JUDGMENT NO. 75
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: 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 delivered the following
JUDGMENT
in the proceedings regarding the constitutional legitimacy of Article 54, paragraph 1, of the Legislative Decree of 30 October 1992, No. 443 (Regulation of the personnel of the Penitentiary Police Corps, pursuant to Article 14, paragraph 1, of Law No. 395 of 15 December 1990), initiated by the Regional Administrative Tribunal for Piedmont, First Section, in the proceedings between A. D.F. and the Ministry of Justice, by order of 24 April 2023, registered under No. 75 of the register of orders 2023 and published in the Official Gazette of the Republic No. 23, first special series, of the year 2023.
Having seen the act of constitution of A. D.F.;
Having heard at the public hearing of 19 March 2024 the Reporting Justice Giovanni Amoroso;
Having heard the lawyer Maria Francesca Soriano for A. D.F.;
Deliberated in the council chamber of 19 March 2024.
Considered in fact
1. – By order of 24 April 2023, the Regional Administrative Tribunal for Piedmont, First Section, raised questions of constitutional legitimacy of Article 54, paragraph 1, of Legislative Decree No. 443 of 30 October 1992 (Regulation of the personnel of the Penitentiary Police Corps, pursuant to Article 14, paragraph 1, of Law No. 395 of 15 December 1990) insofar as it provides that "[t]he promotions referred to in this decree shall take effect from the date of the occurrence of the event”, with reference to Articles 3, 97, and 117, first paragraph, of the Constitution, the latter in relation to Articles 1, 2, and 3 of the Convention of the International Labour Organization No. 111, on Discrimination in Respect of Employment and Occupation, adopted in Geneva on 25 June 1958, ratified and made enforceable by Law No. 405 of 6 February 1963.
1.1. – The referring judge states that the appellant holds the qualification of deputy superintendent of the Penitentiary Police Corps following promotion for extraordinary merit pursuant to Article 77, paragraphs 1 and 2, of Presidential Decree No. 82 of 15 February 1999 (Service Regulation of the Penitentiary Police Corps), with effect, according to the challenged provision, from 1 February 2016.
In particular, the a quo Tribunal highlights that the employee acted for the ascertainment and declaration of the failure to fulfill the obligation to act of the Ministry of Justice – Department of Penitentiary Administration, General Directorate of Personnel and Resources and Regional Superintendency of Piedmont and Valle d’Aosta with respect to the request notified to the same Department, which remained without a response, through which he had requested that the legal effects of the award of the promotion to the qualification corresponding to the higher ranking take effect from 1 January 2009, by virtue of the principles expressed in the judgment of this Court No. 224 of 2020 and the opinion rendered by the Council of State, First Section, in the meeting of 10 November 2021, No. 1984.
The TAR Piedmont further represents that, pending the completion of the procedure for the award of the higher qualification for extraordinary merit in favor of the same appellant, on the basis of two separate proposals in this direction, the Penitentiary Administration, on 19 December 2017, had announced a competition with which it had advertised 2,851 positions for appointment in the same initial qualification of the role of superintendents in the Penitentiary Police Corps, with legal effect from 1 January 2009.
However, the appellant had not participated in this competition as he was awaiting two recognitions of greater prestige. The promotion for extraordinary merit in the qualification was obtained by provision of 9 December 2020, following the judgment of the same TAR Piedmont of 2 November 2020, No. 659.
In the meantime, however, this Court, with judgment No. 224 of 2020, had declared constitutionally illegitimate, as the a quo judge still recalls, Article 75, first paragraph, of Presidential Decree No. 335 of 24 April 1982 (Regulation of the personnel of the State Police who carry out police functions), where it did not provide, within the framework of the State Police personnel regulations, for the alignment of the legal commencement date of the qualification of deputy superintendent of those who are promoted for extraordinary merit to the more favorable one recognized to the personnel who have obtained the same qualification as a result of the selection or competition subsequent to the date of verification of the facts.
