With the sentence 29 August 2018, n. 5068 the Council of State has blatantly reversed its already consolidated orientation and has considered that the institute referred to in art. 42-bis of the legislative decree n. 151 / 2001, in terms of temporary assignment to another civil servant's office with children under the age of 3, can not be applied to military personnel and police personnel, but only to civil servants of the State and public bodies, or rather to public employees with a privatized employment relationship pursuant to Legislative Decree n. 165 / 2001 (and before that of the Legislative Decree No. 29 / 1993).
The same highest organ of administrative justice had expressed itself in the opposite direction for years now, among other things with judgments n. 1317 / 2016, n. 2426 / 2015 and n. 6016 / 2013.
Which orientation must be considered prevalent then? Can the temporary allocation institute be considered applicable to military personnel and police forces?
It is believed to be yes and that the aforementioned orientation must certainly be censored.
Let's see why.
The institution of temporary assignment to another location for family reasons
The institute of the temporary assignment of the civil servant to another office is provided for under Legislative Decree 26 March 2001, n. 151, the Consolidated Law on the protection and support of maternity and paternity, pursuant to Article 15 of the 8 Law of March 2000, n. 53. In particular, the art. 42-bis of the aforementioned legal text provides, in the first paragraph, that "The parent with minor children up to three years of age employed by public administrations referred to in article 1, paragraph 2, of the legislative decree 30 March 2001, n. 165, and subsequent modifications, can be assigned, on request, even in a split manner and for a period of no more than three years, to a place of employment located in the same province or region in which the other parent exercises his work , subject to the existence of a vacant and available post with corresponding remuneration position and with the prior consent of the administrations of origin and destination. Any dissent must be motivated and limited to exceptional cases or needs. The assent or dissent must be communicated to the interested party within thirty days of the request".
Therefore, the applicability to the specific case of the provision in question is based on the following assumptions:
- the applicant's membership of the public administrations pursuant to art. 1, c. 2, of the legislative decree n. 165 / 2011;
- the fact that the applicant is the parent of a minor aged no longer than three years;
- the request expressed to that effect of the interested party;
- the existence of a vacant and available post with corresponding remuneration position;
- the consent of the administrations of origin and destination, bearing in mind that, as mentioned, "Any dissent must be motivated and limited to exceptional cases or needs".
This is evidently a hypothesis of temporary transfer on a voluntary basis, placed to protect the family and the parentage, and therefore directly rooted in the reference to art. 29 of our Constitution.
Jurisprudence on the matter: the two relevant interpretative issues.
1. The obligation of specific motivation
The interpretative questions that emerged from the outset in the concrete application of the law in question were essentially two: on the one hand, the problem was posed of defining the extent of the obligation to state reasons for dissent possibly formulated by the administration with regard to the application ; on the other (and even earlier), we wondered if this provision could be considered referable to military personnel or more generally to non-contracted personnel.
Proceeding with order, with regard to the first of the aforementioned profiles, it must be pointed out that compact jurisprudence has always supported - repeatedly giving confirmation over the years - that any negative response opposed by the PA to the allocation request must be justified by a specific justification. The paragraph of the first paragraph mentioned above (added in novella by the article 14, c.7, of the law n ° 124 / 2015), which limits to "exceptional cases or needs"The possibility of preventing this form of transfer was therefore rightly understood in the strict sense, charging the employer's public part with a very stringent obligation to state reasons.
This has been translated into the repeatedly affirmed need by the Administration to justify any rejection with precise and detailed references to the requesting military and its specific professionalism, which is such as to make it irreplaceable within the organic plant of origin.
Therefore, the denials were formulated on the assumption of motivations tending exclusively to highlight generic situations of difficulty of the reference structure globally considered and its tasks in the territory of competence. In fact, the foregoing does not in any way constitute exceptionality, but simply refers to the ordinary service needs of the body.
Therefore, in this case, it is evident that in the vast majority of cases it will be very difficult for a valid rejection of the request of the person concerned who requests to be assigned to another office by virtue of the provision in question.
In this sense, we point out, in the most recent jurisprudence, ex multis, Cons. State, Sec. III, 1 April 2016, n. 1317; Cons. State, Sec. IV, 14 October 2016, n. 4257; TAR Lombardy - Milan, Sec. III, 25 May 2017, n. 1171; TAR Tuscany, Sec. I, 24 October 2017, n. 1279.
2. The applicability of the institute to the military
The negative orientation
The second question that has been raised concerns precisely and still before the same applicability of the institute for temporary assignment for family reasons, as well as to civilian personnel, including public employees belonging to military bodies (as well as police).
