JUDGMENT NO. 121
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 VIGANΓ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco DβALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Articles 144 and 146 of the Decree of the President of the Republic of May 30, 2002, No. 115, containing the "Consolidated text of legislative and regulatory provisions concerning court costs (Text A)", brought before the Court by the delegated judge of the Verona Ordinary Court, Second Section, in the controlled liquidation proceedings against Settimo Costruzioni srl, by order of November 30, 2023, registered under No. 10 of the 2024 orders register and published in the Official Gazette of the Republic No. 7, First Special Series, of the year 2024.
Having heard the Judge Rapporteur, Giulio Prosperetti, at the deliberation session of May 21, 2024;
Having deliberated at the deliberation session of May 21, 2024.
Facts
1. β The delegated judge of the Verona Ordinary Court, Second Section, by order of November 30, 2023 (Reg. Ord. No. 10 of 2024), raised a question of constitutional legitimacy of Article 144 of the Decree of the President of the Republic of May 30, 2002, No. 115, containing the "Consolidated text of legislative and regulatory provisions concerning court costs (Text A)", insofar as it does not provide that, even in proceedings involving controlled liquidation proceedings, if the delegated judge certifies that there are no assets available to cover the costs, the controlled liquidation procedure is considered eligible for legal aid, and of Article 146 of the same DPR No. 115 of 2002, insofar as it does not provide for its applicability to said procedure, from the date of the opening judgment to that of the closing judgment, due to the incompatibility of the aforementioned provisions with Articles 3 and 24 of the Constitution.
2. β The referring judge reports having granted the request for authorization from the liquidator of the controlled liquidation procedure of a construction company to constitute itself in the appeal proceedings against the judgment opening the aforementioned procedure, having declared the absence of assets, but the problem arises since this declaration does not allow the admission of the procedure to legal aid, given that the combined provisions of Articles 144 and 146 of DPR No. 115 of 2002 only concern the judicial liquidation procedure.
3. β The referring court considers this distinction unreasonable, since the controlled liquidation procedure and the judicial liquidation procedure share the same nature; moreover, in this case, being a limited liability company, not even the appeal judge could have ordered legal aid.
4. β As regards its legitimacy to raise a question of constitutional legitimacy, the referring court observes that both procedures presuppose a decision-making context attributable to a judgment, since both Article 128 of Legislative Decree No. 14 of January 12, 2019 (Code of Corporate Crisis and Insolvency pursuant to Law No. 155 of October 19, 2017), for judicial liquidation, and Article 274 of the same legislative decree, for controlled liquidation, provide that the delegated judge authorizes the exercise of actions or defense in a trial.
4.1. β On the lack of manifest unfoundedness, it observes that, within the framework of controlled liquidation, the exercise of actions and defense is functional to the interests of the creditors, as is the case in judicial liquidation; however β in the case of a lack of assets β Articles 144 and 146 of DPR No. 115 of 2002 only provide for the latter's admission to legal aid, with strictly interpreted provisions, not susceptible to analogical application, as they affect the public budget.
4.2. β Admission to legal aid would not even be conceivable pursuant to Articles 124 and 126 of DPR No. 115 of 2002, concerning the admission of a natural or legal person, since controlled liquidation would not be comparable to them and the ordinary procedure would end up conditioning the competence to authorize the action, which only belongs to the delegated judge.
4.3. β Indeed, it is precisely the competence of the delegated judge that would justify the ex lege admission to state-funded legal aid pursuant to Article 144 of DPR No. 115 of 2002; in fact, in the case of judicial liquidation, the rule would have anticipated the assessment of the lack of manifest unfoundedness of the judicial initiative at the time of the authorization to litigate issued by this body, so as to automatically lead to the admission to legal aid upon the declaration of lack of assets.
4.4. β The failure to extend this provision to controlled liquidation would entail a violation of the judicial protection of rights pursuant to Article 24 of the Constitution; it would be unreasonable, since controlled liquidation would be prevented from achieving its objective of better satisfying creditors; and it would entail unjustified disparate treatment since the possibility of access to legal aid is guaranteed to the different judicial liquidation procedure, under the jurisdiction of the delegated judge.
