Interpretation And Application Of Article 5, Paragraph 9, Of The Ordinance-Law No. 95 Of 2012, As Amended By Article 6 Of The Ordinance-Law June 24, 2014, # 90.

Original Language Title: Interpretazione e applicazione dell'articolo 5, comma 9, deldecreto-legge n. 95 del 2012, come modificato dall'articolo 6 deldecreto-legge 24 giugno 2014, n. 90.

Read the untranslated law here:

Public authorities under art. 1, paragraph 2, of Legislative Decree No. 165 of 2001 Governments referred to independent authorities Istat list Locations 1. Purposes of the discipline. The art. 6 of Decree-Law June 24, 2014, # 90, converted, with amendments, by law no August 11, 2014. 114, introduced new arrangements for retired persons ' positions ' (that the article address book diction), modifying the discipline already mail art. 5, paragraph 9, of Decree-Law No July 6, 2012. 95, and expecting some new bans. In agreement with the Minister of economy and finance, this circular provides guidance on interpretation and application of the new rules. The changes are intended to prevent the transfer of certain types of assignment is used by Government to continue to employ employees placed in retirement or to attribute to individuals in relevant responsibilities in the administrations themselves, bypassing quiescence of done the same Institute of quiescence and preventing the vertex positions are filled by younger employees. The new provisions are expressive of a legislative policy intended to facilitate the replacement and the rejuvenation of the staff in public administrations. Like other provisions in force, which already limited the possibility of giving assignments to the subjects because of retirement, they are not intended to introduce discrimination against pensioners, but to ensure the physiological turnover of staff in the administrations, to balance the need to transfer knowledge and skills acquired throughout working life. 2. Effectiveness of the discipline in time and relationships with previous standards. In view of the objectives pursued by the legislature, it must be held that the new discipline prevail over previous ones, also special, allowing the engagement or charges which are among those now banned, retired individuals. Its forecast, insofar as it relates to the designation of these entities shall be construed by implication repealed. The new rules, in accordance with art. 6, paragraph 2, of Decree-Law No 90 of 2014, apply to the tasks conferred upon the date of entry into force of the same Decree. The latter came into force on June 25, 2014, having been published in the official journal of the previous day: the new rules applies, therefore, from that date, with the result that they are not subject to new bans the tasks conferred until June 24, 2014 inclusive. The date on which it is necessary to refer, for the purposes of application of the ban, the appointment or the appointment, then the Act whereby the authority holder of its power has proceeded, regardless of subsequent fulfilment, as acts of control. Do not have the ban and remain subject to previous assignments in people retired before the same date, although vested at the same date the salary or compensation had not yet been defined. The new rules apply, however, to the tasks not yet delivered for that date, even though he's already stepped in the designation by a person other than the authority that has the power to appoint or confer the assignment, unless the particular articulation of the relevant proceedings-include, for example, the designation as a result of electoral proceedings or selective procedure-do not induce tempus regit actum to otherwise enforce the principle taking into account the stage of proceedings had arrived at the time of entry into force of the provision. Where, however, the task has actually been awarded before the entry into force of the ban and what can be documented with certainty, its formalization can also intervene at a later date. It must also be remembered that the conversion law-law August 11, 2014, # 114, which came into force on August 19, 2014, having been published in the official journal of the previous day-has partially changed the original predictions of the decree-law, with particular reference to the descriptions in corporations or companies controlled by public authorities. The changes have therefore produced effects since August 19, 2014. Finally, it should be noted that the new rule is added, without modifying them, to other disciplines in force laying similar bans (see, in particular, article 25 of law No 724 December 23, 1994) and governing the engagement, such as those relating to incompatibilities and inconferibilita ', by limits on expenses for advice, salary limits in public administrations, compensation and reimbursement of expenses for the collective bodies , free of specific tasks, accumulation of between emoluments and pension. 