JUDGMENT No. 3
YEAR 2024
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, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has delivered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 6, paragraph 10, of Law No. 240 of December 30, 2010 (Provisions on the organisation of universities, academic staff and recruitment, as well as delegation to the Government to incentivise the quality and efficiency of the university system), initiated by the Regional Administrative Court of Trentino-Alto Adige, Trento, in the proceedings between Paolo Carta and the University of Trento, with order of March 20, 2023, registered under No. 64 of the register of orders 2023 and published in the Official Gazette of the Republic No. 20, first special series, of the year 2023.
Having seen the intervention act of the President of the Council of Ministers;
Heard in the council chamber of December 6, 2023, Judge Rapporteur Filippo Patroni Griffi;
Resolved in the council chamber of December 6, 2023.
Considered in fact
1.– By order of March 20, 2023, registered under No. 64 reg. ord. 2023, the Regional Administrative Court of Trentino-Alto Adige, Trento, raised, with reference to Article 3 of the Constitution, in conjunction with Article 33 of the Constitution, the question of constitutional legitimacy of Article 6, paragraph 10, of Law No. 240 of December 30, 2010 (Provisions on the organisation of universities, academic staff and recruitment, as well as delegation to the Government to incentivise the quality and efficiency of the university system), insofar as it does not allow professors of state universities to hold the position of independent director in companies with profit-making purposes.
1.1.– The judge a quo states that he was seized of the appeal lodged by Paolo Carta, a full-time full professor at the Department of Law of the University of Trento, for the annulment of the provision of the rector of the university of July 1, 2022, denying authorisation to carry out the extra-institutional position of independent director, without managerial functions or powers, of the Board of Directors of the life insurance and reinsurance company ITAS Vita spa (hereinafter: Itas Vita), part of the ITAS mutual group (ITAS Mutua), as well as for the annulment of Articles 2 and 8 of the regulation for the authorisation to carry out extra-institutional positions of teaching and research staff, referred to in the decree of the rector of the same university of March 31, 2021, No. 268, if interpreted as preventing teaching staff from performing duties as independent directors in companies for profit. The appeal – the referring judge continues – was based on three grounds: 1) violation and misapplication of Article 8, paragraph 1, letter c), of the aforementioned regulation, for having misrepresented the real nature of Itas Vita, to be considered only formally a capital company, as such having a profit-making purpose, but in substance to be classified as a legal person of a mutual nature and, therefore, without a profit-making purpose; 2) violation of law and misrepresentation of the facts, for not having adequately considered the characteristics of the role of the independent director, without executive and managerial purposes; 3) violation of law due to lack of reasoning and violation of the prohibition of aggravation of the procedure, for having acquired the opinion of the District State Attorney's Office and having adhered to it uncritically in the sense of rejecting the authorisation.
According to the judge a quo, the challenged Article 6, paragraph 10, of Law No. 240 of 2010, by preventing professors of state universities from holding the position of independent director in companies with profit-making purposes, would create an unreasonable disparity of treatment with the teaching staff in non-state universities, who would instead be allowed to hold such positions.
The referring TRGA clarifies that no interpretation in accordance with the Constitution would be possible, as the desired adapting interpretation of the challenged provision in light of Article 3 of the Constitution would clash with the principle of exclusivity of the public employment relationship (ex Article 98, first paragraph, of the Constitution) and with the principle of proper conduct and impartiality of the public administration (ex Article 97 of the Constitution), thus implying a substitution of the judge in the discretionary assessment of the legislator.
On the point of relevance, the referring judge assumes the direct and current impact of the challenged provision in the definition of the judgment. This is because the ascertainment of its constitutional illegitimacy would result in the illegitimacy of Articles 2 and 8 of the University of Trento's regulation on the authorisation to carry out extra-institutional positions and, ultimately, of the challenged denial opposed by the rector.
The judge a quo also states the impossibility of accepting the other grounds of appeal.
In particular, with reference to the first ground, he points out that it would not be possible to reclassify Itas Vita as a company with mutual purpose – as proposed by the appellant, on the assumption of the participation of ITAS Mutua as the sole member of Itas Vita – both because no legislative provision would allow such reclassification, and because the statute itself of Itas Vita would expressly provide for the possibility of distributing dividends. With reference to the second ground, he argues the overwhelming obstructive relevance of the profit-making purpose pursued by the legal person to whom the position belongs, thus not taking into account the non-executive nature of the position itself. With reference to the third ground, finally, he excludes the configurability of the alleged aggravation of the procedure, not believing that the university has arranged for superfluous investigative means.
On the point of non-manifest lack of merit, the referring judge censures the disparity of treatment between professors of state universities, who would be precluded, pursuant to the aforementioned Article 6, paragraph 10, of Law No. 240 of 2010, from taking positions in companies with profit-making purposes, and professors of non-state universities, who would instead be entitled to carry them out.
