1. Abstract.
Article. 52 of Legislative Decree 27 October 2009, No 150,
amended Article. 53 of Legislative Decree 30 March 2001
No 165, by entering text in paragraph 1-bis. This
provides that "They can not be awarded assignments di
direzione di strutture deputate alla gestione del personale
a soggetti che rivestano o abbiano rivestito negli ultimi
due anni cariche in partiti politici o in organizzazioni sindacali
o che abbiano avuto negli ultimi due anni rapporti
continuativi di collaborazione o di consulenza con le
predette organizzazioni». La disposizione è stata approvata
ai sensi dell’art. 6, comma 2, lettera m) , della legge
4 marzo 2009, n. 15, nell’esercizio della delega al Governo
a «rivedere la disciplina delle incompatibilità per i
dirigenti pubblici e rafforzarne l’autonomia rispetto
the representative organizations of workers and authority
politics. "
Given the numerous questions received on the scope of the standard
, it is considered appropriate to provide some guidance
general purpose of a homogeneous application of
available.
2. Purpose of the rule.
The standard introduces an impediment or a condition
impediment on the transfer of positions in government
direction with respect to the preposition
to structures that manage the staff.
The purpose of the provision is to pursue
impartial administrative action and conduct of the management function
free from possible constraints
through the use of formal organizational tools
. The rule therefore comes down to
principles of impartiality and good performance in art.
97 of the Constitution which, regardless of the nature of
and even with a ratio of contracted work,
must be observed by government
which is required "to respect the constitutional principles
of legality, impartiality and efficiency which is
any foreign speculative logic "(Constitutional Court,
judgments No. 146 of 2008 and 82 in 2003).
What we want to avoid is any influence on
management that may result from past or current involvement
of the manager in particular
and significant political or union activities or having
had with these organizations special reports.
In this context, the provision sets a standard that does not include preceptive
alternative is to avoid a potential conflict of interest
between two offices or between the personal interest
and the public interest. The situation of 'incompatibility
' due to the fact of a cover charge
in trade unions or political parties or have
continued collaboration with these organizations is not
removable, being worth nothing in the fact that the nominee may
eventually resign. Only the passage of time provided
can make possible the appointment of
administration.
The provision is part of the wider
with the reform measures introduced to strengthen the role of the manager
and above the autonomy of its
management with respect to possible interference of politics and
union. Just think of the new wording of Article. 5 of Legislative Decree No
165, 2001 (news article.
34 of Legislative Decree No 150 of 2009), which clearly
reaffirming that "... the determination of the organization
offi ces and measures related to the management
of labor relations are taken exclusively by
management bodies with the capacity and powers of
private employer, subject only information
unions, where provided in the contracts in art. 9. Fall
in particular, in the exercise of executive powers
measures regarding the management of human resources
the principle of equal opportunity and the
direction, the organization of work within the
offices. " In this context also includes the review of
discipline of the transfer and revocation of appointments made by the executive
news article. 19 of Legislative Decree No
165 of 2001 by the artist. 40 of Legislative Decree No
150 of 2009, there where, in compliance
all’orientamento della Corte costituzionale (Corte costituzionale,
sentenze n. 161 del 2008, numeri 103 e 104
del 2007), è stata eliminata la previsione della cessazione
automatica dell’incarico, decorsi 90 giorni dal voto sulla
fiducia al Governo, in precedenza prevista per gli incarichi
conferiti ai sensi dei commi 5 -bis e 6 del medesimo
articolo, con conseguente limitazione della caducazione
automatica agli incarichi di vertice.
3. Ambito soggettivo .
3.1. Le amministrazioni interessate.
Come detto, la norma concerne le modalità di conferimento
of positions of responsibility on structures;
it therefore directly affects the government
state. Given the fact that the rule seeks
constitutional values \u200b\u200bof impartiality and good
trend for the other contracting rule still applies
as a principle. The non-state authorities,
therefore, must adjust to their own
the principle set out in the arrangement operating in accordance with article
. 27 of Legislative Decree No 165
of 2001 and, for local, art. 111 of Legislative Decree No
267, 2000.
