JUDGMENT NO. 2
YEAR 2024
Commentary on the decision of
Giovanni Colocrese
in the Studies 2024/III of this Journal, 1032
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President:
Augusto Antonio BARBERA;
Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 5, paragraph 2, of Law No. 27 of the Lazio Region of 9 July 1998 (Regional regulation of waste management), initiated by the Regional Administrative Tribunal for Lazio, Second Section, in the proceedings between Game.Fer srl and the Metropolitan City of Rome Capital and others, by order of 9 February 2023, registered under No. 70 of the Register of Orders 2023 and published in the Official Gazette of the Republic No. 22, First Special Series, of the year 2023.
Having seen the instrument of constitution of Game.Fer srl;
Having heard at the public hearing of 5 December 2023 the Reporting Judge Maria Rosaria San Giorgio;
Resolved in the council chamber of 6 December 2023.
Facts of the Case
1.– By order registered under No. 70 reg. ord. 2023, the Regional Administrative Tribunal for Lazio, Second Section, raised, with reference to Article 117, second paragraph, letter s), of the Constitution, a question of constitutional legitimacy of Article 5, paragraph 2, of Law No. 27 of the Lazio Region of 9 July 1998 (Regional regulation of waste management).
The challenged provision delegates to the provinces certain administrative functions in the field of waste management and disposal, and in particular: the approval of projects for waste management facilities, with the exception of certain types (letter a); the authorisation for the construction of facilities and the variations referred to in letter a) (letter b); the authorisation for the exercise of waste disposal and recovery activities, with certain exceptions, and for the collection, transport, storage, conditioning and use of sewage sludge in agriculture, and for the collection and disposal of used oils (letter c); the authorisations relating to transfer stations (letter d).
1.1.– On the facts, the referring court reports that it is called upon to decide on an appeal lodged by Game.Fer srl, a company that owns a metal waste scrapping facility located in Rome. The company challenged the act by which the Metropolitan City of Rome Capital, with reference to the said facility, had refused to issue the authorisation provided for by Article 208 of Legislative Decree No. 152 of 3 April 2006 (Environmental regulations).
Among the grounds for the appeal, the appellant argued the lack of competence of the Metropolitan City, requesting the Court to raise a question of constitutional legitimacy of Article 5, paragraph 2, of Regional Law No. 27 of 1998 of Lazio, for conflict with Article 117, second paragraph, letter s), of the Constitution, in relation to Articles 196, paragraph 1, letters d) and e), and 208 of Legislative Decree No. 152 of 2006. The referring court reports that the plea of constitutional illegitimacy, raised by the party, stems from the orders of the same Regional Administrative Tribunal for Lazio, issued in 2020 and 2021, which had referred to this Court a similar question of constitutional legitimacy, concerning Article 6, paragraph 2, of the same Regional Law No. 27 of 1998 (regarding authorisation for waste disposal and recovery plants from the demolition of motor vehicles), decided, pending the proceedings a quo, with judgment No. 180 of 2020 (recte: No. 189 of 2021).
1.2.– The referring judge states that he shares the doubts of constitutional legitimacy raised by the appellant.
On the issue of relevance, the question would have a priority character over all the other complaints raised in the appeal, regardless of their gradation. This, «by reason of the type of illegitimacy underlying it», pertaining to the competence of the Metropolitan City. On this point, the judge a quo refers to the judgment of the Council of State, plenary session, 27 April 2015, No. 5, according to which the appellant's power to grade the grounds of appeal encounters a limit in the defect of incompetence, which is in any case prejudicial.
