JUDGMENT NO. 99
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 rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 26 March 2001 (Consolidated text of legislative provisions concerning the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of 8 March 2000), referred by the Council of State, Third Section, in the proceedings between the Ministry of the Interior, Department of Firefighters, Public Rescue and Civil Defence and E. B., with non-final judgment of 15 November 2023, registered under No. 158 of the 2023 orders register and published in the Official Gazette of the Republic No. 51, Special Series No. 1, of the year 2023.
Heard in the deliberation chamber on 16 April 2024, the Reporting Judge Marco D'Alberti;
having deliberated in the deliberation chamber on 16 April 2024.
Facts
1. – By non-final judgment of 15 November 2023, registered under No. 158 of the 2023 orders register, the Council of State, Third Section, raised, with reference to Articles 3, 29, 30 and 31 of the Constitution, questions of constitutional legitimacy of Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 26 March 2001 (Consolidated text of legislative provisions concerning the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of 8 March 2000), inserted by Article 3, paragraph 105, of Law No. 350 of 24 December 2003, concerning "Provisions for the formation of the annual and multi-year State budget (2004 Finance Law)".
The contested provision states that "[t]he parent with children under the age of three who is an employee of public administrations referred to in Article 1, paragraph 2, of Legislative Decree No. 165 of 30 March 2001, and subsequent amendments, may be assigned, upon request, even fractionally and for a total period not exceeding three years, to a place of work located in the same province or region in which the other parent carries out their work activity, subject to the existence of a vacant and available position of corresponding remuneration and subject to the consent of the administrations of origin and destination".
2. – The referring court describes the facts of the case a quo in the following terms.
2.1. – E. B. works at the Fire Brigade Command in Florence and resides, together with her family consisting of her spouse and two children (one of whom is under three years old), in a municipality in the Metropolitan City of Naples.
Pursuant to Article 42-bis of Legislative Decree No. 151 of 2001, the employee submitted an application for temporary transfer to the Fire Brigade Command in Naples, which was however rejected by her employing administration on the grounds that – in addition to there being no vacancies in the requested location – the employee's spouse worked in Molise and, therefore, in a region different from that of the location where the transfer had been requested.
2.2 – The Regional Administrative Court for Tuscany, First Section, by judgment No. 964 of 28 July 2022, upheld the appeal brought by E. B. against the refusal decision, finding defects in the investigation carried out by the administration concerning the lack of available positions in Naples and, in any case, considering the fact that the applicant's spouse worked in a region different from that of the location where the transfer had been requested not to be an obstacle to the granting of the application, since the family's residence had been established in the same province as that location.
In the opinion of the first-instance court, in fact, Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 2001, should not be interpreted "in a strictly literal sense, lest it endorse clearly unreasonable situations such as that in which the spouse works a few kilometers from the location where the transfer is requested but this is located across the border of a different region". Therefore, although the legislator has valued, for the purposes of the temporary transfer, not the family residence, but the workplace of the other parent, where the latter "is in a position that allows (due to distance, road network, transport network, etc.) to reach the place of reunification daily, the ratio legis (which is to facilitate the reunification of the family in the first years of the child's life) must be considered achieved just as it would happen if the first's place of work were in the same region, since the border lines between the different administrative areas into which the country is divided cannot reasonably constitute a discriminating element in the matter in question".
2.3. – The Ministry of the Interior appealed against the first-instance court's judgment, which – in addition to alleging the territorial incompetence of the TAR Tuscany with regard to the appeal against a presupposed general administrative act and contesting the finding of an investigative defect regarding the lack of vacancies in Naples – also alleged a violation of Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 2001: according to the appellant, in fact, the applicant's spouse would carry out their work activity outside the Campania Region and this would not allow the prerequisite required by the legislator to obtain the temporary transfer to be considered fulfilled.
3. – The referring court, after rejecting the first two grounds of appeal, considered – with reference to the third and last ground – that it should raise a question of constitutional legitimacy of the contested provision, insofar as it makes the possibility of obtaining the temporary transfer conditional on the fact that "the applicant's spouse has their work activity (and not the work activity or residence of the family unit, where the concepts do not coincide) in the same province or region where the place of work is located where the transfer is requested".