This disparity of treatment would violate the principle of reasonableness under Article 3 of the Constitution, in conjunction with the freedom of teaching under Article 33 of the Constitution, as equal situations would be treated differently, even at the expense of the freedom of teaching, thus resulting in "unreasonable and contradictory [the] discrimination arbitrarily determined between professors".
2.– The President of the Council of Ministers intervened in the proceedings, with an act filed on June 6, 2023, represented and defended by the State Attorney General's Office, asking that the question be declared inadmissible or unfounded.
2.1.– The inadmissibility of the question is first objected on the grounds that the referring judge would not have made an adequate interpretative effort of the challenged rule in accordance with the Constitution.
On the merits, the intervening party states that the perimeters of the extra-institutional positions accessible to full-time university professors could not be considered harmful to Articles 3 and 33 of the Constitution, as, on the one hand, it would be balanced by the better remuneration reserved for them and, on the other hand, it would be imposed by the qualification of public employees, whose profiles of impartiality and ethical depth would be functional to the pursuit of the principles of Articles 97 and 98 of the Constitution.
Having stated this, it is affirmed that Article 6 of Law No. 240 of 2010, entitled "[l]egal status of university professors and researchers" would apply "with reference to the generality of university professors, whether they are employed at state universities or at non-state universities legally recognised or entitled to issue legally valid qualifications".
Law No. 240 of 2010 would, in fact, dictate a legal regime valid for all university professors, both state and non-state, also because there would be a legal reservation on the legal regime of professors, expressly excluded from the autonomy of non-state university institutions, by virtue of the legislation that has followed over time, and in particular Royal Decree No. 1592 of August 31, 1933 (Approval of the consolidated text of the laws on higher education), Law No. 168 of May 9, 1989 (Establishment of the Ministry of University and Scientific and Technological Research), Law No. 243 of July 2, 1991 (Legally recognised non-state universities), as well as Law No. 240 of 2010 under examination.
In light of the common legal regime of state and non-state university professors, the lack of merit of the question is therefore supported.
From another point of view, the Attorney General's Office then argues that the characteristics of the role of independent director and the public nature of the interests underlying the regulation of the insurance sector would allow the activity of independent director within the boards of directors of insurance companies to be considered included, within the scope of activities that can be freely carried out by university professors on a fixed-term basis and, with prior authorisation of the rector, by full-time professors, provided that there are no situations of conflict of interest with the university to which they belong, and the performance of the position does not undermine the teaching, scientific and managerial activities entrusted to them.
3.– On August 29, 2023, the request presented by the appellant in the proceedings a quo for the declaration of cessation of the matter of dispute or of supervening lack of interest was filed by the referring judge, in light of the approval by the rector of the University of Trento (on July 12, 2023) of a new (same) request for authorisation to carry out the aforementioned extra-institutional position, forwarded following the entry into force of Decree-Law No. 44 of April 22, 2023 (Urgent provisions for strengthening the administrative capacity of public administrations), converted, with amendments, into Law No. 74 of June 21, 2023.
Considered in law
1.– With the order indicated in the epigraph, the Regional Administrative Court of Trentino-Alto Adige, Trento, raised, with reference to Article 3 of the Constitution, in conjunction with Article 33 of the Constitution, the question of the constitutional legitimacy of Article 6, paragraph 10, of Law No. 240 of 2010, insofar as it does not allow professors of state universities to hold the position of independent director in companies with profit-making purposes.
2.– Law No. 240 of 2010 intervened on the regulation on the organisation of universities as well as the legal status and recruitment of academic staff and delegated the Government to intervene to incentivise the quality and efficiency of the university system.
With particular reference to the incompatibility regimes provided for university professors, it distinguished, respectively, between activities that are totally incompatible, activities that can be freely carried out, and activities allowed with the prior authorisation of the rector. More specifically, it made the following distinction:
1) extra-institutional activities incompatible with a university career: "the exercise of commerce and industry, without prejudice to the possibility of establishing companies with the characteristics of spin-offs or university start-ups, pursuant to Articles 2 and 3 of Legislative Decree No. 297 of July 27, 1999, also assuming formal responsibilities in this context, within the time limits and according to the regulations of the university to which they belong, in compliance with the criteria defined by regulation adopted by decree of the Minister pursuant to Article 17, paragraph 3, of Law No. 400 of August 23, 1988" (Article 6, paragraph 9, first sentence);
2) activities that professors and full-time researchers:
a) cannot carry out: "exercise of freelance activities [...] without prejudice to the provisions of Articles 13, 14 and 15 of Decree of the President of the Republic No. 382 of July 11, 1980, without prejudice to the provisions of the agreements adopted pursuant to paragraph 13 of this article" (Article 6, paragraph 9, second sentence);
b) can freely carry out "also with remuneration" without the need for authorisation: "evaluation and refereeing activities, occasional lectures and seminars, scientific collaboration and consultancy activities, scientific and cultural communication and dissemination activities, as well as publishing and editorial activities" (Article 6, paragraph 10, first sentence);
c) can carry out with the prior authorisation of the rector: "teaching and research functions, as well as institutional and managerial tasks without a subordinate relationship with public and private non-profit entities, provided that there are no situations of conflict of interest with the university to which they belong, provided in any case that the activity does not represent a detriment to the teaching, scientific and managerial activities entrusted to them by the university to which they belong" (Article 6, paragraph 10, second sentence).
