JUDGMENT NO. 94
YEAR 2024
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, 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 4, paragraph 1, letter f), last period, of the Law of the Aosta Valley Region of 18 July 2023, No. 11 (Regulation of administrative fulfillments regarding short-term rentals for tourism purposes), initiated by the President of the Council of Ministers with a pleading notified on 2 October 2023, filed with the Registry on 5 October 2023, registered under No. 30 of the pleadings register of 2023 and published in the Official Gazette of the Republic No. 43, first special series, of the year 2023.
Having considered the act of constitution of the Autonomous Region of Valle d'Aosta/Vallée d'Aoste;
Having heard at the public hearing of 21 February 2024, the Reporting Justice Antonella Sciarrone Alibrandi;
Having heard the State Attorney Roberta Guizzi for the President of the Council of Ministers and the attorney Francesco Saverio Marini for the Autonomous Region of Valle d'Aosta/Vallée d'Aoste;
Resolved in the council chamber of 21 February 2024.
Facts of the case
1.– With a pleading filed on 5 October 2023 (reg. pleadings No. 30 of 2023), the President of the Council of Ministers, represented and defended by the State Attorney General's Office, challenged Article 4, paragraph 1, letter f), last period, of the Law of the Aosta Valley Region of 18 July 2023, No. 11 (Regulation of administrative fulfillments regarding short-term rentals for tourism purposes), in reference to Article 117, second paragraph, letter l), of the Constitution and to Article 2, first paragraph, letters g) and q), of the Constitutional Law of 26 February 1948, No. 4 (Special Statute for the Aosta Valley).
1.1.– The petitioner premises that the Autonomous Region of Valle d’Aosta/Vallée d’Aoste, in the exercise of the primary legislative competence in matters of urban planning and tourism (recognised by Article 2, first paragraph, letters g and q, of the special statute), with the Regional Law of Valle D’Aosta No. 11 of 2023, has regulated the administrative fulfillments relating to rentals for tourism purposes. In particular, in order to allow verification of the correct application of the tourist tax and to ensure the effective performance of supervisory and control activity, it has established the obligation – for the lessor – to make a substitute declaration, attesting – inter alia – to the periods of exercise of the tourist rental activity.
The state defence clarifies that the declaration relating to the duration of the rental activity – and the consequent fixing, carried out by the challenged Article 4, paragraph 1, letter f), last period, at one hundred and eighty days per year of the overall maximum duration of such activity – is required, however, only in the case referred to in Article 2, paragraph 1, letter a), number 1), of the same regional law: that is, when the rental has as its object furnished rooms located in housing units falling within the category of intended use for permanent or principal dwelling, pursuant to the regional urban planning law (Law of the Aosta Valley Region of 6 April 1998, No. 11, containing «Urban planning and territorial planning regulations of the Aosta Valley»).
The aforementioned provision, in the Government's opinion, by predetermining the maximum annual period of exercise of the rental activity, would achieve an undue compression of proprietary rights and therefore of private autonomy, thus exceeding the primary regional legislative competences in matters of urban planning and tourism, attributed to the Region by the special statute.
The regulation of tourist rental contracts, like that of all contracts, should, in fact, be attributed to the matter of civil law, reserved by Article 117, second paragraph, letter l), Const., to the exclusive legislative competence of the State. The latter, moreover, would have in effect exercised it: first by excluding that some provisions relating to the rental of properties used for residential purposes (referred to in Law No. 431 of 9 December 1998, containing «Regulation of rentals and release of properties used for residential purposes»), are applied to such contracts, as they are not consistent with the specific economic-social function of the same; then by referring to the «provisions of the Civil Code regarding leases» through Article 53 of Legislative Decree No. 79 of 23 May 2011 (Code of State regulations regarding the organization and market of tourism, pursuant to Article 14 of Law No. 246 of 28 November 2005, as well as implementation of Directive 2008/122/EC, relating to timeshare contracts, contracts relating to long-term holiday products, resale and exchange contracts).
