JUDGMENT NO. 13

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has pronounced the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 1801 of Legislative Decree No. 66 of March 15, 2010 (Military Code), initiated by the Regional Administrative Court of Campania, Sixth Section, in the proceedings between M. M. and the Ministry of Defence, with Order of July 26, 2021, registered under No. 100 of the Register of Orders 2023 and published in the Official Gazette of the Republic No. 34, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the council chamber on January 9, 2024.

Seen the act of intervention of the President of the Council of Ministers;

Heard in the council chamber of January 10, 2024, the Judge Rapporteur Giulio Prosperetti;

Resolved in the council chamber of January 10, 2024.

Considered in fact

1.– By order of July 26, 2021 (reg. ord. No. 100 of 2023), the Regional Administrative Court of Campania, Sixth Section, raised, with reference to Articles 3, 32 and 97 of the Constitution, questions of constitutional legitimacy of Article 1801 of Legislative Decree No. 66 of March 15, 2010 (Military Code), which grants an economic benefit to military personnel who report an infirmity due to service; the provision is challenged insofar as it subordinates the granting of the benefit to the fact that the recognition of the infirmity occurs during the period of employment.

2.– The referring Regional Administrative Court states that the question submitted to its examination concerns the requested annulment of a provision of the Ministry of Defence by which a chosen non-commissioned officer of the Carabinieri was denied the salary benefit referred to in Articles 1801 and 2159 of the Military Code, since the recognition of his infirmity due to service, given the lengthy assessment times, had occurred when he was no longer in active service and could not, therefore, enjoy the foreseen salary increase.

In particular, the applicant in the main proceedings had requested the recognition of the dependence of the infirmity on service on October 28, 2013 and only later, on October 28, 2014, had been placed on leave for permanent absolute unsuitability; the recognition of the dependence of the infirmity on service was communicated to him on October 17, 2017, and on the basis of this, on July 15, 2018, he had made the request for the granting of the economic benefit referred to in Article 1801 of the Military Code, which the administration had rejected.

3.– The referring judge highlights that Article 1801 of the Military Code textually provides that for the granting of seniority increments resulting from infirmity due to service, it is necessary that the causal derivation relationship is recognized «during the period of employment».

The literal wording of the provision would be insurmountable and would preclude any different interpretation; in particular, according to the referring judge, the phrase in question would not allow to reach the interpretation supported by the administrative jurisprudence in the validity of Article 3 of Law No. 539 of July 15, 1950 (Applicability to the mutilated and invalid for service and to the relatives of the fallen for service of the benefits due to the mutilated and invalid of war and to the relatives of the fallen in war), which identified, as a prerequisite for the entitlement to the benefit, the infirmity «duly recognized», regardless of whether such recognition had occurred after the termination of the employment relationship.

3.1.– The current wording of the provision, however, would be unreasonable because it would lead to prejudicial consequences for the worker, independent of his will and resulting from the duration of the administrative procedure for the recognition of the infirmity.

The unreasonableness would also be confirmed by the fact that the assessment of the cause of the infirmity is, necessarily, longer than the procedure for placement on leave, since it must be established quickly whether the person can or cannot continue the employment relationship.

4.– Furthermore, the provision would be in conflict with Article 97 of the Constitution and with the principle of sound administration of the public administration, since the officials responsible for the procedure could instrumentally delay its conclusion, in order to avoid the consequent economic burden; as well as with Article 32 of the Constitution, because the employee could be induced to prolong the duration of the employment relationship, despite his infirmity, until the recognition of his right during the period of employment.

5.– The President of the Council of Ministers, represented and defended by the State Attorney General’s Office, intervened in the proceedings alleging the inadmissibility of the question for lack of relevance and its manifest unfoundedness; as regards the objection of inadmissibility, the State Defence noted that when the military officer requested the salary benefit referred to in Article 1801 of the Military Code, following the positive assessment of the causal link between infirmity and service, he was already on leave, with the right to receive the privileged pension.

6.– This latter circumstance would also determine the unfoundedness of the questions since the currency of the employment relationship required by Article 1801 of the Military Code would derive precisely from the salary nature of the economic benefit in question, not due to employees on leave who receive the privileged pension referred to in Article 1842 of the Military Code.

7.– In any case, according to the President of the Council of Ministers, the different duration of the two administrative procedures, for the assessment of the cause of the infirmity and for placement on leave, would not be unreasonable nor would it invalidate the principle of sound administration of the public administration referred to in Article 97 of the Constitution, since the first of the two assessments is necessarily longer than the second, since it must be verified whether the infirmity should be included in one of the categories referred to in Table A attached to the Decree of the President of the Republic No. 915 of December 23, 1978 (Consolidated Text of the provisions on war pensions).

