JUDGMENT NO. 61

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 legitimacy of Article 13, paragraph 1, of the Lombardy Regional Law No. 24 of 27 December 2021, concerning "Provisions for the implementation of regional economic and financial planning, pursuant to Article 9 ter of the Regional Law No. 34 of 31 March 1978 (Regulations on planning procedures, budget and accounting of the Region) - 2022 Related Provisions", brought by the President of the Council of Ministers with an appeal served on 25 February 2022, filed with the Registry on 4 March 2022, registered under No. 22 of the 2022 appeals register and published in the Official Gazette of the Republic No. 15, first special series, of the year 2022.

Having seen the notice of appearance of the Lombardy Region;

Having heard at the public hearing of 20 March 2024 the Reporting Judge Stefano Petitti;

Having heard the State Attorney Giancarlo Caselli for the President of the Council of Ministers and the attorney Andrea Manzi for the Lombardy Region;

Having deliberated in the deliberation chamber on 20 March 2024.

Facts

1. – By appeal served on 25 February 2022 and filed on 4 March (Case No. 22 of 2022), the President of the Council of Ministers, represented and defended by the State Attorney General's Office, brought questions of constitutional legitimacy concerning Article 13, paragraph 1, of the Lombardy Regional Law No. 24 of 27 December 2021, concerning "Provisions for the implementation of regional economic and financial planning, pursuant to Article 9 ter of Regional Law No. 34 of 31 March 1978 (Regulations on planning procedures, budget and accounting of the Region) - 2022 Related Provisions", in reference to Article 117, second paragraph, letters e) and s), of the Constitution.

1.1. – The appellant states that the challenged article amended Article 47 of Lombardy Regional Law No. 26 of 12 December 2003 (Regulations on local services of general economic interest. Regulations on waste management, energy, subsoil use and water resources), introducing a series of provisions concerning the delimitation of optimal territorial areas (ATO) for the performance of integrated water service (IWS) activities.

In particular, Article 47 of Lombardy Regional Law No. 26 of 2003, as amended, now provides that ATOs no longer necessarily coincide with the administrative boundaries of the Lombardy provinces and the Metropolitan City of Milan (paragraph 1), and that these may be "delimited with reference to the administrative boundaries of mountain communities, also on the proposal of municipalities, in order to improve the management of the integrated water service according to criteria of efficiency, effectiveness and cost-effectiveness" (paragraph 1-bis), also taking into account certain parameters listed in the same paragraph. The further provisions introduced by the challenged provision then govern the contents of the proposal for the identification of the new ATO, on which the Regional Government pronounces, by resolution (paragraph 1-ter), and the obligations incumbent upon the newly established area office, in view of the compensation to which it is entitled, in favour of the service manager in the territory of the municipalities transferred to the new ATO, for "investments made in the aforementioned municipalities for the portion not yet amortised by tariff revenues" (paragraph 1-quater).

2. – According to the appellant, the provisions introduced by Article 13 of Lombardy Regional Law No. 24 of 2021 violate the constitutional parameters referred to in Article 117, second paragraph, letters e) and s), of the Constitution, to which this Court has consistently referred the matter in question, because they would be "in conflict with national legislation and, in particular, with the prerequisites for applying the derogation from the dimensions defined by national legislation", as currently regulated by Article 147 of Legislative Decree No. 152 of 3 April 2006 (Environmental regulations) and Article 3-bis of Decree-Law No. 138 of 13 August 2011 (Further urgent measures for financial stabilisation and development), converted, with amendments, into Law No. 148 of 14 September 2011.

According to this legislation, the identification of the area governing bodies should be carried out "by resolution" of the regions (Article 147, paragraph 1, Environmental Code), but these would not be "entirely free to modify the territorial areas at their discretion", both because the size of the ATOs "should normally be no less than that of the provincial territory" (Article 3-bis of Decree-Law No. 138 of 2011, as converted), and because any derogation should respect the criteria constituted by the unity of the hydrographic basin, the uniqueness and adequacy of the management dimensions (Article 147, paragraph 2, Environmental Code). In this case, the regions should still justify the choice "on the basis of criteria of territorial and socio-economic differentiation and on the basis of principles of proportionality, adequacy and efficiency with respect to the characteristics of the service, also on the proposal of the municipalities" (Article 3-bis, paragraph 1, Decree-Law No. 138 of 2011, as converted).