Nor could this conclusion be contradicted by the fact that the provision, now challenged in part qua, would introduce mere administrative fulfillments functional to the activity of supervision and control of tourist rentals, as recognised in judgment No. 84 of 2019 of this Court: fulfillments that, as such, should be attributed to the primary regional legislative competence in tourism. Also in light of what was stated by the aforementioned judgment, the state defense believes that, in the case of the Aosta Valley provision now challenged, the predetermination of the maximum rental period has nothing to do with an administrative fulfillment similar to that then under scrutiny, necessary for the identification of the rental for tourism purposes and external to the contract, but, on the contrary, invests the regulation itself of the rental, thus affecting the contractual freedom and the contractual sphere reserved for uniform private law.
2.– The Autonomous Region of Valle d’Aosta/Vallée d’Aoste has appeared in the proceedings and has requested that the pleading be declared inadmissible and in any case unfounded.
2.1.– Firstly, the regional defence considers the issue inadmissible due to the generality of the criticisms, as adequate reasoning would not have been provided in support of the alleged overstepping of the competences assigned to the Region by the special statute in matters of urban planning and tourism.
The pleading would then also be inadmissible under another profile, namely for incorrect or in any case incomplete identification of the rules considered detrimental to the constitutional distribution of competences. According to the regional defence, in fact, the infringement feared by the Government would derive first and foremost from Article 2, paragraph 1, letter a), number 1), of the Regional Law of Valle d’Aosta No. 11 of 2023, not challenged, where limits are placed on the tourist rental of properties with intended use as a permanent or principal dwelling, which can only concern «furnished rooms» and on the condition that the use of the property as a main or permanent dwelling is «prevalent». Of this provision, the challenged regional provision – i.e., Article 4, paragraph 1, letter f), last period – would constitute mere implementation, identifying one hundred and eighty days a year as the maximum period of destination of the furnished rooms for tourist rental compatible with the designation of the property as the main dwelling.
From the indicated reason for inadmissibility, another one would arise, relating to the lack of interest in appealing against the aforementioned Article 4, paragraph 1, letter f), last period, of the Regional Law of Valle d’Aosta No. 11 of 2023. The regional defense observes, in this regard, that, even if the issue promoted by the Government were accepted, in any case the constraint of prevalent use of the property for the purpose of a main dwelling referred to in Article 2, paragraph 1, letter a), number 1), of the same regional law would remain: a constraint to which the very possibility of considering the property intended for a permanent or principal dwelling as accommodation for tourist use would be subject. Consequently, even if the challenged provision were declared constitutionally illegitimate, the interpreter could use a similar, if not identical, criterion to that provided for by it.
2.2.– As for the merits, the regional defence believes that the pleading moves from an erroneous interpretative assumption.
Far from affecting the regulation of tourist rental contracts and compressing proprietary rights and private autonomy, so as to invade the sphere of state legislative competence in civil law, the contested regional provision would, in fact, constitute an exercise of the primary regional legislative power in the matter of «urban planning [and] regulatory plans for areas of particular tourist importance», referred to in Article 2, letter g), of the special statute. It would, in fact, be limited to identifying the presupposition to which the property with the intended use for a permanent or principal dwelling can retain the aforementioned designation even in the case of use for a different purpose.
This would be demonstrated by the fact that, in the case of exceeding the limit of one hundred and eighty days of destination of the furnished rooms for short tourist rental activity, there would be no prohibition on renting out the property for tourist use, nor would there be any impact on the validity and effectiveness of the rental contract. The only effect of the indicated exceeding of the limit would be constituted by the change of intended use of the property itself, from a permanent or principal dwelling to a temporary dwelling, pursuant to Article 73, paragraph 2, letter d[-]bis), of the Regional Law of Valle d'Aosta No. 11 of 1998, with the relative consequences both at the level of supervision and controls and possibly the loss of benefits linked to the main or prevailing dwelling, and for the purposes of monitoring and regional and municipal planning and programming.
