TAR Sicilia Palermo, sec. I, April 21, 2006, No 901
ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
The Regional Administrative Court of Sicily, Section One,
gives the following Judgement on the appeal
No 484/2006 Section One, proposed by Prof. Michele Carrara
, represented and assisted by you and Angelo Fernando The
Petralia at the office to which the address for service in
Palermo, Via Mariano Stabile No 142, AGAINST
- University University of Palermo, in the person of the Rector pt,
represented and defended by District State
Palermo, whose offices at Via Alcide De Gasperi n. 81 is
address for service by operation of law,
AND AGAINST
- Prof. Rosalba Alessi, defendant, represented by lawyer
defense. To Prof. Sergio Holly in electively
whose study is domiciled in Palermo, Via Brunetto Latini No 34,
for cancellation (after suspension)
- Decree No. 9946 of 19/12/2005 issued by the Rector
University of Palermo with which we proceeded to the appointment of the defendant, Prof. Rosalba
Alessi
component to the Board of Directors of the University
intimated, representing the Professors and after
declaration of the requirements prescribed;
- all acts of conditions, related and consequential damages.
Given the appeal, notified on 17.02.2006 and filed on 03/01/2006
, with annexes;
Since the entry of appearance in court
Advocacy of the State Administration for intimacy;
Since the act of incorporation of the defendant, Prof. R.
Alessi and its memory;
appointed rapporteur to the chambers on March 21, 2006 the
Referendary Dr. Roberto Valenti
heard the lawyer. To A. Petralia for the plaintiff, the lawyer. To state F.
Bucalo resistant to the administration and the lawyer. To S. Pensabene
Lionti, replacing Att. To S. Holly, for the defendant
;
The facts and legal considerations as follows: Beginning
document
With the use hereof, duly served and filed, the applicant states that it first participated as a candidate and nq Professor of full-time, in elections for the renewal of the Board of Directors of the University of Palermo, held with No DR 8841 of 17/10/2005.
also participated in the same election as another candidate (and the same "category" of Professor), the defendant intimated Prof. Rosalba Alessi.
Following the vote of that question, which took place on 28/11/2005, the appellant came first instead of unelected, with no votes 78.
The defendant, Prof. R. Alessi was instead placed in the useful third and last spot available in the same category (id est: Professor full-time), having reported no 94 votes.
By application to the Electoral Commission and to the Rector of 28/11/2005, the appellant disputed the contention that the conditions for eligibility in the hands of the defendant, since, as it was named - since 1999 - liquidator three government-owned businesses in the Sicilian Region, the same should have been placed on leave office, so losing the legal status of teaching full-time person required for the purposes of the electorate for the office in question.
In the absence of response to the application in mind, the applicant also took care to notify On 15/12/2005 an extrajudicial act of formal notice and a summons, addressed to the Rector of the University intimated, explicitly requiring the verification of the requirements for the appointment in question in the hands of the defendant, with specific reference to the fact that current legislation requires the placement on leave for university teachers in case of management functions in government-owned businesses.
On 19/12/2005, however, was issued in which the DR 9946, after clearance by the Rector of meeting requirements by Prof. R. Alessi, the same was appointed member of the Board of Directors of the University. Only
on 28/12/2005, rettoriale then subsequently to the decree in the introduction, with prot. 77761 Rector found the act of formal notice (also enclosing copies of the minutes of the Electoral Commission - which the applicant's application was declared inadmissible - and Guarantee Commission of the Academic Senate, respectively, 02/12/2005 and 12/12/2005 ) confirming the existence in the hands of Professor Alessi requirements necessary for its participation in the election and subsequent appointment to the Board in question.
against the measure as an epigraph, along with other related, the applicant brought the present appeal, given the following complaints:
violation and misapplication of the law in relation to Articles. 11, 13 and 15 of Presidential Decree 382/1980, art. 53 D. Lgs. 165/2001 and art. 6 Rules for the election of the Board of the University Professors and Researchers - too much power.
