ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 1 of Regional Law of Calabria no. 16 of 24 April 2023, containing "Authorisation for the operation of the chauffeur-driven car hire service (NCC)”, initiated by the President of the Council of Ministers with an appeal notified on 23 June 2023, filed with the registry on 27 June 2023, registered under no. 20 in the 2023 appeals register, and published in the Official Gazette of the Republic no. 31, first special series, of the year 2023.
Seen the deed of constitution of the Calabria Region;
Heard the Judge Rapporteur Luca Antonini at the public hearing of 7 February 2024;
Heard the State Advocate Paola Palmieri for the President of the Council of Ministers and the lawyer Domenico Gullo for the Calabria Region;
Resolved at the deliberation meeting of 7 February 2024.
Considering that the President of the Council of Ministers, with the appeal indicated above, has raised questions of constitutional legitimacy of Article 1 of Regional Law of Calabria no. 16 of 2023, which provides: a) that, in order to address the increase in demand due to the increase in tourist flows and to guarantee transport services, the competent regional department issues to Ferrovie della Calabria srl "non-transferable authorisations” for the performance of the NCC service referred to in Law no. 21 of 1992 (paragraph 1); b) that such authorisations are issued "up to a maximum limit of two hundred cars, proportionate to the needs of users, after verifying possession of the requirements referred to in Article 6 of Law no. 21/1992 and pending the specific regulatory discipline, to be adopted within one year from the entry into force of this law” (paragraph 2);
that the appellant raises two sets of objections to the contested Article 1, considering that it infringes Article 117, second paragraph, letter e), of the Constitution, in relation to the matter of "protection of competition”, and Article 118, first and second paragraphs, of the Constitution, with reference to the principle of subsidiarity;
that, according to the first ground of objection, the provision under complaint would conflict, on the one hand, with Articles 5, paragraph 1, and 8, paragraph 1, of Law no. 21 of 1992, according to which the municipalities, once they have established the requirements and conditions for obtaining authorisations to operate the NCC service, issue them after publication of a "public tender notice"; on the other hand, with Article 10-bis, paragraph 6, of Decree Law no. 135 of 2018, as converted, which prohibits the granting of new authorisations to operate the NCC service until the "full operation" of the national public computerised register introduced by the preceding paragraph 3, which is not yet operational;
that, as regards the second ground of objection, in the opinion of the appellant, the contested provision would deprive the municipalities of the functions entrusted to them by the aforementioned Article 5, paragraph 1, of Law no. 21 of 1992;
that, starting from the alleged vulnus to Article 117, second paragraph, letter e), of the Constitution, the order of the grounds of objection presented in the appeal must be reversed in limine;
that, in this perspective, the state objection of violation of Article 117, second paragraph, letter e), of the Constitution must first be examined with regard to the alleged violation of the parameter norm referred to in Article 10-bis, paragraph 6, of Decree Law no. 135 of 2018, as converted, since it essentially establishes a ban on the issuing of new authorisations for the NCC service;
that this prohibition, in fact, derives from paragraph 3 of the same Article 10-bis – where it provides for the establishment of "a national public computerised register of companies holding a licence for the taxi service [...] and those holding authorisation for the NCC service" and entrusts a decree "of the Ministry of Infrastructure and Transport" with identifying the "technical specifications for implementation and [the] methods by which the aforementioned companies must register" – and, in particular, from the subsequent paragraph 6, according to which, "until the full operation" of the same register, "the issue of new authorisations for the performance of the NCC service is not permitted";
that the objection in question is also logically preliminary with respect to the alleged violation of the first group of parameter norms – Articles 5, paragraph 1, and 8, paragraph 1, of Law no. 21 of 1992 – indicated by the state appeal, which are positioned downstream of said prohibition, concerning the procedures for awarding the authorisations themselves;
that there is an evident relationship of necessary prejudiciality (Order no. 94 of 2022) between the issue raised by the appellant with reference to Article 117, second paragraph, letter e), of the Constitution and those arising from the doubts of constitutional legitimacy raised by the discipline contained in Article 10-bis, paragraph 6, of Decree Law no. 135 of 2018, as converted, which are configured as "logically preliminary and instrumental" to the definition of the present proceedings (ex plurimis, Orders no. 94 of 2022, no. 18 of 2021; in the same sense, Order no. 114 of 2014);
that, moreover, "[...] it cannot be held that the Court itself is required to apply unconstitutional laws" (Order no. 22 of 1960), otherwise leading to the paradox that, until an issue regarding them is raised in an incidental manner by the ordinary court, the constitutional illegitimacy of a legislative provision is declared on the basis of another, taken as an interposed parameter, which in turn conflicts with the Constitution;
that it is therefore preliminarily necessary, for the purpose of defining the present proceedings, to address the question of the constitutional legitimacy of the prohibition on the issue of new authorisations for the performance of the NCC service, established until the full operation of the aforementioned computerised register;
that this register was not operational at the time of the adoption of the contested provision, since the effectiveness of the ministerial decree referred to in paragraph 3 of Article 10-bis, which established its full operation as of 2 March 2020 (Ministry of Infrastructure and Transport, Decree of the Head of the Department for Transport, Navigation, General Affairs and Personnel, of 19 February 2020, no. 4), was, the following day, suspended and postponed (Ministry of Infrastructure and Transport, Decree of the Head of the Department for Transport, Navigation, General Affairs and Personnel, of 20 February 2020, no. 86) until the adoption of the decree provided for in paragraph 2 of the same Article 10-bis, aimed at determining the technical specifications of the service sheet in electronic format, which, however, has not been issued;
