JUDGMENT NO. 65***

YEAR 2024

Comments on the Decision of

1. Virginia Campigli, The self-governance (autodichia) before the Constitutional Court: between confirmations (of its exclusion) in matters of procurement and possible steps forward, by g.c. of Comparative Law

2. Renzo Dickmann, The Constitutional Court clarifies the boundaries of the self-governance (autodichia) of constitutional bodies (note to Constitutional Court, judgment no. 65 of 2024), by g.c. of federalismi.it

3. Francesco Dalla Balla, A check-up on self-governance (autodichia). First notes on the sidelines of Constitutional Court, judgment no. 65 of 2024, by g.c. of the Constitutional Observatory 

4. Michele Francaviglia, Another problematic obiter dictum of the Court on self-governance (autodichia) (brief notes on the sidelines of Constitutional Court, judgment no. 65 of 2024), in the Studies 2024/III of this Journal, 1046

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 for conflict of attribution between powers of the State arising from the judgments of the Court of Cassation, civil united sections, 12 May 2022, no. 15236, and of the Council of State, fifth section, 31 May 2021, no. 4150, promoted by the Chamber of Deputies, with appeal notified on 22 September 2023, filed with the registry on 9 October 2023, registered under no. 4 of the register of conflicts between powers of the State 2023 and published in the Official Gazette of the Republic no. 42, first special series, of the year 2023, merit phase.

Seen the deed of constitution of the Council of State and the deed of intervention of the Senate of the Republic;

heard at the public hearing of 19 March 2024 the Reporting Judge Francesco Viganò;

heard the lawyers Massimo Luciani for the Chamber of Deputies, Francesco Saverio Marini and Vinicio Settimio Nardo for the Senate of the Republic;

deliberated in the council chamber of 19 March 2024.

Held in Fact

1.– With the appeal indicated in the heading, the Chamber of Deputies promoted a conflict of attribution between powers of the State against the Court of Cassation and the Council of State with reference to the judgments, respectively, of the civil united sections, 12 May 2022, no. 15236, and of the fifth section, 31 May 2021, no. 4150.

1.1.– The appellant reports that in 2017 the administration of the Chamber of Deputies had initiated a restricted EU-wide procedure for the procurement of various Information and Communication Technology (ICT) contract monitoring services. The final ranking of the procedure, as resulting at the end of the activities of the evaluation committee, saw the temporary grouping of companies (TGC) formed by P. srl and H. spa ranked in first place. However, by provision of 11 October 2019, the Administration Service of the Chamber, having identified certain anomalies in the offer, resolved to exclude the aforementioned TGC from the procedure.

The exclusion provision, as well as the minutes and documents that motivated such exclusion and the final award provision of the procedure, were then jointly challenged by the two companies belonging to the TGC before the Regional Administrative Court for Lazio.

The administration of the Chamber of Deputies appeared before the administrative judge, formulating as a preliminary matter an exception of inadmissibility of the appeal due to the lack of jurisdiction of the administrative judge, as well as of any other judge external to the Chamber itself, given the exclusive jurisdiction to hear the dispute of the Council of Jurisdiction of the Chamber, as a self-governance (autodichia) body. In particular, the Chamber noted that the "Regulation for the jurisdictional protection relating to the administrative acts of the Chamber of Deputies not concerning employees,” approved in implementation of art. 12, paragraph 3, letter f), of the regulation of the Chamber of Deputies 18 February 1971 and subsequent amendments, referred to in art. 64, first paragraph, of the Constitution, assigns to the self-governance (autodichia) body the task of deciding in first instance on "appeals and any challenge, also presented by parties external to the Chamber, against the administrative acts of the Chamber itself” (art. 1).