3.2. Stakeholders. With regard to government departments, the impediment
concerns primarily the management positions
conferred under Article. 19 of Legislative Decree No
165, 2001. The constraint of incompatibility exists
also against all officers who are responsible
under subsection 5-bis and the persons appointed pursuant
paragraph 6 of that article. Because of the wide
diction used in the provision and the intended purpose, the
rule also applies to all cases in which
is given an assignment by formal structures deputate
alla gestione del personale. Sono comprese nel campo di
applicazione anche le strutture prive di rilevanza esterna
e, quindi, la disposizione riguarda pure l’attribuzione di
posizioni organizzative e di competenza mediante delega.
4. Ambito oggettivo .
4.1. Individuazione delle «strutture deputate alla gestione
del personale».
La norma in esame pone il regime di vincolo in riferimento
agli incarichi di direzione di «strutture deputate
alla gestione del personale». Il termine «deputate» individua
in modo chiaro la «missione», ossia la competenza
specific responsibility for managing "the" personal. Therefore,
the phrase is properly refers only to offices
which institutionally, on the basis of acts of organization,
is assigned the responsibility of staff management
in each administration. So, is not included in the prediction
the preposition to offices that, among other
skills, they also have the task of managing the
staff (eg, department heads and secretaries-general in charge
a complex organizational structures
in which the offices are located within general management
responsible for general affairs and personnel, while falling within the restrictive regime
Heads
Department of general affairs and personnel) and, in general, the preposition
structures which, especially in small government
, includes all of the skills
general management, including that relating to staff
internal (eg, school administrators and, anyway,
all managers and is given a task of function
up an office, which, as noted, have jurisdiction over
management personnel assigned to its structure). In these
ipotesi, sarà cura di ciascun responsabile evitare la ricorrenza
di situazioni di conflitto di interesse, soprattutto
in occasione di trattative negoziali, adottando, se del caso,
le iniziative e gli atti organizzativi necessari. Si richiama
in proposito l’osservanza del codice di comportamento
dei dipendenti delle pubbliche amministrazioni approvato
con decreto ministeriale 28 novembre 2000.
In sostanza, la prescrizione riguarda la preposizione
alle strutture del personale, siano esse di livello generale
o non generale, competenti in materia di reclutamento,
trattamento, gestione e sviluppo staff reports
union, according to the choices that each identification
administration carried under its jurisdiction
the specific order of each structure.
In the evaluation, among other things, will be considered
also the power of representation as delegation
treating attributed to the administration office and
degree of discretion inherent in the performance of each
competence.
in order to implement the more objective of
rule should be that each contracting
individuasse, per mezzo del regolamento di organizzazione
o mediante altro atto ministeriale generale, le strutture
per le quali sussiste il regime di limitazione in base alla
norma. Ciò si rivela tanto più utile in quanto le nuove
norme sul conferimento degli incarichi ai dirigenti, in osservanza
ad un principio di trasparenza, prevedono che il
conferimento dell’incarico sia preceduto dalla pubblicizzazione
dei posti vacanti e dalla valutazione delle disponibilità
dei candidati (art. 19, comma 1 -bis , del decreto
legislativo n. 165 del 2001, introdotto dal decreto legislativo
n. 150 2009). Finding a priori and in general
positions whose coverage requires the existence of particular requirements
helps prevent
subjects that do not meet the legal conditions may
express the administration's willingness to
places for which there is foreclosure.
4.2. Concept of trade union organization in charge and
political parties for the purposes of the rule.
The rule, as mentioned, introduces a condition
impediment to the transfer of positions from the development
current or past certain activities. Since arrangement that interferes with freedom
constitutionally protected (Articles 18, 39 and 49 of the Constitution), its scope must be interpreted
so closely related to the objective pursued
.