3.– The Italian Confederation of Real Estate Ownership (Confedilizia) has filed, in the capacity of amicus curiae, a written opinion, admitted with a presidential decree of 12 January 2024.
Confedilizia points out that, even with regard to rentals for residential use of a tourist nature and purpose, state law does not go so far as to impose limits on duration, affecting the free negotiation between the parties. The regional law under scrutiny, on the other hand, by establishing a term of duration for short tourist rentals, would violate the State's reservation of the regulation of relations between private individuals, in contrast with the guarantee referred to in Article 41 of the Constitution, and with the principle of free movement of people and goods between the Regions set out in Article 120 of the Constitution.
4.– At the public hearing, the parties insisted on the acceptance of the conclusions formulated in the defence documents.
Considerations of law
1.– The President of the Council of Ministers has challenged Article 4, paragraph 1, letter f), last period, of the Regional Law of Valle d'Aosta No. 11 of 2023, in the part in which it fixes at one hundred and eighty days per year the maximum duration of the rental of accommodation for tourist use, as defined by Article 2, paragraph 1, letter a), number 1), of the same regional law, in reference to Article 117, second paragraph, letter l), Const., and to Article 2, first paragraph, letters g) and q), of the special statute.
More precisely, the petitioner believes that the regional legislator – by providing, among the administrative fulfillments relating to rentals for tourism purposes, the obligation of the lessor to attest, inter alia, to the periods of exercise of the rental activity – has fixed the overall maximum duration of such activity at one hundred and eighty days per year. This with exclusive reference to the case in which the rental has as its object «furnished rooms located in housing units falling within the category of intended use for permanent or principal dwelling» (Article 2, paragraph 1, letter a, number 1, of the Regional Law of Valle d'Aosta No. 11 of 2023), pursuant to the regional urban planning law (Regional Law of Valle d'Aosta No. 11 of 1998).
With the challenged provision, the Aosta Valley legislator would have overstepped its legislative competences in matters of urban planning and tourism, referred to in Article 2, first paragraph, letters g) and q), of the special statute. The challenged regional provision would, in fact, have unduly intervened on the maximum duration of the rental, affecting contractual freedom, as well as unduly compressing proprietary rights, in the form of a limitation on the enjoyment of the property used as a main dwelling, in violation of the sphere of exclusive state legislative competence in civil law, referred to in Article 117, second paragraph, letter l), Const.
2.– As a preliminary matter, it is necessary to examine the exceptions of inadmissibility of the pleading raised by the regional defence.
2.1.– The latter objects, firstly, to the generality of the criticisms promoted by the petitioner, who would not have adequately explained the reasons why the challenged regional provision – where it defines the qualitative and quantitative preconditions for a dwelling with the intended use of a permanent or principal dwelling to remain such even if used for short-term tourist rentals – would go beyond the perimeter of the primary regional legislative competence in matters of urban planning, intervening on the matter of contracts.
2.1.1.– The objection is unfounded.
The jurisprudence of this Court is now constant according to which, in principal proceedings, it is «necessary […] that the motivation given in support of the criticisms, however concise, reaches that "minimum threshold of clarity and completeness" (judgment No. 64 of 2016), which allows this Court to examine the merits of the challenge proposed (among many others, judgments No. 123 of 2022, No. 195 and No. 29 of 2021, No. 273 and No. 194 of 2020, No. 201 and No. 83 of 2018)» (judgment No. 114 of 2023).
In this case, this threshold has been exceeded. From the literal wording of the pleading, although formulated concisely, it can be inferred, in fact, that the petitioner moves from the assumption that the «predetermination of the maximum rental period», established by the challenged regional provision, «invests the regulation itself of the rental, thus affecting the contractual freedom and the contractual sphere reserved for uniform private law» and, therefore, infers the undue invasion of the matter of civil law, «an area that Article 117, second paragraph, letter l), of the Constitution reserves to the exclusive legislative competence of the State».