3. Stakeholders. The scope of the prohibitions, as for the administrations concerned, remains the one already defined by the previous version of the discipline concerned: it includes all the administrations that fall within the definition of art. 1, paragraph 2, of legislative decree March 30, 2001, n. 165 or the list annually drawn up by the National Institute of statistics (Istat), under art. 1, paragraph 2, of the law December 31, 2009, n. 196, as well as the independent authorities, including the SEC. Are subject to the prohibition orders conferred by any body or Office of the administrations concerned, including those conferred by Ministers, as organs of Summit ministries, as well as by the governing bodies of regional and local authorities and bodies of Summit of public bodies and other bodies within the scope indicated. There are, of course, the assignments provided by organizations other than the Italian public administrations. The ban extends to any employee placed in retirement, regardless of the nature of the previous employer and the subject that matches the pensions, including, therefore, the retired constitutional organs. In fact, the latter subjects, not prediction of the last period of the said subparagraph 9 of article. 5, which provides that these bodies comply with the provisions of the same paragraph as part of its autonomy. This forecast covers the tasks conferred by the same constitutional bodies, to whom the prohibition in question cannot be imposed, and not the tasks conferred by public administrations to retired workers, employees of constitutional bodies, with regard to which there is a problem of protection of the autonomy of these organs. The condition of the placement because of retirement, this objection with respect to engagement and fillers, notes in the time of the transfer. Avoid elusive behaviour, however authorities consisting in giving to people nearing retirement assignments and positions whose mandate is carried out basically in a later stage to the placement because of retirement. For these individuals, administrations will assess the possibility of giving a free assignment (see paragraph 6). 4. Assignments prohibited. The discipline concerned prohibition regulations which puts timely applies the policy of strict interpretation and the broad interpretation is excluded or analog (as clarified by the Court of Auditors, the middle section of the control of legitimacy of acts of Government and administrations of the State, resolution 23/2014/prev of September 30, 2014). Prohibited duties, therefore, are only those expressly provided: study and advisory assignments, positions or management, government positions in the administrations and authorities and controlled society. The legislator wanted to pursue the goals mentioned above, by prohibiting the provision to individuals because of retirement of assignments and positions, regardless of their formal nature, perform relevant roles at the top of Government. A broad interpretation of the prohibitions in question is inconsistent with the order to prevent subjects relevant administrations take responsibility because of retirement, could lead to an unreasonable compression of retired persons ' rights, in violation of the principles laid down in the constitutional jurisprudence, which admits limitations at the expense of the subject in question as long as taxes in connection with an appreciable public interest (see, in particular # 566 judgments of 1989, # 406 of 1995 and # 33 of 2013 of the Constitutional Court). For the purposes of the application of the prohibitions, it should be regardless of the legal nature of the relationship, having instead consider the object of the mandate. The discipline concerned, therefore, does not exclude any of the forms of contract provided for in art. 7 of Legislative Decree No. 165 of 2001, but prevents you from using those types of contract to give assignments with own assignments prohibited content. Between assignments prohibited are all positions, including those referred to in art. 19, paragraph 6, of Legislative Decree No. 165 of 2001 and similar provisions. Among the management positions, all those involving the management of offices and human resources management. These include, so even in technical facilities, such as medical or scientific director, involving the aforementioned tasks. Study and consulting assignments are those which require specialized skills and fall into the hypothesis of intellectual labor contract, articles 2229 and following of the civil code. Study assignments are those consisting in the performance of an activity which can be identified with reference to the parameters specified by the Decree of the President of the Republic April 18, 1994, n. 338. Constitute advice request for opinions to experts (so the Court of Auditors, sections combined in the control seat, Act by February 15, 2005, # 6/CONTR/05). In the absence of exclusions in this respect are covered by the ban also the positions, management, consultancy or study of the direct collaboration of political bodies. Among the positions in governing bodies of administrations and institutions and subsidiaries, apart from exclusions expressly provided for by law (relating to local authorities ' councils and elected bodies of public associations), are those involving actually Government powers, such as Chairman, Director or member of the Board of Directors. The position on the Board of Directors, in particular, the scope of the ban regardless of qualification by virtue of which the subject in quiescence has been nominated (for example, as