4.2.1. The concept of office in trade unions.
Given that the mere inclusion as
associated with a union or a political party is not relevant to
purposes of the provision, the concept
charging union is considered consistent with the above purposes
give important aspect of the role that the subject
takes place within and of the union.
This role can not be that simple participation
no executive function. Are required instead
participation in the decisions of the organization and
the performance, as by statute or charter,
tasks of real impulse to action through the decision
the adoption of acts and the outside management as provided for in the second
constituent acts and statutes of
organizations or as resulting from any communications
unions. In view of the introduction by law in
precautions aimed at ensuring
formal exercise of the function
free from possible constraints, the fact that the employee covers
or has served in the two years prior to this type of
charge is a factor of interference to inhibit
in advance, since the subject, as a body that has been recently equipped with
mandate to carry out the purposes of
union, may also be involved in carrying
of office management within the administration.
Consistent with the intent stated above
to interpret the rule in the strict sense and in line with the
purposes, it is not considered within the concept of trade union office
the fact to carry out activities in partnership
in the absence of ownership of the functions above,
since in that case is absent the power to take decisions independently
organization and relevant to the organization. In essence, the purpose of the provision in question is relevant
fact of being or having been union leader,
and to act - by virtue of a formal act - in the name and on behalf of
as an official delegate.
comfort legal use of these criteria can be traced
art. 3, paragraph 2, of Legislative Decree No
564 of 1996, as part of a discipline
on the notional contribution to the positions of
expectation union and political union calls charges
"those required by the bylaws and formally
assigned to carry out functions
representative and executive at national, regional and provincial or
of the area, even as members of collegiate bodies
organization union. "
The relevance of the charge as described above is
occurs in any type of organization whether it be a
confederation, a federation or organization
category.
addition, the relevance of the charge is made to any
level of the organization, whether national, local or
company. Therefore, falls within the concept of charging too
a managerial trade union within the RSA,
working for managers of the areas, which, in the field of public
work, are made by the unions representing
and appear as
peripheral joints of the union (Article 42, paragraph 2, of Legislative Decree No. 165 of
2001).
the purposes of the rule must be considered included in the scheme
also be prevented
component of MSW. In fact, the RSU is formed as a result of
election of candidates lists submitted by the trade unions
(Article 42, paragraph 4, of Legislative Decree No. 165 of
2001), its components are treated as heads of
RSA (Article 42, paragraph 6, of Legislative Decree No. 165 of
2001) and the body takes over "to the RSA or similar
existing union structures, however denominated
and their leaders in the ownership of trade union rights and powers
concerning the exercise of contractual
due to them '(Article 5 CCNQ August 7th, 1998).
It should be noted that a register of trade unions in the various sectors
bargaining is developed and published periodically by ARAN
(www.
aranagenzia.it), who looks after the establishment of trade union representation under
art. 43 of Legislative Decree No
165, 2001. This document is non-
exhaustive, but it can be a useful point of reference for
know the unions operating in different sectors and areas
.
4.2.2. The concept of political parties in charge.
also for the identification of the concept of charging
political party must use criteria
respectful and not excessive for the purpose of the law. The reference to
guiding principle, used for the detection of an office
relevant trade union, is also useful to define the
positions in political parties. In fact, across the state
impediment posed by the rule eliminates a priori risk
conflict of interest that can be created between the person who works in administration as
manager responsible for personnel management and the person who operates or has operated
political organization with executive powers .
Therefore, the refusal to award the
structures whenever there is staff in respect of the individual
the conditions the award of a formal job positions on the party organization
In its various forms, which involve tasks
real impulse to action through
decision-making, even with their external
outside the organization, of management measures, as
by statute, by charter, resolution of
or other organ of the party.
