Military family reunification

(To Avv. Francesco Fameli)

As is well known, the institution of family reunification allows the married civil servant (or, as will be seen, even only cohabiting), with offspring aged or less than three years, to request to be transferred temporarily (and in any case for a period of time). not exceeding three years) in the same province or region in which the other parent is working.

Does the aforementioned institute also apply in the military sphere? If so, with what specifics?

The topic certainly deserves to be addressed in order to provide useful clarifications to interested parties, especially in view of its undeniable practical relevance.

1. The regulatory framework of reference

To provide an answer to our question it is necessary to refer to the regulatory provisions governing family reunification in our system.

It is necessary to look at the legislative decree n. 151 / 2001, “Consolidated text of the legislative provisions on the protection and support of maternity and paternity, pursuant to article 15 of the law 8.3.2000, n. 53". The aforementioned decree provides for the art. 42-bis latemporary assignment of employees to public administrations". It is established that "the parent with minor children up to three years of age employee of public administrations referred to in article 1, paragraph 2, of legislative decree 30 March 2001, n. 165, and subsequent modifications, can be assigned, upon request, even in a fractioned manner and for a period not exceeding three years, to a place of employment located in the same province or region in which the other parent carries out his work , subject to the existence of a vacant and available position of a corresponding remuneration position and with the consent of the administrations of origin and destination". And it also adds that "Any dissent must be justified. The consent or dissent must be communicated to the interested party within thirty days of the request".

On closer inspection, the aforementioned provision does not however pertain to the military, but to the staff of the public administrations "of article 1, paragraph 2, of the legislative decree 30 March 2001, n. 165”, That is to say the public employees subjected to the so-called“ privatized ”regime following the reform introduced with the legislative decree n. 23 / 1993, among which does not fall, by express provision of the art. 3, paragraph 1, of the same legislative decree n. 165 / 2001, the “military personnel and state police forces".

The art is then highlighted 1493 of the Code of Military Order, Legislative Decree n. 66 / 2010, which expressly provides that "To the female and male military personnel applies, taking into account the particular state covered, the current legislation for staff of public administrations in matters of maternity and paternity".

2. The answer to our question (and some clarifications)

Article. 1493 com just mentioned therefore offers in itself the answer to the question that we initially asked ourselves: by virtue of the reference provided for in it, the entire current legislation on the protection of maternity and paternity must be considered applicable also to the military, and with it also the specific institution of family reunification.

However, some clarifications are needed.

1. The engraved "taking into account the particular state covered", contained in the aforementioned provision, was understood by the jurisprudence in the sense of attribution to the Military Administration “of a particular evaluative power to be exercised case by case and taking into account the overall needs of the offices" (in this sense, Cons. State, Section VI, 21 May 2013, n. 2730). Basically, if on the one hand family reunification also applies to the military, on the other, their particular status (and above all the specific functions that the PA is required to carry out) legitimizes the recognition by the competent offices of wider margins of discretion, to protect the needs of the Command it belongs to.

2. As for conditions that must exist in order to accept the requestinstead, the position of the military does not differ from that of other public employees. In particular, it is necessary that:

- the military officer concerned is the parent of a minor child, not older than three years;

- there is a vacancy at the place of destination, with a corresponding pay position;

- there is the consent of the authorities of origin and destination.

3. On the other hand, it does not constitute an indefectible condition for access to the benefit that the military has contracted marriage. In fact, family reunification operates even in the case of mere cohabitation more uxorio, without preclusion of any kind and in absolute equality with respect to the hypothesis in which there is a marriage relationship. Moreover, following and consolidating the address already outlined by the Constitutional Court (for example, with C. Cost., 15 Aprile 2010, n. 138) on the subject of equating the legal treatment between the family based on marriage and the de facto family , as well as the merit and legitimacy jurisprudence, and even before the Strasbourg Court, on the assumption of the art. 8, par. 1, of the European Convention for the Protection of Human Rights and Fundamental Freedoms - ECHR (for example, in the Kroon case, 27 October 1994), our legislator, with the law 20 May 2016, n. 76, has now equated the partner more uxorio to the spouse under multiple profiles (among other things, in relation to hospital assistance, the powers of representation conferred in the event of illness and inability to understand and wish, as well as with regard to taking over the lease of the residence in the name of the deceased cohabitant).

It is therefore clear that the institution of family reunification can certainly not be an exception, since it must therefore be applied even in the case of mere cohabitation of fact. The same administrative jurisprudence in recent years has repeatedly confirmed it (see, lastly, TAR Calabria - Reggio Calabria, 10 May 2019, n. 321).

