Transfer pursuant to law n. 104 / 1992: fixed points (normative and jurisprudential)

21/05/19

Much confusion is usually made with regard to transfers motivated by the need to provide due assistance to a family member suffering from disability or a serious disability, and therefore required according to law n. 104 / 1992, by the personnel of the Armed Forces (and of the Police Forces).

It will be good to fix some points, based on the applicable rules and their consolidated interpretation in jurisprudence, in order to clarify the matter.

1) The requirements established by the current regulations

In order for a transfer request motivated by welfare purposes to be accepted, it is first of all necessary to meet the requirements established by the current regulations in the specific case. It is therefore necessary to refer to the art. 33 of the aforementioned and well-known 5 law February 1992, n. 104, which in the third paragraph provides the necessary recurrence of the following assumptions:

- disability or serious disability of the person to be assisted (provided that he is not hospitalized full-time);

- marriage relationship (or cohabitation, after the Constitutional Court, No. 231 / 2016), or kinship or affinity within the third degree;

- in particular, if it is a relationship of kinship or third-degree affinity, it is necessary that the parents or spouse of the disabled person in a situation of seriousness have reached the age of sixty-five or are also suffering from disabling diseases or are deceased or missing;

- within the second degree, the above is not necessary, but the applicant's contribution must in any case be indispensable (it is sufficient that the other possible relatives of the interested party are not physically able to assist him);

- then the so-called exclusivity requirement must be met, to be understood as meaning that the right to the benefits in question cannot be granted to more workers for the benefit of the disabled person himself (unless it is a minor).

Given this, it should be noted in this regard that the fifth paragraph of the aforementioned art. 33 of the law n. 104 / 1992 establishes that "the worker has the right to choose the place of work closest to the domicile of the person to be assisted and cannot be transferred without his consent elsewhere". With specific reference to the position of the military and personnel of the Carabinieri, on the assumption of recalling the aforementioned provision expressly contained in art. 981 of the code of military law decree n. 66 / 2010, the jurisprudence has outlined some general principles, now peaceful.

Let us examine them below, ordering them from the most general to the most specific.

2) The general principles regarding transfer pursuant to law n. 104 / 1992

1. It was thus noted, first of all, that when examining requests for transfer motivated by the need to assist a relative with severe disability or disability, the Ministry of Defense - in all its forms, including the Carabinieri - is required to respect of same rules apply to the private employer, finding law n. 104 / 1992 also to the relative employees (Cons. Status, Section IV, 19 June 2012, n. 4047).

2. This is accomplished "in limit, for the personnel of the Italian Army, Navy, Air Force and Arma dei Carabinieri, of the organic positions envisaged for the role and grade, vacant at the destination request site"(TAR Puglia - Bari, Section I, 9 March 2016, n. 306): it is necessary, in substance and except what will be said, that a place is vacant in the destination office.

3. Moreover, this condition cannot be understood in terms of "an exact correspondence between the specific position held in the place of origin and those envisaged in the head office of the destination office", But must rather be verified simply and exclusively"having as reference the role and degree held"As"within each role and grade, (...) it is possible to assign the worker to different tasks, which take into account both the professional level achieved and the professional heritage acquired", Therefore without the need for perfect overlap and with the possibility that"the worker transferred to another office is usefully assigned to a different position in accordance with the position and grade held, in an available position, and yet vacant"(On see again TAR Puglia - Bari, Section I, 9 March 2016, No. 306).

4. For the above, the Administration can legitimately reject a transfer request pursuant to art. 33, paragraph 3, of law n. 104 / 1992 only on the assumption of a "stringent motivation", From which emerge the specific and precise reasons that, in the reconciliation between the need for care and the needs of one's own organization, lead to the prevalence of the latter with particular regard to the needs of the individual office and to the position of the individual concerned (TAR Lombardia - Milano , Section III, 11 February 2011, No. 463).

5. In the aforementioned necessary balancing of interests, the aim pursued by the legislator of favoring integration in the family of origin of the person affected by serious disability means that the need of the applicant to pay due care to the relative suffering from illness should be considered prevalent, so as to admit the transfer even in the case of supernumerary in the office of destination (TAR Puglia - Lecce, Section III, 24 Settembre 2010, n. 1990).

6. Certainly, the need for assistance that underlies the transfer requests referred to in the regulations in question "it prevails and has priority over the transfers requested for other purposes, which have the purpose of satisfying the need to return to the place of origin based on the length of service acquired"(TAR Campania - Salerno, Section II, 12 June 2017, No. 1058).

7. Last but not least, the concept of assistance "exclusively", For the purpose of accepting the transfer request, referred to in the aforementioned fifth paragraph of art. 33 of the law n. 104 / 1992, must be understood to refer to material unavailability (and not to the non-existence) of other people able to meet the patient's care needs (so Cons. Status, Section VI, 25 June 2007, No. 3566, as well ex multis Cons. State, Section VI, 27 July 2007, n. 4182, which also enhances “the approval of the disabled person for assistance by the applicant").

conclusions

The aforementioned jurisprudential precedents outline the consolidated interpretation of the legislative regulation dictated in the matter of transfers for welfare reasons, requested by the personnel belonging to the Armed Forces and Police.

The result is prevalence, in compliance with the ratio legis, that the Administration must grant the actual need, on the part of the applicants, to provide care to their relatives suffering from serious disabilities. With a single condition, represented by the necessary verification of the existence or not of vacant positions in the destination office.

The verification in question, however, will have to be carried out with the limits and according to the aforementioned criteria, so as to be resolved in a specific motivation, calibrated on the individual case, which takes into account the prevalence - except in exceptional circumstances, linked to specific staff requirements - of the pre-ordering standards at stake to guarantee satisfaction of care needs.

No provision for rejection based on generic “organizational needs"Or"of service"Can therefore be considered legitimate, and can therefore be challenged in terms of law before the territorially competent administrative judge.

Avv. Francesco Fameli

expert in military administrative law

Photo: US Army