In our September article on military pensions we have referred to the judgments of the Regional Courts of the Court of Auditors who have expressed themselves in a favorable way for the application to the 1981, 1982 and 1983 years of the increased rate to 44%, pursuant to art. 54 of the 1092 / 1973 dprn (v.articolo). In addition, the Court of Auditors of Tuscany has also joined this address, with the 25 ruling on September 2018, n. 228.
A picture of the main innovations regarding military pensions, which would seem to be sufficiently updated as regards the comparison of the most recent jurisprudential guidelines, could not fail to consider, in addition, recent decisions to define the subjective scope of application of the benefit referred to in paragraph 7 of art. 3 of the Legislative Decree 30 April 1997, n. 165.
The photography of the situation to date
For consolidated guidance up to 2017, the INPS categorically ruled out that the so-called "multiplier" referred to in art. 3, c. 7, of the legislative decree n. 165 / 1997 could also apply to the military placed on absolute leave for unsuitability to the service (and as such not transited in the auxiliary due to lack of the psycho-physical requirements), in case the leave had intervened before reaching the age limits established for termination of service.
This interpretation has been overturned by the Court of Auditors, first in the 2012 (C. Conti, Section Giur. Abruzzo, No. 28 / 2012), and then even more clearly in the 2017 (C. Conti, Section Giur. Sardegna, n 156 / 2017, C. Counts, Section of the Italian Abrocate, No. 27 / 2017, C. Accounts, Section Giur Molise, No. 53 / 2017), precisely because such an orientation would have mystified the intent of the legislator , moreover, by unjustly discriminating against a category already disadvantaged by itself1.
All the soldiers discharged for reform, and therefore as such do not have the requisites for access to the auxiliary, therefore have full right to the compensatory benefit referred to in the aforementioned law, and this regardless of the achievement of the age limit provided for access. at the pension. This is provided that they are subjected to a pension scheme in whole or in part subject to the contribution system.
But let us proceed with order and examine the question analytically.
The reference legislation
Article. 3, c. 7, of the legislative decree n. 165 / 1997, now referred to explicitly by the art. 1865 comdgs n. 66 / 2010, provides that "For the personnel referred to in article 1 excluded from the application of the institution of the auxiliary that ceases from the service to reach the age limits established by the membership order and for military personnel who do not possess the psycho-physical requirements to access or remain in the auxiliary position, whose pension treatment is paid in full or in part with the contributory system under 8 August 1995, n. 335, the individual amount of the contributions is determined by increasing an amount equal to 5 times the tax base of the last year of service multiplied by the rate of calculation of the pension. For the personnel of the military police force and for the personnel of the Armed Forces the aforesaid increase operates as an alternative to the placement in the auxiliary, subject to the option of the interested party".
The aforementioned law, in essence, provides for a measure intended to offset compensating, in terms of social security treatment, the position of those who for various reasons have not been able to access (or remain) in the auxiliary position and who therefore do not the relative indemnity has been recognized.
As clarified by the cited sentence C. Conti, Sec. Jur. Molise, n. 53 / 2017, the provision is still in force, as the code of the military legal decree n. 66 / 2010, in art. 2268, c. 1, n. 930, has only abrogated the paragraphs from 1 to 6.
The considerations in question, then, are not affected in any way by the changes made to the provision in the legislative decree n. 94 / 2017, containing provisions on the reorganization of military careers. Simply, even the personnel of the Armed Forces, as well as that of the military police force, can opt between the placement in the auxiliary (with the relative remuneration) and the use of the benefit in question.
In fact, it is believed to be part of the thesis - adopted by the Jurisdictional Sections of the Court of Auditors of Calabria and Piedmont - according to which the multiplier would continue to be applied also to those who took their leave after the 7 July 2017, date of entry into force of the reform. Although it should be noted, however, that the opposite address is also represented (made by the Court of Auditors of Sardinia).
For those discharged for reform before this deadline the question does not arise and it goes without saying that the latter have the right to the multiplier.
The two opposing orientations
With regard to the definition of the scope of application of the aforementioned provision - and specifically, as regards the identification of the categories of subjects that should be considered as recipients of the relative measure of favor - the field is divided between two opposing orientations.
1. Restrictive orientation
A first interpretation, supported by the INPS, means the rule in a restrictive sense. Using a systematic exegetical criterion, this approach reads the art. 3, c. 7, of the legislative decree n. 165 / 1997 in relation to other provisions of law, which provide for and govern finitimi institutions, such as the privileged pension (above all) and retirement pension, and precisely to avoid possible overlaps with the above excludes the applicability of the multiplier to the military who do not they had the requisites to access (or to stay) in the auxiliary, if at the time of the leave for illness they had not yet reached retirement age.
2. The majority favorable orientation
A second interpretative address (certainly preferable and, to the state, majority in jurisprudence), on the contrary, argues that the benefit in question should apply extensively, regardless of the recurrence of the aforementioned requirement, under the conditions that the military was dismissed for reform and is subject to the contributory system or the mixed system.
