NEWS Staff deputy public school and severance pay (TAR for Umbria Order No 265 of 25.05.2010 referral to the Constitutional Court - Lawyer Daniela Carbone LaPrevidenza.it, 10/14/2010)
"By order No. 265 of May 25, 2010, published in the OJ 39 of 29.9.2010 ssn, the TAR for Umbria has raised the issue of legititmità CONSTITUTIONAL. 2, paragraph 1, of Presidential Decree No. 1092 of 1973 in so far as it denies the right to severance payments to staff of the alternate primary schools and secondary and vocational institutions of art education, as well as art. 3, paragraph 1 of Decree 1092, 1973, to the extent that it provides for the vesting of the right to severance pay at least one year of membership of the Fund, and art. 9, paragraph 1, of Legislative Decree no. CPCN 207, 1947, in so far as it makes the entitlement to severance pay for "at least one year of continuous serviizo" for violation of Articles. 3, 36 and 38 of the Constitution
The ordinance in question is of considerable importance when one considers the large number of deputies in force in public schools and, therefore, the economic issues that could achieve the acceptance of the legitimacy issue constitutional. "
ORDER n.265 of 23/09/2010 TAR UMBRIA
Order of May 25, 2010 issued by the Regional Administrative Court on the appeal from the Umbria Renga Gabriella against INPDAP And altri.Previdenza - severance pay provided for employees civilian and military rule - not attributable to the replacement staff of primary schools and secondary vocational schools of arts education - Violation of the principle of equality in terms dell'irragionevolezza - Undermining the principle of pay (including deferred) proportionate and appropriate - Breach of warranty insurance. • Decree of the President December 29, 1973, No 1032, art. 2, first paragraph. • Constitution, Art. 3, 36 and 38.Previdenza - severance pay provided for military and civilian employees of the state - Entitlement to staff in writing at least one year to the pension fund managed by INPDAP - Subsequent to the exclusion of replacement staff of vocational education primary and secondary and vocational institutions of art education - Violation of the principle of equality in terms dell'irragionevolezza - Impairment of the principle of pay (including deferred) proportionate and appropriate - Breach of warranty insurance. • Decree of the President December 29, 1973 No 1032, art. 3, first paragraph. • Constitution, Art. 3, 36 and 38.Previdenza - severance pay provided for military and civilian employees of the state - Entitlement to staff with at least one year of continuous service - thereby excluding the charge for the replacement staff of primary schools and secondary institutions professional art education - Violation of the principle of equality in terms dell'irragionevolezza - Impairment of the principle of pay (including deferred) proportionate and appropriate - Breach of warranty insurance. • Legislative Decree of the Provisional Head of State April 4, 1947, No 207, Art. 9, first paragraph. • Constitution, Art. 3, 36 and 38.
THE ADMINISTRATIVE COURT REGIONALEHa gave this order, the use of general register number 485 of 1999, proposed by: Gabriella Renga, represented and defended by the lawyer. Centofanti Siro, with an address at the Chambers. Centofanti Siro in Perugia, via Fani, 14; Cons: INPDAP, represented and defended by the lawyer. Massimo Kingdoms, with an address at Massimo Kingdoms in Perugia, Via M. Angeloni, 43 / A; superintendency University of Perugia, Ministry of Education, represented and defended by, legally domiciled in Perugia, via the Office, 14; Istituto Magistrale Statale "Pieralli 'of Perugia, for the establishment of entitlement to payment of the severance pay (Former presidential decree No. 1032/1973) and the amount of indemnity (former Leg. Cpsn 207/1947); Given the appeal with its attachments, view of the briefs; Taking all of the acts of the case, the act Viewed of action brought by INPDAP; Since the entry of appearance in court of the superintendency Studidi Perugia and the Ministry of Education; Rapporteur during the public days of September 23, 2009 ildott. Charles Louis Cardoni and heard the parties to the defenders prof. Avv.S. Centofanti for the applicant, represented. M. And the reigning INPDAP represented. G. Polizzi for central governments intimate, felt and seen in fact and in law the following;
F attoed IGHT
1. The applicant, born in 1938, he taught music at public schools for 34 years: namely from 1 January 1960 to 30 March 1973 (after a break related to the pregnancy) from 20 September 1977 until the school year 1997/1998 . has been placed in retirement on September 1 1998.La applicant itself has never been included in the roles of government officials, but always had an ongoing series of posts.
