ORDER No. 30 ***

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Judges: Franco MODUGNO, 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

ORDER

in the proceedings concerning the constitutional legitimacy of Article 2 of Decree-Law No. 85 of 7 July 2022 (Urgent provisions on motorway concessions and infrastructure and for the acceleration of administrative proceedings relating to works or interventions financed with the National Recovery and Resilience Plan), transposed into Article 7-ter of Decree-Law No. 68 of 16 June 2022 (Urgent provisions for the safety and development of infrastructure, transport and sustainable mobility, as well as regarding major events and for the functionality of the Ministry of Infrastructure and Sustainable Mobility), converted, with amendments, into Law No. 108 of 5 August 2022, initiated by the Regional Administrative Tribunal for Lazio, Fourth Section, in the proceedings between Strada dei Parchi spa and others and the Ministry of Infrastructure and Sustainable Mobility and others, by non-final judgment of 29 December 2022, registered under No. 96 of the 2023 Register of Orders and published in the Official Gazette of the Republic No. 28, first special series, of the year 2023.

Having seen the deeds of constitution of Toto Holding spa, Strada dei Parchi spa and Concessioni Autostradali spa, of the Coordination of associations and committees for the protection of the environment and the rights of users and consumers (Codacons) and of the Association of Motorway Users, as well as the deed of intervention of the President of the Council of Ministers;

Having heard at the public hearing of 6 February 2024 the Judge Rapporteur Filippo Patroni Griffi;

Having heard the lawyers Massimo Luciani for Toto Holding spa, Strada dei Parchi spa and Concessioni Autostradali spa, Mariacristina Tabano for Codacons and for the Association of Motorway Users, as well as the State Attorney Gianna Galluzzo for the President of the Council of Ministers;

Deliberated in the deliberation chamber of 6 February 2024.

Whereas by non-final judgment of 29 December 2022 (reg. ord. No. 96 of 2022), the Regional Administrative Tribunal for Lazio, Fourth Section, raised, with reference to Articles 3, 24, 25, 77, 97, 101, 102, 103, 111 and 113 of the Constitution, questions of constitutional legitimacy of Article 2 of Decree-Law No. 85 of 7 July 2022 (Urgent provisions on motorway concessions and infrastructure and for the acceleration of administrative proceedings relating to works or interventions financed with the National Recovery and Resilience Plan), not converted, "discipline then transposed into Article 7-ter of Decree-Law No. 68 of 16 June 2022” (Urgent provisions for the safety and development of infrastructure, transport and sustainable mobility, as well as regarding major events and for the functionality of the Ministry of Infrastructure and Sustainable Mobility), converted, with amendments, into Law No. 108 of 5 August 2022;

whereas the provisions are censured in the part where, on the one hand, they sanction the termination of the single agreement of 18 November 2009 signed between ANAS spa and Strada dei Parchi spa for the concession management of the A24 and A25 motorways – already ordered administratively by the decree of the Ministry of Infrastructure and Sustainable Mobility (MIMS) 14 June 2022, No. 29, approved by decree of its Minister in concert with the Minister of Economy and Finance (MEF) of (the same) 7 July 2022 – and in the part where, on the other hand, they assign the provisional management of the road network to ANAS spa, with effect from 8 July 2022;

whereas the questions are raised in the joined administrative proceedings brought by the concessionaire for the annulment of the aforementioned ministerial decrees of termination and the consequential acts that ordered the takeover by ANAS spa;

whereas the referring court, after having extensively argued on its jurisdiction, has presented the peculiarity of the case under its examination: in the case in point, the challenged acts are not implementing the primary rules being censured, but the latter repeat the termination will of the administrative measures, of which they adopt the motivations and to which they confer immediate and definitive effectiveness;

whereas, on the point of relevance, the TAR Lazio assumes that it must apply the provisions by reason of their "juxtaposition” to the administrative determinations;

whereas, in particular, the legalization of the measures would render their challenge devoid of the necessary interest in the decision, since, even if the defects asserted in the appeal were to prove founded, the termination of the concession relationship would remain sanctioned by the normative provision, which would definitively prevent the desired reinstatement in the ownership of the concession;

whereas, on the point of non-manifest ungroundedness, the judge a quo laments, firstly, the defect in the legislative function for the lack of the prerequisites of extraordinary necessity and urgency required by Article 77, second paragraph, of the Constitution;

whereas, secondly, having qualified the legislative intervention as a law-provision, it denounces both the conflict with Articles 3 and 97 of the Constitution, for the unreasonableness and arbitrariness of the choice of legalizing the administrative acts, and the unlawful interference with the judicial function and the compression of the right of defense;

whereas the companies Strada dei Parchi spa, Toto Holding spa and Concessioni Autostradali spa, respectively appellant and intervening parties ad adiuvandum in the main proceedings, have constituted themselves, requesting the acceptance of the questions raised by the TAR Lazio;

