JUDGMENT N. 67

YEAR 2024

Commentary on the decision by

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 pronounced the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 25, paragraph 2, letter a), of Regional Law of Veneto No. 39 of 3 November 2017 (Regulations on public residential construction), promoted by the Ordinary Court of Padua, Second Civil Division, in the proceedings between the Association for Legal Studies on Immigration (ASGI) aps and others, the Veneto Region and the Municipality of Venice, by order of 22 May 2023, registered under No. 113 of the register of orders 2023 and published in the Official Gazette of the Republic No. 37, first special series, of the year 2023.

Seen the instruments of constitution of the Veneto Region, of ASGI, of Razzismo Stop onlus, of G.A. G.F., of R.S. N. and of J. E.;

Heard in the public hearing of 6 March 2024, Justice Rapporteur Emanuela Navarretta;

Heard lawyers Alberto Guariso for ASGI, for R.S. N. and for J. E.; Marco Ferrero for Razzismo Stop onlus and for G.A. G.F.; Giacomo Quarneti and Marcello Cecchetti for the Veneto Region;

Deliberated in the Chamber of the Council on 7 March 2024.

Facts of the Case

1.– By the order indicated in the heading (reg. ord. No. 113 of 2023), the Ordinary Court of Padua, Second Civil Division, raised, with reference to Article 3 of the Constitution, questions of constitutional legitimacy of Article 25, paragraph 2, letter a), of Regional Law of the Veneto Region No. 39 of 3 November 2017 (Regulations on public residential construction), insofar as it provides, among the requirements for access to public residential construction (hereinafter: ERP), that of «having had registered residence in the Veneto for at least five years, even non-consecutive and calculated in the last ten years».

2.– As to the facts, the referring court reports that it was seized with an appeal brought pursuant to Articles 702-bis of the Code of Civil Procedure and 28 of Legislative Decree No. 150 of 1 September 2011 (Supplementary provisions to the Code of Civil Procedure on the reduction and simplification of civil proceedings, pursuant to Article 54 of Law No. 69 of 18 June 2009).

2.1.– According to what the judge a quo reports, the appellants – the Association for Legal Studies on Immigration (ASGI) aps, Razzismo Stop Onlus, SUNIA-Federazione di Padua, G.A. G.F., R.S. N. and J. E. – requested to «ascertain and declare the discriminatory nature of the conduct held» by the Veneto Region and the Municipality of Venice in having approved and issued Article 4, paragraph 1, of Regional Regulation No. 4 of 10 August 2018 (Regional Regulation on public residential construction. Article 49, paragraph 2, Regional Law No. 39 of 3 November 2017), as well as the «notice of competition for the allocation of public residential housing year 2022 in the following areas: Venice historic center and islands; Venetian mainland».

The appellants pointed out that both of the aforementioned acts, in requiring, for the purposes of access to the ERP, the requirement of registered residence in the Veneto for at least five years, even non-consecutive and calculated in the last ten years, reproduced the prescriptive content of Article 25, paragraph 1, letter a), of Veneto Regional Law No. 39 of 2017. Therefore, they raised possible questions of constitutional legitimacy of this provision, for violation of Articles 3 and 117, first paragraph, of the Constitution, the latter in relation to Article 34 of the Charter of Fundamental Rights of the European Union, Article 12 of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers who are lawfully residing in a Member State, as well as Article 11 of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents.

Finally, they requested that the alleged discrimination be removed and that the deadlines for participation in the contested notice be reopened.

The Veneto Region and the Municipality of Venice were established in the main proceedings, asserting the inadmissibility of the appeal and, in any case, adducing reasons in support of its rejection.

2.2.– The Court of Padua reports that it rejected the objection of lack of jurisdiction, considering that the proceedings were within the jurisdiction of the ordinary court based on what has been argued, with a consistent orientation, by the case law of legitimacy (Corte di cassazione, first civil division, order 15 February 2021, No. 3842, and united civil divisions, order 15 February 2011, No. 3670, are cited, among others).

Likewise, the referring court reports that it rejected the objection of lack of interest in bringing action with regard to both natural persons and the appellant bodies.

With regard to the former, it notes that in the case of an anti-discrimination action, the interest in bringing action exists regardless of the submission of an application to participate in the notice, considering that «the very provision of an "excluding” requirement […] translates into a violation of the appellants’ right to equal treatment in relation to access to public residential housing». It also notes that the appellants would not have been able to submit applications in the manner provided for by the notice, because they would have had to falsely declare that they possessed the censured requirements; therefore, it considers the recourse to equivalent modalities to be legitimate, such as the sending «of a certified e-mail or a registered letter with acknowledgment of receipt (as happened in this specific case)».