The antinomy between the regional rule (which attributes the functions de quibus to the provinces) and national provisions (which, on the other hand, attribute them to the regions) could not be resolved with the ordinary criterion according to which lex posterior derogat priori, given that the first, although prior to Constitutional Law No. 3 of 18 October 2001 (Amendments to Title V of Part Two of the Constitution), was subsequently amended by the same regional legislator with Law No. 23 of the Lazio Region of 5 December 2006, containing «Amendments to Regional Law No. 27 of 9 July 1998 (Regional regulation of waste management) and subsequent amendments». In this way, Regional Law No. 27 of 1998 would have been «validated» also in the light of the new arrangement of competences that had been defined shortly before, with the environmental code, by the national legislator in the exercise of the exclusive power attributed to it by Article 117, second paragraph, letter s), of the Constitution.
Precisely by virtue of Regional Law No. 23 of 2006, the effectiveness of Article 5, paragraph 2, of Regional Law No. 27 of 1998, even though not directly affected by the said regulatory intervention, would be confirmed, in the opinion of the referring Court, with its consequent applicability to the authorisation procedures subsequent to the entry into force of the environmental code.
Nor would it be possible to adhere to the request of the appellant, who, in the context of the precautionary request, and on the basis of the judgment of this Court No. 189 of 2021, has insisted on the acceptance of the appeal by way of a simplified judgment pursuant to Article 60 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, delegating the government for the reorganisation of the administrative procedure). According to the Regional Administrative Tribunal, a case of «consequential invalidity», pursuant to Article 27 of Law No. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court), is not appreciable here; rather, a rule is relevant that, not being in a relationship of complementarity and functional subordination with respect to the one already declared constitutionally illegitimate, «appears capable of autonomous application, and must therefore be the subject of an autonomous judgment of constitutional legitimacy». Moreover, although replicating the same model of distribution of competences already censured by this Court, it establishes a delegation in favour of the provinces «that is configured as autonomous and independent with respect to the one provided for by the same regional legislator in favour of the Municipalities».
In conclusion, the challenged regional rule could not be «subject to direct disapplication» by the referring court, but should be reviewed by this Court.
1.3.– Furthermore, the question would be endowed with the requirement of non-manifest groundlessness.
From the regulatory framework of reference, the referring judge infers, first of all, that the provinces do not hold, in environmental matters, their own administrative functions. In this context, the model of distribution of decision-making competences implemented by the challenged provision would violate the reservation of exclusive state legislative competence in matters of environmental and ecosystem protection, as it is in contrast with Article 208 of the Environmental Code, which, with regard to waste disposal and recovery facilities, assigns to the regions the task of approving their design and authorising their construction and management. Otherwise, the purpose of the national legislator to guarantee «the regularity of the commissioning of the aforementioned facilities through the setting of uniform levels of protection» would be prejudiced (judgment of this Court No. 249 of 2009 is cited). The environmental code, by reserving to the State the exclusive legislative competence in the field of environmental and ecosystem protection (in which – the referring court specifies – the regulation of waste also falls, «according to constant constitutional jurisprudence»), would therefore have provided «a clear and unequivocal indication of the only legislative source entitled to operate the distribution of the related administrative functions among the various territorial levels».
Therefore, the allocation of functions at a different administrative level could not be considered permissible, since this is a «limit insusceptible of derogation» by the regions.
The incompatibility of the arrangement outlined by the provision in question with respect to the framework of competences provided for by the environmental code would emerge from the judgment of this Court No. 189 of 2021, which – in expressing considerations that can also be extended to the case in question – declared the constitutional illegitimacy, as of 29 April 2006, of Article 6, paragraph 2, letters b) and c), the latter limited to the reference to letter b), of Regional Law No. 27 of 1998 of Lazio. In the same sense, moreover, the older constitutional jurisprudence would also lead (judgments No. 187 of 2011 and No. 159 of 2012 are mentioned).
Finally, the referring court notes that other regions, in order to comply with the guidance of this Court, have redefined the framework of administrative competences in the field of waste management, «reallocating to the Region the administrative functions that the State has attributed to it without the possibility of delegation». Law No. 61 of the Tuscany Region of 28 October 2014 (Rules for the programming and exercise of administrative functions in the field of waste management. Amendments to Regional Law 25/1998 and Regional Law 10/2010) is cited.
