JUDGMENT NO. 15

YEAR 2024

Comments on the decision of

1. Antonio Ruggeri, Again on the subject of techniques for resolving conflicts between domestic and self-executing supranational rules (upon initial reading of Court Const. no. 15 of 2024), in the Studies 2024/I of this Journal, 301

2. Orlando Scarcello, Another step in the process of recentralization of the review of Euro-Union constitutionality. Note to the Constitutional Court, judgment no. 15 of 2024, for the courtesy of the Constitutional Observatory

3. Laura Tomasi, Direct application of EU law and constitutional incident in anti-discrimination proceedings: judgment no. 15 of 2024 of the Constitutional Court, for the courtesy of Lavoro Diritti Europa

4. Gaia Patarini, The peculiarities of the anti-discrimination procedure pursuant to art. 28, Legislative Decree 150 of 2011 and the relationships between domestic and European Union rules. Note to the Constitutional Court, judgment no. 15 of 2024, for the courtesy of the Constitutional Observatory

5. Simone Barbareschi, «The orderly functioning of domestic sources» and the "concurrence” of instruments for the protection of rights. Considerations on judgment no. 15 of 2024, for the courtesy of Nomos

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, 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 rendered the following

JUDGMENT

in the proceedings regarding the conflict of attribution between entities arising from the order of the Ordinary Court of Udine, acting as labor judge, 31 January-1 February 2023, issued in the proceedings R.G. 358/2022, promoted by the Autonomous Region of Friuli-Venezia Giulia with appeal notified on 3-6 April 2023, filed in the registry on 6 April 2023, registered under no. 2 of the register of conflicts between entities 2023 and published in the Official Gazette of the Republic no. 16, first special series, of the year 2023; and in the proceedings regarding the constitutional legitimacy of art. 29, paragraphs 1, letter d), and 1-bis, of the law of the Friuli-Venezia Giulia Region 19 February 2016, no. 1 (Organic reform of housing policies and reorganization of the Ater), in the text resulting from the amendments made by art. 24 of the law of the Friuli-Venezia Giulia Region 6 November 2018, no. 24, containing «Amendments to regional law 19 February 2016, no. 1 (Organic reform of housing policies and reorganization of Ater)», promoted by the Ordinary Court of Udine, acting as labor judge, in the proceedings between B.R. A. and others and the Autonomous Region of Friuli-Venezia Giulia with order of 8 February 2023, registered under no. 97 of the register of orders 2023 and published in the Official Gazette of the Republic no. 33, first special series, of the year 2023.

Having examined the act of intervention of the Association for Legal Studies on Immigration (ASGI) aps (in the proceedings registered under no. 2 reg. confl. between entities 2023), as well as the acts of constitution of the Autonomous Region of Friuli-Venezia Giulia, of ASGI aps and of B.R. A. and others (in the proceedings registered under no. 97 reg. ord. 2023);

Having heard the reporting Judge Filippo Patroni Griffi at the public hearing of 21 November 2023;

Having heard the lawyers Alberto Guariso and Martino Benzoni for ASGI aps and for B.R. A. and others, and Giandomenico Falcon for the Autonomous Region of Friuli-Venezia Giulia;

Deliberated in the council chamber of 23 November 2023.

Considered in fact

1.− The Autonomous Region of Friuli-Venezia Giulia, with the appeal registered under no. 2 reg. confl. between entities 2023, proposes a conflict of attribution requesting that it be declared that it was not up to the State, and for it the Ordinary Court of Udine, acting as labor judge, to adopt the order 31 January-1 February 2023, issued in the proceedings R.G. 358/2022, in the part in which, within the scope of a civil action against discrimination on grounds of nationality, it ordered the Autonomous Region (point 2 of the operative part) to amend the decree of the President of the Autonomous Region of Friuli-Venezia Giulia 13 July 2016, no. 0144, containing «Implementing Regulation for the regulation of incentives for subsidized construction in favor of private citizens, to support the acquisition or recovery of housing to be used as a primary residence pursuant to Article 18 of Regional Law 19 February 2016, no. 1 (Organic reform of housing policies and reorganization of the Ater)», «“in the part that provides for non-EU citizens with long-term resident status requirements or procedures that are different from those provided for EU citizens to certify the non-possession of housing in Italy and abroad and instead guaranteeing that EU citizens and non-EU citizens with long-term resident status can document the non-possession referred to in art. 9, paragraph 2 letter C)” of the same regulation».