This approach is based on the mere literal wording of the wording of the rule in question, which would leave no room for the counter solution made by INPS, which also lacks due to the undue reference to institutions (those mentioned above) quite distinct from the multiplier and destined to satisfy needs and perform very different functions, so much so that there is no rule in the legal system that excludes the possibility of accumulating with each other.
Above all, the early retirement due to illness already in itself economically affects the interested party, who, in addition to losing the auxiliary allowance, will still calculate his pension (even or exclusively) according to the contributory method, and therefore according to how much accrued until the time of leave. Having said that, excluding those in this position from the aforementioned benefit, as mentioned above, would end up discriminating against those who are already in a situation of disfavourment. ratio legis.
Who can appeal: the requirements
As for the requirements that the interested parties must have in order to be able to consider legitimately requesting the application of the aforesaid upright, these are essentially two, as was said:
a) have been dismissed for reform;
b) be subjected to pension treatment according to the mixed (retributive and contributory) or pure contributory system.
Two clarifications are necessary in this regard.
It is considered that it should be considered irrelevant, first of all, that the reform took place due to illness dependent on the cause of service or not, and that therefore the military (or military law enforcement officers) who intend to apply for this purpose are beneficiaries of a privileged pension rather than an ordinary disability pension. As anticipated, in fact, these are completely separate institutions operating on distinctly different levels.
Secondly, it has already been said that, following the reform introduced by Legislative Decree n. 94 / 2017 to the combined disposition of the art. 3, c. 7, of the legislative decree n. 165 / 1997 and art. 1865 com, which now expressly refers to this, part of the doctrine and jurisprudence believes that the possibility of having the multiplier applied regardless of the retirement age is only due to the discharged ones before the 7 July 2017. But it has also been clarified that such an interpretative solution is entirely questionable, so much so that sentences of an opposite nature have already been pronounced. Of course, those who are in the condition of having been reformed after this deadline must however be aware of the fact that the recognition of the benefit presents, in its case, a further profile of difficulty.
The steps to be taken in practice to get the multiplier applied. What can be obtained in case of acceptance
It is a legally necessary step for the successful outcome of any subsequent appeal to allow the competent public administration to rule, prior to the introduction of the judgment, on a specific request pre-ordered to the application of the amount. In default, in fact, the appeal would be automatically rejected by the judge, without even a ruling on the merits. It will therefore be necessary to initially propose an extrajudicial review request by way of warning to the INPS office of the place of residence of the interested party.
At this point, there may be three cases:
a) acceptance of the request by the INPS: in this hypothesis (indeed unrealistic today) the procedure will stop already at this point and it will not be necessary to do anything else;
b) express rejection of the application;
c) no reply.
Both in the second and in the third case (with reference to the latter, after 120 days have elapsed after the date of receipt of the application), it will be an appeal to the Court of Auditors territorially competent. It should be noted that the appeal must be brought under penalty of forfeiture within 3 years from the day on which INPS has received the aforementioned request out of court.
In case of acceptance of the appeal, the military will get the relief of his pension based on the amount in question, with an increase in envelope usually between 100,00 and 250,00 euro on a monthly basis.
The INPS will also have to provide - in the face of a specific judicial request in this sense - also to recognize the related arrears, with a retroactive application of 5 years to date back from the day on which the formal notice was presented. In this regard, the aforementioned extrajudicial request will be valid - if it has the legal requisites to also include a deed of formal notice - also to interrupt ex art. 2943 cc the related limitation period.
As for the demand for the recalculation of the pension based on the rate increased to 44% (which can be combined with the application in question), it has no importance that the military has already been on leave for some time, perhaps for years. In fact, for civil servants there are no revisions foreseen by the 639 / 1970 dprn for workers in the private sector, and so it can not be validly held by INPS that, after 3 years from retirement, the perpetrator loses all rights in this regard2.
Of course, however, it must take into account the fact that the right to arrears is prescribed in 5 years. But this only indicates that the arrears can not be claimed for the period still earlier, and not even that the possibility of having the multiplier benefit after this period of time after retirement is precluded. In other words, who should have been discharged for more than 5 years will still be able to apply for the multiplier application, only that the arrears due exclusively to the last five years will be due, and not even those concerning the time interval, if any. antecedent.
Avv. Francesco Fameli
expert in military administrative law
1Specifically, it is noted that between the end of the 2017 and the month of September the 2018 issued decisions favorable to the application of the multiplier also to the soldiers dismissed for reform who had not, at the time of leave, still reached the age limits for retirement the Jurisdictional Sections of the Regional Counts Courts of Abruzzo, Molise, Sardinia, Lazio, Tuscany, and Piedmont. There were conflicting decisions, that is at the same time judgments of acceptance and judgments of rejection, within the Regional Jurisdictional Sections of Calabria, Lombardy and Emilia Romagna.
2This interpretation has also recently been reiterated by the Labor Courts of Florence and Milan, as well as by the Jurisdictional Sections of the Court of Auditors of Lazio and Trentino Alto Adige (in reference to the latter, for example, the sentence 31 can be cited October 2017, No. 44).
