JUDGMENT NO. 5

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Justices: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has pronounced the following

JUDGMENT

concerning the constitutional legitimacy of Article 135, paragraph 1, letter q-quater), of Annex 1 (Code of Administrative Procedure) to the Legislative Decree No. 104 of 2 July 2010 (Implementation of Article 44 of the Law No. 69 of 18 June 2009, containing delegation to the government for the reordering of administrative procedure), initiated by the Regional Administrative Court for Piedmont, First Section, in the proceedings between Cirsa Italia spa and others and the Italian Customs and Monopolies Agency – Interregional Directorate for Piedmont, Liguria and Valle d’Aosta and the Ministry of Economy and Finance, with order of 17 June 2024, registered under No. 145 of the Register of Orders 2024 and published in the Official Gazette of the Republic No. 33, first special series, of the year 2024.

Having seen the acts of constitution of Gamenet spa, Palabingo srl and Cirsa Italia spa, as well as the act of intervention of the President of the Council of Ministers;

having heard at the public hearing of 26 November 2024 the Reporting Justice Maria Rosaria San Giorgio;

having heard the lawyers Luca Giacobbe for Palabingo srl and Cirsa Italia spa, Fabio Cintioli for Gamenet spa and the State Advocate Laura Paolucci for the President of the Council of Ministers;

deliberated in chambers on 26 November 2024.

Facts as ascertained

1.– By order registered under No. 145 of the Register of Orders 2024, the Regional Administrative Court for Piedmont, First Section, has raised, with reference to Articles 3, 25, 76, 111 and 125 of the Constitution, questions concerning the constitutional legitimacy of Article 135, paragraph 1, letter q-quater), first part, of Annex 1 (Code of Administrative Procedure) to Legislative Decree No. 104 of 2 July 2010 (Implementation of Article 44 of Law No. 69 of 18 June 2009, containing delegation to the government for the reordering of administrative procedure).

The referring court reports that it is seized of the appeal, brought by Palabingo srl and Cirsa spa, against the «default silence maintained by the Italian Customs and Monopolies Agency – Piedmont, Liguria and Valle d’Aosta Territorial Directorate, Turin branch» regarding an application filed by the first of the two appellant companies.

The latter, by virtue of contracts stipulated (on 24 April and 24 May 2018) with the counter-interested party Gamenet spa, a public concessionaire for the telematic management of lawful games, conducts and manages the activity concerning the related gaming machines, located within two «Bingo Halls» owned by it in the territory of the Municipalities of Alessandria and Serravalle Scrivia. Approaching the expiry of the contracts, Palabingo srl had expressed to the counterparty the intention to utilize the telematic network of another concessionaire, Cirsa Italia spa, subject to replacement of the video terminal machines. This had resulted in a civil dispute, decided by judgment of the Ordinary Court of Rome of 7 October 2023, which had ascertained the termination of the contractual relationships between the parties, relating to the lawful gaming activity exercised in the two aforementioned premises.

Palabingo srl had, therefore, addressed an application to the customs and monopolies administration, at the competent territorial branch, aimed at obtaining «the initiation of administrative proceedings with a formal notice against the concessionaire Gamenet s.p.a. to request the annulment of the relevant authorization related to the collection of games in the Bingo Halls of the appellant Palabingo S.r.l., failing which, within 30 days, the adoption of the final measure revoking the aforesaid authorization to allow the entry of the new Concessionaire Cirsa Italia S.p.A.».

In the absence of a response to this application, even after the reminder of 28 February 2024, Palabingo srl and Cirsa Italia spa had appealed to the referring TAR. Upon constituting themselves in court, the defendant administration and the counter-interested party had objected to the territorial incompetence of the TAR Piedmont by virtue of what is established by Article 135, paragraph 1, letter q-quater), first part, of the Code of Administrative Procedure, which assigns «to the mandatory jurisdiction of the Regional Administrative Court for Lazio, Rome seat», «disputes concerning measures issued by the Autonomous State Monopolies Administration regarding public games with monetary prizes».

1.1.– The court a quo, having premised the consideration of the relevance of the question of constitutional legitimacy of the challenged provision – given that it could not «take cognizance of the dispute, as, according to the currently applicable primary positive law, the Panel would have to preliminarily divest itself of the dispute to transmit it to the Regional Administrative Court for Lazio before any other decision» –, on the merits, starts from the reference to this Court's Judgment No. 174 of 2014 which, upon referral by the same TAR Piedmont, declared the constitutional illegitimacy of the same provision challenged today «in the part in which it provides for the assignment to the mandatory jurisdiction of the Regional Administrative Court for Lazio, Rome seat, of disputes concerning measures issued by the police authority regarding the issuance of authorizations for public games with monetary prizes».

