one sees all the fundamental elements that will likely be destined to find space in the future institutive law of the trade union associations: the principle of union self-organization (in other words, the freedom to set up unions without prior authorization), the self-financing, freedom of assembly, the abolition of forms of institutional representation, the extension of matters of competence to economic treatment.
In the meantime, the European Convention for the Safeguarding of Human Rights and Fundamental Freedoms (ECHR) has gained increasing importance on this point, to which it has been recognized as definitive constitutional significance with the judgments n. 348 and 349 / 2007 of the Constitutional Court, which were confirmed after the transposition of the ECHR into the EU system, following the Lisbon Treaty of 2009 (Court Cost., 12 October 2012, No. 230). This was achieved through the art. 117, c. 1, Cost., According to which the internal legislator must respect the constraints deriving from "international obligations" contracted by our country. The provision is therefore supplemented by the ECHR norms, which represent "interposed norms", which find their place in the hierarchy of internal sources halfway between the norms of ordinary rank and the Constitution.
By virtue of this reconstruction, a twofold role is assigned to the ECHR: on the one hand it becomes an interposed parameter to examine the constitutional legitimacy of the internal norms; on the other, it is a criterion for the constitutionally oriented interpretation of the internal provisions.
Therefore, in the event of a potential conflict, the Italian judge must first check the possibility of an interpretation of the law that is in conformity with the Constitution (and the ECHR). If not, it will raise the question of the constitutionality of the internal norm by opposition to the provisions of the ECHR.
The jurisprudence of the Court of Strasbourg (which supervises the observance of the ECHR and to which Article 32 reserves the power to interpret the Convention) has thus acquired primary importance in the internal legal systems of the European States which are parties to the Convention. In the rulings on the cases Metelly and ADefDroMil (with regard to the French legal system), in the 2014, as well as before in Demir and Baykara against Turkey, in the 2008, and subsequently in ER.NE against Spain, in the 2015, the European Court of Rights of the man reiterated that trade union freedom must also find expression in the military sphere. In fact, at the ECHR plant, art. 11 recognizes trade union freedom without excluding any professional category; therefore, Member States must recognize this right also to members of the Armed Forces, limiting themselves to the most to establish "legitimate restrictions" to the exercise of the law, but without prejudice to the essential elements of freedom of association, such as the right to form a trade union and to join .
Hence the need for States to prepare the necessary reforms.
It is in this broader context and of European origin, then, that the immediate cause of the birth of Italian military unions is situated. Therefore, at least in the genesis, it is not so much a conquest fully desired and shared by the whole military world, but rather the result of a process that has developed above and beyond that context.
3. The sentence n. 120 / 2018 of the Constitutional Court and the recognition of the first union
The Constitutional Court, once again on the subject, in the renewed context referred to above, can therefore only come to opposite conclusions compared to twenty years earlier. The new interposed parameters of the ECHR then impose the declaration of unconstitutionality of the art. 1475, c. 2 (which in the meantime had replaced the 8 article of the 11 law July 1978, No. 382), to the extent that it prohibits tout court the military to organize itself in unions. All on the premise that military representative bodies can not constitute adequate mechanisms for the purpose.
The prohibition of joining other trade unions remains in place, as well as the ban on strikes, brought back to the reasonable restrictions mentioned above.
Pending the intervention of the legislator, the Consulta considers the first paragraph of art. 1475 (not subject to censorship of unconstitutionality), which subordinates to the ministerial assent the establishment of associations and circles between the military, generically considered. In the limbo of the approval of the new norms, the old institutionalized system, recalled with particular regard to the excluded subjects, is still standing, concerning "the organization, the training, the operations, the logistic-operative sector, the hierarchical-functional relationship and the use of personnel ".
Hence the ministerial circular of last October, with which the assumptions and procedures for the presentation of applications for recognition of the constitutions of trade unions have been outlined (in full and literal harmony with the sentence just mentioned), up to reach the historic recognition of the first union, on 10 January, which was reported at the beginning.
4. A novelty to handle with care
We have thus briefly recalled the stages of the path that has led, now, to the introduction of military unions in our country, a path that will culminate with the approval of the law advocated by the Consulta.
In this regard, we are allowed to raise some perplexity on the benefits that can be derived to the military from such an innovation.
We have already seen first of all that what is commonly made to pass as a historical achievement, in reality, is nothing more than a solution imposed (in fact) from the outside of our system, due to agreed international commitments and the interpretation given to some rules by a judge certainly very authoritative, but not internal, like the ECHR. Anything less than the result of a shared process of internal maturation, then.
The application of the union-form to the military system, then, appears all less than in line with the times, as if the result of the claims of more than one year (political, in the broad and noble sense of the term) had come to match (almost ) finished. Yes, because the history of the union in our country - let's face it frankly - did not see pages faded than the current one. The times of the fight are far away (or if you prefer to consult), so much so that it is really difficult to glimpse some role of the unions in the process that led to the approval of the Jobs Act, before, and the Decree Dignity, then ( paradoxically, for their own luck).
In this context, by the will of only some (to which we wish to deny ourselves) and in any case only for hetero-determination, we come to the grafting of the unions in the Armed Forces. And the misunderstanding is served.
