JUDGMENT NO. 64

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 delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 133, paragraph 1, of Legislative Decree No. 113 of May 30, 2002, containing the "Consolidated Law on Legislative Provisions concerning legal expenses. (Text B)”, transposed into Article 133, paragraph 1, of Decree of the President of the Republic No. 115 of May 30, 2002, containing the "Consolidated Law on Legislative and Regulatory Provisions concerning legal expenses. (Text A)”, initiated by the Ordinary Tribunal of Cagliari, acting as Labour Court, in the proceedings between M.M. B. and the National Institute for Insurance against Accidents at Work (INAIL), with an order of June 20, 2023, registered under No. 121 of the 2023 Register of Orders and published in the Official Gazette of the Republic No. 39, first special series, of the year 2023.

Seen the act of constitution of INAIL and the act of intervention of the President of the Council of Ministers;

heard at the public hearing of March 19, 2024, the Reporting Judge Luca Antonini;

heard lawyer Giandomenico Catalano for INAIL and State Attorney Pietro Garofoli for the President of the Council of Ministers;

deliberated in the deliberation chamber of March 19, 2024.

Facts of the Case

1. – By order of June 20, 2023 (reg. ord. No. 121 of 2023), the Ordinary Tribunal of Cagliari, acting as Labour Court, raised – with reference to Articles 3, 23, 53, 76 and 111, second paragraph, of the Constitution – questions of constitutional legitimacy of Article 133, paragraph 1, of Legislative Decree No. 113 of May 30, 2002, containing the "Consolidated Law on Legislative Provisions concerning legal expenses. (Text B)”, transposed into Article 133, paragraph 1, of Decree of the President of the Republic No. 115 of May 30, 2002, containing the "Consolidated Law on Legislative and Regulatory Provisions concerning legal expenses. (Text A)”.

The aforementioned provision establishes that "[t]he order that places the payment of legal costs on the losing party not admitted to [State-funded] legal aid, in favour of the party admitted, orders that payment be made in favour of the State".

It is challenged in the part where, according to the interpretation given by settled case law, it provides that, should the indigent party admitted to the benefit of State-funded legal aid be successful, the civil judge shall quantify the legal costs owed to the latter by the losing party "according to the ordinary criteria, in full measure and therefore higher than that of the fees owed by the State [itself] to the counsel for the indigent”.

2. – Seized of the appeal aimed at the annulment of a payment demand issued for the recovery of a debt claimed by the National Institute for Insurance against Accidents at Work (INAIL), the referring court reports that, in defining the proceedings, it is called to regulate the legal costs, placing them on the defendant Institute according to the principle of liability for costs and ordering their payment in favour of the State, since the successful party has been admitted to the aforementioned benefit.

2.1. – The a quo judge notes that, in this case, the jurisprudence of the Court of Cassation (are cited Court of Cassation, Sixth Civil Section, Second Subsection, orders September 19, 2017, No. 21611, and September 16, 2016, No. 18167; Sixth Criminal Section, judgment November 8-December 14, 2011, No. 46537) would have initially enunciated the principle of the necessary coincidence between the sum that is to be refunded to the State pursuant to Article 133, paragraph 1, of Presidential Decree No. 115 of 2002, and that paid by the State itself to the counsel for the indigent party and liquidated pursuant to Articles 82, paragraph 1, and 130, paragraph 1, of the same Presidential Decree, under which the fees owed to said counsel must be quantified at an amount not exceeding the average values provided by the parameters set out in the relevant ministerial decree and then reduced by half.

The referring court specifies that, however, the civil jurisprudence of the Court of Cassation would have subsequently reached the opposite conclusion, stating that "the civil judge, unlike the criminal judge, is not required to quantify in equal measure the sums owed by the losing party to the State [...] and those owed by the State [itself] to the counsel for the indigent [...], in light of the peculiarities that characterize the criminal procedure system of State-funded legal aid and of the fact that, otherwise, there would be a non-application of the aforementioned Article 130. In this way, it is avoided that the losing party towards the indigent party is advantaged with respect to other losing parties and the State is allowed, through the possible collection of sums greater than those liquidated to the individual counsel, to compensate for situations of non-recovery of what has been paid and to contribute to the functioning of the system as a whole" (Court of Cassation, Second Civil Section, order September 11, 2018, No. 22017, is cited).