2. Asks today: INPDAP: the severance pay for periods when the Fund has been inscribed the inherent security of the Opera (nine years, 3 months, 3 days) to the State: the indemnity pursuant to article 9, law no. April 4, 1947, No 207, for the remaining periods.
3. The facts now summarized, are not in dispute.
4. In law, the application is supported by detailed arguments with which it is claimed, in a nutshell, that: in light of evolving case law should be considered outdated, at least in their literal interpretation, the article went precepts. 3, first paragraph of presidential decree No. 1032/1973 and Art. 9, first paragraph, Leg. Cps April 4, 1947, No 207, in so far make the payment of compensation in the contest entry, respectively, the Fund said at least one year and in the service for the same period, in Alternatively, these precepts would be unconstitutional for violation of Articles 3 and 36 of the Constitution.
5. The intimate administrations have been set up by pleading: the extinction of the trial for late resumption after discontinuation (declared by Presidential Decree No 471/2006 of the Tribunal, art. 24 Law No 1034/1971), the unacceptability translation of (early) here the identical action brought by the ordinary judicial authorities after the resolution of the inherent jurisdiction of preventive regulation (Cass. Sez. A. Civ. Ord. RGN 16787/04 March 6, 2007) same as the translation would only be possible in the event of conflict competence and not of jurisdiction, the limitation of the claims, the invalidity of the same.
6. The Board, in the first place, could accept the translatio judice, by virtue 'of reinstatement (peacefully early) following the decision on the regulation of giurisdizione.Cio' according to notes on decisions of the Constitutional Court (Judgement March 12, 2007, n . 77) and the Court of Cassation (Sect. A. Civ. Sent. February 22, 2007, n. 4109).
In this sense, recall: Tar Campania Naples, sec. III 6 October 1008 13 000; id. 1 October 2008, n. 12320, July 24, 2008, No 9342, July 2, 2008, No 6782; Tar Piedmont, sec. II, December 14, 2007, No 3686.Tanto relieve the Board from addressing issues related to the lateness of the resumption of the administrative case interrotto.Per completeness it is noted as a reconciliation process under the metaphorical broken, is characterized not as a continuation of the latter, but as a mere organizational measure of economy, in accordance with the spirit inspiring the institution of additional grounds (Article 21, first paragraph, it reads n.1034/1971).
7. Second, do not agree with the exception of prescrizione.Difatti, where 'is now considered common ground that the limitation of the claims here and operated for five years and that the starting point for the computation period after the cessation of the inherent permanent employment (for the severance pay: Cons. State section. VI, December 9, 2008, No. 6099, id. October 29, 2002, No. 5908, June 26, 2002, No. 3519, June 18, 2002, No 3325, for the indemnity Cons. State, sect. V, February 6, 2008, No. 355, id. October 8, 1992, n. 972, sect. IV, 29 October 2002, No. 50908). However, the Board believes that in the particular case of the employment relationship can be considered unique, as we will see better, so there is no experience requirement because the termination occurred in 1998 and the application was submitted in 1999.
8. The uniqueness detected, for the purposes of interest here, follows by the special structure of the employment relationship between teachers 'precarious' and the State . In fact, the link between a forward contract and the next is not just accidental, but istituzionale.Questo because, as is well known, the score acquired in the previous year is a prerequisite for the establishment and the connotation of employment the following year and so 'via.Dal score depends, indeed, the position in the ranking and this in turn follows the signing of new contract the allocation of employment and any other characteristic profile of the relationship stesso.Ne follows that the link of continuity between the individual contracts, formally term, which is provided institutionally, in fact, lead to the conclusion, at least for the purposes of limitation, the uniqueness of the employment relationship.