2.– In the proceedings concerning constitutional legitimacy, the Lazio Region did not appear.
3.– On the other hand, Game.Fer srl, the appellant in the proceedings a quo, appeared, concluding for the acceptance of the question.
The party recalls the long litigation that, for several years, has seen it involved, in various capacities, with the various territorial and local administrations. Holding since 1994 «provisional authorisations always renewed», since 2018 it has been systematically denied the renewal of the title necessary to continue to exercise its activity. Several pronouncements of the Regional Administrative Tribunal for Lazio, over the last few years, have recognised the merits of its claims, initially excluding the competence of the Municipality in favour of the Metropolitan City (judgment 22 October 2018, No. 10222), then annulling the denial of renewal of the provisional authorisation (judgment 7 June 2021, No. 6791), then even affirming the competence of the Region without raising a question of constitutional legitimacy and also ending up pronouncing ultra petita with respect to the reasons given (judgment 7 September 2022, No. 11590). The proceedings a quo constitute, in this overall framework, a further stage in the long-standing dispute, this time concerning the issuing of the single authorisation pursuant to Article 208 of the Environmental Code.
In this context – the party points out – «the company has not been able to obtain authorisations for the continuation of the activity covered by previous provisional authorisations since 2018».
In adhering to the reasons given in the referral order, and in referring to extensive excerpts from judgment No. 189 of 2021 of this Court, the party remarks the «need to have a certain regulatory framework that allows the definition of the judgment and the overcoming of a situation of impasse that has been ongoing for over 5 years, with obvious negative consequences for the present submitting company», which, in the meantime, would risk «the definitive closure of the business activity».
Findings of Law
1.– The Regional Administrative Tribunal for Lazio doubts the constitutional legitimacy of Article 5, paragraph 2, of Regional Law No. 27 of 1998 of Lazio, which delegates to the provinces certain administrative functions in the field of waste management.
This concerns, in particular: a) the approval of projects for waste management facilities, with the exception of certain types that are referred to the competence of the Region or the municipalities, as well as the approval of projects for substantial variations during operation; b) the authorisation for the construction of facilities and the variations referred to in the previous letter; c) the authorisation for the exercise of waste disposal and recovery activities, subject to certain exceptions, as well as for the activities of collection, transport, storage, conditioning and use of sewage sludge in agriculture, as referred to in Legislative Decree No. 99 of 27 January 1992 (Implementation of Directive No. 86/278/EEC concerning the protection of the environment, in particular of the soil, in the use of sewage sludge in agriculture), as well as for the collection and disposal of used oils referred to in Legislative Decree No. 95 of 27 January 1992 (Implementation of Directives No. 75/439/EEC and No. 87/101/EEC relating to the disposal of used oils); d) authorisations relating to transfer stations.
The referring court is vested with the cognizance of a dispute concerning the denial of a single authorisation, pursuant to Article 208 of Legislative Decree No. 152 of 2006, for a waste disposal and recovery facility, adopted by the Metropolitan City of Rome Capital on the basis of the aforementioned provisions of Article 5, paragraph 2, of Regional Law No. 27 of 1998 of Lazio.
According to the judge a quo, the challenged regional provision, by introducing a model of distribution of decision-making competences that does not comply with that provided for by the environmental code, would violate the minimum levels of environmental protection established by the national legislator, as far as the management of waste is concerned, in the exercise of its exclusive power pursuant to Article 117, second paragraph, letter s), of the Constitution. The judgment of this Court No. 189 of 2021 is cited in support of this assumption, which, in a similar case, declared the constitutional illegitimacy of another rule, Article 6, paragraph 2, letters b) and, partially, c), of the same regional law, also containing a delegation (in that case, in favour of the municipalities) of administrative functions that the state law, through the provisions of the Environmental Code, entrusts to the regions.
