Last 11 April 20181 the Constitutional Court has communicated its decision on the question of legitimacy raised by the Council of State, section IV, with reference to art. 1475, paragraph 2, of the Legislative Decree 66 / 2010; the relative sentence2 the next 13 Jun 2018 was then modified; with this intervention the provision in question was partially considered unconstitutional in the part in which it prohibits, independently and in general, the trade union freedom of the Italian military.
The provision in question provides for limitations on the exercise of the right of association and the prohibition of a strike. Specifically, it subordinates the establishment of associations or circles between the military with the prior consent of the Minister of Defense; moreover, it places both the prohibition of the creation of professional associations of a trade union nature, and that of joining other trade unions. Precisely these limitations have been at the center of the jurisprudential debate for years; first, however, to dissect the decision of the Council, it is good to retrace the process that led to this result, so as to better understand the reasons underlying it.
As anticipated, the art. 1475 of the D. lgs n 66 / 2010 placed, in its original formulation, some important limitations to the trade union rights of the military. This, despite the Constitution provides, on the one hand, the freedom to freely express their thoughts with the word, the written and any other means of dissemination, ex art. 21, and on the other, the following art. 39, the freedom of the trade union organization. To this is added, moreover, what is foreseen in the European office: the art. 11 of the European Convention on Human Rights which protects freedom of assembly and association, as well as art. 5 of the European Social Charter, dedicated precisely to trade union rights.
The ban in question has always been traced to the status of the status and the particular functions attributed to the military. In this regard, provides the art. 1465 of the military order that "(...) the military is entitled to the rights that the Constitution of the Republic recognizes to the citizens. To guarantee the fulfillment of the duties of the armed forces are imposed on the military limitations in the exercise of some of these rights, as well as the observance of particular duties within the constitutional principles ". Therefore, limitations should not be understood as a desire to differentiate the military negatively from the generality of citizens, as necessary to ensure impartiality in the care of the public interest attributed to the Armed Forces of reference. What is important now to understand is whether trade union rights fall within the aforementioned legitimate limitations.
An important intervention on the subject has already occurred in 1999, when the Constitutional Court was asked to express an opinion on the alleged illegitimacy of the art. 8, first paragraph, L. n. 382 / 1978, "Rules of principle on military discipline", in relation to the articles 3, 52 III paragraph and 39 of the Constitutional Charter. Specifically, the matter had been raised by the Council of State, Section IV, considering that there were no plausible reasons "(...) to be vulnerable, (...) a constitutionally guaranteed right. Nor would the disparity of discipline with respect to the civil police forces, which enjoy trade union freedom, be reasonable. (...) Freedom of association is permitted only between the military, with the consent of the Minister, and is confined to a functional limbo; there is, in fact, a ban on taking initiatives that may be of a trade union nature, and are also provided for controls by the military authority. At the same time, the representative bodies have proactive and protective tasks in the matters pertaining to the service relationship, including participation in interministerial consultation regarding its content "3On that occasion, the State Attorney believed, on the contrary, that the trade union prohibition took place with a view to the military duty, as a necessary tool to safeguard the functional reasons of the Armed Forces4.
Instead, the Council of State's referral order wanted to obtain recognition of the art. 39 of the Constitution also to members of the Armed Forces, by virtue of its general value. The acceptance of the issue would have led to the cancellation of the prohibition in question: in this way, the referring college aimed at the full extension of trade union freedom, both in the establishment of autonomous professional associations, and in the faculty to join existing associations, firm, however , remaining the ban on strike.
The Supreme College considered, however, the unfounded question: first, if the recognition of individual rights of fundamental rights, which belong to them as citizens of the Republic, is not in question, it is equally true that the military working relationship can not be read regardless of the whole system within which it is incardinated; not recognize its special character, supporting the declaration of constitutional illegitimacy of the art. 8, would mean allowing the hypothetical birth of organizations with an incompatible activity "(...) with the characteristics of internal cohesion and neutrality of the military system ". Moreover, while denying trade union freedom, the Court recalls that the law n. 382 / 1978 provided all the useful tools both for the protection of the collective needs and for the rights of the military as citizens, protections that do not necessarily pass through the recognition of the trade union organizations. And the thesis that the denial in question would violate the art. 3 of the Constitution for the unequal treatment of members of the State Police, which is recognized freedom in speech, the Council responds that this is a non-existent comparison, considering the clear difference compared to the now demilitarized Police.
