JUDGMENT NO. 60

YEAR 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 rendered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of March 14, 2011 (Provisions on Municipal Fiscal Federalism), initiated by the Court of Cassation, Tax Division, with orders of April 13, 2023, registered under numbers 84 and 85 of the 2023 register of orders and published in the Official Gazette of the Republic No. 26, first special series, of the year 2023.

Having seen the instruments of constitution of Casa di Cura Valle Fiorita srl;

Having heard at the public hearing of March 5, 2024, Justice Rapporteur Angelo Buscema;

Having heard Attorney Rosamaria Nicastro for Casa di Cura Valle Fiorita srl;

Deliberated in the council chamber of March 5, 2024.

Considered in fact

1.– By means of two orders of identical content, registered under numbers 84 and 85 of the register of orders 2023, the Court of Cassation, Tax Division, raised questions of constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of March 14, 2011 (Provisions on Municipal Fiscal Federalism), in its original wording applicable ratione temporis, insofar as it does not provide for exemption from the payment of the single municipal tax (IMU) in the event of unlawful occupation of the property that cannot be vacated even in the presence of a complaint to the competent institutional bodies, for violation of Articles 3, first paragraph, 53, first paragraph, and 42, second paragraph, of the Constitution and Article 1 of the Additional Protocol to the European Convention on Human Rights.

2.– The referring court reports that the dispute arises following two appeals by Casa di Cura Valle Fiorita srl against the silent refusal by Roma Capitale on the request for reimbursement of the IMU payment, respectively for the years 2013 and 2014, relating to a property owned by the aforementioned company, unlawfully occupied by third parties starting from December 2012. This company had demonstrated that all necessary measures had been taken to prevent the occupation of the property ("from the preparation of the closure by means of concrete blocks of the openings […] to the activation of a private surveillance service, albeit unarmed, since March 2012”) and that it had also immediately reported the unlawful occupation to the competent authority. However, although a preventive seizure of the property was ordered by the Judge for Preliminary Investigations of the Ordinary Court of Rome in August 2013, it was not executed for reasons of public order.

According to the referring judge, therefore, Casa di Cura Valle Fiorita srl was the owner of the property, but at the same time had lost possession of it, so that the prerequisite for the application of the tax for which reimbursement had been requested would not exist, given that the aforementioned company – despite having obtained a decree of preventive seizure from the judicial authority that had hypothesized the offense of unlawful occupation of property sanctioned by Article 633 of the Criminal Code – had not been able to restore the "material contact with the asset”. The judicial investigations revealed that the occupants had modified the occupied premises, installing, among other things, gates aimed at limiting access to the property.

Given the failure to execute the seizure order, Casa di Cura Valle Fiorita srl filed, on October 21, 2013, an appeal before the European Court of Human Rights pursuant to Article 34 ECHR; with the judgment of December 13, 2018, Casa di Cura Valle Fiorita srl v. Italy, the ECHR upheld the company's requests and condemned the Italian State to compensation for damages, stating that the failure to execute the preventive seizure order was attributable to the provision of the first paragraph of Article 1 of Protocol no. 1 ECHR, according to which, the real and effective exercise of the right to the protection of property, may "require positive protection measures, particularly where there is a direct link between the measures a claimant could legitimately expect from the authorities and the effective enjoyment by the latter of their possessions”, noting that this assumption, combined with the principle of the rule of law, justifies the imposition of a sanction against the State that has failed to execute or has impeded the execution of a judicial decision.

According to the referring judge, Casa di Cura Valle Fiorita srl could therefore have transferred the ownership of the property but not the possession, at least until the eviction of the unlawful occupants had been carried out.

