JUDGMENT NO. 57

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, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has rendered the following

JUDGMENT

in the proceedings concerning the constitutional review of Article 17 of Campania Regional Law No. 15 of 11 August 2005 (Provisions for the formation of the annual and multi-year budget of the Campania Region - Regional Financial Law 2005) and of Article 19 of Campania Regional Law No. 1 of 30 January 2008 (Provisions for the formation of the annual and multi-year budget of the Campania Region - Financial Law 2008), referred by the Ordinary Court of Naples, Tenth Civil Section, by two orders of 27 March 2023, registered under numbers 80 and 81 of the register of orders 2023 and published in the Official Gazette of the Republic No. 25, first special series, of the year 2023.

Having considered the submissions of the Campania Region and the out-of-time submission of DeCav srl;

Having heard at the public hearing of 5 March 2024 the Judge Rapporteur Marco D'Alberti;

Having heard counsel Almerina Bove for the Campania Region;

Having deliberated in the deliberation chamber of 20 March 2024.

Facts

1. – By the two orders cited above, of identical tenor, the Ordinary Court of Naples, Tenth Civil Section, raised questions of constitutional legitimacy concerning Article 17 of Campania Regional Law No. 15 of 11 August 2005 (Provisions for the formation of the annual and multi-year budget of the Campania Region - Regional Financial Law 2005) and Article 19 of Campania Regional Law No. 1 of 30 January 2008 (Provisions for the formation of the annual and multi-year budget of the Campania Region - Financial Law 2008), in relation to Article 3 of the Constitution.

2. – The referring court prefaces that quarrying activity in the Campania Region is subject to three economic levies, governed respectively by Article 18 of Campania Regional Law No. 54 of 13 December 1985 (Cultivation of quarries and peat bogs), Article 17 of Campania Regional Law No. 15 of 2005 and Article 19 of Campania Regional Law No. 1 of 2008.

In the order registered under no. 80 of 2023, the referring judge notes that Ceca srl, which has been carrying out quarrying activities for decades at the site located in "Fellino", in the Municipality of Roccarainola (NA), has brought proceedings against the Campania Region to obtain, among other things, the restitution of sums paid as advance payments on contributions, pursuant to Article 17 of Campania Regional Law No. 15 of 2005 and Article 19 of Campania Regional Law No. 1 of 2008.

2.1. – The referring judge argues, regarding the relevance of the question, that Ceca srl has an interest in bringing legal action in order to obtain a ruling confirming the non-liability for the contributions requested by the Region, and this also in order to recover the advance payment paid subject to reimbursement.

In the order registered under no. 81 of 2023, the referring court notes that DeCav srl has challenged the executive order by which the Campania Region had partially and provisionally authorized it, by way of self-correction, to carry out a series of works to secure the quarry located in "Fiumillo", in the Municipality of Battipaglia (SA), and to market some of the materials moved. On the point of relevance, it argues that DeCav srl has an interest in bringing legal action in order to obtain a ruling attesting to the non-liability for the contributions requested by the Region.

2.2. – Regarding the non-manifest unfoundedness of the questions raised, in both orders the referring court refers to the case law of the Court of Cassation according to which the levies in question do not have the nature of taxes, as they are not linked to the profitability of the quarry management activity, but are contributions aimed at compensating for the damage legitimately caused to the environment by the exploitation of the quarry, providing the administrative authority with the necessary resources to restore the environmental and territorial conditions prejudiced by the extraction activity. The referring judge also refers, on this subject, to the judgment of this Court No. 52 of 2018.

According to the referring court, the compensatory rationale underlying the regional legislation would already be satisfied by Article 18, paragraph 3, of Campania Regional Law No. 54 of 1985, which allocates the contribution provided for in paragraphs 1 and 2, as a priority, to the "implementation of interventions and works connected with environmental restoration or the reuse of areas affected by quarrying activities". The contribution imposed on companies operating in the quarrying sector by Article 17 of Campania Regional Law No. 15 of 2005 would, however, be completely unrelated to the compensatory logic that should support it, as it is linked to the construction, start-up and management of an infrastructural work, such as the Pontecagnano (SA) airport. The referring court notes that this allocation has no relationship with the quarrying activity, nor could it perform a function of compensating for the environmental damage caused by it, since the aforementioned airport is located in a different municipality from the one where the quarry managed by the applicant is located and would cause environmental pollution (at least noise pollution) and landscape damage to the surrounding area.

