JUDGMENT No. 31
YEAR 2024
Commentary on the decision by
Enrico Guerrieri
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 VIGANĂ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco DâALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has pronounced the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 33, paragraph 5-ter, of Decree Law No. 13 of 24 February 2023, containing «Urgent provisions for the implementation of the National Recovery and Resilience Plan (NRRP) and the National Plan of complementary investments to the NRRP (NCI), as well as for the implementation of cohesion policies and the common agricultural policy», converted, with amendments, into Law No. 41 of 21 April 2023, promoted by the Region of Puglia with application notified on 19-22 June 2023, filed with the Registry on 23 June 2023, registered under no. 19 of the register of applications for 2023, and published in the Official Gazette of the Republic no. 30, first special series, of the year 2023.
Having seen the act of constitution of the President of the Council of Ministers;
Having heard the reporting Judge Marco DâAlberti at the public hearing of 23 January 2024;
Having heard the lawyer Marcello Cecchetti for the Region of Puglia and the State Attorney Marco Corsini for the President of the Council of Ministers;
Resolved in the Chamber of the Council of 23 January 2024.
Considered in fact
1.– With an application notified on 19-22 June 2023, filed on 23 June 2023 and registered under no. 19 reg. ric. of 2023, the Region of Puglia, following a resolution of the Regional Council of 29 May 2023, raised questions of constitutional legitimacy concerning Article 33, paragraph 5-ter, of Decree Law No. 13 of 24 February 2023, containing «Urgent provisions for the implementation of the National Recovery and Resilience Plan (NRRP) and the National Plan of complementary investments to the NRRP (NCI), as well as for the implementation of cohesion policies and the common agricultural policy», converted, with amendments, into Law No. 41 of 21 April 2023, insofar as it amends paragraphs 5-bis and 5-ter of Article 9 of Decree Law No. 4 of 27 January 2022 (Urgent measures regarding support for businesses and economic operators, employment, health and local services, connected to the COVID-19 emergency, as well as for containing the effects of price increases in the electricity sector), converted, with amendments, into Law No. 25 of 28 March 2022.
The questions are raised in relation to Articles 117, paragraphs three and four, and 118, paragraph one, of the Constitution, as well as the principle of loyal cooperation.
The applicant argues that Article 33, paragraph 5-ter, of Decree Law No. 4 of 2022, as converted, in amending Article 9 of Decree Law No. 4 of 2022, as converted, would have infringed the legislative and administrative powers constitutionally guaranteed to the Region of Puglia, in violation of the constitutional parameters invoked.
2.– The Region recalls that, originally, Article 9, paragraph 5-bis, of Decree Law No. 4 of 2022, as amended by the conversion law No. 25 of 2022, had authorized the expenditure of 50 million euros for each of the years from 2022 to 2024 in order to carry out «infrastructure works» aimed at «guaranteeing the sustainability of the Mediterranean Games of Taranto 2026 from an environmental, economic and social point of view». The ownership of the measure was placed with the Territorial Cohesion Agency and it was provided that the related cost be covered «from the resources of the Development and Cohesion Fund, 2021-2027 programming period, referred to in Article 1, paragraph 177, of Law No. 178 of 30 December 2020».
Pursuant to the subsequent paragraph 5-ter, the infrastructural works, divided into «essential, connected and contextual works», should have been identified «with one or more decrees of the President of the Council of Ministers, on the proposal of the Minister for the South and Territorial Cohesion, in agreement with the Minister of Economy and Finance, with the Minister of Infrastructure and Sustainable Mobility and with the Political Authority delegated in matters of sport». According to the same provision, these decrees, to be adopted «in agreement with the Region of Puglia, having heard the territorially interested local authorities», should have distributed the resources allocated to the interventions and identified «the methods of monitoring» the latter, «the procedural timetable with the related objectives determined in accordance with the resources referred to in paragraph 5-bis, as well as the methods of revocation in the event of failure to feed the monitoring systems or failure to comply with the deadlines set by the procedural timetable».
