JUDGMENT NO. 98
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 VIGANĂ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco DâALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has pronounced the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Articles 1, paragraph 2, letter f), and 7, paragraph 2, letter d), of Legislative Decree No. 39 of 8 April 2013 (Provisions concerning the non-conferral and incompatibility of positions in public administrations and in private entities under public control, pursuant to Article 1, paragraphs 49 and 50, of Law No. 190 of 6 November 2012), initiated by the Regional Administrative Court for Lazio, First-quater Section, by means of an order of 26 January 2023 and by three orders of 27 January 2023, registered under numbers 58, 59, 60 and 61 of the 2023 register of orders, and published in the Official Gazette of the Republic No. 19, first special series, of the year 2023.
Having reviewed the deeds of constitution of Azienda multiservizi e dâigiene urbana Genova spa, of AMIU Bonifiche spa, and of P. M.;
Having heard Judge Maria Rosaria San Giorgio, acting as rapporteur, at the public hearing and in the council chamber of 5 March 2024;
Having heard the lawyers Massimo Luciani for Azienda multiservizi e dâigiene urbana Genova spa and for AMIU Bonifiche spa, and Luca Leonardi for P. M.;
Having deliberated in the council chamber of 5 March 2024.
Grounds in fact
1.– By four orders of identical wording dated 26 and 27 January 2023, registered under numbers 58, 59, 60 and 61 of the 2023 register of orders, the Regional Administrative Court for Lazio, First-quater Section, raised, in reference to Articles 3, 4, 5, 51, 76, 97, 114 and 118 of the Constitution, questions regarding the constitutional legitimacy of Articles 1, paragraph 2, letter f), and 7, paragraph 2, of Legislative Decree No. 39 of 8 April 2013 (Provisions concerning the non-conferral and incompatibility of positions in public administrations and in private entities under public control, pursuant to Article 1, paragraphs 49 and 50, of Law No. 190 of 6 November 2012).
In particular, the referral orders challenge, as a matter of priority, Article 1, paragraph 2, letter f), and Article 7, paragraph 2, letter d), of Legislative Decree No. 39 of 2013 "in so far as they provide that âthose who ... in the previous year ... have been president or chief executive officer of private law entities under public control by provinces, municipalities, and their associative forms in the same region, may not be conferred ... positions as director of a private law entity under public control by a province, a municipality with a population of more than 15,000 inhabitants, or an association of municipalities with the same populationâ, or in so far as they assimilate the positions of âpresident or chief executive officer of private law entities under public controlâ to the previous participation in political bodies pursuant to Article 1, paragraph 50, letter c, Law No. 190/2012, for violation of Articles 3, 4, 5, 51, 76, 97, 114 and 118 of the Constitution."
As a subsidiary matter, the Regional Administrative Court (TAR) challenges paragraph 2 of Article 7, "in so far as it does not limit the case of non-conferral provided for âthose who ... in the previous year ... have been president or chief executive officer of private law entities under public control by provinces, municipalities, and their associative forms in the same regionâ to only cases in which the controlling body of the company of origin has a population of more than 15,000 inhabitants, for violation of Articles 3, 4, 5, 51, 97, 114 and 118 of the Constitution."
1.1.− In the four referral orders, the TAR Lazio states that it is called upon to decide on as many appeals lodged against the resolution of the National Anti-Corruption Authority (ANAC) of 3 March 2021, No. 207, with which, pursuant to Article 7, paragraph 2, letter d), of Legislative Decree No. 39 of 2013: a) the non-conferral to P. M. of the position of chief executive officer of the company Azienda multiservizi e d'igiene urbana Genova spa (hereinafter: AMIU Genova spa) was declared, as at that time he held the position of chief executive officer of SATER spa, a company in which the Municipality of Cogoleto held a 51 per cent stake; b) the non-conferral, and the consequent nullity, of the positions, already assigned to him and still held, of sole director of GEAM - Gestioni ambientali spa and of AMIU Bonifiche spa (both companies belonging to the same group, whose parent company is AMIU Genova spa), was ascertained, due to the previous position held as chief executive officer of ARAL in house srl, 60 per cent owned by the Municipality of Arenzano.