By judgment of 24 April 2020, no. 4183, the Regional Administrative Court for Lazio rejected the appeal on the merits, but simultaneously rejected the exception of inadmissibility formulated by the administration of the Chamber, affirming its own jurisdiction. Recalling the judgments no. 120 of 2014 and no. 262 of 2017 of this Court, in fact, the administrative judge noted that "[i]n light of the aforementioned pronouncements, it must be considered that the regulatory provision invoked cannot be extended to disputes concerning procurement, which have their own discipline in acts of state and EU regulation and do not concern internal matters of the constitutional body.”

In the appeal proceedings instituted by the unsuccessful companies before the Council of State, the administration of the Chamber of Deputies appeared, requesting the rejection of the appeal and proposing an incidental appeal against the first-instance judgment, in the part in which it had held the jurisdiction of the administrative judge to be present.

By judgment no. 4150 of 2021, the Council of State rejected the incidental appeal of the Chamber and upheld the appeal of the appellant companies in the main proceedings. In particular, the administrative judge affirmed that the domestic jurisdiction of the Chamber should be limited "to disputes that have as their object not any administrative act of the Chamber of Deputies but exclusively those acts adopted in a matter in relation to which, to the constitutional body, a sphere of regulatory autonomy is constitutionally recognized.” The other disputes – including, as in the case in question, those relating to the assignment to third parties of contracts for works, services and supplies – would instead be subject, "according to the ‘great rule’ of the rule of law and the consequent jurisdictional regime to which all legal assets and rights are normally subjected in our constitutional system (Articles 24, 112 and 113 of the Constitution)”, to the common jurisdiction.

Against this pronouncement, the Chamber proposed an appeal to the Court of Cassation for reasons concerning jurisdiction, lamenting in particular the infringement of its constitutional attributions and affirming that the regulatory rules that exclude the jurisdiction of any judge external to the Chamber itself over disputes such as the one in question have a primary rank, equivalent to that of the laws, and therefore cannot be disregarded by a judge external to the Chamber. The Council of State should therefore have taken note of the self-governance (autodichia) of the Chamber and declared the inadmissibility of the introductory appeal, or alternatively, raise a conflict of attribution before this Court.

By judgment no. 15236 of 2022, the Court of Cassation, civil united sections, rejected the appeal of the Chamber, stating that "[b]y recognizing its jurisdiction and deciding on the substance of the dispute, the Council of State did not disregard the parliamentary Regulations, but only interpreted their scope, correctly excluding that the provisions contained therein justified the attraction, within the scope of the cognition of the self-governance (autodichia) body, of the challenge to the provision, adopted by the Administration Service of the Chamber, of exclusion of the offer of the establishing grouping from the EU-wide tender procedure for the award of the contract.”

1.2.– Having stated the foregoing, the Chamber promotes an appeal for conflict of attribution against the Court of Cassation and the Council of State, with reference to the aforementioned judgments, asking this Court to "declare that it was not for the Council of State and the Court of Cassation, as bodies of the common jurisdiction, to judge the dispute described in the narrative, with the consequent annulment” of both judgments.

They would have in fact affirmed the jurisdiction of the administrative judge in place of that of the self-governance (autodichia) body of the Chamber "with substantially identical arguments”, thus both being detrimental to the constitutional attributions of the Chamber. The appellant also specifies that the appeal in question "certainly does not intend to claim exemption from any external jurisdictional review, but rather […] to obtain the precise definition of the boundaries between the jurisdictions, removing the reasons for uncertainty deriving from some points that remained in the shadows” in the previous pronouncements of this Court. And this also "in the general interest of the institutional system.”

1.2.1.– After having extensively argued on the admissibility of the appeal, on the merits the appellant notes, first of all, that the judgments object of the conflict would have infringed the sphere of attribution reserved to the Chamber by art. 64, first paragraph, of the Constitution, which provides that "[e]ach Chamber adopts its own regulation by an absolute majority of its members”, as well as Articles 55 et seq. of the Constitution, which "attribute specific functions and a position of particular independence to the Chambers”, allegedly violated by the judgments in question.

