Judgment No. 36 of 2024
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 pronounced the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 2, paragraph 4, of the Law of the Calabria Region No. 37 of 7 August 2023, containing "Provisions for the operation of non-scheduled public transport and rules concerning the role of drivers of non-scheduled public transport services," initiated by the President of the Council of Ministers with an appeal notified on 6 October 2023, filed with the registry office on the subsequent 9 October, registered under No. 31 in the register of appeals for 2023, and published in the Official Gazette of the Republic No. 44, first special series, for the year 2023.
Having considered the instrument of constitution of the Calabria Region;
Having heard in the public hearing of 7 February 2024, the Reporting Justice Giovanni Pitruzzella;
Having heard the State Attorney Paola Palmieri for the President of the Council of Ministers and the Attorney Domenico Gullo for the Calabria Region;
Resolved in the council chamber of 7 February 2024.
Facts of the Case
1. – With an appeal registered under No. 31 in the register of appeals for 2023, notified on 6 October 2023 and filed on the subsequent 9 October, the President of the Council of Ministers, represented and defended by the State Attorney General, initiated a question of constitutional legitimacy regarding Article 2, paragraph 4, of the Law of the Calabria Region No. 37 of 7 August 2023 (Provisions for the operation of non-scheduled public transport and rules concerning the role of drivers of non-scheduled public transport services), with reference to Article 117, second paragraph, letter e), of the Constitution.
1.1. – In the opinion of the appellant, the regional provision would also grant those who operate a rental service with driver (hereinafter also referred to as: NCC), and not only those holding licenses for taxi services, the power to experiment with innovative forms of service for users.
1.2. – This extension would conflict with national legislation and, in particular, with Article 2, paragraph 3-bis, of Law No. 21 of 15 January 1992 (Framework Law for the transport of persons by non-scheduled public car services), which would allow municipalities to provide, only for holders of a license for taxi services, the power to carry out supplementary services, such as shared taxi services or other organised forms of service.
The aforementioned limitation would be confirmed by Article 6, paragraph 1, letter e), of Decree-Law No. 223 of 4 July 2006 (Urgent provisions for economic and social recovery, for the containment and rationalisation of public spending, as well as interventions in matters of revenue and the fight against tax evasion), converted, with amendments, into Law No. 248 of 4 August 2006, which regulates innovative services and limits their experimentation to the context of taxi services.
The challenged provision would, therefore, be detrimental to the exclusive legislative competence of the State in the area of "protection of competition", as it would be the duty of the State to define the balance between the free exercise of transport activities and the public interests that interfere with this freedom, by dictating a uniform regulation of the conditions for carrying out the NCC service.
2. – With an instrument filed on 15 November 2023, the Calabria Region constituted itself in the proceedings, asking to declare inadmissible or in any case unfounded the question of constitutional legitimacy initiated by the President of the Council of Ministers.
2.1. – According to the respondent, the challenged provision would be an expression of the residual competence of the Region with regard to non-scheduled public services and would not depart from national legislation on innovative services. There would, therefore, be no encroachment on the sphere of exclusive legislative competence of the State.
2.2. – In any case, the interpretation implied in the appeal, which limits the power to use innovative forms of service to users only to holders of a license for taxi services, would not be convincing.
3. – The National Association of Passenger Transport Companies (ANITraV) filed, in its capacity as amicus curiae, a written opinion, admitted by presidential decree of 21 December 2023, and highlighted the critical issues in the non-scheduled public service sector, also reported by the Italian Competition Authority and the Transport Regulatory Authority.
The appellant's thesis, which considers innovative services to be prohibited for holders of an authorisation for NCC service, would not be supported by the normative data. The disparity of treatment between those who provide taxi services and those who provide NCC services would in any case be arbitrary.
4. – Close to the hearing, the appellant filed an explanatory brief and reiterated the conclusions already submitted, also replying to the arguments of the respondent and the amicus curiae.
4.1. – The challenged provision would be pleonastic if it were understood as a substantial reproduction of that dictated by the State.
4.2. – Finally, the thesis of the amicus curiae, which denounces a detrimental treatment of holders of authorisations to operate NCC services, without taking into account the specificity of this service, which cannot be compared to that of taxis, would not be founded.
5. – At the hearing, the appellant and the respondent insisted on the acceptance of the conclusions formulated in the defence documents.
Legal Considerations
1. – With an appeal registered under No. 31 reg. ric. 2023, the President of the Council of Ministers challenges Article 2, paragraph 4, of the Law of the Calabria Region No. 37 of 2023, for violation of Article 117, second paragraph, letter e), of the Constitution.
1.1. – The regional provision allows the Municipalities, "at the request of the holders of a taxi service license or of the subjects referred to in Article 7, paragraph 1, letters b) and c), of Law No. 21/1992", to "provide, on an experimental basis, innovative forms of service for users, with service obligations and differentiated rates, issuing specific authorisations for this purpose".
