staff in Sardinia-constitutional court ruling go to: Done Right Device
Judgement 235/2010
Findings
President AMIRANTE - Editor MAZZELLA
Public Hearing Decision of 25/05/2010 05/07/2010 07/07/2010
Deposit of Publication in OJ
contested provisions: Articles 3, c. 1, 2, 3 and 12, and 9 c. 3rd and 4th, the law of the Autonomous Region of Sardinia
07/08/2009 No 3.
High:
Titles:
decided Acts: Appl. 98/2009
JUDGEMENT NO 235
YEAR 2010
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: Chairman: Francesco Amirante; Judges: Ugo De Siervo,
Paolo MADDALENA, Alfio Finocchiaro, Alfonso Quaranta, Franco GALLO,
Luigi Mazzella, Gaetano SILVESTRI, Sabino Cassese, Maria Rita Saulle,
Giuseppe Tesauro, Paolo Maria NAPOLITANO, Joseph fridge, Alessandro Criscuolo, Paul
GROSSI,
gives the following
Judgement in the trial of the constitutionality of Articles. 3, paragraphs 1, 2, 3 and 12, and 9, paragraphs 3 and 4 of
Sardinia Region law No. 7 August 2009 3 (Urgent measures in the economic and social
), promoted by the President of the Council of Ministers with the appeal served
16 to 20 October 2009, lodged at the Court October 26, 2009 and registered as No. 98, 2009 Register of Appeals.
Since the act of incorporation of Sardinia;
heard the public hearing of May 25, 2010 the Judge Rapporteur Luigi Mazzella;
heard the 'State lawyer Massimo Salvatorelli for President of the Council of Ministers and the
Campus lawyers and Salvatore Graziano Alberto Romano for the Sardinia region.
Considered in fact
1 .- By application lodged at the Court on October 26, 2009, the President of the Council of Ministers has promoted
, with reference to Arts. 3, 51, 97 and 117, subparagraph l) m),
of the Constitution, and Articles. 3:05 Constitutional Law of 26 February 1948, No 3 (
Special Statute for Sardinia) and the principle of loyal cooperation, the question of the constitutionality of Article
. 3, paragraphs 1, 2, 3 and 12, and art. 9, paragraphs 3 and 4 of Regional Law
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Sardinia August 7, 2009, No 3 (Urgent measures in the economic and social). 1.1 .-
the applicant that the art exhibitions. 3 of the said Decree, entitled "Provisions for
overcome the insecurity", in paragraph 1, imposes some limits on the Sardinia Region and regional public bodies
Sardinians with assumptions about the use of fixed-term contracts; down
a maximum limit to the use of these forms of collaboration (not more than 3%
total workforce), envisages the need for public procedures of selection (favoring
for only those titles), and stipulates that these assumptions do not in any way constitute a prerequisite for entry into
roles indefinitely, providing, finally, as a penalty for failure to comply
above, the invalidity of the act of recruitment and accounting responsibility for
those who have put in place.
Paragraph 2 of that Article. 3, shows the applicant, authorizes regional authorities to finance multi-annual programs
stabilization of temporary workers
local government.
In turn, paragraph 3 provides that municipalities and provinces provide for the implementation of stabilization programs
of temporary workers, except those employed under
managerial functions and those of fiduciary appointment of directors, giving priority to workers from
yards to regional funding and those already employed on fixed-term contracts, flexible nature of
, atypical, with coordinated and continuous collaboration in the field of similar
publicly funded regional activities.
Paragraph 12, last, authorizing the region and regional authorities as a framework for employees
service to a certain date for a specified period, provided only that the employment relationship has been established
a result of public competition and that the same has been extended at least once a
date of entry into force of the law.
These provisions, according to the President of the Council affect
illegally on state powers and should be declared unconstitutional.
As to Article 1, the applicant points out that Article. 3 of the Special Statute for Sardinia
contemplate, in letter a), which sphere of regional legislative authority, the 'law of
offices and administrative bodies of the Region and legal and economic status of the staff. "
These, according to the applicant, referring to the provision of organizational power,
from which would go beyond the regulation of all methods of recruitment of temporary staff
determined which relates hand, quite clearly, the civil forum. The
art. 5, letter b), gives the region the ability to adapt to its particular needs
the provisions of the laws of the Republic, issue of integration and implementation
labor, but, says the applicant, the authority must be
exercised under and in consonance with the national legislation.