Even if the regions were allowed to derogate from the national legislation on the optimal dimensions of the territorial areas, this should still be done "in compliance with the procedural method and the criteria set out in the legislation itself, justifying the choice made in such a way as to guarantee the controllability of the discretion exercised in the competent judicial bodies" (reference is made to the judgment of this Court No. 173 of 2017).

The Lombardy legislature, with the challenged provisions, however, would have ended up assimilating, generally, mountain communities to provinces, as a preferential area for the management of the integrated water service, with the risk of fragmenting the conditions for its performance, in contrast with the assessment made by the national legislature. The latter, in fact, has identified the optimal size of the ATO at the provincial level, in view of both the pursuit of environmental protection objectives and the opening to the market due to the containment of management costs (reference is made to the judgments of this Court No. 160 of 2016 and No. 134 of 2013).

Furthermore, due to the fact that it has provided for a "completely innovative" general provision, consisting in the ATO delimited territorially with reference to the administrative boundaries of the mountain communities and having subjected its establishment to a "specific administrative procedure carried out on a case-by-case basis", the Region would have reversed the relationship between rule and exception provided for by national legislation, "codifying [...] the possibility of modifying the delimitation of ATOs in mountainous areas, identifying new ones, with dimensions that are also different, and presumably smaller, than the provincial ones".

3. – By document filed on 21 March 2022, the Lombardy Region, in the person of the President of the Regional Government, appeared in court, requesting that the questions be declared inadmissible and, in any case, unfounded.

3.1. – The appeal would, first of all, be inadmissible due to the vagueness, lack and inconsistency of the reasoning.

In the reconstruction of the national and regional regulatory framework and in the illustration of the reasons for the complaint, in fact, the appellant would neither have clarified whether or not the national provisions taken as an intermediate parameter allow the regions to delimit the ATOs on a basis other than the provincial boundaries, nor would it have adequately explained the reasons for the alleged unconstitutionality of the challenged provisions. These shortcomings, moreover, would not be remediable due to the reference to the judgment of this Court No. 173 of 2017, given the difference between the case in question and the one examined at that time.

Finally, although the appeal is directed against the entire content of Article 13, paragraph 1, of Lombardy Regional Law No. 24 of 2021, the criticisms specifically formulated by the appellant would only concern the new paragraphs 1-bis and 1-ter, introduced by the challenged provision in the body of Article 47 of Lombardy Regional Law No. 26 of 2003.

3.2. – On the merits, the regional defence points out that, with the challenged provisions, in compliance with the provisions of the national principles, the Lombardy Region has not identified new sub-provincial ATOs by law, as "what is entrusted by national legislation to the deliberative act of the Region as the competent administrative authority has not been brought into the legislative sphere – with a provision of a particular and concrete nature".

The provision of ad hoc regional parameters for the establishment of ATOs in mountainous areas is therefore justified in the light of the opportunity to adapt certain organisational aspects of the service in detail to the territorial context, with a view to improving the management of the IWS according to the same criteria of efficiency, effectiveness and cost-effectiveness provided for in Article 147, paragraph 2, of the Environmental Code.

This should be considered permissible both because of the possibility for regions to protect competition more intensively (reference is made to the judgment of this Court No. 231 of 2020), and, above all, because the minimum size of the new ATO thus identified (75,000 inhabitants) should be considered sufficient to avoid fragmentation of the service and, consequently, the efficiency of its management.

In the light of the reference, in the challenged provisions, to the principles and criteria contained in the interposed national legislation, the regional defence observes that that introduced by the Lombardy legislature would not be a "new type of derogation/autonomous management of the integrated water service", as it is a possibility of delimiting new "mountain ATOs", the identification of which would remain entrusted to a resolution of the Regional Government which, due to the fact that it must justify the choice made, would not prejudice the possibility of judicial control of the discretion exercised during the relevant procedure.

The choice to delimit the ATOs only in mountainous contexts, moreover, responds to the need to counteract the demographic, social, economic and territorial imbalances that affect mountainous areas, consistently with the aims indicated by Lombardy Regional Law No. 25 of 15 October 2007 (Regional interventions in favour of the population of mountainous areas), without thereby fragmenting the management of the water service.

On the contrary, the regional defence observes, the challenged provision aims precisely to "guarantee the definitive overcoming of the fragmentation of the service", i.e. the cessation of the persistence of in-house management by the municipalities. The criterion of delimitation on a provincial basis, in fact, would only be provided for by Article 3-bis of Decree-Law No. 138 of 2011, as converted, with regard to the generality of local public network services of economic relevance, while Article 147, paragraph 2, letter a), of the Environmental Code, with specific regard to the ATOs entrusted with the management of the IWS, would adopt a "delimitation criterion based on the hydrographic morphology of the territory".