On this legislation, the legislator has recently intervened with Decree-Law No. 44 of 2023, as converted, affecting the regulation of external positions of university professors and researchers on a full-time basis.
In particular, with paragraph 2-bis of Article 9 of Decree-Law No. 44 of 2023, as converted, paragraph 10-bis was added to Article 6 of Law No. 240 of 2010, which provides for the possibility for full-time professors and researchers to carry out, "with the prior authorisation of the rector, positions without a subordinate relationship with public or private entities, including for profit, provided that they are carried out independently" and provided that certain specific negative conditions exist (absence of the exercise of individual executive powers, of situations of conflict of interest with the university to which they belong and of detriment to the teaching, scientific and managerial activities entrusted to them by the same).
With the subsequent paragraph 2-ter, then, an authentic interpretation provision was introduced concerning paragraph 10 of Article 6 of Law No. 240 of 2010, according to which "The first sentence of paragraph 10 of Article 6 of Law No. 240 of December 30, 2010, with specific reference to consultancy activities, is interpreted as meaning that full-time professors and researchers are permitted to carry out extra-institutional activities carried out in favour of private individuals or public entities or for reasons of justice, provided that they are provided without a subordinate relationship and in the absence of an organisation of means and persons intended for their performance, without prejudice to the provisions of Article 23-ter of Decree-Law No. 201 of December 6, 2011, converted, with amendments, by Law No. 214 of December 22, 2011".
3.– In light of the regulatory framework briefly reconstructed, the question of constitutional legitimacy raised must therefore be examined.
The referring judge argues the violation of the evoked constitutional parameters – Article 3, in conjunction with Article 33 – insofar as Article 6, paragraph 10, of Law No. 240 of 2010, by not allowing professors of state universities to hold the position of independent director in companies with profit-making purposes, would create an unreasonable disparity of treatment with the teaching staff in non-state universities, who would instead be allowed to hold such positions.
4.– The question is inadmissible.
It should, in fact, be considered that Law No. 240 of 2010 – which lays down "Provisions on the organisation of universities, academic staff and recruitment, as well as delegation to the Government to incentivise the quality and efficiency of the university system" – has as its object the university system as a whole, thus including state and non-state universities. Only specific provisions expressly concern state universities – such as, for example, Article 2, relating to the organisation of the university, Article 11, concerning equalising interventions for state universities, or, again, Article 18, paragraphs 2 and 4, relating to financial aspects – or non-state universities, such as, in particular, Article 12, which regulates, for legally recognised universities (with the exception of telematic universities other than those already included among legally recognised non-state universities, subject to the maintenance of the requirements provided for by law), a new distribution of a quota of state contributions provided for by Law No. 243 of 1991.
In light of this regulatory framework, the interpretative premise underlying the doubts of constitutional legitimacy – that is, the non-application of the challenged provision to professors of non-state universities , who would be prejudiced by the alleged disparity of treatment [italicised passage deleted with the corrective order No. 101 of 2024] – would have required a more adequate reasoning, the judge a quo having to explain why he believed that the provision under examination, which does not make any reference to a given type of university, unlike others contained in the same Law No. 240 of 2010, was applicable only to professors of state universities, contributing to outlining the legal status and the regime of incompatibilities only for the latter.
5.– This inadequate reasoning in terms of non-manifest lack of merit therefore determines the inadmissibility of the question of constitutional legitimacy raised, in line with the constant case law of this Court according to which the referral order must contain a sufficient illustration of the reasons why the challenged legislation would integrate the violation of the constitutional parameter evoked (ex plurimis, judgments No. 186 and No. 108 of 2023).
For These Reasons
THE CONSTITUTIONAL COURT
declares inadmissible the question of constitutional legitimacy of Article 6, paragraph 10, of Law No. 240 of December 30, 2010 (Provisions on the organisation of universities, academic staff and recruitment, as well as delegation to the Government to incentivise the quality and efficiency of the university system), raised, with reference to Article 3 of the Constitution, in conjunction with Article 33 of the Constitution, by the Regional Administrative Court of Trentino-Alto Adige, Trento, with the order indicated in the epigraph.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on December 6, 2023.
Signed:
Augusto Antonio BARBERA, President
Filippo PATRONI GRIFFI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on January 8, 2024