1.2. – The appellant criticises the regional legislation, as it extends the power to experiment with innovative forms of service for users to subjects authorised to provide NCC services.
This extension would conflict with the national legislation dictated by Articles 2, paragraph 3-bis, of Law No. 21 of 1992 and 6, paragraph 1, letter e), of Decree-Law No. 223 of 2006, as converted, which would recognise the power to provide innovative services only to holders of a license for taxi services, thus infringing the attributions of the State legislator in the area of "protection of competition" (Article 117, second paragraph, letter e, of the Constitution).
2. – The question is not founded, in the terms that follow.
3. – The criticisms stem from an erroneous hermeneutic premise, with regard to the interpretation of the regional legislation and the related profile of the protection of competition in the market for non-scheduled public transport services.
4. – With regard to the scope of application of the challenged provision, it should be noted that it does not include, among its addressees, those who operate an NCC service.
4.1. – The regional legislation is linked to Article 6, paragraph 1, letter e), of Decree-Law No. 223 of 2006, as converted, which aims to "ensure, for taxi services, the timely adaptation of the essential levels of taxi service supply necessary for the exercise of the users' right to mobility".
In this context, the power of the municipalities to "provide, on an experimental basis, innovative forms of service for users, with service obligations and differentiated rates, issuing specific authorisations for this purpose to holders of a taxi service license or to the subjects referred to in Article 7, paragraph 1, letters b) and c), of the aforementioned Law No. 21 of 1992" is included.
Therefore, only the holders of a license for taxi services, who carry out the activity individually or who are associated in production and work cooperatives or in service cooperatives (Article 7, paragraph 1, letter b, of Law No. 21 of 1992) or in consortia between craft enterprises and in all other forms provided for by law (Article 7, paragraph 1, letter c, of Law No. 21 of 1992) can access innovative forms of service for users.
4.2. – The provision of the Law of the Calabria Region No. 37 of 2023, in its essential lines, follows national legislation and specifies its indications, with exclusive regard to taxi services.
The reference to service obligations, which relate to taxi services and represent their distinctive feature compared to NCC services, characterised by the preponderant role of the autonomous agreements of the contracting parties, is unequivocal in this sense.
Nor does the regional provision contain any reference to NCC services that could corroborate, from a textual point of view, the interpretation outlined in the appeal.
4.3. – This interpretation is not even supported on the systemic level.
The Law of the Calabria Region No. 37 of 2023 pursues the objective of dictating "rules regarding the transport of persons by non-scheduled public car services in application of Law No. 21 of 15 January 1992 (Framework Law for the transport of persons by non-scheduled public car services)" (Article 1), and must therefore be interpreted in harmony with national legislation, in the absence of textual indications to the contrary.
4.4. – The challenged provision, thus delimited in its object and in the purposes that inspire it, does not, therefore, affect NCC services.
It falls within the scope of the residual regional competence in the area of local public transport (among many, judgment No. 56 of 2020), without trespassing into the area reserved to the State legislator and without altering the point of balance identified by Law No. 21 of 1992 in the exercise of the competence defined by Article 117, second paragraph, letter e), of the Constitution.
5. – The interpretative premise underlying the appeal does not prove to be founded even with reference to the supposed prohibition of carrying out innovative services in the NCC sector.
The appellant starts from the assumption that these services are precluded to those who operate NCC services. From the express discipline that the State legislator limits to innovative services within the taxi market, it should be inferred, a contrario, that such services are prohibited to subjects authorised to carry out NCC services.
This assumption, which represents the core of the current proceedings, is contradicted by arguments of both a literal and a systemic nature.
6. – It should be noted, first of all, that prohibitions must be sanctioned in explicit terms, all the more so when they affect qualifying points of the regulatory structure and limit the freedom guaranteed by Article 41 of the Constitution.
6.1. – It is the same diachronic evolution of the regulation of NCC services that confirms that the legislator, when introducing limits and prohibitions, has set them explicitly.
Article 29, paragraph 1-quater, of Decree-Law No. 207 of 30 December 2008 (Extension of deadlines provided for by legislative provisions and urgent financial provisions), converted, with amendments, into Law No. 14 of 27 February 2009, and Article 10-bis of Decree-Law No. 135 of 14 December 2018 (Urgent provisions on support and simplification for businesses and for public administration), converted, with amendments, into Law No. 12 of 11 February 2019, establish binding constraints and stringent conditions explicitly.
6.2. – The need to interpret prohibitions restrictively (Court of Cassation, first civil section, order 18 October 2021, No. 28565) and the perimeter of administrative sanctions (Court of Cassation, second civil section, judgment 19 May 2017, No. 12679) also guides the jurisprudence of legitimacy, which, in relation to NCC services, affirms the need for an express provision of any differentiated treatment.
