JUDGMENT NO. 59
YEAR 2024
Commentary on the decision of
Ilaria Annamaria Chesta
for g.c. of the Journal of the Court of Accounts
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 issued the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 8 of Regional Law of Calabria No. 22 of October 5, 2007 (Further provisions of an organizational and financial nature linked to the budget adjustment maneuver for the year 2007 pursuant to Article 3, paragraph 4, of Regional Law No. 8 of February 4, 2002), initiated by the Court of Accounts, jurisdictional section for the Calabria Region, with three orders of February 8, 2023, registered under numbers 42, 43 and 44 of the 2023 register of orders and published in the Official Gazette of the Republic No. 16, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the council chamber on February 20, 2024.
Seen the intervention document of the Attorney General of the Court of Accounts;
Heard in the council chamber of February 22, 2024 the Reporting Judge Angelo Buscema;
Deliberated in the council chamber of February 22, 2024.
Considered in Fact
1.– The Court of Accounts, jurisdictional section for the Calabria Region, with three separate orders registered under numbers 42, 43 and 44 of the 2023 register of orders, all relating to account judgments of companies participated in by the Region (the first two concerning the accounts of the accounting officers of Fincalabra spa and the last one of Ferrovie della Calabria srl), has raised, with reference to Articles 3, 103, second paragraph, and 117, second paragraph, letter l), of the Constitution, issues of constitutional legitimacy of Article 8 of the Law of the Calabria Region of October 5, 2007, No. 22 (Further provisions of an organizational and financial nature linked to the budget adjustment maneuver for the year 2007 pursuant to Article 3, paragraph 4, of Regional Law No. 8 of February 4, 2002), which provides that "[t]he subjects appointed or designated by the Region or proposed by the representatives of the Region in the assemblies [of the companies participated in by the Region] as members of the administrative bodies or of the boards of auditors of the [same] companies are, for all purposes, accounting officers," who must "render the account annually" and who "are subject to the jurisdiction of the Court of Accounts."
According to the referring court, the challenged provision would, in fact, impose the obligation to render the account of the shareholdings on the directors and auditors of the participated company, while this responsibility should be placed on the regional offices, because the Calabria Region, in its capacity as owner of the aforementioned shareholdings, would have the legal and concrete possibility, by exercising the rights of the shareholder, to prevent these assets from losing value.
With reference to the first two orders, the regional section of the referring Court of Accounts reports that it must decide on some account judgments presented by the defendants – in their capacity as members of the board of directors or the board of auditors – regarding the actions of Fincalabra spa (a company participated in by the Calabria Region), relating to the financial year 2015 (order registered under No. 43 of the r.o. 2023) and 2016 (order registered under No. 42 of the r.o. 2023), all judgments of similar content and relating to the same accounting management.
As for the third and last order (order registered under No. 44 of the r.o. 2023), the referring court notes that the main judgment refers to the judicial account relating to the financial year 2015 with regard to the shareholdings of Ferrovie della Calabria srl (a company participated in by the Calabria Region), presented by the defendant in his capacity as sole director of the company.
The judge a quo states that the investigating magistrate has referred to the collegiate body "the assessments on the regularity or otherwise of the management of the accounting officer."
The referring judge represents that, in the specific case, the accounts had been presented by the accounting officers identified by the challenged law (members of the board of directors and of the board of auditors), approved and equalized by the Regional Department of Finance; these accounts showed a reduction in the value (formal and substantial) of the regional shareholdings, following a resolution of the shareholders' meetings that had ordered the reduction of the share capital to cover larger operating losses.
The subject of the judgment is the account relating to the accounting management of the custodian of the shareholdings of the Calabria Region in his capacity as sole director and that it is necessary to ascertain first the subject obliged to render the judicial account, since an account presented by a subject on whom the obligations of accounting management of assets of the public administration do not fall, and who is therefore not responsible with regard to unremitted revenues and expenses without valid title, is devoid of legal relevance (Articles 74 and 85 of the Royal Decree of November 18, 1923, No. 2440, containing "New provisions on the administration of assets and on the general accounting of the State" and Articles 45 and 54 of the Royal Decree of July 12, 1934, No. 1214, containing "Approval of the consolidated text of the laws on the Court of Accounts").
