JUDGMENT NO. 8

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, Maria Rosaria SAN GIORGIO, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 8, paragraph 3, of the Law of the Puglia Region of 3 April 1995, No. 14 (Methods of Implementation of Law No. 21 of 15 January 1992, "Framework Law for the Transportation of Persons by Non-Scheduled Public Motor Vehicle Services”), initiated by the Council of State, Fifth Section, in the proceedings between G. S. and the Chamber of Commerce, Industry, Crafts and Agriculture of Taranto, by order of 27 March 2023, registered under No. 78 of the 2023 Order Register and published in the Official Gazette of the Republic No. 24, First Special Series, of 2023.

Having regard to the instrument of constitution of G. S.;

Having heard the Judge Rapporteur Luca Antonini at the public hearing of 5 December 2023;

Having heard the lawyer Giorgia Calella for G. S.;

Having deliberated in the Chamber of Council on 5 December 2023.

Statement of Facts

1. – By order of 27 March 2023 (Order Reg. No. 78 of 2023), the Council of State, Fifth Section, raised – with reference to Articles 3, 41 and 117, third paragraph, of the Constitution – questions of constitutional legitimacy of Article 8, paragraph 3, of the Law of the Puglia Region of 3 April 1995, No. 14 (Methods of Implementation of Law No. 21 of 15 January 1992, "Framework Law for the Transportation of Persons by Non-Scheduled Public Motor Vehicle Services”), insofar as it requires, as a prerequisite for admission to the suitability examination for the exercise of taxi and chauffeur-driven car hire services (NCC), "the absence of pending charges”.

2. – The aforementioned Article 8, in paragraph 1, provides that individuals interested in taking the aforementioned examination must submit an application to the provincial commission specifically established at the Chambers of Commerce, Industry, Crafts and Agriculture (CCIAA) of the Puglia Region.

Therefore, in the challenged paragraph 3, it establishes that such "application, on pain of exclusion, […], must be accompanied by a substitute declaration of a notarial deed attesting”, among other things, "the absence of pending charges”.

3. – The questions arose in the course of the proceedings initiated by G. S. to obtain the annulment of the measure by which the CCIAA of Taranto had annulled ex officio, by way of self-protection, "the passing of the suitability examination” that he had taken for the purpose of subsequent registration in the provincial register of drivers of vehicles and vessels used for non-scheduled public motor vehicle services, since, following subsequent checks, the existence of two pending criminal charges against him emerged.

4. – The referring court is seized of the appeal against the judgment of first instance, which rejected the appeal, considering that the CCIAA had correctly applied the challenged provision, on whose alleged constitutional illegitimacy one of the grounds of appeal is based.

The measure that is the subject of the main proceedings originates, in fact, from the provision contained in the suspected provision, according to which the mere existence of any pending criminal charge would prevent admission to the aforementioned suitability examination.

The questions raised, therefore, would be relevant, since the desired ablative ruling of this Court would eliminate the requirement in question and would lead to the acceptance of the appeal, the outcome of which, on the other hand, would depend solely on the solution of the outlined doubts of constitutional legitimacy, since the other complaints of the appellant are without merit.

5. – As for the non-manifest unfoundedness, the judge *a quo* believes that the suspected provision violates, in the first place, Article 117, third paragraph, of the Constitution, in relation to the matter of "professions”, because it would conflict with the interposed norm referred to in Article 6 of Law No. 21 of 15 January 1992 (Framework Law for the Transportation of Persons by Non-Scheduled Public Motor Vehicle Services).

The latter provision would not, in fact, include the absence of pending charges as a "prerequisite for access to registration in the register of the professional figure in question”, limiting itself, on the one hand, to providing for the need for registration in the register of drivers of vehicles or vessels used for non-scheduled public motor vehicle services established at the CCIAA for the purpose of issuing the license for the exercise of the taxi service and the authorization for the exercise of the NCC service (paragraph 5); on the other hand, to subordinating the aforementioned registration exclusively to the possession of the professional qualification certificate for driving vehicles (paragraph 2) and to passing the examination aimed at verifying the suitability for the exercise of the services in question. However, this verification must be carried out, the referring court stresses, "with particular reference” only to "geographical and toponymic knowledge” (paragraph 3).