This orientation would have then found confirmation - "and no longer only in the form of obiter" - in numerous other pronouncements of the Court of Cassation (are cited Court of Cassation, Second Civil Section, judgments January 19, 2021, No. 777, and January 3, 2020, No. 19; Labour Section, judgment March 26, 2019, No. 8387; Second Civil Section, order January 8, 2020, No. 136; Sixth Civil Section, Labour Subsection, order May 3, 2019, No. 11590), consolidating to the point of becoming settled case law.

3. – Thus interpreted, Article 133, paragraph 1, of Presidential Decree No. 115 of 2002 would violate, according to the judge a quo, the evoked constitutional parameters.

3.1. – The presentation of the doubts of constitutional legitimacy is prefaced by a diachronic reconstruction of the legislative discipline of judicial assistance to indigent persons, to infer that, before the adoption of Presidential Decree No. 115 of 2002 - which incorporated the legislative provisions of Legislative Decree No. 113 of 2002 and the regulatory provisions of Presidential Decree of May 30, 2002, No. 114, containing the "Consolidated Law on Regulatory Provisions concerning legal expenses. (Text C)" -, the State could "[r]ecover from the losing party other than the indigent party the amounts owed to the counsel for the party benefiting from free legal aid and not also greater sums".

With the challenged rule, therefore, it would have been provided "for the first time" that the State can "recover from the losing party the value of the attorney's fees that can be liquidated [...] as if the successful party were not admitted to legal aid", i.e. without "the limit of the coincidence of said value with that of the fees advanced by the Treasury to the counsel for the party defended free of charge".

Hence the alleged violation of Article 76 of the Constitution, since this provision would conflict with Article 7 of Law No. 50 of March 8, 1999 (Delegification and consolidated texts of rules concerning administrative procedures - Simplification Law 1998).

This provision, in delegating the Government to adopt consolidated texts aimed at the reorganization of legislative and regulatory rules in a complex of matters, including that of legal expenses, would in fact, in paragraph 2, letter d), dictate the directive criterion of the mere "formal coordination of the text of the provisions in force", allowing to overcome this limit only if this is functional to the objective "of the logical and systematic coherence of the reorganized legislation" (judgments No. 53 and No. 52 of 2005 of this Court are cited).

The Government, on the other hand, with the challenged provision would not have limited itself, in light of the considerations made above, to mere formal coordination, but would have instead introduced a completely innovative rule.

Nor, on the other hand, could such a choice be justified as being preordained to the aforementioned objective and, in particular, to the aim of "aligning" the discipline of the benefit de quo to that of the condemnation to the payment of litigation costs referred to in Article 91 of the Code of Civil Procedure, the "function (of indemnity)" of which would have been, rather, distorted.

3.2. – Articles 3, 23, 53 and 111, second paragraph, of the Constitution would also be violated.

In this regard, the referring court believes that the obligation to pay a sum, "corresponding to the 'full' value of the fees", higher than that owed by the State to the counsel for the indigent party constitutes, for the difference between the two amounts, a "compulsory levy", resulting in an obligation of a tax nature.

Of the tax case, in fact, all the characteristic elements defined by the jurisprudence of this Court would be present, since, for the said difference: a) the condemnation to the payment of legal costs would determine "without a doubt a definitive and significant financial reduction at the expense" of the losing party; b) this reduction would not concern a synallagmatic relationship; c) the resources thus obtained would be justified "with the objective of financing in general the institution of legal aid for indigent persons".

The tax obligation in question, however, would be unreasonably "detached from any verification of the contributory capacity" and would lead to an unjustified disparity of treatment among the losing parties, since these would be "called to contribute to the general expense connected" to the institution de quo only if condemned to the payment of litigation costs and not also in the event that the judge orders the compensation of the costs themselves.

