JUDGMENT NO. 27
YEAR 2024
Commentary on the decision by
Cristina Equizi
for g.c. of the Constitutional Observatory
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 proceedings concerning the constitutional legitimacy of Article 1, paragraphs 115 to 119, of Law No. 197 of 29 December 2022 (State budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025), initiated by the Autonomous Region of Valle d’Aosta/Vallée d’Aoste, by way of a claim notified on 24 February 2023, filed in the Registry on 1 March 2023, registered under No. 8 of the 2023 Registry of Claims and published in the Official Gazette of the Republic No. 12, First Special Series, of the year 2023.
Having regard to the act of constitution of the President of the Council of Ministers;
Having heard in the public hearing of 23 January 2024, the Reporting Judge Luca Antonini;
Having heard the lawyers Francesco Saverio Marini for the Autonomous Region of Valle d’Aosta/Vallée d’Aoste and the State Attorney Marco Corsini for the President of the Council of Ministers;
Deliberated in the Chamber of Council on 23 January 2024.
Facts of the Case
1.– By way of a claim notified on 24 February 2023 and filed on 1 March 2023 (reg. claim no. 8 of 2023), the Autonomous Region of Valle d’Aosta/Vallée d’Aoste, represented by its President pro tempore, challenged Article 1, paragraphs 115 to 119, of Law No. 197 of 29 December 2022 (State budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025), with reference to Articles 2, first paragraph, letter a), 3, first paragraph, letter f), 12, 48-bis and 50 of Constitutional Law No. 4 of 26 February 1948 (Special Statute for Valle d’Aosta), Article 2, paragraph 1, letter b), of Law No. 690 of 26 November 1981 (Revision of the financial system of the Valle d’Aosta region) and Article 1 of Legislative Decree No. 320 of 22 April 1994 (Implementation rules of the special statute of the Valle d’Aosta region); to Articles 117, third paragraph, and 119 of the Constitution, in conjunction with Article 10 of Constitutional Law No. 3 of 18 October 2001 (Amendments to Title V of Part Two of the Constitution), as well as to the principle of loyal cooperation pursuant to Articles 5 and 120 of the Constitution.
The first of the challenged provisions stipulates that, «[i]n order to contain the effects of the increase in prices and tariffs in the energy sector for businesses and consumers, a temporary solidarity contribution is established for the year 2023 […] to be paid by entities that carry out the activity of producing electricity, entities that carry out the activity of producing methane gas or extracting natural gas, entities that resell electricity, methane gas and natural gas, and entities that carry out the activity of producing, distributing and trading petroleum products within the territory of the State, for the subsequent sale of the goods. […]».
Pursuant to the subsequent paragraph 116, «[t]he solidarity contribution is determined by applying a rate of 50 percent to the amount of the share of total income determined for the purposes of corporate income tax relating to the tax period prior to that in progress on 1 January 2023, which exceeds by at least 10 percent the average of the total incomes determined for the purposes of corporate income tax achieved in the four tax periods prior to that in progress on 1 January 2022; in the event that the average of the total incomes is negative, a value equal to zero is assumed. The amount of the extraordinary contribution, in any case, may not exceed a share equal to 25 percent of the value of the net assets at the closing date of the financial year prior to that in progress on 1 January 2022».
The further challenged provisions, respectively: a) regulate the payment deadline of the contribution (paragraph 117); b) exclude its deductibility for the purposes of income taxes and regional tax on productive activities (paragraph 118); c) establish the application of the provisions on income taxes, for the purposes of assessment, penalties and collection of the solidarity contribution, as well as related disputes (paragraph 119).
1.1.– The applicant Region highlights that the contribution in question would be in continuity with the «[e]xtraordinary contribution against high energy bills» established for the year 2022 by Article 37 of Decree-Law No. 21 of 21 March 2022 (Urgent measures to counter the economic and humanitarian effects of the Ukrainian crisis), converted, with amendments, into Law No. 51 of 20 May 2022; this provision, in paragraph 5-bis, provides that «[t]he revenues deriving from the contribution by way of an extraordinary solidarity levy determined pursuant to this article are allocated to the special statute regions and the autonomous provinces of Trento and Bolzano for the part due to them under their respective autonomy statutes».
In the opinion of the applicant, although it does not contain a similar «safeguard clause», it would still be possible to consider that the challenged legislation also concerns an income to be allocated to the special statute regions and the Autonomous Provinces of Trento and Bolzano, «for the part due to them under their respective autonomy statutes».