In the main proceedings, with regard to the order registered under No. 58 reg. ord. 2023, the AMIU Genova spa, which operates in the environmental and waste management sector and whose absolute majority, with regard to share ownership, is held by the Municipality of Genoa, is party; with regard to the orders registered under numbers 60 and 61 reg. ord. 2023, respectively, GEAM - Gestioni ambientali spa and AMIU Bonifiche spa (these latter companies, as mentioned, are controlled by the former) are parties; with regard to the order registered under No. 59 reg. ord. 2023 P. M., sole director since 2018 of these latter two companies, is party.
In all the appeals, the illegitimacy of ANAC's measure is lamented, specifically for violation of Articles 1 and 7 of Legislative Decree No. 39 of 2013: in the opinion of the appellants, these provisions would have been interpreted by ANAC itself in a manner discordant with the constitutionally compliant meaning and corresponding to Article 12 of the preliminary provisions to the Civil Code. In particular, according to the appellant parties, the combined effect of the two provisions would entail non-conferral only for previous political positions and, furthermore, Article 7, paragraph 2, would exclude non-conferral in the case in which the company of origin is controlled (as in the case in point) by a local authority with a population of less than fifteen thousand inhabitants. As a subsidiary matter, all the appellant parties have asked the TAR to raise a question of constitutional legitimacy of the aforementioned provisions if interpreted literally.
1.2.– With regard to relevance, the referring court points out that the measure was adopted on the basis of the challenged provisions and was appealed for violation of the same, the literal interpretation adopted by ANAC being challenged by the appellants.
Moreover, the practicability of the constitutionally oriented reading invoked by the appellants would be ruled out, by virtue of the unequivocal tenor of the provisions.
Lastly, the TAR excludes the validity of the further complaints that would allow the appeals to be decided regardless of the initiation of the questions of constitutional legitimacy.
1.2.1.– The TAR observes, as a logically preliminary matter, that the question of constitutional legitimacy proposed as a matter of priority would be superseded by that formulated as a subsidiary matter and that the acceptance of the former would render the latter irrelevant; nevertheless, the referring court justifies the need for the simultaneous initiation of the two questions by reason of the principles of reasonable length of proceedings and of proper functioning of the justice system.
1.3.– In illustrating the reasons of non-manifest unfoundedness, the TAR places certain preliminary reconstructions of the regulatory framework first.
The challenged provisions were issued in exercise of the legislative delegation contained in Article 1, paragraphs 49 and 50, of Law No. 190 of 6 November 2012 (Provisions for the prevention and repression of corruption and illegality in the public administration).
With paragraph 49 â the referring court observes â the delegating legislator, for the stated purposes of preventing and combating corruption and preventing conflicts of interest, delegated the Government to adopt one or more legislative decrees aimed at amending the current regulations on the assignment of managerial and senior administrative positions in public administrations and "in private law entities subject to public control exercising administrative functions, activities of production of goods and services for public administrations or management of public services […] that involve functions of administration and management". Furthermore, the Government was delegated to amend the current regulations regarding incompatibility between these positions and the performance of elective public positions or the holding of private interests that may conflict with the impartial exercise of the public functions entrusted.
With paragraph 50 â the judge a quo further recalls â the principles and criteria to which the delegated legislator should adhere were laid down, establishing, inter alia, in letter c), that of regulating the criteria for conferral as well as the cases of non-conferral of managerial positions to persons outside the administrations "who, for an appropriate period of time, not less than one year, prior to conferral, have been members of political bodies or have held elective public offices".
In the opinion of the referring court, the ratio of the prohibition of access to managerial and/or administrative positions for persons who appear politically aligned should be found, on the one hand, in the protection of the impartiality of administrative action and, on the other, in the promotion of the meritocratic principle in the selection of administrative leaders.