3. The relevant guidelines of the jurisprudence on the subject

This placed, the most problematic profiles in the application of the institution in question are basically two.

1. The first concerns the requirement of the existence of a vacancy of a corresponding remuneration position (in substance, of equal grade) at the place where it is requested to be (temporarily) transferred. In particular, in this regard, it is possible for the interested military to obtain access to organic plants of the Command of destination and above all of belonging (in order to demonstrate that the eventual acceptance of the request for reunification would not be suitable to cause any prejudice, not registering any situation of lack of staff)?

The prevalent praetorian orientation is positive. It is indeed true that Articles 1048 and 1049 of the dprn 90 / 2010, in identifying, as regards the military administration, the administrative documents and deeds that are removed from access, also mention those that contain information on the subject of “order structure and organic equipment of personnel, means, equipment and technical ammunition". However, the administrative judges considered the provisions of art. 24, paragraph 7, of the law 7 August 1990, n. 241, in whose mind "in any case, applicants must be guaranteed access to administrative documents whose knowledge is necessary for treating or defending their legal interests". If, therefore, the request for access to documents of this content is intended for family reunification, there can be no doubt whatsoever about the instrumentality of the aforementioned application with respect to those defensive purposes that the aforementioned provision intends to protect (in this sense, see, between the other, TAR Lombardy - Milan 5 September 2013, n. 2105).

2. The second line of jurisprudence that has assumed maximum importance in point of instances of family reunification is that of the necessary adequate motivation of the refusal provision.

As mentioned above, in fact, in the military sphere, the administration in matters of family reunification is granted a much wider discretion than that enjoyed by other public administrations. The recognition of a reinforced motivational obligation by the aforementioned discretionary powers is counterbalanced by the aforementioned discretionary powers.

Notes on the point TAR of Puglia - Section Bari, n. 108 / 2018, which states that the Command invested with the request is called, through the motivation of the provision that concludes the procedural sequence, to formulate a real “judgment of balance between one's own operational needs and this legitimate claim of the appellant"(In the same sense, TAR Lombardy - Brescia, order 27 February 2019, n. 71). The reason for the possible denial, thus, cannot refer generically to "service needs"Or even only to"lack of staff in the Command to which they belong"(Reason in itself not sufficient according to the Regional Administrative Court of Trento, section I, No. 206 / 2016). Rather, it must take into account the specific occurrence of the conditions set forth in art. 42-bis, and in particular "of the actual functions of the military, of the current employment, of the possibility of replacing the employee without prejudice to the organizational requirements of the Command"(TAR Puglia - Bari, order no. 94 / 2019).

In conclusion and in summary. The 791 bill.

From the synthetic examination carried out it is thus clear, conclusively, that family reunification is an institution aimed at the protection of motherhood and paternity, in compliance with art. 29 Cost., And therefore rooted at the highest hierarchical level of sources in our legal system. As such, due to the general reference referred to in art. 1493 com, the aforementioned well can and must also be applied in the military sphere.

In this specific context, family reunification presents characteristic traits that are certainly not with regard to its assumptions (which remain the ordinary ones indicated above), but rather in relation to the greater discretion which, due to the specific tasks assigned to it, is recognized by the military administration by part of the jurisprudence. This discretion is however counterbalanced both by the necessary satisfaction of the principle of administrative transparency, which is expressed in the enlargement (in such cases) of the possible object of the requests for access worthy of acceptance also to the documents from which the organic endowment of the Commands concerned is inferred; and (and above all) by reinforcing the obligation to state the reasons for any refusal measures, called to give an adequate account of the specific organizational and service requirements which, if necessary, preclude the interested party from seeing his application satisfied.

But are the demands for transparency and adequacy of motivation really satisfied by what has been said?

Many believe not. And probably with good reason. Too often, in fact, judgments on the subject, beyond the aforementioned good intentions, stop before the specificity of the administration concerned and are very inclined to conclude on the legitimacy of the rejection measures adopted.

The objective of ensuring greater transparency to the military, perhaps even taking away from the administration its own discretionary prerogatives, has led the promoters of the 791 bill, already discussed in the Senate last April, precisely in theme of "Reunification of Armed Forces and Police personnel". The solutions proposed aim at imposing on the Commands an account of vacancies and organic plants, as well as forming rankings freely accessible to all interested parties, to be drawn up on the basis of predetermined criteria and by scores that take into account, among other things, seniority of service, number of children and the possible presence of serious diseases within the family unit.

Certainly, if approved, the new rules could offer valid answers to the problems that characterize the application of family reunification. In the meantime, however, it is good that the awareness of full usability - even today, even with all the aforementioned limits - of this institute is also reinforced in the military sphere.

Photo: US Navy / US Army