3.1. – In the opinion of the Council of State, in fact, with regard to this provision it would not be possible to accept the interpretative adjustment followed by the first-instance court, since this, "although starting from fully shared premises", would be "prevented by the clear literal wording of the provision", which has "expressly referred, as an element that entitles the requested transfer (in the same province or region), to the place of work of the spouse, and not to their (and the family unit's) residence".
3.2. – Precisely because of the impossibility of practicing a constitutionally oriented interpretation, according to the referring court, the literal application of the contested provision would lead, in the case in question, to an unreasonable outcome and, therefore, contrary to Article 3 of the Constitution, as well as conflicting with the constitutional protection of the family, parenthood and childhood, as provided for in Articles 29, 30 and 31 of the Constitution.
In fact, given the clear purpose of the temporary transfer institution to ensure the unity of the family unit in the very first years of the child's life, allowing both spouses to take care of it, it would be completely unreasonable to limit the transfer of the employee only to the province or region where the spouse's place of work is located.
According to the Council of State, such a requirement, "probably consistent – as a benchmark for identifying the territorial location of the family unit, and the related needs of unity and stability – with a criterion of social normality at the time of the introduction of the provision in question", about twenty years ago, "and therefore such as to constitute, in a not unreasonable way, the cornerstone of the rules governing the protection of the family unit in relation to the movements dictated by the work needs of its adult members, is now subject – also following the changes induced in the last two decades (including that relating to so-called remote work), and in any case to the greater ease of daily travel between neighbouring regions – to applications which, as in the case in question, may betray or frustrate the intention of the legislator, in violation of the aforementioned parameters of constitutionality".
In the light of such transformations, it would therefore no longer be reasonable to grant the temporary transfer exclusively in the province or region where the spouse's place of work is located, since this, among other things, would have the effect of imposing the relocation of the family's residence "as a function of the place of work of one of the spouses", with consequent "uprooting of the family unit itself, where – as in the case in question – family residence and place(s) of work, even if located in different (but neighbouring) regions, are compatible with daily movements, which do not alter the territorial rooting of the family unit".
3.3. – For these reasons, in the opinion of the Council of State, Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 2001, would be in conflict with Articles 3, 29, 30 and 31 of the Constitution.
Reasons
1. – The Council of State, Third Section, raised, with reference to Articles 3, 29, 30 and 31 of the Constitution, questions of constitutional legitimacy of Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 2001.
2. – The contested provision introduced the institution of temporary transfer in favour of public employees referred to in Article 1, paragraph 2, of Legislative Decree No. 165 of 30 March 2001 (General rules on the organisation of work in the service of public administrations), who are parents of children under three years of age.
According to this provision, the employee "may be assigned", upon request, for a period, even fractionally, not exceeding 3 years in total, "to a place of work located in the same province or region in which the other parent carries out their work activity". The assignment is subject to the existence of a "vacant and available position of corresponding remuneration", unless there is justified dissent from the administrations of origin and destination, "limited to exceptional cases or needs", to be communicated "to the interested party within thirty days of the application" (Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 2001).
3. – The referring court alleges the unconstitutionality of Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 2001, insofar as it allows the transfer of the public employee only to "a place of work located in the same province or region in which the other parent carries out their work activity" and not also to a place located in the same province or region where the family residence is located.
In the opinion of the Council of State, such a legal limitation on the concrete application of the temporary transfer would be unreasonable with respect to the constitutional purposes to which the institution itself is intended, in violation of Articles 3, 29, 30 and 31 of the Constitution.
4. – The question is well-founded with reference to Article 3 of the Constitution.
4.1. – This Court has long clarified that the choices of the legislator concerning the selective criteria for the recognition of public benefits must "always and in any case be made in accordance with the principle of reasonableness" (thus, Judgment No. 432 of 2005; among others, judgments No. 166 and No. 107 of 2018, No. 168 of 2014, No. 172 of 2013, No. 2 of 2013, No. 40 of 2011). This has also been stated in relation to provisions that unreasonably limited the subjective scope of application of leave or extraordinary leave for the care of family members (judgments No. 232 of 2018 and No. 213 of 2016).
