JUDGMENT NO. 16

YEAR 2024

Comments on the decision by

1. Emanuele Cocchiara, Protection of the environment, fishing, and the "regional sea." Brief reflections starting from Constitutional Court, judgment no. 16 of 2024, for g.c. of the Constitutional Observatory

2. Giacomo Vivoli, The "novelty" regarding animal protection in the Constitutional Court's judgment no. 16 of 2024, for g.c. of Federalismi.it

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, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has pronounced the following

JUDGMENT

in the judgment concerning the constitutional legitimacy of Articles 1 and 2 of the Law of the Puglia Region of 18 April 2023, no. 6 (Safeguard Measures for the Protection of the Sea Urchin), promoted by the President of the Council of Ministers with a petition notified on 19 June 2023, lodged with the Registry on 20 June 2023, registered under no. 18 in the register of petitions 2023 and published in the Official Gazette of the Republic no. 29, first special series, of the year 2023.

Seen the act of constitution of the Puglia Region;

Heard in the public hearing of 9 January 2024 the Reporting Judge Emanuela Navarretta;

Heard the State Attorney Giancarlo Caselli for the President of the Council of Ministers and the lawyer Carmela Patrizia Capobianco for the Puglia Region;

Resolved in the council chamber of 24 January 2024.

Considered in Fact

1.– With a petition registered under no. 18 reg. ric. 2023, lodged on 20 June 2023, the President of the Council of Ministers, represented and defended by the State Attorney's Office, promoted questions of constitutional legitimacy of Articles 1 and 2 of the Law of the Puglia Region of 18 April 2023, no. 6 (Safeguard Measures for the Protection of the Sea Urchin), for violation of Article 117, second paragraph, letter s), of the Constitution, with regard to the subject matter of "protection of the environment [and] the ecosystem," in relation to Article 32 of Law 14 July 1965, no. 963 (Regulation of Maritime Fishing), Article 24 of Legislative Decree 9 January 2012, no. 4 (Measures for the Reorganization of Regulations on Fishing and Aquaculture, Pursuant to Article 28 of Law 4 June 2010, no. 96), as well as Article 4 of the Decree of the Minister of Agricultural, Food and Forestry Resources of 12 January 1995 (Regulation of Sea Urchin Fishing); and for violation of Article 117, second paragraph, letter a), of the Constitution, with regard to the subject matters of "foreign policy and international relations of the State" and "relations of the State with the European Union," in relation to Article 2 of Royal Decree 30 March 1942, no. 327 (Approval of the final text of the Navigation Code).

2.– Article 1 of the Puglia Region Law no. 6 of 2023 provides that "the Puglia Region intends to promote the repopulation of the sea urchin in the regional seas, ensuring a period of rest for the species, preserving the fish resource, and preventing the risk of extinction due to massive removals."

Article 2 of the same regional law provides, in paragraph 1, that "[i]n the territorial sea of Puglia, starting from the date of entry into force of this law, the removal, collection, possession, transport, landing, and marketing of specimens of sea urchin (Paracentrotus lividus) and related fresh derivative products are prohibited, for a period of three years"; and, in paragraph 2, that "[t]he marketing of sea urchins is not prohibited for specimens originating (with certifications and traceability according to law) from seas not territorially belonging to the Puglia Region."

3.– With the first ground of appeal, the State Attorney's Office challenges the aforementioned provisions, as they would conflict with the exclusive state legislative competence in the subject matter of "protection of the environment [and] the ecosystem," which – according to the argument in the appeal – must be considered "‘transversal’ and ‘prevailing.’"

Therefore, it would be exclusively up to the State to "establish uniform environmental protection levels across the entire national territory."

If the transversal nature of the competence in the subject matter of environmental and ecosystem protection makes the intersection with "‘fields of experience’ – the so-called ‘subjects’ in the proper sense – attributed to regional legislative competence" inevitable, nevertheless – in the opinion of the appellant – the state legislation would imply a "precise limit to the regulation that the Regions, including those with special statutes, and the Autonomous Provinces" can "adopt in their areas of competence, as they are not allowed [...] to compromise the point of balance between opposing needs, as identified by the state law" (reference is made to the judgment of this Court no. 197 of 2014).

3.1.– Based on this premise, the appellant notes, first of all, that the purpose pursued by the regional regulation, as it emerges from Article 1 of the Puglia Region Law no. 6 of 2023, would be unequivocally oriented towards the pursuit of the objective of preserving the sea urchin species.