DR contested, and the next footnote 77761 28/12/2005 (response time of warning), unlawful possession of state requirements for eligibility for election in the hands of Prof. R. Alessi: indeed, under current regulations, the same should have been placed on leave office under Article. 13 co. 1 No 10 of Presidential Decree No. 382/80 due to the appointment as liquidator of public entities: in addition, pursuant to art. Regulation 6 of the election to the Board of Directors, Professors put on leave retain only mandatory vote. In any event, at the time of the assignment in question, the defendant would still opt for the regime to time defined, equally incompatible with the duties of elected members of the Board. The Administration defendant then failed to check the regularity until the end of the legal status of the defendant, unlawfully keeping the electorate to the same person.
He asked the applicant for annulment, after suspension of the contested measure and of all acts assumptions, and related follow-up. With the victory of the costs.
It also highlighted its interest in the applicant as, pursuant to art. 13 paragraph 2 of the electoral rules, in case of resignation or loss of the requirements for eligibility for election, the Chancellor must ensure, by decree, appoint a replacement in the first non-elected.
The State Attorney, in court, did not explain pleadings.
It was Prof. R. Alessi defendant who first raised the issue of the inadmissibility of the appeal because the appellant is challenging the illegality of a measure mere omission of the University: in such cases, indeed, the only possibility is recognized by the formal notice of the Administration and The appeal of so-called silent refusal. In another profile, however, if the applicant is grieved at the time of NO given to respondent, the same result today or otherwise applying them unassailable by the GA. Substance requested the dismissal of the appeal, as unfounded, because the legislation provides for callback, as a prerequisite for putting on leave office, the appointment of the liquidator: the nature of the restriction in question would not, therefore, no chance of interpretation by analogy, consider also the different functions of the chief executive officer (or president) of a public body than those exercised by the liquidator.
muster Chamber of 21.03.2006, having heard the parties, as per the report, the appeal was held in the Board decision.
Start document
think at the outset, the Board that the views can be defined in a simplified form, ruling issued pursuant to art. 26 L. 06/12/1971 No 1034, as amended by art. 9 L. 21/07/2000 No 205, following the closed session for discussion of the instance supervision, given the lack of opposition parties, made by the Chairman of the Board Mindful of that eventuality.
is at issue in terms of expectations of the office of university teachers, as governed by art. 13 Presidential Decree 382/80, with particular reference to the assumptions set out in No Article 10 of the (appointment a chairman or managing director of public bodies), for refluenze that a possible application of the institution to the present case, by the disappearance of full-time requirement requested and may have regarding eligibility for election for the election of board members University of Palermo, in particular, the thema decidendum is the case of a university professor, has already been appointed liquidator of regional public authorities, and has also contributed, with good results, the appointment of elected members of the Board of 'University of Palermo.
should examine the question previously raised by the defendant, with reference to the supposed inadmissibility of the appeal: with the originating application the applicant complained of a mere omission University intimated. All the possible illegality, therefore, could be invoked only after the formation of the so-called silent refusal as a result of formal notice. In any case, if the appeal sought to challenge the legality of the authorization of 04.13.1999 (protocol 127/99), issued by the President of the I ^ Degree in Law from the same faculty (according to art. 11 DPR 382/80), the same would be final and today, however, is not disapplied by the GA.
The exception is unfounded in both respects.
In the first case, in fact, unlike the findings of the respondent, the applicant has in effect put the letter in Administration.
Indeed, by summons served on 15/12/2005, Prof. M. Carrara, said "that the rules on incompatibility and non-overlapping (...) seems to exclude the possibility that Professor Rosalba Alessi to exercise those functions of the liquidator without being placed on leave office (...)", expressly warned the University intimated to verify the legal status of the defendant, and to verify that the conditions of eligibility required.
