JUDGMENT NO. 107

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 rendered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy "of Article 78, third paragraph, of the Civil Code, implicitly referred to by Article 64, paragraph 4,” of Legislative Decree No. 267 of 18 August 2000 (Consolidated Act on the Organisation of Local Authorities), brought before the Court by the Court of Cassation, First Civil Section, in the proceedings between A. S., L. C., and others, by order of 23 June 2023, registered at No. 120 of the 2023 Register of Orders and published in the Official Gazette of the Republic No. 39, first special series, of the year 2023, the hearing of which was set for the Chamber of Counsel meeting of 19 March 2024.

Having heard Judge Maria Rosaria San Giorgio, Rapporteur, at the Chamber of Counsel meeting of 20 March 2024;

Having deliberated at the Chamber of Counsel meeting of 20 March 2024.

Facts

1. – By order of 23 June 2023, registered at No. 120 of the 2023 Register of Orders, the Court of Cassation, First Civil Section, raised a question of constitutional legitimacy, with reference to Articles 2, 3 and 51 of the Constitution, of Article 78, third paragraph, of the Civil Code, "implicitly referred to by Article 64, paragraph 4, of the Consolidated Act on the Organisation of Local Authorities, insofar as it provides that ‘affinity does not cease upon the death, even without offspring, of the spouse from whom it derives, except for certain specifically determined effects. It ceases if the marriage is declared null and void, subject to the effects referred to in Article 87, No. 4’, thus providing that the bond of affinity remains for the relative of the divorced spouse, despite the marital relationship from which such bond was determined being now dissolved, and preventing the latter’s participation in the municipal council following designation by the former spouse of a relative.”

1.1. – The referring Court prefaces, as regards the facts, that the main proceedings were brought by two council members of the Municipality of C., for a declaration of incompatibility of A. S. from being a member of the Municipal Council and holding the office of Deputy Mayor and Councillor of the same Municipality, by reason of the bond of affinity with the Mayor, whose sister he had married, subsequently divorcing before the appointment (but, in other passages of the order, it refers instead that the appointee is the brother of the Mayor's ex-wife).

The ordinary Court of Avellino dismissed the appeal by order of 16 June 2020. The Court of Appeal of Naples, having received the appeal, overturning the first decision, declared the incompatibility pursuant to Article 64, paragraph 4, of Legislative Decree No. 267 of 18 August 2000 (Consolidated Act on the Organisation of Local Authorities).

According to the Court of Appeal, the clear literal wording of Article 78, third paragraph, of the Civil Code reconstructs the bond of affinity as a relationship which, established following a valid marriage, does not cease with the end of the marital bond, but only in the event that the invalidity of the marriage is ascertained.

The provision was not amended by Law No. 898 of 1 December 1970 (Regulation of cases of dissolution of marriage), which introduced divorce, nor by subsequent provisions, demonstrating that the relationship of affinity does not cease following the termination of the marriage from which it arose, nor in the event of the death of one of the two spouses, nor in the case of a pronouncement of the cessation of the civil effects of the marriage, a case in which the marital bond ceases with ex nunc effect.

The Court of Appeal also considered the manifest unfoundedness of the question of constitutional legitimacy of Article 78 of the Civil Code, with reference to Articles 2, 3 and 51 of the Constitution, raised before it, because it was poorly formulated, insofar as access to elective offices and public offices was not directly affected by the provision suspected of constitutional illegitimacy, which contained the mere definition of the relationship of affinity, but rather by Article 64 of the aforementioned Consolidated Act on Local Authorities, which referred to the former without exceptions.

1.2. – The Court of Cassation therefore points out that in the legitimacy proceedings, the introductory appeal was based on two grounds. First, the Court of Appeal’s judgment was challenged for violation of the law, pursuant to Article 360, first paragraph, No. 3), of the Code of Civil Procedure, insofar as the court of merit, in considering the appeal well-founded, had given the provision under application a strictly literal and not logical-systematic interpretation through its adaptation to the law on divorce.