With reference to the appellant bodies, the judge a quo observes that they are acting to protect «the interest of all subjects, not immediately and directly identifiable, not to be discriminated against in access to goods and services, including housing, based on nationality».

3.– Thus reported the factual premises, the Court of Padua, having noted that the textual tenor of the contested provision does not allow for interpretative margins suitable to make it conform to the Constitution, unless accessing «"creative” interpretations of doubtful admissibility», argues the relevance and non-manifest groundlessness of the doubts it raises with reference to Article 3 of the Constitution.

4.– In terms of relevance, the judge a quo affirms that «the decision on the applications submitted by the appellants» necessarily requires the application in the main proceedings of the contested rule, as this has «"oriented” the conduct of both the Region and the Municipality».

The Court of Padua – after having noted «that the appellants complain about the existence of indirect, individual and collective discrimination, arising from the application by the Municipality of Venice and the Veneto Region, of Article 25 paragraph 2, letter a) of Veneto Regional Law 3.11.2017 No. 39» – considers that the aforementioned provision would constitute «the indispensable regulatory prerequisite for the Regulation and the Notice through which, in the appellants’ perspective, discrimination in access to public residential housing services [would] have been implemented».

The natural person appellants – the referring court continues – are unable to participate in the ERP notice issued by the Municipality of Venice for the year 2022 «solely due to the lack of the requirement of previous five-year residence in Veneto», it being undisputed, «because not specifically contested by the defendants pursuant to Article 115 paragraph 1 of the Code of Civil Procedure, that the appellants possess all the other requirements requested by the notice, i.e. the requirements of citizenship or residence permit and those of income». Specifically, the referring court reports that G.A. G.F., «a Venezuelan citizen, holds the status of refugee and a residence permit; [R.S. N.], a Cameroonian citizen, holds a permit for international protection; [J. E.] holds a permit for subordinate work reasons» and that all the appellants meet the income requirements set out in the notice.

5.– As to the non-manifest groundlessness, the referring court recalls the arguments set out in the judgment No. 44 of 2020 of this Court, with which Article 22, paragraph 1, letter b), of Regional Law of Lombardy No. 16 of 8 July 2016 (Regional regulations on housing services) was declared constitutionally illegitimate, insofar as it provided for the requirement of more than five years’ residence for access to public housing services. The referring court believes that this pronouncement has constituted the culmination of a broader constitutional case law on the requirements for access to social services (judgments No. 166, No. 107 and No. 106 of 2018, No. 168 and No. 141 of 2014, No. 222, No. 172, No. 133 and No. 2 of 2013, No. 40 of 2011, No. 107 of 2010, No. 32 of 2008 and No. 432 of 2005, as well as subsequent pronouncements No. 9 and No. 7 of 2021, No. 281 of 2020) are cited).

In this jurisprudential path, this Court would have ascribed the right to housing among the «essential requisites characterizing the sociality to which the democratic State desired by the Constitution conforms» (judgments No. 106 of 2018, No. 168 of 2014, No. 209 of 2009, No. 404 and No. 217 of 1988) are cited) and would have qualified it as an inviolable right (judgments No. 151 of 2013, No. 51 of 2011 and No. 404 of 1988, as well as order No. 76 of 2010) are cited), having as its object a «good of primary importance» (judgments No. 166 of 2018, No. 38 of 2016, No. 168 of 2014 and No. 209 of 2009) are cited).

The referring court, continuing its reconstruction of constitutional case law, then considers that this Court has considered public residential construction as a tool aimed at guaranteeing in concrete terms the satisfaction of the primary housing need, in order to «ensure a dignified existence for all those who do not have sufficient resources» (Article 34 of the Charter of Fundamental Rights of the European Union is cited in this regard).

5.1.– Thus framed the ERP social service, the referring court summarizes the criteria progressively adopted by this Court to verify the conformity to the Constitution of the criteria for access to this benefit.

The judge a quo specifies that the requirements «must present a connection with the function of the service» (judgments No. 166 and No. 107 of 2018, No. 168 of 2014, No. 172 and No. 133 of 2013, No. 40 of 2011 are cited, among others) and that the assessment of «reasonableness and adequacy», based on the typical structure of the judgment ex Article 3 of the Constitution, should move «from the identification of the ratio of the reference rule», and then move on to evaluating the coherence «of the selective filter introduced».

Applying this scrutiny model, the referring court excludes any «reasonable connection» between «the ratio of the service related to public residential construction [which] is that of guaranteeing "the satisfaction of housing needs”» and «the condition of previous residence in the region», which would not be «an index "of any condition relevant to the need that the service tends to satisfy”» (judgment No. 107 of 2018 is cited again in this regard).

5.2.– Consequently, the Court of Padua believes that the contested rule shares the same defects of constitutional illegitimacy as the other provisions concerning prolonged residence that this Court has already had occasion to declare constitutionally illegitimate on the basis of the above-mentioned review.