In such cases, the constitutional review "must be carried out within the specific provision, in order to verify whether there is a reasonable correlation between the condition provided for the admissibility of the benefit and the other peculiar requirements that condition its recognition and define its ratio" (thus, Judgment No. 133 of 2013; most recently, Judgment No. 42 of 2024): this review must be carried out "according to the typical structure of the review carried out pursuant to Article 3, first paragraph, of the Constitution, which starts from the identification of the ratio of the reference rule and then proceeds to verify the coherence with this ratio of the selective filter introduced" (Judgment No. 44 of 2020).
4.2. – In the case in question, the State legislator, in allowing public employees to obtain a temporary transfer only "to a place of work located in the same province or region in which the other parent carries out their work activity", has introduced a requirement that conditions the concrete scope of application of the institution, also on a subjective level. According to this provision, in fact, the possibility of accessing the benefit of the transfer has been excluded from the outset for those public employees who have decided to establish their family residence (where the minor child lives) in a region or province different from those where both parents work.
4.3. – Now, in the light of the aforementioned constitutional jurisprudence, such a legal restriction on the scope of application of the institution does not appear to be reasonable with respect to the purpose, also of constitutional importance, that the temporary transfer aims to fulfil.
4.4. – The temporary transfer of public employees, aiming to promote the reunification of family units in the very first years of children's lives, in cases where parents find themselves living separately due to work needs, is clearly aimed at achieving the constitutional objective of supporting and promoting the family, childhood and the equality of parents in caring for their children.
As also highlighted by administrative jurisprudence, the temporary transfer has the "function of facilitating the care of minors in early childhood", thus protecting "the values of the family, and more generally of parenthood, protected by Article 30 of the Constitution [...] and by the subsequent Article 31 [...]" (Council of State, Fourth Section, judgment of 16 February 2021, No. 1418).
4.5. – In the face of such a ratio of the institution, it is not reasonable to allow the temporary transfer of the public employee parent only in the province or region where the other parent works: this limitation, in fact, is based on the assumption that the minor child to be cared for is necessarily located in the same province or region where the other parent's workplace is located.
However, such an assumption does not adequately take into account the greater complexity and heterogeneity that now characterises the organisation of family life, in the light of the transformations that have affected both the methods of carrying out work performance, thanks also to new technologies, and transport systems (see Judgment No. 209 of 2022).
4.6. – Precisely because of these transformations, the contested provision, in allowing the temporary assignment of the public employee only to a location that is in the province or region where the other parent works, does not ensure adequate protection for those family units in which both parents work in regions different from those where the family residence has been established: a situation that, in reality, has become increasingly less rare.
In relation to such cases, it appears consistent with the purpose of the institution to allow at least one of the parents to work, even in the first three years of the minor's life, in a location that is in the region or province where the family residence has been established and, therefore, where the minor is domiciled (pursuant to Article 45, second paragraph, of the Civil Code).
Such an expansion of the scope of application of the institution, in addition to being fully consistent with the purpose of protecting the family and supporting childhood, also responds to the need to preserve the broadest possible autonomy of parents with regard to choices concerning the concrete definition of the family address. This autonomy, in fact, is hardly compatible with the establishment, by the legislator, of rigid and unreasonable limitations on the obtaining of benefits that should be aimed at supporting parenthood and, therefore, at promoting the formation of new families.
4.7. – The unconstitutionality of the contested provision must therefore be declared, in conflict with Article 3 of the Constitution, insofar as it provides that the temporary transfer of a public employee with children under the age of three may be granted "to a place of work located in the same province or region in which the other parent carries out their work activity", rather than "to a place of work located in the same province or region in which the family residence is established or in which the other parent carries out their work activity".
5. – The further questions raised with reference to Articles 29, 30 and 31 of the Constitution are absorbed.
For These Reasons
THE CONSTITUTIONAL COURT
declares the unconstitutionality of Article 42-bis, paragraph 1, of Legislative Decree No. 151 of 26 March 2001 (Consolidated text of legislative provisions concerning the protection and support of maternity and paternity, pursuant to Article 15 of Law No. 53 of 8 March 2000), insofar as it provides that the temporary transfer of a public employee with children under the age of three may be granted "to a place of work located in the same province or region in which the other parent carries out their work activity", rather than "to a place of work located in the same province or region in which the family residence is established or in which the other parent carries out their work activity".
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 16 April 2024.
Signed:
Augusto Antonio BARBERA, President
Marco D'ALBERTI, Reporting Judge
Roberto MILANA, Director of the Registry
Filed with the Registry on 4 June 2024