6.3. – Nor can indications to the contrary be drawn from Article 6 of Decree-Law No. 223 of 2006, as converted, which intervenes to regulate in an organic way the implementation of innovative services in the taxi sector, without, however, prohibiting them for NCC activities.
For taxis, the need for a specific regulation stems from the link between the innovative forms, encouraged by the State legislator, and the corresponding service obligations, intended to have repercussions on the modulation of tariffs and on the concrete attitude of the necessary authorisations.
Moreover, the ratio of Decree-Law No. 223 of 2006, as converted, and of a punctual intervention by the legislator lies in the indispensable need to remedy the shortcomings and rigidities of taxi services and to implement the "Community principle of free competition" and that "of freedom of movement of persons and services", in order to ensure "the functionality and efficiency of the same service appropriate for the purposes of urban mobility pursuant to Articles 43, 49, 81, 82 and 86 of the Treaty establishing the European Community and Articles 3, 11, 16, 32, 41 and 117, second paragraph, letters e) and m), of the Constitution" (Article 6, paragraph 1, of the aforementioned Decree-Law No. 223 of 2006, as converted).
The purpose of implementing the "Community principle of free competition" in a particular sector, characterised by a marked public connotation and therefore in need of detailed rules, cannot entail any sacrifice of the freedom of private economic initiative in relation to NCC activities, which are extraneous to the scope of application of the reform intervention.
6.4. – It must be excluded, finally, that the different configuration of non-scheduled public services is reflected in the provision of innovative services, so as to preclude it in NCC activities.
The special regime that the legislator prepares for this activity, aimed at a specific and not undifferentiated user base, its local vocation and the prescriptions established by law for the primary purpose of safeguarding it are not in conflict with the provision of innovative services.
The radical and indiscriminate prohibition of providing innovative services is contradicted, moreover, by the fact that the legislator itself shows that it attaches importance, in this area, to innovation, when it allows the booking, at the headquarters or garage, also through the use of technological tools (Article 3, paragraph 1, of Law No. 21 of 1992, as amended by the aforementioned Decree-Law No. 135 of 2018, as converted).
7. – In the reconstruction of the system, the same division of competences, invoked in the instrument of appeal and indissolubly linked to the constitutional principles that intersect with the protection of competition, proves to be decisive.
8. – The prohibition, which the State defence presents, could not be attributed to this protection, in the breadth that it presents in the constitutional framework.
The protection of competition, in fact, is not only understood as a contrast to the acts and behaviours of companies that negatively affect the competitive structure of the markets, but also encompasses the promotion of competition between companies.
This promotion, which justifies the impact of national legislation on matters of regional competence, is achieved, first of all, through the elimination of limits and constraints on the free expression of entrepreneurial capacity. Competitive guarantee procedures also cooperate in promoting competition, aimed at ensuring the widest possible opening of the market to all economic operators (among many, judgment No. 56 of 2020, with reference to non-scheduled public transport).
The finalistic character of the constitutional protection of competition requires this Court to examine the conformity of national legislation with the purpose that the Constitution prescribes as the primary task of the State in the most disparate expressions of economic life.
This objective does not reflect a merely static and conservative meaning, but is primarily expressed in the expansion of the area of free choice for both citizens and businesses (judgment No. 430 of 2007).
9. – In this perspective, the research and use of innovations play an essential role.
Innovations, which range in every sector (products, methods of production, industrial structures, markets), represent the cornerstone of the freedom of private economic initiative and of the interaction between companies in an efficient market that is attentive to the needs of consumers.
An indistinct prohibition of carrying out innovative services, which would therefore disregard the necessary assessment of any negative externalities, would damage the essential core of private economic initiative and of the competitive process on which it is based.
This vulnus would be even more evident in a context characterised by incessant technological innovations, which exploit the network and the interconnection between different modes of transport, and by the search for new types of service provision, which it is not possible to predetermine in the abstract or prohibit without a consideration of costs and benefits.
10. – The prohibition, adduced by the appellant in support of the criticisms, would not only conflict with the protection of competition, but would also lead to a serious sacrifice of the freedom of private economic initiative, without implementing any point of balance between the free exercise of economic activities and the public interests involved in the competitive dynamics of the market (judgments No. 265 of 2016 and No. 30 of 2016).
10.1. – In the sector of car rental with driver, this Court has declared the constitutional illegitimacy of the provision of managerial and organisational burdens without adequate justification and disproportionate, such as the absolute obligation to return to the garage before undertaking a new transport (judgment No. 56 of 2020).
10.2. – In line with these principles, the jurisprudence of legitimacy has also expressed itself, which, for the differentiated treatment between taxi services and NCC services, has emphasised the need for a legitimate purpose and the observance of the canons of adequacy and proportionality (Court of Cassation, second civil section, judgment 10 October 2008, No. 24942).