In particular, the requirement contemplated by Veneto law – that is, residence for more than five years over the last ten years – would be, in the opinion of the judge a quo, devoid of «connection with the ratio of the ERP service», «it not being reasonably possible to assume that those who have lived in the Veneto region for less than five years are in a situation of need that is "weakened” compared to those who have resided there for more years» (judgment No. 222 of 2013 of this Court is cited on this point).

The referring court considers that the case law, cited by the defense of the Region in the main proceedings, which has deemed «reasonable and legitimate the provision of a requirement of previous residence in the region for the purposes of access to the public residential construction service, valuing prolonged territorial rooting as a selective criterion for access to public housing services» (the reference is again to judgment No. 222 of 2013, concerning a law of the Autonomous Region of Friuli-Venezia Giulia) is now outdated. This orientation would have been «definitively overcome in light of the considerations expressed» by this Court in judgment No. 44 of 2020, where it was clarified that «[p]revious residence for more than five years is not in itself an indication of a high probability of permanence in a given territorial area, while other elements on which a prognosis of settlement can reasonably be based would be much more significant for these purposes. In other words, the relevance conferred on a condition of the past, such as residence in the previous five years, would not in any case be objectively suitable to avoid the "risk of instability” of the beneficiary of public residential housing, an objective that should instead be pursued by having regard to the indices of probability of permanence for the future».

Thereafter, the judge a quo considers it non-decisive that, in the case under consideration, the requirement of residence extended for at least five years can be achieved non-continuously over the period of the previous ten years: this modulation of the requirement would not, in fact, affect the considerations made, leaving the selection criterion devoid of a reasonable connection with the ratio of the discipline.

In the opinion of the referring court, the doubts of constitutional legitimacy of Article 25, paragraph 2, letter a) of Veneto Regional Law No. 39 of 2017 would therefore not be manifestly unfounded, with reference: both to the principles of equality and reasonableness referred to in Article 3, first paragraph, of the Constitution, insofar as the contested rule would produce «an unreasonable disparity of treatment to the detriment of anyone, citizen or foreigner, who does not possess the requirement provided therein», and with the principle of substantive equality, referred to in Article 3, second paragraph, of the Constitution, since it would conflict «with the social function of public residential construction».

6.– By instrument filed on 26 September 2023, the Veneto Region was established in the proceedings, objecting the inadmissibility and groundlessness of the questions.

6.1.– On procedure, the Veneto Region notes that, in the face of a detailed framework of data introduced by the appellants to prove facts from which the discriminatory nature of the contested rule could be inferred, the Court of Padua would have omitted to make any reference to them, limiting itself to affirming that the decision on the appellants’ claim would imply the application of this provision.

In the opinion of the regional defense, the referring judge would thus have incurred in a «serious defect of reasoning on the relevance of the issues» raised, which would be appreciable under a dual profile.

On the one hand, the judge a quo would not have adequately described the facts, as he would have omitted to «offer any representation of the statistical data provided by the appellants in support of the alleged discrimination». Such omission would not be remediable through access to the case file, given the preclusion deriving from the principle of self-sufficiency of the order for reference (orders of this Court No. 64 of 2019, No. 242 of 2018 and No. 185 of 2013 are cited).

On the other hand, the failure to preliminarily assess the completeness and correctness of the factual framework on which the appellants’ claim is based would have led to an incorrect anticipation of the judgment of applicability to the specific case of the contested rule. This judgment would be a logical step subsequent to the ascertainment of the presumptive elements from which to infer the discrimination complained of in the appeal that introduced the main proceedings, «also taking into account that the referring court itself has not considered, in any part of the order, that the same legislative provision can or should be considered, in itself and per se, as having a discriminatory nature».

6.2.– On the merits, the defense of the Veneto Region considers that the questions must be declared unfounded.

According to the regional defense, the contested rule would not be similar to those relating to the requirement of more than five years’ residence to access the ERP, which this Court has declared constitutionally illegitimate.

In those cases (judgments No. 145 and No. 77 of 2023, No. 44 of 2020 are cited), the rules declared constitutionally illegitimate did not establish that the residence of more than five years could be achieved in a discontinuous form over the last ten years. Such a possibility, provided for instead by the contested rule, would allow, according to the regional defense, to satisfy the «need – repeatedly underlined by this Court – to contemplate, in the context of the introduction of requirements based on residence for access to the ERP, solutions that "do not run the risk of depriving certain subjects of access to public benefits solely because they have exercised their right of movement or have had to change region of residence” (judgment No. 145 of 2023)».