The same order is also the subject of the conflict in the parts in which it adopts a coercive sanctioning apparatus resulting from the aforementioned order to amend the regional regulation (points 3, 7 and 8 of the operative part).

In the alternative, the appellant requests that it be declared that it was not up to the Court of Udine to adopt the challenged order, in the indicated parts, «without first having requested and obtained from this Constitutional Court the declaration of constitutional illegitimacy of art. 29, paragraph 1-bis, of regional law no. 1 of 2016».

The annulment of the order is also requested in part qua.

1.2.− The appellant Region first reconstructs the dispute that originated the order that is the subject of the conflict.

1.2.1.− In this regard, it reports that the Court of Udine partially upheld the civil action against discrimination on grounds of nationality promoted by an Italian citizen and his Albanian spouse, holder of a residence permit for long-term residents, who were refused the payment of the contribution for the purchase of housing to be used as a primary residence pursuant to art. 15, paragraph 1, letter c), and from art. 18 of the law of the Friuli-Venezia Giulia Region 19 February 2016, no. 1 (Organic reform of housing policies and reorganization of the Ater).

Access to this contribution is granted, according to the provisions of the same regional law, provided that, among other requirements, one is not «also the owner of the bare ownership of other dwellings, within the national territory or abroad, provided that they are not declared uninhabitable, excluding the ownership shares not attributable to the unit, received by inheritance, the bare ownership of dwellings whose usufruct is held by relatives within the second degree and dwellings, or shares thereof, assigned in the event of separation or divorce to the spouse or cohabitant» (art. 29, paragraph 1, letter d).

The subsequent art. 29, paragraph 1-bis, then establishes that, «for the purposes of verifying the requirement referred to in paragraph 1, letter d), citizens of States not belonging to the European Union, with the exclusion of refugees and holders of subsidiary protection referred to in Article 2, paragraph 1, letter a-bis), of Legislative Decree 19 November 2007, no. 251 (Implementation of Directive 2004/83/EC laying down minimum standards for the qualification of third-country nationals or stateless persons as refugees or persons otherwise in need of international protection, as well as minimum standards for the content of the protection granted), must submit, pursuant to the combined provisions of Article 3, paragraph 4, of the Decree of the President of the Republic 28 December 2000, no. 445 (Consolidated text of legislative and regulatory provisions on administrative documentation), and of Article 2 of the Decree of the President of the Republic 31 August 1999, no. 394 (Regulation containing implementation rules of the consolidated text of the provisions concerning the discipline of immigration and rules on the condition of foreigners, pursuant to article 1, paragraph 6, of Legislative Decree 25 July 1998, no. 286), documentation certifying that all members of the family unit are not owners of other dwellings in the country of origin and in the country of origin». This last legislative provision was substantially reproduced by art. 12, paragraph 3-bis, of regional regulation no. 0144 of 2016.

1.2.2.− The appellants before the Court of Udine complained that the payment of the contribution had been denied to them due to the failure to produce documentation certifying that all members of the family unit are not owners of other housing in the country of origin and in the country of origin. Hence the request, only in the event that the judge did not consider it possible to uphold the applications by applying the legislation of the European Union evoked in the appeal, to raise questions of constitutional legitimacy of art. 29 of the aforementioned regional law in the part in which it provides for the absence of ownership in Italy or abroad to access the benefit and the different procedures, for Italian and foreign citizens, to certify this requirement. The appellants, then, also requested, among other things, to order the Autonomous Region to again exercise the regulatory powers.

1.2.3.− The Association for Legal Studies on Immigration – ASGI had also intervened in the proceedings, proposing similar requests, and the Autonomous Region itself was constituted, resisting the appeal and objecting that it does not fall «within the powers of the judicial authority to order an amendment of the executive regulation, indeed reproductive, of a regional law».