3.– The referring judge considers that the entry into force, in the meantime, of Article 1, paragraph 81, of Law No. 197 of December 29, 2022 (State Budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025), which, with effect from January 1, 2023, modifying Article 1, paragraph 759, of Law No. 160 of December 27, 2019 (State Budget for the financial year 2020 and multi-year budget for the three-year period 2020-2022), concerning the cases of exemption from the municipal property tax, provided that "[t]he following are exempt from the tax, for the period of the year during which the prescribed conditions exist: […] g-bis) immovable properties that are neither usable nor available, for which a complaint has been filed with the judicial authority in relation to the offenses referred to in Articles 614, second paragraph, or 633 of the Criminal Code, or for whose unlawful occupation a complaint has been filed or criminal judicial action has been initiated” would not be relevant.

This is because such a provision could not be considered retroactive, pursuant to Article 11 of the preliminary provisions of the Civil Code, in the absence of express indications to that effect, nor could it be qualified as interpretative, because its prescriptive content would not be linked to another pre-existing rule to be clarified or specified.

The normative data on which the tax authority would base itself for the denial of the company’s request for reimbursement would therefore be constituted by the previous Articles 13, paragraph 2, of Decree-Law No. 201 of December 6, 2011 (Urgent provisions for growth, equity and consolidation of public accounts), converted, with amendments, into Law No. 214 of December 22, 2011 – according to which "[t]he municipal property tax has as its prerequisite the possession of real estate referred to in Article 2 of Legislative Decree No. 504 of December 30, 1992” – and 9, paragraph 1, of Legislative Decree No. 23 of 2011, which provide that "[t]he taxable persons of the municipal property tax are the owner of real estate, including land and building areas, for any use, including those instrumental to the production or exchange of which the business activity is directed, or the holder of a real right of usufruct, use, habitation, emphyteusis, surface rights on the same […]. For properties, including those to be built or under construction, granted under financial lease, the taxable person is the lessee from the date of stipulation and for the entire duration of the contract”, applicable ratione temporis.

It would therefore follow that, for tax purposes, it would be relevant not the possession of the asset, but only the existence of a title.

4.– The referring court argues that the issue is relevant for the purpose of deciding the proceedings a quibus, since any declaration of constitutional illegitimacy of the contested provision would affect the existing law (favorable to the tax authority) that has now become consolidated. There would, in fact, be an actual and concrete relationship of instrumentality between the definition of the main proceedings and the resolution of the question of constitutional legitimacy, since the referring court, for the purposes of deciding the proceedings a quibus, should apply the contested provision.

5.– As for the non-manifest groundlessness, the referring judge doubts, first of all, the compatibility of the provision in question with Articles 53 and 3 of the Constitution.

In the first place, the referring court believes that there are elements of conflict with the principle of contributory capacity referred to in Article 53 of the Constitution and with the principle of tax equality, according to which equal situations should correspond to equal tax regimes and, correlatively, different situations should correspond to unequal tax treatment.

The referring court considers that, for the tax years in which the unlawful occupation remains due to the choices of the administrative bodies responsible for the eviction of properties, the tax levy would conflict with the constitutional principles invoked. In fact, the possession legitimizing the emergence of the passive subjectivity for IMU purposes, to be effective, would presuppose that the thing is materially available to the individual possessor, so that the latter can exercise the prerogatives descending from the right falling on the asset.

In the case under examination, in which Casa di Cura Valle Fiorita srl, the owner of the property, was deprived of the possibility of exercising any right over the thing, according to the referring court, the original applicant should not have been considered a taxable person for IMU purposes, given the absence of the minimum requirements for a possessory situation to be configured and, consequently, a contributory capacity.

For the purposes of determining whether or not the taxable prerequisite of the IMU has occurred, in cases such as the one in question, the loss of possession would be of paramount importance in relation to the declarations of the police bodies certifying the impossibility of evacuating the property. If, in fact, the competent institutional bodies were unable to defend the constitutionally enshrined right of ownership, the owner, by reflection, would remain without protection and therefore without possession.

Faced with a "pathological” condition such as that relating to the proceedings a quibus, where a subject finds himself unable to recover possession of his property due to the choice of the State bodies responsible for clearing illegally occupied properties (and not due to the illegitimate behavior of the owner or due to his inertia), it would be in conflict with the constitutional principles to impose payment of the tax for the years in which the unlawful occupation persists, since the contributory capacity of the owner is lacking.