Along the route in question, an order from the Court of Turin, n. 5230 / 12 of the IV penal section: on this occasion, the Piedmontese College, regarding the constitution of some trade unions as civil parties, excludes a priori the military representatives (CO.IR of the Arma dei Carabinieri and CO.BA.R of the Guardia di Finanza) because their nature of trade union organization is not recognizable. In support of this, the Judges add the art. 1478 of the Legislative Decree 66 / 2010, according to which the aforementioned bodies can only formulate and present opinions, proposals or requests to the command organs5.
In response, the CO. BA. R.6, Guardia di Finanza, Piedmont region, urges an appeal to the European Court of Human Rights, for the violation, by the aforementioned prohibition, of the 6,11,13 and 14 articles of the ECHR, in relation to the observed difference in treatment between the military of the Guardia di Finanza and civilians of the State Police, admitted instead on the occasion to the constitution of a civil party through the relative union.
But it is at the European level that the first decisive affirmation arrives: in the 2014, two different rulings of the Court of Justice of Human Rights, "Matelly vs France "7 and "Adefdromil vs France"8, identify important elements in support of the recognition of trade union freedoms also for the military. The reasoning of the Court is based on the assumption that, although it is legitimate for category restrictions, it is not acceptable to question the very essence of the right to trade union freedom. In this regard, therefore, the right to form a union and to join it are to be considered as essential elements of the freedom in question.
France has, in the meantime, adapted to the dictates of the Court with the enactment of the law n. 917 / 2015, 30 July 2015 entered into force, sanctioning the expulsion from its own order of the previous absolute prohibition of union association for members of the Armed Forces. However, the European Committee of Social Rights intervened, which, by decision of 4 July 2016 following a collective complaint9 proposed by a French trade union, found the restrictions on trade union freedom to be founded, but only if the Corps operates as an armed force and not as a police force.
The interventions of the EDU Court have undoubtedly given a turning point to a path already started several years ago. Along this line there is also the subsequent re-order of the Council of State, n. 02043 / 2017, from which the decision of the Consulta, object of today's intervention, arose. Analyzing the motivations that have pushed the Supreme administrative forum to hypothesize a lack of legitimacy in the paragraph II of the art. 1475 D. lgs 66 / 2010, it is assumed, in fact, a contrast of the Italian provision with the art. 117, paragraph 1, Cost., In relation to the 11 and 14 articles of the European Convention on Human Rights; in particular, the Council of State has endorsed the interpretation already provided, in this regard, by the ECtHR in the two aforementioned judgments against France.
A further contrast is, then, always identified with respect to art. 117 Cost., But in relation to art. 5, third period10, of the revised European Social Charter11. Specifically, it is considered that the aforementioned provision "(...) where it lays down to national legislation to determine the principle of the application of union guarantees to the military as well as the extent of such application, it intends to evoke an essential core, (...) of trade union freedom which can not be recognized also in favor of such categories of workers: it follows that a national law that, like art. 1475 paragraph 2 of the D ngs 66 / 2010, deprived of the rights of the founding of trade union professional associations or of joining other trade unions, is at odds with this provision of conventional international law "12. In principle, however, the principle already established by the European Court of Human Rights, according to which the restriction of the exercise of the right of trade union of the military can not go as far as the denial of the ownership of this right, reaffirms. the violation of the mentioned 11 and 14 articles of the Convention. Furthermore, the same representative bodies, identified in art. 1476 of the military system, are considered not sufficient to guarantee the aforementioned trade union freedom, as they are however hierarchically structured.
So we come to the recent decision of the Consulta, of historical significance, considering the previous position expressed in the above-mentioned sentence of 1999: through the 11 press release 2018, the Consulta states that it has declared "(...) the question of constitutional legitimacy of the art. 1475 comma 2 Cost. (...) in the part in which it forbids the military to establish professional associations of a trade union nature ". However, the prohibition of joining other trade unions remains firm. In addition, at present, the same Court states that, in accordance with the particularity of military status, it will be necessary to await a specific law regulating the establishment of possible military union associations. Consequently, although in the relevance of the moment, it will still be necessary to await the intervention of the legislator to have concrete developments. In fact, it serves a normative discipline that regulates the constitution, the activity and the eventual cessation of the military unions, absent today. So, yes to the recognition of trade unions, but only in relation to entities that are able to ensure trade union freedom for the military, and to ensure the specificity of the role. The members of the Armed Forces can not, however, register with the generally known trade unions.
For those who were asking questions about the situation in the rest of Europe, what emerges is a rather varied picture compared to the Italian situation: the first military union was established in Norway in the 1835; then he moved to Holland in 1898 and Belgium in 1909. In the United Kingdom, on the other hand, there are no specific trade unions, but the military have the right to register with the existing ones that they consider most representative of their requests; in Austria and Sweden, the right to strike is admitted, albeit with the necessary limitations. It is Germany, however, that prevails in numerical terms, being able to count on the presence of a military union with more than 200.000 members13.
