Sentenza n. 80 del 2024

Sentenza n. 80 del 2024 Judgement No. 80 of 2024

JUDGMENT NO. 80

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 issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 39-bis of Decree-Law No. 159 of October 1, 2007 (Urgent measures in economic and financial matters, for development and social equity), converted, with amendments, into Law No. 222 of November 29, 2007, initiated by the Court of Cassation, First Civil Section, in the proceedings between Aeroporto di Genova spa and Alitalia Linee Aeree Italiane spa in extraordinary administration, with order of August 4, 2023, registered under No. 149 of the register of orders 2023 and published in the Official Gazette of the Republic No. 47, first special series, of the year 2023.

Heard in the council chamber of April 16, 2024, the Reporting Judge Giovanni Pitruzzella;

Resolved in the council chamber of April 16, 2024.

Considered in Fact

1.– By order of August 4, 2023, registered under No. 149 of the register of orders 2023, the Court of Cassation, First Civil Section, has raised, with reference to Article 3 of the Constitution, a "consequential" question of constitutional legitimacy of Article 39-bis of Decree-Law No. 159 of October 1, 2007 (Urgent measures in economic and financial matters, for development and social equity), converted, with amendments, into Law No. 222 of November 29, 2007, insofar as it provides that the provisions "concerning the municipal surcharge on boarding rights referred to in Article 2, paragraph 11, of Law No. 350 of December 24, 2003", "are interpreted as meaning that no tax obligations arise from them".

1.1.– The referring court states as a matter of fact that:

– in 2012, Aeroporto di Genova spa had filed with the liabilities of Alitalia Linee Aeree Italiane spa in extraordinary administration (hereinafter: Alitalia) a claim for EUR 3,150,581.09, with a privileged ranking, and for EUR 714,242.53, in pre-deduction;

– the delegated judge had admitted the claim for EUR 3,278,237.70, with a non-preferential ranking, excluding, firstly, the special privilege referred to in Article 1023 of Royal Decree No. 327 of March 30, 1942 (Approval of the final text of the Navigation Code), on the sum of EUR 484,531.11, claimed for "landing and departure rights, parking rights, passenger boarding rights, consideration for security checks on passengers and checked baggage, consideration for security checks on hold baggage";

– the same judge had secondly excluded – "considering it applicable only to the treasury" – the general privilege referred to in the third (formerly fourth) paragraph of Article 2752 of the Civil Code on the claim for EUR 279,580.00, claimed as a municipal surcharge on passenger boarding rights on aircraft (hereinafter, also: municipal surcharge), provided for by Article 2, paragraph 11, of Law No. 350 of December 24, 2003, containing "Provisions for the formation of the annual and multi-year state budget (Financial Law 2004)";

– Aeroporto di Genova spa had lodged an objection against the statement of liabilities, which was partly accepted by the Ordinary Court of Rome;

– in particular, the Court had, on the one hand, confirmed the refusal of the privilege referred to in Article 1023 of the Navigation Code, for lack of proof of the connection between the registered claims and the individual aircraft that had been the object of the services provided, and, on the other hand, recognized, pursuant to Article 2752, third paragraph, of the Civil Code, the general privilege on movable assets in relation to the claim for EUR 279,580.00 for municipal surcharge;

– even more specifically, according to the Court, the latter privilege should be recognized because the aforementioned Article 2752, third paragraph, of the Civil Code, in referring to "claims for taxes, levies and duties of the municipalities and provinces provided for by law for local finances", would refer, according to the constant jurisprudence of the Court of Cassation, to all the provisions governing municipal and provincial taxes, as clarified by Article 13, paragraph 13, of Decree-Law No. 201 of December 6, 2011 (Urgent provisions for growth, equity and the consolidation of public accounts), converted, with amendments, into Law No. 214 of December 22, 2011;

– Aeroporto di Genova spa and Alitalia had filed appeals to the Court of Cassation against this decision;