In this sense, the following would be relevant: a) the substantially tax nature of the contribution and the reference, for the purposes of calculating the same, to the income determined for the purposes of corporate income tax, the revenue of which is allocated to the Autonomous Region of Valle d’Aosta/Vallée d’Aoste pursuant to Article 2, paragraph 1, letter b), of Law No. 690 of 1981; b) the omission of the full devolution of the revenue to the Treasury; c) the failure to expressly identify a specific chapter of the State budget entry in which to channel the revenue of the contribution, for subsequent allocation to the specific purposes indicated by the establishing provision; d) the character «of substantial continuity», given the same purpose, of the challenged provisions and the contribution established for the year 2022.
The absence of an express provision of the safeguard clause, however, «could just as reasonably lead to the interpretation» in the sense of the full devolution to the Treasury of the revenue deriving from the implementation of the challenged provisions.
1.2.– Therefore, having identified the prerequisites for the admissibility in the main proceedings of issues raised as a precautionary and hypothetical measure (Judgment No. 154 of 2017 of this Court is cited), the first ground of appeal complains of the violation of Articles 2, first paragraph, letter a), 3, first paragraph, letter f), 12, 48-bis and 50 of the regional statute of Valle d’Aosta, Article 2, paragraph 1, letter b), of Law No. 690 of 1981 and Article 1 of Legislative Decree No. 320 of 1994, as well as the violation of Articles 117, third paragraph, and 119 of the Constitution, in conjunction with Article 10 of Constitutional Law No. 3 of 2001, and of the principle of loyal cooperation pursuant to Articles 5 and 120 of the Constitution.
In particular, in implementation of Article 50 of the special statute, the financial system of the Autonomous Region of Valle d’Aosta/Vallée d’Aoste attributes to it the revenue collected in the regional territory of state taxes on income and assets, including «the corporate income tax» (Article 2, paragraph 1, letter b, of Law No. 690 of 1981, as amended by Article 2 of Legislative Decree No. 12 of 3 February 2011, containing «Implementation rules of the special statute of the Valle d’Aosta/Vallée d’Aoste region containing amendments to Law No. 690 of 26 November 1981, containing the revision of the financial system of the Region»).
From this provision, the claim argues, «the illegitimacy of the challenged provisions» would appear «clear», since, interpreted in the sense suggested, these would attribute to the State «the revenue of a state tax», calculated on the basis of the income determined for the purposes of corporate income tax, «without taking into account» the obligation to transfer to the Autonomous Region of Valle d’Aosta/Vallée d’Aoste the revenue of the «state taxes on the income of legal persons (as well as related surtaxes and substitute taxes) “collected in the regional territory”».
The challenged provisions, therefore, «arbitrarily subtract the revenue devolved, pursuant to Article 2, paragraph 1, letter b), of Law No. 690 of 1981, to the Valle d’Aosta», the state legislator being unable to derogate from the statutory regime of regional participation in the revenue of state taxes (Judgment No. 241 of 2012 of this Court is cited).
1.2.1.– The applicant thus identifies a defect of lack of competence, the state provisions having «unilaterally regulate[d]» aspects reserved to the special statute and related implementing legislation, which can be amended, pursuant to Article 1 of Legislative Decree No. 320 of 1994, «only by means of the procedure referred to in Article 48-bis of the same special statute». By intervening unilaterally in the matter relating to regional participation in state taxes, the State would have violated the special competence recognized to the implementing rules (Judgment No. 191 of 1991 of this Court is cited).
In the opinion of the applicant, «consequently», Article 1, paragraphs 115 to 119, of Law No. 197 of 2022 would also be in contrast «with hierarchically superior sources, as they are of constitutional rank (Article 117, paragraph 3, and 119 of the Constitution in conjunction with Article 10 of Constitutional Law No. 3 of 18 October 2001 and the Valdostan Statute), as well as with a reinforced source (Law No. 690 of 1981, as amended by Legislative Decree 12/2011, prepared in agreement with the Regional Council)».
1.2.2.– The claim also states that the constitutional legitimacy of the challenged state provisions could not be based on the provisions of Article 8, first paragraph, of the aforementioned Law No. 690 of 1981, which allows the State to reserve the revenue deriving «from increases in rates and from other modifications of the taxes» devolved to the Autonomous Region of Valle d’Aosta/Vallée d’Aoste, if it is allocated by law to cover new or increased expenses to be borne by the state budget.