9. However, if that 'it is possible to outline the purpose, in view of the penetrating powers of investigation due to the judge to specifically identify the point at which the law can' be relied upon (art. 2935 cod. Civ.), Just can not ' true as regards the interpretation of provisions making compensation claims attributable to the provision of at least one year of continuous service (Article 3, first paragraph dPRn1032/1973 for severance pay and art. 9, first paragraph, Leg. cpsn207/1947 for compensation severance pay). In fact, it is of the opinion that the mentioned provisions, unlike those on the calculation of the limitation period, to be strictly interpreted as burdensome for the public finances. However, their wording, so far as relevant, this is absolutely clear: the art. 3, first paragraph, presidential decree No. 1032/1973 provides that follows "... the right to severance benefits after one year of membership of the 'art. 9, first paragraph, Leg. Cpsn 207/1947 provides that the severance pay rests with the staff "... with at least one year of continuous service. "The Board is therefore of the opinion that it was quite evident the lack any room for interpretation of these rules other than the literal sense-and, consequently, that there is no way to abandon the impediments to acceptance of the claims at issue.
10. In addition, for this' particular concerns that the buyout, it is also alleged impediment to acceptance of the art. 2, first paragraph of presidential decree No. 1032/1973 (also interpreted strictly for display reasons) because the law expressly excludes the "replacement staff of primary schools and secondary vocational schools of arts education." For sure, the service carried out by applicant is due to a "replacement", as which, of course, was made on places not covered by permanent staff, either to temporary impediments, either by failure to award.
11. So, it is considered however that the provisions in conflict with Articles evidence. 3, 36 and 38 of the Constitution, respectively, for violation of the principles of reasonableness, proportionality of wages and the availability of adequate resources to the needs of vecchiaia.Pertanto are judged not manifestly unfounded doubts of constitutionality of Articles. 3, first paragraph of presidential decree No. 1032/1973 and 9, first paragraph, Leg. Cps April 4, 1947, No 207, raised from the careful defense of the applicant with reference to Arts. 3:36 Cost.Si office also raises the question of constitutionality of Article. 2, first paragraph, presidential decree No. 1032/1973, as opposed to the Articles. 3, 36 and 38 of the Constitution, pointing out that it is already established was considered the similar question concerning art. 18th Leg. Cpsn207/1947 (Corte cost. Sent. December 17, 1987, n. 518) .12. These issues are considered relevant because, as explained above, the provisions in question appear to be impediments to acceptance of claims in esame.Infine, it is worthwhile to note that, whether or not you share it the idea of \u200b\u200bthe College on the uniqueness of the relationship of work for of calculating the limitation period (above sub 6), residues, however, the importance of question on the art. 9, first paragraph, Leg. Cps April 4, 1947, No 207.Difatti, is certainly not required to demand payment of severance pay, (to be calculated in proportion to the duration of individual employment relationships interim) for the service in each of school years completed in the five years prior to the inherent request received by the Perugia of the Department of Education August 4 1999.PQMIl Court:
a) raises the question of constitutionality: art. 2, first paragraph, presidential decree No. 1032/1973, in so far as to deny the right to severance pay "replacement staff of primary schools and secondary and professional colleges of applied arts' art. 3, first paragraph, presidential decree No. 1032/1973, in so far as required for the maturation of severance pay "at least one year of membership of the 'art. 9, first paragraph, Leg. Cps April 4, 1947, No 207, in so far as it makes the entitlement to severance pay for "at least one year of continuous service." This for the reasons set out in motivation:
b) suspend the proceedings in progress;
c) provides for the notification of this order aiprocuratori of the parties and the President of the Council of Ministers and the communication thereof to the Presidents of the Chamber of Deputies and the Senate;
d) order the transfer order to Cortecostituzionale together with any legal proceedings and proof of notifications and communications prescritte.Cosi 'decided in Perugia in chambers on September 23 2009.Il President: LignaniL'estensore: Cardoni