From a different perspective, absent in the Court of Appeal’s judgment and the subject of the appeal to the Court of Cassation, divorce shares with nullity the evidence that the bonds of affinity that have been established between each spouse and the family of the other spouse must cease, de facto and de iure, in both cases, with the adoption of the respective pronouncements.

This would be confirmed, according to the appellant, both in the contents of Article 87, first paragraph, No. 4), of the Civil Code, where it is provided, by way of derogation from the general principle of the cessation of the bond of affinity in the event of divorce, that for cases of affinity in the direct line, the impediment to marriage remains in cases of nullity and dissolution or cessation of the civil effects of the marriage; and, by way of a contrario reasoning, by Article 87, first paragraph, No. 5), of the Civil Code, which, concerning the marital impediment between collateral relatives, does not provide, in confirmation of the general rule, for the persistence of the impediment after a divorce decree.

The second ground for appeal alleged the error of assessment committed by the Court of Appeal in considering manifestly unfounded the question of constitutional legitimacy raised by the appellant, who intended to challenge not Article 64 of the Consolidated Act on Local Authorities, a provision aimed at protecting the impartiality of public administration, but Article 78, third paragraph, of the Civil Code, when interpreted as excluding divorce as a cause for the cessation of the relationship of affinity, thus resulting in a discriminatory provision as regards participation in public offices and elective offices, by reason of the personal status of the interested party.

1.3. – In the light of this, given the significant relevance of the raised incidental issue to the ongoing proceedings, due to the direct consequence on the outcome of the same that the recognition of the persistence of the relationship of affinity between the mayor and the divorced spouse of the relative of the former would have, the Court of Cassation doubts the constitutional legitimacy of Article 64, paragraph 4, of the Consolidated Act on Local Authorities "as integrated by Article 78, paragraph 3, of the Civil Code”.

1.3.1. – The a quo court observes that Article 64, paragraph 4, of the Consolidated Act on Local Authorities – in providing that the spouse, ascendants, descendants, relatives and relatives up to the third degree of the mayor and the president of the Provincial Council may not be part of the respective Council nor be appointed representatives of the municipality and the province – aims to avoid the risk of a mixture between the public interests of the territorial authority that the mayor has the obligation to guarantee and the private interests of his or her close relatives, thus ensuring objectivity and even-handedness in discretionary administrative choices.

The referring court specifies that the absence of any further specific indication contained in Article 64 cited implies a reference to the general rules provided for in Article 78 of the Civil Code, the third paragraph of which, which has remained unchanged over time, in regulating the cessation of the relationship of affinity as a consequence of events that affect the marital bond from which the former derives, does not take into account Law No. 898 of 1970.

This would justify the evidence that the provision regulates the two only different hypotheses of the death of the spouse, upon the occurrence of which the bond of affinity does not cease, and the nullity of the marriage, in respect of which the provision provides, instead, that the derived bond lapses.

Not only – observes the a quo court – has the legislature never amended the provision of the Civil Code, but, on the contrary, it has introduced a provision in the Consolidated Act on Local Authorities, Article 64 cited, in the version amended by Article 7, paragraph 1, letter b-ter), of Legislative Decree No. 80 of 29 March 2004 (Urgent provisions concerning local authorities. Extension of deadlines for legislative delegations), converted, with amendments, into Law No. 140 of 28 May 2004, which, although adopted many years after the entry into force of the law on divorce, does not consider the consequences of the dissolution of the marital bond, of which affinity should also suffer the effects.

1.3.2. – Within the indicated normative framework, the Court of Cassation raises the illustrated question of constitutional legitimacy in the alleged inconsistency with the constitutional framework of the persistence of the bond of affinity beyond the pronouncement of dissolution or cessation of the effects of the marital relationship from which the former derives.

The different treatment reserved to the declaration of nullity of the marriage compared to its dissolution ends up, according to the a quo court, by regulating in an unjustifiably dissimilar manner, in violation of the principle of formal equality provided for in Article 3 of the Constitution, two homogeneous situations.