Moreover - the referring court further observes - from the aforementioned tax nature it would also follow that the challenged provision would result in the attribution to the judicial authority of "an imposing function".

Hence "an inevitable confusion between the carrying out of the judicial function, which requires guarantees of [...] impartiality" pursuant to Article 111, second paragraph, of the Constitution, "and the carrying out of a power purely referable to the State Administration", with the consequent "loss of the position of impartiality proper to the judge".

4. – Having thus clarified the issue of non-manifest lack of foundation, the referring Tribunal, on the one hand, observes that a constitutionally oriented exegesis would not be practicable, since this, in light of the consolidated orientation of the jurisprudence of the Court of Cassation, would be "destined to be quashed".

On the other hand, it reiterates that, in order to define the proceedings submitted to its cognizance, it must also rule on legal costs, condemning the defendant party to their payment in favor of the State, in application of the challenged provision.

Hence the relevance of the issues raised.

5. – The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, requesting that the issues be declared inadmissible and, in any case, unfounded.

5.1. – The claimed inadmissibility is based, first of all, on the observation that the complaints of the judge a quo should not have affected the challenged provision, but its combined provision with Article 130, paragraph 1, of Presidential Decree No. 115 of 2002, in the part in which it provides that the State recovers a sum greater than that liquidated by the judge in favour of the counsel for the party admitted to the benefit in question.

Secondly, the issues raised would be inadmissible because the referring court, having "limit[ed] itself to recalling some precedents of the jurisprudence of the Court of Cassation", would not have specifically motivated with regard to the existence of the disputed settled case law and, consequently, to the impracticability of a constitutionally compliant interpretation of the suspected provision.

Finally, in any case, the issue raised with reference to Article 23 of the Constitution would be inadmissible, as the judge a quo has in no way motivated the supposed contrast with this constitutional parameter.

5.2. – On the merits, the issues would in any case be unfounded.

The State Attorney General's Office observes that Article 133, paragraph 1, of Presidential Decree No. 115 of 2002 does not expressly state whether the civil judge must liquidate the legal costs by applying, or not, the reduction by half provided for by Article 130, paragraph 1, of the same Presidential Decree, merely establishing that their payment be ordered in favour of the State.

Therefore, the lamented violation of Article 76 of the Constitution would not be ascertainable, since the delegated legislator would have faithfully "compiled the consolidated text in compliance with the criteria of delegation" and only the interpretation that the jurisprudence of the Court of Cassation has given of the challenged provision would have changed.

Equally unfounded would be the alleged violation of Articles 3, 53 and 111, second paragraph, of the Constitution.

Admission to State-funded legal aid - notes the State defense - would give rise exclusively to a "relationship between the admitted party and its counsel and [...] between them and the State", so that it could have no effect on the losing party, with respect to whom it would represent a completely neutral circumstance.

It would therefore be entirely reasonable for the judge to quantify the litigation costs without halving the fees for the defensive activity: in this way, in fact, the losing party remains liable for the payment of the same amount that it would have had to refund if the counterparty had not been admitted to the benefit, with the consequence that it would not suffer any prejudice and, conversely, would not unduly profit from a fact extraneous to its legal sphere, i.e. from the economic conditions of the counterparty itself.

Ultimately, in the light of these considerations, "any levy of an even just broadly tax nature" against the losing party would not be ascertainable.

From which, the State Attorney General's Office concludes, would also derive the lack of the lamented impairment of the principle of impartiality of the judge.

6. – INAIL, the defendant in the main proceedings, has been constituted in the proceedings, and, having reconstructed the procedural matter from which the referral order originates, has requested the acceptance of the issues raised with reference to Articles 3, 23, 53 and 111, second paragraph, of the Constitution, "refer[ing] to the assessment" of this Court regarding the censure of violation of Article 76 of the Constitution.