Consequently, the compensatory function that justifies the application of such a contribution would be lacking, with the result that Article 17 of Campania Regional Law No. 15 of 2005 would be in contrast with Article 3 of the Constitution, both because it is unreasonable and excessive with respect to the objective pursued, and because it is discriminatory against companies carrying out quarrying activities, which, unlike companies engaged in other activities, must contribute to the financing of the Pontecagnano airport, in the absence of valid reasons to impose such differentiated treatment.

2.3. – The referring judge argues that the objective of compensating for the environmental damage caused by quarrying activity is also lacking with respect to the environmental contribution introduced by Article 19 of Campania Regional Law No. 1 of 2008. The sums collected under this heading are allocated 50 per cent to a "Fund for eco-sustainability", governed by Article 15 of the same regional law, and the remaining 50 per cent to the financing of expenditure "concerning environmental recovery works, the preparation of the unitary management project for the sector, if it is not prepared by the owners of quarrying activities, and the financing of the control activities of the supervisory body for quarries".

As regards the first 50 per cent, since the Fund for eco-sustainability is "aimed at supporting regional actions to promote the use in production and commercial processes of eco-compatible, biodegradable and recyclable materials and to encourage the removal and disposal of waste of a different nature" (Article 15, paragraph 1, of Campania Regional Law No. 1 of 2008), the referring court argues that the contribution should be borne by those who deal with the production of packaging and those who produce waste and not by companies that manage quarries.

The remaining 50 per cent of the contribution revenue would then be used to subsidize activities related to the administrative management of the sector which, considering the allocations relating to "environmental recovery works" and the "preparation of the unitary management project for the sector" (Article 19, paragraph 3, of Campania Regional Law No. 1 of 2008), would be "already covered, from a financial point of view". The referring judge refers, in this regard, to Article 17 of Campania Regional Law No. 54 of 1985, which places the environmental recovery activity on those who exploit the quarry, also providing, pursuant to Article 6, for the provision of a security deposit or other suitable guarantee; it also refers to Article 23, paragraph 7, of the implementing rules of the Campania Regional Quarrying Plan (PRAE), which charges the operators of quarrying activities with the cost incurred for the preparation of the unitary project for the sector.

This would lead to the unreasonableness of the environmental contribution referred to in Article 19 of Campania Regional Law No. 1 of 2008 which, in violation of Article 3 of the Constitution, would lack the compensatory function that should characterize it and would translate into an additional cost for companies in the sector, which would already contribute to compensating for the environmental damage they produce through the payment of the contributions provided for in Article 18 of Campania Regional Law No. 54 of 1985. The referring court adds that, although part of the contribution is allocated "to the financing of the control activities of the supervisory body for quarries", this specific objective alone could not make up for the substantial lack of a compensatory nature of the levy.

3. – The Campania Region has appeared in both proceedings and argues that the question of the constitutional legitimacy of Article 17 of Campania Regional Law No. 15 of 2005 would be manifestly unfounded, as it is centered on the "arbitrary identification of a double constraint, territorial and functional, of the resources subject to compensatory contributions", not supported by higher-ranking rules and in contrast with the position taken by the case law of the united sections of the Court of Cassation.

According to the Region, there is, however, "full discretion on the part of the legislator in directing the resources deriving from the contribution to the objectives of public interest deemed most effective" in order to compensate the regional community for the depletion connected with the carrying out of quarrying activities, "through environmental support actions or through socio-economic development interventions to be implemented in the regional territory".

Referring to the order of the Court of Cassation, united civil sections, 13 December 2023, No. 34982, according to which the allocation of the contribution to the construction and management of the Pontecagnano airport would not be in contradiction with the environmental nature of the contribution itself, the Region states that Article 17 of Campania Regional Law No. 15 of 2005 aims to balance "the environmental damage with the construction of an infrastructural work that brings economic and social benefits to the entire regional community due to the fact that the landscape damage caused by quarrying activity affects the entire regional territory". The same considerations would apply to Article 19 of Campania Regional Law No. 1 of 2008, which provides for the allocation of 50 per cent of the contribution to environmental protection.