The appellant recalls that self-governance (autodichia) "designates the power attributed to constitutional bodies to exercise the judicial function in relation to particular types of disputes that directly or indirectly involve the exercise of their functions”, and therefore the power of "domestic jurisdiction” which consists "in deciding directly, through internal organizational articulations, any dispute interfering with the exercise of their own functions, without external judicial bodies being authorized to exercise forms of review or control.” Such power would be justified in relation to the "need to protect the independence and proper functioning of the constitutional bodies, ensuring the non-interference of the other powers of the State in their organization.”

In this perspective, the normative autonomy guaranteed to the Chambers by art. 64, first paragraph, of the Constitution, would not be limited to the sole discipline of the legislative procedure, but would also concern the internal organization (judgments no. 262 of 2017 and no. 120 of 2014 of this Court are cited). Consistent with these principles, art. 12, paragraph 3, of the Chamber regulation provides that "[t]he Bureau of the Presidency adopts regulations and other rules concerning: […] e) the criteria for entrusting to parties external to the Chamber activities not directly instrumental to the exercise of parliamentary functions […]”, and "f) […] appeals and any challenge, also presented by parties external to the Chamber, against the other administrative acts of the Chamber itself”. The appellant recalls that this Court has repeatedly affirmed that the autonomy of the constitutional bodies "is not exhausted in regulation, but rather includes – consistently – the applicative moment of the rules themselves, including the choices regarding the concrete adoption of measures aimed at ensuring compliance with them” (thus the judgment no. 129 of 1981), it is precisely in this applicative moment that the self-governance (autodichia) of the constitutional bodies themselves is expressed.

Having thus reconstructed the evolution of constitutional case law on the subject, the appellant notes that Law 28 January 2016, no. 11 (Delegations to the Government for the implementation of directives 2014/23/EU, 2014/24/EU and 2014/25/EU of the European Parliament and of the Council, of 26 February 2014, on the award of concession contracts, on public procurement and on the procurement procedures of entities operating in the water, energy, transport and postal services sectors, as well as for the reorganization of the current discipline in the matter of public contracts relating to works, services and supplies) provides, in art. 1, paragraph 7, that "[t]he constitutional bodies shall establish in their own systems implementing methods of the principles and directive criteria provided for by this law within the scope of the prerogatives constitutionally recognized”.

In harmony with this provision, as well as with the aforementioned art. 12, paragraph 3, letter e), of the Chamber regulation, the Bureau of the Presidency adopted – notes the appellant – the "Regulation of administration and accounting of the Chamber of Deputies.” The latter, in Articles 39 et seq., regulates the "selection procedures of contractors and [the] other administrative activities of the Chamber in matters of works, service and supply contracts”. The same Article 39, then, expressly provides that "the rules of the European Union with direct binding effect” apply to them and, only "as far as not otherwise established by this regulation, the legal provisions in force for state contracts”.

It is within this context that the tender object of the tender de qua would be framed, which reiterates the applicability of the rules of the aforementioned regulation (art. 7, paragraph 1, of the specifications) and the jurisdiction of the Council of Jurisdiction of the Chamber of Deputies over any appeal or challenge against the administrative acts of the Chamber concerning this procedure (art. 7, paragraph 2, of the specifications and, similarly, point VI.4.1 of the tender).

The appellant then recalls a recent pronouncement of the Council of State in which it was stated not only that the Chamber is fully legitimated to adopt rules on public procurement, but also that they prevail over those of the general system, where conflicting (Council of State, fifth section, judgment 15 March 2021, no. 2173, is cited), observing that "[t]he Judge (whatever it may be) must necessarily apply (and, in primis, interpret) these sources to resolve any dispute relating to any procedure for the awarding of services tendered by the Chamber of Deputies. Therefore, given the link with normative autonomy, the jurisdiction of the Council of Jurisdiction can only exist over the aforementioned disputes; jurisdiction that the Council of State, deciding on the merits of the dispute, has invaded, with the subsequent endorsement of the Court of Cassation.”