To this end, the regional legislator would have prohibited for three years "the removal, collection, possession, transport, and marketing of specimens of sea urchin and related fresh derivative products ‘in the territorial sea of Puglia,’" without excluding the marketing of the product if it comes from other territories (Article 2).

3.2.– However, such a purpose would attract the challenged provisions (the aforementioned Articles 1 and 2 of the Puglia Region Law no. 6 of 2023) within the scope of legislative competence exclusively belonging to the State, pursuant to Article 117, second paragraph, letter s), of the Constitution.

In exercising the aforementioned competence, the State would have regulated the subject matter with the already cited Ministerial Decree of 12 January 1995.

This source would find its legitimacy in Article 32 of Law no. 963 of 1965 and would be – according to the appellant – "still in force," by virtue of the provisions of Legislative Decree no. 4 of 2012, which, in Article 27, paragraphs 1, letter a) and 2, has "repealed and replaced" the previous Law no. 963 of 1965.

In particular, – adds the state defense – Article 24 of Legislative Decree no. 4 of 2012, in continuity with the provisions of the aforementioned Article 32 of the repealed Law no. 963 of 1965, "provides on the one hand that ‘the Minister of Agricultural, Food and Forestry Policies [today the Minister of Agriculture, Food Sovereignty and Forestry] may, by his own decree, after hearing the Central Advisory Commission for Maritime Fishing, regulate fishing also in derogation from national regulatory disciplines, in accordance with Community regulations, in order to adapt it to the progress of scientific knowledge and technological applications, and to encourage its development in certain areas or for certain classes thereof’ (paragraph 1), and on the other hand that the same Minister ‘may, by his own decree, suspend fishing activity or impose limitations in accordance with the provisions of Regulation (EC) No. 2371/2002, in order to conserve and manage fishing resources’ (paragraph 2)."

Based on these elements, the State Attorney's Office believes that "the imposition of suspensions or limitations in accordance with the provisions at the European level, in terms of environmental protection of fish resources," would be "assigned exclusively by state law to the competence of the Ministry of Agriculture and Food Sovereignty, and therefore to the State" and that, therefore, the challenged rules would violate "Article 117, second paragraph, letter s), of the Constitution, which attributes exclusive competence to the State in the matter of protection of the environment and the ecosystem, a matter that includes the regulation of the fishing ban."

3.3.– Finally, the appellant emphasizes that "the definition of fishing adopted in the Italian national legal system reproduces the one offered by the Union legislator in EU Regulation no. 1380/2013, relating to the common fisheries policy" and that, in general, the fishing sector would have been deeply affected by the discipline contained in the rules of European Union law, "with a consequent increase in attention to the aspects of environmental protection connected to it and [with] a strong reduction in the role of national regulations." A similar approach would also have had repercussions on the constitutional level, determining "an expansive reading of the subject matter of exclusive state competence ‘protection of the environment,’ such as to include the regulation of aspects related to fishing activity" (reference is made to judgment no. 9 of 2013).

4.– With the second ground of appeal, the President of the Council of Ministers challenges the same regional provisions, as they are invasive of the exclusive state legislative competence provided by Article 117, second paragraph, letter a), of the Constitution, with regard to both the subject matter of "foreign policy and international relations of the State" and "relations of the State with the European Union," and identifies Article 2 of the Navigation Code as an interposed rule.

According to the appellant, the conflict with the aforementioned exclusive state legislative competence would arise where the challenged regional provisions refer to the "territorial sea of Puglia" and to the "seas not territorially belonging to the Puglia Region" (as per Article 2).

4.1.– The premise of the challenged provisions would consist "in the abstract configurability of a ‘regional territorial sea,’ hypothetically belonging to or referable to the Puglia Region, as an area within which the same Region would be authorized to exercise its regulatory power."

However, according to the State Attorney's Office, "the identification, delimitation, and classification of ‘maritime space’ [would be] precluded from regional competence, as they are also subject to international interests and regulations dictated by the law of the European Union."

In the opinion of the appellant, a notion of "regional territorial sea" would be unknown to the internal and international legal system. It would therefore not be possible "to equate or assimilate the marine strip in front of the individual regional coasts (of 12 miles in width, corresponding to the extension of the territorial sea ex Article 2 of the Navigation Code), which the Navigation Code precisely qualifies as ‘territorial sea’ subject to state sovereignty, to the regional territory (as delimited by its borders)."

