JUDGMENT NO. 42
YEAR 2024
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, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has delivered the following
JUDGMENT
in the judgment concerning the constitutional legitimacy of Article 5, paragraph 4, letter b), of the Law of the Tuscany Region of December 27, 2018, no. 73 (Financial Provisions. Connected to the Stability Law for the Year 2019), promoted by the Court of Appeal of Florence, Labor Division, in the proceedings between J. M. and the Tuscany Region, with order of March 10, 2023, registered as no. 93 in the register of orders 2023 and published in the Official Gazette of the Republic no. 28, first special series, of the year 2023.
Having seen the acts of constitution of J. M. and the Tuscany Region;
Having heard the Judge rapporteur Stefano Petitti at the public hearing of February 20, 2024;
Having heard the lawyers Alberto Guariso for J. M. and Marcello Cecchetti for the Tuscany Region;
Having deliberated in the council chamber of February 20, 2024.
Considered in fact
1.– By order of March 10, 2023, registered as no. 93 in the register of orders 2023, the Court of Appeal of Florence, Labor Division, raised the question of the constitutional legitimacy of Article 5, paragraph 4, letter b), of the Law of the Tuscany Region of December 27, 2018, no. 73 (Financial Provisions. Connected to the Stability Law for the Year 2019), with reference to Article 3 of the Constitution.
1.1.– The referring court states that it must rule on the appeal against the order issued by the Ordinary Court of Arezzo, which rejected the civil action against discrimination of persons with disabilities brought by J. M., an Albanian citizen residing in Tuscany, pursuant to Article 3 of Law No. 67 of March 1, 2006 (Measures for the judicial protection of persons with disabilities who are victims of discrimination).
In particular, J. M. contested the discriminatory nature of the measure by which, in application of the contested provision, the Municipality of Arezzo had denied her the financial contribution provided for by the same provision in favor of families with disabled minor children.
Despite the severe disability of her minor son (suffering from Duchenne muscular dystrophy) and a family income in which the value of the equivalent economic situation indicator (ISEE) was less than €29,999.00 per year (as required by Article 5, paragraph 4, letter c, of the Tuscany Regional Law no. 73 of 2018), the application to obtain the provision in question – submitted on May 12, 2020 – had been rejected because it lacked the requirement provided for by the contested letter b), according to which "both the parent and the disabled minor child must have been continuously resident in Tuscany, in structures not illegally occupied, for at least twenty-four months prior to the date of January 1 of the year of reference of the contribution".
The appellant was in fact only resident in the Municipality of Arezzo from March 5, 2019, therefore for less than twenty-four months.
The Court of Arezzo, after having declared the question of constitutional legitimacy raised by J. M. for violation of Articles 3 and 120 of the Constitution manifestly unfounded, by order of April 21, 2021, no. 965, rejected the appeal, considering that the requirement of two years of registered residence in Tuscany did not conflict with the principle of equality and was not unreasonable.
2.– Called upon to rule on the same exceptions of constitutional legitimacy raised by the appellant, the referring Court considers the one relating to the violation of Article 3 of the Constitution to be relevant and not manifestly unfounded.
In support of the relevance, the a quo judge first of all takes note of the regularity of the application to obtain the contribution submitted by the appellant as well as of the family relationship between the appellant and the minor, and notes the existence of the other requirements provided for by law for access to the benefit.
It then highlights the impossibility of proceeding to disapply the legislative provision for conflict with supranational sources that protect disability and prohibit related discrimination (Article 21 of the Charter of Fundamental Rights of the European Union and Article 14 of the European Convention on Human Rights), considering that the exclusion of the contribution did not derive from factors relating to the situation of disability, but rather from the different residence requirement.
According to the referring Court, the provision could also not be disapplied for non-observance of the obligation of "reasonable accommodation" provided for by Article 2 of the United Nations Convention on the Rights of Persons with Disabilities, made in New York on December 13, 2006, ratified and made enforceable by Law No. 18 of March 3, 2009, considering that this rule, although it has flowed into the law of the European Union by virtue of Council Decision 2010/48/EC of November 26, 2009, relating to the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities, does not have direct effects.
Similarly, the a quo judge excludes that there are any discriminations relating to reasons of nationality, prohibited by supranational legislation, as the two-year requirement appears too short to constitute indirect discrimination for foreigners compared to Italian citizens.