The "evident similarity from the effective point of view” of the declaration of nullity of the marriage and the pronouncement of divorce, both marked by "judicial proceedings aimed at demolishing the marital bond” and by the shared nature of an act contrary to the continuation of married life – despite their distinct impact on the "marriage-relationship” and the "marriage-contract” – supports for the referring court the doubt of constitutional legitimacy concerning the unjustified disparity of treatment, which would also translate into a violation of Articles 2 and 51 of the Constitution. The combined provision of the challenged provisions would, in fact, prevent the relative, whose relationship is determined by a marital bond that has now ceased, from exercising their right to access a public office on equal terms, resulting in a violation of the inviolable right to passive suffrage (Articles 2 and 51 of the Constitution).

The referring Court recalls that the right in question may be subject to restrictions only to the extent strictly necessary to protect another constitutionally protected interest, according to necessity and reasonable proportionality (reference is made to the judgment of this Court No. 141 of 1996), for analogous categories where it is not possible to doubt for one and not for the other "the impartiality of subjects who find themselves in substantially identical situations”.

1.3.3. – In the analysis carried out, the a quo court finally considers the principle of reasonableness (Article 3 of the Constitution) to be violated, in the non-correspondence with social reality of a category of "relatives of the divorced person” destined to assert itself in an indissoluble way, even though originating from a relationship, such as the marital one, which according to the legal system has a dissoluble nature, thus perpetuating, "without meaning”, a bond that finds its own meaning, instead, as a social projection of the original relationship, with the consequence that all the attributive and preclusive effects remain for the relatives but not for the spouses.

The mayor of a municipal administration could thus appoint the former spouse to the Council, but not the relative of the latter, who is nonetheless found to derive the bond of affinity from the marriage that has now ceased.

2. – Finally, the referring Court considers that it cannot resolve the issue through "a constitutionally oriented interpretative operation of the legislation to be applied and, specifically, of Article 78, paragraph 3, of the Civil Code, to which Article 64, paragraph 4, of the Consolidated Act on Local Authorities implicitly refers”.

The opposing theses asserted by the court of first instance and the court of appeal would support the assertion, which would be in specular correspondence with the theories with which doctrine and jurisprudence have confronted themselves to establish to which of the two hypotheses, death of the spouse or nullity of the marriage, the case of divorce should be approached, by analogy.

The referring court recalls the judgment of the Court of Cassation, First Civil Section, 7 June 1978, No. 2848, in which it was considered that divorce should be approached to death, both institutes operating with ex nunc effect on the marital bond, and then recalls, to the contrary, the jurisprudence of the courts of merit (reference is made to the judgments of the ordinary Court of Grosseto of 9 October 2003 and the ordinary Court of Milan, ninth civil section, 19 July 2019, [recte: 2017]), which instead approached divorce to the declaration of nullity of the marriage, in the emphasised common will of the spouses to disintegrate the marital bond, considering that from this it should "be argued that the affinity ceases with the disappearance of the marriage”.

The a quo court therefore points out the creative nature of the updating activity of the provision to which the interpreter would be called upon in following the analogical reasoning to integrate the identified legislative gap, for a purpose extraneous to the tasks of nomofilachia attributed to the Court of Cassation.

3. – There has been no appearance of parties, nor has the President of the Council of Ministers intervened in the proceedings.

Points of Law

1. – The Court of Cassation, First Civil Section, doubts, with reference to Articles 2, 3 and 51 of the Constitution, the constitutional legitimacy "of Article 78, third paragraph, of the Civil Code, implicitly referred to by Article 64, paragraph 4, of the Consolidated Act on Local Authorities, insofar as it provides that ‘affinity does not cease upon the death, even without offspring, of the spouse from whom it derives, except for certain specifically determined effects. It ceases if the marriage is declared null and void, subject to the effects referred to in Article 87, No. 4’, thus providing that the bond of affinity remains for the relative of the divorced spouse, despite the marital relationship from which such bond was determined being now dissolved, and preventing the latter’s participation in the municipal council following designation by the former spouse of a relative.”