According to the provisions of art. l0 constitutional law October 18, 2001, No 3 (Changes
to Title V of Part II of the Constitution), in the absence of constitutional provisions that specifically refer to
Sardinia, that should be the provisions of art.
117 of the Constitution Well, the matters covered in the first paragraph of art. 3 falls outside the jurisdiction
regional powers in the state by exactly exclusive in art. 117, second paragraph
letter l) of the Constitution (civil law). The matter, in fact, would be governed by Legislative Decree 6 September 2001
No 368 (Implementation of Directive 1999/70/EC concerning the framework agreement on
time work determined), which literally provides in Article. 10, paragraph 7, that "the
studied, even in non-uniform measure, which quantitative limits for the use of the institution of
term contract rests with the national collective agreements negotiated by labor unions
comparatively more representative ' . The regional provision described above, in contrast
with state regulations would therefore invasive exclusive jurisdiction of the state such as that provided
art. 117, second paragraph of the letter) of the Constitution and should be declared unconstitutional.
In lack of a provision in the statutes ad hoc paragraph Article 1. 3 also would run contrary
with the constitutional principles of reasonableness, equality, impartiality and efficiency
administration of Articles. 3 and 97 of the Constitution, in so far as completely unreasonable,
within the public forms of selection, emphasis, for the purposes of recruitment, selection
securities only.
1.2 .- According to the President of the Council of Ministers, including paragraph 2 of art. 3 of Law
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censored would be illegal for the same considerations with reference to paragraph 1. The
on the stabilization of unstable would not be governed by the Statute of the Region of Sardinia
or subsequent rules and also to affect the civil attributed art.
117, second paragraph, letter l) of the Charter of Fundamental the exclusive legislative competence of the State
. Moreover, it would be in clear breach of Article. 17, paragraph 15 of Decree-Law
1 July 2009, n. 78 (Anti-crisis measures and extension of terms), converted into law, with modifications
, art. 1, paragraph 1, of Law August 3, 2009, No 102, which provides, as the deadline for making the last
such stabilization, the date of December 31, 2010.
also art. 3, paragraph 3, of the contested law is illegal, since the matter of stabilizing the precarious
is in no way governed by the statutes or rules Sardinia Region
later (in the presence of mere reference to the relevant competence profiles
organizational Article. 3, paragraph 1, letter a) of the Statute and the matter referred to the work of
in art. 5) and stems from, however, the civil forum, the that Article. 117, second paragraph
letter l) of the Constitution provides for the exclusive legislative competence of the state. Furthermore, this subparagraph would
in stark contrast with the various principles of State regulation of Article. 1
paragraph 519 of the Law of 7 December 2006, no 296 (Provisions for the preparation of the
annual and multi-state financial law 2007), where it refers to the procedure
stabilization 'non-managerial staff serving a fixed term of at least three years'
or for the same period has been in service over the past five years, and who has been hired
selective nature of insolvency proceedings by or provided by law, to contemplating the permanent staff
otherwise assumed the need for enforcement of similar tests. The
regional legislature, a broadening of the recipients of the Stabilisation and
reconnecting the right to a stabilization period of service less than
identified by state, would have exceeded the jurisdiction.
Unlawful, ultimately, would be the paragraph of Article 12. 3, with which it is expected
the classification of certain fixed-term employees. Here, too, lacks the coverage of
or special status of constitutional norms have arisen directly related to region
Sardinia. The only conceivable in the abstract rules which would be a reference, the art. 3, letter a) and Article. 5,
b) of the statutes cited, giving the region, as seen,
exclusive legislative competence in matters of law offices and legal and economic status of personnel, expertise or
mere integration and implementation in the field of "employment relationship": not
therefore, in terms of civil order, where it concerns the present case. The provision in question provides
for the regional staff, treated differently from the personal
insecurity of other public authorities, in contravention of the relevant state.
That provision also violates the principles of reasonableness, fairness and good
trends of public administration, and the principle of open competition, referred to in Articles
. 3, 51 and 97 of the Constitution, exceeding the statutory powers under Article. 3, letter a) and would
also intended to be declared unconstitutional.