4.2.– In this regard, the State Attorney's Office reconstructs the constitutional jurisprudence on the competences of the regions and local authorities over coastal waters.

It recognizes, in fact, that, starting from judgments no. 23 of 1957 and no. 49 of 1958 and up to the most recent judgment no. 102 of 2008 – pronounced on disputes between the State and regions arising regarding the possibility of the latter legislating in relation to the exploitation, in various capacities, of coastal waters – this Court would have admitted a "form of legislative competence of the Regions over the territorial sea."

However, it signals pronouncements that would have a different approach, in which this Court would have affirmed that, "[t]he existence of a regional territorial sea is nothing but a problem of the existence, among the regional competences, of individual subject matters having an object that implies the use of that sea" (thus judgment no. 21 of 1968). On that occasion, the Court, "[r]eferring to judgment no. 27 of 1953 [recte: no. 23 of 1957]," would have "specified that the attribution of competence in the subject matter of maritime fishing does not imply the recognition of the existence of a regional territorial sea or the possibility of exercising powers over that sea, even if limited to fishing."

In particular, the appellant evokes the distinction made by the aforementioned judgment no. 21 of 1968 between "territorial sea" and "seabed" or "subsoil underlying the territorial sea," on the basis of which this Court would have considered "that the regulation of the seabed and subsoil could only be referred to the state legislative power." In the opinion of the appellant, the constitutional jurisprudence would not have changed its direction on this point after the constitutional reform of 2001. In particular, with judgment no. 39 of 2017, this Court, according to the appellant, would have "substantially confirmed the orientation expressed in 1968, reiterating that ‘powers of content and intensity equal for the entire strip that goes from the low tide line to the outer limit of the platform are exercised on the seabed and subsoil, a circumstance that does not allow the Regions to be recognized any competence, not even with regard to the activities that can be carried out on the portion of the seabed and subsoil underlying the territorial sea.’"

As for the specific perimeter for the purposes of fishing, the appellant believes that any divisions of marine areas could only be related "to the morphological and ecological aspect of the sea, with reference to the variety of habitats, environmental conditions, and biological communities present, which must be assessed in a unitary manner, in a necessarily supra-regional perspective, also because in relation to marine areas facing the coasts of several Regions."

4.3.– In conclusion, the State Attorney's Office censures the challenged legislation as it would claim to exercise a regional legislative power that would be justified by the mere reference "to a ‘regional maritime area,’" which, however, would not be in any way "predefined or legitimized at the state or international level."

The regions, according to the appellant, could not introduce a new legal concept of "regional territorial sea": "since the Region is not a sovereign entity, the limits of existence of the regional power could only be set by superior sources, which – at present – do not operate any regional division of the territorial sea."

In the opinion of the President of the Council of Ministers, recognizing a "regional territorial sea," on the one hand, would conflict "with the exclusive competence of the European Union in the matter of fishing, on the Union waters which include, as is well known, the territorial waters of the Member States."

On the other hand, it would conflict with the jurisprudence of this Court, which refers "the ‘international relations’ and the ‘foreign policy’ (Article 117, second paragraph, letter a, of the Constitution) [...] ‘to individual relations, endowed with elements of extraneousness with respect to our legal system’ and to the ‘international activity of the State considered as a whole in relation to its purposes and its direction’ (judgments no. 258 and no. 131 of 2008, no. 211 of 2006)" (the judgment no. 299 of 2010 is cited).

These situations – according to the appellant – would occur in the case under examination, when "the legal nomenclature of the ‘territorial sea’ derives from principles of international law acquired in national legislation (and specifically in Article 2 of the Navigation Code, which expressly refers to international law in the third paragraph), with respect to which the regional rules challenged here, with their reference to the definition of a ‘regional territorial sea,’" would be in clear conflict.

5.– The Puglia Region was constituted in court, with an act lodged on 28 July 2023, requesting that the appeal be declared unfounded.

5.1.– With reference to the first ground of appeal, the Region's defense recalls Article 1 of the Puglia Region Law no. 6 of 2023, highlighting that its purpose is textually to preserve "the fish resource" and to introduce a remedy in the face of the massive removals "caused by mass tourism."