The referral order therefore considers it unavoidable to apply, for the purpose of resolving the case, the provision being challenged, and a different interpretation consistent with the Constitution cannot be envisaged – in view of its literal wording.
3.– On the merits, Article 5, paragraph 4, letter b), of the Tuscany Regional Law no. 73 of 2018 would conflict with the principle of equality referred to in Article 3 of the Constitution, since it would dictate, to the detriment of the appellant's family, a differentiated and "unjustifiably worse" treatment compared to the situation of families with disabled minor children residing in the Tuscany Region for at least two years before January 1 of the year in which they request the contribution.
From a first point of view, the requirement of at least two years of residence would have nothing to do with the condition of disadvantage that the regional law aims to alleviate, i.e., the condition of disability combined with a medium-low income, so the preferential treatment reserved for families residing for more than two years compared to those who have not met this requirement would be unjustified.
From a second point of view, it would be unreasonable to prefer – for the purpose of recognizing the provision – those families in which a disabled person lives with a less severe disability than the appellant's child and who have an income higher than the latter, albeit within the threshold of €29,999.00, solely by reason of residence in the regional territory for a period equal to or greater than two years.
3.1.– The referring judge highlights how the Region's power to limit the disbursement of the financial contribution, taking into account the financial resources available, must be exercised on reasonable grounds, therefore preferring families in which there is a minor with more severe disabilities or those with lower income. He then observes how the two-year residence requirement cannot act as a suitable instrument to avoid abusive behavior, considering it highly unlikely that a family with disabled minor children would decide to move within the Tuscan regional territory for the sole purpose of using the contribution (which is also overall modest, as it is equal to €700.00 per year).
In the case at hand, the criterion based on the two-year residence requirement would therefore not be reasonable, because it would lack any connection with the "function of the service offered", required by the case law of this Court (reference is made to judgments no. 7 of 2021, no. 281 and no. 44 of 2020, no. 107 of 2018 and no. 222 of 2013).
4.– The Tuscany Region, in the person of the President pro tempore of the Regional Council, has appeared in court, requesting that the question be declared unfounded.
4.1.– Although not formally objecting to the inadmissibility of the question, the regional defense considers that this Court is nonetheless precluded from the review, allegedly requested by the referral order, aimed at replacing the two-year residence criterion with a different modulation of the other requirements provided for by the contested provision and referring to the degree of disability or income.
4.2.– On the merits, the regional defense highlights that the provision in question is not among the essential levels of services guaranteed and financed by the State, which alone would allow to "disregard any rooting with the regional territorial reality", so it would be admissible to reserve the disbursement to "families that, over time, have contributed to the growth of the regional community".
According to the Tuscany Region, there would be a substantial difference between the contributions granted with state resources and those disbursed with resources drawn from the regional budget, with the consequence that only for the former would any "periods of suspension be precluded if a beneficiary moves from one Region to another", as in the case of measures to support disability established by the Region with national funds.
Moreover, with reference to the requirement of previous residence, the "suitable and reasonable correlation with the function and purpose of the services or benefits" required by the case law of this Court (reference is made to judgment no. 7 of 2021) is identified by the regional defense in the need to ensure a non-negligible figure to families with disabled minor children, considering the scarcity of regional resources.
Moreover, the limitedness of the minimum period of residence required (two years), the absence of references to the requirement of citizenship and of constraints on subsequent permanence in the regional territory would serve to differentiate the contested provision from others that the case law of this Court has considered, over the years, not to respect the principle of proportionality and reasonableness, as they refer to requirements and services of a significantly different nature (reference is made to judgments no. 9 of 2021, no. 106 of 2018 and no. 168 of 2014).
The contested provision would also be aimed at preventing opportunistic behaviors, such as those of non-residents who are driven to move to the regional territory solely in view of the possibility of "accessing social services free of charge and unlimitedly".
4.3.– According to the Region, the two-year residence requirement introduced by the contested provision would serve to avoid, as also demonstrated by the preparatory works, the enlargement of the "pool of beneficiaries, outside of any criterion of predictability, with the risk that families of disabled minor children would be attributed an almost irrelevant annual sum".
The elimination of the two-year residence requirement, which occurred through the amendment contained in Article 19, paragraph 4, letter b), of the Law of the Tuscany Region of December 28, 2021, no. 54 (Financial Provisions. Connected to the Stability Law for the Year 2022), would not undermine the legitimacy of the same, but would be the result of a prognostic judgment, based on the experience gained, relating to the adequacy of the allocated resources (which remain fixed at the figure of €1,850,000.00) to cover also an increase in applicants.