In accordance with the principles affirmed by this Court in the aforementioned decision, the appellant had therefore cautioned the Penitentiary Administration to operate the reconstruction of his career with the more favorable commencement date recognized to the deputy superintendents promoted as a result of the competition announced on 19 December 2017 and, in the face of the inertia in providing, had filed an appeal for the ascertainment of the right to the retroactive date in the qualification for legal purposes.
The referring judge further reports that the Ministry of Justice – Department of Penitentiary Administration, in constituting itself in judgment, has deduced the irrelevance of the aforementioned pronouncement in the specific case because it was adopted with regard to a specific provision of the personnel regulation of the State Police which cannot find application, either direct or analogical, in the regulation of the Penitentiary Police.
1.2. – The TAR Piedmont, in outlining the normative framework of reference, recalls that Article 51 of Legislative Decree No. 443 of 1992 on the regulation of personnel belonging to the Penitentiary Police Corps establishes that the higher qualification can be conferred, in the presence of the assumptions indicated therein, also for extraordinary merit, to agents, chosen agents, assistants and chief assistants, and that this promotion, pursuant to Article 54 of the same legislative decree, takes effect from the date of the occurrence of the event.
It highlights that, ordinarily, according to the provisions of Article 16 (paragraph 1, letters a and b) of the same Legislative Decree No. 443 of 1992, the appointment to the initial qualification of the role of superintendents of the Penitentiary Police is achieved by selection made by comparative merit scrutiny reserved on application within the limit of seventy percent of the positions available on 31 December of each year, to chief assistants having certain requirements and, within the limit of thirty percent of the positions available on the same date, by competition for qualifications and exams, reserved for the role of agents and assistants.
The TAR Piedmont underlines, in particular, that in these cases, pursuant to paragraph 3 of the same provision, the appointment as deputy superintendent is conferred with legal effect from 1 January of the year following the one in which the vacancies occurred, not neglecting to specify that this peculiar retrodating of the sole legal effects of the award of the qualification was introduced by Article 3 of Legislative Decree No. 200 of 12 May 1995 (Implementation of Article 3 of Law No. 216 of 6 March 1992, regarding the reorganization of the careers of non-executive personnel of the Penitentiary Police Corps), as amended by Article 3 of Legislative Decree No. 76 of 28 February 2001 (Supplementary and corrective provisions of Legislative Decree No. 200 of 12 May 1995, regarding the reorganization of the non-executive personnel of the Penitentiary Police Corps). This provision has thus amended the previous rule expressed by Article 19, paragraph 1, of Legislative Decree No. 443 of 1992, which provided that the promotion to the qualification of deputy superintendent was conferred according to the ranking order of the course starting from the date of conclusion of the course itself.
1.3. – The referring judge underlines that this retrodating mechanism has the same characteristics as that already deemed constitutionally illegitimate, insofar as it did not also apply to those who had obtained the higher qualification for extraordinary merit, by the already cited judgment No. 224 of 2020 of this Court, with regard to the personnel of the State Police, recognizing a possible violation of Articles 3 and 97 of the Constitution, since the changes made as a result of Article 3 of Legislative Decree No. 76 of 2001 have led to a substantial "leapfrogging" in the role of superintendents by those promoted by competition compared to those who had obtained promotion for extraordinary merit.
With regard to the contested timeliness of the appellant’s action with respect to the date of the provision of placement in the higher qualification, the referring judge observes that this administrative act has a binding nature, so the legal position asserted by the appellant is a true and proper subjective right subject to the statute of limitations contemplated for actions of ascertainment and condemnation.
The referring Tribunal also highlights that, even if one were to adhere to the more traditional thesis that ascribes an authoritative nature to the provisions of placement in the role of public law personnel, the appellant’s claim can be converted (also for the subordinate claim proposed) into action against the silence kept by the Administration with respect to the warning sent by the employee after the publication of the aforementioned judgment No. 224 of 2020. Indeed, should one thus opine, the inertia would have been perfected on 4 November 2022, with consequent timeliness of the action with respect to the annual term provided for by Article 31, paragraph 2, of Annex 1 to Legislative Decree No. 104 of 2 July 2010 (Implementation of Article 44 of Law No. 69 of 18 June 2009, containing delegation to the government for the reorganization of the administrative process) for the proposal of action against silence.