To this end, the challenged regional law would have provided for a restriction limited to the Puglia coastal strip and for the sole period of three years, based on the legislative power in the subject matter of fishing, belonging to the regions, as a residual legislative competence, pursuant to Article 117, fourth paragraph, of the Constitution.

The Region's defense specifies, in fact, that fishing, while being the object of the residual legislative power of the regions, may, "due to the complexity and polyvalence of the activities in which it is expressed," interfere with "more heterogeneous interests, some state, others regional," with "undisputable reflections on the distribution of legislative and administrative competences," which makes it necessary to refer to the principles of prevalence and loyal cooperation.

In turn, regarding the subject matter of "protection of the environment [and] the ecosystem," the resisting party highlights that it is up to the State to set "‘adequate and non-reducible levels of protection’ (judgment no. 61 of 2009)," while the regions are allowed, "in compliance with the levels of protection established by state law (judgments no. 214 and no. 62 of 2008), to exercise their competences, aimed essentially at regulating the enjoyment of the environment, avoiding its compromises or alterations."

In essence, "the ‘transversality’ of the environment legitimizes normative interventions of the Regions which, in the exercise of their competences, take care of interests that are functionally linked to the environment – even if it is a ‘conditioned’ regional exercise, that is, required not to diminish the environmental protection established by the State."

In support of this approach, the Region's defense insists extensively on the jurisprudence of this Court that would allow the regions "to prescribe higher levels of environmental protection than those provided by the State" (the judgments no. 88 and no. 63 of 2020, no. 61, no. 30 and no. 12 of 2009, no. 104 of 2008 are cited in this regard).

The resisting party, moreover, emphasizes that even the state legislator would have allowed the regions, with Article 3-quinquies, paragraph 2, of Legislative Decree 3 April 2006, no. 152 (Rules on environmental matters), to adopt more restrictive forms of legal protection of the environment, if particular situations in their territory so require (reference is also made in this regard to judgment no. 58 of 2013).

The regional law under examination would therefore not conflict with the standards of protection established by the state legislator (the Ministerial Decree of 12 January 1995 is mentioned), and would in fact adopt a measure similar to the state one, inspired by the principle of precaution, referred to in Article 3-ter of the same Legislative Decree no. 152 of 2006, non-discriminatory in its application and which would achieve a "reasonable balance between productive activities useful for current collective needs and the good rules of respect for the environment."

Conclusively, with regard to the first ground of appeal, in the opinion of the defense of the resisting party, the censures would not be well-founded as: a) the regulation would concern a specific fishing activity, a subject matter that the Constitution itself, in Article 117, fourth paragraph, would refer to the residual ones that would be "of the exclusive competence of the Region" (reference is made to the judgment of this Court no. 213 of 2006); b) it would not reduce the level of protection established by the State as it would act "in melius compared to state law"; c) it would not alter "the balance between the interests at stake as per EU Regulation 1380/2013 on sustainable development, having reasonably balanced the reasons of the economic chain with the need to preserve the ecosystem in the face of a particular emergency situation."

5.2.– Also unfounded, in the opinion of the regional defense, would be the second ground of appeal, concerning the alleged violation of the exclusive legislative competence of the State in the subject matters of "foreign policy and international relations of the State" and "relations of the State with the European Union," referred to in Article 117, second paragraph, letter a), of the Constitution.

In particular, the censure that contests the use, in the challenged provisions, of the reference to the "territorial sea of Puglia" and to the "seas not territorially belonging to the Puglia Region" to delimit the scope of application of the regulation would not be justified.

According to the defense itself, the reference to regional seas would operate as a mere functional criterion of proximity ("substantial-factual and not formal"), which would limit the scope of the restrictions introduced, without "the claim to assert or exercise a generalized legislative competence."

The defense of the Puglia Region also recalls the pronouncements of this Court (judgment no. 102 of 2008 which refers to judgment no. 23 of 1957), according to which "it does not matter whether the territorial sea is a maritime state property or not (...), as it is only necessary to verify the limits of the normative power of the Region, with the consequence that (...) even if the territorial sea were not part of the territory of the Region (...), the attribution to the Region of legislative and administrative powers in a given subject matter implies that the regional discipline must extend its effectiveness to the extreme margin of the maritime space that surrounds the territory."

