JUDGMENT NO. 100
YEAR 2024
Commentary on the decision by
Antonio Ruggeri
in this Journal 2024/II, 667
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President: Augusto Antonio BARBERA; Justices: 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 delivered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 4 of Regional Law No. 38 of the Molise Region, dated 31 December 2004 (Establishment of the regional tax on motor fuel commencing 1 January 2005), as amended by Article 5, paragraph 1, of Regional Law No. 2 of the Molise Region, dated 30 January 2018 (Regional Stability Law 2018), initiated by the Tax Court of First Instance of Campobasso, First Section, in the proceedings between SOPEA - Società petroli Abruzzo di P. P. & C. sas and P. P. and the Customs and Monopolies Agency - Campobasso Customs Office, by order of 5 April 2023, registered under no. 129 in the register of orders 2023 and published in the Official Gazette of the Republic no. 40, first special series, of the year 2023, the hearing of which was scheduled for the meeting in the council chamber of 9 April 2024.
Heard in the council chamber of 11 April 2024, the Reporting Judge Maria Rosaria San Giorgio;
Deliberated in the council chamber of 11 April 2024.
Facts of the Case
1.– By order of 5 April 2023, registered under no. 129 in the register of orders 2023, the Tax Court of First Instance of Campobasso, First Section, raised questions of constitutional legitimacy of Article 4 of Regional Law No. 38 of the Molise Region, dated 31 December 2004 (Establishment of the regional tax on motor fuel commencing 1 January 2005), as amended by Article 5, paragraph 1, of Regional Law No. 2 of the Molise Region, dated 30 January 2018 (Regional Stability Law 2018).
The contested provision, in paragraph 3, stipulates, insofar as relevant to the present proceedings, that, in the event of failure to pay, insufficient payment or late payment of the regional tax on motor fuel (IRBA), an administrative penalty of fifty per cent of the unpaid or late paid amount is applied, in addition to default interest «at the rate set for legal interest, starting from the day on which the tax is due to the Molise Region».
In the opinion of the referring judge (a quo), the contested provision would conflict with the principles of equality and proportionality under Article 3 of the Constitution, by unreasonably subjecting two unequal situations to the same administrative penalty: the failure to pay the IRBA and its late payment, and by applying, in the latter case, default interest at a fixed rate, not commensurate with the extent of the delay. Thus, a sanctioning treatment would be established that is not proportional to the different disvalue of the punished violations.
Furthermore, according to the referring court, the provision under scrutiny "would seem" to conflict with the "criteria established by the enabling act and by the implementing legislation".
1.1.– The referring court reports that it has been seized with jurisdiction over the appeals brought by P. P., as managing partner of SOPEA - Società petroli Abruzzo di P. P. & C. sas, and by the said company as jointly and severally liable, for the annulment of penalties imposed by the Customs and Monopolies Agency - Campobasso Customs Office for the delayed payment of the IRBA, established by the provision under scrutiny.
The judge a quo states that, in support of the appeals, the appellants have argued the constitutional illegitimacy of this provision, insofar as it subjects the failure to pay the tax and its late payment to the same pecuniary penalty, and applies default interest at a fixed rate not proportional to the length of the delay in fulfilling the obligation.
The same appellants – continues the referral order – have denounced the conflict of the contested provision with Article 6, paragraph 1, letter c), of the enabling law of 14 June 1990, no. 158 (Delegation rules concerning the taxation autonomy of regions and other provisions concerning the financial relations between the State and the regions), which was followed by Legislative Decree No. 398 of 21 December 1990 (Establishment and regulation of the regional surcharge on the state registration tax referred to in Law No. 952 of 23 December 1977 and subsequent amendments, of the regional surcharge on excise duty on natural gas and for exempt users, of a tax in substitution of the surcharge, and the provision of the power of the ordinary statute regions to establish a regional tax on motor fuel) and Law No. 549 of 28 December 1995 (Measures for the rationalisation of public finances).
According to the appellants, the aforementioned enabling law would have granted the regional legislator the power to introduce a pecuniary penalty only for the case of tax evasion, while for the case of late payment it would have provided exclusively for the application of default indemnity and interest.
On the basis of these considerations, the referral order adds, the same appellants asked the Panel to disapply the regional sanctioning rule, subject to a constitutionally oriented interpretation of the same, or to raise the related question of constitutional legitimacy.