Furthermore, with regard to the allocation of the remaining 50 per cent of the contribution, the referring court's assertion that Article 17 of Campania Regional Law No. 54 of 1985 already fulfills the function of subsidizing environmental recovery works would be incorrect. This is because the provision refers to the coverage of costs related to the recovery of the specific quarry subject to the concession, guaranteed by the security deposit referred to in Article 6, while the contribution referred to in Article 19 of Campania Regional Law No. 1 of 2008 is intended to cover financing for different works, such as those relating to "abandoned quarries".

As regards the preparation of the sector project, according to the Region, paragraph 7 of Article 23 of the implementing rules of the PRAE is nothing more than an implementation of Article 19 of Campania Regional Law No. 1 of 2008, as can be inferred from paragraph 6 of the same Article 23.

Finally, the Campania Region considers the referring court's assertion that the share of the contribution allocated to the control activities of the supervisory body for quarries is not consistent with the compensatory nature of the levy to be unsubstantiated and inadmissible for vagueness.

4. – DeCav srl, a party to the proceedings registered under no. 81 of the register of orders 2023, appeared with a document filed out of time, on 24 February 2024.

Reasons

1. – The Court of Naples, Tenth Civil Section, by the two orders cited above, of identical tenor, raised, in relation to Article 3 of the Constitution, questions of constitutional legitimacy concerning Article 17 of Campania Regional Law No. 15 of 2005 and Article 19 of Campania Regional Law No. 1 of 2008, which provide for contributions payable by companies carrying out quarrying activities.

The referring court prefaces that quarrying activity in the Campania Region is subject to three economic levies governed by the two provisions under scrutiny and by Article 18 of Campania Regional Law No. 54 of 1985. Referring to the case law according to which these levies would not have the nature of taxes, but would be contributions aimed at compensating for the damage legitimately caused to the environment by the exploitation of the quarry, the referring court argues that the provisions under scrutiny would be in contrast with Article 3 of the Constitution because they are unreasonable and excessive with respect to the objective pursued, and also discriminatory against companies carrying out quarrying activities, which are required to bear an additional cost compared to companies engaged in other economic activities. The referring judge adds that the compensatory rationale underlying the regional legislation would already be satisfied by Article 18 of Campania Regional Law No. 54 of 1985, which allocates the contribution provided for therein, as a priority, to the "implementation of interventions and works connected with the environmental restoration or the reuse of areas affected by quarrying activities".

2. – As a preliminary matter, the aforementioned proceedings must be joined because the referral orders raise the same questions and are based on substantially common arguments.

3. – Also as a preliminary matter, the appearance of DeCav srl in the proceedings registered under no. 81 of the register of orders 2023 must be declared inadmissible. The party appeared with a document filed on 24 February 2024 and, therefore, well beyond the peremptory deadline, set by Article 3 of the Supplementary Rules for proceedings before the Constitutional Court, of twenty days from the publication in the Official Gazette of the referral order, which took place on 21 June 2023.

4. – Before considering the merits of the questions raised, a brief examination of the contributions to which companies operating in quarrying activities in the Campania Region are subject is appropriate.

4.1. – Campania Regional Law No. 54 of 1985 provides, in Article 18, for a contribution "on the expenditure necessary for further public interventions, in addition to the mere restoration of the area", which is collected by the municipalities concerned, who must use it primarily for the implementation of interventions and works connected with environmental restoration or the reuse of areas affected by quarrying activities.

Article 17 of Campania Regional Law No. 15 of 2005, which is subject to scrutiny by the referring court, provides for a further contribution payable to the Region equal to "€1.00 for every 10 cubic meters of material extracted". Paragraph 2 of the same article states that the sums thus collected are "entered in the Regional Budget from the current financial year to basic budgetary unit 9.31.71 of revenue and to basic budgetary unit 1.55.97 of expenditure for the financing, to the extent of the amount actually collected, of the works to complete and start up the activity of the Pontecagnano -Sa- airport and for all corporate management activities". The contribution was originally intended to finance exclusively the "works to complete and start up the activity of the Pontecagnano-Sa airport": Article 5, paragraph 7, of Campania Regional Law No. 1 of 18 January 2016 (Provisions for the formation of the financial budget for the three-year period 2016-2018 of the Campania Region - Regional Stability Law 2016) subsequently amended the text of the aforementioned Article 17, establishing that the contribution is also paid "for all corporate management activities".

