ORDER NO. 108
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, 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
ORDER
in the proceedings concerning the constitutional legitimacy of Articles 1, paragraphs 4 and 5; 5; 10; 11; 26, paragraphs 15, 78, 79 and 80; 48; 55; 60 to 88; 90 to 92; 94, paragraphs 1 to 3; 95 to 110; 111, paragraphs 1 to 10; 112 to 115; 116, paragraphs 1 to 5, of the Regional Law of Sicily of February 22, 2023, No. 2 (Regional Stability Law 2023-2025), challenged by the President of the Council of Ministers through an appeal notified on April 29, 2023, filed with the Registry on May 2, 2023, registered under No. 17 of the 2023 appeals register and published in the Official Gazette of the Republic No. 21, first special series, of the year 2023.
Having considered the joinder of the Sicily Region;
having heard, at the public hearing of April 16, 2024, the Reporting Judge Angelo Buscema;
having heard the State Attorney Giammario Rocchitta for the President of the Council of Ministers and the attorney Nicola Dumas for the Sicily Region;
having deliberated in chambers on April 16, 2024.
Considering that, by the appeal indicated above (reg. ric. no. 17 of 2023), the President of the Council of Ministers, represented and defended by the State Attorney General, challenged, among others, Articles 26, paragraphs 78 to 80, 48, 55 and 116, paragraphs 1 to 5, of the Regional Law of Sicily of February 22, 2023, No. 2 (Regional Stability Law 2023-2025);
that Article 26, paragraphs 78 to 80, of the aforementioned Regional Law of Sicily No. 2 of 2023 authorizes the company Servizi ausiliari Sicilia (SAS) to initiate procedures for early retirement of personnel (paragraph 78), to enter into settlement agreements for the payment of all contractually foreseen and due entitlements, recognizing a one-off sum to the interested parties as a supplement to the end-of-service benefit (paragraph 79), authorizing, for the 2023 financial year, a maximum total expenditure of 360,000 euros (paragraph 80);
that these provisions, according to the appellant, would be in conflict with Article 81, third paragraph, of the Constitution since they would entail a new pension and welfare burden for public finances, as well as a continuous mandatory expenditure without indication of the expenditure at maturity, thus also violating Article 117, third paragraph, of the Constitution, in relation to Article 38, paragraph 1, of Legislative Decree 23 June 2011, No. 118 (Provisions concerning the harmonization of accounting systems and budget frameworks of Regions, local authorities and their bodies, pursuant to Articles 1 and 2 of Law 5 May 2009, No. 42), according to which "[r]egional laws that provide for expenditure of a continuous nature shall quantify the annual burden foreseen for each of the financial years included in the budget forecast and shall indicate the burden at maturity or, if it is not a matter of mandatory expenditure, may defer the quantification of the annual burden to the budget law", and Articles 14 and 17 of Royal Decree No. 455 of May 15, 1946, converted into Constitutional Law No. 2 of February 26, 1948 (Approval of the Statute of the Sicily Region);
that Article 48 of Regional Law No. 2 of 2023, in establishing the Center for the Restoration of Waterlogged Wood at the Regional Museum of Waterlogged Wood, would not provide for any financial coverage or quantification, over time, of the necessary financial burden, thus violating Articles 81, third paragraph, and 117, third paragraph, of the Constitution, the latter in relation to the interposing provision of Article 38 of Legislative Decree No. 118 of 2011 and Article 14, paragraph 1, letter n), of the special statute;
that Article 55 of Regional Law No. 2 of 2023 – which amends paragraph 9 of Article 36 of the Regional Law of Sicily of April 15, 2021, No. 9 (Programmatic and corrective provisions for the year 2021. Regional stability law), aimed at promoting the recruitment of persons engaged in socially useful work – would concern, in the opinion of the appellant, a procedural aspect (the elimination of the prior deliberation of the Regional Government) within the authorization procedure for budget variations provided for by Article 36 of Regional Law No. 9 of 2021, thus violating Articles 81, third paragraph, and 117, second paragraph, letter l), of the Constitution and Article 14, paragraph 1, letter n), of the special statute. Nevertheless, since the aforementioned Article 36 was declared unconstitutional by the judgment of this Court No. 84 of 2023, the new legislation introduced by Article 55 would also be unconstitutional;
that Article 116 of Regional Law No. 2 of 2023 – which establishes that: "1. For the purposes of implementing the measures referred to in Articles 1, 5, 10, 60, 61, 62, 63, 66, 67, 68, 69, 70, 71, 74, 76, 79, 81, 82, 84, 85, 92, 94 paragraph 3, 95, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, paragraphs 1, 3, 4, 5, 6, 7, 8, 9, and 10, 112, 113, 114 and 115, the Regional Government shall, within one hundred and twenty days of the CIPESS [Interministerial Committee for Economic Programming and Sustainable Development] decision allocating resources from the 2021-2027 Cohesion and Development Fund [FSC], initiate the relevant programming, after verifying the consistency of the measures with the management procedures, lines of action and objectives provided for by the relevant legislation" – which would have foreseen financial coverage from national resources (FSC 2021-2027) allocated to an unprogrammed section of the State budget, nor assigned to the administrations responsible for the Cohesion and Development Plan (PSC), would violate Article 81, third paragraph, for lack of adequate coverage, Article 117, second paragraph, letter e), in the area of "harmonization of public budgets" and third paragraph, with regard to "coordination of public finance", as it would not have taken into account the provisions laid down by the State regarding the objectives and methods of using FSC resources, Article 119, fifth paragraph, of the Constitution, because it would be in conflict with the rules governing the financing of interventions and the objective of equalization and guarantee, and Article 14, paragraph 1, letter n), of the special statute;
