The Application of Article 42-bis of Legislative Decree No. 151/2001 to Military and Law Enforcement Personnel

Abstract

The present work aims to examine the practical issues related to the application of Article 42-bis of Legislative Decree No. 151/2001 with regard to military personnel and law enforcement officers, as well as to identify the most suitable solutions, considering the multiple and often conflicting jurisprudential applications.

While this provision, especially in light of the amendments introduced over time, does not present peculiar application difficulties for public administration employees, the same cannot be said for military personnel and law enforcement officers. For these categories, its application became problematic not only due to specific special rules, but also for the particular nature of their duties.

The legal interpretation has evolved, from considering the regulation inapplicable to military and police personnel, to its conditional application in certain situations defined by specific provisions.

Certainly, both the public administration and the personnel invoking this provision, have witnessed changing interpretations of the legal framework, which, however, have not significantly impacted their respective positions. As a result, jurisprudential decisions still show rejections in situations where there are no valid grounds for denying the request, or applications that are clearly outside the scope of the provision and its applicable special rules.

This is a matter of considerable significance, especially considering that, starting from 2013, when the Council of State definitively clarified that this regulation is also applicable to military and police personnel, the management of such personnel has been – and continues to be – strongly influenced by the temporary assignments requested. These assignments naturally lead to a depletion of personnel in their home base, due to situations of unavailability or surplus personnel in the desired assignment location.

In this context, the identification of the various interpretative options and the choice of solutions that are most consistent with the protective purpose of the provision, aim to encourage more informed decisions not only by those concerned but also by public bodies, which, in managing the organizational issues of personnel in this highly specialized sector of public administration, must also decide on the actual provision of family protection.