It is recalled in the referral order that Law No. 1034 of 6 December 1971 (Establishment of Regional Administrative Courts) had already chosen, as the main criterion for the allocation of jurisdiction among the regional administrative courts, that of the territorial effect of the challenged act («with the sole exception of state acts of national character assigned to the regional administrative court with seat in Rome»). This structure, the referring court notes, has remained substantially unchanged with the discipline set forth, in 2010, by the Code of Administrative Procedure.

It is also observed that a first provision for the functional jurisdiction of the TAR Lazio, Rome seat (hereinafter: TAR Lazio), introduced by Article 4 of Law No. 74 of 12 April 1990 (Amendment to the Rules on the Electoral System and the Functioning of the High Council of the Judiciary), relating to jurisdiction over measures concerning the status of ordinary judges adopted by the relevant self-governing body, was deemed compatible with Articles 3, 24 and 125 of the Constitution by this Court's Judgment No. 189 of 1992. This decision was followed by other legislative provisions that concentrated at the TAR Lazio «further mandatory functional jurisdictions», up to the current comprehensive discipline set forth by Articles 14 and 135 of the Code of Administrative Procedure.

The referring court, in quoting some passages from the reasoning of the aforementioned Judgment No. 174 of 2014 concerning the review of the non-unreasonableness of procedural rules that derogate from the system of territorial jurisdiction allocation, recalls the «rigorous criterion» of evaluation adopted by the jurisprudence of this Court since Judgment No. 237 of 2007. Indeed, the referring court specifies, «were there no limits to the provision for cases of mandatory functional jurisdiction of the TAR Lazio, the principle of decentralization of administrative justice and the identification of the court of first instance on the basis of the territorial criterion, at the regional level, would be exposed to the risk of being emptied of concrete meaning». As indicated by Judgment No. 159 of 2014, this rigorous evaluation must pass through the assessment of «a legitimate purpose, justified by a suitable public interest (which is not exhausted in the sole need to ensure uniformity of jurisprudence from the first instance, abstractly configurable with respect to every category of disputes)», the existence of «a rational connection with the aim pursued» and, finally, the necessity of the derogation «with respect to the purpose, so as not to impose an unreasonable distortion of the ordinary criteria for the allocation of jurisdiction in administrative justice matters».

The court a quo believes that, in light of this ratio decidendi, the concentration before the TAR Lazio of all disputes concerning measures issued by the Autonomous State Monopolies Administration regarding public games with monetary prizes is affected by unreasonableness and infringes the principle of the natural judge pre-established by law, in violation of Articles 3 and 25 of the Constitution (recte: 25, first paragraph, of the Constitution), and that it also conflicts with Article 111 of the Constitution concerning the «right of appeal» and with Article 125 of the Constitution concerning the «jurisdiction of the territorial administrative courts».

The referring Panel also suspects the conflict of the challenged provision with Article 76 of the Constitution, as it is «contained in the delegated decree from Article 44» of Law No. 69 of 18 June 2009 (Provisions for Economic Development, Simplification, Competitiveness as well as in the field of Civil Procedure). In the aforementioned Article 44, there would not be found «the slightest hint, or more correctly principle or guiding criterion, that induced the delegated legislator to include the provision for the mandatory functional jurisdiction of the Regional Administrative Court for Lazio regarding measures on public games with monetary prizes».

Therefore, this Court is requested to issue a ruling that complements the declaration of constitutional illegitimacy of the aforementioned letter q-quater) of Article 135 of the Code of Administrative Procedure, limited by Judgment No. 174 of 2014 to only the second part thereof (relating to measures by the police authority). Indeed, it is observed that in this case «the issuance of new different authorizations for the operation of two pre-existing lawful "gambling houses”, one located in Alessandria, the other in Serravalle Scrivia, are matters affecting the powers of the Piedmont, Liguria and Valle d’Aosta Territorial Directorate and not directly of the Italian Customs and Monopolies Agency, do not correspond to a general criterion for issuing authorizations concerning the entire territory of the State, and do not at all concern matters of particular constitutional prerogatives such as the governance of judicial personnel or the necessity for necessarily uniform jurisprudence to be formed, as in the case of independent authorities».

2.– By act filed on 2 September 2024, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney's Office.

The state defence objects, preliminarily, to the inadmissibility of the questions raised by the TAR Piedmont for «lack of reasoning regarding the non-manifest groundlessness». The objection is articulated in four different aspects. Firstly, the violation of the «principle of self-sufficiency» is complained of, as the referral order would have limited itself to citing this Court's precedent set forth in Judgment No. 174 of 2014, and would have also referenced *per relationem* the referral orders of that time without reporting their argumentative passages.