The judge a quo states that in the main proceedings, the Customs and Monopolies Agency - Campobasso Customs Office appeared, supporting the legitimacy of the issued measure and asking, on a subordinate basis, for the penalty imposed to be redetermined in accordance with the principle of proportionality, as enunciated by the Court of Justice of the European Union.
1.2.– The same Referring Panel then recalls that, by order of 6 December 2019 (registered under no. 93 in the register of orders of 2021), it had already sent the case files of the proceedings to this Court, considering the question of the constitutional legitimacy of the aforementioned Article 4 of Regional Law no. 38 of Molise, to be relevant and not manifestly unfounded, for conflict with Article 3 of the Constitution and with «the criteria established by the enabling act and by the implementing legislation». This Court, by Order No. 231 of 2022, had returned the case files to the judge a quo for a new assessment of the relevance and the non-manifest lack of merit of the questions raised, in light of the changed regulatory framework that had arisen as a result of the ius superveniens. Indeed, on the one hand, Article 1, paragraph 628, of Law No. 178 of 30 December 2020 (State Budget for the financial year 2021 and multi-year budget for the three-year period 2021-2023) established that Article 6, paragraph 1, letter c), of Law No. 158 of 1990, Article 17 of Legislative Decree No. 398 of 1990 and Article 13, paragraph 3, of Law No. 549 of 1995, together with other provisions of state legislative sources containing provisions on the regional tax on motor fuel, «are repealed» and, on the other hand, the regional law containing the contested provision was repealed by Article 6, paragraph 6, of Regional Law No. 20 of the Molise Region, dated 30 December 2020 (Adjustment of the 2020-2022 budget and amendments to regional laws).
In Order No. 231 of 2022, it was observed that «Law No. 178 of 2020 contains a transitional rule which preserves "the effects of tax obligations already incurred” (Article 1, paragraph 628) and that a transitional provision is also found in Article 6, paragraph 6, of Regional Law no. 20 of Molise of 2020, according to which "[f]rom 1 January 2021, Regional Law no. 38 of 31 December 2004 (Establishment of the regional tax on motor fuel commencing 1 January 2005) is repealed"».
This Court had, therefore, considered that, since the repealing and transitional regime introduced by the new legislation significantly affected the regulatory framework in which the contested sanctioning provision was included, it was up to the referring court to assess the impact of the supervening legislative changes on the facts of the case in the proceedings a quo.
2.– With the order now under scrutiny, the Tax Court of First Instance of Campobasso has restated the questions of constitutional legitimacy of Article 4 of Regional Law No. 38 of Molise of 2004 with reference to the same parameters evoked in the referral order registered under no. 93 reg. ord. of 2021.
2.1.– The Referring Panel believes, first of all, that the ius superveniens has not affected the provision in question, which would continue to apply, ratione temporis, to the facts of the case in the proceedings a quo, by virtue of the aforementioned transitional legislation. The judge a quo maintains that, based on this, the contested provision must be applied in the main proceedings, which, at the time of the facts challenged by the sanctioning measure under appeal, was still in force and was only repealed with effect from 1 January 2021.
2.2.– On the merits, the Referring Panel reiterates the arguments already made in the previous order, confirming, as reported, the suspicion of constitutional illegitimacy of the contested provision for conflict with the principles of equality and with the «criteria established by the enabling law and by the implementing legislation».
3.– In the proceedings concerning constitutional legitimacy, the President of the Council of Ministers did not intervene, nor did the parties to the main proceedings appear.
Legal Reasoning
1.– The Tax Court of First Instance of Campobasso has raised questions of constitutional legitimacy of Article 4 of Regional Law No. 38 of Molise of 2004, as amended by Article 5, paragraph 1, of Regional Law No. 2 of Molise of 2018.
In the opinion of the judge a quo, the contested provision would conflict with the principles of equality and proportionality under Article 3 of the Constitution, insofar as, by subjecting the failure to pay the IRBA and its late payment to the same administrative penalty and, in applying, in the latter case, default interest at a fixed rate, it would, on the one hand, unreasonably equate unequal situations and, on the other hand, would provide for a sanctioning treatment that is not proportional to the different disvalue of the punished violations, as well as default interest not commensurate with the length of the delay.
Furthermore, according to the referring court, this provision "would seem" to conflict with the "criteria established by the enabling law and by the implementing legislation".