Legal Grounds

1. – By order of June 20, 2023 (reg. ord. No. 121 of 2023), the Tribunal of Cagliari, acting as Labour Court, doubts the constitutional legitimacy of Article 133, paragraph 1, of Legislative Decree No. 113 of 2002, transposed into Article 133, paragraph 1, of Presidential Decree No. 115 of 2002, according to which "[t]he order that places the payment of legal costs on the losing party not admitted to [State-funded] legal aid, in favour of the party admitted, orders that payment be made in favour of the State".

2. – In the opinion of the referring court, this provision would violate Articles 3, 23, 53, 76 and 111, second paragraph, of the Constitution, in the part where, according to the interpretation given to it by settled case law, it provides that, in the event of a victory in the lawsuit of the indigent party admitted to the benefit of State-funded legal aid, the civil judge quantifies the legal costs owed to the latter by the losing party "according to the ordinary criteria, in full measure and therefore higher than that of the fees owed by the State [itself] to the counsel for the indigent”. These fees, pursuant to Articles 82, paragraph 1, and 130, paragraph 1, of Presidential Decree No. 115 of 2002, must be quantified at an amount not exceeding the average values of the parameters aimed at determining the fees for the defensive activity and then reduced by half.

3. – The judge a quo observes in limine that the civil jurisprudence of the Court of Cassation, after having initially expressed a different orientation, would have now settled - rising to the status of settled case law - in the sense of excluding that the judge should quantify the costs due to the State by the losing party in the halved measure that the State itself is required to pay to the counsel for the victorious indigent party.

This interpretative outcome, which therefore requires quantification in the normal measure, however, leads it to believe that the challenged rule infringes, first of all, Article 76 of the Constitution.

According to the directive criterion dictated by Article 7, paragraph 2, letter d), of Law No. 50 of 1999, the consolidated text referred to in Presidential Decree No. 115 of 2002 - in which, as is known, the legislative provisions of Legislative Decree No. 113 of 2002 and the regulatory provisions of Presidential Decree No. 114 of 2002 have merged - should in fact have provided for the mere formal coordination of the previous legislative system; the suspected provision, on the other hand, would carry an innovative rule, not even justifiable by virtue of requirements of systematic coherence. The "function (of indemnity)" of the condemnation to the payment of litigation costs referred to in Article 91 of the Code of Civil Procedure would have been, rather, distorted.

According to the referring court, Article 133, paragraph 1, of Presidential Decree No. 115 of 2002 would also violate Articles 3, 23, 53 and 111, second paragraph, of the Constitution.

In its view, the obligation, on the part of the losing party condemned to the costs, to pay the State a sum greater than the amount of the fees due by the latter to the counsel for the victorious indigent party would, in fact, be of a tax nature, for the difference between the two amounts.

This obligation, however, would be unreasonably detached from a concrete index of contributory capacity, generating, moreover, an unjustified disparity of tax treatment among the losing parties, since it would burden them only if condemned to the payment of litigation costs and not also in the event that the judge orders the compensation of the costs themselves.

From the aforementioned nature would also follow that the suspected provision would result in the attribution to the judicial authority of "an imposing function", thus undermining the impartiality of the judge, since it would give rise to an "inevitable confusion between the carrying out of the judicial function [...] and the carrying out of a power [that of imposition] purely referable to the State Administration".

4. – The President of the Council of Ministers, represented and defended by the State Attorney General's Office, has raised the inadmissibility of the questions of constitutional legitimacy raised, first of all, because the referring court would have erred in directing its censures towards the challenged provision instead of towards its combined provision with Article 130, paragraph 1, of Presidential Decree No. 115 of 2002.

The objection is misplaced.

The judge a quo, in fact, does not complain in any way about the discipline brought by the cited Article 130, paragraph 1 - which establishes the reduction by half of the fee due to the counsel for the party that benefits from the benefit -, but exclusively of the fact that the subsequent Article 133, paragraph 1, as interpreted by the civil jurisprudence of the Court of Cassation, excludes that the judge must take into account said reduction in the context of condemnation to the payment of costs: therefore, it correctly assumes this latter provision, which regulates said condemnation, as the target of its censures.