10.3. – Even the administrative jurisprudence, called upon to examine the limits imposed exclusively on those who carry out NCC activities, has considered them detrimental to the principles of impartiality of administrative activity and reasonableness, as well as to the freedom of private economic initiative, when they alter the rules of competition between the different types of road transport operators and imply "an unjustified restriction of the principle of competition" (Council of State, fifth section, judgment 7 February 2024, No. 1261).
10.4. – Converging indications can be inferred from the jurisprudence of the Court of Justice of the European Union regarding the application of Article 49 of the Treaty on the Functioning of the European Union, which guarantees freedom of establishment, to the relationships between companies that provide taxi services and companies authorised for NCC services.
With reference to the smaller number of licenses that a Spanish regulation attributed to those who operate NCC services (one thirtieth of those reserved for taxis), the Court of Justice of the European Union reiterated the need to rigorously examine the pre-eminent aims of general interest that preside over the limiting discipline (the objectives of correct management of transport, traffic and public space in the urban agglomeration and of environmental protection). Furthermore, the measures adopted must be adequate and must not go beyond what is shown to be indispensable to achieve the objectives set by law (Court of Justice of the EU, first section, judgment 8 June 2023, case C-50/21, Prestige and Limousine, SL).
The cited ruling highlighted the crucial role that NCC services are called upon to play, precisely by virtue of the use of technological innovation, to "contribute to achieving the objective of efficient and inclusive mobility, thanks to their level of digitisation and flexibility in the provision of services, such as a technological platform accessible to the blind" (paragraph 96).
11. – Ultimately, the prohibitions and obligations imposed on companies authorised to provide NCC services, in order to be legitimate, must be functional to the protection of a specific public interest, adequate and proportionate to the purpose to be pursued. In the present case, no aim of general interest is found that could justify the prohibition of providing innovative services.
12. – A generalised prohibition of providing innovative services would lack any rational justification and would constitute a protectionist measure in favour of a specific category of companies, undermining not only the freedom of private economic initiative, which has its hallmark in the constant search for innovations, but also the well-being of the consumer.
12.1. – The demand for non-scheduled mobility now considers taxi and NCC services to be largely interchangeable, as reported by the Italian Competition Authority (Report of 15 October 2019), the Public Transport Regulatory Authority (Reports to Parliament and the Government of 21 May 2015 and 10 March 2017), and the European Commission (Communication from the European Commission on well-functioning and sustainable local on-demand passenger transport, taxis and private hire vehicles with driver, 2022/C 62/01).
In a context in which the meeting between the supply and demand for mobility makes use of internet applications and there are considerable difficulties, especially in large cities, in efficiently meeting the demand for local non-scheduled transport, consumers turn indifferently to the two types of companies, which therefore tend to merge into a single market.
12.2. – The prohibition of providing innovative services, detached from the diversity of the regime of the two non-scheduled public services, would undermine the freedom of choice, resulting in prejudice for the consumer, who represents the inescapable point of reference of any discipline aimed at protecting competition.
The possibility for NCC companies to provide innovative services, also recognised to companies authorised for taxi services, albeit compatibly with the tariff and public service obligations that characterise them, expands the freedom of choice of the consumer and thus increases the degree of effectiveness of the freedom of movement (Article 16 of the Constitution), which is the condition for the exercise of other rights, concerning the most diverse areas, from work, to study, to culture, to leisure, to tourism.
Nor, on the profile of the well-being of the consumer citizen, submitted to the hearing of the parties, were circumstantial elements indicated to justify the prohibition of providing innovative services.
13. – Also from this perspective, the prohibition in question would not constitute the point of balance between the different interests of constitutional relevance that, in the regulation of non-scheduled public transport, confront each other.
14. – In light of the systematic framework thus reconstructed, the national legislation evoked by the appellant and the regional one that shares its scope of application must be interpreted in the sense that they do not prevent subjects authorised to provide NCC services from providing innovative services, in compliance with the obligations sanctioned by law for the specific activity carried out.
15. – From the illustrated observations, the lack of foundation of the question follows.
For These Reasons
THE CONSTITUTIONAL COURT
declares the question of constitutional legitimacy of Article 2, paragraph 4, of the Law of the Calabria Region No. 37 of 7 August 2023, containing "Provisions for the operation of non-scheduled public transport and rules concerning the role of drivers of non-scheduled public transport services", initiated by the President of the Council of Ministers with the appeal indicated in the preamble, with reference to Article 117, second paragraph, letter e), of the Constitution, to be unfounded, in the senses set forth in the explanatory memorandum.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 7 February 2024.
Signed:
Augusto Antonio BARBERA, President
Giovanni PITRUZZELLA, Drafting Justice
Roberto MILANA, Director of the Registry
Filed in the Registry Office on 7 March 2024