Secondly, it is observed that the referring court assumes this Court's Judgment No. 174 of 2014 as determinant for the non-manifest groundlessness of the questions raised, without any independent assessment as to the relevance that the same ruling would have with regard to the case at hand and without any illustration of the reasons for which the constitutional parameters invoked would be violated.

Furthermore, the referring court would have failed to identify and evaluate the reference regulatory framework and to reconstruct the genesis of the challenged provision, introduced, in the text of Article 135 of the Code of Administrative Procedure, by Article 10, paragraph 9-ter, of Decree-Law No. 16 of 2 March 2012 (Urgent provisions regarding tax simplifications, efficiency and enhancement of assessment procedures), converted, with amendments, into Law No. 44 of 26 April 2012, in the perspective of a broad intervention regarding games, and not with Legislative Decree No. 104 of 2010.

Finally, the referring court would have failed to attempt a constitutionally compliant interpretation.

On the merits, in the opinion of the State Attorney's Office, the questions would not be well-founded.

Regarding the alleged violation of Article 3 of the Constitution, it is observed that the case under examination could not be assimilated to that of measures adopted by police headquarters (*questure*), which were the subject of this Court's Judgment No. 174 of 2014. The identification, for the matter *de qua*, of the functional jurisdiction of the TAR Lazio would not be unreasonable, having regard both to the «distribution of administrative competences concentrated at a central or supra-regional level of the Italian Customs and Monopolies Agency», and to the «connection of the functions pertaining to the aforesaid Agency with the activity of capital collection» at national and European level, «in a sector particularly subject to criminal infiltration, potentially recipient of the laundering of proceeds derived from illicit activities». Any «jurisdictional intervention» on subjective situations related to game collection, involving the Agency and its concessionaires, would in fact have «reverberations at national level» and «judgments of different tenor for superimposable events can cause significant alterations to the national public gaming market, leading to disparities between concessionaires managing the same game». By way of example, reference is made to the «massive litigation initiated by bingo game concessionaires against the imposition of fees for game management during extensions».

The legislative choice adopted with the provision in question would allow for the «necessary overall view» by the Administration on the management of games at the national level, and would be consistent with the attribution of the relevant administrative competence to an Agency that has the character of a central administration and is articulated throughout the territory with offices of supra-regional competence, whose acts have national significance. Confirmation of the need for such an overall view would be found in the provisions contained in Article 10 of Decree-Law No. 16 of 2012, as converted (whose paragraph 9-ter, as specified, inserted the challenged provision into the Code of Administrative Procedure), which the legislator also introduced to conform our legal system to the principles established by the Court of Justice of the European Union with the judgment of 16 February 2012, in joined cases C-72/10 and C-77/10, Costa and Cifone, regarding tenders for concessions for the collection of bets on sports events, including horse racing, and non-sports events.

The *ratio* for the concentration of jurisdiction in the TAR Lazio, in conclusion, would be «the marked specialty, the particular national relevance, and the administrative centralization in the management of the gaming sector for the purpose of safeguarding the continuity of tax revenues derived from public gaming and the need for homogenization of administrative action in application of legal provisions that balance, throughout the national territory, the right to private economic initiative and fiscal interest with the right to health». From this also derives the «necessity for a tendency towards uniformity of administrative jurisprudence from the first instance rulings and the existence of needs for unity, coordination, and direction».

Furthermore, the question raised with reference to Article 25 of the Constitution would also not be well-founded, given that the principle of the natural judge pre-established by law, according to this Court's jurisprudence, far from being anchored to a pre-normative fact, such as the geographical proximity of the judge to the case to be judged, would aim to ensure the identification of the competent judge on the basis of predetermined criteria, in a general manner, by law.

The complaint of violation of Article 111 of the Constitution, with reference to the «right of appeal», would then be «manifestly unfounded», given that the challenged functional jurisdiction of the TAR Lazio would not create any impediment to such right.

As for the alleged violation of Article 125 of the Constitution, the State Attorney's Office recalls this Court's jurisprudence according to which the attribution of functional jurisdiction to the TAR Lazio is compatible with that parameter provided that the fundamental structure of the administrative justice system is not altered and provided that (as would be the case here) there are sufficient reasons to justify the derogation from the ordinary criteria for the allocation of jurisdiction among the first instance bodies.

Finally, with regard to the complaint of excessive legislative delegation, the State Attorney's Office likewise argues for its lack of foundation by recalling, in this regard, this Court's jurisprudence according to which Article 76 of the Constitution concerns exclusively the relationship between the delegating law and the delegated law. In the present case – it is noted – the challenged provision was introduced by a law subsequent to the Code of Administrative Procedure, not linked by any constraint with the 2009 delegation law.

3.– In the proceedings before this Court, the two appellant parties of the court a quo, Palabingo srl and Cirsa Italia spa, have constituted themselves, with a collective act, filed on 2 September 2024.