that, by document filed on June 6, 2023, the Sicily Region joined the proceedings requesting that the appeal be declared unfounded and consequently rejected;
that, on March 26, 2024, shortly before the hearing, the respondent filed a memorandum in which it pointed out that, after the filing of the appeal in which the present questions of constitutional legitimacy were raised, the Regional Law of Sicily of November 21, 2023, No. 25 (Various financial provisions. Amendments to regulations) was approved, Article 28, paragraph 4, of which repealed all the provisions subject to these proceedings;
that the regional defense, with the supplementary memorandum, produced in court note No. 10784 of February 15, 2024, with which the General Accounting Office of the Sicily Region certified that "the challenged provisions of Regional Law No. 2 of February 22, 2023, listed in the annex, with the exception of Articles 36, 38 and 48 [...], have not been applied in the meantime from an accounting point of view from the date of their enactment to the date of their repeal by Article 28, paragraph 4, of Regional Law No. 25 of November 21, 2023";
that, with the same memorandum, note No. 6476 of February 9, 2024, was also produced in court, with which the General Director of the Department of Cultural Heritage and Sicilian Identity certified, with reference to the challenged Article 48, that the same "has not been applied in the meantime";
that the regional defense, considering that both conditions required by consistent constitutional jurisprudence are met, namely the satisfaction of the *ius superveniens* and the lack of application *medio tempore* of the challenged provisions (judgments No. 268, No. 242, No. 240, No. 235 of 2022 and Order No. 55 of 2023 are cited), requested a ruling declaring the matter moot;
that, during the public hearing of April 16, 2024, the State Attorney General acknowledged the respondent's request, not contesting the lack of application of the challenged provision.
Considering that, during the present proceedings, Article 28, paragraph 4, of Regional Law No. 25 of 2023 repealed, with effect from November 24, 2023, pursuant to Article 30, paragraph 1, thereof, the provisions subject to these proceedings;
that on March 26, 2024, the respondent filed a supplementary memorandum requesting that the matter be declared moot, producing in court the notes of the General Accounting Office of the Sicily Region of February 15, 2024, No. 10784 and of the General Director of the Department of Cultural Heritage and Sicilian Identity of February 9, 2024, No. 6476, certifying that the challenged provisions have not been implemented during the period in which they were in force;
that, according to the consistent jurisprudence of this Court, the repeal of the challenged provision, if it has not been applied *medio tempore*, leads to the matter becoming moot (*ex plurimis*, judgments No. 200, No. 117 and No. 78 of 2020; orders No. 79 of 2024 and No. 101 of 2020);
that the Sicily Region has declared that the provisions subject to these proceedings concerning constitutional legitimacy have not been applied, producing the aforementioned notes, without the State Attorney General raising any objections in this regard;
that, therefore, the conditions exist to declare the matter moot with respect to the issues subject to these proceedings.
For These Reasons
THE CONSTITUTIONAL COURT
reserving separate rulings on the further questions of constitutional legitimacy raised by the appeal indicated above;
1) declares the matter moot with respect to the questions of constitutional legitimacy of Article 26, paragraphs 78 to 80, of the Regional Law of Sicily of February 22, 2023, No. 2 (Regional Stability Law 2023-2025), raised, with reference to Articles 81, third paragraph, and 117, third paragraph, of the Constitution, the latter in relation to Article 38, paragraph 1, of Legislative Decree 23 June 2011, No. 118 (Provisions concerning the harmonization of accounting systems and budget frameworks of Regions, local authorities and their bodies, pursuant to Articles 1 and 2 of Law 5 May 2009, No. 42), and to the powers conferred on the Sicily Region by Articles 14 and 17 of Royal Decree No. 455 of May 15, 1946, converted into Constitutional Law No. 2 of February 26, 1948 (Approval of the Statute of the Sicily Region), by the President of the Council of Ministers through the appeal indicated above;
2) declares the matter moot with respect to the questions of constitutional legitimacy of Article 48 of Regional Law No. 2 of 2023, raised, with reference to Articles 81, third paragraph, and 117, third paragraph, of the Constitution, the latter in relation to Article 38 of Legislative Decree No. 118 of 2011, and Article 14, paragraph 1, letter n), of the special statute, by the President of the Council of Ministers through the appeal indicated above;
3) declares the matter moot with respect to the questions of constitutional legitimacy of Article 55 of Regional Law No. 2 of 2023, raised, with reference to Articles 81, third paragraph, 117, second paragraph, letter l), of the Constitution and 14, paragraph 1, letter n), of the special statute, by the President of the Council of Ministers through the appeal indicated above;
4) declares the matter moot with respect to the questions of constitutional legitimacy of Article 116, paragraphs 1 to 5, of Regional Law No. 2 of 2023, raised, with reference to Articles 81, third paragraph, 117, second paragraph, letter e), and third paragraph, of the Constitution, and 14, paragraph 1, letter n), of the special statute, by the President of the Council of Ministers through the appeal indicated above.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on April 16, 2024.
Signed:
Augusto Antonio BARBERA, President
Angelo BUSCEMA, Reporter
Roberto MILANA, Director of the Registry
Filed with the Registry on June 18, 2024