Fears of system stability, whatever the respectable opinions of each, appear legitimate. How can internal associations, freely and spontaneously constituted by soldiers as real intermediate bodies, be able to interface with the hierarchical order and with the discipline, which specifically characterize our particular ordering? The risk is that of creating, if not precisely the phenomena of insubordination, of certain disunity, inefficiency and lack of immediacy in the answers legitimately expected from an army.
Not to mention, then, that each trade union will have its undeniably political matrix (we are not naive about this, please), and that splits and rivalries among the trade union organizations can well be determined. A film already seen in all sectors, not to be played in the military. In this regard, the example from the most cited as emblematic (positive) of the trade union associations of the State Police, certainly does not appear to be immune from what has just been mentioned.
And these fears are sharpened by the words that have been raised to criticize the aforementioned ministerial circular. Some illustrious colleagues (mostly labor lawyers) have emphasized that subordinating the possibility of constituting a trade union association in the military field to the prior consent of the Ministry (the employer, in this specific perspective) would be at the root of the recognition of any kind of freedom union, denying that autonomy in the establishment of the relevant organizations, which was placed at the base of the declaration of unconstitutionality. Faced with such statements, our concern can only increase. One wonders first if the sentence of the Constitutional Court was actually read: this is clear indeed in affirming that, like all the other forms of association between the military, according to art. 1475, c. 1, of the Code (not overwhelmed by the declaration of unconstitutionality), even the trade unions can only be established with ministerial authorization.
On the contrary, the Consulta states that "it is a condition of a general nature valid a fortiori for those of a trade union nature, both because they are species of the kind considered by the law, and because of their particular importance. In any case, the statutes of the associations must be submitted to the competent bodies, and their scrutiny must be conducted on the basis of criteria that undoubtedly should be specified in the legislative framework, but which can already be inferred from the constitutional set-up of the matter ". And it is further added that "The verification of the existence of these requisites entails in particular the examination of the organizational apparatus, of its modalities of constitution and functioning; and it is useless to underline that among such modalities the financing system and its absolute transparency stand out for their importance ". A perspective completely different from the one that some have hoped for, therefore.
Our perspective, if anything, is opposite. Rather than the risk of a distortion of the union within the Armed Forces (as mentioned above), the danger of a distortion of the Armed Forces in (and because of) the union seems concrete. Provided that this is not properly adapted to the military environment. And then the Constitutional Court did well to reiterate the limits, relative to the genetic moment, to the internal structure (of necessity, democratic), to the financing and operating methods and to the areas of operation (the same as the current internal structures) of the future trade unions. military.
The legislator can not fail to take this into account in preparing the rules intended to regulate the matter (and from this point of view, the proposal of the AC 875 law of last July, signed by Hon. Corda, which we await at the scrutiny of Parliament).
A misunderstanding must be dispelled: no one thinks here that the system of institutionalized representation (as per articles 1476 and following of Legislative Decree No. 66 / 2010) did not need a renewal, so as to finally represent an effective instrument of amplification of the sacrosanct instances of the Armed Forces personnel. The writer is fully aware of those requests, so much so that for some time supports them in court rooms of half Italy (for advances, transfers, pensions, for recognition of causes of service).
The protection of the military, in the age of global communication, today does not lack so much exponential agencies, instruments through which to raise one's voice against the injustices of the system, of forms or structures. It is rather lacking in content: perhaps there is a real desire to resolve issues that are already on the table and which are likely to pass into the background, behind the totem of the union.
It would not have been more dignified and urgent, just to give some examples, to put an end to the innumerable open questions before the Courts of the country, recognizing the right of those interested in the rates of law, with regard to pension treatments; to the right compensation for the damage caused by the depleted uranium (or in any case depending on the cause of service); or still reforming the Medical Hospital Commissions, given the daily loosing of those of the first instance and the clogging of the system in that of the capital?
If we really want - as we hope - that the novelty of these days can bring a benefit to the military and their just demands, we actively monitor the approval of the law and the debate that will precede it. The raising of shields against the ministerial circular, in fact, shows a disturbing fact: the lack of awareness of the peculiarity of the military world by those who would regulate it with categories drawn purely and simply from labor law. Nothing more reckless, according to the same Constitutional Court.
The military is not a worker like any other. Because it is much more than a worker: it is the depositary of the defense of the Fatherland, that "sacred duty" that the art. 52 Cost. Imposes to all citizens. This does not mean that his (sacrosanct) worker rights should not be respected. On the contrary, it is necessary to safeguard it to the highest degree possible. We only ask ourselves if the union's one, in the 21st century, is the right path. Especially considering that that art. 39 of the Constitution, whose application was also applied to the military results as a well-known dead letter (from the second paragraph onwards) for the rest of the working categories. We would then arrive at a misunderstanding not only temporal (in the sense described above), but also with respect to the categories of workers involved: not only do we end up with a faded worker protection paradigm, but we also do so with regard to the category of employees public to which this is most likely to be done.
And are we really sure that in practice it is possible - in compliance with the same limits of fact imposed by the same Council to the legislature - to achieve something very different from the current institutionalized military representations? Or it will translate everything, exclusively and exclusively, into a change of label without substantial repercussions, and maybe good for a pro-government commercial?
The military unions are welcome, then, but let us remember to handle them with care, and to adapt them to the complex and precious reality of the Armed Forces, which so much has given and still gives to this country.
Avv. Francesco Fameli
expert in military administrative law