The TAR then notes that access to the qualification by this way instead of the ordinary ones has a quid pluris of exemplarity and merit that can be relevant in the subsequent scrutiny procedures, considering that the one for comparative merit, pursuant to Article 44 of Legislative Decree No. 443 of 1992, consists of a judgment on the overall professionalism of the employee that is based on the qualifications resulting from the personal file and the matriculation status, with particular regard to the information reports and the overall judgments.
Hence the deemed existence, according to the referring judge, of a differentiated and qualified interest of the appellant to privilege the achievement of promotion for extraordinary merit.
1.4. – The TAR Piedmont also observes that, in the face of the clear literal wording of Article 54 of Legislative Decree No. 443 of 1992, where the legal effect of promotion for extraordinary merit is still dated to the occurrence of the event that gave rise to the award of the "reward”, a constitutionally oriented interpretation of the rule is not possible, not even by analogical application of the aforementioned judgment No. 224 of 2020, since it refers to another provision, i.e. Article 75, first paragraph, of Presidential Decree No. 335 of 1982 which, while having a content similar to the aforementioned Article 54, has not eliminated said rule from the legal system.
1.5. – On the point of non-manifest groundlessness, the a quo judge underlines that, in the system originally configured by Legislative Decree No. 443 of 1992, there was no misalignment regarding the effects of the achievement of the higher qualification, depending on whether it took place in the ordinary or extraordinary way, a misalignment determined only by Article 16, paragraph 3, in the wording following Legislative Decree No. 76 of 2001, where it provided for the retrodating of the qualification, where obtained by competition, to 1 January of the year following the one in which the vacancies occurred.
Hence, according to the referring judge, the same regulation that has been deemed constitutionally illegitimate would be reproduced, with reference to the State Police, by the repeatedly cited judgment of this Court No. 224 of 2020. Consequently, the challenged provision would conflict, first of all, with Article 3 of the Constitution because it would not be reasonable to provide for a different commencement date in the acquisition of the higher qualification only in consideration of the methods of access to it.
The intrinsic contradictoriness of the rule would already be relevant on a logical level given that, in the face of the temporal priority of the first case, i.e. of the event generating the promotion for extraordinary merit, on 4 February 2016, an ordinary competitive procedure announced later, i.e. on 19 December 2017, would produce its effects on an earlier date.
Furthermore, from a teleological standpoint, the provision would be inconsistent with the award objective of the reward, which would end up determining seriously penalizing results for the career development of the beneficiary, given the general rule set forth in Article 2, paragraph 2, of Legislative Decree No. 443 of 1992, according to which, within the same role, the hierarchy is determined by the qualification and, within the same qualification, by seniority.
Moreover, on a systematic organizational level, the contradictoriness of the challenged provision would be revealed in light of the principle of a tendential equalization of the regulations of the Police Forces sanctioned by Article 8, paragraph 1, letter a), of Law No. 124 of 7 August 2015 (Delegations to the Government regarding the reorganization of public administrations), given the cancellation of the analogous mechanism provided for the State Police as a result of judgment No. 224 of 2020.
From a different standpoint, the referring judge doubts the constitutional legitimacy of Article 54, paragraph 1, of Legislative Decree No. 443 of 1992 also with reference to Article 97 of the Constitution, since the maintenance of a divergence in the commencement date of the legal effects between the two hypotheses of promotion to the same higher qualification would determine an unreasonable disparity of treatment by the administration in violation of the principle of impartiality that must characterize public offices.
Furthermore, with reference to the principle of good performance of administrative activity, the failure to align the legal commencement date would be dissonant with the award ratio underlying the institution of promotion for extraordinary merit.
The TAR Piedmont finally observes that the challenged provision, by determining an unreasonable leapfrogging only in the face of the event generating the promotion, would also violate Article 117, first paragraph, of the Constitution, in relation to the principle of non-discrimination sanctioned by Article 1, first paragraph, letter b), of ILO Convention No. 111 of 1958 on discrimination in respect of employment and occupation.