2.2.– A further reason for the inadmissibility of the pleading, deduced by the defendant, concerns the allegedly incorrect, and in any case incomplete, identification of the rules that are the subject of the proceedings, considered detrimental to the sphere of state competence. This infringement, in fact, would derive not so much and not only from the challenged regional provision (Article 4, paragraph 1, letter f, last period, of the Regional Law of Valle d'Aosta No. 11 of 2023), but from the previous Article 2, paragraph 1, letter a), number 1) – not subject to criticisms – in the part in which, when identifying the «accommodation for tourist use», it prescribes that, when the short tourist rental concerns «furnished rooms located in housing units falling within the category of intended use for permanent or principal dwelling», the aforementioned use must be «prevalent». The challenged regional provision would be limited to applying the concept of "prevalence", specifying that the intended use for a permanent or principal dwelling does not change only in the case of rental of furnished rooms within the real estate unit for a period included in one hundred and eighty days per year.
2.2.1.– This objection also proves to be unfounded.
According to the jurisprudence of this Court, the erroneous identification of the provision in relation to which the criticisms of constitutional illegitimacy are formulated (recently, judgment No. 48 of 2023) and from which the reported infringements are assumed to derive, is a reason for the inadmissibility of the pleading brought in principal proceedings. In this case, this reason for inadmissibility does not exist.
Article 4, paragraph 1, letter f), last period, Regional Law of Valle d’Aosta No. 11 of 2023 is – in fact – challenged precisely in the part in which it defines as one hundred and eighty days the overall maximum duration of the periods in which the lessor may exercise the activity of short-term tourist rental, in the event that the latter has as its object the tourist accommodation identified by Article 2, paragraph 1, letter a), number 1), of the same regional law: that is, the «furnished rooms located in housing units falling within the category of intended use for permanent or principal dwelling», for which «the aforementioned use is prevalent». This latter provision, therefore, while contributing to integrate the content of the challenged provision by identifying the type of accommodation to which the time limit for carrying out short-term tourist rental activity refers, is, however, extraneous to the issue of constitutional legitimacy promoted with the pleading indicated in the heading: an issue that, as stated by the petitioner, specifically concerns the «predetermination of the maximum rental period», carried out by the challenged Article 4, paragraph 1, letter f), last period, deemed detrimental to contractual freedom and to the «contractual sphere reserved for uniform private law».
2.3.– Similarly, the further exception of inadmissibility raised by the regional defence for lack of interest in appealing against Article 4, paragraph 1, letter f), last period, of Regional Law No. 11 of 2023, must be rejected.
Once it has been ascertained, in fact, that the petitioner complains of the infringement of the sphere of exclusive state legislative competence in contractual matters deriving from the predetermination, by the regional legislator, of the maximum period of tourist rental allowed (one hundred and eighty days per year), the existence of the interest in challenging the provision that expressly establishes the aforementioned limit is evident.
3.– As for the merits, the issue is unfounded.
3.1.– In order to grasp the exact scope of the challenged provision and identify the matter to which the discipline contained therein should be attributed, it is necessary, as a preliminary matter, to reconstruct the regulatory framework of reference in which it is inserted. This is in line with the constant direction of this Court, according to which «in identifying the matter to which a specific rule is to be attributed, […] it is necessary to consider its ratio, purpose and content, leaving aside marginal aspects and reflected effects (ex plurimis, judgment No. 193 of 2022)» (judgment No. 267 of 2022).
3.1.1.– The challenged provision is part of the context of Regional Law of Valle d'Aosta No. 11 of 2023, which contains the «[r]egulation of administrative fulfillments regarding short-term rentals for tourism purposes» and that is in the matter of «rentals for tourism purposes, also carried out in the form of a business, lasting even just one day of overnight stay and in any case not exceeding thirty consecutive days, of accommodation for tourist use» (Article 1).