1.2.4.− With the order that is the subject of the conflict, the Court of Udine partially upheld the requests submitted, after disapplying art. 29, paragraph 1-bis, of regional law Friuli-Venezia Giulia no. 1 of 2016 and art. 12, paragraph 3-bis, of the aforementioned regional implementing regulation. The judge considered, in fact, that these regional rules – in providing that, to certify non-possession, only Italian and European Union citizens can use a substitute declaration pursuant to Presidential Decree no. 445 of 2000 – are discriminatory and must be disapplied due to conflict with Union law.

1.3.− Having premised the above, the Autonomous Region with the present appeal does not dispute the decision of the judge to disapply the regional rules deemed to be in conflict with EU law, but the claim of the Court of Udine «to order the Region to exercise its regulatory powers according to contents decided by that judge, and in particular – in the specific case – to exercise them in a manner contrary to [what] precisely provided for by regional law». The appellant observes, in fact, that, in the challenged parts, the order does not decide the case that is the subject of the proceedings, but disposes of the regional regulatory powers and, moreover, in contrast with what was established by regional law Friuli-Venezia Giulia no. 1 of 2016: it is only by reason of this that the conflict of attribution is promoted, as it is believed that the State, and for it the Court of Udine, «has invaded the sphere of attribution reserved to it by the Constitution and the special statute approved by constitutional law no. 1 of 1963, damaging the status of the regional law (first reason), the autonomy of the Region in the use of its regulatory sources (second reason), exceeding the limits that the Constitution places on the jurisdiction with respect to regulatory and administrative powers (third reason)».

The Autonomous Region specifies that it has proceeded with the repeal of art. 12, paragraph 3-bis, of regional regulation no. 0144 of 2016, but without acquiescence and only to avoid the payment of the astreintes ordered by the judge ex art. 614-bis of the Code of Civil Procedure, the order of which has been appealed.

1.3.1.− According to the appellant Region, the order that is the subject of the conflict would have violated, first of all, the legal regime of the regional law Friuli-Venezia Giulia no. 1 of 2016, the value and force of which would have been denied by the Court of Udine, with consequent damage to legislative autonomy, recognized by arts. 4 and 56 of constitutional law 31 January 1963, no. 1 (Special Statute of the Friuli-Venezia Giulia Region) of the Autonomous Region of Friuli-Venezia Giulia, as well as by art. 117, third and fourth paragraph, of the Constitution, in combination with art. 10 of constitutional law 18 October 2001, no. 3 (Amendments to Title V of Part II of the Constitution).

Having stated this, the Autonomous Region reiterates that it does not dispute, as they are extraneous to the conflict of attribution, neither the possibility for the Court of Udine to disapply the domestic legislation in conflict with Union law, nor the self-executing character of Directive 2003/109/EC of the Council of 25 November 2003, on the status of third-country nationals who are long-term residents. It disputes, instead, «the claim – once the legislative and regulatory rule has been disapplied in the specific case – to impose on the Region the adoption of regulatory rules in direct and intended contrast with the provision of the disapplied law»: in doing so, in fact, one deprives «of effect, with erga omnes validity, a legislative provision, withdrawing it from a corresponding evaluation by other adjudicators (both of the same rank in different cases, and of a higher rank on appeal), an evaluation that could lead those adjudicators to different outcomes: thus contradicting the very right of the Region to defend its legislation». The Court of Udine, therefore, considering that the rules in contrast with Union law should be removed with erga omnes effect, would have adopted a decision, precluded to it, the effects of which correspond to the declaration of constitutional illegitimacy.

To confirm its position, the Autonomous Region observes that, in a parallel proceeding, the Court of Udine, in a different composition, did indeed note the conflict of the regional legislative and regulatory legislation with the aforementioned directive but, to decide on the applications concerning the amendments to the regulation, deemed it appropriate to raise questions of constitutional legitimacy of art. 29, paragraph 1-bis, of regional law Friuli-Venezia Giulia no. 1 of 2016.