3.– The Region of Puglia then describes the amendments to the text of Article 9, paragraphs 5-bis and 5-ter, introduced by Article 33, paragraph 5-ter, of Decree Law No. 13 of 2023, as converted.
A special commissioner was assigned the task of adopting a detailed program of the infrastructural works to be carried out, «divided into essential, connected and contextual works». The commissioner is appointed by decree of the President of the Council of Ministers, on the proposal of the Minister for European Affairs, the South, Cohesion Policies and the NRRP, in agreement with the Minister for Sport and Youth and with the Minister of Economy and Finance, «having heard the President of the Region of Puglia and the Mayor of Taranto» (paragraph 5-bis).
It is also provided that the program prepared by the commissioner be approved «with one or more decrees of the Minister for European Affairs, the South, Cohesion Policies and the NRRP and of the Minister for Sport and Youth, adopted in agreement with the Minister of Economy and Finance» (paragraph 5-ter).
4.– In relation to the provision for the appointment of the special commissioner, the applicant affirms that the commissioner's powers would insist on material areas of regional legislative competence, concurrent and residual, pursuant to Article 117, paragraphs three and four, of the Constitution. It therefore deduces the violation of these constitutional parameters, as well as Article 118, paragraph one, of the Constitution and the principle of loyal cooperation, because the challenged provision does not establish that the appointment must take place «in agreement» with the Region of Puglia, or in any case, in the alternative, through adequate collaborative involvement of the Region.
In particular, regarding the violation of Article 117, paragraphs three and four, of the Constitution, the applicant argues that the infrastructural interventions to be carried out would concern matters of concurrent regional legislative competence, including the sports organization and land government. It adds that a large part of the interventions, which will be detailed in the program of the special commissioner, such as, for example, those for infrastructures relating to purely local mobility, will be placed in the material areas of residual regional legislative competence.
The principle of subsidiarity referred to in Article 118, paragraph one, of the Constitution would also be violated, since an administrative function intended to affect multiple matters of concurrent and residual regional legislative competence would have been allocated at the state level, thus achieving a «call in subsidiarity» of the administrative function in question and the related legislative function in the absence of an agreement with the Region of Puglia.
In this regard, recalling the case law of this Court, which has deemed a mandatory and non-binding opinion sufficient to satisfy the collaborative claims of the region, in the case of general or regulatory acts of a "technical" nature and for specific measures affecting specific interests (judgment no. 6 of 2023), the applicant argues that the appointment of the special commissioner could not be considered a "merely technical" act, in light of the types of works that must be included in the program of interventions and the powers attributed to the commissioner himself.
The applicant observes that the acceptance of the questions would not lead to the configuration of a veto power by the Region, since in the event of failure to reach an agreement, the solution identified in the aforementioned judgment no. 6 of 2023 could be used, i.e. the application of the discipline referred to in Article 14-quinquies of Law No. 241 of 7 August 1990 (New rules on administrative procedure and right of access to administrative documents).
4.1.– In the alternative, the Region of Puglia deduces the constitutional illegitimacy of the contested provision insofar as it is limited to requesting, for the appointment of the special commissioner, the mere opinion of the President of the Region, instead of providing for procedural instruments â such as, for example, the submission of a shortlist of names, among which the Region is called to express its options, or the definition, in collaboration with the Region, of criteria for reaching the choice â capable of imposing on the State to effectively seek, as far as possible, the collaborative contribution of regional participation in the adoption of the decision.
5.– Furthermore, the Region of Puglia challenges Article 33, paragraph 5-ter, of Decree Law No. 13 of 2023, as converted, insofar as it has established that the program prepared by the commissioner of the infrastructural works necessary for the holding of the XX Mediterranean Games, to be held in Taranto in 2006 (hereinafter, also: Games) be approved «with one or more decrees of the Minister for European Affairs, the South, Cohesion Policies and the NRRP and of the Minister for Sport and Youth, adopted in agreement with the Minister of Economy and Finance», eliminating the provision, contained in Article 9, paragraph 5-ter of Decree Law No. 4 of 2022, as converted, according to which the identification of the infrastructural works would have taken place with one or more decrees of the President of the Council of Ministers, in agreement with the Region of Puglia.
