The Consulta: the postponement of the Tfs incompatible with the Constitution. Here's what changes for the liquidation of the state

The Consulta: the postponement of the Tfs incompatible with the Constitution.  Here's what changes for the liquidation of the state


ROME. Is it lawful to pay the state payment with delays of up to 7 years? According to the Constitutional Court no, it is contrary to the Constitution.
It was the second time that the Confsal-Unsa union had turned to the Consulta to contest a practice relating to late payment of severance pay and claiming the right for public employees to obtain the same treatment as private ones. And this time he won.
A big problem for the INPS and in general for the State which are now faced with a serious problem of expenditure. In fact, around 150,000 civil servants are expected to retire next year alone and, calculating an average of 70,000 euros each in severance pay, we arrive at an expense of 10.5 billion euros, which is anything but easy to manage.
In fact, according to the current rules, before collecting the TFS, the public employee must wait two years - without revaluations and without interest, mind you - which rise to 7 if you exit 5 years in advance, for example using Quota 100 because the rule provides that the payment takes place only after the interested party has reached the full requirement of retirement age, i.e. 67 years.
It was the Monti government, after the 2011 spread crisis, that authorized the deferred payment of the Tfs-Tfr to civil servants to give relief to state finances. But already in 2019 a sentence of the Supreme Court had established that the right of the public worker to liquidation was expendable only in cases of early termination of work. Exactly one year ago, the Lazio Regional Administrative Court also raised the question of the legitimacy of the rules which currently defer the payment of the severance indemnity for public employees compared to the timing envisaged for the private sector, which instead receives the severance indemnity as early as time of retirement.

Pension quota 103, the first payment in April

Bruno Benelli


According to INPS, in the memorandum filed, it is necessary to distinguish between severance pay, i.e. the severance pay for employees hired up to 31 December 2000 (based on 80% of the last salary), and the severance indemnity, i.e. severance pay relationship reserved for those who have been hired in the public sector since January 2001 and which, as in the private sector, is a deferred salary withheld each month from the salary. In their opinion therefore, only the severance pay of the state should be subject to the same rules as private individuals, the severance pay not. In short, the deferment of payments would be justified, bearing in mind that since last February the institution has in any case allowed the TFS to be forfeited immediately by activating a loan at a subsidized rate of 1% which allows for an advance on the sum due to the worker. However, this thesis did not pass.
The deferment, in fact, according to the Consulta, conflicts with the constitutional principle of fair remuneration, of which the severance pay constitutes a component; "principle which is substantiated not only in the congruity of the amount paid, but also in the timeliness of the disbursement". It is, it is explained, an emolument aimed at meeting the particular needs of the worker in a particular and more vulnerable season of human existence as stated in sentence n.130 (editor by judge Maria Rosaria San Giorgio). According to the Consulta, it is up to the legislator, "having regard to the significant financial impact that overcoming the deferral entails, to identify the means and methods of implementation of a reform intervention that also takes into account the commitments undertaken in the context of the previous economic-financial planning . However, the discretion of the legislator in this regard - the Court clarified - is not temporally unlimited. And the excessive protraction of legislative inertia would not be tolerable, also taking into account that the Court had already addressed the legislator, with sentence no. 159 of 2019, a warning signaling the problematic nature of the legislation in question". The Court then noted that the regulation of the installment payment of end-of-service allowances provides for temperaments in favor of the beneficiaries of the lower benefits. In any case, the Court concludes, this legislation - which was connected to contingent needs for the consolidation of public finances - as combined with the deferral of the service, ends up aggravating the identified vulnerability.



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