The Veneto legislator would have limited itself to requesting, «as an indicator symptomatic of an animus of stability for the enjoyment of a continuous benefit, a period of residence, even non-continuous, in a limited amount (5 years) and in any case accrued, even in forms of discontinuity, in a certainly appropriate and more than significant time span with respect to its ratio (10 years)». This specificity would be suitable to avoid the violation of freedom of movement and, at the same time, would constitute an indicator that has developed in the past, but «without doubt reasonably predictive of a future behavior», that of taking root in the regional territory.

7.– By instruments of identical tenor, filed on 2 October 2023, all the appellants of the main proceedings were established in the proceedings.

In the instruments of constitution, the private parties adhere to the reasoning of the order for reference, evoking recent constitutional case law, which has declared the constitutional illegitimacy of the requirement of more than five years’ residence.

They also argue that the variant introduced by the contested rule – which allows the requirement to be achieved in a discontinuous form in the last ten years – cannot in any way be considered decisive to arrive at different outcomes. Specifically, the defense of the private parties notes that, «even if it were to be considered that "territorial rooting” may constitute a requirement for access and may be demonstrated by the mere previous presence in the territory, it is quite evident that discontinuous presence is in itself even less significant than continuous presence».

The defense of the private parties also argues that the assessment of reasonableness cannot be impermeable to the evolution of the economic and social context. To this end, attention is drawn to: a) «mobility as a positive value, both from the point of view of individual interest and from the point of view of collective interest»; b) the lack of «a rule of similar importance that protects a fellow citizen for the sole fact of having remained stationary in a given place»; c) the fact that the Court of Justice of the European Union would have «always censured the "too exclusive” long-term residence requirements for access to social rights by relying on the principle of free movement within the Union, which finds a perfect correspondence in the similar principle to be applied within the national territory. (CJEU 14.6.2012, Commission v. Netherlands, Case C-542/09; CJEU 20.6.2013, C-20/12; as well as, outside the scope of social rights, 11.6.2020 C-206/19).»; d) the greater «propensity to mobility» on the part of those who are in «more precarious social conditions»; e) the transformation of reality in the world of work, with the «progressive increase in fixed-term contracts and, more generally, the shorter duration of employment relationships»; f) the existence of factors of future stability that are markedly more suitable than previous residence (for example, the type and duration of the contract, the existence of school-age children in the family unit, and the age of the applicant).

The private parties finally note that the jurisprudential direction, which would have settled with the aforementioned judgment No. 44 of 2020, would have progressively led the majority of the regions to amend their legislation in accordance with this direction, and that to date «the only Regions in which the requirement is still in place are, as far as it appears, the Veneto, Piedmont and Umbria».

8.– By instrument filed on 12 February 2024, ASGI produced a supplementary reply to the arguments of the Veneto Region.

8.1.– With regard to the objections of inadmissibility adduced by the regional defense, it notes that the common judge, having been seized of discrimination on the basis of nationality, would be required preliminarily to verify «the existence and legitimacy of the "regulatory coverage” of the difference in treatment, because, if there is a rule that legitimizes the difference and that rule conforms to the constitutional or European Union precepts, the problem of discrimination cannot even arise». Therefore, the control over the «constitutional legitimacy of the contested rule [would be] a preliminary and necessary condition for proceeding further in the proceedings before the common judge». The defense of ASGI therefore believes that, if the referring court had already considered the discrimination to exist, in the presence of a rule of law that authorizes the difference in treatment, «it would probably have incurred a well-founded censure of irrelevance, having anticipated a judgment on the existence of the discrimination which, instead, […] can only be formulated once the rule that authorizes the difference in treatment has been removed».

With regard to the alleged «need for further and more extensive reasoning relating to the data provided by the appellants in the proceedings a quo», the defense of the party observes that the potentially discriminatory nature of previous and prolonged residence would be «a fact so deeply rooted in common experience and so well known» that it can «be acquired in the judgment, including constitutional one, without the need for specific arguments» and that it can be considered «implicit in the arguments made by the referring judge on the point of relevance».

8.2.– On the merits, the defense of ASGI notes that the criterion adopted by the contested rule would be even more rigid than that present in other regional legislation examined and declared constitutionally illegitimate by this Court, given that it does not consider employment in the Region as an alternative requirement to residence.

Furthermore, the provision would introduce elements of further illogic, considering those who have accrued five years of residence in a relatively remote past to be worthy of access to the provision.

Finally, it disputes the alleged territorial rooting with respect to the impact on the contribution to regional resources, given that there would be «no rule that provides for the devolution of regional taxation to the construction of public housing, for which funding is the exclusive competence of the national government», and because in any case «the welfare system [could not] be constructed as a "consideration” for a past or future contribution».

9.– The Veneto Region filed a supplementary instrument on 13 February 2024, insisting on the reasons already stated in the instrument of constitution.