4.1. – The objection of inadmissibility with which the State Attorney General's Office complains that the referring court would not have sufficiently motivated the reasons why there would be a case of settled case law and, consequently, the alleged impracticability of an adapting interpretation is also without merit.

Unlike what is maintained by the State defence, in fact, the Tribunal of Cagliari did not "limit itself to recalling some precedents of the jurisprudence of the Court of Cassation": on the contrary, it focused on the change of orientation that has been registered within the Civil Court of Cassation, starting from a pronouncement of 2018 (Cass., No. 22017 of 2018) and then confirmed in numerous other decisions; the adoption of a different exegetical option would therefore conflict with that adopted by the judge of last resort.

In the civil jurisprudence of the Court of Cassation, in fact, the interpretation aimed at excluding the necessary coincidence between the two amounts that come into question has become rooted (ex plurimis, Court of Cassation, Second Civil Section, judgment November 16, 2023, No. 31928, and Labour Section, judgments December 20, 2019, No. 34190, and No. 8387 of 2019; First Civil Section, order January 2, 2024, No. 64; Second Civil Section, order May 5, 2023, No. 11804; Sixth Civil Section, Second Subsection, order November 14, 2019, No. 29688, and Labour Subsection, No. 11590 of 2019).

Therefore, the judge a quo has correctly assumed this interpretative outcome in terms of settled case law and has requested, on this assumption, the control of compatibility with the constitutional parameters evoked (ex plurimis, judgments No. 38 of 2024, No. 243, No. 178 and No. 20 of 2022).

4.2. – The objection of inadmissibility of the censure formulated in reference to Article 23 of the Constitution, for lack of motivation regarding the non-manifest lack of foundation of the proposed doubt of constitutional legitimacy, deserves instead to be accepted.

The referral order, in fact, is entirely focused on the consideration that there would be a tax obligation, while it omits any specific argument in support of the alleged conflict with the parameter in question, which, therefore, appears evoked in a generic and assertive manner (ex plurimis, judgment No. 161 of 2023).

5. – With the first question of constitutional legitimacy raised, the referring court alleges the violation of Article 76 of the Constitution, because, as has been said, introducing a rule that, in its view, is completely innovative, not justified by any need for systematic coherence and, indeed, contrary to the "function (of indemnity) proper to the condemnation to the reimbursement of legal costs", the Government, with Article 133, paragraph 1, of Presidential Decree No. 115 of 2002, would have violated the directive criterion referred to in Article 7, paragraph 2, letter d), of Law No. 50 of 1999.

In the issuance of the consolidated text under discussion, the delegated legislator, in fact, should have adhered to the criterion of formal coordination of the text of the provisions in force, being able to make only the "modifications necessary to guarantee the logical and systematic coherence" of the reorganized legislation.

5.1. – In fact, the consolidated text in which the aforementioned Article 133, paragraph 1, is located was issued on the basis of Article 7 of Law No. 50 of 1999, as amended by Article 1 of Law No. 340 of November 24, 2000 (Provisions for the delegification of rules and for the simplification of administrative procedures - Simplification Law 1999), which had delegated to the Government the drafting of consolidated texts aimed at the reorganization of legislative and regulatory rules in a complex of matters, including legal expenses.

This is therefore a type of delegation aimed at the reorganization or rearrangement of regulatory sectors, for which this Court has framed the exercise, by the delegated legislator, of innovative powers of the legislation in force within strict limits, "to be understood in any case as strictly oriented and functional to the purposes expressed by the delegating law" (judgment No. 84 of 2017).

In this context, this Court has, moreover, specifically dealt, on several occasions, with the delegation provided for by Article 7 of Law No. 50 of 1999 and, precisely with reference to the consolidated text on legal expenses, has affirmed that the directive criterion of coordination can also "be not only formal", and therefore result in a text that is not merely compiled, provided, however, that the objective remains "that of the logical and systematic coherence of the reorganized legislation" (judgment No. 174 of 2005).