5. β As regards relevance, the referring court observes that, in the absence of an additive ruling, the lawyer appointed to defend the controlled liquidation procedure cannot see his or her fees paid by the treasury, nor can any expenses provided for in Article 146, paragraph 2, of DPR No. 115 of 2002 be booked as a debit.
6. β Therefore, the referring court requests that the provisions provided for the "judicial liquidation" procedure pursuant to Articles 144 and 146 of DPR No. 115 of 2002 be extended to "controlled liquidation".
7. β The President of the Council of Ministers did not intervene in the proceedings.
Points of Law
1. β The delegated judge of the Verona Court, Second Section, raised a question of constitutional legitimacy of Article 144 of DPR No. 115 of 2002, insofar as it does not provide for the admission to legal aid of the controlled liquidation procedure when the delegated judge has authorized the constitution in court and has certified the lack of assets for expenses, and of Article 146 of the same DPR No. 115 of 2002, insofar as it does not provide for the booking as a debit of the expenses of the controlled liquidation procedure; the questions are raised with reference to Articles 24 and 3 of the Constitution for violation of the right of defense and for the unreasonableness of the provisions, which would not allow the procedure to achieve the objective of better satisfying creditors and would entail an unjustly differentiated treatment compared to the provisions for the judicial liquidation procedure, which is analogous, in structure and functions, to the controlled liquidation procedure.
2. β The regulatory framework concerning the institution of legal aid is inspired by the principle of social solidarity, whereby the burden of the non-ΠΈΠΌΡΡΠΈΡ defender's fee is borne by the entire community.
2.1. β The relevant provisions are contained in Part III of DPR No. 115 of 2002 on court costs, whose Title IV specifically refers to civil, administrative, accounting and tax proceedings, while Title V refers to particular cases, among which there is the trial in which a bankruptcy is a party.
Access to legal aid requires a state of non-ΠΈΠΌΡΡΠΈΡ , consisting of taxable income not exceeding β¬12,838.00, established by the decree of May 10, 2023 (Adjustment of income limits for admission to legal aid) and, for proceedings other than criminal proceedings, the lack of manifest unfoundedness of the claim asserted, so that, pursuant to Article 122 of DPR No. 115 of 2002, the application of the non-ΠΈΠΌΡΡΠΈΡ must be accompanied, under penalty of inadmissibility, by the indication of the statements of fact and law useful to assess the claim and the evidence to be used.
The ordinary procedure provides that the application for admission to legal aid is sent to the Bar Council of the place where the competent court is located, which decides provisionally and in advance, subject to final confirmation, which is provided by the magistrate, who is also competent for the liquidation of the fee.
The party admitted to legal aid in civil proceedings may choose a lawyer of their choice from among the lawyers registered in special lists and benefits from the system of booking expenses as a debit or recording them for future reference, for the purpose of any subsequent recovery (Article 3, paragraph 1, letter s, of DPR No. 115 of 2002).
2.2. β The expense items booked as a debit are those referred to in Article 131 of DPR No. 115 of 2002, namely the expenses for the unified contribution, those for stamp duty, registration duty, mortgage duty and cadastral duty, the fixed expenses for notifications at the request of the office in civil proceedings and copying fees.
3. β In the event that bankruptcy (now judicial liquidation) is a party to the proceedings, admission to legal aid does not follow the aforementioned procedure, but, as a result of the provision of Article 144 of DPR No. 115 of 2002, it takes place automatically, following the certification, contained in the decree authorizing action or defense in court, whereby the delegated judge declares that the necessary money for expenses is not available.
3.1. β Indeed, with the judicial liquidation procedure, which replaced the original bankruptcy through the Code of Corporate Crisis and Insolvency, the legislator intended to remedy a possible phenomenon of corporate life, the state of crisis and insolvency, to guarantee the debtor's orderly exit from it and to be reinstated in the economic and social circuit, while ensuring that creditors realize their best interests, respecting the par condicio creditorum.