5.– J. M. has appeared in court, asking this Court to uphold the question of constitutional legitimacy.
5.1.– Preliminarily, the defense of the private party also points out that, in the years following the one in which the application for contribution was submitted, various regional legal provisions (the aforementioned Article 19, paragraph 4, letter b, of the Tuscany Regional Law no. 54 of 2021 as well as Article 23, paragraph 4, letter b, of the Law of the Tuscany Region of December 29, 2022, no. 44, containing "Financial Provisions. Connected to the Stability Law for the Year 2023") have established that for access to the same it was sufficient the sole requirement of residence at the time of submitting the application, without any need for a previous two-year rooting.
In light of this, the defense of the private party, while declaring that it "has no interest in raising a formal objection of inadmissibility of the question", alludes to the possibility that the referring judge could – once having acknowledged the "further and different meaning" that the rule has assumed "in the social context" of reference (reference is made to the Court of Cassation, Labor Division, order of January 24, 2023, no. 2121) – apply the new criteria to the previous pending situation.
5.2.– On the merits, the absence of any reasonable correlation between the characteristics of the benefit and the two-year residence requirement would be proven from several points of view.
First of all, the previous residence alone would not provide any indication as to the actual contribution of the beneficiary to the local community (especially in the case of a family unit in need of assistance) and would not guarantee the future stability of the subject in the regional territory, as no requirements for permanence are provided for.
Secondly, the extreme modesty of the contribution would denote the legislator's intention to provide immediate aid to beneficiaries, and not to provide a long-term benefit for stable residents.
Moreover, the stability of residence could "never take precedence over the assessment of need", as established by the case law of this Court (reference is made to judgments no. 2 of 2013 and no. 40 of 2011). On the contrary, a person with a disability who has recently moved to the regional territory would have greater needs for public support, not being able to count on informal support networks.
The defense of the private party then maintains that the modest amount of the contribution should lead to a more rigorous judgment of rationality of the rule, "it being even less explainable why the Region, in disbursing modest sums but still aimed at a very serious social need, should distinguish its residents based on the duration of previous residence".
Finally, the introduction of previous residence requirements would risk absolutely precluding access to social services in the case of a person who often changes residence for reasons of life, who would find themselves unable to benefit from the services in any region.
6.– With a brief filed close to the public hearing, the defense of the private party further reiterated the reasons supporting the acceptance of the question.
7.– During the oral discussion, the defense of the Tuscany Region preliminarily objected to the inadmissibility of the question due to lack of relevance, as the ascertainment of the absence of discrimination, to the detriment of the appellant, for reasons related to disability would determine the exhaustion of the specific potestas iudicandi attributed to the referring court in the context of the anti-discrimination judgment.
Considered in law
1.– With the order indicated in the headnote, the Court of Appeal of Florence, Labor Division, raised the question of the constitutional legitimacy of Article 5, paragraph 4, letter b), of the Tuscany Regional Law no. 73 of 2018, with reference to Article 3 of the Constitution.
The contested provision establishes that, among the requirements to access the contribution of €700.00 per year, for the three-year period 2019-2021, aimed at supporting families with disabled minor children, there is also that for which "both the parent and the disabled minor child must have been continuously resident in Tuscany, in structures not illegally occupied, for at least twenty-four months prior to the date of January 1 of the year of reference of the contribution".
1.1.– The a quo judge states that he must rule, within the framework of an anti-discrimination judgment, on the appeal filed by J. M. against the order of the Court of Arezzo of April 21, 2021, no. 965, which considered that the measure denying the contribution adopted by the Municipality of Arezzo against the appellant was not discriminatory, as the latter, at the time of submitting the request (May 12, 2020), had not met the two-year residence requirement, having only been resident in Tuscany since March 5, 2019.
2.– The Court of Appeal of Florence considers that the contested provision conflicts with Article 3 of the Constitution, because the exclusion of the applicant from the provision would give rise to "an unjustifiably worse treatment, compared to that of other families with disabled minor children who have been residing in Tuscany for at least two years before January 1 of the year in which they request the contribution". The absence of a reasonable justification for the requirement in question would be derived from the fact that it does not show any correlation with the situation of need that the subsidy in question aims to alleviate and from its discriminatory nature compared to those families, residing for more than two years, in which there is a minor affected by a less severe disability and/or who show that they have a higher income than that of the appellant in the a quo judgment.