1.3 .- The President of the Council of Ministers then holding the art. 9 of Regional Law No
Sardinia 3 of 2009 That said, as stated in the heading, "Provisions for
education, culture, entertainment and sports."
Paragraph 3 of that article provides that "The regional government in order to encourage use of
permanent staff of the school according to the order of its rankings, prepares for the year
2009-2010, a intervention program aimed at supporting the extension of school time in schools
childhood up to fifty hours a week and activation, in the public schools of all types and
degree of additional educational modules. The program has given preliminary approval by the regional council
within thirty days from the date of entry into force of this Act and sent to the Board responsible
Commission expresses its opinion within fifteen days, after which it ignores
. Within a further ten days, the Regional Government the final approval.
At its expense is coping with the availability and circumstances of the UPB S02.01.001 502.01.006.
The Regional Board shall provide compensatory changes within these UPB à
terms of regional law 11 of 2006. "
Sub-paragraph 4 provides that "Pending an organic reform legislation
regional education, the Regional Government, within their staffing
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total defined in accordance with current and subject to the conditions of hardship
linked to specific local situations, defines the procedures and criteria for the distribution of resources
of personnel between the schools. In compliance with the criteria and procedures defined by
Regional Council, the Directorate General Councillor for Education, cultural heritage,
information, entertainment and sports, provides for the distribution of staff resources between
schools. "
The provisions now found unlawfully within the jurisdiction affect the state
Article. 9 contains provisions relating to the use of permanent staff of the school and
distribution of staff resources among schools. Article. 5
gives special status to the Region, to the letter a) to adopt rules of (mere)
integration and implementation in education, in (obvious and necessary) compliance with the provisions contained in state legislation
, with the goal of adapting itself to the needs arising from the peculiar characteristics of the Region
.
The applicant states that the matter was the subject of an agreement signed on July 31
2009 by the Minister of Education and Alderman of the Sardinia Region. The
paragraph 3, which also make no reference to the Agreement, gives the region each
decision making in the planning and implementation of interventions, in contradiction with the provisions
final sentence of paragraph The Agreement (which states that "a subsequent agreement between the office
Regional Education and the Region of Sardinia will be agreed
the implementation of the plan).
It follows, with full evidence, not just a breach of statutory powers under Article
. 5, letter a), but also a blatant violation of the principle of sincere cooperation,
also constitutionally protected.
The prediction of paragraph 4, providing for the deployment of personnel to the school by
institutions of the Department for Education, may be traced in the abstract
in the field of Articles. 3 and 5 of the Statute of the Region of Sardinia does not, however, well
see into the offices, nor in the status of regional civil servants.
Concerning the subject of education, it would, according to the President of the Council of Ministers
, expertise that can not be exercised in contravention of state.
However, the contested provisions to affect the organization of the system
and respect the basic levels of performance, within the exclusive jurisdiction of the State
, since the staffing of schools are determined on the basis of legal studies
nationally defined and that the use of staff (state jurisdiction) is
contracts governed by national industry.
In determining the criteria and allocation method would not be on the other hand
made no reference to respect for state legislation on the subject, insofar as the same
are general principles, nor would be no involvement of the Office
regional school, this fact also contrary to the principle of sincere cooperation
constitutionally protected.
Therefore, the legislature regionale eccederebbe dalla competenza statutaria di cui agli artt. 3 e 5
dello statuto speciale e violerebbe l’art. 117, secondo comma, lettera m), Cost. (determinazione dei
livelli essenziali delle prestazioni delle quali è garantita l’uniformità su tutto il territorio nazionale),
nonché il principio di leale collaborazione che deve informare tutti i livelli di governo.
2.- Con atto del 24 novembre 2009 si è costituita nel giudizio di costituzionalità la Regione
autonoma della Sardegna, chiedendo che il ricorso sia dichiarato inammissibile e infondato.