On this issue, the referring court observes that the obligation to render the account of the shareholdings owned by the Region is generally recognized, based on the general accounting rules of the State (Articles 20, letter c, 29, last paragraph, and 32 of the Royal Decree of May 23, 1924, No. 827, containing "Regulation for the administration of assets and for the general accounting of the State"), applicable to the regions pursuant to the combined provisions of Article 1, paragraph 3, of Decree-Law No. 453 of November 15, 1993, containing "Provisions on the jurisdiction and control of the Court of Accounts", converted, with amendments, into Law No. 19 of January 14, 1994, and of Articles 3 and 6, paragraph 2, of Law No. 658 of October 8, 1984 (Establishment in Cagliari of a jurisdictional section and of the joint sections of the Court of Accounts) as well as Article 93, paragraph 2, of Legislative Decree No. 267 of August 18, 2000 (Consolidated text of laws on the organization of local authorities) and Articles 137 and 18, letter a), of Legislative Decree No. 174 of August 26, 2016 (Code of accounting justice, adopted pursuant to Article 20 of Law No. 124 of August 7, 2015).
Furthermore, the referring court points out that the joint civil sections of the Court of Cassation, with order No. 7390 of March 27, 2007, specified that the custodians "for debt of custody" or "for debt of surveillance" also include the custodians of shares, regardless of an express provision of law or regulation, in application of Article 103 of the Constitution and that, in the examination of judicial accounts, the examination of the Court of Accounts "is not limited to the custody and management of the original securities in their materiality, but extends to the variations in their value and to the profits and dividends distributed, with the custodian being liable pursuant to Article 29, last paragraph, of Royal Decree No. 827 of May 23, 1924."
This would not exclude that the subject of the judgment is the account and the operations carried out by the accounting officer on the basis of the shareholder's directives, and not also the acts of exercising powers by the administration (ex Articles 2350, 2351, 2408, 2409 of the Civil Code), for which administrative officials would be liable in the different venue of the liability judgment.
The referring court continues by stating that the Calabria Region, following the aforementioned pronouncement of the Court of Cassation, with the provision challenged today has attributed "for all purposes" the qualification of "accounting officers in charge of assets" to its delegates in the administrative bodies or in the boards of auditors of the companies with regional participation, providing that they must "adequately support the Region in the exercise of shareholder rights", "render the account annually", thus subjecting them to the jurisdiction of the Court of Accounts in compliance with state legislation on the matter.
The referring court also recalls that, also following the organizational coordination guidelines issued by the joint sections in an advisory capacity of the Court of Accounts (attached to the opinion of the same joint sections No. 2 of June 3, 2015), it was considered that the custodian of the shares was not the one who physically keeps the securities (i.e., normally, the treasurer), but the person responsible for the management of the shares, and therefore – depending on what is provided for by the internal regulations of the entity – the head of the office to which the subjects who participate in the assembly exercising the rights of the shareholder report, or the auditor (or his delegate) when participation in the assembly is reserved for the latter (or a subject delegated by him).
The issue of constitutional legitimacy of the regional provision would therefore be relevant and prejudicial to the decision of the account judgments, for the purposes of identifying the subject required to submit the account and of the admissibility of the judgment itself.
In the opinion of the judge a quo there would be doubts about the constitutional legitimacy of Article 8 of Regional Law of Calabria No. 22 of 2007, the application of which would require the recognition of the qualification of accounting officer to the defendants and the admissibility of the account judgment.
The judge a quo points out, referring to the judgment of this Court No. 114 of 1975, that Article 103 of the Constitution would imply the necessary submission to account judgment of those who "handle" money and securities of the public entity, as an objective guarantee of the legal system.
From a different perspective, the judgment of this Court No. 189 of 2020 is cited, according to which, while the "public-organizational" profiles relating to the service relationship of regional administrators would fall within the residual legislative competence of the regions (Article 117, fourth paragraph, of the Constitution), the "civil law" profiles, such as the rights and obligations of the privatized employment of public employees, as well as the "jurisdictional" profiles, such as "the discipline of administrative liability, in which the substantive profiles of the same [would be] closely intertwined with the powers of the judge called to ascertain it," would belong to the state legislative competence (ex Article 117, second paragraph, letter l, of the Constitution).
Article 8 of Regional Law of Calabria No. 22 of 2007 would not be compatible with constitutional principles in that the function of the obligation to render the account and of the related account judgment would be to hold responsible the subject who holds a public asset under his custody, in order to avoid the dispersion of its value (as a guarantee of public finances) and, if these are assets whose value is given by the rights embodied in them (as in the case of shareholdings), this responsibility could only be traced back to those who have the legal and concrete possibility of preventing these assets from losing value, and, in the specific case, the entity owning the shareholding that can exercise the rights of the shareholder.