an expert or representative of a particular category), given that the Board of Directors, however, government functions of the institution. Of course, the ban also operates in case the nomination should be preceded by the designation by a person other than the directors appointing. As for the managerial and executive positions or offices, it must also be noted that the scope of the prohibition is more than the number of administrations nominanti, since the provision refers also to institutions and subsidiaries: the duties and charges, which fall between the types prohibited are therefore prohibited even if they are conferred at institutions and companies controlled directly or indirectly, by the contracting authorities referred to in paragraph 3. Finally, the prohibitions described operate regardless of the funding source with which the persons concerned are remunerated: it is irrelevant, for example, whether it's funding from the European Union or even transferred to the transferring administration by private entities. 5. permitted Assignments. All cases of appointment or collaboration not falling within the categories listed so far are believed to be stolen from the prohibitions referred to the discipline concerned. Remain of course without prejudice to the provisions relating to the requirements and modalities for the selection of persons to whom give assignments and charges and the procedures for provision (such as those contained in article 7 of Legislative Decree No 165 of. 2001). Among the hypotheses that do not fall within the prohibitions, we highlight the following. VA first recalled that the purpose of the provisions under consideration is not to exclude the possibility that the subjects because of retirement but administrations operate to prevent the engagement in these subjects is used to circumvent the same Institute placement because of retirement. They do not prevent the exercise of working activities in public administration to subjects that they can aspire to it, in relation to their age limits. As a result, it's possible that a subject, placed in quiescence for reaching its requirements in their careers, be eligible to win a job with a public administration, related to a career in which he can still serve. This can depend on peculiarities of career (public or private), which enables the placement because of retirement at a relatively low age, or of the destination, which provides for a higher age of retirement (such as legal or University). In such cases, we will apply obviously the current regulations regarding the requirements for access to employment in public administration and the relationship between salaries and pensions. Secondly, the ban covers certain contracts of intellectual work, but not the other types of contract. It's not excluded, therefore, the use of retired personnel for assignments that do not entail managerial functions or instructions and they object other than study or advice (in this sense that the Court of Auditors ' deliberation, middle section of control of legitimacy of acts of Government and administrations of the State). It's not even excluded the provision to individuals because of retirement of professional duties, such as those pertaining to legal business or health, not having the character of a studio or consultancy. Again, this of course remains firm discipline in force, with particular reference to the method of selection of the contractor. Being distinct from those of studies and advice, must be acceptable to subjects in quiescence search assignments, including the responsibilities of a research project. From this point of view, the provision in question differs from previous laws, which distinguish between study assignments, consulting or research (including art. 19, paragraph 10, of Legislative Decree No. 165 of 2001) and restrict the possibility to provide. Moreover, why do not fall under the prohibition of giving positions, assignments in question does not have to involve the direction of stable structures of the Administration, they can instead include the leadership of units formed temporarily to complete its research project. And, why do not fall under the prohibition of giving study assignments, it's going to be real research: the task will then be awarded only to individuals who, being in possession of adequate scientific curriculum, are capable of performing effective research activities. It's good to remember that the research contracts require the prior definition of the programme by the Government (so the cited decision of the Court of Auditors, sections meeting at Headquarters). They then allowed the teaching assignments. However, to prevent a similar assignment allows you to circumvent the bans examined, it is necessary that it be real teaching assignments, in which the teaching is precisely defined and the compensation is commensurate with the teaching activity effectively carried out individual recipient of the assignment. Are excluded from the ban, then, the positions in boards of contest or competition, as well as participation in advisory bodies, such as the collective bodies of educational institutions. He also ruled out participation in advisory committees and scientific or technical committees, if it