2.– The questions, as reported in the narrative, had already been submitted by the same referring court to the scrutiny of this Court, which, by Order No. 231 of 2022, had returned the case files to the judge a quo for a new examination of their relevance and non-manifest lack of merit, in light of the change in the regulatory framework that occurred after the filing of the referral order, as a result of the repealing and transitional regime under State Law No. 178 of 2020 and Regional Law No. 20 of Molise of 2020.
The Tax Court of First Instance of Campobasso, with the order currently under examination, has restated the questions on the basis of the same constitutional parameters already evoked and in light of the same arguments, considering their persistent relevance even after the repeal of the contested provision (by Article 6, paragraph 6, of Regional Law No. 20 of Molise of 2020, as a result of the transitional rules contained in the same regional law and also in Article 1, paragraph 628, of the aforementioned Law No. 178 of 2020).
3.– Before proceeding with the examination of the questions, it is appropriate to reconstruct the regulation of the regional tax under scrutiny, which has now been repealed, and of the sanctioning treatment prepared for its non-payment or late payment.
3.1.– The IRBA was provided for by Article 17 of Legislative Decree No. 398 of 1990, in implementation of the enabling law No. 158 of 1990, which, in Article 6, paragraph 1, letter c), with the stated aim of «attributing to the ordinary statute regions greater taxation autonomy in fulfilment of the precept referred to in the second paragraph of Article 119 of the Constitution», had allowed these regions to introduce, by their own laws, a tax on motor fuel dispensed from distribution plants located in their respective territories.
Pursuant to paragraph 2 of the aforementioned Article 17 of Legislative Decree No. 398 of 1990, without prejudice to the maximum limit of the tax amount (which initially could not exceed thirty lire per litre), the regions can set the rate at a level different from that originally provided for and this determination takes effect after the date of entry into force of the law that provides for the variation.
The discipline under examination was then amended by Law No. 549 of 1995, whose Article 3, in paragraph 14, repealed, with effect from 1 January 1996, Articles 18 and 19 of the aforementioned Legislative Decree No. 398 of 1990 and, in paragraph 13, on the one hand, affected the structure of the IRBA by placing the payment on the concessionaire of the distribution plant (and no longer on the consumer of the fuel, with collection by the dispenser, who was required to pay the amount to the Region, as provided for by Article 18 of the same Legislative Decree No. 398 of 1990) in the amount determined on the basis of the quantities dispensed and recorded in the loading and unloading registers; on the other hand, in setting out provisions on the assessment and collection of the tax, in continuity with the repealed Article 19 of Legislative Decree No. 398 of 1990, it specified that «the methods and deadlines for payment, including any instalments of down payments, and penalties, to be established in an amount between 50 and 100 per cent of the evaded tax, are established by each region by its own law».
3.2.– The IRBA is configured as a derivative regional tax, with a structure similar to that of excise duty, insofar as, like the latter, it affects the sale of motor fuel based on quantity, and not on value, and becomes payable at the time and place in which the energy product is placed for consumption.
Its amount may be passed on to the final consumer through the increase in the selling price of the dispensed fuel. This transfer is not an obligation, but a power granted to the concessionaire of the distribution plant.
3.3.– The Molise Region implemented Article 17 of Legislative Decree No. 398 of 1990, as supplemented by Article 3, paragraph 13, of Law No. 549 of 1995, with Regional Law No. 38 of 2004, which is being examined here, establishing the tax from 1 January 2005 (Article 1) and determining its amount at EUR 0.015494 per litre of dispensed fuel (Article 2, paragraph 1).
3.4.– The regional law under scrutiny has also introduced an administrative penalty for the failure to pay or late payment of the tax, establishing, in Article 4, paragraph 3 – provision that is now contested – that, in the event of failure to pay, insufficient payment or late payment of the IRBA, a pecuniary administrative penalty is applied, in addition to default interest «at the rate set for legal interest, starting from the day on which the tax is due to the Molise Region».
The penalty, originally established at the full amount not paid or late paid, was reduced by fifty per cent as a result of the amendment made by Article 5, paragraph 1, of Regional Law No. 2 of Molise of 2018.
3.4.1.– The same Article 4, paragraph 3, of the aforementioned regional law, as amended, preserves the institution of settlement under Article 13 of Legislative Decree No. 472 of 18 December 1997 (General provisions on administrative penalties for violations of tax rules, pursuant to Article 3, paragraph 133, of Law No. 662 of 23 December 1996), as well as «the possibility of applying Article 7 of the same legislative decree».