Hence the alleged *vulnus*, considering that the discipline in question would be ascribable to the matter of professions and that in this material area, according to the consolidated jurisprudence of this Court (among others, judgments No. 209 of 2020 and No. 98 of 2013 are cited), it would be up to the State to identify, not only the professional figures, but also the related enabling qualifications, without the regions being able to introduce additional requirements, "it being impossible to have”, with reference to the "profession *de qua*, a differentiated discipline”.

5.1. – The judge *a quo* also believes that the challenged regional provision "conflicts with the criterion of reasonableness and proportionality, underlying Article 3 of the Constitution, from various points of view”.

5.1.1 – With respect to the need to ensure the moral reliability of future drivers, the challenged provision, in fact, would not take into consideration, in particular, the seriousness and the "possible reflection on the profession that one intends to practice” of the offenses "that may be included in the provision of ‘pending charges’”, and, moreover, would disregard a "valuation by the […] Commission” responsible for ascertaining the requirements of professional suitability.

The principle of reasonableness would also be compromised because the preclusion in question, being anchored to the mere pendency of the charge, would operate by virtue of the "mere exercise of criminal action by the Public Prosecutor, *ex* Article 60 of the Criminal Procedure Code, in the absence of any examination by the judicial body, even of a summary type – such as that expressed in the context of indictment or in the context of the adoption of a personal precautionary measure – or in the absence of a conviction, even of first instance”.

The suspected provision – the referring court finally highlights – does not even take into account the maximum sentence that can be imposed in relation to the offense that is the subject of the pending charge and, therefore, of the applicability of the accessory penalty of disqualification from public office, while the paragraph following the challenged one conditions the obstructive relevance of convictions precisely on the condition that this accessory penalty has been imposed. This would lead to the paradoxical result that, in the presence of offenses that could not entail it, the preclusion in question would still be triggered by the mere pendency of the charge and would not, instead, operate once the conviction had taken place.

5.2. – The same findings lead the Council of State to conclude that Article 41 of the Constitution is also violated, with reference to the freedom of economic initiative "to which the exercise of professions is correlated”.

In fact, a reasonable and proportionate correlation would not be discernible between the preclusion of the possibility of carrying out the profession *de qua* by virtue of the "mere pendency of a criminal charge, referable to any type of offense”, and the protection needs expressed by the evoked constitutional parameter.

6. – The appellant in the main proceedings has appeared in the proceedings, requesting the acceptance of the questions raised on the basis of arguments similar to those adduced by the judge *a quo* and insisting, in the memorandum filed close to the hearing, on the conclusions already submitted.

7. – The Puglia Region has not intervened in the proceedings.

Points of Law

1. – By order of 27 March 2023 (Order Reg. No. 78 of 2023), the Council of State, Fifth Section, doubts the constitutional legitimacy of Article 8, paragraph 3, of the Law of the Puglia Region No. 14 of 1995, insofar as it requires, as a prerequisite for admission to the suitability examination for the exercise of taxi and chauffeur-driven car hire services, "the absence of pending charges”.

2. – These services, pursuant to Article 1, paragraph 2, of Law No. 21 of 1992, constitute non-scheduled public motor vehicle services and the aforementioned regional law establishes that the application for admission to the aforementioned suitability examination (referred to in Articles 6, paragraph 3, and 8) must be accompanied, on pain of exclusion, by a substitute declaration of a notarial deed attesting, among other things, "the absence of pending charges” (Article 8, paragraph 3, first paragraph).

3. – According to the Council of State, this latter provision would violate, in the first place, Article 117, third paragraph, of the Constitution, in relation to the matter of "professions”, because, given that regional disciplines, according to the constant jurisprudence of this Court, could not conflict with "the principles established by the state framework law”, it would impose a prerequisite for access to the profession, concerning the exercise of taxi and chauffeur-driven car hire services, not contemplated by the interposed norm referred to in Article 6 of Law No. 21 of 1992.

In the second place, the referring court believes that the suspected provision "conflicts with the criterion of reasonableness and proportionality, underlying Article 3 of the Constitution, from various points of view”.

The Apulian law, in fact, would preclude admission to the suitability examination regardless of the seriousness and "possible reflection on the profession that one intends to practice” of the offenses "that can be included in the provision of ‘pending charges’”.

Moreover, the obstructive effect would be connected "to the mere exercise of criminal action by the Public Prosecutor”, in the absence of any examination by the judicial body, even of a summary type.