whereas the Coordination of associations and committees for the protection of the environment and the rights of users and consumers (Codacons) has also constituted itself, intervening ad opponendum in the proceedings a quo, which has concluded for the inadmissibility and, in the alternative, for the unfoundedness of the questions;

whereas the President of the Council of Ministers has intervened, represented and defended by the State Attorney General's Office, requesting that the questions be declared inadmissible or, in any case, unfounded;

whereas in view of the public hearing, the state defense and Strada dei Parchi spa have filed briefs with which they have concordantly acknowledged the supervening, in the course of the constitutional proceedings, of Article 14-bis of Decree-Law No. 145 of 18 October 2023 (Urgent measures on economic and fiscal matters, in favor of territorial bodies, for the protection of employment and for unpostponable needs), converted, with amendments, into Law No. 191 of 15 December 2023, which would contain a further law-provision which, in the opposite direction to the one being censured, has ordered the reinstatement of the concessionaire in the concession relationship and has dictated a specific discipline, "substitut[ing] the previous one";

whereas from the ius superveniens the public party infers the inadmissibility of the questions for supervening irrelevance, while the private party argues the need for the return of the acts to the judge a quo for a new evaluation of the relevance;

whereas it has also been stated and documented that, in application of the novella, Strada dei Parchi spa has waived both the administrative appeals and the acts of the civil proceedings brought against the granting administration and ANAS spa.

Considering that the TAR Lazio, Fourth Section, doubts, with reference to Articles 3, 24, 25, 77, 97, 101, 102, 103, 111 and 113 of the Constitution, the constitutional legitimacy of Article 2 of Decree-Law No. 85 of 2022, not converted, "discipline then transposed into Article 7-ter” of Decree-Law No. 68 of 2022, as converted, on the one hand, in the part where it sanctions the termination of the single agreement signed between ANAS spa and Strada dei Parchi spa relating to the concession of the A24 and A25 motorways – already ordered administratively – and, on the other hand, in the part where it assigns the provisional management of the road network to ANAS spa, with effect from 8 July 2022;

whereas the referring court's reference to the two different sources originates from the circumstance that the censored normative precepts, initially contained in Article 2 of Decree-Law No. 85 of 2022, not converted, were reproduced in Article 7-ter of Decree-Law No. 68 of 2022, as converted, without variations and without interruption;

whereas, in fact, before the expiry of the conversion deadline of Decree-Law No. 85 of 7 July 2022, during the conversion of Decree-Law No. 68 of 16 June 2022, the provisions of the indicated Decree-Law No. 85 were reproduced and, at the same time, its repeal was ordered, the validity of the acts and measures adopted during its validity was confirmed and the effects produced and the legal relationships medio tempore arising were safeguarded;

whereas, therefore, as a result of this tortuous technique of normative production – the result of an anomalous use of the peculiar procedure for converting the decree-law (judgment No. 22 of 2012), which prejudices the clarity of the laws and the intelligibility of the legal system (judgment No. 58 of 2018), principles that are functional to guaranteeing certainty in the concrete application of the law (judgment No. 110 of 2023) – at the time of the passage to the decision of the proceedings a quo, Article 7-ter of Decree-Law No. 68 of 2022, as converted, was in force, which the referring TAR considered to "constitute the only legislation to be applied to the case in point”;

whereas, therefore, only the aforementioned Article 7-ter must be considered the subject of doubts of constitutional legitimacy;

whereas the disputed provisions are contained, in particular, in the first two paragraphs of Article 7-ter of Decree-Law 68 of 2022, as converted, while the further provisions governing the consequential aspects of the termination of the agreement and the ordered provisional management are not censored, and therefore, those that have established: a) the prescriptions and rules for the conduct of the activity entrusted to ANAS spa (last part of paragraph 2 and paragraphs 3 and 8); b) the handover from the outgoing concessionaire to the new assignee (paragraphs 4, 5 and 6); c) the economic items connected to the termination choice (paragraphs 10 to 12);

whereas, subsequently to the order for referral, Article 14-bis of Decree-Law No. 145 of 2023, as converted, has intervened;

whereas this legislative intervention – within the limits of what is of interest − provides, firstly, for the reinstatement of Strada dei Parchi spa in the concession of the A24 and A25 motorways with effect from 00:00 on 1 January 2024 and until the expiry established in the relevant single agreement of 2009, extended by a period of time equal to that in which, following its termination, the management was provisionally entrusted to ANAS spa;

whereas, secondly, it governs the reversion of the management of the motorways from ANAS spa to Strada dei Parchi spa;

whereas the effectiveness of the aforementioned rules is subject to waivers by the concessionaire of the proceedings brought against the granting ministry, ANAS spa and any other public body (Article 14-bis, paragraphs 1, letter a, and 5), waivers that have intervened as concordantly stated and documented by the parties in the constitutional proceedings;