Finally, Article 19 of Campania Regional Law No. 1 of 2008, also challenged by the referring court, provides, in addition to the two contributions mentioned above, for the payment of an "environmental contribution", the amount of which varies according to the material extracted, allocated 50 per cent to the "Fund for eco-sustainability" governed by Article 15 of the same Campania Regional Law No. 1 of 2008 and the remaining 50 per cent to the financing of expenditure "concerning environmental recovery works, the preparation of the unitary management project for the sector, if it is not prepared by the owners of quarrying activities, and the financing of the control activities of the supervisory body for quarries".

5. – It is also appropriate to recall that this Court, in ruling on the nature of the contribution for quarrying activities provided for by the legislation of the Sicilian Region, stated that it is intended to cover "the financial burdens that the entities concerned must in any case face in order to best neutralize the consequences – harmful but legitimate, because permitted by law and authorized by the entities concerned – in any case related to such economic initiatives"; it is related "to the effort made by the entities concerned in the administrative management connected to the related business activity and aims to compensate for the prejudice that the community ends up suffering as a consequence of the authorization relating to the exploitation of quarries". Therefore, this contribution, being characterized by this particular compensatory nature, is "devoid of the generally contributive function to the budget of the entities concerned or commutative of a service, which characterizes taxes" (judgment No. 89 of 2018).

The case law of the courts of ordinary jurisdiction has also ruled out the tax nature of the contributions provided for by the provisions under scrutiny (Court of Cassation, united civil sections, order 21 January 2020, No. 1182; tax section, orders 23 January 2023, No. 1915 and 9 June 2021, No. 16025), emphasizing their specific compensatory nature of the prejudice suffered by the communities as a consequence of the management of quarries.

6. – In the light of the foregoing, the question of the constitutional legitimacy of Article 17 of Campania Regional Law No. 17 of 2005, in relation to Article 3 of the Constitution, concerning the intrinsic unreasonableness of the provision with respect to the compensatory objective pursued, is partially well-founded, in the terms that follow.

6.1. – Article 17, paragraph 2, of Campania Regional Law No. 15 of 2005 provides, as mentioned, that the contribution paid by companies engaged in quarrying activities in the Campania Region is intended to finance "the works to complete and start up the activity of the Pontecagnano -Sa- airport and for all corporate management activities".

According to the referring court, the provision violates Article 3 of the Constitution for intrinsic unreasonableness with respect to the compensatory objective pursued. There is a lack of both a functional link between the contribution and the compensation for the environmental damage produced, and a territorial link between the area where the quarrying activity is carried out and the area where the Pontecagnano airport is located.

The principle of equality is also violated, in terms of unequal treatment to the detriment of companies carrying out quarrying activities.

6.2. – This Court considers, in line with the considerations recently made by the case law (Cass., sez. un. civ., No. 34982 of 2023), that the environmental objective pursued by the contribution in question should not be identified in the restoration of the territory following the damage caused by quarrying activities, but in the overall improvement that the territory itself can obtain from infrastructure capable of balancing the compromises suffered.

From this point of view, the financing, through the contribution, of the works to complete and start up the activity of the Pontecagnano airport is not unreasonable, since it can lead to improvements in the territory of the entire Region and determine favorable effects, also of a socio-economic nature, for the community, generating positive externalities on a broad scale.

6.3. – However, the further provision that the contribution is also intended to finance the "corporate management activities" of the airport is not in accordance with canons of reasonableness.

This provision, the result of an amendment made in 2016 to Article 17 of Campania Regional Law No. 15 of 2005, has meant that the contribution, originally in support of only the expenditure related to the "works to complete and start up the airport activity", has become a continuous levy over time, completely detached from the initial objectives. Corporate management, in fact, is totally unrelated to the compensatory logic that justifies the levy, as it constitutes a mere business activity, carried out by the company managing the airport, which is responsible for any management malfunctions and must assume the related business risk itself.