Finally, the aforementioned effect would occur in the absence of any reasoned assessment by the provincial commissions, established at the CCIAA, responsible for conducting the suitability examination.

Moreover, regardless of the applicability of the accessory penalty of disqualification from public office, to whose imposition the paragraph following the challenged one subordinates, instead, the obstructive relevance of convictions, the admission filter in question would also give rise to an unreasonable contradiction: in the presence of offenses that do not entail the aforementioned disqualification, the preclusion *de qua* would still be triggered by the mere pendency of the charge, while it would not operate once the conviction had taken place.

In light of the same considerations, Article 41 of the Constitution would finally be violated, since the obstruction of the "mere pendency of a criminal charge, referable to any type of offense”, would lead to an unreasonable and disproportionate compression of the freedom of private economic initiative.

4. – The question of constitutional legitimacy raised with reference to Article 117, third paragraph, of the Constitution must, as a preliminary matter, be declared inadmissible.

The Council of State assumes that the challenged regional provision is attributable to the matter of "professions” and, therefore, is censurable for conflict with the evoked constitutional parameter in the current formulation, resulting from the reform referred to in Constitutional Law No. 3 of 18 October 2001 (Amendments to Title V of the Second Part of the Constitution).

However, the judge *a quo* does not consider that the Apulian law is prior to this constitutional reform and has not undergone any changes.

This Court has, instead, repeatedly affirmed "the need for the scrutiny to refer to the parameters in force at the time of the enactment of the regional legislation ( *ex plurimis*, judgments No. 130 of 2015 and No. 62 of 2012) and has considered inadmissible questions raised without motivating ‘with regard to the reasons for which [one] believes it necessary to invoke parameters that have occurred after the adoption of the regional law’ ( *ex plurimis*, Order No. 247 of 2016)” (judgment No. 52 of 2022).

The referring court, by not adducing any argument in this regard, prejudices the reasoning used to support the non-manifest unfoundedness and this has repercussions on the admissibility of the question under consideration.

5. – On the merits, the censure of violation of the principle of proportionality and that of reasonableness, protected by Article 3 of the Constitution, is well-founded.

5.1. – As has been clarified, the suspected regional provision conditions admission to the professional suitability examination, the passing of which is functional to registration in the register of drivers and to obtaining the license for the exercise of the taxi service and the authorization to exercise the NCC service, on the absence of pending charges.

In these terms, it prevents participation in the aforementioned examination by virtue of the mere pendency of any criminal charge: every hypothesis of offense provided for by the legislation, once the object of indictment, ends, therefore, by determining this obstructive effect.

5.2. – The *vulnus* to the principle of proportionality, in this case, does not concern the legitimacy of the purpose that the regional legislator seems to have set for himself, which, in the abstract, could appear functional to ensuring the adequate provision of public services, such as those of taxis and NCC, which take place in close contact with users.

Rather, it concerns the macroscopic defect, in concrete terms, of a rational connection between the means provided by the Apulian legislator and the purpose that the latter intends to pursue, because the challenged provision ends up intercepting, with an obstructive effect, a vast range of possible violations of criminal law that have nothing to do with the reliability of the individuals who aspire to be admitted to the examination in question. Any hypothesis of offense, in fact, prevents, by marking the person with an abnormal social stigma, the possibility of carrying out a work activity such as the one in question.

In judgment No. 161 of 2018, this Court, moreover, has indeed excluded the conflict with the principle of proportionality of rules which, in essence, preclude, for those who have suffered a criminal conviction for certain offenses, the maintenance (and, upstream, the obtaining) of the authorization to carry out the profession of transporter of goods for hire and reward and of passengers by bus. But this precisely because it was not a "random” list, because it was dictated "now by the objective seriousness of the violation, now by the relationship between the latter and the activity carried out by the interested party”.

Article 8, paragraph 3, of the Law of the Puglia Region No. 14 of 1995 does not, instead, make any selection and thus produces a completely disproportionate prohibitive effect, operating, as mentioned, also in relation to multiple scenarios that do not show any causal correlation between the requirement in question and the purpose for which it itself should be functional.

5.2.1. – The preclusion established by the regional law, moreover, arises as a result of the mere pendency of the criminal charge and, therefore – by virtue of the combined provisions of Articles 2, paragraph 1, letter *b*), and 6, paragraph 1, letter *a*), of Presidential Decree No. 313 of 14 November 2002, containing the "Consolidated text of the legislative and regulatory provisions on the criminal record, the European criminal record, the register of administrative penalties dependent on crime and related pending charges. (Text A)” – from the moment of assuming the status of defendant pursuant to Article 60 of the Code of Criminal Procedure.