In this regard, after reiterating that the infrastructural interventions to be carried out would concern matters of concurrent regional legislative competence, including the sports organization and land government, as well as residual, such as those relating to purely local mobility, the Region of Puglia deduces the constitutional illegitimacy of the aforementioned provision for violation of Articles 117, paragraphs three and four, and 118, paragraph one, of the Constitution, as well as the principle of loyal cooperation, as it would allocate to the state level an administrative function intended to affect multiple matters of concurrent and residual regional legislative competence.
The Region concludes that even in this case the failure to reach an agreement between the State and the Region on the approval of the program of works could be overcome by resorting to the discipline established by Article 14-quinquies of Law No. 241 of 1990.
6.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, appeared in court, arguing that the appointment of the special commissioner would have depended on the need to remedy the inertia of the Region of Puglia in the implementation of the obligations and commitments made in the context of European funding, such as the funds of the National Recovery and Resilience Plan (NRRP) or the programming for the Development and Cohesion Fund. This is because «[t]he organization of the Mediterranean Games 2026, following the assignment on 24 August 2019» would appear «seriously deficient, especially as regards the sports infrastructural works, essential for the performance of the event».
According to the state defense, there would be no undue interference in regional powers, since the contested provision would be extraneous to the matter of the sports organization, not affecting either the discipline of sports activities or the regulation of facilities and equipment.
The President of the Council of Ministers observes, then, that the case in question does not concern the use of state funds intended for the construction of new facilities, but the «use of European funds, for the correctness and timeliness of which the responsibility lies with the State».
The provision would not even concern the matter of land government, as the programming of interventions would have been «largely carried out previously, almost entirely by the Region and local authorities, remembering above all that the interventions relating to the Mediterranean Games are connected with what is foreseen by the Institutional Development Contract of the city of Taranto».
Moreover, the provision would obey «obvious reasons of speed, consistent with the exceptional and emergency nature of the figure of the Special Commissioner».
The President of the Council of Ministers concludes by asking that the questions of constitutional legitimacy promoted by the Region of Puglia be declared unfounded.
7.– With a brief filed on 2 January 2024, the Region of Puglia replied to the defenses of the President of the Council of Ministers.
The applicant, in the first place, notes that even if considering â as the public defense seems to argue â the provisions object of this judgment in light of the exercise of the state substitute powers referred to in Article 120, paragraph two, of the Constitution, these powers would not have been exercised according to procedures respectful of the principles of subsidiarity and loyal cooperation.
In particular, the Region affirms that there would have been a lack of adequate prior notice, or in any case an act of formal notice to comply within a reasonable time, as foreseen by Article 8, paragraph 1, of Law No. 131 of 5 June 2003 (Provisions for the adaptation of the legal system of the Republic to Constitutional Law No. 18 of 18 October 2001), as well as by Article 12 of Decree Law No. 77 of 31 May 2021 (Governance of the National Recovery and Resilience Plan and first measures to strengthen administrative structures and accelerate and streamline procedures), converted, with amendments, into Law No. 108 of 29 July 2021.
The Region of Puglia then reiterates that the intervention of the State would concern the matters of sports organization, land government and local public transport. The circumstance, emphasized in the counterparty's defenses, that the discipline object of censure would fall within the field of «the use of European funds, for the correctness and timeliness of which the responsibility lies with the State», would not be relevant, since pursuant to Article 117, paragraph five, of the Constitution, it is the regions and the autonomous provinces of Trento and Bolzano that must implement the acts of the European Union in the matters of their competence.
Finally, the Region disputes the statement of the State Attorney General's Office according to which the provision, in the challenged provision, of a simple opinion instead of an agreement for the appointment of the special commissioner would not have determined an attenuation of regional involvement. On this point, the reference made by the counterparty to Article 132 of the Constitution, governing the institution of the merger of existing regions or the creation of new regions, would be irrelevant.