Therefore, the Italian regulatory context presents a significant delay compared to the main European nations; even if the intervention of the Consulta appears to be an important step, this can not be said to be decisive: we must wait, concretely, to take the position of the current Government in order to better understand the future developments of the affair.
Katia Sacchetti
1Press Office of the Constitutional Court, 11 release 2018 April, https://www.cortecostituzionale.it/documenti/comunicatistampa/CC_CS_20180411184944.pdf
2Constitutional Court, sentence no. 120 / 2018, Pres. Lattanzi, Rel. Courage. The text can be found at the link https://www.cortecostituzionale.it/actionPronuncia.do
3In this sense, Council of State, sect. IV, as reported in the Constitutional Court, sentence no. 449 / 1999, https://www.cortecostituzionale.it/actionPronuncia.do
4Thus, Avvocatura dello Stato, as reported in the Corte Cost., Sentence no. 449 / 1999, cit .: "(...) the" military duty "has precise constitutional protection. (...) the law n. 382 1978 is the instrument with which the legislator has safeguarded the functional reasons of the Armed Forces and, at the same time, has implemented the constitutional precept that the military system "informs the democratic spirit of the Republic. (...) typical of trade union freedom would be irreconcilable with the principles of the military system, since the power of self-organization, where recognized, would give rise to agreements among the members that do not seem compatible with the hierarchical relationship. outside the conditions in which, pursuant to Article 5 of Law No. 382, the disciplinary regulation is applicable: the military, according to the Avvocatura, are in any case required to comply with the rules concerning the oath given and the In this way the prestige of the figure of the superior who participates in an association presided over by a subordinate would be undermined. During the course of trade union activities, hierarchical relations would be reversed; and even if here they reveal competences different from those related to the service, it would still result in a confusion of roles ".
5Trib. Turin, sect. IV penal, ord. 5230 / 12: "(...) the regulatory framework drawn up by the legislator is that of a representation of personnel that remains strictly circumscribed within the institution, without the creation of a new subject distinct from it. This corresponds to a very precise political choice that, for the military bodies of the State, has been in the sense of limiting the freedom of trade union members to the armed forces by preventing them to create formations having a legal subjectivity distinct from that of the military administration. Defying subjectivity is absent not only the legitimation but, more radically, the same legal capacity necessary for the establishment of a civil party ".
6CO. BA. R., Piedmont Region, Guardia di Finanza, resolution no. 2 / 23 / XI
7Appeal n. 10609 / 2010, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-146695%22]}
8Appeal n. 32191 / 09, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-146700%22]}
9Appeal n. 101 / 2013, CESP case c. France
10European Social Charter, art. 5: "(..) to guarantee or promote the freedom of workers and employers to establish local, national or international organizations for the protection of their economic and social interests and to join these organizations, the Parties undertake to ensure that the national legislation does not prejudice this freedom or be applied in such a way as to prejudice it. The extent to which the safeguards provided for in this article will apply to the police will be determined by national legislation or regulation. The principle of applying these guarantees to members of the Armed Forces and the extent to which they are applied to this category of persons is also determined by national legislation or regulation ".
11We read in the Council of State, sect. IV, ord. 02043 / 2017: "(...) the revised European Social Charter, adopted by an international treaty, provides for a body of individuals, to the state called the European Committee of Social Rights, nominated by the Contracting States and composed of experts of the utmost integrity and recognized competence. in national and international social issues, which is referred, among other things, to the decision of collective complaints about an unsatisfactory implementation of the Charter that can be proposed by associations, national or international, of workers and employers. However, the decision to make such complaints is not without direct effect in the legal systems of the Member States, but, even before that, it is not even capable of constituting international obligations for the State concerned: where, in fact, the European Committee of social rights identified, following a collective complaint procedure, an unsatisfactory implementation of the Charter, it is up to the Committee of Ministers, organ of States, the adoption by a two-thirds majority of the voters of a recommendation addressed to the Contracting Party in question . (...) The Charter (...) does not assign to the Committee (...) the exclusive competence to interpret the Charter itself: the relative exegesis, therefore, is referred to the single national judge, who will proceed according to the proper criteria of the interpretation of the treaties ( ...) ".
12In this sense, Council of State, sect. IV, ord. 02043 / 2017
13As reported by C. CATALDI, "Trade union rights of the military and European law. The word to the European Court of Human Rights ", https://www.dirittieuropa.it/blog/14016/news/diritti-sindacali-dei-militari-e-diritto-europeo-la-parola-alla-corte-europea-dei-diritti-delluomo/
(photo: Defense)