2.1.- Quanto alla prima censura, riguardante la disposizione di cui all’art. 3, paragraph 1, the
Region argues that the special status attaches to the Region of Sardinia
exclusive legislative competence in matters of 'law offices and administrative bodies of the Region and
legal and economic status of staff "(art. 3, letter a) of the Statute of the Region
Sardinia). This forecast, far from being settled, as in the application, with the rapid
statement that it would be "related to organizational power, which excludes all of the
regulation of methods of recruitment of temporary staff, which relates,
however, the field order civil ', is precisely that which should be
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framed the contested provision, as the limits and conditions for use of fixed-term contracts
certainly constitute organizational aspects relevant to the operation
regional offices.
Priva would also be valuable to the further allegation of violation of Articles.
3 and 97 of the Constitution for having predicted that recruitment is carried out through public forms of selection
"privilege for only those titles." According to the Region, the provision of public selections for
titles - that would still pleno jure bankruptcy forms - can not be considered
unreasonable or contrary to the principles of sound and impartial. In any case, the application does not motivate
in any way on the alleged unreasonableness of the choice, that manifests itself, on the contrary, the
entirely consistent with the objective of carrying out bankruptcy procedures shorter and leaner than those for
examinations, depending on the type of contract - fixed term - which can be accessed, but also designed to ensure
the selection of the most able candidates, for the protection of administrative efficiency.
2.2-untrue similar complaints were also addressed in relation to paragraph 2 of art. 3
of Regional Law No 3 of 2009, questioned the extent to which provides funding for programs
multi-year stabilization, while the state legislation under Article. 17, paragraph 15 of Law No
102 of 2009 provides for the deadline for making the stabilization
31 December 2010.
Even with regard to paragraph 12 of that Article. 3,
matter fully within the exclusive legislative competence of the Region Sardinia art. 3, letter a) of the Statute
special and additional complaints mentioned in the application with reference to the paragraph 12
about the alleged violation of the principles of reasonableness, impartiality and efficiency of the PA and the principle of public
competition should be considered ineligible because they do not
each illustration or argument.
In any case, they would be completely unfounded, as the paragraph in question
expressly provides that the operating staff to proceed to term only to "
provided that the employment relationship has been established as a result of
open competition in accordance with the provisions of Law No 31 of 1998. "
2.3 .- The second set of allegations contained in its application, regarding the art. 9, paragraphs 3 and 4
of Sardinia Region law, in particular with regard to paragraph 3, the supplemental jurisdiction
implementing that Article. 5 special status attaches to Sardinia on
'instruction all levels' is not the only one to be at issue in this case, given that the region of Sardinia
also enjoys, art. 10 law cost. No 3 of 2001, fees payable under Article
today. Autonomy to the regions 117 of the Constitution ordinary, as a greater extent than
statutes. It had the characteristics of concurrent jurisdiction, the corresponding amplitude in
at least that which they hold the ordinary regions.
Neither could be seen a breach of the principle of sincere cooperation in the fact of not
exactly the same as the agreement mentioned in the application and the statutory provision in question. Indeed, it is irrefutable that
agreement was reached when the law was already in the process of regional
final approval.
The Region still reported that at the time of writing, discussions are going on and work between the council
regional and the Ministry itself to achieving its change following the latest developments in legislation
(odg with the September 22, 2009 the regional council of Sardinia
committed the council to that effect, having the same MIUR expressed its readiness ).
Of the complaints relating to paragraph 4 of that Article. 9, the region would
also totally unfounded. Under Article. 10 law cost. No 3 of 2001, the responsibilities currently
payable pursuant to Art. 117 of the Constitution autonomy to the regions to a greater extent than would ordinary
statutes. Among the first should count the concurrent legislative competence in matters
of 'education' ('the autonomy of educational institutions and with the exception of
education and vocational training), which, according to the region, meet only the limit
general principles established by State law, and "general education"
exclusive jurisdiction is conferred on the state (Article 117, paragraph 2, letter n) of the Constitution).
The discipline of the distribution of staff among schools would certainly
looks extremely detailed, so do not fall into any of the constitutional responsibilities in this area. 3 .- With
lodged on 4 May 2010, the Region has further illustrated its
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previous comments.
legal considerations
1. - The President of the Council of Ministers has promoted, with reference to Arts. 3, 51, 97 and
117, second subparagraph, l) m) of the Constitution, and Articles. 3:05
constitutional law February 26, 1948, No 3 (Special Statute for Sardinia) and the principle of loyal cooperation
, the question of CONSTITUTIONAL. 3, paragraphs 1, 2, 3 and 12, and art. 9
paragraphs 3 and 4 of Sardinia Region law August 7, 2009, No 3 (
Urgent measures in the economic and social).