Having reconstructed the factual framework in which the dispute brought before the TAR Piedmont arose, they state that they share the doubts argued by the referring court regarding the constitutional legitimacy of the provision that has concentrated, at the TAR Lazio, jurisdiction over all measures issued by the Autonomous State Monopolies Administration regarding public games with monetary prizes.

In emphasizing the exclusively local nature of the dispute brought by them, relating to «measures issued not by a central authority, but by a peripheral authority», having effects «limited to the territory of Alessandria and Serravalle only», the parties present arguments that reiterate the complaints raised by the referring court. In particular, regarding the alleged violation of Articles 3, 25 and 125 of the Constitution, it is recalled that the expression used by the challenged provision («measures issued by the Autonomous State Monopolies Administration regarding public games with monetary prizes») is such as to include not only administrative acts issued by the central authority, having as their object «the governance of public games at national level», but also, and largely, «technical-operational activities mostly consisting in the verification of the administrative requirements (subjective or objective) necessary to operate in this sensitive sector, handled by the territorial branches of the Agency».

Within this framework, it is also pointed out that the aforementioned Agency «possesses a particularly complex multi-level structure» which includes a central general directorate (responsible for governing public gaming matters through the adoption of normative acts, directives, opinions and general circulars, in addition to the task of controlling the collection of individual types of games), «twenty regional territorial directorates as well as about a hundred provincial territorial offices» (to which, instead, would pertain inspection, control and assessment powers with a purely local dimension).

The assignment of the review of the legitimacy of such measures exclusively to the jurisdiction of the TAR Lazio could not be justified by a principle of "extraordinariness”, nor by the need to deal with an emergency situation. Neither could an interest in the uniformity of administrative jurisprudence from the first instance be invoked, as such uniformity is not guaranteed by the current allocation of jurisdictions, also considering that the probability of conflicting decisions among the various judicial offices located throughout the territory would not be «higher than what happens in the generality of disputes assigned to the jurisdiction of the territorial administrative judges». Moreover, the character of uniformity would in any case be guaranteed by the decisions of the Council of State, and, in particular, of the Plenary Session.

Finally, as for the complaint regarding the violation of Article 76 of the Constitution, it is observed that among the principles and guiding criteria established by Law No. 69 of 2009, no element can be found that would enable the delegated legislator to reform the institution of jurisdiction.

4.– The counter-interested party Gamenet spa, already a party in the main proceedings, has also constituted itself in the proceedings, concluding for the inadmissibility and, on the merits, for the groundlessness of the questions.

Firstly, it assumes that the referral order lacks reasoning on the non-manifest groundlessness. It would not illustrate the reasons for the alleged violation of the invoked constitutional legitimacy parameters, merely referring to them «all together and without clarifying under which aspects and for what reasons there would be a conflict with each of these constitutional norms». Hence the inadmissibility of the questions raised.

On the merits, these would in any case be unfounded, in light of the «need for a unified and coordinated administration» in the matter falling within the competence of the Italian Customs and Monopolies Agency.

The party compares the present case with those that were the subject of both this Court's Judgment No. 159 of 2014 (which declared unfounded the questions concerning the attribution, to the Rome seat of the TAR Lazio, of mandatory functional jurisdiction over disputes relating to the measures of the National Agency for the Administration and Destination of Assets Seized and Confiscated from Organized Crime, pursuant to Article 135, paragraph 1, letter p, of the Code of Administrative Procedure), and Judgment No. 174 of 2014, which followed shortly after (which, instead, as already reported, upheld the question concerning the second part of letter q-quater of Article 135 of the Code of Administrative Procedure, relating to the jurisdiction of the TAR Lazio over measures issued by the police authority regarding public games).

N

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the question concerning the constitutional legitimacy of Article 135, paragraph 1, letter q-quater), first part, of Annex 1 (Code of Administrative Procedure) to Legislative Decree No. 104 of 2 July 2010 (Implementation of Article 44 of Law No. 69 of 18 June 2009, containing delegation to the government for the reordering of administrative procedure), raised, with reference to Article 111 of the Constitution, by the Regional Administrative Court for Piedmont, First Section, with the order indicated in the heading;

2) declares unfounded the questions concerning the constitutional legitimacy of Article 135, paragraph 1, letter q-quater), first part, of the Code of Administrative Procedure, raised, with reference to Articles 3, 25, first paragraph, 76 and 125 of the Constitution, by the Regional Administrative Court for Piedmont, First Section, with the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 26 November 2024.

Signed:

Giovanni AMOROSO, President

Maria Rosaria SAN GIORGIO, Reporting Justice

Roberto MILANA, Director of the Registry

Filed with the Registry on 24 January 2025