that this Court has already examined, with Judgment no. 56 of 2020, precisely in relation to an appeal in the principal action by the Calabria Region, the prohibition established by Article 10-bis, paragraph 6, of Decree Law no. 135 of 2018, as converted, excluding "an unreasonable restriction of competition to the benefit of taxi licence holders, for which the temporary ban on issuing does not operate", but only to the extent that "the number of companies operating in the sector" was blocked "for the technical time strictly necessary to concretely adopt the new register";
that by virtue of the persistence of the block on the entry of new NCCs more than five years after the entry into force of Decree Law no. 135 of 2018, as converted, it must be considered that this "technical time" has been able to continue in a completely unjustified manner, to the point of leading to doubts about the constitutional legitimacy of the way in which the aforementioned Article 10-bis, paragraph 6, has established the prohibition in question;
that the doubts of constitutionality cannot be excluded because they are attributable to "a mere factual inconvenience", or to mere "contingent circumstances relating to the [...] concrete application" of the provision (ex plurimis, Judgment no. 170 of 2017), not suitable according to the jurisprudence of this Court to introduce the judgment of constitutional legitimacy of a norm;
that they, in fact, derive from the "very structure" (Judgment no. 132 of 2018) of the "normative mechanism" provided for by the provision in question and from its "combination" (Judgment no. 166 of 2022) with the methods foreseen to give "full operation [to] the national public computerised archive";
that it is precisely this combination that allows the possibility of blocking for an indefinite period the issue of new authorisations for the performance of the NCC service, as has in fact happened so far;
that the not manifestly unfounded nature of the prejudicial question on Article 10-bis, paragraph 6, of Decree Law no. 135 of 2018, as converted, arises in relation to Articles 3, with reference to the principles of reasonableness and proportionality, 41, first and second paragraphs, and 117, first paragraph, of the Constitution;
that, in light of "an 'assessment of conformity between the rule introduced and the normative 'cause' that must assist it'" (most recently, Judgment no. 195 of 2022), the intrinsic rationality of the aforementioned norm may be doubted;
that it may also be doubted, with reference to the principle of proportionality, the existence of a rational connection between the means provided by the legislator and the end that the latter intends to pursue (ex plurimis, Judgment no. 8 of 2024);
that, according to the constant orientation of the constitutional jurisprudence, a violation of the freedom of private economic initiative is not configured except "when the imposition of general limits on its exercise corresponds, in addition to the protection of primary values relating to the human person, as sanctioned by Article 41, second paragraph, of the Constitution, to social utility" (Judgment no. 150 of 2022; in the same sense, ex plurimis, Judgments no. 151 and no. 47 of 2018, no. 16 of 2017 and no. 56 of 2015);
that, however, it may be doubted that the state provision in question, as structured, is attributable to a reason of social utility or to an interest of the community, appearing rather to respond to a protectionist instance;
that this Court has clarified how blocks or suspensions of authorisations functional to the exercise of economic activities can translate into "an undue barrier to entry into the market", conflicting "also with the formal freedom of access to the market guaranteed by the first paragraph of Article 41 of the Constitution" (Judgment no. 7 of 2021);
that this Court has also recently highlighted that precisely the non-scheduled public transport market is "characterised, as the Competition and Market Authority has repeatedly remarked (most recently, by means of a report of 3 November 2023, ref. no. S4778), by an inadequate opening to the entry of new subjects" (Judgment no. 8 of 2024);
that the need to avoid unjustified barriers in the specific sector of the transport of persons by means of the NCC service has recently been clarified also by the Court of Justice of the European Union, clarifying that restrictions on the freedom of establishment may be admitted only on condition, "first, of being justified by an overriding reason of general interest and, second, of respecting the principle of proportionality, which implies that they are suitable to guarantee, in a coherent and systematic manner, the achievement of the pursued objective and do not exceed what is necessary to achieve it" (judgment of 8 June 2023, in case C-50/21, Prestige and Limousine SL);
that doubts may therefore be raised about the conformity of the norm in question with the freedom of establishment referred to in Article 49 of the Treaty on the Functioning of the European Union (TFEU), as interpreted by the Court of Justice;
that, therefore, this Court cannot refrain, for the purpose of defining the present proceedings, from resolving prejudicially the questions, as outlined above, of the constitutional legitimacy of the prohibition on the issue of new authorisations for the performance of the NCC service established in Article 10-bis, paragraph 6, of Decree Law no. 135 of 2018, as converted, with reference to Articles 3, 41 first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 49 TFEU.
For These Reasons
THE CONSTITUTIONAL COURT
1) raises, ordering its treatment before itself, questions of constitutional legitimacy of Article 10-bis, paragraph 6, of Decree Law no. 135 of 14 December 2018 (Urgent provisions on support and simplification for businesses and the public administration), converted, with amendments, into Law no. 12 of 11 February 2019, with reference to Articles 3, 41, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 49 of the Treaty on the Functioning of the European Union;
2) suspends the present proceedings until the definition of the questions of constitutional legitimacy referred to above;
3) orders that the registry carry out the legal formalities.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 7 February 2024.
Signed:
Augusto Antonio BARBERA, President
Luca ANTONINI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on 7 March 2024