In essence, the subsidization of the corporate management activity of the airport does not meet the necessary environmental objectives underlying the imposition of the contribution, since it is not intended to satisfy the primary interest of supporting the requalification of the Region's territory.

It follows that the contribution provided for by the provision under scrutiny constitutes a legitimate source of taxation to the extent that the sums collected are intended to subsidize the "works to complete and start up the activity of the Pontecagnano-Sa airport". Once the works are completed and the airport activity has started, therefore, the contribution can only cease to burden the quarrying companies operating in the Campania Region.

7. – For these reasons, the question of the legitimacy of Article 17, paragraph 2, of Campania Regional Law No. 15 of 2005, limited to the words "and for all corporate management activities", is well-founded, for violation of Article 3 of the Constitution, in terms of intrinsic unreasonableness.

8. – The further criticism addressed to the provision in question concerning the unequal treatment between companies operating in the quarrying sector and those engaged in other activities is not well-founded, due to the clear dissimilarity of the situations compared (among many, judgment No. 171 of 2022).

9. – The referring court also challenges Article 19 of Campania Regional Law No. 1 of 2008, which imposes on companies in the quarrying sector a contribution allocated 50 per cent to a "Fund for eco-sustainability" and the remaining 50 per cent of the contribution to finance a series of expenses relating to quarrying activities.

According to the referring judge, there is a violation of Article 3 of the Constitution because the choice of the regional legislator to impose this contribution would be unreasonable and discriminatory, as the Fund should be financed by companies dealing with the production of packaging and not also by those engaged in quarrying activities. Furthermore, all other activities financed by the contribution would already be subsidized through other regional provisions.

9.1. – The question is not well-founded.

50 per cent of the contribution in question is explicitly allocated to the financing of the Fund for eco-sustainability, which is intended to protect environmental interests. In this respect, therefore, the contribution meets the compensatory objective for which it was established.

In fact, the choice of the regional legislator, in the exercise of its discretion, to impose a contribution on companies carrying out quarrying activities also for the achievement of broad, but nevertheless worthy of consideration, environmental objectives, does not present aspects of unreasonableness nor does it appear discriminatory.

No aspects of unconstitutionality are found even with regard to the allocation of the remaining 50 per cent of the contribution, which is intended to finance expenses relating to quarrying activities and which, unlike what the referring court suggests, are not already subsidized under other regional provisions.

The contribution, in fact, is intended to finance environmental recovery works that are different from and additional to those referred to in Article 17 of Campania Regional Law No. 54 of 1985, which imposes on the company the obligation to carry out "the works for the environmental recovery of the area in the manner provided for in the authorization or concession order". Among these works, by way of example, are those for the environmental restoration of "abandoned quarry areas" referred to in Article 29 of the same regional law.

As regards the expenditure for the preparation of the unitary management project for the sector, they are not already financed under the implementing rules of the PRAE referred to by the referring court, since these rules are merely implementing Article 19 of Campania Regional Law No. 1 of 2008.

Finally, in relation to the share of the contribution allocated to the activity of control of the supervisory body for quarries, the constitutional case law has clarified that contributions for quarrying activities legitimately serve to keep the region indemnified for the costs incurred for verifying compliance with the conditions of the authorization or concession (judgment No. 89 of 2018).

For these reasons

THE CONSTITUTIONAL COURT

having joined the proceedings,

1) declares inadmissible, in the proceedings registered under no. 81 of the register of orders 2023, the appearance of DeCav srl;

2) declares the unconstitutionality of Article 17, paragraph 2, of Campania Regional Law No. 15 of 11 August 2005 (Provisions for the formation of the annual and multi-year budget of the Campania Region - Regional Financial Law 2005), limited to the words "and for all corporate management activities";

3) declares unfounded the question of the constitutional legitimacy of Article 19 of Campania Regional Law No. 1 of 30 January 2008 (Provisions for the formation of the annual and multi-year budget of the Campania Region - Financial Law 2008), raised, in relation to Article 3 of the Constitution, by the Ordinary Court of Naples, Tenth Civil Section, by the orders indicated above.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 20 March 2024.

Signed:

Augusto Antonio BARBERA, President

Marco D'ALBERTI, Rapporteur

Roberto MILANA, Registrar

Deposited with the Registry on 15 April 2024