The jurisprudence has consistently offered a positive answer to the aforementioned question, except for occasional rethinking, among which the sentence is placed in the commentary.
In the aforementioned, the Council of State considered that to a Fireman, as a subject "inserted into the category of personnel with employment contracts under public law, the regulations pursuant to art. 42 bis of the legislative decree n. 151 / 2001".
The principle of law in question evidently also shows in comparison with the military, as these too, such as the Fire Brigade and among others the magistrates and lawyers of the State, as well as the police forces and the staff of the diplomatic and prefectoral careers, they are included, according to the art. 3 of the legislative decree n. 165 / 2001, in the categories of employees of the public administration, for which no so-called privatization or contractualization of the employment relationship has taken place, remained as such subjected, not to the common provisions of the civil code, but to a special public source regime .
Arguments on the point the maximum Administrative Judge, in the aforementioned sentence 29 August 2018, n. 5068, that "the inapplicability of the benefit of temporary transfer to the administrative personnel of the VV.FF. finds its foundation in the particular juridical status of that personnel, whose specific functions justify a differentiated regime, which, for this reason, does not incur in vices of constitutional illegitimacy for violation of the principle of equality and unreasonable inequality of treatment".
On this basis, as mentioned, it is believed that the institution in question can not be applied with regard to the case and more generally with reference to public employees under public law, among which the military is included. Therefore, requests for temporary assignment pursuant to art. 42-bis of the legislative decree n. 151 / 2001 from these formulations could not be found in any way.
The reasons why it must be considered that the institute must also apply to the military. Positive orientation
The interpretative solution adopted by the Council of State in the aforementioned ruling appears to be flawed and to be censured.
The same judging body, moreover, has consistently supported the exact opposite on numerous occasions and continues to this day (even subsequently, therefore, to the sentence above) to rule in the opposite direction, arguing that the art. 42 bis may well find application also with reference to the military (and the police forces), and more generally with regard to all employees of public administrations, including therefore the categories remained subjected after the 2001 (or better after the .lgs n. 29 / 1993) to special advertising regimes, not falling within the so-called privatization.
In this regard, it was noted that "Article. 42 bis in question (entitled "Temporary assignment of employees to public administrations") can only be read (with regard to the delimitation of its scope) in one with the art. 1 of the same decree, which states that for "worker" or "worker", if not otherwise specified, they must be understood (for the purposes of the regulation by the same decree) all "employees, including those with an apprenticeship contract, of public administrations (...), nor can it literally and logically be understood that a differentiated regime for the personnel, in question in the present case, has been introduced by the indication contained in the aforementioned art. 42 bis, "employee of public administrations pursuant to art. 1, paragraph 2, of the legislative decree 30 March 2001, n. 165 ", since this" specification "is certainly not clearly suitable to exclude from the scope of application the categories of personnel, as per art. 3 of the same D.Lgs. N. 165 / 2001, which simply provides for the exclusion from the "privatization" and the "contracting", referred to in the paragraphs 2 and 3 of the previous art. 2". In this sense, ex multis, Cons. State, n. 6016 / 2013, as well as the pronunciations n. 2426 / 2015 and n. 1317 / 2016.
In essence, therefore, the impact contained in the art. 42-bis, referred to "Employees of public administrations pursuant to art. 1, paragraph 2, of the legislative decree 30 March 2001, n. 165 ", does not intend in any way to exclude the personnel remained under public law, as per art. 3 of the aforesaid normative text, aiming instead generically and globally to indicate and to understand the general public employees understood.
Contrary to what was stated in the sentence in question, in fact, to consider otherwise (and therefore to exclude the applicability of this institute with regard to the military and other subordinate public workers) would end up introducing undue discrimination of the latter with respect to the treatment granted to other employees, in open contrast to constitutionally guaranteed that they base the institution in question as said.
Conclusions and remedies available
At the end of our considerations, we can only reiterate that temporary assignment for family reasons as per art. 42-bis of the legislative decree n. 151 / 2001 must be considered applicable to the military and police forces. The refusal measures that derive their motivation from the alleged exclusion of personnel under public law (such as the military) from the recipients of the aforementioned rule will therefore be considered illegitimate. The same applies to the rejection cases not specifically motivated with reference to the situation of the individual applicant.
The and the others, as regards remedies, can be challenged with hierarchical appeal within 30 days from notification, or directly with recourse to the territorially competent TAR within 60 days from notification, and again (in an alternative way to the above) with extraordinary appeal to the President of the Republic within 120 days from the same initial term.
Avv. Francesco Fameli
expert in military administrative law
(photo: US DoD)