– the main appellant, with a single ground relating to the denial of the special privilege on the aforementioned claim for EUR 484,531.11, complained of the "violation and/or misapplication of Articles 93 No. 4, 96 and 97 of the Bankruptcy Law, as well as of Article 1023 of the Navigation Code and Article 116 of the Code of Civil Procedure", observing that the admission to the liabilities with a non-preferential ranking of the claim would entail a final judgment within the bankruptcy procedure on the actual performance of the services according to the documentation produced, the probative value of which could not be "split and denied" for the sole purposes of the privileged ranking;

– the same appellant reiterated, in any case, that in the application for admission to the liabilities, the registration codes identifying all the aircraft in relation to which the privileged claims had arisen had been analytically indicated and that it had specified, in a specific schedule, the exact amount of the claim guaranteed by privilege with reference to each flight operated by the carrier;

– the incidental appellant, for its part, complained of the "violation and misapplication of Article 2, paragraph 11, of Law No. 350 of 2003, of Article 13, paragraph 13, of Decree-Law No. 201 of 2011, of Article 39-bis of Decree-Law No. 159 of 2007 and of Article 2752, last paragraph, of the Civil Code", since the claim for municipal surcharge would not be of a tax nature, as expressly indicated by the rule of authentic interpretation referred to in Article 39-bis of Decree-Law No. 159 of 2007, as converted;

– also according to the incidental appellant, the municipal surcharge would be in the nature of consideration for an entrepreneurial service, since the related amount is paid to the State and by it devolved mainly to the National Company for Flight Assistance (ENAV spa), to compensate for the costs incurred in order to guarantee the safety of its facilities and operational safety.

1.2.– Having stated the above as a matter of fact, the referring court believes that "the issue underlying the incidental appeal leads to raising ex officio a question of consequential constitutional legitimacy", pursuant to Article 27 of Law No. 87 of March 11, 1953 (Rules on the establishment and operation of the Constitutional Court).

1.2.1.– To this end, it would be necessary to start from the observation that, after the filing of the appeal to the Court of Cassation, this Court, with judgment No. 167 of 2018, declared Article 1, paragraph 478, of Law No. 208 of December 28, 2015, containing "Provisions for the formation of the annual and multi-year State budget (Stability Law 2016)", to be constitutionally illegitimate, for violation of Article 3 of the Constitution.

This provision stated: "[i]n Article 39-bis, paragraph 1, of Decree-Law No. 159 of October 1, 2007, converted, with amendments, by Law No. 222 of November 29, 2007, after the words: "of Law No. 350 of December 24, 2003," the following are inserted: "and of considerations payable by airport management companies in relation to fire-fighting services at airports, as referred to in Article 1, paragraph 1328, of Law No. 296 of December 27, 2006,"".

Two – continues the referring court – are "the provisions implicated by this rule": Article 1, paragraph 1328, of Law No. 296 of December 27, 2006, containing "Provisions for the formation of the annual and multi-year state budget (Financial Law 2007)", and Article 39-bis of Decree-Law No. 159 of 2007, as converted.

The first, as far as it is relevant here, provides that, "[i]n order to reduce the cost to the State of the fire-fighting service at airports, the surcharge on boarding rights on aircraft, referred to in Article 2, paragraph 11, of Law No. 350 of December 24, 2003, and subsequent amendments, is increased from the year 2007 by 50 cents of euro per passenger boarded. A special fund, financed by airport companies in proportion to the traffic generated, contributes to the same purpose for 30 million euro per year".

With this provision, the legislator would have established "two channels for financing the reduction of public spending" for the fire-fighting service at airports: a) the fund financed by airport management companies; b) the increase in the municipal surcharge provided for by Article 2, paragraph 11, of Law No. 350 of 2003 and paid by the air carrier, which transfers the cost to the passenger, by integrating the ticket price.