In this case, the aforementioned allocation would be lacking, as would be demonstrated both by the omission of the identification of a specific revenue chapter in which to channel the revenue, and by the silence on the constraint in this sense.
In any case, the second paragraph of the aforementioned Article 8 would not be respected, according to which the determination of the share of revenue reserved to the State should in any case take place in agreement with the Region, in accordance with the principle of loyal cooperation pursuant to Articles 5 and 120 of the Constitution.
1.2.3.– Finally, even considering the purposes of the state intervention establishing the contribution, the principle enunciated by Articles 48-bis and 50 of the special statute would still be violated, which provides for a specific procedure for amendments to the financial system and which would be applicable to the «participation of the special Regions in the equalizing-solidarity obligations and national finance».
1.3.– The second ground of appeal argues that Article 1, paragraphs 115 to 119, of Law No. 197 of 2022, interpreted in the feared sense, would violate the principle of loyal cooperation pursuant to Articles 5 and 120 of the Constitution, being «the result of a blatant disregard by the State for any form of direct involvement of the Region, in violation of the agreed method», the cornerstone of the regulation, through reinforced procedures, of financial relations between the State and the special autonomies.
This violation would be reflected in the infringement of the special financial and organizational autonomy recognized to the applicant Region by Articles 2, first paragraph, letter a), 12, 48-bis and 50 of the special statute and by the implementation legislation on financial system matters.
2.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, appeared in court, requesting that the issues of constitutional legitimacy raised be declared unfounded.
2.1.– The state defense points out that Article 1, paragraph 903, of Law No. 197 of 2022 contains a safeguard clause with respect to the special statute regions and the Autonomous Provinces of Trento and Bolzano – in which the provisions of the aforementioned law «are applicable […] compatibly with the respective statutes and related implementing rules, also with reference to Constitutional Law No. 3 of 18 October 2001» – without however affirming a specific operation in the case in question.
2.2.– The Attorney General's Office also considers the assumption of the claim on the tax nature of the extraordinary solidarity contribution to be erroneous.
This nature should be excluded «since it is a measure of economic policy», with redistributive purposes, equivalent to the temporary contribution referred to in Council Regulation (EU) No. 1854/2022 of 6 October 2022, on an emergency intervention to address high energy prices. This is because the contribution is applied to the share of profits that the identified entities «would not have obtained if the exceptional events that led to the increase in energy prices in 2022 and 2023 had not occurred».
The redistributive measure in question would find its foundation in Article 122 of the Treaty on the Functioning of the European Union – which allows the adoption of «measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, in particular in the energy sector» –, thus falling within those relating to economic policy (referred to in Title VIII, Chapter 1, TFEU) and not within those concerning tax provisions (referred to in Title VII, Chapter 2, TFEU).
The difference compared to tax measures would also be inferred from the tenor of recital 14 of the aforementioned regulation, which would require the contribution to be applied «in parallel with the normal taxes on businesses collected by each Member State on the businesses concerned».
Pointing out that the European regulation required Member States to implement the solidarity contribution by 31 December 2022, subject to the adoption of equivalent national measures, the Attorney General's Office points out that Italy has availed itself of this possibility, introducing for the year 2023 the extraordinary solidarity contribution referred to in Law No. 197 of 2022.
Finally, Circular No. 4/E of 23 February 2023 of the Revenue Agency is cited, which, among other things, would consider the contribution in question to be «a temporary and extraordinary measure for the year 2023 not classifiable within the scope of income taxes», as would emerge from the provision of non-deductibility for the purposes of these taxes expressly established by Article 1, paragraph 118, of the aforementioned law, since, otherwise, this clarification would have been superfluous as a result of the general provision of Article 99 of Presidential Decree No. 917 of 22 December 1986 (Approval of the consolidated text of income taxes).
In conclusion, excluding that the extraordinary contribution in question is of a tax nature, the related revenue would not be subject to co-participation with the special autonomies, thus removing the grounds for complaint advanced, albeit as a precautionary measure, by the applicant Region.
3.– In the lead-up to the hearing, the Autonomous Region of Valle d’Aosta/Vallée d’Aoste filed a memorandum aimed at contesting the thesis put forward by the state defense, «given that revenues of a tax nature are by definition (or at least as a rule) a “measure of economic policy with redistributive purposes”».