2. – The question was raised in the course of proceedings brought on the appeal filed by the former divorced spouse of the Mayor’s sister of the Municipality of C. – who became a member of the Municipal Council at the Mayor’s designation, who had also appointed him as his representative as Deputy Mayor – against the decision of the Court of Appeal of Naples which, overturning the first-instance judgment, had ascertained the incompatibility with holding the indicated office.

3. – According to the referring Court, Article 64, paragraph 4, of the Consolidated Act on Local Authorities and Article 78, third paragraph, of the Civil Code, the latter implicitly referred to by the former provision, would not regulate the effects of the divorce decree on the bond of affinity. The legislature, in fact, has not amended, following the introduction of Law No. 898 of 1970, the regulation of Article 78 cited which, as a general rule, regulates the effects that the death of the spouse and the declaration of nullity of the marital bond from which the relationship of affinity derives have on the latter.

3.1. – The a quo court argues, in support of the parameters in whose violation the formulated doubt of constitutional legitimacy arises, the unjustified disparity between the treatment reserved to relatives in cases where the marital relationship has been dissolved or ceased following a divorce decree compared to that recognized to the same relatives whose underlying marital bond has instead lapsed following the judgment of nullity of the marriage.

Nullity and divorce, in fact, for the referring court, share the common nature of "an act contrary to the source of the affinity relationship”, and are both based "on an interest contrary to the continuation of married life”. But, while in the case of nullity "the lapse of the marital bond entails the cessation of the relationship of affinity and enables the (now former) relative to hold public office”, access to that office is "precluded to the relative of the divorced person, whose bond remains, although the marital relationship from which it derives has also lapsed”, in contrast with the principle of equality.

3.2. – The referring Court further alleges the violation of Articles 2 and 51 of the Constitution, for the infringement of the right of access to a public office on equal terms, despite the right to passive suffrage being among the inviolable ones.

3.3. – Finally, the a quo court excludes the feasibility of a constitutionally oriented interpretation, which, instead of identifying the provision "for the unforeseen case”, would lead the interpreter, by analogy, to "update” the contents of the provision.

4. – A brief summary of the normative context within which the doubt of constitutional legitimacy is raised is necessary, preliminarily.

4.1. – Article 78 of the Civil Code, included in Title V (Of kinship and affinity) of Book I of the Civil Code and headed "Affinity”, in the first two paragraphs, provides that "[a]ffinity is the bond between one spouse and the relatives of the other spouse” and that "[i]n the line and degree in which someone is a relative of one of the spouses, he or she is a relative of the other spouse”.

In the third paragraph, the same provision states that "[a]ffinity does not cease upon the death, even without offspring, of the spouse from whom it derives, except for certain specifically determined effects” and, further, that that bond instead "[c]eases if the marriage is declared null and void, subject to the effects referred to in Article 87, No. 4”.

With respect to the events of the "death, even without offspring, of the spouse” and the declaration of nullity of the marriage, the provision sets out the fate of the relationship of affinity that derives from the marital bond, according to a regime that has a general rule and its exceptions.

If death is accompanied by the persistence of the bond of affinity, the same does not happen in the case of a declaration of nullity of the marriage, where the genetic defect of the act entails the retroactivity of the same, except, always, in both cases, for specific derogations.

4.2. – The third paragraph of Article 78 of the Civil Code, however, does not regulate the fate of the relationship of affinity in cases of dissolution or cessation of the civil effects of the marriage.

Article 149 of the Civil Code, headed "Dissolution of marriage”, in its original wording provided that the marriage was dissolved "by the death of one of the spouses”.

This was the case due to the indissolubility of the bond provided for by the Civil Code.

With Law No. 898 of 1970, the legislature did not organically regulate the repercussions that the introduction of the institution of divorce would have had within family law. It was only with the subsequent Law No. 151 of 19 May 1975 (Reform of family law) that the relative amendments to the system were made, albeit for specific and limited interventions.