Moreover, since the DR 9946 of 19.12.2005 (with whom he appointed, following the voting process, Prof. R. Alessi board member of the University, after confirmation of fulfillment of requirements), the administration summoned, with footnote 77761, 28/12/2005, found in the formal narrative: "having further verified the existence of the eligibility requirements in the hands of Prof. R. Alessi, (we) believe that the same could be lawfully appointed member of the Board of Administration ". What
measure related to the appointment referred to in DR 9946 cit, note the warning in response to the premise is formally and explicitly evoked in the first ground of appeal taking issue with, of course, the illegality of recognition in the hands of the defendant, the existence of the eligibility requirements.
As regards the second, the exception is inconducente the case.
Indeed, the appeal brought by the applicant does not intend to challenge the legality of an order authorization well established, but the lack of enforcement - as a direct consequence - the Institute of leave office which he considers apply in this case, and which will be discussed further. In
the action is founded on the arguments set out below.
premise is that the University of Palermo, with settlement on 11 / 11/1998 - issued pursuant to art. 58 D. Lgs. 29/93, as supplemented and / or amended by art. 26 D. Lgs. 80/98 on incompatibility and assignments paid - provided that "teachers and researchers may not receive full-time positions funded by government, from entering public flights (...) issued unless authorized by the Dean of the School studies ... " (Article 1). So and so far as relevant, and the possible appointment of managing director of a public body, is - like species - the appointment of a liquidator of public bodies, must be previously authorized.
terms of regulation, should also be observed that the matter is regulated by Presidential Decree 382/1980 cit. whose article 11, after stating that the commitment of professors is "full-time or defined time ", in paragraph 5 letter a) provides that a full-time" is incompatible with the conduct of any business and professional consultancy and by taking any paid assignment and the exercise of Commerce and ' industry, are subject to the participation of legal and technical-scientific advisory bodies of the State, local governments and research institutions and activities, however, conducted on behalf of government departments, public bodies and agencies to prevailing state participation loan as long as experts in their subject area and in accordance with the performance of their official tasks. "
circumstances, the art. 13 in terms of "expectancy required for situations of incompatibility", states:
Subject to the provisions in force concerning prohibition on engaging in the office of professor with other public or private use, the professor is placed on leave office for the term of office of office or office in the following cases:
1) - 9) Omitted;
10) appointment to the positions of chairman, managing director of public bodies, national, interregional and regional, government-owned businesses of public companies, including for-profit organization. Remain in each case excluding the charges, however, guidelines that institutions are primarily cultural or scientific and the President, if unpaid, the publishers of scientific publications.
applicant complains in particular the non-application of Article. 13 Presidential Decree 382/80, as reported, requires putting on leave office when the professor is called to serve on "management" of a public, national, interregional and ragionale or public bodies economic, public companies, including for-profit organization.
On this point, the defendant, Prof. R. Alessi and state representative Attorneys argue the impossibility of applying the rule in question, by analogy, in this case: in fact no Article 10 in question provides Only the different positions of chairman and chief executive, not even that of the liquidator, the first non-verifiable. In the view of the defenses, leans in this direction is the letter of the rule, both feature different teleological which are responsible for the different positions on the subject, and the impossibility of proceeding by analogy to an exceptional provision limiting the liability of the electorate and officium jus . At the same event would have already expressed, according to allegations, including the State Council, by decision of the section VI. No 792/1998.
The assumption of unconvincing as specified.
For a better understanding of the subject matter, it is necessary to build on LR No 5 / 99, which was ordered the suppression and liquidation of economic entities AZASI regional (Sicilian Asphalt Company), EMS (National Mining Sicilian) and ESPI (Sicilian Institute for Industrial Promotion). Under paragraph 3 of art. 1, the President of the Region, to the suggestion of Regional Industry, after deliberation of the Regional Government, appoint a liquidator of the three entities deleted.
a view to take over the function in the premise, the Alessi P.ssa took care to request and obtain, under Article Mantua. 11 co. 5 letter a) DPR cit. (And also because art. 11/11/1998 Reg 1 of the University referred to below), the authorization to cover the office of the liquidator of Public Mantua. Authorized, the same was then appointed to the position in the narrative, just Decree of the President of Sicily Region, 29/04/1999.