The second provision taken into consideration by Article 1, paragraph 478, of Law No. 208 of 2015, i.e. Article 39-bis of Decree-Law No. 159 of 2007, as converted, in turn provides that "[t]he provisions on the tax on the loading and unloading of goods transported by air referred to in Decree-Law No. 47 of February 28, 1974, converted, with amendments, by Law No. 117 of April 16, 1974, and subsequent amendments, on taxes and rights referred to in Law No. 324 of May 5, 1976, on considerations for security control services referred to in Article 8 of the regulation referred to in the decree of the Minister of Transport and Navigation No. 85 of January 29, 1999, as well as on the municipal surcharge on boarding rights referred to in Article 2, paragraph 11, of Law No. 350 of December 24, 2003, and on considerations payable by airport management companies in relation to fire-fighting services at airports, referred to in Article 1, paragraph 1328, of Law No. 296 of December 27, 2006, shall be interpreted as meaning that no tax obligations arise from them".

The inclusion in the aforementioned Article 39-bis of the considerations relating to the fire-fighting service (hereinafter, also: contributions to the fire-fighting fund), which airport companies are obliged to finance in proportion to the traffic generated, would have had the effect of excluding their tax nature.

The judge a quo then observes that in the aforementioned judgment No. 167 of 2018 this Court:

– firstly, recalled its constant orientation according to which "a situation must be considered to be of a tax nature, regardless of the qualification offered by the legislator, where three indispensable requirements are found": the legal regulation must be directed, predominantly, to procure a definitive reduction in the assets of the taxable person, the reduction must not integrate a modification of a reciprocal relationship and the resources, connected to an economically relevant assumption and deriving from this reduction, must be intended to cover public expenses;

– then affirmed, rejecting the prospect of the reciprocal nature offered by the State Attorney General, that all the aforementioned characteristics of the tax are present in the case of the contribution to the fire-fighting fund, established by Article 1, paragraph 1328, of Law No. 296 of 2006;

– further observed that the provision examined therein affirms the non-tax nature of the contribution in question, but this legislative qualification amounts to a merely nominal operation, which is not accompanied by a substantial modification of the structural elements of the tax situation;

– therefore concluded that "the interpretive provision challenged, [...] far from making explicit a possible variant of the meaning of the interpreted provision, incongruously attributes to it a meaning that is not compatible with the intrinsic and unchanged tax nature of the benefit, thus undermining the coherence and certainty of the legal system", in violation of the principle of reasonableness.

1.2.2.– According to the referring court, the possibility that the aforementioned Article 39-bis is also affected by constitutional illegitimacy in relation to the declared non-tax nature of the obligations arising from the provisions "concerning the municipal surcharge on boarding rights" would then come into consideration.

In fact, the above-mentioned structural elements of taxes, recognized by judgment No. 167 of 2018 with reference to contributions to the fire-fighting fund, "should even more so be found" in the municipal surcharge on boarding rights, the increase of which was arranged by Article 1, paragraph 1328, of Law No. 296 of 2006 precisely in order to finance the aforementioned fund.

1.3.– The issue would be "certainly and immediately" relevant in the proceedings a quo.

The "persistent validity" of Article 39-bis of Decree-Law No. 159 of 2007, as converted, insofar as it excludes the tax nature of the obligations arising from the municipal surcharge, would conflict with that nature, conversely recognized by the Court, for the purposes of recognizing the privilege referred to in Article 2752, third paragraph, of the Civil Code.

The possible declaration of constitutional illegitimacy of the challenged rule, therefore, would resolve in the negative the issue raised with the incidental appeal, aimed at achieving the exclusion of the mentioned privilege.

1.4.– As for the point of non-manifest groundlessness, the Court of Cassation believes that "a hypothesis of consequential constitutional illegitimacy of the interpretive rule" referred to in Article 39-bis of Decree-Law No. 159 of 2007, as converted, is "foreseeable", since, "insofar as it excludes the tax nature of the obligations "arising from the municipal surcharge on boarding rights [...]", it is affected by the same unreasonableness [...] that the judgment of the Constitutional Court No. 167 of 2018 found in the same interpretive rule, with regard to the "considerations payable by airport management companies in relation to fire-fighting services at airports [...]"".