The general objective of the regional law under examination – as can be seen from the explanatory report – is the identification of the aforementioned fulfillments in a «clear and simple» form, so as to «allow knowledge of the phenomenon of rental for tourism purposes and the exact sizing of arrivals and presences relating to this type of hospitality», in order to «develop increasingly targeted tourism policies» and able to respond to the multiplicity of needs related to the growth of a «new tourism phenomenon», such as that of «rentals for tourism purposes of furnished rooms, apartments or houses to guests who choose this accommodation solution, upon payment of a fee […] also through offers on specialized online portals».
3.1.2.– This is the so-called home sharing, which has spread in particular thanks to the creation of online platforms, aimed at putting in contact – as it is emphasized in the already cited explanatory report to the regional draft law – private individuals (owners) who have underused living spaces to be rented out with other private individuals looking for accommodation or a room for short periods and who do not intend to resort to the traditional accommodation circuit. The consequent «transformation of the dwelling, permanent (first home) and above all secondary (second home), into a temporary tourist-accommodation structure» has generated, in light of the multiple interests involved, legal problems of various nature (negotiation, tax, urban planning, tourism, protection of competition and correct management and transparency of data), prompting numerous regulatory interventions, from the state, regional and even European levels, due to the different regulatory competences called into question.
The state legislator initially limited itself to excluding the applicability to rentals for purely tourist purposes of some of the general provisions relating to rentals of properties for residential use, dictated by Law No. 431 of 1998, as they are not compatible with the specific cause. Only subsequently have state provisions identified the Civil Code’s provisions on leases as the relative regulation (Article 53 of Legislative Decree No. 79 of 2011). Some years later – with the main purpose of outlining the tax regime and related fulfilments (as can be seen from the heading itself of Article 4 of Decree-Law No. 50 of 24 April 2017, containing «Urgent provisions on financial matters, initiatives in favour of territorial bodies, further interventions for the areas affected by seismic events and measures for development», converted, with amendments, into Law No. 96 of 21 June 2017) – provision was then made to define short tourist rentals as «lease agreements for properties for residential use with a duration not exceeding 30 days […] stipulated by natural persons, outside the exercise of business activity, directly or through subjects that exercise real estate intermediation activity, or subjects that manage online portals, putting in contact people looking for a property with people who have real estate units to rent». Further fulfilments and limits have been introduced, even more recently, with specific provisions, again for tax purposes (as for example in the case of Article 1, paragraph 595, of Law No. 178 of 30 December 2020, containing «State budget for the financial year 2021 and multi-year budget for the three-year period 2021-2023»); as well as for the protection of safety (see, in particular, Article 109, Royal Decree No. 773 of 18 June 1931, containing «Approval of the consolidated text of the public security laws», the applicability of which to rentals of apartments for residential use for short tourist stays has been confirmed by the circular of the Ministry of the Interior No. 4023 of 26 June 2015); up to the provisions contained in Article 13-ter of Decree-Law No. 145 of 18 October 2023 (Urgent measures on economic and fiscal matters, in favour of territorial bodies, for the protection of work and for unpostponable needs), converted, with amendments, into Law No. 191 of 15 December 2023, adopted «[i]n order to ensure the protection of competition and market transparency, the informative, statistical and IT coordination of the data of the state, regional and local administration and the security of the territory and to combat irregular forms of hospitality».
The very recent Regulation (EU) 2024/1028 of the European Parliament and of the Council of 11 April 2024 on the collection and sharing of data relating to short-term rental accommodation services and amending Regulation (EU) 2018/1724, adopted on the basis of the proposal formulated by the Commission of the European Union on 7 November 2022, falls within the same line of protection of market transparency. This regulation marks the introduction of a homogeneous and harmonised regulatory framework for the Member States of the European Union, in matters of generation and sharing of data concerning the aforementioned services, in order to improve access to it by public authorities and guarantee its quality, allowing the latter to correctly evaluate the impact of the same services on their territories and to develop the related policies in an effective and proportionate manner. This is in view of the ultimate aim of ensuring a correct, unambiguous and transparent provision of short-term rental accommodation services in the internal market, within the framework of a balanced tourism ecosystem.