Precisely in implementation of the specific provision of Article 1, paragraph 50, letter c), of Law No. 190 of 2012, the provisions of Chapter IV of Legislative Decree No. 39 of 2013, entitled "Non-conferral of positions to members of political bodies", were laid down, in which the challenged Article 7, entitled "Non-conferral of positions to members of a political body at regional and local level", is located.
This provision â the referring court states â in regulating the cases of non-conferral, selects, in the second part of paragraph 2, the "destination positionsâ, that is, the positions to be assigned for which impartiality and the possession of specific competences must be guaranteed. These are identified in the following: "a) the senior administrative positions in the administrations of a province, of a municipality with a population of more than 15,000 inhabitants or of an association of municipalities with the same population"; "b) the managerial positions in the same administrations referred to in letter a)"; "c) the positions of director of a public entity at the provincial or municipal level"; "d) the positions of director of a private law entity under public control by a province, a municipality with a population of more than 15,000 inhabitants, or an association of municipalities with the same population".
Moreover, paragraph 2 of Article 7 identifies, in its first part, the "positions of originâ that prevent the conferral of the aforementioned appointments, outlining the following three cases: those who, in the previous two years, have been members of the council or board of the province, municipality, or association of municipalities that confers the position; those who, in the previous year, have been members of the council or board of a province, of a municipality with a population of more than fifteen thousand inhabitants, or of an association of municipalities with the same population, in the same region as the local administration that confers the position; finally, those who have held the position of president or chief executive officer of private law entities under public control by provinces, municipalities and their associative forms in the same region.
In the same sense, Article 1, paragraph 2, letter f), of Legislative Decree No. 39 of 2013 expressly includes, in the definition of "members of political bodiesâ, also for the purposes of the regulations on non-conferral, among others, persons who participate, by election or appointment, "in decision-making bodies of public entities, or of private law entities under public control, at the national, regional, and local levels".
The acts of initiation recall that, following the approval of Legislative Decree No. 39 of 2013, ANAC itself, by means of a notification act of 10 January 2015, No. 4, addressed to Parliament and the Government, had highlighted the need to eliminate, among the grounds for non-conferral for origin "from political positions", those that refer to origin from positions in private law entities under public control.
A similar need for amendment had been expressed by the Study Commission for the revision of the current regulations on the prevention of corruption and transparency, established by ANAC, which, in a report published in July 2015, had emphasised the fact that the positions of president and director of public entities and of private entities under public control would not entail â in the strict sense of the delegation contained in Article 1, paragraph 50, of Law No. 190 of 2012 â the holding of political functions, but would presuppose, rather, the exercise of political-administrative functions (for public entities) and of political "corporate" functions (for private law entities under public control), but always in implementation of the political direction received. These positions, moreover, would not be assigned through elections.
1.4.– In light of the delineated regulatory framework, the four referral orders give the reasons for the non-manifest unfoundedness, first of all, of the questions raised as a matter of priority.
1.4.1.– In the first place, according to the judge a quo, Articles 1, paragraph 2, letter f), and 7, paragraph 2, letter d), of Legislative Decree No. 39 of 2013 would conflict with Articles 3 and 76 of the Constitution due to inconsistency with the delegating law.
Article 1, paragraph 50, letter c), of Law No. 190 of 2012 had left the delegated legislator to regulate the non-conferral only with regard to those who "have been members of political bodies or have held elective public offices". Those who (pursuant to the challenged provisions) have held the position of "president or chief executive officer of private law entities under public control", who, instead, would only exercise management or political-corporate direction roles, could not be included in this latter category.