3.– The defense of the Tuscany Region raised, during the oral discussion, an objection of inadmissibility of the question due to lack of relevance.
According to the regional defense, the referring Court, called to rule within the framework of a judgment aimed at ascertaining and removing the discrimination suffered by persons with disabilities, would first of all have excluded the existence of such discrimination with regard to the appellant, noting that the exclusion from the contribution would depend solely on the fact that she had been residing in Tuscany, at the time of submitting the application, for less than two years, and would have focused its criticisms of constitutional illegitimacy on this profile.
In this way, however, the question would be considered lacking relevance, because it was raised after the referring court, due to the fact that it had excluded the discriminatory nature of the protracted residence requirement for reasons related to disability, had exhausted the specific potestas iudicandi attributed to it in the context of this type of judgment.
3.1.– The objection is unfounded.
Preliminarily, it is necessary to reiterate that the verification of the prerequisites for the establishment of the judgment of constitutional legitimacy, and, first of all, of the relevance of the questions, is limited to the finding of the non-implausibility of the reasoning used by the referring authority, in compliance with the criterion, constantly followed by the case law of this Court, of "external control" (judgments no. 23 of 2024, no. 198 and no. 192 of 2023).
In the case at hand, the assessment of relevance made by the a quo judge can be considered non-implausible.
The statement contained in the order, on which the regional defense focuses its objection, is that according to which J. M. "is not discriminated against as a disabled person or as the mother of a disabled child", as the exclusion from the contribution would depend "on the fact that she has been residing in Tuscany for less than two years".
However, it is not possible to derive from this sentence, considered independently and detached from the sequence of arguments used in the reasoning of the referral order, the conclusion that the a quo judge would have unreservedly excluded the existence of discriminatory conduct, for reasons related to disability, to the detriment of the appellant, in order to raise a question of constitutional legitimacy that shows no connection with the anti-discrimination judgment.
In the first place, the aforementioned statement of the order is expressly and solely referred to the impossibility of proceeding to the acceptance of J. M.'s application through the non-application of Article 19, paragraph 4, letter b), of the Tuscany Regional Law no. 73 of 2018 for conflict with Article 21 of the Charter of Fundamental Rights of the European Union or with Article 14 of the European Convention on Human Rights, therefore without in any way predetermining the final outcome of the judgment.
Secondly, the fact that this has not at all exhausted the power of the referring court to assess the discriminatory nature of the conduct, and, indeed, that the requirement of protracted residence takes on significance – from the perspective of the referral order – in view of its specific discriminatory repercussions for reasons related to disability, is further demonstrated by the fact that the premise of the judgment on the non-manifest lack of merit of the question is that the exclusion of J. M. from the contribution takes on the contours of indirect discrimination to the detriment of the latter, due to the "unjustifiably worse treatment" that she would suffer "compared to that of other families with disabled minor children who have been residing in Tuscany for at least two years".
Having therefore excluded the alleged lack of relevance, and in the absence of further profiles of inadmissibility of the question that can be detected ex officio, the latter must be examined on the merits.
4.– The service to which the application in the a quo judgment is directed was established by Article 5, paragraph 1, of the Tuscany Regional Law no. 73 of 2018 and consists of a one-off annual contribution of €700.00 for the three-year period 2019-2021, aimed at "supporting families with disabled children under the age of eighteen". This contribution is recognized to the family unit for each disabled minor, in the presence of an ascertained existence of the condition of severe handicap pursuant to the provisions of Article 3, paragraph 3, of Law No. 104 of February 5, 1992 (Framework Law for assistance, social integration and the rights of handicapped persons). The requirements for its concession are governed by paragraph 4 of the same Article 5 and consist, in the text of the provision in force ratione temporis, in the need for the parent who submits the application to be part of the same family unit as the disabled minor child for whom the contribution is requested (letter a), that both the applying parent and the child are "resident in Tuscany, continuously, in structures not illegally occupied, for at least twenty-four months prior to the date of January 1 of the year of reference of the contribution" (letter b, object of today's criticisms), and finally that the family unit to which both belong demonstrates having an "equivalent economic situation indicator (ISEE) value not exceeding €29,999.00" (letter c).