Secondly, the contested provision would be in conflict with Article 3 of the Constitution because it would be unreasonable that the owner of an unusable or uninhabitable property (possibly, due to his inertia) is granted, pursuant to Article 13, paragraph 3, of Decree Law No. 201 of 2011, as converted, a reduction of the IMU tax base, while, for the owner of an unlawfully occupied property for a cause not dependent on his will and without legal protection tools to recover possession, full taxation is instead provided.

5.1.– The taxation of unlawfully occupied properties that cannot be "evacuated" would also raise doubts about constitutional compatibility with Article 42, second paragraph, of the Constitution and Article 1 of Protocol no. 1 ECHR, which guarantee and protect private property.

An unlawful occupation should, in fact, allow the exercise of actions to protect ownership or possession, accompanied by the intervention of the public administration aimed at the "evacuation" of the property. However, if the intervention of the authority is not decisive, with consequent persistence of the state of unlawfulness, and the right of ownership is not protected by the public administration, the latter would derive an advantage, consisting in the collection of the tax even in the presence of an unlawful situation "tolerated" by it to the detriment of the property right of the owner of the property.

This would conflict with what has been stated several times by the ECHR, according to which the public administration is not allowed to benefit from its own unlawful behavior and, more generally, from a situation of illegality determined by itself (ECHR judgments October 13, 2015 [recte: 2005], La Rosa and Alba v. Italy and March 6, 2007, Scordino v. Italy are cited). This principle has also found its way into constitutional jurisprudence (Judgments No. 71 of 2015 and No. 293 of 2010 are cited).

5.2.– In conclusion, the referring court considers non-manifestly groundless, with reference to Articles 3, first paragraph, 42, second paragraph, and 53, first paragraph, of the Constitution, also in relation to Article 1 of Protocol no. 1 ECHR, the question of constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2011 (in the text applicable ratione temporis), insofar as it does not provide for tax exemption in the event of unlawful occupation of the property that cannot be vacated even in the presence of a complaint to the competent institutional bodies.

6.– Casa di Cura Valle Fiorita srl was established in court.

The defense of the party argues that Article 9, paragraph 1, of Legislative Decree No. 23 of 2011 would violate Article 53 of the Constitution, since, in the event that a subject is deprived of both the material availability of the asset, as it is unlawfully occupied, and the possibility of exercising any right on it and of receiving adequate protection from the legal system in the phase of exercising his possessory right, the effectiveness, certainty and timeliness of the tax prerequisite would be lacking and, consequently, the contributory capacity, which that prerequisite should express, would be lacking.

A tax claim could be considered compliant with Article 53 of the Constitution only if it is linked to facts expressive of contributory capacity.

In particular, according to Article 8 of Legislative Decree No. 23 of 2011, the prerequisite of the IMU should be identified in the "possession of properties other than the main dwelling”. However, the possession legitimizing the emergence of the passive subjectivity for IMU purposes, ex Article 9 of the same Legislative Decree No. 23 of 2011, in order to be effective, concrete and current, would presuppose that the asset to be taxed is available to the possessor so that the latter can exercise the prerogatives descending from the right falling on the asset. In the event that the owner is deprived of the material availability of the asset and of the possibility of restoring such availability, the prerequisite of the tax would be lacking, which would materialize in the effective, concrete and current possibility of exercising the powers of disposal and enjoyment of the asset, as manifestations of contributory capacity.

Therefore, a possessory situation expressive of contributory capacity could not be configured in the hands of the owner of an unlawfully occupied property, who has unsuccessfully exhausted all means of protecting his right. Therefore, for the years in which the unlawful occupation persists for causes independent of the will of the owner of the asset who has exhausted the means of protection prepared by the legal system, the prerequisite for tax would be lacking, so that the imposition would conflict with the principle of contributory capacity ex Article 53 of the Constitution.