In this regard, the referring court takes note of the pronouncements of the administrative court in which it was decided not to raise the question of constitutional legitimacy for excess of delegation, and this by virtue of the further provision, contained in Article 1, paragraph 50, letter d), number 3), of Law No. 190 of 2012, which instructed the delegated legislator to include, among the positions to be regulated, those of "director of public entities and of private law entities subject to public controlâ (cited are: Council of State, Fifth Section, judgments of 11 January 2018, No. 126, and 27 March 2020, No. 2149; Regional Administrative Court for Emilia-Romagna, First Section, judgment of 19 July 2018, No. 578); however, it adds that it is of a contrary opinion, as the cited provision would only refer to destination positions and not to positions of origin.
1.4.2.– In the second place, in the opinion of the TAR Lazio, the non-conferral provided for by the challenged provisions would violate Articles 3, 4 and 51 of the Constitution, as it would entail, to the detriment of those interested in the appointment, a limitation on the right to work (Article 4 of the Constitution) and on the possibility of access to public office (Article 51 of the Constitution): a limitation that would be disproportionate and unreasonable with respect to the purpose pursued. On the one hand, the preclusion of the appointment of persons who do not give rise to doubts of partiality would conflict with the aim of protecting the impartiality of the public administration; on the other hand, the impediment to the movement, within the administrations, of competent directors who are outside the logic of political affiliation would conflict with the further meritocratic purpose.
1.4.3.– The challenged provisions would also violate Articles 3 and 97 of the Constitution.
The prohibition for local administrations to confer managerial positions on those who have demonstrated their competence in the field in the same role in another "public companyâ would undermine the principle of good functioning of the public administration.
Once again, it would be a measure disproportionate to the regulatory aims of protecting impartiality and merit.
1.4.4.– The referring TAR also complains of the violation of Articles 3, 5, 97, 114 and 118 of the Constitution.
The non-conferral would discourage the best managers from accepting positions in private law entities controlled by small local administrations, for fear of having subsequent more prestigious appointments precluded, thus frustrating the autonomy of small municipalities and their task of providing adequate services.
1.5.– The judge a quo then moves on to illustrate the non-manifest unfoundedness of the questions raised as a subsidiary matter.
1.5.1.– In challenging Article 7, paragraph 2, of Legislative Decree No. 39 of 2013, in so far as it does not limit the non-conferral to only cases in which the local authority controlling "the companyâ of origin has a population of more than fifteen thousand inhabitants, the TAR observes that the challenged provision, in its complete statement, gives express relevance to the dimensional data of the local authority in two different perspectives: on the one hand, in relation to the positions of origin, precluding the appointments of those who have been members of the board or council of municipalities or associations of municipalities if these are entities with a population of more than fifteen thousand inhabitants; on the other hand, in relation to the destination positions concerning (as far as this case is concerned) the administrative bodies of private entities under public control, prevented (by letter d) only in the event that control is exercised by municipalities or their associations with more than fifteen thousand inhabitants. On the contrary, the provision does not give any relevance to the size of the controlling local authority where the position of origin is that of president or chief executive officer of a private law entity under public control.
1.5.2.– Article 7, paragraph 2, would then give rise, first of all, to an intolerable disparity of treatment, concerning the preclusive effect of the positions of origin. It appears, in fact, that there is non-conferral of new positions if that of origin was carried out in private law entities controlled by local authorities of small dimensions (Article 7, paragraph 2, first part, last case contemplated); it is, instead, possible to confer new positions if that of origin was carried out in the political bodies (board or council) of the same local authorities of small dimensions (Article 7, paragraph 2, first part, second case contemplated). Only for this second case, in fact, is the small size of the controlling local authority normatively assumed as a factor attenuating the risk of partiality.
1.5.3.– Article 3 of the Constitution would also be violated under the different profile of unreasonableness, as the lack of limitation of non-conferral in relation to the position of origin would hinder the (ascensional) transition of deserving managers from companies controlled by territorial entities of small dimensions to companies controlled by larger entities, while the provisions would allow the reverse flow. In fact, as a result of the provision of letter d) of paragraph 2 under examination, the prohibition on the conferral of a new managerial position only exists if the conferring entity is controlled by a local authority of large dimensions; conversely, a similar prohibition is not provided for if the controlling local authority is a small municipality, in which case, therefore, the (descensional) transition of the manager from a position in an entity controlled by a large municipality to a position in an entity controlled by a small municipality is allowed.