2. – The appellant in the a quo proceedings, A. D.F., was constituted in the proceedings, who, after reviewing the provisions that concerned him and the reasons underlying the principal action, highlighted the substantial identity of the provisions expressed in the matter for the State Police, i.e. Articles 75 and 24-quater, seventh paragraph, of Presidential Decree No. 335 of 1982, which gave rise to the judgment of this Court No. 224 of 2020, and for the Penitentiary Police, i.e. Articles 54 and 16, paragraph 3, of Legislative Decree No. 443 of 1992. He thus highlighted, in support of the questions raised by the TAR Piedmont, that the same problems of constitutional legitimacy arise, with reference to Articles 3 and 97 of the Constitution, ascertained by the indicated judgment.
3. – The President of the Council of Ministers did not intervene in the proceedings.
Considered in law
1. – With the order indicated in the epigraph, the TAR Piedmont has raised questions of constitutional legitimacy of Article 54, paragraph 1, of Legislative Decree No. 443 of 1992, with reference to Articles 3, 97, and 117, first paragraph, of the Constitution, the latter in relation to Articles 1, 2, and 3 of ILO Convention No. 111 of 1958 on discrimination in respect of employment and occupation.
In particular, the referring judge doubts the constitutional legitimacy of the challenged provision, insofar as, by anchoring the legal commencement date of promotion for extraordinary merit in the role of deputy superintendents of the Penitentiary Police to the date on which the event that gave rise to the reward occurred, it would determine an illegitimate disparity of treatment, which is also reflected on the principles of good performance and impartiality of administrative action, compared to the deputy superintendents who have gained access to the same qualification as a result of competitive procedures for which, instead, Article 16, paragraph 3, of the same Legislative Decree No. 443 of 1992, provides for a legal retrodating in the qualification to the date of 1 January following the one in which the vacancies occurred.
2. – Preliminarily, the conditions for the admissibility of the questions regarding their relevance exist.
2.1. – With reference to the timeliness of the principal action, the TAR Piedmont observed that the appellant has not lapsed from the possibility of requesting a different commencement date on the legal level in access to the initial qualification of the superior role of superintendents, even though he had not challenged, within the term of sixty days from legal knowledge of the same, the relative provision of placement. It highlighted that, since this provision is of a binding nature, the employee has, with respect to it, a position of subjective right, which can be asserted within the ordinary statute of limitations for the action of ascertainment.
In any case, the action would also be timely if it was intended to contest the silence-denial of the public administration with respect to the appellant’s request to obtain the desired placement with a more favorable commencement date, having been proposed within the term of one year, provided for by Article 31, paragraph 2, of the Code of Administrative Procedure, with respect to the time of formation of the aforementioned silence.
These assessments by the referring judge are an expression of a non-implausible examination regarding the timeliness of the assumed action (judgments No. 170 of 2018 and No. 53 of 2017).
2.2. – With regard to the existence of a concrete interest of the appellant in the same principal proceedings – under the profile that he, while being in a position to do so, had not participated in the competition, announced pending the Administration’s decision on the proposals for promotion for extraordinary merit that concerned him, which would have allowed him to access the superior role of superintendents with the desired more favorable commencement date – the TAR Piedmont observed that, in reality, the employee had such an interest, since, considering the exceptional nature of the maximum reward of promotion for extraordinary merit, the passage into the superior role through it, rather than by competition, would have allowed him to obtain advantages in subsequent career progression that is based, pursuant to Article 44 of Legislative Decree No. 443 of 1992, also on favorable information reports deriving from the personal file.
Under this profile, the motivation of the referring judge is, similarly, adequate by virtue of the principle, repeatedly enunciated in constitutional jurisprudence, according to which the verification of the interest in bringing an action is delegated to the evaluation of the referring judge, where supported by a non-implausible motivation (judgments No. 193 of 2022 and No. 240 of 2021).
3. – It is appropriate, at this point, to briefly recall the normative framework of reference in which the questions of constitutional legitimacy raised by the referral order are located.
3.1. – The Penitentiary Police Corps was established by Law No. 395 of 15 December 1990 (Regulation of the Penitentiary Police Corps), which simultaneously ordered the dissolution of the Custodial Agents Corps and the suppression of the role of penitentiary female guards.