2.– Preliminarily, it is necessary to delimit the present thema decidendum to the sole provisions of Article 5, paragraph 2, of Regional Law No. 27 of 1998 of Lazio that are effectively related to the subject matter of the main proceedings, pending before the Regional Administrative Tribunal, as also considered by this Court with regard to the case that was the subject of the aforementioned judgment No. 189 of 2021.
These proceedings concern only the administrative activities related to the authorisation for the construction of a waste disposal and recovery facility, including, as such, both the approval of the project of the facility and its construction, and the authorisation for the exercise of the consequent waste disposal and recovery operations; all aspects, now included in the single authorisation act referred to in Article 208 of the Environmental Code. Therefore, within the scope of the rules laid down by Article 5, paragraph 2, of Regional Law No. 27 of 1998 of Lazio, only the provisions of letters a), b) and c) are relevant in the present proceedings, the latter limited to the delegation, in favour of the provinces, of the administrative functions concerning the authorisation for the exercise of waste disposal and recovery activities.
The remaining administrative functions, identified by the remaining part of letter c) (authorisations for the exercise of the activity of collection, transport, storage, conditioning and use of sewage sludge in agriculture; as well as for the activity of collection and disposal of used oils), and by letter d) (authorisations relating to transfer stations), are not affected by the events of the proceedings a quo and, therefore, must not be subject to application by the referring judge.
3.– On the merits, the question is well-founded.
The principles affirmed by this Court in the aforementioned judgment No. 189 of 2021, and reaffirmed in judgment No. 160 of 2023, should be recalled here.
3.1.– The general rule for the division of competences, laid down by the state legislator with Article 196, paragraph 1, letters d) and e), of the Environmental Code, assigns to the regions the administrative functions in the field of waste management, with regard both to the approval of projects for the construction of new facilities, including authorisations for modifications to existing ones, and to the acts of consent necessary for the exercise of waste disposal and recovery operations, including hazardous waste. Article 208 of the Environmental Code also confirms the regional competence for the issuance of the single authorisation, an act that encompasses within itself, today, all segments of the administrative activity pertaining to the construction and commissioning of new facilities.
This allocative choice was made by the state legislator in the exercise of its exclusive competence in matters of environmental and ecosystem protection, as provided for in Article 117, second paragraph, letter s), of the Constitution, a matter to which the constant jurisprudence of this Court ascribes the regulation of waste management (among many, judgments No. 50 of 2023, No. 222 of 2022, No. 86 of 2021 and No. 227 of 2020).
This exclusive power implies that only the national legislator is competent to define the organisation of the corresponding administrative functions, also through the allocation of competences to bodies other than municipalities – to which they must be considered generally attributed according to the criterion expressed by Article 118 of the Constitution – whenever the need for the unitary exercise of the function transcends the relevant territorial scope of government (judgment No. 189 of 2021).
It follows that, in the system outlined by the constitutional reform of 2001, which rewrote Title V of Part II of the Constitution, the administrative functions attributable to the matters referred to in Article 117, second paragraph, of the Constitution – which, on the basis of an assessment guided by the principles of subsidiarity, differentiation and adequacy, have been conferred by the State to the region – cannot be reallocated by the latter to another infra-regional body. Otherwise, there would be an amendment, by means of a regional legislative act, of the arrangement irrevocably established, on the basis of an assessment of appropriateness with respect to the dimension of the interests involved, by the national law competent for the matter, such as, in the context in question, the environmental code (judgment No. 189 of 2021).
3.2.– The exclusive state legislative power ex Article 117, second paragraph, letter s), of the Constitution responds, moreover, to unavoidable needs for the protection of a unitary asset of primary value, which is the environment (judgments No. 246 of 2017 and No. 641 of 1987), which would be frustrated if the region were recognised the faculty to indiscriminately entrust its care to a territorial body of smaller dimensions, in derogation of the assessment of adequacy carried out by the state legislator with the identification of the regional level (judgments No. 60 of 2023 and No. 189 of 2021).