circumstances, the Board believes that the necessary authorization measure of 13.04.1999 (protocol 127/99), whose legitimacy is questioned (as for other well-established, or subject to appeal) does not exempt, under appropriate circumstances the other conditions of the law, the burden of applying to the matter of the Institute of leave office referred to in Art. 13.
puts down the words to that effect is a literal reading of the provision in question (id est: Without prejudice to existing on non-overlapping with other office of professor of public employment) and the systematic position of the institution in question in relation to Article. 11 cited. governing, for what reason, the cases of incompatibility with the commitment of full-time professors.
must now tackle now the crux of the matter before and verify, therefore, the concrete possibility to apply the institute of leave office even to cases where the professor is called to fill the duties of the liquidator of institutions public, that as similar to those of the president or CEO evoked by the provision in question.
If successful, the respondent, losing the requirement of full-time person required for admission to the electorate, would be ineligible to the Board of the University of Palermo, under the regulations governing their formation.
For the survey to be conducted, the Board considers it appropriate to build on the identification of the rationale of the Institute of Art. 13 DPR 382/80.
According to the clear authority of the same Constitutional Court (Cfr.Cort.Cost., Sent. May 23, 1985 No 158) governing the placement of an ordinary university professor on leave is intended to ensure "the maximum commitment of the teacher in the performance of 'teaching activities in teaching and research, being able to play the university professor and implement its tasks in parallel with other functions of such great importance and commitment "such as those indicated in art. .. 13
He cited the Court held that the incompatibilities laid down are justified in their view, based, of inability of contemporary performance, as appropriate, of a university professor with the tasks related to public office or the public sector covered.
satisfy the conditions of the law, then you set up "a situation of incompatibility (I) involves the placement office on leave for the duration of compulsory charge "(see TAR Naples, Sec. II, September 17 2002, n. 5426).
If that is the ratio of the institution in question, on which no one doubts, the Board believes that it can certainly be considered to ousting the application of the same species if only the teleological significance of the different functions which they are respectively responsible for the President or 'CEO of a public body with respect to the liquidator, not specifically covered by the rule but similar to the first because of a possible broad interpretation of the provision.
Does the Board not to share, about the precedent raised by the defenses set up and invoked the memory of the other party (cons. State. Sec. VI. No 792/98).
Although it wanting to give the standard argument in the source feature of "exceptional", which indeed it is doubtful, and as such not open to interpretation by analogy, the same can still be "subject to broad interpretation, which is the result of a logic aimed at identifying the real meaning and scope of this provision, which allows to determine the exact scope of operations, even beyond the limit apparently marked by its wording, and identify the actual semantic value of the provision, taking into account the 'intention of the legislature, and then extending the regula juris in cases not expressly provided for by law, but by the same implicitly considered " (Civil Cassation, sez. I, August 26, 2005, No. 17396).
The concerns highlighted on the real substance of the provision at issue here stem from the fact that, indeed, the institution of such leave does not include any injury officium jus the teacher: the latter, in fact, has not only deprived of his post work, but not completely inhibited from teaching, which will continue to play under the same Article. Since last 13. co. Presidential Decree 382/80, in the form of a series of conferences and seminars and research also applied (see Cons. No State 7945/03 cit.)
addition, any person refluenza electorate, for the loss of the requirement of "full time", was born by a conjunction of different institutions and not directly from the norm in a comment.
That said, it should be noted that the powers now exercised by the liquidator in practice are not at all dissimilar to those of the managing director: the function performed by the first, far from being simplistically attributed solely to the extinction of the Body, also requires the liquidator - proceed with the divestiture of assets and closure of the slopes - to work to achieve the best result possible useful for the regional administration.