With the challenged order, however, the Court of Udine would have used a «shortcut», eliminating the erga omnes effects of the regional law. In this way, and exceeding the jurisdictional function referred to in Article 101 of the Constitution, it would have invaded the sphere of attributions of the Region, in violation: i) of the regional legislative power ex arts. 4, 5 and 6 of the special statute and of art. 117, third and fourth paragraph, of the Constitution, in combination with art. 10 of constitutional law no. 3 of 2001; ii) of arts. 134 and 136 of the Constitution, which reserve to this Court the review of the law and the related power to annul it with erga omnes effects; iii) of the principle of legality referred to in Article 97 of the Constitution and of that concerning the supremacy of the regional law over the regulation (Article 117, sixth paragraph, of the Constitution), as it would be imposed on the Region to exercise the regulatory power in contrast with the law. To support its grievances, the Region also recalls the judgment of this Court no. 285 of 1990 and the more recent judgment no. 26 of 2022.

1.3.2.− The Autonomous Region then notes that, even assuming that each judge can impose on the holder of regulatory powers «to translate their conviction into provisions operating erga omnes», it certainly cannot be up to the judge to decide with which regulatory act they must intervene, «moreover subverting the natural order of the sources». The appellant observes, in fact, that the regulation that was ordered to be amended is, in that part, merely reproductive of the regional law: therefore, the judge has indicated a source that is not suitable to regulate the matter and, if this has happened, it is because he was aware of not being able to indicate the legislative provision as a source to be amended, at the risk of an even greater invasion of the Region's competences.

It would be evident, therefore, «the pretextual and invasive nature of the order to amend "the regulation"», from which would derive the violation, again, of arts. 134 and 136 of the Constitution, as well as of arts. 97 and 117, sixth paragraph, of the Constitution, for the same reasons already indicated.

1.3.3.− The Autonomous Region, with a reason that it expressly states is preliminary, then asserts that the order of the Court of Udine «exceeds the limits of jurisdiction».

Having premised a reconstruction of the statutory competences presupposed by the regional law Friuli-Venezia Giulia no. 1 of 2016, to which regulatory and administrative functions correspond, the appellant affirms that no rule allows the ordinary judge to order the exercise, in a certain way, of the regulatory power, so the order of the Court of Udine «exceeds the external limits of jurisdiction with respect to an administrative authority and damages, as well as the constitutional statute of the administration (derivable from arts. 101 and 113 of the Constitution), the principle of separation of powers, representing an exercise of formally administrative and substantially normative activity by a jurisdictional body».

It would not be valid to object, the Autonomous Region argues, that the judge has adopted this measure following a civil action against discrimination, within the scope of which judgment art. 28, paragraph 5, of Legislative Decree 1 September 2011, no. 150 (Supplementary provisions to the Code of Civil Procedure regarding the reduction and simplification of civil proceedings of cognition, pursuant to Article 54 of Law 18 June 2009, no. 69) allows the judge to issue orders against the public administration and also to order, in order to prevent the repetition of the discrimination, the adoption of a plan to remove the ascertained discrimination. This legislation, in fact, is part of a constitutional framework «that distinguishes powers based on the functions – regulatory, executive, jurisdictional – entrusted to them, and that limits, in art. 113 of the Constitution, the powers of the ordinary judge with respect to the public administration» (the judgments of this Court no. 175 of 1991 and no. 150 of 1981 are recalled in support).

Article 28, paragraph 5, of Legislative Decree no. 150 of 2011 could not, therefore, be understood, «neither as meaning to attribute to the ordinary judge the power to annul administrative acts, powers to which the provision does not refer, nor, much less, active administration powers or even powers of preventive normative substitution». On the other hand, the jurisprudence of the united sections of the Court of Cassation would have traced the powers de quibus of the ordinary judge «to the traditional scheme of incidental disapplication of the illegitimate administrative act» (the orders of the Court of Cassation, civil united sections, 15 February 2011, no. 3670, and civil first section, 15 February 2021, no. 3842, are recalled).

It could not be opposed, in this regard, that the Court of Cassation itself would have traced the powers of the jurisdictional authority under discussion «to the forms of protection of absolute subjective rights with a constitutional or supranational basis», according to a reconstruction also present in the judgment no. 140 of 2001 of this Court, which has recognized that the legislator can «also attribute to the ordinary judge a power of annulment and special effects that sometimes substitute for administrative action»: this is because, it is reiterated once again, the appellant Region does not dispute the power of the jurisdictional authority «to attribute the good of life to the subject that is deemed to be discriminated against» but the different and further power to order the issuance of «specific general and abstract rules». In this regard, the Autonomous Region recalls the administrative jurisprudence that excludes, with reference to regulatory acts and general administrative acts, the admissibility of the special procedural remedy against the silence of non-fulfillment of the public administration, which is limited to administrative activity of a procedural nature (the judgments of the Council of State, fourth section, 26 March 2014, no. 1460, and 2 September 2019, no. 6048, are recalled).