8.– At the public hearing of 23 January 2024, the State defense insisted on the deductions made in the brief presented in court and filed, with the consent of the applicant, two notes, dated 6 December 2022 and 10 March 2023, jointly signed by the Ministry for European Affairs, the South, Cohesion Policies and the NRRP and by the Minister for Sport and Youth addressed to the organizing Committee of the XX edition of the Mediterranean Games Taranto 2026.
According to the state defense, the notes would demonstrate that the legislative intervention challenged by the Region of Puglia would have depended on an inertia of the Region itself, which the State was required to remedy through its substitute intervention.
The applicant, in contesting what was argued by the state defense, has among other things noted that the notes in question were not addressed to the Region of Puglia and has affirmed that they, in any case, would not be suitable to integrate the procedural requirements requested for the exercise of the substitute powers of the State.
Considered in law
1.– The Region of Puglia has raised questions of constitutional legitimacy concerning Article 33, paragraph 5-ter, of Decree Law No. 13 of 2023, as converted, which has amended Article 9, paragraphs 5-bis and 5-ter, of Decree Law No. 4 of 2022, as converted, with reference to Articles 117, paragraphs three and four, and 118, paragraph one, of the Constitution, as well as the principle of loyal cooperation.
2.– The provision is, in the first place, challenged in the part in which, in letter a), number 2), in order to ensure the timely implementation of the interventions necessary for the holding of the XX Mediterranean Games, to be held in Taranto in 2026, it has provided, amending the aforementioned paragraph 5-bis, the appointment of a special commissioner by decree of the President of the Council of Ministers, on the proposal of the Minister for European Affairs, the South, Cohesion Policies and the NRRP, in agreement with the Minister for Sport and Youth and with the Minister of Economy and Finance, having heard (among others) the President of the Region of Puglia, instead of in agreement with the Region of Puglia or in any case, in the alternative, through an adequate collaborative involvement of the same Region.
According to the applicant, the powers of the commissioner would insist on material areas of regional legislative competence, concurrent and residual, in violation of Article 117, paragraphs three and four, of the Constitution and the principle of loyal cooperation. In particular, the infrastructural interventions in question would concern matters of concurrent regional legislative competence (the sports organization and land government), as well as residual (local mobility).
The principle of subsidiarity referred to in Article 118, paragraph one, of the Constitution would also be violated, since an administrative function intended to affect multiple matters of concurrent and residual regional legislative competence would have been allocated at the state level, thus achieving a call in subsidiarity of the administrative function in question and the related legislative function, in the absence of an agreement with the Region.
3.– Furthermore, Article 33, paragraph 5-ter, of Decree Law No. 13 of 2023, as converted, is challenged in the part in which, in letter b), it has provided, amending the aforementioned Article 9, paragraph 5-ter, of Decree Law No. 4 of 2022, as converted, that the program prepared by the commissioner of the infrastructural works necessary for the holding of the Games be approved «with one or more decrees of the Minister for European Affairs, the South, Cohesion Policies and the NRRP and of the Minister for Sport and Youth, adopted in agreement with the Minister of Economy and Finance», eliminating the provision, contained in the previous version of the aforementioned paragraph 5-ter, which had delegated the identification of the infrastructural works to one or more decrees of the President of the Council of Ministers, in agreement with the Region of Puglia.
The applicant formulates censures similar to those previously raised, invoking the same constitutional parameters, due to the lack of a provision for an agreement with the Region for the approval of such interministerial decrees.
4.– The analysis of the questions submitted presupposes the exact qualification of the nature of the power exercised by the State through the appointment of the special commissioner and through the provision for the approval with interministerial decrees of the program of interventions prepared by the commissioner himself.
4.1.– According to the Region of Puglia, this would be a call in subsidiarity, as some concurrent regional legislative competences (in the matter of land government and sports organization) and residual competences (in the matter of local public transport) would have been attracted at the state level, together with the related administrative functions.