In this perspective, according to the established case law of the Court of Accounts, the "handling" of a share or an action could only be understood as the availability of the related shareholder rights: especially in view of the possible "dematerialization" of shareholdings (the Court of Accounts, jurisdictional sections for Tuscany, judgments of June 4, 2020, No. 127 and No. 302 of 2019; of Veneto, No. 99 of 2019 and No. 8 of 2019; of Calabria, No. 221 of 2021; of Molise, No. 53 of 2018) are cited.
The challenged Article 8 identifies as custodians of shareholdings subjects who would not have the "handling" thereof, i.e., the directors or auditors of the participated companies, subjects who by definition could not exercise the rights of the shareholder.
By doing so, the provision in question would end up exonerating regional bodies and weakening the account judgment: the accounting officers identified by it would not have the actual handling of the shareholdings and therefore could not in any way be called to answer for them at the outcome of the judgment.
There would therefore be a conflict with Article 103, second paragraph, of the Constitution and in particular with the function of guaranteeing the accounting legality proper to the account judgment of the Court of Accounts; with Article 117, second paragraph, letter l), of the Constitution, in that – without prejudice to the right of the entity, within the scope of its powers of self-organization, to identify the offices and subjects to whom to entrust the custody of its assets – it would limit the scope of accounting jurisdiction and thus affect a matter reserved to the law of the State; with Article 3 of the Constitution, in that it would create a disparity of treatment compared to other administrations in which the accounting officer is the one who actually handles the shareholdings, and who therefore is responsible for his own management (for example, in local authorities, the mayor or his delegate, pursuant to Article 9, paragraph 3, of Legislative Decree No. 175 of August 19, 2016, containing "Consolidated text on public participation companies").
Finally, the referring court believes that Article 8 of Regional Law of Calabria No. 22 of 2007 would manifest a clear legislative will to exempt regional offices from the obligation to render the account of the Region's shareholdings, transferring it to the directors of the participated companies, and it would not be possible to access a constitutionally oriented interpretation of the challenged regional provision that would make the judgment of constitutional legitimacy superfluous.
The issue would be relevant since the application of the legislation in question would affect the admissibility of the judgments on the accounts, considering that the defendants could not be considered accounting officers except by virtue of the challenged provision.
The doubt of constitutional legitimacy concerning the identification of the subject obliged to render the account would condition the outcome of the proceedings pending before the referring court, since, if the issue were to be upheld, the obligation to render the account would fall on subjects other than the defendants. Furthermore, given that in the account judgments under examination by the jurisdictional section of the Court of Accounts a decrease in the value of the corporate shareholdings has emerged, it would not be possible to reach a ruling of discharge, which would make the issue raised irrelevant.
2.– With reference to all the orders of referral, the Attorney General of the Court of Accounts requested to intervene in this proceeding, who, in referring to the arguments already widely expounded by the judge a quo, requests that the constitutional illegitimacy of Article 8 of Regional Law of Calabria No. 22 of 2007 be declared.
As for the admissibility of his intervention, the Attorney General argues the existence of a concrete and current interest in expunging the challenged provision from the legal system. In this regard, it argues that Article 20, second paragraph, of Law No. 87 of March 11, 1953 (Rules on the establishment and functioning of the Constitutional Court), would provide for the right to intervene – in proceedings before the Constitutional Court – of the bodies of the State and Regions; this discipline would be completed by Article 4, paragraph 3, of the rules of procedure and by the Supplementary Rules for proceedings before the Constitutional Court, according to which the intervention of other subjects must take place in compliance with the peremptory terms provided for the President of the Council of Ministers.
There would be no rule, in the legal system, that would prevent the intervention in the proceedings of the accounting public prosecutor who is a party in the judgment a quo. The concrete and current interest of the Attorney General, in the interest of the law, in reaching a declaration of constitutional illegitimacy of the challenged regional provision would then be evident.
Considered in Law
1.– With the orders indicated in the heading, the Court of Accounts, jurisdictional section for the Calabria Region, has raised, with reference to Articles 3, 103, second paragraph, and 117, second paragraph, letter l), of the Constitution, issues of constitutional legitimacy of Article 8 of Regional Law of Calabria No. 22 of 2007.
This provision provides that "[t]he subjects appointed or designated by the Region or proposed by the representatives of the Region in the assemblies, as members of the administrative bodies or of the boards of auditors of the companies with regional participation are, for all purposes, accounting officers in charge of assets and respond, in this capacity, for the correct corporate management. The same must adequately support the Region in the exercise of shareholder rights, render the account annually in the manner and terms established by the Regional Council and are subject to the jurisdiction of the Court of Accounts in compliance with state legislation on the matter, without prejudice to the responsibilities provided for by the Civil Code."