3.3.– With the provision under review, the Lazio Region, in delegating to the provinces certain functions pertaining to waste management, which were conferred on it by national law, has violated the parameter evoked, introducing a derogation to the order of competences established by state law pursuant to Article 117, second paragraph, letter s), of the Constitution, in the absence of a provision of the environmental code that enables the described reallocation.
3.4.– As underlined by this Court in the aforementioned judgment No. 189 of 2021, the lack of reproduction, in the text of Article 118 of the Constitution as amended by Constitutional Law No. 3 of 2001, of the reference, present in the original wording, to delegation as an instrument of “normal” exercise of regional administrative functions leads, in fact, to the conclusion that this institute is no longer configurable as an ordinary instrument of allocation of competences by the regional legislator, in the absence of a specific enabling by the source competent for this purpose.
In the previous regulatory framework, in which the division of competences between the State and the regions, based on the principle of parallelism between legislative and administrative functions, was assisted by a presumption of adequacy, the delegation, involving the division between ownership and exercise of the function, responded to an essential need for flexibility, so that it was envisaged that, if the body identified by the Constitution had proved inadequate with respect to the concrete needs of the reference community, the performance of administrative functions would have been delegated to the body considered more suitable to guarantee its satisfaction.
By contrast, «in the model outlined by the constitutional reform of 2001, in line with the principle of subsidiarity, the assessment of adequacy informs the identification, by the state or regional legislator, of the body at which to allocate, in terms of ownership, the competence. In fact, starting from the preference given to the Municipalities, to which the administrative functions are generally attributed, the Constitution delegates to the state and regional legislator, within the scope of their respective competences, the faculty of different allocation of these functions, to ensure their unitary exercise, on the basis of the principles of subsidiarity, differentiation and adequacy (Article 118, first paragraph, of the Constitution)» (again judgment No. 189 of 2021).
4.– For the reasons explained, Article 5, paragraph 2, of Regional Law No. 27 of 1998 of Lazio must be declared constitutionally illegitimate, with reference to letters a), b) and c), the latter only in the part in which it establishes the delegation, in favour of the provinces, of the administrative function concerning the authorisation for the exercise of waste disposal and recovery activities. Therefore, the constitutional illegitimacy of letter c) must be declared, limited to the words «of waste disposal and recovery activities, without prejudice to the provisions of Article 4, paragraph 1, letters g) and h), of Article 6, paragraph 2, letter c) and of Article 20, as well as».
5.– As already noted in judgment No. 189 of 2021, it must also be observed in this case that the conflict of the challenged provision with the parameter of Article 117, second paragraph, letter s), of the Constitution occurred after the adoption of the same provision. The discrepancy with respect to the arrangement of competences, as outlined by Constitutional Law No. 3 of 2001, therefore occurred only at the time of the entry into force of the intervening rules of the environmental code which, in accordance with the new constitutional framework, have redesigned, with regard to waste management, the distribution of administrative functions among the various levels of government.
The constitutional illegitimacy of the challenged rules therefore runs from 29 April 2006, the date of entry into force of Articles 196 and 208 of the Environmental Code.
For These Reasons
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy, as of 29 April 2006, of Article 5, paragraph 2, letters a), b) and c), the latter limited to the words «of waste disposal and recovery activities, without prejudice to the provisions of Article 4, paragraph 1, letters g) and h), of Article 6, paragraph 2, letter c) and of Article 20, as well as», of Law No. 27 of the Lazio Region of 9 July 1998 (Regional regulation of waste management).
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 6 December 2023.
Signed:
Augusto Antonio BARBERA, President
Maria Rosaria SAN GIORGIO, Reporting Judge
Roberto MILANA, Director of the Registry
Filed in the Registry on 4 January 2024