The State defense, on the other hand, considers the appointment of the commissioner and the approval of his program with interministerial decrees as the exercise of the substitute powers referred to in Article 120, paragraph two, of the Constitution and, in particular, of those foreseen by Article 12 of Decree Law No. 77 of 2021, as converted. The substitute intervention would have depended, specifically, on the need «to remedy the inertia of the Region in the implementation of the obligations and commitments made in the context of European funding, such as the funds of the NRRP or the FSC programming». In support of his thesis, the President of the Council of Ministers filed two ministerial notes addressed to the Organizing Committee of the Games at the hearing.
4.2.– In this regard, it must be remembered that the exercise of substitute powers presupposes a crisis situation of the autonomy, which can reach the point where the concurrent regional powers, with which the challenged state regulation interferes, can be «temporarily and exceptionally "contractedâ, due to the previous regional inertia or, in any case, the inadequate exercise of the powers themselves» (judgment no. 233 of 2019). This Court has clarified that the law must «provide adequate procedural guarantees for the exercise of the substitute power, in accordance with the principle of loyal cooperation […] not by chance expressly recalled also by Article 120, paragraph two, last sentence, of the Constitution […]. Therefore, a procedure must be foreseen in which the substituted entity is in any case put in a position to avoid the substitution through autonomous fulfillment, and to participate in the same procedure» (judgment no. 43 of 2004).
4.3.– Now, in the case under consideration, no procedure preparatory to the exercise of substitute powers was activated.
The appointment of the special commissioner â with the assignment of the related functions â was not, in fact, preceded by the procedure described in Article 8, paragraph 1, of Law No. 131 of 2003, according to which the Government, if it intends to exercise the substitute powers foreseen by Article 120, paragraph two, of the Constitution, must assign a reasonable time to the region or local authority concerned, in such a way that there is still the possibility for the non-compliant entity to adopt the necessary or required acts.
The specific procedural procedure foreseen in Article 12 of Decree Law No. 77 of 2021, as converted, regarding the exercise of the substitute power in the context of the governance of the NRRP, which applies in the case of failure to comply, by the Regions or local authorities, with the obligations and commitments aimed at implementing the NRRP and assumed as implementing subjects, where the achievement of the intermediate and final objectives of the Plan itself is at risk, was not even followed.
In this case, the President of the Council, on the proposal of the Steering Committee for the NRRP referred to in Article 2 of Decree Law No. 77 of 2021, as converted, or of the competent Minister, assigns a deadline to the implementing subject concerned to take action, which may not exceed fifteen days. In the event of continuing inertia, on the proposal of the President of the Council of Ministers or of the competent Minister, having heard the implementing subject also in order to identify all the causes of said inertia, the Council of Ministers identifies an entity, or appoints a commissioner ad acta, to whom is attributed, as a substitute, «the power to adopt all the necessary acts or measures or to provide for the execution of the projects and interventions» (Article 12, paragraph 1, second sentence, of Decree Law No. 77 of 2021, as converted), as well as to adopt with a reasoned and immediately effective order the acts that are strictly indispensable to guarantee compliance with the timetable of the project (Article 12, paragraph 5, first and fourth sentence, of the same Decree Law).
The circumstance that a similar procedure was not implemented is confirmed in Article 33, paragraph 5-ter, letter a), number 2, of Decree Law No. 13 of 2023 itself, as converted, which does not contemplate the activation of said procedure and, indeed, refers to Article 12, paragraphs 1, second sentence, and 5, first and fourth sentence, of Decree Law No. 77 of 2021, as converted, only in relation to the method of exercise of the commissioner powers.
Furthermore, the notes filed in court by the public defense are extraneous to the topic of the exercise of substitute powers, as they do not contain disputes addressed by the Government to the Region of Puglia or the invitation to adopt, within a set deadline, acts of competence of the Region. In the two notes, in fact, the signatory Ministers limited themselves to requesting information from the Organizing Committee of the Games, which includes, among others, a representative of the Government, and, subsequently, to note critical issues that could compromise the timely start of the interventions in good time for the conduct of the event.