2.– The three orders concern the same provision, challenged with reference to the same parameters. The related proceedings can therefore be joined to be decided with a single ruling.
3.– In all three orders, the referring court reports that it must decide on account judgments initiated by virtue of the challenged provision, which qualifies as accounting officers – and as such subject to the account judgment – the subjects appointed or designated by the Region or proposed by the representatives of the Region in the assemblies, as members of the administrative bodies or of the boards of auditors of the companies participated in by the Calabria Region (in the cases in question: Fincalabra spa and Ferrovie della Calabria srl).
The issues of constitutional legitimacy would be relevant in that the defendants in the account judgment could not be considered accounting officers except by virtue of the challenged provision, while they would not have effective "handling" of the shareholdings and should not, therefore, be subject to the aforementioned judgment.
3.1.– According to the judge a quo, the issues of constitutional legitimacy would also be not manifestly unfounded in that the challenged provision would also conflict with the function of guaranteeing accounting legality reserved to the account judgment of the Court of Accounts. Article 103, second paragraph, of the Constitution would in fact imply the submission to account judgment of those who effectively "handle" money and securities of the public entity, pursuant to Article 44 of Royal Decree No. 1214 of 1934, a provision that should be considered of general application, prevailing even over the needs of autonomy of the regions.
Furthermore, the challenged regional provision, by limiting the scope of accounting jurisdiction, would conflict with Article 117, second paragraph, letter l), of the Constitution, in that – without prejudice to the right of the Region to identify the offices and subjects to whom to entrust the custody of its assets by virtue of the power of self-organization recognized by Article 117, fourth paragraph, of the Constitution – it would be detrimental to the exclusive legislative competence of the State relating to jurisdictional profiles and to the discipline of administrative liability of the Court of Accounts.
Article 8 of Regional Law of Calabria No. 22 of 2007 would violate the parameters evoked in that it would not subject to account judgment the entity owning the shareholding itself, which alone has the possibility of exercising the rights of the shareholder and therefore preventing the shareholding from losing value.
The challenged provision would identify as accounting officers subjects who would not have the "handling" of the shareholdings, not having the actual possibility of exercising the rights of the shareholder.
This would result in a distortion of the account judgment, also in contrast with Article 3 of the Constitution, in that it would create a disparity of treatment compared to other administrations in which the accounting officer (having effective "handling" of the shareholding) would be responsible for his own management, as happens in local authorities, where, pursuant to Article 9 of Legislative Decree No. 175 of 2016, the mayor or his delegate would be responsible for the shareholdings. In fact, Article 8 of Regional Law of Calabria No. 22 of 2007 would have exempted regional offices from the obligation to render the account of the shareholdings, transferring it to the directors and auditors of the participated companies.
4.– The Attorney General of the Court of Accounts intervened in relation to all the orders of referral, who, in reiterating the arguments of the referring judge, requests that his intervention be admitted in this proceeding.
With regard to said intervention, it should be recalled that only the subjects who are parties to the proceedings a quo, in addition to the President of the Council of Ministers and, in the case of regional law, the President of the Regional Council, are admitted to intervene in the incidental judgment of constitutional legitimacy (Article 4 of the Supplementary Rules for proceedings before the Constitutional Court).
In the incidental judgments of constitutional legitimacy, in fact, the intervention of subjects extraneous to the main judgment (Article 4, paragraph 3, of the Supplementary Rules) is admissible only for third parties who hold a qualified interest, directly and immediately inherent to the substantive relationship brought before the court.
In light of the constant orientation of this Court, the Attorney General of the Court of Accounts cannot be considered the holder of a qualified interest and therefore his intervention is not admissible (ex plurimis, judgments No. 39 of 2024, with attached order read at the hearing of January 24, 2024; No. 206 of 2019, with attached order read at the hearing of June 4, 2019; and No. 173 of 2019, with attached order read at the hearing of June 18, 2019).
5.– The issues of constitutional legitimacy regarding Article 8 of Regional Law of Calabria No. 22 of 2007 are relevant in that the challenged provision finds effective application in the judgments a quibus, in which, pursuant to Articles 139 and 140, paragraph 3, of Legislative Decree No. 174 of 2016, the subjects identified as accounting officers by the challenged regional provision are subject to account judgment.
6.– For the purposes of the decision on the merits, it is appropriate to reconstruct the figure of the accounting officer as well as the relevant regulatory and jurisprudential framework.
6.1.– The accounting officer has represented, since the birth of the unitary State, a key figure in the so-called accounting management of public administrations and, that is, in that phase of operational management that follows the administrative or volitional one conducted by the managerial and executive apparatus and that is essential to implement the administrative decisions already taken regarding the collection of revenues, the payment of expenses and the custody of assets previously acquired by the entity.