1.1. - Paragraph 1 of art. 3 of the Act lays down rules for contested regional containment
the use of fixed-term employment contracts, submitting to certain restrictions, the possibility
of Sardinia and the Sardinian regional government agencies to resort to meet their needs
, a fixed-term contracts.
In particular, it stipulates that such forms of cooperation may be used only
to meet extraordinary needs motivated, imposes a limit to the same maximum (not
more than 3% total workforce), envisages the need for public procedures of selection
(privilege for only those titles), and stipulates that these assumptions are not in any way
prerequisite for entry into permanent roles and provides for penalties for infringement of those provisions
(cancellation of orders and taking responsibility
accountant who has placed them in be).
The President of the Council of Ministers is challenging the rule in two respects.
First, concludes that it would invade the exclusive jurisdiction on state
civil order, it is not possible to bring it in art. 3, letter a) of the Statute of
Sardinia Region ("Sorting offices and administrative agencies in the region and state
legal and economic staff) or in art. 5, b) (which gives the
Region, may be adapted to its particular needs the provisions of the laws of the Republic
, issue of integration and implementation in the field of work).
Secondly, the applicant's complaint - for breach of constitutional principles
of reasonableness, equality, impartiality and good administration of Articles.
3 and 97 of the Constitution - Article. 3, paragraph 1, in so far as privileges, for recruitment, selection
securities only.
1.2. - Paragraph 2 of art. 3 authorizes the regional government to finance long-term stabilization programs
precarious workers of local governments.
Paragraph 3, in turn, contains provisions on the implementation of stabilization programs
of temporary workers referred to in paragraph 2 above. In particular, it states: "Municipalities and
the provinces to ensure implementation of the stabilization programs of temporary workers,
except for those employed under management positions and those of the fiduciary appointment
administrators, giving priority to workers from the shipyards to finance regional and
to those already employed on fixed-term contracts, flexible in nature, and with atypical
coordinated and continuous collaboration in the field of public finance similar activities in the region. These
stabilization programs are implemented by local authorities concerned, "having regard to staff
precarious by the date of entry into force of this Act, has completed at least thirty
months of service in local government, including non-continuous, with effect from 1 January 2002
.... '.
For these paragraphs, which are closely related, the applicant refers to the considerations
with reference to paragraph 1 and adds that the matter of stabilizing the precarious
would not be governed by relevant statutes or rules, and also later
to affect the civil matter assigned to art. 117, second paragraph of the letter) of the Charter of Fundamental
exclusive legislative competence of the state.
1.3. - Paragraph 12, last, authorizing the region and regional authorities as a framework for employees
service to a certain date for a specified period, provided only that the employment relationship has been established
a result of public competition and that the same has been extended at least once a
date of entry into force of the law. That provision, according to the applicant, is devoid of
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coverage by special statute or constitutional status of rules have arisen
directly related to the Region of Sardinia, and recording in the field of exclusive competence
state of civil order, provide for different treatment than the permanent staff
of other public authorities, in contravention of the relevant state
applicant's complaint that standard as inconsistent with the principles of reasonableness,
impartiality and efficiency of public administration, as well as that of the public
competition under Articles. 3, 51 and 97 of the Constitution, and adds that the rule falls within the
matters of civil order, as per art. 117, paragraph of the letter) of the Constitution, exceeding
office of the jurisdiction in art. 3, letter a) of the Statute for the Region of Sardinia.
2. - The complaints related to paragraph 1 are not well founded.
must first complained that the rule will impose limits on the ability of the Region
to resort, to meet work requirements, a fixed-term contracts. In fact, however, it
authorizing the same region to enter into their contracts of employment insecurity. The intent, said
incipit, is so clearly contradicted. Nevertheless, the rule does not exceed the legislative powers
Regional.
The alleged infringement of a state legislative competence (for
in violation of the Constitution relating to civil order, or the principle of reasonableness and good performance of public administration
, access to public office by public competition) does not exist.
