JUDGMENT NO. 1

YEAR 1990

ITALIAN REPUBLIC

In the name of the Italian People

THE CONSTITUTIONAL COURT

composed of the Honorable Justices:

Dott. Francesco SAJA President

Prof. Giovanni CONSO

Prof. Ettore GALLO

Dott. Aldo CORASANITI

Prof. Giuseppe BORZELLINO

Dott. Francesco GRECO

Prof. Renato DELL'ANDRO

Prof. Gabriele PESCATORE

Avv. Ugo SPAGNOLI

Prof. Francesco Paolo CASAVOLA

Prof. Antonio BALDASSARRE

Prof. Vincenzo CAIANIELLO

Avv. Mauro FERRI

Prof. Luigi MENGONI

Prof. Enzo CHELI

has rendered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 52, third paragraph, of Presidential Decree no. 1092 of December 29, 1973 (Approval of the consolidated text of the regulations on pension treatment of civil and military employees of the State), initiated by ordinance issued on January 27, 1988, by the Court of Auditors in the appeal brought by Pallante Domenico, registered under no. 341 in the register of ordinances for 1989 and published in the Official Gazette of the Republic no. 29, first special series, of the year 1989.

Seen the instrument of constitution of Pallante Domenico as well as the instrument of intervention of the President of the Council of Ministers;

Heard at the public hearing of November 15, 1989, the Reporting Justice Giuseppe Borzellino;

Heard Avv. Claudio Rossano for Pallante Domenico and Avv. Luigi Siconolfi for the President of the Council of Ministers.

Facts of the Case

1.- By ordinance issued on January 27, 1988 (received on June 23, 1989), the Court of Auditors, on the appeal brought by Pafiante Domenico, raised a question of constitutional legitimacy of Article 52, third paragraph, of Presidential Decree no. 1092 of December 29, 1973 (Approval of the consolidated text of the regulations on pension treatment of civil and military employees of the State), insofar as it provides for a limit of 20 years of effective service for the attainment of the right to a pension for dismissed military personnel (in contrast to the previous regulation which had recognized this right after 15 years of service), for conflict with Article 76 of the Constitution in relation to Article 6 of Delegation Law no. 775 of October 28, 1970, where the criterion of better accessibility and understanding of the previous provisions is established.

The ordinance shows that the appellant, at the time a P.S. guard, who ceased service on January 21, 1980, due to loss of rank as a result of a criminal conviction, brought proceedings before the Court of Auditors for recognition of the right to a pension. The referring court, after noting that the actual service performed by the appellant does not reach the limit of 20 years, prescribed by Article 52, third paragraph, of Presidential Decree no. 1092 of December 29, 1973, for the attainment of the benefit, suspected the aforementioned provision of being unconstitutional due to excess of delegation.

The Court of Auditors, after recalling the previous legislation, notes how the regulation of the matter, especially as a result of subsequent judgments of the Constitutional Court, is such that for the cases in question, a seniority of service of 15 years should be taken into consideration.

Therefore, the challenged provision, which provides for the higher limit of 20 years, does not seem to correspond "to a criterion of better accessibility and understanding of the previous provisions”, as prescribed in the delegation law.

In support of the charges of unconstitutionality of the challenged provision, having introduced a radical innovation that would not be permitted by the delegation itself, the appellant Pallante constituted himself, invoking, inter alia, previous consolidated and protected rights.

The Attorney General of the State intervened on behalf of the President of the Council of Ministers, concluding that the question was unfounded on the grounds that the delegation law would have given the Government "the power to innovate with respect to the previous legislation”. In any case - it is clarified - this legislation provided for the more favorable limit of 15 years only for officers, a limit then extended to all personnel by the interventions of the Constitutional Court, however, aimed exclusively at guaranteeing needs for uniformity of treatment, which are equally respected by the current provision.

Legal Considerations

1.1 - Article 52, paragraph three, of Presidential Decree no. 1092 of December 29, 1973 (Consolidated text of the regulations on pension treatment of civil and military employees of the State) prescribes, inter alia, for military personnel, that the officer, non-commissioned officer, and enlisted soldier who cease permanent or continuous service due to are entitled to a normal pension if they have completed at least twenty years of effective service.

1.2 - The referring court doubts the legitimacy - ex Article 76 of the Constitution - of the provision, for excess in the exercise of the delegation contained in Law no. 775 of October 28, 1970, Article 6.

It would emerge from the context of the previous legislation, as well as from the jurisprudence of the Constitutional Court that intervened on this legislation, that the cases concerning dismissed military personnel .

On the other hand, the challenged provision introduces the higher limit of 20 years, not corresponding - the referring court assumes - to the criteria of dictated by the delegating party for the collection of the rules in a consolidated text having the value of ordinary law, with infringement, therefore, of the guarantees dictated by Article 76 of the Constitution.

2. - The question is unfounded.

It is indeed true - as the referring court itself recalls - that with various and also recent judgments of this Court, the limit for benefiting from a pension by personnel removed from rank has been reduced - limited to the system prior to the current consolidated text - to the shorter period of fifteen years. But the cases gradually submitted to constitutional scrutiny were presented, it should be specified, ex Article 3 of the Constitution with a *tertium comparationis* concerning identical and homogeneous scope of subjects - all military - for whom the legislator had provided the most favorable treatment only to officers.

Now, with the current legislation, the legislator has decided to introduce for all military personnel the common limit of 20 years of service. And it should not be overlooked that the same seniority has also been set for dismissed civilian personnel (Article 42 of the consolidated text).

Nor does there exist, with reference to the invoked parameter (Article 76), violation of principles and directive criteria: the contents of Article 6 of Law no. 775 of October 28, 1970 (delegating provision) assign the Government sufficient margins of discretion (see judgment no. 91 of 1984) which have been correctly exercised in relation to an institution that, in its application, made uniform as mentioned, relates to subjects who have been removed or dismissed.

In conclusion, the delegated legislator has adapted to the principles of a discipline that is such as to make valid the modification to the , without, that is, that alleged frustrations of expectations have been affected, as this Court has already had occasion to consider in relation to pension treatments (judgment no. 349 of 1985).

FOR THESE REASONS

THE CONSTITUTIONAL COURT

declares ungrounded the question of constitutional legitimacy of Article 52, paragraph three, of Presidential Decree no. 1092 of December 29, 1973 (Approval of the consolidated text of the regulations on pension treatment of civil and military employees of the State), with reference to Article 76 of the Constitution, raised by the Court of Auditors, with the ordinance indicated in the epigraph.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 13/12/89.

Francesco SAJA, PRESIDENT

Giuseppe BORZELLINO, DRAFTER

Filed in the registry on January 02, 1990.