The description of the subjects in charge of collecting revenues and of the execution of payments or of those who receive sums due to the State or other sums of which the State itself becomes a debtor, together with those subjects who handle public money or who interfere in the assignments attributed to said agents, is provided by Article 74 of Royal Decree No. 2440 of 1923, on general accounting of the State.
More precisely, the following are qualified as accounting officers: collection agents or tax collectors, whose task is to collect revenues and pay the related amount; paying agents or treasurers, in charge of the custody of money and the execution of payments; custodians, assigned to the conservation of goods, objects and materials pertaining to the public administration; as well as all those who, without legal authorization, interfere in the assignments attributed to the aforementioned agents and collect sums due to the State, ex Article 178 of the accounting regulation (Royal Decree No. 827 of 1924).
With regard to the case of assets under examination, it should be specified that shares and participation securities are expressly included among the movable assets of the State, pursuant to Article 20, letter c), of Royal Decree No. 827 of 1924, which provides that rights and actions, pursuant to the Civil Code, are considered as movable assets (the category of movable assets is determined by the third paragraph of Article 812 of the Civil Code by exclusion, so that all assets that cannot be qualified as real estate pursuant to the first two paragraphs of the same article are considered movable).
The custodians of the movable assets referred to in the aforementioned Article 20 are personally responsible for the assets received in custody, until they have obtained legal discharge, while they are not directly and personally responsible for the abusive and culpable deterioration of the objects, except to the extent that they have failed to employ the surveillance that rests on them within the limits of the attributions of their office. The custodians of rights and actions are also responsible for the variations that the credits entrusted to them undergo (Article 29 of Royal Decree No. 827 of 1924).
The obligation to render the account of the shareholdings owned by the Region is recognized based on the aforementioned general accounting rules of the State (Articles 20, letter c, 29, last paragraph, and 32 of Royal Decree No. 827 of 1924) pursuant to the combined provisions of Article 1, paragraph 3, of Decree-Law No. 453 of 1993, as converted, and of Articles 3 and 6, paragraph 2, of Law No. 658 of 1984, as well as of Articles 137 and 18, letter a), of Legislative Decree No. 174 of August 26, 2016, code of accounting justice.
According to the provisions of Article 44 of Royal Decree No. 1214 of 1934, "the Court [of Accounts] adjudicates, with contentious jurisdiction, on the accounts of treasurers, receivers, cashiers and agents in charge of collecting, paying, preserving and handling public money or of keeping in custody securities and materials owned by the State, and of those who interfere, even without legal authorization, in the assignments attributed to said agents."
Furthermore, Article 6, paragraph 1, of the Decree of the President of the Republic No. 254 of September 4, 2002 (Regulation concerning the management of custodians and cashiers of the State administrations), establishes that "[t]he agents who receive the movable assets of the State in custody are called custodians, who, in relation to the methods of management and reporting and the consequent responsibilities, assume the role, respectively, of administrative agents for debt of surveillance and of accounting agents for debt of custody."
A new impetus to the account judgment follows the rules of the code of accounting justice, contained in Articles 137 to 150 of Annex 1 to Legislative Decree No. 174 of 2016, which integrate the various provisions already present in specific sector regulations. The aforementioned provisions have brought to the attention of the administrations the activities relating to the deposit and equalization of the judicial account by the internal and external subjects required to do so. In Articles 137 to 150 of Annex 1 to the aforementioned legislative decree, the scope of the account judgments and the tasks of the accounting officer (Articles 137 to 140); the judgment of rendering the account (Articles 141 to 144); the judgment on the account (Articles 145 to 150) are disciplined.
For the purposes of the issue of constitutional legitimacy under examination, specific provisions of the aforementioned code of accounting justice are particularly relevant.
First of all, it is appropriate to recall the contents of Article 137 of the code of accounting justice concerning the competence of the Court of Accounts to adjudicate on the accounts of the accounting officers of the State and other public administrations, as provided by law. It is therefore a broad audience that sees all State administrations involved, including institutes and schools of all levels, State companies and administrations with autonomous organization, regions, provinces, municipalities, mountain communities, and their consortia and associations, university institutions, autonomous institutes, public housing agencies, chambers of commerce, industry, crafts and agriculture and their associations, all non-economic national, regional and local public bodies, administrations, companies and bodies of the National Health Service, the Agency for the collective bargaining of public administrations (ARAN) and the agencies referred to in Legislative Decree No. 3