Article 9, paragraph 1, of Legislative Decree No. 23 of 2011 would also violate Article 3 of the Constitution, as it would determine an unjustified violation of the principle of equality, and would also conflict with the criterion of reasonableness.

The defense of the party argues that, by virtue of the principle according to which equal situations must correspond to equal tax regimes and, correlatively, different situations, by their very legal and factual nature, must have different tax treatment, it would be evident that two structurally different legal situations could not be superimposed and treated equally, which would express a different contributory capacity: on the one hand, that of the owner who has possession of the res and, on the other, that of the owner who does not have such possession.

Moreover, the contested provision would be in conflict with the parameter of reasonableness referred to in Article 3 of the Constitution, as the legislative choices would be inconsistent and contradictory. In particular, it would be unreasonable that the owner of an unusable or uninhabitable property is granted a reduction in the IMU tax base, ex Article 13, paragraph 3, of Decree Law No. 201 of 2011, as converted, while, to the owner of an unlawfully occupied property, to which the legal system does not offer effective means of protection, full taxation is applied.

Article 9, paragraph 1, of Legislative Decree No. 23 of 2011 (in the text applicable ratione temporis) would also violate Article 42, second paragraph, of the Constitution, which establishes the fundamental right – protected erga omnes – of private property, and Article 1 of Protocol no. 1 ECHR.

The defense of the party argues that, in the event of unlawful occupation of a property, where the owner has uselessly implemented the actions to protect ownership and possession aimed at restoring the legitimate possessory situation, the right of ownership, although constitutionally guaranteed, would not receive effective protection from the legal system. In such cases, in light of the contested provision ratione temporis in force, the public administration would even have an advantage, consisting in the collection of a tax, even in the presence of an illegal situation in relation to which it has refrained from exercising its coercive powers.

It would not be admissible, in a state governed by the rule of law, that the legal system contemplates the instruments necessary for the protection of the subjective legal position of the private individual, requiring him to make use of them in order to realize his interest secundum ius and then not ensure that the interest of the individual is satisfied in the executive phase with the force that only the State is authorized to deploy, but still believes that that subject is considered the center of imputation of tax obligations inextricably linked to the possibility of exercising possessory rights.

The contested provision would also be in conflict with Article 1 of Protocol no. 1 ECHR, which protects private property, so that a restriction of proprietary protection should respond to a fair balance between public needs and the needs to protect the fundamental rights of the individual and could not be determined by the total and prolonged inertia of the competent authority, which could not "benefit from its own unlawful behavior and, more generally, from a situation of illegality determined by itself” (the judgments of the ECHR, La Rosa and Alba and Scordino, are cited).

The defense of the party therefore considers that the contested provision, by allowing the public administration to collect a tax on the basis of a situation of illegality (unlawful occupation of a property) tolerated and not opposed by it, to the detriment of the right of ownership, is in conflict with Articles 42, second paragraph, of the Constitution and 1 of Protocol no. 1 ECHR.

Considered in law

1.– With the orders indicated in the headnote, the Court of Cassation, Tax Division, raised questions of constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2011, in its original wording applicable ratione temporis, insofar as it does not provide for exemption from the payment of IMU in the event of unlawfully occupied property despite the complaint to the competent institutional bodies, for violation of Articles 3, first paragraph, 53, first paragraph, 42, second paragraph, of the Constitution and 1 of Protocol no. 1 ECHR.

2.– The referring judge reports that in December 2012 a building belonging to Casa di Cura Valle Fiorita srl had been unlawfully occupied and that the latter had filed two appeals against the silent refusal by Roma Capitale on the request for reimbursement of the IMU payment, respectively for the years 2013 and 2014. The appeals highlighted the loss of possession of the property as well as the immediate reporting of the fact in criminal proceedings, and the failure to execute the preventive seizure of the property ordered by the judicial authority.

The referring court affirms that the aforementioned company, while being the owner of the property, had at the same time lost possession of it, so that the taxable prerequisite of the IMU would not exist.