As the very wording of the most recent provisions of the state and European legislator in the field of short tourist rentals leaves transparent, a space for intervention is also provided for the regional legislator, which is relevant with particular reference to the field of tourism, as well as to that of government of the territory and urban planning.
With regard to the first area, precisely in relation to short tourist rentals, this Court has already had the opportunity to affirm that «the tourist aspects also of the latter fall within the residual competence of the Regions (judgment No. 80 of 2012)» (judgment No. 84 of 2019) and include all administrative fulfillments, provided that they are prior and external to the contract as such (such as, for example, that, introduced by the Lombard regional provision then under scrutiny, relating to an identification code of reference for the individual accommodation units), which are useful for the purpose of «creating a map of the relevant new phenomenon of the granting for use to tourists of privately owned properties regardless of the performance of a business activity, and this for the primary purpose of better exercising its functions of promotion, supervision and control over the exercise of tourist activities» (still judgment No. 84 of 2019).
Even more evident is the impact of the strong growth of short tourist rentals on the concurrent regional legislative competence in the matter of government of the territory. It is, in fact, an experience that from the multiplication of the same and the connected increase in tourist flows, the urban transformation of entire neighbourhoods and centres may derive, with significant repercussions also on the management of local public services, the regulation of which is also reserved for regional legislative competence. It follows that it falls within the competence of the regional legislator to intervene on the intended use of buildings – in line with the fundamental principles established by the state legislator in Article 23-ter of the Decree of the President of the Republic No. 380 of 6 June 2001, containing «Consolidated text of the legislative and regulatory provisions on building matters (Text A)» – considering that it «connotes the building from a functional point of view, conditions the urban load, linked to the need for structures and public spaces, and affects the orderly planning of the territory» (judgment No. 124 of 2021; in a similar sense, judgments No. 2 of 2021 and No. 247 of 2020).
3.1.3.– It is within this framework that the scope of the challenged Article 4, paragraph 1, letter f), last period, of the Regional Law of Valle d'Aosta No. 11 of 2023 should be understood.
This provision is placed within the scope of the regulation of administrative fulfilments relating to short tourist rentals, which Article 1 expressly declares to have been adopted in the exercise of the primary regional legislative competence in matters of urban planning and tourism and «in harmony with the European Union and state legislation on rentals for residential use», as also confirmed by the explanatory report as well as by the transposition of the definition of short tourist rental referred to in Article 4 of Decree-Law No. 50 of 2017, as converted.
In particular, the provision of Article 4, paragraph 1, letter f), last period, of the aforementioned regional law falls within the general provision of the obligation of the lessor to transmit to the municipality, in whose territory the accommodation for tourist use is located, a substitute declaration containing a series of data (including, for example, the address and cadastral details, the number of rooms or compartments intended for tourist purposes and the relative beds). The specific part of the provision subject to criticism is the one in which, in requesting among these data also the indication of the period of exercise of the rental activity, the maximum duration of such activity is fixed at one hundred and eighty days per year, limited – however – to the case in which the same has as its object «furnished rooms located in housing units falling within the category of intended use for permanent or principal dwelling» (Article 2, paragraph 1, letter a, number 1, of the same regional law). The latter, in fact, fall within the «accommodation for tourist use» only «on condition that the aforementioned use is prevalent».
This provision is linked, in turn, to Article 3 of the same regional law, where the «[u]rban planning regulations» of short tourist rentals are expressly laid down, specifying that the activity of rental for tourism purposes does not constitute a change of intended use, pursuant to Article 74 of the regional urban planning law (Regional Law of Valle d'Aosta No. 11 of 1998), provided that it is «exercised in compliance with the provisions of this law». On the other hand, the regional urban planning law to which the aforementioned Article 3 refers, after having specified that the intended use corresponds to the «use to which the property or part of it is intended, from the point of view of the activities to be carried out in the property itself» (