Considered in Law

1.– By order of August 4, 2023, registered under No. 149 of the register of orders 2023, the Court of Cassation, First Civil Section, has raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy of Article 39-bis of Decree-Law No. 159 of 2007, as converted, insofar as it provides that the provisions "concerning the municipal surcharge on boarding rights referred to in Article 2, paragraph 11, of Law No. 350 of December 24, 2003", "are interpreted as meaning that no tax obligations arise from them".

According to the referring court, the surcharge in question would present all "the structural elements of taxes, traditionally identified by constitutional jurisprudence", so that the challenged provision, in excluding its tax nature, would undermine the coherence and certainty of the legal system, in violation of Article 3 of the Constitution.

This would also be derived, "consequentially", from the declaration of constitutional illegitimacy carried out by judgment No. 167 of 2018, which concerned the portion of the same Article 39-bis that (following the amendments made by Article 1, paragraph 478, of Law No. 208 of 2015) excluded the same tax nature for the considerations payable by airport management companies in relation to the fire-fighting service at airports; and this is even more so because "both these latter considerations and the increase in the municipal surcharge on boarding rights [...] are intended to finance the fire-fighting fund" established by Article 1, paragraph 1328, of Law No. 296 of 2006.

2.– It is preliminary to the exact delimitation of today's thema decidendum.

2.1.– The challenged provision, entitled "Airport boarding rights", affirms the non-tax nature of various levies: a) the tax on the loading and unloading of goods transported by air "referred to in Decree-Law No. 47 of February 28, 1974, converted, with amendments, by Law No. 117 of April 16, 1974, and subsequent amendments"; b) airport rights (i.e. landing, departure and parking or shelter rights for aircraft and boarding rights for passengers) "referred to in Law No. 324 of May 5, 1976"; c) considerations for security control services "referred to in Article 8 of the regulation referred to in the decree of the Minister of Transport and Navigation No. 85 of January 29, 1999"; d) the municipal surcharge on the boarding rights of passengers on aircraft "referred to in Article 2, paragraph 11, of Law No. 350 of December 24, 2003"; e) the considerations payable by airport management companies in relation to the fire-fighting service "referred to in Article 1, paragraph 1328, of Law No. 296 of December 27, 2006".

From the parliamentary proceedings, it emerges that Article 39-bis had been inserted, with a specific amendment, in the Senate, on the assumption that the (sole) "airport rights and taxes do not seem to be fully attributable to the tax sphere, but are mainly configured as real tariffs for services rendered in specific territorial areas by specific subjects or in any case as charges due in relation to activities or operations carried out in areas reserved for aerodromes" (as stated in the dossier of the State Budget Service of the Chamber of Deputies No. 124 of October 30, 2007). The provision, therefore, would have "the purpose of avoiding the development of interpretative problems also and in particular with reference to aspects relating to jurisdictional competence" (ibidem).

2.2.– This Court has already dealt with Article 39-bis, recognizing its interpretive nature (judgments No. 251 of 2014, No. 335 and No. 102 of 2008), in relation to airport rights, of which on several occasions it has affirmed the nature not of taxes, but of considerations of private law (determined according to the mechanism of the so-called price cap) of some services provided by airport management companies (first with judgment No. 51 of 2008 and then with the aforementioned judgments No. 102 and No. 335 of 2008, and No. 251 of 2014).

2.3.– The same provision was then examined with reference to contributions to the fire-fighting fund.

In particular, with judgment No. 167 of 2018 cited by the referring court, this Court declared the constitutional illegitimacy of Article 1, paragraph 478, of Law No. 208 of 2015, which had included these contributions in the catalog referred to in Article 39-bis, affirming that the legislative exclusion of their tax nature amounted to a merely nominal operation, which was not accompanied by a substantial modification of the structural elements of the tax situation, "thus undermining the coherence and certainty of the legal system", in violation of Article 3 of the Constitution.