does not give rise to positions of study or advice or comparable to management positions or positions. For their exceptional nature, not related to any of the assumptions of prohibition provided for in the discipline concerned, must be regarded as also excluding assignments of extraordinary Commissioners, appointed by the Government or interim administration to carry out specific tasks. Similarly it can be said, of course, for divers-Commissioners appointed if necessary. Finally, being specifically prohibited to persons retired the Government positions in local authorities, are allowed-in these institutions as in other administrations-assignments in supervisory bodies, such as boards of Auditors and Auditors ' committees, as long as you have not, in accordance with executive management, organizational nature. 6. free Assignments. Defined the scope of objective of the new discipline, it should be remembered that it provides an exception to the prohibition it imposes, by providing that responsibilities and collaborations are allowed free of charge, with documented expenses, for a period not exceeding one year, non-extendable or renewable. It is evident-based on the ratio of the standard under the heading of the article, to parliamentary business and the different wording of the period considered, that does not define its scope-that its prediction should be read in conjunction with the first two periods, against which it introduces an exception: the expression "responsibilities and collaborations», then, corresponds to the various cases referred to earlier periods. Therefore, regardless of how the position is formally qualified, where-according to its content-it falls between the hypotheses referred to bans under consideration, it could be awarded, but only under the conditions laid down by that prediction. The arrangement serves to allow Governments to use temporarily, without sacrificing the goals of spare and rejuvenation at the top, retired staff--and, in particular, of its employees that there were just placed-to ensure the transfer of skills and experience and continuity in the direction of the offices. Consistent with this ratio, Governments can, for example, give a free assignment to an Executive placed in retirement, to enable him to assist the new holder of the Office leadership for a period not exceeding one year. In attributing similar positions or offices, administrations will devote particular attention to the need to avoid conflicts of interest, in view of the risk that the person concerned being pushed to accept the free assignment from the perspective of economic benefits. In view of the end of the layout, dictated in the interest of the administration rather than of the subject because of retirement, will confer the duties in question on its own initiative, having verified the availability of the parties concerned, and not at the request of the interested parties themselves. The scope of the exception from the objective point of view, coincides with that of the prohibitions: as a result, may be allocated, within the limits indicated, free of charge and each of the types prohibited, as identified in section 4. Contracting authorities must, however, assess the compatibility of the assignment or charge with the free and limited duration. For some types of appointment, in fact, these latest features prevent the use of the provision in question, for example why regulations stipulate a minimum term greater than a year. In General, Governments must assess the compatibility of the performance required and any responsibility with free of charge. For management positions, in particular, it should be noted that the possibility to assign them to individuals who have reached the limits of age for retirement of civil servants was already ruled out by the rules in force (see, in particular, article 33, paragraph 3, of Decree-Law July 4, 2006, n. 223 on assignments to external subjects to the Administration, such as retirees). There remains the possibility of conferring management positions, based on art. 19, paragraph 6, of Legislative Decree No. 165 of 2001, a subject which, although located in quiescence, have not reached these limits of age: in this case, the Administration will prudently the compatibility of Office with the maximum annual and lifetime free ' with responsibility and evaluation mechanisms associated with the assignment. Remain, under these assumptions, the rules concerning the procedures of selective assignments. The discipline is also applicable to the tasks to retired persons who were previously provided free of charge: apply to them, as a result, the new provisions concerning the maximum duration and to reimbursement of expenses. The provision allows the engagement and partnerships for a period not exceeding one year "at each administration." As a result, the subject placed in different positions, also will receive pensions at the same time, by different administrations, where mutually compatible, as long as each of them meets the above limit of duration.
Rome, December 4, 2014 the Minister for simplification and administration Registered Sideboard to the Court of Auditors on January 20, 2015 Office Foreign Affairs and Justice Ministries, P.C.M. acts control # 152