5. – It is in this context that the legislature inserted into Article 149 of the Civil Code the provision according to which the marriage is dissolved, in addition to the death of one of the spouses, also "in the other cases provided for by law” and, further, that "the civil effects of the marriage celebrated with a religious ceremony, pursuant to Article 82 or Article 83, and regularly registered” cease, in addition to the death of one of the spouses, also "in the other cases provided for by law”.

Divorce, with the amendment introduced by Article 5 of Law No. 151 of 1975 into Article 87, first paragraph, No. 4), of the Civil Code, determines the persistence of the impediment to contract a new marriage deriving from the relationship of affinity in the direct line, in the event of dissolution or cessation of the civil effects of the underlying marital bond.

5.1. – Nor has Article 78 of the Civil Code, in its third paragraph, been updated following the introduction of divorce into the legal system.

The provision in question does not, in fact, contain, in its unchanged contents, a rule of a general nature, capable of accounting for (and regulating) the relationship between divorce and the bond of affinity, and may rather be attributed to it, in the significant silence on the point, the nature of a mere reference provision.

The events, expressly provided for, of the death of the spouse and the declaration of nullity of the marriage, textually not referable to divorce, may however serve as categories of orientation and comparison between provisions for that analogy legis (Article 12, second paragraph, of the preliminary provisions to the Civil Code) that allows the interpreter to identify the applicable rule by approaching, as regards the effects and in the identity of ratio, the case to be regulated to that already regulated.

5.2. – In these terms, doctrine and jurisprudence have operated, which, to make up for the uncertainties and shortcomings of the legislature in laying down the regulation of the dissolution and cessation of the effects of the marriage with respect to the bond of affinity, have approached divorce now to the death of the other spouse, now to the declaration of nullity of the marriage, subject to the respective derogations.

Thus, on the one hand, the common ex nunc operation of divorce and the effects of death (according to the perspective and solution adopted in the only previous case in terms of case law: Cass., judgment No. 2848 of 1978) has been highlighted, safeguarding the historical and legal reality of the marriage – in the asserted taxability of the different provision of the cessation of affinity following the declaration of nullity of the marriage – and, on the other hand, in approaching divorce to the latter, the shared will of the spouses to disintegrate the relative communion, for an outcome mediated, in both cases, by the judge’s pronouncement.

6. – In the context outlined, it is necessary to proceed, preliminarily, to the correct identification of the normative perimeter within which the raised doubt of constitutional legitimacy is located.

6.1. – Legislative Decree No. 267 of 2000, in Article 64, headed "Incompatibility between municipal and provincial councillor and councillor in the respective council”, in paragraph 4, as replaced by Article 7, paragraph 1, letter b)-ter, of Legislative Decree No. 80 of 2004, as converted, provides that "[t]he spouse, ascendants, descendants, relatives and relatives up to the third degree, of the mayor or the president of the Provincial Council, may not be part of the respective Council nor be appointed representatives of the municipality and the province”.

According to the presentation of the a quo court, Article 78, third paragraph, of the Civil Code and Article 64, paragraph 4, of the Consolidated Act on Local Authorities define, respectively, the general rule and the specific rule, derived by application from the former, according to which the relationship of affinity is declined, in terms of permanence or cessation, in the event of dissolution or cessation of the civil effects of the marital bond from which it derives, in the matter of incompatibilities with political appointments in local authorities.

6.2. – In this case, however, the review of constitutionality must be conducted in such a way as to realign the operative part of the referral order with the more articulated contents of the reasoning, where the suspicion of constitutional illegitimacy is considered as not affecting Article 78, third paragraph, of the Civil Code, but Article 64, paragraph 4, of the Consolidated Act on Local Authorities, as a specific declination of a rule that exists only in individual, and different, contexts of reference.

This is, however, an operation that does not constitute a novum in constitutional jurisprudence (judgment No. 176 of 1992).