Which means to an end, the applicant does not fail to point out that Article. L. 1, paragraph 6 5 / 99 states: "to the extent not provided for by this Act, the provisions of the Civil Code and laws of the State in the subject. "As noted by the same office and legislative office of the Region," the powers of the liquidator of regional economic bodies, by virtue of the reference made by the standard, are governed by Articles . 2278 and 2279 cc, as well as art. 10 L. 1404/56. Codicistiche In particular, the rules stipulate that the liquidators may perform the acts required to clear, with only the prohibition of new operations; art. 10 of the cit. L. 1404/56 provides that the liquidator of the bodies public law may, in carrying out validation, perform acts of management (...) (opinion 294.01.11).
The temporary the powers vested in the liquidator does not affect that the merits of the arguments already made (which would be temporary, however, some nell'an but not even when, as is shown - so far as relevant - the fact that in the present case is not expected to time limit for the exercise of the given, despite the intervening years, has not yet completed the liquidation of the bodies that issue). The same law of the State Council, however, generally agreed that "the temporary management of the liquidator, who took over the financial and legal relations" of the entity to liquidate "is a limitation of the exercise of a purely chronological powers of the Commissioner, but does not, of itself, no restriction on the powers of the consistency of quality "(cons. State, Sev. IV, 14 February 2005 No 444).
Despite the above mentioned by the state representative , the same government has shown the ability to carry out an extensive interpretation (and not analog) of the same legal provision. Although the rule makes express reference only to full professors, the Council of State has always recognized the direct applicability of 'compulsory leave office also associate professors, although not expressly mentioned (Council of State Sec. VI, 03 December 2003 n. 7945, July 4, 2000 No 3663, June 30, 1997 No 996).
the Board also believes that the difference teleological, while subsisting between the functions performed by the liquidator and the CEO is not taken - as reasons - in order not to allow the application of the rule in question: the substantial fall within the functions exercised by the liquidator to those assigned by the CEO, given the underlying objective, you can also extend the application of the institution to the case.
The arguments lead to the College does not have access to the assumption that the fact that the legislature has not counted in the legislative provision in question was the figure of the liquidator, although known order, as questionable as a choice - the ratio of the standard expected and the undoubted impegnatività of tasks and related management activities - is explained, in all likelihood, the temporal and teleological physiological limitations of the specific tasks of the liquidator.
Far from being a bold and not allowed legal hypothesis of orthopedics, the one at issue, unlike the view, shows indeed allowed a broad interpretation of the provision referred to, respectful of the exact ratio.
On closer inspection, the only permitted exceptions from the norm are related to participation in management positions of institutions in the primarily cultural or scientific, or the presidency, provided that unpaid activity of publishers to scientific publications: in such cases the legislature exercises a clear compatibility option and, sometimes, complementarity of these activities with the provision of teaching and research full-time teacher, consistent with the spirit of the institution for as far outlined.
As with the above, therefore, the certificate of ownership in the hands of the defendant, the eligibility requirements for the office of member of the Board of the University of Palermo, and its appointment of its component, are - as of reason - illegitimate, indeed, for the reasons stated above, the Directors jurisdiction would have to (also because of specific formal notice on the point) ensure that there were species in the conditions for entry have in expectation of office of Prof. R. Alessi, independently and irrespective of the prior existence of an enabling decision. The application of the institution in question, met the requirements of the law, constitutes an act of discretion and not merely due to the Administration. It can not be accessed for more time to the thesis of the applicant to set up purely reconnaissance of the order mentioned.
For the foregoing arguments, in the circumstances for the loan in expectation of the other party - for the duration of time required by standard - the same could not achieve the profit is derived from the elections for the renewal of the Board of the University of Palermo.
The appeal is therefore based, in ways set out in the grounds, so should be welcomed and, in effect, absorbed the additional profiles, the decision must be annulled borne out in the epigraph.
There are, however, according to the renovated art. 92 Code, to provide for the right reasons compensation between the parties of the costs, because of the non-unique jurisprudence which has been detailed in motivation.
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