2.1 - And indeed, as to the alleged infringement of the exclusive legislative jurisdiction in the state
field of civil law, under art. 117, second paragraph of the letter) of the Constitution, it must be observed
that this Court has repeatedly held that, for the identification of matter where you place the
contested provision, it should be having identified the subject matter or discipline it
established on the basis of its scheme, without taking account of marginal and reflections (in this sense,
judgments No. 165 of 2007 and No. 368, 2008).
According to these criteria, the contested provision must be considered to be framed in the field
organization of regional offices, conferred by statute Sardinian
exclusive legislative jurisdiction of the Region. Article. 3, paragraph 1, indeed, limiting the ability of the Regional Government of
recourse, to meet its operational requirements, the hiring of contract workers
time determined, specifically seeks to regulate the procedures for establishment of employment contracts
with the Region. It thus explains its effectiveness at a point prior to the establishment of
employment contract and directly affects the behavior of governments
organization of its human resources and only a reflex and possibly on
subjective positions descendants of this type of flexible employment contract.
On the other hand, this Court has repeatedly affirmed the principle according to which "the
regulatory arrangements for access to the regional public employment is due to matter
administrative organization of regions and regional public authorities and is part
residual powers of the regions referred to in art. 117, fourth paragraph of the Constitution "(Case
No. 380 of 2004, No. 95 of 2008 and No. 100 of 2010).
As to the alleged unreasonableness of the preference given to the selection competition for
securities only, and the consequent alleged breach of the principle of open competition, with consequent injury
Articles. 3, 51 and 97 of the Constitution, this Court has repeatedly emphasized the absolute character
not the principle laid down in Art. 97 of the Constitution, and affirmed the legitimacy
selection of forms of more flexible, provided it meets the need to ensure equal access and adequate
level of competence. For fixed-term contracts, it has always stressed the diversity of
situation between these forms of contract, in which the temporary nature of office
can justify exceptions to the principle of open competition, compared to those with permanent contracts (see
judgments No. 252 and No. 293 of 2009). Therefore it can be concluded that the inclusion of a selective method
bankruptcy leaner, instead of that, more assured, based on qualifications and examinations, is justified
the temporary nature of the organizational requirements to be fulfilled and the consequent need for
faster in the performance of selections. The rule thus also in this respect, it is
reasonable and respectful of the principles affirmed by this court.
3. - Are based on questions of constitutionality under paragraphs 2, 3 and 12 of Article. 3.
3.1 - Paragraph 2 authorizes the region to fund stabilization programs, regardless
of the completion of competitions. Paragraph 3 provides that municipalities and provinces
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implementation of stabilization programs of temporary workers and leaving implementation
local authorities, the criteria for the selection of personnel.
In essence, the two rules above allow to happen in an indiscriminate way the
stable placement of workers in the roles of government sardines, without affecting
these assumptions if they pass the test of any kind of selective public by
concerned. Thus, they are put in sharp contrast to the art. 97 of the Constitution, which requires the assistance
what mode of recruitment of public administrations and allows exceptions to this principle
only if it fulfills special needs and is adequately ensured
professionalism of the Chosen.
3.2-MUST BE REACHED similar conclusions with regard to matters concerning the
paragraph 12, which authorizes the State and regional authorities as a framework for employees in service to a certain date
with fixed-term contract, provided only that the employment relationship has been established
a result of public competition and that the same has been extended at least once a
date of entry into force of law.
Even this rule, indeed, violates the principle of open competition, under Articles. 51 and 97 of the Constitution
The fact that the staff likely to be stabilized without any evidence is selective
at the time was taken with a fixed term contract on the basis of a public competition
due to the diversity of skills required hiring out to those in
indefinitely, does not offer adequate security or the existence of professional
stable framework required for its roles in the regional public authorities, nor the nature of the procedures need to be open
selective.
This Court, moreover, has already ruled that "the activities have served time
determined at the regional dependencies can not be considered if the former, and
absence of any special and extraordinary reasons, a valid basis for a reserve of
places' (Judgement No. 205 of 2006), and that "following successful completion of any" selection
public "at any" public entity "requirement is too general authorize a
subsequent stabilization without competition, because the rule does not guarantee that the prior selection
nature of competition and he was referring to the type and level of functions that personnel subsequently stabilized
has to play '(Case No. 293 of 2009).