The referring judge therefore believes that, by virtue of the contested discipline and the relevant existing law, for tax purposes only the existence of a title that certifies a real right on the property or a lease agreement would be relevant, not also the related possession of the asset.

The issue would be non-manifestly groundless with regard to Articles 53, first paragraph, and 3, first paragraph, of the Constitution, because the unlawfully occupied property would not constitute a valid indicator of contributory capacity and would thus determine equal treatment of unequal situations, as both unlawfully occupied properties and those that are not would be subjected to the same taxation.

The loss of possession would take on a particular significance in light of, on the one hand, the complaint to the competent institutional bodies by the owner of the unlawfully occupied property and, on the other, the inertia of the authorities responsible for its eviction, so that it would be unreasonable to recognize a reduction of the IMU tax base to the owner of an unusable or uninhabitable property (possibly, due to his inertia) and to provide, instead, for full taxation of the owner of an unlawfully occupied property for a cause not dependent on his will and without legal protection tools to recover possession.

The contested provision would also be in conflict with Article 42, second paragraph, of the Constitution and with Article 1 of Protocol no. 1 ECHR, which guarantee and protect private property, because the latter should allow the exercise of actions to protect ownership or possession, including the intervention of public force for the "evacuation" of the property and, moreover, the public administration would not be allowed to benefit from its own unlawful behavior.

3.– The proceedings concern the same provision which is challenged with reference to the same parameters and with the same arguments; therefore, posing identical questions, they must be combined and decided with a single ruling.

4.– The issue is relevant since the contested provision – although subsequently repealed by Article 1, paragraph 780, of Law No. 160 of 2019 with effect from January 1, 2020 – finds actual application in the proceedings a quibus, where, before the Court of Cassation, there is a dispute about whether or not the IMU is due for the tax years relating to 2013 and 2014.

5.– First, a brief normative and jurisprudential premise relating to the taxable prerequisites of the IMU is necessary.

5.1.– The IMU is a tax that burdens real estate, introduced on the basis of Articles 8 and 9 of Legislative Decree No. 23 of 2011 (provisions amended many times over the years) and 13 of Decree Law No. 201 of 2011, as converted (provision also amended several times), in replacement of the municipal tax on real estate (ICI), the latter, established by Legislative Decree No. 504 of December 30, 1992 (Reorganization of the finances of local authorities, pursuant to Article 4 of Law No. 421 of October 23, 1992), can be considered the precursor tax of the IMU.

From 2014 to 2019, the IMU was then governed by Law No. 147 of December 27, 2013, containing "Provisions for the formation of the annual and multi-year state budget (2014 Stability Law)” as a tax forming part, together with the tax for indivisible services (TASI) and the waste tax (TARI), of the single municipal tax (IUC).

Law No. 160 of 2019 subsequently abolished, with effect from 2020, the IUC and – among the taxes that were part of it – the TASI. On the other hand, among those that made up the same IUC, the TARI and the IMU remained in force, the latter as governed by the same Law No. 160 of 2019.

According to Article 9 of Legislative Decree No. 23 of 2011, in the text applicable ratione temporis, and in particular with reference to the tax years 2013 and 2014 subject of the two referral orders: "1. [t]he taxable persons of the municipal property tax are the owner of real estate, including land and building areas, for any use, including those instrumental to or the production or exchange of which the business activity is directed, or the holder of a real right of usufruct, use, habitation, emphyteusis, surface rights on the same. In the case of concessions of state-owned areas, the taxable person is the concessionaire. For properties, including those to be built or under construction, granted under financial lease, the taxable person is the lessee from the date of stipulation and for the entire duration of the contract. 2. The tax is due for calendar years proportionally to the share and months of the year in which the possession lasted; for this purpose, the month during which the possession lasted for at least fifteen days is counted in full. Each calendar year corresponds to an autonomous tax obligation”.