6.3. – Moreover, the different areas of reference, within which the relationship of affinity plays its role, from time to time, of attribution or limitation of the right, corresponds to a balancing act carried out by the legislature between the status of relative and the related positions of favour or disfavour.

Suffice it to consider, by way of example, the matter of impediments to marriage, in which the Civil Code distinguishes between affinity in the direct and collateral line (Article 87, first paragraph, for the cases, respectively, referred to in numbers 4 and 5 of the Civil Code), then expressly providing only in the first case for the persistence of the prohibition even if the affinity derives from a marriage declared null and void, or dissolved, or for which the cessation of civil effects has been pronounced.

7. – As clarified, the question of constitutional legitimacy is well-founded, with reference to all the parameters invoked.

7.1. – As constantly affirmed by this Court, Article 51 of the Constitution is to be referred to "the sphere of inviolable rights enshrined in Article 2 of the Constitution” (judgment No. 141 of 1996, point 3 of the Points of Law) as "an essential aspect of citizens’ participation in democratic life” (judgment No. 141 cited, point 5 of the Points of Law) and "plays the role of a general guarantee of a fundamental political right, recognized to every citizen” (judgment No. 60 of 2023, point 7 of the Points of Law which refers to judgment No. 277 of 2011 and the precedents referred to in judgments No. 25 of 2008, No. 288 of 2007 and No. 539 of 1990).

7.2. – In this context, it has been further specified that "restrictions on the content of an inviolable right are admissible only to the extent indispensable for the protection of other interests of constitutional rank, and this on the basis of the rule of necessity and reasonable proportionality of such restriction” (again judgment No. 141 cited, point 3 of the Points of Law).

Where the right to passive suffrage is to be combined with the constitutional interests protected by Article 97, second paragraph, of the Constitution, which entrusts the legislature with the task of organizing public offices in such a way as to guarantee the good functioning and impartiality of the administration, the grounds for incompatibility with office, which constitute one of the declinations of the right to passive suffrage, are constitutionally legitimate insofar as they do not introduce differences in treatment between homogeneous categories of subjects that are manifestly unreasonable and disproportionate to the end pursued.

7.3. – It is clearly understood that limiting, in the cases in question, access to a political public office, such as participation, as a member, in the Council of a municipality, and the appointment to an office of representation of the municipality, such as the appointment as deputy mayor, with the consequent assertion of the relative cause of incompatibility, in the balancing act between the care of the impartial action of public administration and the protection of the inviolable right to suffrage, is in contrast with the canons of proportion and reasonableness.

The manifest unreasonableness of this provision emerges from the fact that the same, in its permanent assertion, is completely detached from the fate of the reference relationship, and from the difference with respect to the situation of the former spouse of the mayor, for whom the incompatibility does not exist.

8. – The unconstitutionality of Article 64, paragraph 4, of Legislative Decree No. 267 of 2000, must therefore be declared, insofar as it provides that relatives up to the third degree of the mayor or the president of the provincial council may not be part of the council, nor be appointed representatives of the municipality and the province, even when the affinity derives from a marriage in respect of which the judge has pronounced, by final judgment, the dissolution or cessation of the civil effects for one of the causes provided for in Article 3 of Law No. 898 of 1970.

For these Reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Article 64, paragraph 4, of Legislative Decree No. 267 of 18 August 2000 (Consolidated Act on the Organisation of Local Authorities), insofar as it provides that relatives up to the third degree of the mayor or the president of the provincial council may not be part of the council, nor be appointed representatives of the municipality and the province, even when the affinity derives from a marriage in respect of which the judge has pronounced, by final judgment, the dissolution or cessation of the civil effects for one of the causes provided for in Article 3 of Law No. 898 of 1 December 1970 (Regulation of cases of dissolution of marriage).

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 20 March 2024.

Signed:

Augusto Antonio BARBERA, President

Maria Rosaria SAN GIORGIO, Rapporteur

Roberto MILANA, Director of the Registry

Filed with the Registry on 18 June 2024