The consideration of the power steering as part
necessary for the configuration of political office is the comfort
formed under the guidance
administrative case law regarding fees
competition, governed by. 35, paragraph 3, of Legislative Decree No
165, 2001, che, al pari della disposizione
in esame, prevede quale causa ostativa alla nomina nelle
commissioni l’essere titolare di «carica politica» (Cons.
Stato, Sez. V, 27 luglio 2002, n. 4056; Tar Lazio, Roma,
Sez. II -quater , 22 aprile 2008, n. 3367). In particolare, il
Consiglio di Stato ha avuto modo di precisare che «per
carica politica deve intendersi solo l’ufficio che postula
la rappresentanza, in via organica e professionale, di interessi
e valori direttamente riferibili ad una parte politica,
e cioè, ad un partito, con la conseguenza che il divieto
in esame va circoscritto ai soli titolari di cariche direttive
all’interno dei partiti» (Cons. Stato, Sez. V, 27 luglio
2002, n. 4056).
Occorre precisare che la circostanza che l’interessato
sia risultato vincitore in competizioni elettorali non è di
per sé significativa della ricorrenza del presupposto richiesto
dalla norma. Infatti, da un lato le cariche in partiti
politici possono essere attribuite anche a soggetti che non
sono risultati eletti, dall’altro, dal fatto di essere risultato
eletto non consegue automaticamente l’attribuzione di
una carica nel senso indicated. Clear, therefore, the difference between the concept of
office into a political party, which involves formal investiture
organization of the association,
and public office, which is to transfer
a public office staff in the organization. You
clear that, regardless of the provision in question remains
in any case unless the general principle of distinction between activities
direction and control and administrative management activities
, thereby foreclosing the possibility of
given the responsibility of administrative structures
management bodies to form part of the
policy (unless specific exceptions, such as for local
provisions of art. 53, paragraph 23 of Law No. 388 of
2000). Even here, the reference to the observance of
code of conduct of employees of
government.
As regards the identification of political parties,
does not exist in our system
an official list of political parties, which, as mentioned, are considered
associations not recognized by the more varied articulation.
here is not intended to provide
specific criteria for identification, but only recalled processing
already been completed. Referring to the orientation of
prevailing doctrine, the political party is defined as being "full part"
own a social formation which, while adopting a vision of the world
necessarily characterized by a specific address political ideology, can
policy of offering a synthesis of special interests
expressed by society "(G. Rizzoni, in commentary on the Constitution
edited by R. Bifulco, A. Celotto, M. Olivetti,
sub art. 49, UTET, 2006, 985 ff. With quote Mortati
and Crisafulli).
This doctrine has also revealed the typical features of
political party in the light of constitutional provisions, which are identified in
participation in competitive elections and being provided with a stable set
and structured organizational learning, with the
that also identifies the
distinguishable from other formations, such as pressure groups and organized political groups
(ditto).
4.2.3. The cooperation and advice relevant to the application
the provision.
similar cause was established by
also against anyone who has or had in the previous two years
'ongoing relations of collaboration or
consulting "with political organizations or unions.
In order to indicate the limits of operation of standard and application
avoid smoky
ambiguous provisions in a context which, as we have seen, is characterized by
importance of constitutional values, it is considered that the
its scope may be limited to collaborations
subject of an employment relationship and qualified professional by
agreed a fee. The existence of the relationship
working and professional, makes it possible to anchor in
ascertainable objective data to verify the existence of
bond with the association, avoiding the facts that
a ratio of courtesy or "friendly 'of interest
could trigger the incompatibility. On the other hand, is the
agreed and the payment of compensation
that reinforce the bond and interest of the subject towards
organization. Therefore, it is not considered relevant to the configuration of
impediment because possible collaborations
free of charge, which, on the other hand, represent an exception to the rule
dell'onerosità
of work and professional performance.
The law mentions relations of cooperation and
advice. The latter is configured as a collaboration
with a particular object, with the assistance
the board, realizing the situation of
performance of intellectual work.