8.– Finally, in relation to the alleged violation of Article 32 of the Constitution, the State Defence observes that, even if the employee decided to prolong the duration of the employment relationship, the administration could, with an autonomous procedure, place him on leave, if unfit for service, following the medical checks periodically provided for such employees; the Attorney General’s Office therefore requests the dismissal of the questions raised.

Considered in law

1.– The Regional Administrative Court of Campania doubts the constitutional legitimacy of Article 1801 of the Military Code insofar as it subordinates the salary benefit provided for military personnel who have contracted an infirmity due to service to the fact that the recognition of the aforementioned dependence occurs during the period of employment.

In particular, the referring judge denounces the unreasonableness – and therefore the conflict with Article 3 of the Constitution – of such a provision which would place on the worker the prejudicial consequences of the excessive duration of the administrative procedure, thus excluding that he can enjoy the economic benefit due to him for causes independent of his will; the aforementioned condition is, for the referring judge, even more unreasonable since the assessments aimed at establishing the nature of the infirmity and its dependence on service would always be longer than those necessary for placing the military officer on leave.

Furthermore, the provision in question would create a vulnus to Article 97 of the Constitution, as it could induce the public administration to delay the recognition of the dependence of the infirmity on service in order to avoid the consequent economic burden, and to Article 32 of the Constitution, as it could push the worker to postpone the request for leave until obtaining the economic benefit in question.

2.– Article 1801 of the Military Code under scrutiny provides that «[t]o the personnel of the Italian Army, the Navy and the Air Force who, during the period of employment, have obtained the recognition of dependence on service for an infirmity attributable to one of the categories indicated in Table A attached to the Decree of the President of the Republic No. 915 of December 23, 1978, is due only once, at the maximum value, a salary benefit, non-absorbable and non-revalued, equal to: a) 2.50 percent of the salary for infirmities from I to VI category; b) 1.25 percent of the salary for infirmities from VII to VIII category».

The salary benefit is due only once, is calculated as a percentage of the salary and varies in relation to the category of infirmity; Article 2159 of the Military Code extends its application to the personnel of the police forces with civil and military organization.

3.– The legal institution in question has its antecedent in the repealed Articles 117 and 120 of Royal Decree No. 3458 of December 31, 1928 (Approval of the consolidated text of the provisions concerning salaries and fixed allowances for the Royal Army) which recognized, respectively, for officers and non-commissioned officers mutilated or invalid of war the abbreviations of two years or one year (depending on the category of registration) for the purposes of seniority of service for the maturation of periodic salary increases.

3.1.– Subsequently, Law No. 539 of 1950 had extended the aforementioned salary benefits to the mutilated and invalid for service, specifying in Article 3 that «those who, under the direct dependence of the State and local territorial and institutional bodies, have contracted, in service and for reason of military or civil service, duly recognized, mutilations or infirmities attributable to one of the categories referred to in Table A, attached to Law No. 137 of February 19, 1942» are considered mutilated or invalid for service.

Under the validity of this latter provision, without prejudice to the fact that the infirmity dependent on service had to be contracted during the period of employment, part of the jurisprudence (Council of State, Fourth Section, Judgments No. 3468 of June 25, 2013 and No. 1502 of March 16, 2012; Council of State, Third Section, No. 1165 of January 16, 2001) recognized the granting of the benefit of seniority increments, even if the recognition of the aforementioned infirmity had occurred during the military officer's leave, having to take into account – for the production of patrimonial effects – the date of the request and not that of the subsequent assessment.

3.2.– With the entry into force of the military code referred to in Legislative Decree No. 66 of 2010, the legal institution of increments for service disability is regulated by the challenged Article 1801 of the same code which, by modifying the previous discipline, has added a phrase whereby the increment can only be granted to those who have obtained the recognition of the dependence of the infirmity on service «during the period of employment».

In the general report to the code, it is stated that the modification is due to the need to adapt the discipline to the interpretation of the institution given by the administrative judge and to the opinions of the Council of State, special commission for public employment, No. 379 of June 23, 1997 and No. 361 of May 6, 1996, according to which the recognition of the dependence of the infirmity on service has a constitutive nature and, therefore, must intervene when the employee still has the right to receive the salary, still being in service.

3.3.– The infirmity relevant within the meaning of Article 1801 of the Military Code is only that attributable to one of the cases indicated in Table A attached to Presidential Decree No. 915 of 1978, and Article 198 of the same code provides that it is ascertained by the territorially competent hospital medical commission.