4. - The President of the Council of Ministers appeals also art. 9, paragraphs 3 and 4 of Law No
Sardinia Region 3 of 2009.
Article. 9, paragraph 3, regulates a program of action to extend the time in school
preschools and activate additional educational modules.
Sub-paragraph 4 relies on the Regional Council that arrangements and criteria for
distribution of staff resources among schools
Both rules affect illegally, according to the State Attorney,
in areas reserved for state jurisdiction, the exorbitant powers provided by the special status and
violate the principle of loyal cooperation.
5. - In the first case, the President of the Council notes that Article. 9, paragraph 3, of the law cited
Sardinia Region, by providing that the regional government in order to use the
permanent staff of the school according to the order of its rankings, prepare for the year
2009 - 2010, a program of actions aimed at facilitating the extension of school time in schools
childhood up to fifty hours a week and activation, in the public schools of all types and
degree of additional educational modules, would be contrary to Article. 5 of the regional statutes, the
which, in point a), gives the Sardinia Region to adopt rules of mere
integration and implementation in education, in accordance with the provisions of the
state legislation, in a narrow perspective of adapting itself to the needs arising
of distinctive characteristics of the Region
The contested provision infringes Moreover, the principle of sincere cooperation, as well
constitutionally protected, forgetting that the matter was already a signed agreement
on July 31, 2009 by the Minister of Education, University and Research and the Councillor
of Education of the Sardinia region. In particular, the appellant challenges the norm for regional
not have made any reference to that agreement, giving the region every
decision making in the planning and implementation of action, in defiance of
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provision in last sentence of paragraph I of the Agreement, which states: "
a subsequent agreement between the Regional Education Office and the Region of Sardinia will be agreed on the modalities of implementation of
plan '.
5.1. - The matter commenced with reference art. 5, letter a) of the Statute of the Region
Sardinia, is unfounded.
The constitutional principle invoked is incorrect. Following the reform of Title V of Part II of the Constitution
, the ordinary statute regions have, in the field of education, a legislative competence
competitor, and not merely supplementary-implementation. As a result of the principle set out in
law No. 3 of the 2001 constitutional reform, the provisions laid down by art. 117
Constitution, outlining the wider spaces of regional autonomy, in fact take precedence over statutory provisions.
The identification of the parameter by the Chairman of the Council is not, therefore, relevant,
because the rule that is relevant to the jurisdiction of the State in education is now
art. 117, third paragraph of the Constitution, and not art. 5, letter a), the special status.
5.2. - The issue is not even based in reference to the principle of loyal cooperation.
The contested provision involves, in effect, skills and government bodies, namely the personal
precarious school, drawn by its recipient lists and recruitment completed for
the extension of school time, and the activation of modules Educational supplements (the latter
in public schools of all levels). In this context, the agreement signed in
31 July 2009 by the Minister for Education, Universities and Research and the Councillor of Education
Sardinia Region postpone to a later Understanding of the Region with the regional school office
the modalities of implementation of the plan.
The contested provision is respectful of the principle of sincere cooperation, because, according to
as established through the agreement with the competent minister on July 31, 2009,
demand, albeit implicitly, the phase of confrontation with State authority to the device
time of actual implementation of planned measures. The use, in fact, resources and
central apparatus, and the involvement of national institutions and resources, can not be done without materially
the agreement with the Regional Education Office.
6. - The plaintiff's complaint also art. 9, paragraph 4, of Sardinia Region law No.
3 of 2009, conferring on the Government to define, given the difficult conditions
linked to specific local situations, the methods and criteria for distributing resources
staff between the schools and the delegates' Regional Department for Education
to implement these criteria through a more rational distribution of resources among schools.