The provision in question was introduced in Tuscany with Article 4 of the Law of the Tuscany Region of August 2, 2013, no. 45 (Financial support interventions in favor of families and workers in difficulty, for cohesion and for the fight against social hardship) for the three-year period 2013-2015 and then subsequently confirmed on a three-year basis for the years 2016-2018 and 2019-2021 and on an annual basis for 2022 and 2023.
It is worth highlighting, according to what emerges from the preparatory work and from the reconstruction of the ratio and the system of the various provisions that have followed one another over the years, that the measure belongs to the category of instruments introduced by the Region to offer an additional subsidy to families in which there is a disabled minor. This took place not in compliance with obligations arising from state laws – which also dedicate an articulated framework of measures attributable to the competence in the matter of essential levels of services referred to in Article 117, second paragraph, letter m), of the Constitution, to the support and integration of the disabled – but solely in the exercise of the residual legislative competence in the matter of social policies (Article 117, fourth paragraph, of the Constitution; similarly, judgment no. 172 of 2013).
It must also be considered that, while from 2015 and in the subsequent three-year periods (during the latter of which the dispute referred to in the a quo judgment arose), the provisions of regional laws that have followed one another have left unchanged the requirement of the necessary two-year continuous residence in the regional territory as a condition for obtaining the contribution, for the years 2022 and 2023, first Article 19, paragraph 4, letter b), of the Tuscany Regional Law no. 54 of 2021 and then Article 23, paragraph 4, letter b), of the Tuscany Regional Law no. 44 of 2022 have provided that applications from family units in which the applying parent and the disabled minor are simply resident in Tuscany at the time of submitting the application may be admitted to the contribution.
5.– Given these premises, the question is well-founded.
In support of the constitutional legitimacy of the contested provision, the defense of the Tuscany Region cites the "reasonable and not disproportionate" nature of the requirement of two-year continuous residence in the regional territory, considering that the benefit is not among those imposed in view of meeting the essential levels of services established by state laws, so that the selection based on a limited extension of residence in the regional territory would be justified by the need to enhance the connection of the family unit with the local community and, in any case, "to ensure a non-negligible figure to families with disabled children, considering the limitedness of regional resources".
5.1.– Pronouncing on provisions of regional laws that have conditioned the recognition of social benefits to the requirement of a more or less protracted residence on the regional territory, and without the different and further requirement of citizenship being called into question (as in the case in question), this Court has constantly admitted "the possibility, considering the limitedness of available resources, of introducing selective criteria for access to social services, using the residence requirement, but only on condition that there is a reasonable connection between the requirement itself and the function of the service to which access it filters (judgments no. 7 of 2021, no. 281 and no. 44 of 2020, no. 168 and no. 141 of 2014, no. 222 and no. 133 of 2013)" (judgment no. 199 of 2022).
Although it is therefore, in principle, admissible that the protracted residence requirement be used in order to make a selection, correlated to membership of the territorial community, among the beneficiaries of measures attributable to the discretion of the regional legislator, this does not mean that a similar requirement is exposed to doubts of constitutional legitimacy whenever it does not show that it has "a suitable and reasonable correlation with the function and purpose of the services or benefits the enjoyment of which is affected by the provisions under examination" (judgment no. 42 of 2021).
In view of this, the control over the existence and adequacy of this correlation "is carried out by this Court according to the typical structure of the review carried out pursuant to Article 3, first paragraph, of the Constitution, which starts from the identification of the ratio of the reference rule and then proceeds to verify the consistency of the selective filter introduced with this ratio" (judgment no. 44 of 2020). Within the framework of a similar assessment, it must be considered that, if the ratio of the intervention is to alleviate a primary need of the person, the protracted residence requirement must be subjected to a particularly strict scrutiny, given the difficulty in finding a "correlation between the satisfaction of the primary needs of the human being, who has settled in the regional territory, and the extension over time of such settlement" (judgment no. 222 of 2013). On the contrary, where the purpose of alleviating a state of need does not directly emerge, the criterion of prolonged residence may find its justification in the connection with the aptitude of the family unit to act stably in the regional territory (judgment no. 141 of 2014).
The need for an adequate and reasonable correlation between the ratio of the measure and the protracted residence requirement does not lapse even if the regional legislator has established a "further and optional service, which is above the minimum essential levels" and which is financed with its own means