The recognition of the attribution of the pathology to a cause of service, on the other hand, is regulated by the Decree of the President of the Republic No. 461 of October 29, 2001 (Regulation containing simplification of the procedures for the recognition of the dependence of infirmities on service, for the granting of the ordinary privileged pension and the equitable indemnity, as well as for the functioning and composition of the committee for ordinary privileged pensions), which attributes the competence to the verification committee for the causes of service (Article 10), which «ascertains the attributability to work activity of the causes producing infirmity or injury, in relation to service events and the causal relationship between the events and the infirmity or injury» (Article 11).

4.– Having stated this from a regulatory point of view, first of all, the objection of inadmissibility raised by the President of the Council of Ministers must be examined, who has argued the irrelevance of the question since the applicant in the a quo proceedings, placed on leave for permanent absolute unsuitability on October 28, 2014, due to service, therefore has the right to receive the related privileged pension for infirmity and not the salary benefit referred to in the challenged provision.

5.– The objection is unfounded.

6.– From the reading of the order of reference, it is clearly inferred that the chosen non-commissioned officer of the Carabinieri, the applicant in the main proceedings, requested the recognition of the dependence of the infirmity on service on October 28, 2013 and was placed on leave for permanent absolute unsuitability, as mentioned, one year later, on October 28, 2014.

It is also clear from the order that the applicant obtained the recognition of the dependence of the infirmity on service which occurred during the working period during leave, on October 17, 2017, and only after that was he able to submit the request for the granting of the economic benefit referred to in Article 1801 of the Military Code.

Therefore, the referring judge has adequately and not implausibly motivated the need to apply the challenged legislation, which is sufficient to establish the relevance of the doubt of constitutionality.

7.– On the merits, the question is well-founded with reference to Article 3 of the Constitution.

8.– Following the entry into force of the military code, the previous discipline of increments for service disability has been partially modified, so that Article 1801 of the aforementioned code, for the granting of the salary benefit, requires that the recognition of the infirmity resulting from service occur during the period of employment.

8.1.– As mentioned, the pay benefit in question presupposes a dual assessment of a constitutive nature, that of the hospital medical commission and that of the verification committee for the causes of service, which refer, respectively, to an objective situation of infirmity of the subject and its causal derivation from service activity.

Both bodies issue mandatory and binding opinions for the public administration, which decides in accordance, adopting a provision that expresses technical discretion, as it is based on medical-specialist and medical-legal knowledge.

8.2.– Constitutive elements of the right are, therefore, the infirmity, which must fall within a case among those specifically identified by the provision, and its derivation from a service cause, while the consequent economic effects derive directly from the law and find their justifying ratio in the need to grant an economic benefit to those who have suffered an impairment in the fulfillment of their duty.

In this perspective, the further condition required by Article 1801 of the Military Code, namely that the recognition of the infirmity occurs during the period of employment, adds an extraneous and dissonant element with respect to the ratio of the patrimonial allocation, which is based on the general principle of the "compensation" of the infirmity and – in addition to contradicting the certifying nature of the procedure that recognizes the infirmity – can lead to the unreasonable consequence of denying the right to those who have met the constitutive requirements of it on the basis of a factor, the duration of the administrative procedure, which «escapes its sphere of control and does not pertain to the constitutive reasons of the right» itself (judgment No. 195 of 2022).

9.– In coherence with the constant jurisprudence of this Court, according to which the principle of reasonableness is violated when there is a contradiction between the purpose pursued by the legislator and the provision expressed by the challenged provision (ex multis, judgment No. 6 of 2019), it must be concluded that the phrase contained in Article 1801 of the Military Code, whereby the recognition of the dependence of the infirmity on service must occur during the period of employment, constitutes an unreasonable provision with respect to the ratio of the provision, which is that of granting an economic benefit that compensates for the sacrifice resulting from service activity, thus violating Article 3 of the Constitution under this profile, it being sufficient instead that the infirmity arose during the period of employment.

The reference to the privileged pension due to employees on leave is not relevant in the opposite sense. The lack of protection, challenged by the referring judge, relates to the previous period of service and is not compensated by the recognition of the different benefit invoked in the act of intervention.

10.– It must therefore be declared the constitutional illegitimacy of Article 1801 of the Military Code insofar as it conditions the granting of the benefit to the recognition of the infirmity during the period of employment, rather than to the fact of its occurrence in service activity.

The further questions of constitutional legitimacy raised by the order in the heading remain absorbed.

For These Reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 1801 of Legislative Decree No. 66 of March 15, 2010 (Military Code), limited to the phrase «,during the period of employment,».

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 10, 2024.

Signed:

Augusto Antonio BARBERA, President

Giulio PROSPERETTI, Rapporteur

Igor DI BERNARDINI, Registrar

Filed with the Registry on February 9, 2024.