2.4.– The present issue raised by the Court of Cassation concerns, instead, Article 39-bis only in the part in which it affirms the non-tax nature of the municipal surcharge on the boarding rights of passengers on aircraft, which the referring court, on the other hand, believes is subsumable among taxes and, in particular, among local taxes.

3.– Still preliminarily, it is necessary to reconstruct the detailed regulatory framework of reference, as it has unfolded following the numerous legislative interventions that over time have concerned the surcharge in question, with the specification that the analysis will exclusively concern the provisions that relate to its establishment, the modification of the amount and the identification of the subject responsible for collection and the beneficiaries of the levy.

3.1.– The surcharge was established by Article 2, paragraph 11, of Law No. 350 of 2003, which set it at one euro per boarded passenger, also providing that it "is paid into the revenue of the State budget" for its "subsequent reassignment as to 30 million euro", in a special fund established at the Ministry of Infrastructure and Transport intended to compensate ENAV spa "for the costs incurred [...] to guarantee the safety of its facilities" and "operational safety"; as for the remaining quota, in a special fund established at the Ministry of the Interior and divided, "based on the respective airport traffic", according to the following criteria: twenty percent in favor of the municipalities of the airport site or bordering it and the remaining eighty percent for the financing of measures aimed at preventing and combating crime and strengthening security in airport facilities and in the main railway stations.

With Article 6-quater, paragraph 2, of Decree-Law No. 7 of January 31, 2005 (Urgent provisions for universities and research, for cultural heritage and activities, for the completion of major strategic works, for the mobility of public employees, and to simplify the procedures relating to stamp duties and concession fees, as well as other urgent measures), converted, with amendments, into Law No. 34 of March 31, 2005, the surcharge was increased by one euro per passenger.

This increase was intended to finance the Special Fund for supporting the income and employment and the reconversion and requalification of personnel in the air transport sector, established pursuant to Article 1-ter of Decree-Law No. 249 of October 5, 2004 (Urgent measures on labor and social policies), converted, with amendments, into Law No. 291 of December 3, 2004.

At the same time, the aforementioned Article 6-quater of Decree-Law No. 7 of 2005, as converted, modified, with paragraph 3, the allocation percentages of the "basic" surcharge referred to in Article 2, paragraph 11, of Law No. 350 of 2003, increasing the one devolved to the municipalities and reducing the one aimed at financing measures to combat crime (fixed, respectively, at forty and sixty percent of the quota exceeding thirty million euros).

Subsequently, the already mentioned Article 1, paragraph 1328, of Law No. 296 of 2006 further increased the surcharge by fifty cents of euro per passenger, allocating the related revenue to the financing of the reduction in the cost to the State of the fire-fighting service at airports (the fire-fighting fund financed by the considerations payable by airport companies, which was dealt with by judgment No. 167 of 2018, contributed to the same purpose until the entry into force of Article 4, paragraph 3-bis, of Decree-Law No. 185 of November 29, 2008, containing "Urgent measures for support to families, work, employment and business and to redesign the national strategic framework in an anti-crisis function", converted, with amendments, into Law No. 2 of January 28, 2009).

The subsequent Article 2, paragraph 5-bis, of Decree-Law No. 134 of August 28, 2008 (Urgent provisions on the restructuring of large companies in crisis), converted, with amendments, into Law No. 166 of October 27, 2008, increased to three euros per passenger the increase in the surcharge already provided for by Article 6-quater, paragraph 2, of Decree-Law No. 7 of 2005, as converted, also providing that – without prejudice to the allocation to the Fund mentioned therein – the amounts due on this account are paid "by the subjects required to collect them directly into a special account opened at the Central Treasury of the State managed by the National Social Security Institute (INPS)" and registered to the said Special Fund.