5.2. – Having premised this, it must finally be specified that the question of constitutional legitimacy for the excess of delegation raised by the referring court does not concern the provision in itself, but the rule that settled case law would have drawn from it, through a change of orientation starting from 2018, establishing that the civil judge condemns the losing party without "the limit of coincidence" with the "fees advanced by the Treasury to the counsel for the party defended free of charge".

5.3. – The issue is unfounded.

It should first of all be clarified that, in hypothesis, the violation of Article 76 of the Constitution could well manifest itself also in reference to a rule derived from settled case law, since the issuance of a provision that, due to its tenor, legitimizes an interpretation in conflict with the principles and directive criteria established by the delegating legislator would still be attributable to the delegated legislator.

This hypothesis, however, does not occur in the present case, because the challenged rule does not determine the aforementioned conflict.

5.3.1. – As has been clarified, according to the jurisprudence of the Court of Cassation that has consolidated after 2018, the civil judge must not quantify in equal measure the sums due, pursuant to Article 133, paragraph 1, of Presidential Decree No. 115 of 2002, by the losing party to the State and those due, pursuant to Articles 82, paragraph 1, and 130, paragraph 1, of the same Presidential Decree, by the State itself to the counsel for the indigent person.

The Civil Court of Cassation has reached this interpretation, overcoming the previous orientation, for a threefold and convincing set of reasons.

First of all, as "[t]here is no reason [...] why in civil proceedings the party that is losing towards the indigent party should be advantaged (with an evident violation of the principle of equality) with respect to other losing parties" (Cass., No. 22017 of 2018; in the same sense, Cass., No. 29688 of 2019).

Furthermore, because "the losing party is required by definition to pay the amount liquidated by the judge according to the tariff, not the amount that the winner owes to his own counsel, which does not constitute, in fact, a parameter for judicial liquidation" (Court of Cassation, Sixth Civil Section, Second Subsection, orders March 5, 2020, No. 6120, and again No. 29688 of 2019).

Finally, because "the assessment of the possible effect of enrichment of the Treasury is not to be carried out atomistically with regard to the individual lawsuit, but it must be considered how the issue - in light of the constitutional parameter brought by Article 81 of the Constitution - is to be examined having [...] regard to the public service - defence ensured to indigent persons - rendered by the State" (Court of Cassation, Second Civil Section, order August 19, 2019, No. 21484).

5.3.2. – Having reconstructed in these terms the ratio and the scope of Article 133, paragraph 1, of Presidential Decree No. 115 of 2002, it must be excluded that, unlike what was considered by the referring court, a deviation from the nature proper to the institute of the reimbursement of costs in civil proceedings is ascertainable in the rule and, above all, it must also be excluded that this rule has a truly innovative character with respect to the regulatory framework prior to the exercise of the delegation.

Article 15-sexies, paragraph 2, letter a), of Law No. 217 of July 30, 1990 (Establishment of State-funded legal aid for indigent persons) - as amended by Law No. 134 of March 29, 2001 (Amendments to Law No. 217 of July 30, 1990, establishing State-funded legal aid for indigent persons), which extended State-funded legal aid to all civil proceedings, as well as to administrative proceedings and voluntary jurisdiction matters - provided, in fact, that the admission to this institution would give rise, inter alia, to the right of the State to "repetition of the fees from the opposing party, condemned in the costs".

Even if the term "repetition" could have suggested that this should be limited to what was actually disbursed by the State, the provision in question, however, did not impose such a conclusion, since it did not expressly provide that the judge was required to quantify these fees in the reduced measure of half by the subsequent Article 15-quaterdecies, paragraph 1, of the same Law No. 217 of 1990. Nor did Article 15-sexiesdecies, paragraph 1, oblige such a coincidence between the quantification in the context of condemnation to costs and the liquidation in favour of the counsel for the party admitted to the benefit.

In the absence of an obstructing literal provision, the interpretation now followed by settled case law, and based mainly on systematic arguments, which the referring court evidently