All of this would find confirmation in the judgment of the Council of State, fifth section (recte: fourth), 18 November 2014, no. 5657, in which the administrative judge has indeed affirmed the existence of his own jurisdiction over the acts of a tender procedure issued by the General Secretariat of the Presidency of the Republic for the awarding of the cash service and attached internal counter to the Secretariat, but on the assumption that, in the case in point, the Presidency of the Republic would not have exercised its power of regulation in the matter, "unlike what the Chamber and the Senate have provided for, with specific regulations.”

1.2.2.– The Chamber also underlines that the acts subject to challenge before the Regional Administrative Court have a peaceful administrative nature and as such would be subject to the reservation of self-governance (autodichia) under art. 12, paragraphs 3, letter f), and 6, of the Chamber regulation, in implementation of which the aforementioned "Regulation for the jurisdictional protection relating to the administrative acts of the Chamber of Deputies not concerning employees” has been adopted. The latter, in Articles 1 and 2, in fact provides that the Council of Jurisdiction is competent to decide in first instance on "appeals and any challenge, also presented by parties external to the Chamber, against the administrative acts of the Chamber itself”.

1.2.3.– The removal of the disputes in question from the cognizance of the administrative judge would not, on the other hand, violate the right to effective judicial protection of third parties, as the latter would be fully respected by the self-governance (autodichia) bodies, as this Court also stated in judgment no. 262 of 2017. Nor would the Council of Jurisdiction lack the powers of the administrative judge, being able both to annul the acts of the administration of the Chamber, and to disapply them should the prerequisites exist, in particular in the event of conflict with the law of the Union, and finally, to raise an issue of constitutional legitimacy.

1.2.4.– Nor could it be objected that, by deriving self-governance (autodichia) from normative autonomy, the Chamber would be authorized to extend the scope of application of domestic jurisdiction immeasurably, through a "largely” use of the regulatory power. This is because such normative power should always be exercised in observance of the Constitution, so that its instrumental use could be reviewed by this Court, in the forms of the judgment for conflict of attribution between powers of the State (the judgment no. 120 of 2014 is cited).

1.2.5.– Contesting the arguments made by the Court of Cassation in the pronouncement that gave rise to the conflict, the Chamber then highlights that the contested exclusion provision before the Regional Administrative Court for Lazio "is placed in the public phase of the procedure, aimed at identifying the contractor”, falling under the exclusive jurisdiction of the administrative judge, and not in the private law one, which sees the disputes relating to the execution of the contract attributed to the ordinary judge.

In this regard, the appellant underlines that the Chamber has never avoided the jurisdiction of the ordinary judge for disputes regarding the execution of contracts for works or supply of services, stipulated following a public tender, since it is "absolutely clear that it is up to the common judge (in this case, ordinary) to hear the disputes regarding the execution of the contracts stipulated between the Chamber itself and the parties identified following the award of a public tender and that, therefore, in the contract execution phase there is no room for self-governance (autodichia)”. The present conflict, therefore, would instead relate "to the different and autonomous public phase that precedes the stipulation of the contract.” In this phase, the jurisdiction to hear disputes relating to public evidence procedures issued by the Chamber, regulated by the sources of autonomy, would belong solely to the Council of Jurisdiction of the Chamber itself rather than to the Regional Administrative Court, merging after the conclusion of the contract with the ordinary judge.

In this regard, the Chamber affirms that the Court of Cassation itself, in united sections, on another occasion would have "taken for granted that the disputes that refer to these acts are attracted to domestic jurisdiction” (Court of Cassation, united sections, judgment [recte: order] 10 November 2020, no. 25211, is cited).