Moreover, according to the previous Article 8, paragraph 2, "[t]he municipal property tax has as its prerequisite the possession of real estate”; Article 13, paragraph 2, of Decree Law No. 201 of 2011, as converted, in the text applicable ratione temporis, expresses itself in the same identical terms.

Finally, Article 1, paragraph 81, of Law No. 197 of 2022 amended Article 1, paragraph 759, of Law No. 160 of 2019, which, in the text currently in force, provides that, with effect from January 1, 2023, "[t]he following are exempt from the tax for the period of the year during which the prescribed conditions exist […] g-bis) immovable properties that are neither usable nor available, for which a complaint has been filed with the judicial authority in relation to the offenses referred to in Articles 614, second paragraph, or 633 of the Criminal Code, or for whose unlawful occupation a complaint has been filed or criminal judicial action has been initiated”.

6.– On the merits, the question of constitutional legitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2011, in the text applicable ratione temporis, raised with reference to Articles 3, first paragraph, and 53, first paragraph, of the Constitution is well-founded, in the terms that follow.

Regardless of the notion of possession to which reference must be made with regard to the IMU, it is unreasonable to assert that the contributory capacity of the owner who has suffered the unlawful occupation of a property that makes it unusable and unavailable and has promptly taken action to criminally report the incident, so much so that the legislator, as already noted, has intervened with Law No. 197 of 2022 to declare that the tax in question is not due.

Emblematic is the case that is the subject of the proceedings a quibus in which the owner company had taken all the necessary measures to prevent the occupation of the property and had promptly reported the occupation against its will to the criminal judicial authority. Although in August 2013 a preventive seizure of the property ex Article 321 of the Code of Criminal Procedure had been ordered by the judge for preliminary investigations, the seizure itself had not been executed for reasons of public order. Therefore, the owner company had not been able to return to possession of the property despite the use of adequate diligence.

This Court has constantly affirmed that "every tax levy must have a justifying cause in concrete indicators that are revealing of wealth (ex plurimis, judgments No. 156 of 2001, No. 111 of 1997, No. 21 of 1996, No. 143 of 1995, No. 179 of 1985 and No. 200 of 1976)” (judgment No. 10 of 2023) and has stressed that "the subtraction from taxation (or its reduction) is made necessary […] by the finding of a lesser or absent contributory capacity (which the legislator may ascertain in relation to certain factual circumstances)” (judgment No. 120 of 2020).

It is therefore unreasonable and contrary to the principle of contributory capacity that the owner of an unlawfully occupied property, who has promptly filed a complaint with the criminal judicial authority, is, despite this, required to pay the IMU for the period from the moment of the complaint to the moment in which the property is released, because the ownership of such a property does not constitute, for the period in which it is unlawfully occupied, a valid indicator revealing wealth for the owner deprived of possession.

Moreover, this approach is consistent with a tax hypothesis similar in some ways in which, in the event of loss of availability of the asset due to the actions of a third party, the legal system establishes the cessation of the obligation to pay the tax. This is the case of the car tax: Article 5 of Decree-Law No. 953 of December 30, 1982 (Measures on tax matters), converted, with amendments, into Law No. 53 of February 28, 1983, in fact establishes, in the thirty-seventh and thirty-eighth paragraphs, that, despite the fact that the taxable person is the owner of the asset, "[t]he loss of possession of the vehicle or motorboat due to force majeure or the actions of a third party or the unavailability resulting from a provision of the judicial authority or of the public administration, noted in the registers indicated in the thirty-second paragraph, eliminate the obligation to pay the tax for the tax periods subsequent to the one in which the annotation was made. The obligation to pay begins to accrue again from the month in which the repossession or availability of the vehicle or motorboat occurs”.

7.– Therefore, the constitutional illegitimacy of Article 9, paragraph 1, of Legislative Decree No. 23 of 2011, in the text applicable ratione temporis, must be affirmed, for violation of Articles 3, first paragraph, and 53, first paragraph, of the Constitution, insofar as it does not provide that – on the model of Article 1, paragraph 81, of Law No. 197 of