Under the rule, such reports do not reveal
occasional or intermittent, and there is the incompatibility
in case of repeated reports that having an occasional
matter in the ongoing activity.
The terminology used in the text,
view of the need to interpret the provision in the sense
consistent with the aims pursued, suggests that the concept of collaboration
significant falls also the case
relationship employment, which certainly implies
a continuing collaboration with the employer
characterized by the special bond of subordination.
Therefore, partnerships are important
those being self-employed, that translate into ongoing relationships
or project work, and being employed,
for the execution of which is a fixed fee. It
also states that the rule does not require the cooperation
be coordinated as well as ongoing, in essence,
the provision ignores the actual configuration of the report which
project collaboration.
5. Setting time of application.
Under the rule, the obstruction occurs in
if the assignment or collaboration is in progress at the time of the preposition
the structure or have occurred
in the last two years. The extremes of the period of incompatibility
consist of one side of the expiry of the mandate or
the end of the relationship
or employment and, second, the initial term
effectiveness of the measure of managerial position .
In the absence of a more specific indication of the standard,
to locate the starting point of disposal operations
you should refer to the general principle
that the statute provides that for the future.
Consequently, the provision in question relates only to the positions
Board conferred upon the entry into force of
Legislative Decree 150, 2009 (November 15
2009). Unless otherwise provided, for such
assignments must be verified due to the lack of
impediment with regard to the time of placing
and with reference to the previous biennium.
6. Declaration of recognition of the person concerned.
the fi ne of compliance, the contracting
which aim to give an assignment on
agencies with responsibility for personnel management must acquire a special
statement in lieu of affidavit da parte
dell’interessato resa ai sensi dell’art. 47 del D.P.R. n. 445
del 2000.
7. Inosservanza della norma .
Nel caso in cui dovesse emergere la situazione di incompatibilità,
a parte l’applicazione delle sanzioni collegate
alla falsa dichiarazione resa (art. 76 del D.P.R. n. 445
del 2000), l’amministrazione avvierà il procedimento disciplinare
per l’accertamento della relativa responsabilità
e l’applicazione delle connesse sanzioni. In proposito, si
segnala che l’art. 55 -quater del decreto legislativo n. 165
del 2001, introdotto art. 69 of Legislative Decree No
150 of 2001 provides the penalty of dismissal
without notice in cases of "false documents or declarative
committed for or in connection with the establishment
of employment or career advancement of
. The disciplinary case was taken up by art. 9
CCNL area of \u200b\u200bleadership I concluded
12 February 2010, the contract which, as noted, has for the first time
regulated the disciplinary code for management personnel. Despite the infringement
do specifically reference
introduction of employment and career advancement
, it is clear that similar conduct
required to achieve the appointment of,
to merit just as severe and may be such as to justify
termination for cause, can always
in mind as provided for in that clause.
For non-managerial staff to similar conclusions may
received pursuant to art. 13, paragraph 6 of the Negotiable
June 12, 2003. Given that the rule contains an impediment
compared with the power to give the assignment,
in the circumstances, liability may extend
also subject to the transferor, who could possibly
be aware of the impediments
or failing the assessment of the condition.
Given the existence of one of the reasons for refusal
introduced by art. 53, paragraph 1-bis
present administration, as mentioned, can not assign duties
personnel management. In the event that the assignment was given
in the presence of any obstacles,
this would result in the nullity of the acts with which the task
has been awarded for breach of mandatory rules.
The administration should therefore work for the removal
illegality and restore law
through the adoption of an act in recognition of nullity and
the grant of a new post to other duly
of the requirements by law. Whatever the nature
legal acts in question, it seems respectful of
proper shaping relations between the administration and executive
that the removal of measures tainted
be preceded by a communication addressed the opening
the person with whom it should occur
a contradictory on factual grounds.
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