whereas, furthermore, Article 14-bis of Decree-Law No. 145 of 2023, as converted, intervenes, in several aspects, on the property relationships between granting authority and concessionaire, with "revocation” of what was sanctioned in this regard with the previous law;

whereas, as regards the intertemporal regime, its paragraph 9 establishes that from the date of the reinstatement itself "the provisions of Article 7-ter, paragraphs 3, 4, 5, 6, 7, 8, 10, third sentence, 11 and 12, of the aforementioned decree-law No. 68 of 2022” cease to have effect, and, therefore, the provisions dedicated to the effects consequential to the ordered forfeiture of the concession and to the temporary entrustment of the motorway network to ANAS spa;

whereas both the censored discipline and the ius superveniens have a specific and concrete content and affect a single legal relationship, thus revealing, as referred to by the parties, the nature of a law-provision (most recently, judgments No. 186 and No. 89 of 2022; No. 49 of 2021 and, with particular reference to rules that have affected specific motorway concession relationships, judgments No. 168 of 2020 and No. 181 of 2019);

whereas the normative supervening, pursuant to Article 15 of the preliminary provisions of the Civil Code, entails an abrogation of the censored rules, as it contains a new regulation of the "matter” in which the latter are inserted;

whereas, in fact, Article 14-bis of Decree-Law No. 145 of 2023, as converted, with the described content – "mirroring” that of Article 7-ter of Decree-Law 68 of 2022, as converted – dictates a new discipline of the management of the A24 and A25 motorways, based on the (now) ordered revival of the agreement (previously) terminated;

whereas the innovative will is confirmed in the headings of the normative interventions that have followed one another, the first bearing "Urgent provisions for the management and safety of the A24 and A25 motorway sections” and the second bearing "Provisions relating to the management of the A24 and A25 motorway sections”;

whereas, it should be stressed, the supervening legislation, in providing on the concession in a "equal and opposite” way to the previous law, does not limit itself to establishing the rules for the continuation of the relationship, but "withdraws” the effects consequential to the termination – except those exhausted with the provisional management – and lapses the rules that it had dictated for it;

whereas the illustrated normative supervening could be applicable in the definition of the main proceedings;

whereas, in fact, in those proceedings, the censored rules are neither a parameter of constitutional [italicized word suppressed by the corrective order No. 102 of 2024] legitimacy, nor the basis of the challenged administrative measures, hypotheses in which, according to the jurisprudence of this Court, the ius superveniens does not produce effects since the review of the legitimacy of the acts of the administration is subject to the principle of tempus regit actum and must, therefore, be conducted on the basis of the rules in force at the time of their adoption (ex plurimis, judgments No. 227 of 2021; No. 170 and No. 7 of 2019; No. 240 of 2018);

whereas, on the contrary, according to the peculiarity highlighted by the referring court, the provisions contained in Article 7-ter of Decree-Law No. 68 of 2022, as converted, should have been applied in the evaluation of the interest in appealing, of which they would determine the lack as a result of the operation of legalization of the termination decrees;

whereas, as is known, the interest to act, as a requirement for obtaining a ruling on the merits, is necessary and sufficient that it exists at the time of the passage to the decision, so that its evaluation is subject to the discipline in force at that time;

whereas, therefore, the verification and the manner in which the interest in the pronouncement of the administrative judge is shaped should be re-evaluated in light of the supervening Article 14-bis of Decree-Law No. 145 of 2023, as converted;

whereas, it should be added, the censored rules – because of their provision, in relation to a specific concession relationship, of the termination of the agreement with the assignment to a third party of the management of the motorways – have instantaneously produced and exhausted their main effect and are not intended for further applications, not even between the parties of that relationship;

whereas, for the reasons illustrated, a re-examination of the continuing relevance of the questions is required;

whereas, unlike what is argued by the State Attorney General's Office, the ius superveniens does not entitle this Court to directly declare the inadmissibility of the questions for "supervening irrelevance" (judgment No. 171 of 2023 and order No. 243 of 2021);

whereas, rather, according to the constant constitutional jurisprudence, the significant change in the regulatory framework entails the return of the acts to the referring court, which is responsible for verifying its impact on the case object of the proceedings a quo (among the many, orders No. 72 and No. 36 of 2023; No. 231 and No. 97 of 2022; No. 243 of 2021);

whereas, in conclusion, the return of the acts to the TAR Lazio is necessary, with absorption of the profiles of inadmissibility raised by the parties.

For These Reasons

THE CONSTITUTIONAL COURT

orders the return of the acts to the Regional Administrative Tribunal for Lazio, Fourth Section.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 6 February 2024.

Signed:

Augusto Antonio BARBERA, President

Filippo PATRONI GRIFFI, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on 27 February 2024