Therefore, with the legislative intervention under examination, the substitute powers referred to in Article 120, paragraph two, of the Constitution were not exercised.
4.4.– With the contested provision, a call in subsidiarity was instead achieved, since the State has attracted to itself tasks that affect matters falling within the legislative competence of the Region of Puglia, in order to satisfy the need for a unitary exercise of the functions relating to the implementation of the infrastructures for the holding of the Games.
The principle of subsidiarity, which allows the attraction at the state level of legislative powers of the regions, intersects with that of loyal cooperation, which requires the State to assess the interests at stake and make the relevant decisions, as far as possible, through a debate with the regions concerned. The procedural value of subsidiarity is thus emphasized, which finds its natural expression in the loyal and collaborative dialogue of the parties (judgment no. 303 of 2003).
Ultimately, if the interested regions, holders of concurrent or residual legislative powers, are not adequately involved in the decision-making process object of attraction in subsidiarity, or their collaborative contribution is unjustifiably reduced, this results in a violation of the principle of loyal cooperation and of Articles 117, paragraph three, and 118, paragraph one, of the Constitution (judgment no. 246 of 2019).
5.– Therefore, the call in subsidiarity cannot disregard respect for the principle of loyal cooperation. The adequacy of the collaborative instrument chosen by the legislator must be evaluated in relation to the functions attracted in subsidiarity and the breadth of the regional powers involved (judgments no. 6 of 2023 and no. 62 of 2005).
5.1.– In order to this last profile, the matter predominantly affected by the contested provision is that, falling within the concurrent legislative competence between the State and the regions, of land government, which the Court has considered «inclusive, in principle, of "everything that concerns the use of the territory and the location of facilities or activitiesâ (cf. judgment no. 307 of 2003) â i.e. the set of rules that allow to identify and grade the interests on the basis of which the admissible uses of the territory can be regulated» (thus, among many, judgment no. 196 of 2004).
In fact, pursuant to Article 9, paragraph 5-ter, of Decree Law No. 4 of 2022, as converted, the infrastructure necessary for the holding of the XX Mediterranean Games are distinguished in: «essential works», which are the infrastructural works whose construction is foreseen by the candidacy dossier, or which are necessary to make the existing infrastructure already identified in the same dossier efficient and appropriate (letter a); «connected works», i.e. those necessary to connect the essential works to the places where the sporting events take place and to the existing infrastructure network (letter b); «contextual works», which are those that integrate the accessibility system to the places where the sporting events take place or that will be directly or indirectly affected by the same, or that offer opportunities for the enhancement of the territory during the Games (letter c).
In essence, the interventions that, on the basis of the contested provision, will be included in the program prepared by the special commissioner and approved with one or more interministerial decrees will mainly concern the location on the territory and the construction of important infrastructures.
The State defense, in this regard, denies that the intervention concerns the matter of land government, asserting that: «the programming of the interventions has been largely carried out previously, almost entirely by the Region and local authorities»; the interventions relating to the XX Mediterranean Games «are connected with what is foreseen by the Institutional Development Contract of the city of Taranto»; and that «the rule only provides for the distinction of the works into the categories "essentialâ, "connectedâ and "contextualâ for the purpose of efficient exercise of the commissioner's powers». These arguments, however, contradict what is foreseen by the contested provision, which assigns to the special commissioner a much broader power, i.e. that of preparing the detailed program «of the infrastructural works needed», which does not appear to be bound by the outcome of previous programming activities carried out by the Region of Puglia.
5.2.– The legislative intervention in question also concerns the matter of «sports organization».
This Court has repeatedly stated that «the discipline of sports facilities and equipment» falls within the matter of sports organization (judgment no. 424 of 2004) and that the use of a state fund aimed at the construction of new sports facilities or the renovation of existing ones is attributable to the same competence (judgments no. 40 of 2022 and no. 254 of 2013). The contested provision also concerns the financing of sports facilities, since the program prepared by the commissioner contains the estimated cost and the amount of funding that can be granted