In this case, the contribution established by the challenged provisions would take as a reference a reliable index of contributory capacity, would impose a definitive reduction, would be acquired by the State and in any case allocated to general taxation; therefore, regardless of the nomen iuris used by the legislator, these circumstances would constitute an unequivocal indication of the tax nature of the levy in question, as affirmed by the jurisprudence of this Court (among others, Judgments No. 223 of 2012 and No. 141 of 2009 are cited).
Furthermore, refuting further arguments of the state defense, the memorandum: a) considers the reference to the characteristics of the contribution provided for by Regulation No. 2022/1854/EU irrelevant, since, at the level of internal legislation, the measure in question would «undoubtedly [be a] tax provision»; b) identifies in any case an index of contributory capacity, indicative of the tax nature of the measure, in the identification of surplus profits parametrized to an income distinct from that of the year 2022; c) notes that the express clarification of the non-deductibility of the contribution, contained in the challenged paragraph 118, «confirm[s], and does not contradict, that it is a tax provision».
Reasons for the Decision
1.– By way of the claim indicated in the heading (reg. claim no. 8 of 2023), the Autonomous Region of Valle d’Aosta/Vallée d’Aoste challenged Article 1, paragraphs 115 to 119, of Law No. 197 of 2022, that is, the provisions which, in order to contain the effects of the increase in prices and tariffs in the energy sector for businesses and consumers, established, for the year 2023, and regulated, «a temporary solidarity contribution» to be paid by entities that carry out certain activities in the energy sector.
The applicant Region highlights, first of all, the possibility of considering that the challenged legislation concerns an income to be allocated to the special statute regions and the Autonomous Provinces of Trento and Bolzano. This is due to the analogy between the contribution in question and the «[e]xtraordinary contribution against high energy bills» established for the year 2022 by Article 37 of Decree-Law No. 21 of 2022, as converted, whose paragraph 5-bis expressly established that «[t]he revenues deriving from the contribution by way of an extraordinary solidarity levy determined pursuant to this article are allocated to the special statute regions and the autonomous provinces of Trento and Bolzano for the part due to them under their respective autonomy statutes».
The absence of a specific safeguard clause in this regard in the challenged regulation, however, «could just as reasonably lead to the interpretation» in the sense of the full devolution to the Treasury of the revenue deriving from the implementation of the challenged provisions, thus justifying the claim as a precautionary measure.
1.1.– On this interpretative assumption, the first ground of appeal denounces the violation of Articles 2, first paragraph, letter a), 3, first paragraph, letter f), 12, 48-bis and 50 of the special statute for Valle d’Aosta, Article 2, paragraph 1, letter b), of Law No. 690 of 1981 and Article 1 of Legislative Decree No. 320 of 1994.
In particular, the aforementioned Article 2, paragraph 1, letter b), of Law No. 690 of 1981 would attribute to the applicant Region the revenue of all «state taxes on the income of legal persons (as well as related surtaxes and substitute taxes)» collected in the regional territory, and among these, in any case, the corporate income tax (IRES).
The challenged provisions, on the other hand, would have, on the one hand, reserved to the State «the revenue of a state tax» calculated on the basis of the income determined for the purposes of the IRES, «arbitrarily subtract[ing] the revenue devolved […] to the Valle d’Aosta», and, on the other hand, «unilaterally regulate[d]» aspects proper to the special statute and related implementing legislation, which can be amended, pursuant to Article 1 of Legislative Decree No. 320 of 1994, «only by means of the procedure referred to in Article 48-bis of the same special statute», i.e., through the involvement of the joint committee and with the opinion of the Regional Council.
1.2.– In the opinion of the applicant, «consequently», Article 1, paragraphs 115 to 119, of Law No. 197 of 2022 would also be in contrast «with hierarchically superior sources, as they are of constitutional rank (Article 117, paragraph 3, and 119 of the Constitution in conjunction with Article 10 of Constitutional Law No. 3 of 18 October 2001 and the Valdostan Statute), as well as with a reinforced source (Law No. 690 of 1981, as amended by Legislative Decree 12/2011, prepared in agreement with the Regional Council)».
1.3.– Nor could the constitutional legitimacy of the challenged state provisions be identified by virtue of the provisions of Article 8, first paragraph, of the aforementioned Law No. 690 of 1981, which allows the State to reserve the revenue deriving «from increases in rates and from other modifications of the taxes» devolved to the Autonomous Region of Valle d’Aosta/Vallée d’Aoste, but only if it is allocated by law to cover new or increased expenses to be borne by the state budget.