1.5.4.– The lack of limitation, just described, of the ground for non-conferral would at the same time infringe Articles 3, 4 and 51 of the Constitution and Articles 3 and 97 of the Constitution: the provision would hinder the normal flow of the most deserving professionals from companies controlled by local authorities of small dimensions to more important public companies, unreasonably compressing, on the one hand, the right to work and the possibility of access to public offices of professionals and, on the other hand, the proper functioning of the administration.
1.5.5.– Similarly, there would be a vulnus to Articles 3, 5, 97, 114 and 118 of the Constitution, as the best managers would be discouraged from accepting positions in private law entities controlled by small local administrations, for fear of having subsequent appointments in more important public companies precluded.
2.– The President of the Council of Ministers did not intervene in any of the proceedings before the Court.
3.– In the proceedings relating to the orders registered under numbers 58 and 60 reg. ord. of 2023, AMIU Genova spa and AMIU Bonifiche spa, appellants in the respective proceedings a quibus, were constituted with identical acts, and requested the acceptance of the questions initiated in the same terms hoped for by the referring court.
As a preliminary matter, the defences highlighted the existence of the admissibility requirements of the questions raised by the TAR Lazio, having regard to their exact formulation as well as the detailed reasons given by the referring court regarding the requirements to raise them.
On the merits, the parties illustrated and shared the arguments expended by the referral orders.
The public-controlled companies limited themselves to adding the following, concise comments. The lamented defect of excess of delegation would be resolved to the detriment of those who do not hold political roles. Furthermore, the prohibition of new positions for those professionals who are free from doubts of partiality would give rise to a significant compression of the rights protected by Articles 4 and 51 of the Constitution, such as not to pass the so-called proportionality test, which measures the appropriateness of the measure adopted by the legislator with respect to the purpose pursued. Again, the lack of limitation of the prohibition, with regard to the positions of origin, by reason of the dimensional data of the controlling local authority would give rise to a treatment that is even more detrimental for those who have held the position of president or director of private entities under public control compared to those who have been members of political bodies, precisely because, in accordance with the provisions of Article 7, paragraph 2, of Legislative Decree No. 39 of 2013, the small size of the reference local authority ends up excluding the prohibition of appointment only in this latter case, albeit more delicate than the other.
4.– In the proceeding relating to the order registered under No. 59 reg. ord. 2023, P. M., appellant in the related main proceeding before the TAR, was constituted, concluding for the acceptance of the questions raised.
The private party states that he has gained extensive experience in the management of companies specialised in the environmental protection sector, having held top positions obtained only thanks to his demonstrated abilities, and certainly not for political roles or affiliations of any kind; in this context, he also highlights the seriousness and injustice of the damage that he would suffer from the challenged measure of ANAC.
The appellant in the proceeding a quo then retraces and supports the reasons given by the TAR as the basis for the relevance and non-manifest unfoundedness of the questions, underlining the discriminatory and disproportionate scope of the challenged provisions with respect to the legitimate expectations of professionals, together with the further prejudice to the action of the public administration, prevented from assigning positions to those who have demonstrated their abilities in previous experiences.
In this context, an additional consideration is made in support of the proposed constitutional illegitimacy of the challenged provisions. In particular, the lamented conflict with Article 76 of the Constitution would be further reinforced by the fact that the delegating law No. 190 of 2012 had considered, as a reason for prejudice to the assignment of new positions, the previous positions taken in private entities but only if "subject to control or fundedâ by the same administration that proceeds to the new appointment (Article 1, paragraph 50, letter b, of Law No. 190 of 2012). This specific provision of the delegating law would therefore have prevented the delegated legislator from establishing an absolute prohibition of non-conferral, as this should be limited to the cases expressly considered by the delegating legislator. At most, the Government, in pursuing the aim of prevention and combating corruption, could have established a regulation aimed at assessing incompatibilities on a case-by-case basis, always under the guidance of the constitutional principles of proportionality and reasonableness.