As regards the passage of judgment no. 262 of 2017 of this Court, which includes among the disputes excluded from domestic jurisdiction those "relating to contracts and supplies of services provided in favor of the administrations of the constitutional bodies”, the appellant believes that with this statement this Court intended to refer "precisely to disputes concerning the execution of contracts for works and supplies of services”. Comparing the different wording of art. 133, paragraph 1, letter e), number 1), of the code of administrative procedure – which speaks of "e) […] disputes: 1) relating to procedures for the awarding of public works, services, supplies, carried out by parties otherwise obliged” to respect the public evidence procedures – the Chamber believes that, if this Court "had intended to refer […] to the exclusive jurisdiction of the Administrative Judge in the public phase preceding the stipulation of the contract, it would have spoken of disputes relating to procedures carried out by constitutional bodies and not of disputes relating to contracts and supplies of services provided in favor of the latter”. Hence the conclusion according to which, in judgment no. 262 of 2017, this Court would have "simply attested to the existence of a fact (the absence of self-governance (autodichia) spaces in the execution phase of contracts stipulated by the constitutional bodies following a public evidence procedure) that […] is also peaceful for today’s appellant”.

1.2.6.– As further support for the constitutional illegitimacy of the claim to subject to the jurisdiction of the administrative judge the acts of the Chamber of Deputies adopted in the public phase of the awarding, the appellant notes that art. 133, paragraph 1, letter e), of the code of administrative procedure extends this jurisdiction also "to the declaration of ineffectiveness of the contract following the annulment of the award and to the alternative sanctions”, thus potentially allowing the administrative judge to "annul an award ordered by the Chamber of Deputies, declare the contract stipulated by the latter ineffective and oblige it to stipulate with another party”, which the appellant deems incompatible with the prerogatives of autonomy of a constitutional body.

The appellant also underlines that the administrative judge, when called to establish whether to declare the ineffectiveness of the contract, pursuant to Articles 121 and 122 of the code of administrative procedure "enjoys considerable discretionary power, since it ends up directly comparing the public and private interests at stake”. This power, while it may well be exercised towards the public administrations referred to in art. 7 of the code of administrative procedure, would instead excessively affect the autonomy constitutionally guaranteed to the Chamber.

1.2.7.– The appellant then dwells on the relationship between jurisdiction concerning personnel and jurisdiction concerning tenders, noting how it cannot be affirmed that in disputes on tenders the service apparatuses of the Chambers are not at stake. This would be evident from the judgment no. 129 of 1981 of this Court, as well as from many current rules that bear witness to the fact that public administrations operate by using a complex of financial, human and instrumental resources, all necessary for the pursuit of their institutional purposes.

The thesis according to which the tenderer in a tender remains a "third party” subject to common jurisdiction until he/she is awarded the contract would be clearly in contradiction with the peaceful subjection to self-governance (autodichia) of the tenderers in recruitment procedures, who would equally be mere "applicants” for the employment relationship, and who also could not act before the common judge.

Furthermore, the thesis adopted by the judgment of the Court of Cassation object of this conflict, according to which the application of the common law of procurement (and, with it, the subjection of the litigation to administrative jurisdiction) would not be "likely to affect the full and free performance by the Chamber of its high function nor to interfere negatively with the administration of the internal services”, would also be unfounded. According to the appellant, in fact, "[t]he foundation of the normative, organizational and accounting autonomy of the Chambers is found in the need to allow constitutional bodies to dictate (and see applied) the most appropriate rules (not only to guarantee a correct management of the sums entrusted to them, but also) to allow a free and efficient exercise of their functions, thus ensuring their independence from other powers of the State”. Which would have been recognized by this Court in the same judgment no. 262 of 2017, through the reference to the previous judgment no. 129 of 1981.

1.2.8.– Finally, the Chamber engages extensively with the motivational passage of the judgment no. 262 of 2017, in which this Court would have, according to the Council of State and the Court of Cassation, excluded from domestic jurisdiction the disputes in the matter of procurement. The appellant contests, in particular, the thesis expressed by the Court of Cassation in the pronouncement that gave rise to the conflict, according to which, with respect to the judgments of this Court, the "distinction between ratio decidendi and obiter dictum loses significance, since the statements of principle contained in the motivations of those pronouncements, to be considered always in their entirety, aim at the protection of rules, values and constitutional attributions, in a continuous dialectic between abstract and concrete.”

