[Tar Napoli, sez. I, n. 1427/2011] Pari opportunità: più garanzie in comune che in regione?

Qualche giorno fa è stata segnalata, su questo sito, TAR Milano, sez. I, 4 febbraio 2011, n. 354, che respingeva l’impugnazione degli atti di nomina dell’attuale giunta regionale lombarda con cui si lamentava come la presenza di un solo assessore donna contrastasse con i principi di cui all’art. 51 Cost. e con il favor per la partecipazione femminile espresso dagli artt. 11 e 25 dello Statuto lombardo.

Come è stato ricordato, il TAR si è riportato alla pertinente giurisprudenza costituzionale, anteriore e successiva alle leggi costituzionali nn. 2 e 3 del 2001, per sostenere che non solo non è necessario, ma sarebbe addirittura incostituzionale un meccanismo di riserva di posti alle donne entro gli organi politici; che in senso promozionale, e non costrittivo, devono essere intese anche le disposizioni statutarie, le quali del resto, come chiarito dalla giurisprudenza costituzionale (sentt. nn. 378 e 379 del 2004, da cui si cita un ampio stralcio) non esplicano alcuna funzione normativa; che, per questo, le nomine non possono considerarsi illegittime per il fatto che solo una si riferisce a una donna, “anche in considerazione dell’indiscutibile natura fiduciaria” di esse.

Poche settimane dopo, TAR Napoli, sez. I, 10 marzo 2011, n. 1427, si pronuncia su una fattispecie in parte simile, di ambito locale: annulla la nomina della giunta di un comune, rilevando che nessuna   donna era stata designata come assessore. Secondo questa decisione, gli artt. 51 Cost. e 6 TUEL, con la mediazione dello statuto locale, pongono un limite alla discrezionalità del sindaco e impongono un controllo stretto sulla motivazione dell’atto con cui è stata nominata una giunta interamente maschile. Non si tratta dunque di una riserva, considerata anche qui costituzionalmente inammissibile, ma di un principio di promozione: tuttavia, di un principio di promozione nient’affatto vacuo, e che anzi richiede il “massimo impegno esigibile per assicurare ad appartenenti di entrambi i sessi l’accesso a cariche pubbliche per le quali non operano meccanismi vincolanti di tipo tecnico-meritocratico”. Non importa che le nomine siano atti politici: “è proprio la natura politica della scelta che incontra il limite esterno della promozione del principio di pari opportunità”.

Lo scrutinio stretto sulla motivazione delle nomine conduce quindi al loro annullamento, come già avvenuto con la precedente decisione della stessa sezione n. 12668 del 7 giugno 2010, ampiamente citata (e con altre decisioni dei giudici amministrativi di primo grado, anch’esse riferite a giunte locali).

A prescindere dalle questioni di ordine generale che riguardano le pari opportunità, le azioni positive, il ‘diritto diseguale’ etc., la lettura delle due decisioni del 2011 fa sorgere il sospetto che il tandem ‘art. 6 TUEL – statuto comunale’ abbia superato quello ‘art. 51 Cost. – statuto regionale’, quanto a effettività nella promozione della democrazia paritaria.

È vero che, in realtà, l’art. 51 Cost. e il principio di eguaglianza sono richiamati in entrambi gli indirizzi: anzi, la decisione partenopea afferma che il principio di pari opportunità, quale si desume dalle norme costituzionali, ha “immediata applicabilità (…) come parametro di legittimità sostanziale di attività amministrative discrezionali”, sebbene poi la sua attuazione “si ritiene debba avere innanzitutto luogo attraverso l’interposizione di fonti primarie o di altro livello”.

È vero poi che entrambi i TAR puntano sulla promozione, invece che sulla coazione – mediante riserve – della presenza di donne nella giunta. Ma solo il giudice campano applica poi il principio di promozione come parametro di uno scrutinio per nulla deferente sulle scelte del vertice dell’ente. Lo si vede ancora meglio nella decisione n. 12668 del 2010: prima di rinunciare a nominare donne, il sindaco dovrebbe egli stesso attivarsi per cercare, anche fuori dal consiglio, candidati di sesso femminile, il cui rifiuto da parte della maggioranza politica potrebbe essere giustificato solo “da concrete ragioni di inidoneità o incompatibilità politica della funzione, diversamente traducendosi in un’ingiustificata elusione di un cogente precetto costituzionale”.

È vero infine che i due casi non erano identici: la giunta comunale non aveva nessun assessore donna; la giunta regionale ne aveva uno (su 16). Ma la pronuncia lombarda, più che sulla sufficienza di una sola presenza femminile, insiste su altri elementi, come si è detto: il carattere non costrittivo (ma verrebbe da dire… quasi ottativo) del principio di promozione dell’equilibrio tra i sessi nella rappresentanza politica (che, dice il TAR, “è, allo stato, solo appena avviato”); la natura minus quam perfecta dei principi statutari; il carattere fiduciario della nomina. Del resto, sebbene l’assenza totale di donne denoti spregio assoluto (letteralmente) per l’eguaglianza tra uomo e donna, anche un rapporto di 15:1 sembra ancora lontano dal concetto di ‘parità’. Come tale, si può dubitare che un simile rapporto basti a giustificare, di per sé solo, l’assenza di un sindacato penetrante sulle ragioni che in concreto hanno impedito di raggiungere una composizione più equilibrata dell’organo collegiale.

Michele Massa

(Università Cattolica di Milano)

Foto | Flickr.it

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