Article 4, paragraph 75, of Law No. 92 of June 28, 2012 (Provisions on the reform of the labor market in a perspective of growth), then arranged a further increase in the surcharge of two euros per boarded passenger, establishing that the greater amounts deriving from it are paid to the INPS, to be also allocated to the aforementioned Special Fund.

Article 2, paragraph 48, letter b), of the same law also inserted three paragraphs in Article 6-quater of Decree-Law No. 7 of 2005, as converted, which provide that: a) the collection of the increase in the surcharge is carried out by the airport service managers, with the methods used for the collection of boarding rights, and the payment by the airlines is made within three months of the end of the month in which the obligation arises (paragraph 3-bis); b) the sums collected are communicated monthly to the INPS by the airport service managers with the methods established by the Institute and transferred to it, by the end of the month following that of collection, "according to the methods provided for by Articles 17 and following of Legislative Decree No. 241 of July 9, 1997", and to these sums "the penalty and collection provisions provided for by Article 116, paragraph 8, letter a), of Law No. 388 of December 23, 2000, for mandatory social security contributions, are applied" (paragraph 3-ter); c) the communication referred to in paragraph 3-ter constitutes an assessment of the credit and gives the right, in the event of non-payment, to activate compulsory collection, "according to the methods provided for by Article 30 of Decree-Law No. 78 of May 31, 2010, converted, with amendments, by Law No. 122 of July 30, 2010, and subsequent amendments" (paragraph 3-quater).

Paragraphs 5 and 6 of Article 13-ter of Decree-Law No. 113 of June 24, 2016 (Urgent financial measures for territorial entities and the territory), converted, with amendments, into Law No. 160 of August 7, 2016, provided, for 2019 only, a new increase in the municipal surcharge equal to 0.32 euro, "acquired as net assets by the Solidarity Fund for the air transport sector and the airport system" referred to in Article 1-ter of Decree-Law No. 249 of 2004, as converted.

Article 26, paragraph 1, of Decree-Law No. 4 of January 28, 2019 (Urgent provisions on citizenship income and pensions), converted, with amendments, into Law No. 26 of March 28, 2019, provided that, starting from January 1, 2020, the greater amounts deriving from the increase in the surcharge referred to in Article 6-quater, paragraph 2, of Decree-Law No. 7 of 2005, as converted, "are transferred to the management of welfare and support interventions for the social security management of the INPS".

Lastly, pursuant to Article 204, paragraph 1, of Decree-Law No. 34 of May 19, 2020 (Urgent measures on health, support for employment and the economy, as well as on social policies related to the epidemiological emergency from COVID-19), converted, with amendments, into Law No. 77 of July 17, 2020, in order to "deal with the extraordinary and urgent needs arising from the spread of COVID-19 and the consequent reduction of air traffic, starting from July 1, 2021, the greater amounts deriving from the increase in the municipal surcharge on boarding rights" provided for by the aforementioned Article 6-quater, paragraph 2, "are transferred, to the extent of 50 percent, to the management of welfare and support interventions for the social security management of the INPS referred to in Article 37 of Law No. 88 of March 9, 1989, and in the remaining 50 percent they are intended to finance the Solidarity Fund for the air transport sector and the airport system".

3.2.– From the regulatory framework described above, it therefore emerges that, despite the "municipal" surcharge having originally been conceived as a levy aimed at meeting the financial needs of the municipalities on which the airports insist and those bordering them (dossier of the Study Service of the Chamber of Deputies No. 518/6 of April 30, 2004), it, since its establishment, has in fact only been devolved in part to the aforementioned municipalities.

This devolution, moreover, has remained quantitatively unchanged over time, despite the fact that the surcharge has gradually increased from the initial amount of one euro to the current amount of six euros and fifty cents per passenger.

4.– On the point of relevance, the referring court affirms that the challenged provision, insofar as it excludes the tax nature