According to the Chamber, it should first of all be considered that even this Court is bound by respect for the principle of correspondence between what is requested and what is pronounced, so that only "the judicial provisions that have strictly to do with the object of the litigation” would become res judicata, while all "the considerations eventually developed in the development of the motivation, incidental, illustrative, ad abudantiam, of historical or reconstructive reference, by their very nature cannot become res judicata and are commonly called obiter dicta”.

Moreover, the affirmation of the indistinguishability between ratio decidendi and obiter dictum in the judgments of this Court would be contradicted by other affirmations of the opposite sign of the Court of Cassation (Court of Cassation, labor section, judgment 17 May 2018, no. 12108 and order 30 May 2018, no. 13678, are cited).

Finally, in the same constitutional case law there would be pronouncements in which this Court, in relation to its own judgments, distinguishes between obiter dicta and rationes decidendi, both excluding the character of obiter dictum of certain provisions (judgments no. 191 of 2006, no. 7 of 1982 and no. 62 of 1981 are recalled), and downgrading to mere obiter dictum what the defenses of the parties constituted in judgment had considered ratio decidendi (judgment no. 102 of 1986 and order no. 397 of 2000 are recalled).

In the case in question, the controversial passage contained in the judgment no. 262 of 2017 of this Court should for all intents and purposes be considered as a mere obiter dictum, which "certainly [could not] signify abandonment of a consolidated jurisprudential direction nor [be valid] as an authentic precedent”.

2.− With order no. 179 of 2023, this Court held that the subjective and objective prerequisites of the conflict existed and declared it admissible pursuant to art. 37, first paragraph, of Law 11 March 1953, no. 87 of 1953 (Rules on the constitution and functioning of the Constitutional Court), ordering the notification of the introductory appeal and of the admissibility order to the Council of State, to the Court of Cassation and to the Senate of the Republic.

The order and the appeal were promptly and ritually notified.

3.– By deed filed on 9 November 2023, the Council of State, in the person of the President pro tempore, was constituted in judgment; the same, in its deed of constitution and counter-arguments, declares that it defers to the determinations of this Court, formulating observations in this seat in the mere "capacity of amicus curiae”.

3.1.– The Council of State reconstructs the case law of this Court (judgments no. 262 of 2017, no. 120 of 2014 and no. 154 of 1985 are recalled), observing how its most recent pronouncements would have made it possible to identify a point of equilibrium between self-governance (autodichia) and judicial protection of the inviolable right to defense. From the most recent judgment cited, the Council of State deduces that the "first and fundamental principle” in the matter is constituted by the "biunivocal connection that must exist between normative autonomy (autocrinia) and self-governance (autodichia)”, observing that "self-governance (autodichia) is the logical consequence of autocrinia: given the normative power to regulate a settlement of relations, it follows the power to settle the disputes that may arise within the scope of those relations between the parties internal to the body, the removal from common jurisdiction being a logical consequence of the normative power.”

The Council of State, therefore, refers to the assessment of this Court the question of whether "self-governance (autodichia) can exclude the existence of ‘common’ jurisdiction” and whether "the Chambers are authorized to regulate relations with third parties in the matter of public procurement.”

3.2.– For its part, the Council of State recalls having considered, in its judgment at the basis of the conflict, that "the matter of entrusting works, service and supply contracts to third parties – while involving the acquisition, by the administration of the Chamber, of goods and services for the performance of its functions – cannot fall within the sphere of regulatory autonomy constitutionally recognized, and the related disputes must remain outside domestic jurisdiction.” In fact, as also highlighted by the united sections of the Court of Cassation, the provision at the origin of the judgment would concern a procedure for the selection of the private contractor that finds its discipline mainly in national and European legislation. This private contractor, in the tender phase, would not be inserted in the service apparatuses of the constitutional body, but would aspire to become so, thus qualifying "as a