With a brief filed on 12 February 2024, P. M. reiterated his defensive arguments, mostly reporting, in an approving sense, extensive extracts from the referral orders, and therefore insisting on the acceptance of the questions raised.
Grounds in law
1.– In the course of four proceedings concerning the same measure adopted by ANAC, relating to the non-conferral of positions as director of private law companies controlled by the Municipality of Genoa, the TAR Lazio, First-quater Section, by means of separate orders of identical wording, raised questions of constitutional legitimacy of Articles 1, paragraph 2, letter f), and 7, paragraph 2, of Legislative Decree No. 39 of 2013, for conflict with Articles 3, 4, 5, 51, 76, 97, 114 and 118 of the Constitution.
As a matter of priority, with reference to the indicated parameters, the TAR challenges the aforementioned Article 7, paragraph 2, letter d), in so far as it does not allow the conferral of the position of director of a private law entity â that is subject to public control by a province, by a municipality with a population of more than fifteen thousand inhabitants or by an association of municipalities with the same population â in favour of those who, in the previous year, have been president or chief executive officer of private law entities controlled by local administrations (province, municipality or their associative forms in the regional context).
The definitional provision referred to in Article 1, paragraph 2, letter f), is also challenged, on the basis of the same parameters, in so far as, as the appellant notes, it includes, among the "members of political bodies" referred to in Article 1, paragraph 50, of the delegating law No. 190 of 2012, persons who participate in decision-making bodies of national, regional and local private law entities under public control.
As a subsidiary matter, and "[w]ithout prejudice to the overriding question of constitutional legitimacy highlighted above", the TAR challenges, for conflict with Articles 3, 4, 5, 51, 97, 114 and 118 of the Constitution, paragraph 2 of the aforementioned Article 7, in so far as it does not limit the case of non-conferral â provided for those who, in the previous year, have held the position of president or chief executive officer of private law entities under public control by local authorities (provinces, municipalities or their associative forms in the regional context) â to only cases in which the controlling body of the company of origin has a population of more than fifteen thousand inhabitants.
2.– As a preliminary matter, the joining of the proceedings, concerning the same legal provisions, which are challenged on the basis of coincident parameters and arguments, must be ordered (ex plurimis, judgments No. 21 of 2024 and No. 205 of 2023).
3.– It is appropriate to preface the examination of the questions with a brief illustration of the reference regulatory framework in which to place the criticisms made by the referring court.
3.1.– With Article 1, paragraph 49, of Law No. 190 of 2012, the Government was delegated to amend the current regulations on the assignment of managerial and senior administrative positions in public administrations. The attention of the delegating legislator was directed to the positions "that involve functions of administration and management", with the explicit objective "of the prevention and combating of corruption, as well as the prevention of conflicts of interest". In this context, the positions at "private law entities subject to public control exercising administrative functions, activities of production of goods and services for public administrations or management of public services" were also included among the positions subject to regulation. In this way, with a substantive approach, the delegating legislator intended to involve all entities that are called upon to perform a public function, regardless of the legal nature (public or private) and, in the case of private entities, the type of company chosen. At the same time, use was made of a broad notion of public official, such as to include, in line with Article 54, second paragraph, of the Constitution, all those who are entrusted with "public functions" of administrative significance, regardless of the nature, public or private, of the entity with which the position is held.
The principles and guidelines, which the Government should have followed in laying down the provisions for the review, were indicated in the delegation to the Government contained in Article 1, paragraph 50, of Law No. 190 of 2012, and are focused on the operability of the institutes, already known to the legal system, of non-conferral and incompatibility. In particular, letters a), b) and