It would be inferred from the constitutional jurisprudence, therefore, that the "concept of ‘territory’ would not be resolved in mere ‘land’ but should be understood in the broader sense of the area in which the legitimate normative power of the Region is exercised," possibly also with reference to the territorial sea, provided that the region exercises such normative power to protect interests of regional importance.

This would be, according to the resisting party, the case in question, in which the reference to a "regional territorial sea" would be relevant as "a problem of existence, among regional competences, of individual subject matters having an object that implies the use of that sea" (thus judgment no. 21 of 1968).

6.– With an integrative memorandum lodged on 18 December 2023, the Puglia Region insisted on the theses already illustrated at the time of its constitution in court.

In support of these reasons, the regional defense attached to the integrative memorandum a document, bearing an "Assessment of the health status of edible sea urchin populations, Paracentrotus lividus (Lamarck 1816) along the coasts of Salento," as well as a technical-scientific consultancy, in which a legal opinion is reported, whose arguments were incorporated in the integrative memorandum.

6.1.– In this memorandum, the resisting party emphasizes the exceptional, temporary, and territorial nature of the measures introduced by the challenged legislation, which would have been provided to address the "serious condition of overexploitation of the sea urchin" in Puglia.

According to the resisting party, the territorial and temporal delimitation of the prohibition contained in the challenged regulation would be an indication of "the will of the Puglia Legislator to exercise its legislative power in the subject matter of ‘fishing,’ not replacing the national legislator in the regulation of the environmental matter, but integrating in melius its levels of protection."

In the integrative memorandum, the resisting party insists on the reasons already presented at the time of constitution, reconstructing the theoretical framework concerning the constitutional distribution of legislative competences and concluding that "the mere ‘regulation of the use of the environmental-faunistic resource’" would not fall, as such, "within the subject matter referred to in Article 117, second paragraph, letter s) of the Constitution" (judgments no. 21 of 2022, no. 171 and no. 7 of 2019, no. 212 and no. 74 of 2017, no. 267 of 2016 and no. 30 of 2009 are cited). The "elasticity of the criterion of competence from the point of view of environmental protection" in the context of fishing is therefore emphasized, which is reiterated to be classifiable as a regional residual subject matter, to which the challenged regional provisions should be attributed.

With regard to the contested violation of the "point of balance" between opposing needs, identified by the state laws, the memorandum highlights the assertive nature of the censure and considers the jurisprudence cited to be irrelevant, which would refer to pronouncements of constitutional illegitimacy relating to regional interventions that are not improving, but worsening compared to the point of balance identified in the protection of the environment (the resisting party refers to judgment no. 197 of 2014), as well as to pronouncements not referring to regional rules, but to state provisions (thus the judgments no. 9 of 2013 and no. 249 of 2009).

Finally, the defense of the resisting party points out that "a regulation of analogous tenor" with respect to the challenged provisions of the Puglia regional law would have been provided by the Autonomous Region of Sardinia, without being "object of challenge by the State," just as "a similar bill" would have been "presented on 25 October (Bill no. 624)" in the Sicilian Region.

6.2.– Continuing, the integrative memorandum reiterates that the second ground of appeal is also unfounded, with which the appellant evokes the violation of the exclusive state legislative competence, referred to in Article 117, second paragraph, letter a), of the Constitution.

In the opinion of the regional defense, the references to the regional territorial sea should be understood in "a descriptive and functional sense to the pursuit of the purpose of the law, limiting its meaning to the consideration of that stretch of sea facing the coast and interested in the reproduction of sea urchins," which would only be present at a short distance from the coastline, in depths not exceeding 20 meters. Both the literal hermeneutic criterion and the criterion of the intention of the legislator would support this interpretation, which would reveal the non-technical use of the lexical reference. The resisting party therefore believes that, given the alleged assignability of the law to the subject matter of fishing, the references to the pronouncements of this Court no. 39 of 2017 and no. 21 of 1968 would be irrelevant, because those precedents – in which it was also affirmed that "the seabed is the object of state power regardless of the subject matters of regional competence" – would have concerned "a completely different subject matter, that of the energy of the activities of prospecting, research and cultivation of hydrocarbons." In the opinion of the resisting party, the "elementary" finding that "sea urchins, even if placed on the seabed, are not comparable to hydrocarbons" would oppose the applicability of that jurisprudence to the case in question. In addition to this, according to the defense of the resisting party, there would be the impossibility of "denying any [regional] competence that has to do