It would follow, according to the Region, that the prevalence of the delimitation criterion on a provincial basis should be verified in the light of the "[p]rinciples on the production of environmental law", referred to in Article 3-bis of Legislative Decree No. 152 of 2006.

3.3. – With a first application filed on 16 December 2022, subsequently reiterated on 15 May 2023, the Lombardy Region requested that the public hearings scheduled for 10 January and 20 June 2023, respectively, be postponed, in order to allow the completion of the discussions that the Region itself had already started with the Government and which would have led to the drafting of an amendment to the challenged provision. The subsequent public hearing was therefore set for 20 March 2024.

4. – By submission filed on 16 February 2024, the regional defence reported on the ius superveniens constituted by Article 19 of Lombardy Regional Law No. 4 of 14 November 2023 (2023 Regulatory Review Law), which significantly amended the regulations on the matter contained in Article 47 of Lombardy Regional Law No. 26 of 2003, replacing, in particular, paragraphs 1-bis and 1-ter of the same provision.

In the light of the non-application medio tempore of the provisions under appeal and the fact that the ius superveniens would have had "satisfying effect with respect to the reasons of the appellant", the defence of the Lombardy Region therefore requested this Court to declare the cessation of the subject matter of the dispute.

The request was reiterated during the public hearing of 20 March 2024 and was joined by the State Attorney General's Office.

Legal Reasoning

1. – By appeal served on 25 February 2022 and filed on 4 March (Case No. 22 of 2022), the President of the Council of Ministers, represented and defended by the State Attorney General's Office, brought questions of constitutional legitimacy concerning Article 13, paragraph 1, of Lombardy Regional Law No. 24 of 2021, in reference to Article 117, second paragraph, letters e) and s), of the Constitution.

1.1. – According to the appellant, the challenged provision, due to the fact that it allows the perimeter of the ATOs for the performance of the integrated water service in Lombardy to be set, as an alternative to the criterion corresponding to the boundaries of the territory of the provinces and the Metropolitan City of Milan, on the basis of the administrative boundaries of the mountain communities, would conflict with the aforementioned constitutional parameters and, in particular, would violate the interposed parameters constituted by Article 147, paragraph 2, of the Environmental Code and Article 3-bis of Decree-Law No. 138 of 2011, as converted.

In fact, the prefiguration of a criterion for delimiting ATOs centred on the perimeter of mountain communities would not respect the aforementioned national provisions and, more specifically, would conflict with the prerequisites for applying the derogation to the territorial dimensions of the areas in question, which normally coincide with the administrative boundaries of the provinces. This choice, on the one hand, would favour the fragmentation of the service and, on the other, could nullify the useful effect of the unitary management of territories of adequate size.

2. – Before examining the objections of inadmissibility of the appeal raised by the regional defence and entering, if necessary, into the merits of the criticisms, it is necessary to assess the scope and effects on the present proceedings of the ius superveniens represented by Article 19 of Lombardy Regional Law No. 4 of 2023, which entirely replaced the regulations introduced by the challenged provision.

2.1. – Article 13, paragraph 1, of Lombardy Regional Law No. 24 of 2021, challenged in these proceedings, had amended Article 47 of Lombardy Regional Law No. 26 of 2003 by introducing an alternative criterion for the territorial delimitation of the ATOs of the integrated water service in Lombardy, centred on the tendency for specific ATOs corresponding to the administrative boundaries of mountain communities to coexist alongside areas delimited on the territories of the provinces and the Metropolitan City of Milan.

The juxtaposition of this dual criterion of territorial location was clearly evident from the literal wording of the challenged provision, when this, first of all, had amended the first sentence of paragraph 1 of the aforementioned Article 47, establishing that, from that moment onwards, the ATOs of the IWS in Lombardy only corresponded "as a rule" to the administrative boundaries of the Lombardy provinces and the Metropolitan City of Milan.

The regulations introduced in paragraphs 1-bis and following of the same provision further demonstrated how the criteria and prerequisites for the identification of the new mountain ATOs, even if aimed at "exceptionally modifying, in mountain territories, the delimitations of the ATOs referred to in paragraph 1", in fact prefigured an alternative mechanism of identification, entrusted to general requirements such as "criteria of territorial and socio-economic differentiation", "principles of proportionality, adequacy and efficiency with respect to the characteristics of the service", as well as parameters related to the minimum number of inhabitants in the new ATO and in the one remaining from the split (75,000) and the "no prejudice to the structure and functionality of the ATO".