1.3.4.− The appellant Region, finally, observes that with the challenged order the Court of Udine would also have violated the «statute of substitute power» referred to in arts. 117, fifth paragraph, and 120, second paragraph, of the Constitution, attributed to the Government and to be exercised in compliance with the principle of loyal cooperation.

2.− With a deed filed on 9 May 2023, qualified as «deed of intervention ad opponendum of the excluded third party with vested interest», ASGI intervened in the proceedings.

2.1.− The intervening party represents that in the district of the Court of Appeal of Trieste, starting from 2019, several civil actions against discrimination on grounds of nationality have followed one another, all referring to regional regulations on support for the right to housing that provide for disproportionate documentary burdens for foreign citizens and all culminating with the order to amend these regulatory rules.

Analogous litigations, with similar outcomes, would have also arisen in other Italian regions.

Furthermore, this Court declared the constitutional illegitimacy of a regional law provision with content identical to that of the regulations of the Autonomous Region of Friuli-Venezia Giulia (the judgment no. 9 of 2021 is cited).

2.1.1.− In March 2023, ASGI further reports, the various regulatory provisions that established the difference in documentary treatment were repealed. Nevertheless, the Autonomous Region of Friuli-Venezia Giulia cultivated the proceedings, appealing to the Court of Cassation or the Court of Appeal, as appropriate, the decisions that decided the civil actions, including the one that is the subject of the conflict. In particular, with the appeal, the Autonomous Region «raised exactly the same question raised in these proceedings, namely the (alleged) inadmissibility of the order to amend the Regulation».

ASGI notes, however, that, whatever the outcomes of the various pronouncements, the Autonomous Region will only be able to issue a new regulation pro futuro, which cannot cancel the rights acquired by foreign citizens on the basis of the existing regulations and which will in any case have to take into account the principles referred to in the indicated judgment no. 9 of 2021. It follows that «it is difficult to understand what public interest the Region intends to pursue» with the conflict, considering that it cannot «certainly maintain in its legal system provisions the illegitimacy of which has been repeatedly ascertained by the judges».

2.2.− Having premised the above, on the point of legitimization to intervene in the conflict, ASGI believes that it has the right to do so as a party to the proceedings defined by the challenged order: the jurisprudence of this Court, in fact, would have already recognized that it is admissible «the intervention of the parties in a proceeding before the ordinary judge, the outcome of which may be conditioned by the ruling of the Court» (in particular, the judgment no. 259 of 2019 is recalled).

2.3.− As for the appeal, ASGI firstly laments its inadmissibility.

The jurisprudence of this Court is to the effect that a jurisdictional decision can be the subject of a conflict only in the event that its conformity to the jurisdictional function is challenged (the judgments no. 150 of 2007 and no. 359 of 1999 are recalled) and not, instead, when errores in iudicando are asserted (the decisions no. 290 and no. 222 of 2007, no. 376 and no. 326 of 2003 and no. 27 of 1999 are cited).

These affirmations have also been reiterated with reference to the conflict between entities (the judgments no. 39 of 2007 and no. 27 of 1999 are recalled).

In light of these premises, the intervening party considers that the appeal is inadmissible, firstly, because the Autonomous Region would have censored the fact that the Court of Udine has considered the legislative rule as ineffective, as it is in conflict with EU law. The correctness or otherwise of the disapplication, and the feasibility or otherwise of other decisional paths by the aforementioned Court, are aspects that can be evaluated in other venues and not, instead, asserted with the conflict of attribution, as otherwise «the primacy of the law of the Union would be completely nullified».

Secondly, the appeal would be inadmissible because the Autonomous Region, which does not dispute that the administrative judge could annul the illegitimate exclusion clause contained in a regulation, complains that the ordinary judge has reached a similar outcome, «albeit in different forms of the order to amend and not the annulment of the act»: this would not be a matter for conflict between entities – as there could