According to the President of the Council of Ministers of the rule would violate the jurisdiction
education under Articles. 3 and 5 of the Statute of Sardinia would be harmed also
sorting and organization of the system of exclusive state competence, and art. 117,
paragraph letter m) of the Constitution, namely the determination of essential levels of services to ensure
with uniformity throughout the country, given that the staffing of schools are
determined on the basis of the laws of studies defined at the national level and that the use of
staff (state jurisdiction) is governed by the national sector contracts, and finally, would have been
ignored the general principles of State regulation in the field of education, having been
omitted any reference to this effect in determining the criteria and procedures for
staffing, and the principle of sincere cooperation between all levels of government,
have not been provided any involvement of the Regional School.
6.1. - The question brought, with reference to Arts. 3 and 5 of the Statute of the Region
Sardinia, is unfounded.
The constitutional principle invoked is incongruous, given that Article. 117 of the Constitution, under Article.
3 of the Constitutional Law No 3 of 2001, has included education among the subjects of legislation
competitor and thus to the region an area of \u200b\u200bgreater autonomy than
bylaws. The identification of the parameter by the Chairman of the Council of Ministers
not, therefore, is relevant since it must now have regard for the competence of the Region in
education, art. 117, third paragraph of the Constitution, rather than articles. 3 and 5 of the Statute of
Sardinia.
6.2. - In reference to the exclusive competence of the State in terms of sorting and
organization of education and art. 117, second paragraph, letter m) of the Constitution, the levels
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essential performance, the question is unfounded.
This Court has already clarified that the task of distribution of teaching staff between the autonomous schools
vested in the Regions (Case No. 13 of 2004). It has repeatedly reiterated the need
intervention of the regional legislature to regulate "conditions related to
ratings involving specific local situations in the region, in socio-economic
. He acknowledged that the scope of regional relevance is the field of school planning
regions, both on the size of the network of
schools, which is intimately related to the allocation of resources correlative
staff (Case No 200, 2009). On the other hand, the same rule to limit regional
express its action "within the overall staffing
defined based on current regulations." The will of the Region is for the state to comply, for
regard to staffing determined at national level, it is therefore clear from the wording of the provision itself
.
Nor is it relevant in this case the reference to the fixing of minimum levels of performance, because "
definition of the organizational and service managers' (Case No 200 of 2009, which also relies
Judgement No 120 of 2005) remains entirely foreign to the said parameter.
6.3. - The question is unfounded, finally, even with regard to compliance
state in education and the principle of fair collaboration.
First, because they were not even given the general principles, derived from
State legislation, which would have been violated.
Secondly, that when the region covered by the law matter, there is no safeguard from
'need for continuity of the education service "that
still justify the intervention of the Regional School .
Finally, the distribution of personnel within the schools on the basis of policy choices and management
that detect only within the region and be considered
belonging to the territorial legislative jurisdiction.
FOR THESE REASONS THE CONSTITUTIONAL COURT
1) declares that Article. 3, paragraphs 2, 3 and 12, of Sardinia Region law
August 7, 2009, No 3 (Urgent measures in the economic and social);
2) declares that the question of the constitutionality of Article. 3, paragraph 1, of
Sardinia Region law No. 3 of 2009 promoted by the President of the Council of Ministers, in relation to Articles
. 3, 51, 97 and 117, second paragraph, letter l) of the Constitution and Articles. 3
letter a) and 5 of the Constitutional Law No 26 February 1948 3 (Special Statute for Sardinia), with
the action mentioned in the headnote;
3) declares that the question of the constitutionality of Article. 9, paragraph 3, of
Sardinia Region law No. 3 of 2009, sponsored by the President of the Council of Ministers, in relation to Article
. 5, letter a) of the Statute of the Sardinia Region and the principle of loyal cooperation
, with the action mentioned in the headnote;
4) declares that the question of the constitutionality of Article. 9, paragraph 4, of Law
No Region Sardinia 3 of 2009, sponsored by the President of the Council of Ministers, in relation to Articles
. 3 and 5 of the Statute of the Region of Sardinia, art. 117, second paragraph, point
m) of the Constitution and the principle of sincere cooperation, with the action mentioned in the headnote.
Decided in Rome, the seat of the Constitutional Court, Palazzo della Consulta, July 5
2010.
F.to:
AMIRANTE Francis, President
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Luigi Mazzella, Editor
Giuseppe DI PAOLA, Registrar
Filed in the Chancellery on July 7
2010. The Director of Stationery
F.to: DI PAOLA
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