It would also be evident that the second paragraph of the aforementioned Article 8 has not been respected, according to which the determination of the share of revenue reserved to the State should, however, take place in agreement with the Region, in accordance with the principle of loyal cooperation pursuant to Articles 5 and 120 of the Constitution.
1.4.– Finally, even considering the purposes of the state intervention establishing the contribution, Articles 48-bis and 50 of the special statute, applicable to the «participation of the special Regions in the equalizing-solidarity obligations and national finance», would still be infringed, due to violation of the procedure provided for amendments to the financial system.
1.5.– The second ground of appeal argues that Article 1, paragraphs 115 to 119, of Law No. 197 of 2022, interpreted in the feared sense, would violate the principle of loyal cooperation pursuant to Articles 5 and 120 of the Constitution, being «the result of a blatant disregard by the State for any form of direct involvement of the Region, in violation of the agreed method», the cornerstone of the regulation, through reinforced procedures, of financial relations between the State and the special autonomies.
2.– As a preliminary matter, it should be noted that the issues of constitutional legitimacy, raised as a precautionary measure, are admissible because they present a shareable interpretation of the challenged provisions (ex plurimis, Judgments No. 58 and No. 37 of 2021, No. 177 and No. 144 of 2020), in the sense that the revenue deriving from the implementation of these would be reserved to the State, without any co-participation in favor of the special autonomies.
In these provisions, in fact, an explicit clause is lacking, similar to that contained in paragraph 5-bis of Article 37 of Decree-Law No. 21 of 2022, as converted, aimed at ensuring for these territorial autonomies the revenue of the extraordinary contribution established for the year 2022.
Moreover, the expected proceeds from the challenged provisions, for the amount of EUR 2,546.8 million, on the one hand, have been fully included in the revenue budget, approved by Article 2 of Law No. 197 of 2022; on the other hand, in the context of the unitary budget decision for the year 2023, they have been used to finance expenses authorized by the same law to be borne by the State budget, which is, therefore, the only beneficiary of the revenues deriving from the implementation of the challenged provisions.
In this case, therefore, the general guarantee clause that appears in Article 1, paragraph 903, of the same Law No. 197 of 2022 does not operate, pursuant to which «[t]he provisions of this law are applicable in the special statute regions and in the autonomous provinces of Trento and Bolzano compatibly with the respective statutes and related implementing rules, also with reference to Constitutional Law No. 3 of 18 October 2001».
The challenged provisions, in fact, «have a prevailing prescriptive content» (Judgment No. 78 of 2020, point 3.2. of the Reasons for the Decision) compared to this general clause and, moreover, as will be seen below (point 5.1.), the reservation of the revenue to the State of the solidarity contribution is fully compatible with the regional statute.
Finally, the persuasive argument of the regional defense, based on the «substantial continuity» between the «[e]xtraordinary contribution against high energy bills», established pursuant to Article 37 of Decree-Law No. 21 of 2022, as converted, and that which is the subject of the proceedings, aimed at leveraging the express provision, in the first intervention, of the specific safeguard clause for the special autonomies contained in paragraph 5-bis of the aforementioned Article 37, cannot be accepted.
In reality, if with the aforementioned paragraph 5-bis the state legislator has granted the special autonomies a treatment plausibly more favorable than the rules governing the respective financial systems, this circumstance does not affect the assessment that only this Court can carry out regarding the compatibility of the challenged provisions with the special statutes.
3.– Again, as a preliminary matter, the inadmissibility of the issues of constitutional legitimacy raised with reference to Articles 117, third paragraph, and 119 of the Constitution, in conjunction with Article 10 of Constitutional Law No. 3 of 2001, must be declared.
The claim, in fact, completely omits to indicate the specific reasons in support of these violations, also neglecting those relating to the judgment of preference which, by virtue of the aforementioned Article 10, would make it possible to identify in the aforementioned constitutional parameters greater autonomy than that guaranteed by the statutory provisions, already specifically invoked as the basis of the first ground of complaint (Judgments No. 151 of 2017 and No. 254 of 2015; Order No. 250 of 2007).
4.– The scrutiny of the issues on the merits makes a concise reconstruction of the genesis of the current financial system of the Autonomous Region of Valle d’Aosta/Vallée d’Aoste, which guarantees the same a special regime of financial autonomy, appropriate.
4.1.– Unlike the other statutes of the special autonomies, the Valdostan statute does not analytically indicate the state tax revenues whose