The aforementioned law specifies that the Penitentiary Police Corps is a civilian corps (Article 1, paragraph 2) and is part of the Police Forces (paragraph 3).
By virtue of the delegation conferred by Article 14 of the same Law No. 395 of 1990, Legislative Decree No. 443 of 1992 articulates the non-executive roles in the Penitentiary Police in hierarchical order: role of assistants and agents; role of superintendents; role of inspectors.
Within each role, a further subdivision by qualification is provided for, also hierarchically ordered: in particular, the role of superintendents includes the qualifications of deputy superintendent, superintendent, and chief superintendent.
Therefore, the roles are ordered hierarchically and within them the hierarchy is determined by the qualification and, within the same qualification, by seniority.
If the initial role of assistants and agents is accessed from the outside by competition, placement in the superior role of superintendents, in the initial qualification of deputy superintendents, can be achieved, according to the provisions of Article 16 of Legislative Decree No. 443 of 1992, only through "internal" mechanisms of career progression, namely: through selection made by comparative merit scrutiny reserved on application, within the limit of seventy percent of the positions available on 31 December of each year, to chief assistants who hold, on the aforementioned date, a position in the role not lower than that included within twice the positions identified, who have not received in the last two years an overall judgment lower than "good" and a disciplinary sanction more serious than reprimand. The personnel thus appointed must attend a technical-professional training course of no more than three months (Article 16, paragraph 2, of Legislative Decree No. 443 of 1992), with final verification; within the limit of the remaining thirty percent of the positions available on the date of 31 December of each year, by competition for qualifications and exams with simplified procedures, to be carried out also with telematic procedures, reserved for personnel belonging to the role of agents and assistants, who have completed at least four years of effective service and who have not received in the last two years an overall judgment lower than "good" and a disciplinary sanction more serious than reprimand.
This system of career progression is the ordinary one.
However, career progression can also take place through another channel, i.e. promotion for extraordinary merit.
In particular, Article 51 of Legislative Decree No. 443 of 1992 governs the promotion for extraordinary merit of those belonging to the role of agents and assistants in that of superintendents, in the initial qualification of deputy superintendent, establishing that it can be conferred on agents, selected agents, and assistants who "in the exercise of their functions, have achieved exceptional results in activities related to their duties, rendering extraordinary services to the Penitentiary Administration, giving proof of exceptional ability and demonstrating that they possess qualities such as to give a sure guarantee of laudably performing the functions of the superior qualification, or have run a serious risk of life to protect public safety and security".
The inspiring ratio of promotion for extraordinary merit – which constitutes the highest form of "reward" for the activity carried out – is to allow those who have distinguished themselves for the exceptionality of the qualities shown on the occasion of particular service operations, to access the higher qualification in derogation from the ordinary mechanisms of career progression.
The advancement in career for extraordinary merit represents an exception to the rule of public competition, so it must be interpreted restrictively (judgment No. 224 of 2020).
3.2. – With specific regard to the questions underlying the referral order, the commencement date of this extra ordinem promotion is set by the challenged Article 54, paragraph 1, of Legislative Decree No. 443 of 1992: promotions for extraordinary merit take effect from the date on which the event that gave rise to the award of this qualification occurred.
In the original system, once the appointment to the qualification of deputy superintendent had been achieved, there was no significant difference, on the point of legal commencement date, between those who had obtained the same by competition and those who had been promoted for extraordinary merit, since Article 19 of Legislative Decree No. 443 of 1992 provided that employees who had passed the competition for qualifications or for qualifications and exams were placed in the superior role only on the date of conclusion with a positive outcome of the required training course.
The questions underlying the referral order arose only at a later time when – following the repeal of this provision by Article 3 of Legislative Decree No. 200 of 1995 and the transposition of the relative discipline in Article 16, paragraph 3, of the same Legislative Decree No. 443 of 1992, with the amendments introduced by Article 3 of Legislative Decree No. 76 of 2001 – it was subsequently established that the appointment as deputy superintendent is conferred by decree of the general director of personnel and resources with legal effect from 1 January of the year following the one in which the vacancies occurred (and with economic effect from the day following the date of conclusion of the training course).
