By means of order n. 2563, dated June 6th 2014, T.A.R. (i.e. the Regional Administrative Court) Lazio, suspended the effectiveness of the Ministerial Decree which scheduled the written tests of the competitive examination to enter the judiciary career on three consecutive days (June 25th, 26th and 27th), without considering the request from a differently abled person who proved to be unable to sustain the required tests over the expected period of three consecutive days, since he had to undergo treatment which was incompatible with a three day time slot.
From a procedural point of view, it should be pointed out that the Consiglio di Stato (the Italian Higher Administrative Court) later overrode the order issued by the TAR, allowing the performance of the competitive examination on the days which had been originally identified by Ministerial Decree dated October 30th 2013. However, the implications of the decision of the first Judge in the precautionary phase are such, that the decision can only be defined as historical.
The T.A.R. Lazio has ranked art. 16 of Law n. 68 dated March 12th 1999 as primary provision -able to identify a primary and prevalent public interest- where it provides that the differently abled should be guaranteed the opportunity to participate in all competitive examinations for public employment on equal terms with all other competitors through the provision of special arrangements for conducting examinations.
According to the quoted Judge “it does not seem … that the Administration’s choice of articulating the written tests during three consecutive days, meets the indefectible needs of guaranteed anonymity and the good execution of the procedure, under the profiles of transparency, linearity, and selection of the best”, the T.A.R. rejected also the Administrative body’s arguments which “only gave reasons justifying the abovementioned choice, relating to expenditure or organization of the work of those involved in the competitive procedure… which must be considered recessive in relation to the primary requirement of guaranteeing the applicant’s possibility to access the written tests on equal terms with all other competitors”.
The importance of the precautionary decision issued by the Regional Administrative Court of Lazio should be construed as being part of the new judicial sensitivity to the implementation of the conditions of substantial equality in accessing the judicial order, not conveyed to the logic of “reservation of the available positions.”
The above assumption proves the overcoming of the idea at the basis of the old framework of mandatory employment of people with disabilities, contained in law n. 482 of 1968, which was sensitive to quotas and to access services aimed at employment, in favor of a new conception, directed, also through the vehicle represented by the new rules governing the entry into work of disabled persons pursuant to law n. 68/99, towards a preceptive reading of Article. 4 of the Constitution, according to which “the Republic recognizes the right of all citizens to work and promotes those conditions which render this right effective. All citizens have the duty to perform according to their ability and their choice, an activity or a function that contributes to the material or spiritual progress of society “
Awaiting, therefore, the discussion of the pending appeal, scheduled for October 23rd, legislators should identify reserved quotas, in relation to any public competitive examination, for the employment of persons with disabilities, identifying practical ways to implement the mentioned constitutional precept.
(Rome Office – Antonio Salamone – 0039(0)6 68210067)