The latter provision, in paragraph 1, sets out the criteria for determining the penalty, identifying them in the severity of the violation, also inferred from the conduct of the agent, in the work carried out by the latter to eliminate or reduce the consequences, as well as in his personality and economic and social conditions; in paragraph 2 it specifies that the personality of the offender is also inferred from his tax history; in paragraph 3 it regulates recidivism, and in paragraph 4 it provides that, «[i]f there are circumstances that make manifest a disproportion between the amount of the tax to which the violation refers and the penalty, this may be reduced to half of the minimum»; in paragraph 4-bis, it finally establishes that, «[u]nless otherwise provided for by individual reference laws, in the event of submission of a declaration or report within thirty days of the expiry of the relevant deadline, the penalty is reduced by half».
3.5.– The state legislation on the IRBA was repealed by Article 1, paragraph 628, of Law No. 178 of 2020, while, as far as the Molise Region is concerned, the regulation of the tax set out in Regional Law No. 38 of 2004, which is being scrutinised here, was repealed by Article 6, paragraph 6, of Regional Law No. 20 of Molise of 2020.
Both repealing provisions, however, set out a transitional regime.
In particular, the latter makes the repealing effect of the entire Regional Law No. 38 of Molise of 2004 take effect from 1 January 2021, while Article 1, paragraph 628, of Law No. 178 of 2020, in force from 1 January 2021, expressly preserves the effects of tax obligations already incurred.
4.– The rule of intertemporal law set out in the aforementioned Law No. 178 of 2020, together with similar provisions of some regional laws, has, however, been disapplied by numerous courts of first instance and by several decisions of the Supreme Court, because it was considered to be in conflict with European Union law and, in particular, with Article 1, paragraph 2, of Directive 2008/118/EC of the Council of 16 December 2008, on the general arrangements for excise duty and repealing Directive 92/12/EEC.
The said Article 1, paragraph 2, to which the jurisprudence of the Supreme Court recognizes direct effect (Court of Cassation, Fifth Civil Section, judgment of 26 May 2023, no. 14790), allows Member States to apply other indirect taxes to products subject to excise duty, provided that the tax serves specific purposes and complies with the Union's tax rules on excise duties or VAT, for the determination of the taxable base, as well as for the calculation, enforceability and control of the tax, it being understood that the provisions relating to exemptions are excluded (Court of Justice of the European Union, judgment of 22 June 2023, in case C-833/21, Endesa Generación SAU, point 37).
This discipline takes account of the diversity of the tax traditions of the Member States in this area and of the frequent recourse to indirect taxes for the implementation of non-budgetary policies (Court of Justice of the EU, order of 7 February 2022, in case C-460/21, Vapo Atlantic SA), in line with Recital 2 of the same Directive 2008/118/EC, which identifies the purpose of the harmonisation of the conditions for the collection of excise duties in guaranteeing the functioning of the internal market.
4.1.– As highlighted by the Court of Justice of the EU (judgments of 5 March 2015, in case C-553/13, Tallinna Ettevõtlusamet, point 36; 25 July 2018, in case C-103/17, La Messer France sas, point 36), the requirements of the specific purpose of the tax and of its conformity with the Union's tax rules are cumulative and aim to prevent additional indirect taxes from unduly hindering trade.
With regard to the first of the indicated requirements, the Court of Justice of the EU has repeatedly specified that it must not be reduced to a purely budgetary and revenue objective (orders Vapo Atlantic SA, points 19 et seq., and 9 November 2021, in case C-255/20, Agenzia delle dogane e dei monopoli – Ufficio delle dogane di Gaeta, points 27 et seq.; judgment La Messer France sas, points 34 et seq.).
The same European case law has also clarified that, since any tax necessarily pursues a budgetary purpose, the presence of this objective does not, in itself, exclude that the tax simultaneously fulfils the requirement of purpose referred to in Article 1, paragraph 2, of Directive 2008/118/EC. In the absence of a predetermined mechanism for allocating the revenue, a specific purpose exists, however, only if the tax is conceived, as to its structure – and, in particular, with regard to the taxable base or the tax rate –, in such a way as to achieve that purpose by influencing the behaviour of taxpayers, for example through heavy taxation of the products in question aimed at discouraging their consumption (Court of Justice of the EU, order Vapo Atlantic SA, point 27; judgment Tallinna Ettevõtlusamet, point 42).
4.1.1.– The Court of Justice of the EU has also ruled specifically on the Italian tax on motor fuel, with the aforementioned order Agenzia delle dogane e dei monopoli – Ufficio delle dogane di Gaeta.