2.2. – Following the entry into force of Article 19 of Lombardy Regional Law No. 4 of 2023, which in paragraph 1, letter b), points 2) and following, replaced paragraphs 1-bis and 1-ter and amended paragraph 1-quater of Article 47 of Lombardy Regional Law No. 26 of 2003, originally introduced by the provision subject to the present criticisms, the Lombardy legislature opted for a different legislative solution in this matter.

On the one hand, in fact, it restored the original wording of the aforementioned Article 47, eliminating the phrase "as a rule" regarding the correspondence of the ATOs of the IWS with the provinces and the Metropolitan City of Milan, which therefore returns to being the ordinary criterion for the delimitation of Lombardy ATOs.

On the other hand, and consequently, the new paragraph 1-bis of the same Article 47 no longer sets out a procedure aimed at allowing, generally, the establishment of specific mountain ATOs, but directly provides for the modification of the perimeter of a specific territorial area, that of Brescia, so as to establish the Valle Camonica ATO, "coinciding with the administrative boundaries of the Valle Camonica Mountain Community" and to regulate its establishment procedures and prerequisites for operation.

3. – In the face of this legislative novum, not subject to appeal pursuant to Article 127 of the Constitution, the defence of the Lombardy Region has requested that the cessation of the subject matter of the dispute be declared, given that the amendments made to Article 47 of Lombardy Regional Law No. 26 of 2003 would have a satisfying character with respect to the claims put forward by the appellant and the legislation under appeal would not have been applied during the period of its validity.

3.1. – Both requirements, required by the consistent jurisprudence of this Court in order for the cessation of the subject matter of the dispute to be declared (judgments No. 223 and No. 80 of 2023, No. 222 and No. 92 of 2022; Order No. 96 of 2023), must be considered to effectively exist.

There can be no doubt, first of all, that the provisions under appeal have not been applied during the period of their validity, as is demonstrated by the failure to initiate the administrative procedure aimed at allowing the detachment of a mountain ATO from an already existing one, according to the terms and for the effects of paragraph 1-bis of Article 47 of Lombardy Regional Law No. 26 of 2003, as introduced by Article 13, paragraph 1, letter b), of Lombardy Regional Law No. 24 of 2021. The fact that these procedures have not been initiated is also proven by the note of 5 February 2024 from the General Directorate for Local Authorities, Mountains, Energy Resources, Water Resource Use of the Lombardy Region, filed in court by the Region and the content of which has not been contested by the appellant.

Nor are there any reasons, then, to believe that the subsequent legislative changes do not have a satisfying character with respect to the specific complaints contained in the introductory appeal.

The basis of the latter, in fact, was the observation that the vulnus brought to the alleged constitutional and interposed parameters originated from the choice of the Lombardy legislature to identify an alternative criterion, of general scope, for the identification of the perimeter of the ATOs of the integrated water service, such – in the very words of the appeal – as to "assimilate the mountain communities themselves to the provinces as regards the application of the relevant provisions".

Having eliminated this general criterion and introduced, in its place, a specific and precise provision, of essentially procedural character, aimed at establishing the Valle Camonica ATO, it must be considered that the original government complaints have also correspondingly ceased to exist, given the structural difference between the two regulations and, with it, the substantial satisfaction of the claims put forward in the introductory appeal.

Moreover, the State Attorney General's Office joined, in court, the request of the regional defence.

4. – The cessation of the subject matter of the dispute must therefore be declared.

For These Reasons

THE CONSTITUTIONAL COURT

declares the cessation of the subject matter of the dispute concerning the questions of constitutional legitimacy of Article 13, paragraph 1, of the Lombardy Regional Law No. 24 of 27 December 2021, concerning "Provisions for the implementation of regional economic and financial planning, pursuant to Article 9 ter of Regional Law No. 34 of 31 March 1978 (Regulations on planning procedures, budget and accounting of the Region) - 2022 Related Provisions", brought, in reference to Article 117, second paragraph, letters e) and s), of the Constitution, by the President of the Council of Ministers with the appeal indicated in the heading.

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

Signed:

Augusto Antonio BARBERA, President

Stefano PETITTI, Reporting Judge

Valeria EMMA, Registrar

Filed with the Registry on 18 April 2024