This provision, considered in combination with the legal commencement date anchored, instead, for promotion for extraordinary merit, by paragraph 1 of Article 54 of Legislative Decree No. 443 of 1992, to the date of the occurrence of the events that justified the award of the qualification, would determine the unreasonable dissonant effect assumed by the referral order.
4. – Having stated this, we can now examine the alleged violations of the principles of equality (Article 3 of the Constitution) and impartiality of administrative action (Article 97 of the Constitution).
The questions are well-founded under both profiles, with absorption of the criticisms raised with reference to Article 117, first paragraph, of the Constitution, in relation to Articles 1, 2, and 3 of ILO Convention No. 111 of 1958 on discrimination in respect of employment and occupation.
5. – As this Court has already affirmed, in fact, with reference to the questions that have involved provisions that are completely overlapping, in their content, regarding career progression within the State Police, Article 3 of the Constitution is violated first of all, since an illegitimate disparity of treatment can occur between the deputy superintendents of the Penitentiary Police, who have been promoted in the qualification for extraordinary merit, and those who have gained access to the same qualification by competition or selective procedure (judgment No. 224 of 2020).
This situation is a consequence, as regards the regulation of the Penitentiary Police, of the introduction of the already mentioned mechanism of retrodating of the commencement date only for the legal effects of the appointment, to the date of 1 January of the year following the one in which the vacancies occurred, by Article 16 of Legislative Decree No. 443 of 1992, with the amendments introduced by Article 3 of Legislative Decree No. 76 of 2001, for only the deputy superintendents who access said qualification by competition or selective procedure, without the simultaneous provision of a mechanism of realignment for the deputy superintendents already previously promoted for extraordinary merit, the provisions of Article 54, paragraph 1, of the same Legislative Decree No. 443 of 1992 having instead remained unchanged for the latter, which makes seniority in this qualification (both economic and legal) take effect from the day on which the event that gave rise to the assignment of the superior qualification occurred.
According to what was highlighted by this Court with reference to the analogous situation that was in force in the career progression system of the State Police, the diversity of the paths, ordinary and extraordinary, of access to the higher qualification is recomposed at the end, i.e. on completion of the two cases with the appointment as deputy superintendent, once it has occurred, it is that all the deputy superintendents possess the same qualification without the diversity of access to it allowing for such a differentiation as to place some in a higher or lower position than others.
This equalization implies that, when the completion of the case of appointment is perfected at different times, there cannot be a penalizing differentiation for those who have obtained the qualification at an earlier time than those who obtained it later. That is, specifically, the legal commencement date of seniority of those who access (by competition) the qualification of deputy superintendent at a later time cannot precede that of those who already possess this qualification (for extraordinary merit) from an earlier time (again, judgment No. 224 of 2020).
Therefore, the "leapfrogging" determined by the "legal" retroactivity in the qualification, recognized as more favorable treatment only to deputy superintendents who have passed the selective procedures and internal competitions, i.e. who have gained access to the higher qualification through the ordinary system of career progression, violates the principle of equality sanctioned by Article 3 of the Constitution (always judgment No. 224 of 2020).
6. – Furthermore, in the case in question, the violation of the principle of equality is also accompanied by that of Article 97 of the Constitution (judgments No. 243 of 2005 and No. 250 of 1993), because the denounced differentiated regulation gives rise, as has been said, to a different and less favorable treatment for the deputy superintendents promoted for extraordinary merit compared to those who subsequently gained access to the same qualification by competition.
The challenged provision entails, in fact, that the Administration, by virtue of the mechanism of retrodating in the legal seniority of the qualification limited to deputy superintendents appointed by selection or competition, ends up treating similar situations unjustifiably differently, i.e. those of deputy superintendents who have been appointed with different legal commencement dates depending on the methods of access to the qualification. This is in violation of the principle of impartiality, which must characterize the action of the public administration (again judgment No. 224 of 2020).
7. – The reductio ad legitimitatem of the challenged provision can be made – with reference to the case in question – by excluding the "leapfrogging" in the legal commencement date of the qualification of deputy superintendent by those who