In recalling the principles already mentioned, it noted that the IRBA «only pursues a generic purpose of supporting the budget of the territorial entities» (point 38), and then concluded that Article 1, paragraph 2, of Directive 2008/118/EC must be interpreted as meaning that it precludes national legislation, such as the Italian legislation establishing a regional tax on sales of motor fuel, since «it cannot be considered that this tax has a "specific purpose” within the meaning of that provision, its revenue being intended only to contribute generically to the budget of the local authorities».
4.2.– It is on the basis of this interpretation that, as reported, both the courts of first instance and the Court of Cassation have begun to disapply the repealing provisions of the tax in question, mentioned above, in the part in which they have attributed to the tax a residual tax effectiveness in relation to obligations incurred before its abolition, and to consider, consequently, the IRBA relating to the years prior to 2021 to be not due (Court of Cassation, Fifth Civil Section, judgments of 31 July 2023, no. 23201; 19 June 2023, no. 17529 and no. 17436; 26 May 2023, no. 14790, no. 14699 and no. 14697; 25 May 2023, no. 14606; 8 March 2023, no. 6966, no. 6961, no. 6956, no. 6943, no. 6923 and no. 6903; 7 March 2023, no. 6860, no. 6858 and no. 6853; 6 March 2023, no. 6687).
5.– In light of what has been stated so far, the questions of constitutional legitimacy must be declared inadmissible for lack of relevance.
5.1.– The Tax Court of First Instance of Campobasso, in restating these questions following the return of the case files ordered by this Court, has not complied with the case law of the Court of Justice of the EU on the supplementary indirect tax on products subject to excise duty and, in particular, with the case law already mentioned, on the IRBA (order Agenzia delle dogane e dei monopoli – Ufficio delle dogane di Gaeta). And this is despite the decisions of the Court of Justice of the EU – which has exclusive jurisdiction in the interpretation and application of the Treaties (judgments no. 15 of 2024, no. 67 and no. 54 of 2022; orders no. 29 of 2024, no. 217 and no. 216 of 2021, no. 182 of 2020) – being binding on all judges, and not only on the one who has made the preliminary reference (ex aliis, judgments no. 263 and no. 67 of 2022, no. 227 of 2010, no. 389 of 1989; Court of Cassation, Fifth Civil Section, judgments no. 6687 of 2023; 3 March 2017, no. 5381; 11 December 2012, no. 22577).
Nor has the Referring Panel addressed the aforementioned decisions of the Supreme Court which, at the time of the filing of the referral order now under examination, had already ruled on the tax in question in light of the pronouncements of the case law of the Court of Justice of the EU.
5.2.– The unambiguous indications of the latter and the convergent solutions adopted by the case law of the lower courts and of the Supreme Court should have led the judge a quo to disapply the intertemporal discipline that sanctioned the continued validity, for relations arising prior to 1 January 2021, of the sanctioning rule suspected of constitutional illegitimacy.
5.2.1.– According to the consolidated case law of the Court of Justice, the national judge has the obligation to guarantee the full effectiveness of European rules with direct effect, «disapplying, where necessary, on his own initiative, any conflicting provision of national legislation, even subsequent one, without having to request or await its prior removal through legislation or through any other constitutional procedure» (Court of Justice, judgment of 9 March 1978, in case 106/77, Amministrazione delle finanze dello Stato, point 24).
Also recently, the Court itself has returned to emphasize the centrality, in addition to the preliminary reference, aimed at guaranteeing full effectiveness to Union law and ensuring the useful effect of Article 267 TFEU, of the power to "disapply" the contrary national provision (Court of Justice of the EU, Grand Chamber, judgment of 24 October 2018, in case C-234/17, XC et al., point 44; Grand Chamber, judgment of 19 December 2019, in case C-752/18, Deutsche Umwelthilfe eV, point 42).
The Court of Justice has further specified that the failure to disapply a national provision considered to be in conflict with European law violates «the principles of equality between the Member States and of loyal cooperation between the Union and the Member States, recognised by Article 4, paragraphs 2 and 3, TEU, with Article 267 TFEU, as well as […] the principle of the primacy of Union law» (Court of Justice, Grand Chamber, judgment of 22 February 2022, in case C430/21, RS, point 88).
5.3.– This Court has also repeatedly stated that the national judge must give full and immediate implementation to the provisions of the European Union that have direct effect and not apply, in whole or even in part, the internal rules considered to be incompatible with them