This Court, instead, has specified that the "tendency of the legal system” is to consider that the specific prerequisite for the operation of extra-penal effects – similar to those provided for by the challenged provision – must be "that the ascertainment of criminal responsibility has been the subject of a first judicial examination”, so that "a reliable connection is discernible – as a reflection of the right of the suspect not to be considered guilty, in criminal proceedings, until the issuance of an irrevocable conviction – between the possible criminal responsibility and the suitability to carry out certain activities requiring particular requirements of morality” (judgment No. 152 of 2022).

Moreover, the State legislator has now clarified in general terms, in Article 335-*bis* of the Code of Criminal Procedure, that "[t]he mere entry in the register referred to in Article 335 may not, on its own, determine prejudicial effects of a civil or administrative nature for the person to whom the offense is attributed”.

5.2.2. – Ultimately, by omitting to delimit, within the entire area of criminal law, the possible obstructive offenses pertinent with respect to the activity to be carried out and even disregarding any examination of the indictment by the judge, the provision in question cannot pass the test of proportionality.

5.3. – Article 8, paragraph 3, of the Law of the Puglia Region No. 14 of 1995, moreover, in the paragraph following the challenged one, also specifically regulates convictions, however, limiting their obstructive effect to those that entail disqualification from public office.

It follows that, while the mere formulation of the indictment for an offense, the ascertainment of which does not lead to the imposition of this accessory penalty, nevertheless prevents, given the mere pendency of the criminal charge, participation in the suitability examination, this, paradoxically, is not instead precluded by the conviction for that same offense.

This also determines, from this point of view, the violation of the principle of reasonableness.

5.4. – The additional ground for censure deduced by the referring court with regard to the violation of Article 3 of the Constitution, relating to the absence of a reasoned assessment by the provincial commissions established at the CCIAA, remains absorbed.

6. – Article 8, paragraph 3, challenged, by prescribing the requirement of the absence of pending charges, for what has been explained also ends up unreasonably compressing the freedom of private economic initiative referred to in Article 41, first paragraph, of the Constitution, because it translates into "an undue barrier to entry into the market” (judgment No. 7 of 2021) of the services in question, which is already characterized, moreover, as the Guarantor Authority for Competition and the Market has repeatedly emphasized (most recently, by notification of 3 November 2023, ref. no. S4778), by an inadequate opening to the entry of new subjects.

Moreover, the need to avoid unjustified barriers in the specific sector of the transportation of persons by means of the NCC service has recently been clarified also by the Court of Justice of the European Union, for which restrictions on the freedom of establishment may be admitted provided that they respect, among other things, "the principle of proportionality, which implies that they are suitable to guarantee, in a coherent and systematic way, the achievement of the objective pursued and do not exceed what is necessary to achieve it” (judgment of 8 June 2023, in Case C-50/21, Prestige and Limousine SL).

7. – It must therefore be declared unconstitutional – for violation of Articles 3, first paragraph, and 41, first paragraph, of the Constitution – Article 8, paragraph 3, of the Law of the Puglia Region No. 14 of 1995, insofar as it provides that the substitute declaration of a notarial deed that must be attached to the application for admission to the suitability examination for the exercise of taxi and NCC services attests "the absence of pending charges”.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Article 8, paragraph 3, of the Law of the Puglia Region of 3 April 1995, No. 14 (Methods of Implementation of Law No. 21 of 15 January 1992, "Framework Law for the Transportation of Persons by Non-Scheduled Public Motor Vehicle Services”), insofar as it provides that the substitute declaration of a notarial deed that must be attached to the application for admission to the suitability examination for the exercise of taxi and chauffeur-driven car hire services attests "the absence of pending charges”;

2) declares inadmissible the question of constitutional legitimacy of Article 8, paragraph 3, of the Law of the Puglia Region No. 14 of 1995, raised, with reference to Article 117, third paragraph, of the Constitution, by the Council of State, Fifth Section, by the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 December 2023.

Signed:

Augusto Antonio BARBERA, President

Luca ANTONINI, Rapporteur

Valeria EMMA, Registrar

Filed with the Registrar on 23 January 2024