3.2. β The delegated judge exercises supervision and control over the procedure and, since it aims at the liquidation of all assets, not only through the sale of the debtor's assets, but also through the recovery of credits, compensation and recovery actions, it may be necessary for the judge to authorize the curator who administers the debtor's assets to appear in court as plaintiff or defendant (Article 123 of the Corporate Crisis Code).
Regarding the nature of this authorization, the explanatory report to the Code of Corporate Crisis and Insolvency clarified that it "presupposes a check on the appropriateness of the initiative both in terms of the validity of the claim and in terms of the presumed usefulness, in order to avoid initiatives, even if valid from a legal point of view, that do not bring real benefits to creditors".
It, therefore, includes an assessment of the lack of manifest unfoundedness, similar to that required by the ordinary procedure for admission to state-funded legal aid, which is carried out by the delegated judge and which, if positive and accompanied by a declaration of lack of assets, entails automatic admission to legal aid.
4. β This automatism, however, is only provided for judicial liquidation and not also for the controlled liquidation procedure, although the latter falls within the category of insolvency proceedings and also finds its current systematic location within the Code of Corporate Crisis and Insolvency, where the previous provisions on the liquidation of the assets of the over-indebted debtor, pursuant to Law No. 3 of January 27, 2012 (Provisions concerning usury and extortion, and the settlement of over-indebtedness crises), have been incorporated.
4.1. β Compared to judicial liquidation, controlled liquidation is a minor procedure, but with an equivalent structure; in fact, both are aimed at the liquidation of the debtor's assets and the satisfaction of the creditor class. However, while judicial liquidation concerns the medium-large commercial entrepreneur, for whose identification specific numerical and quantitative thresholds are provided for by law, controlled liquidation concerns the consumer, the professional, the agricultural entrepreneur, the smaller entrepreneur and any other debtor not subject to judicial liquidation.
The different subjective prerequisites, which entail a lower value of the assets involved and a limited complexity of the economic and financial situations involved, justify the simplification of certain aspects of the controlled liquidation provisions, which however share the fundamental substantive aspects with judicial liquidation.
4.2. β In fact, both procedures provide for the dispossession of the debtor of his or her assets and the loss of his or her procedural legitimacy and implement the formal and substantive concurrence of creditors, who cannot initiate or continue individual enforcement or precautionary actions on the assets included in the procedure and who must assert their claims only during the formation of the liabilities schedule, in compliance with the principle of par condicio.
In both procedures, moreover, it is provided that the delegated judge may authorize the exercise of an action or defense in court, if the claim is not manifestly unfounded and is useful for acquiring the patrimonial assets.
5. β The questions are admissible and are well-founded on their merits.
6. β As regards admissibility, the legitimacy of the referring court in the constitutional incident must be considered, since this Court has repeatedly clarified that the orders by which the judge decides whether or not legal aid is granted have a judicial nature, having "as their object the ascertainment of the existence of a right, moreover with a constitutional basis" (Judgment No. 80 of 2020).
Furthermore, it has been stated that "[t]he decision on legal aid is different and independent from that concerning the merits of the dispute, which makes it possible to adopt it "at any time [...] and, therefore, both before the case reaches judgment and after the final judgment" (Judgment No. 157 of 2021).
The referring court could, therefore, examine whether or not legal aid was due even after having authorized the constitution in court of the controlled liquidation procedure and having certified the lack of assets for expenses, and could raise the question of constitutional legitimacy, complaining about the lack of automatic legal admission of the procedure subject to its supervision and control.
7. β Furthermore, the question is relevant, since the referring court has authorized the constitution of the procedure in the appeal proceedings; indeed, the referring court considers it unreasonable that the legislator has not completely assimilated the controlled liquidation procedure to the judicial procedure where, in fact, it is the delegated judge who, having ascertained that the liquidation has no capacity, merely declares it, the procedure being automatically admitted to legal aid.
In the controlled liquidation procedure, however, it is the court of the case, according to the general rules, that must ascertain and, consequently, admit legal aid.
7.1. β However, in this case, being an srl, this entity is excluded by law from legal aid in the cases assimilated by Article 119 of DPR No. 115 of 2002 to the controlled liquidation of a natural person; in fact, the only entities that can ordinarily benefit from legal aid are non-profit associations that do not carry out economic activities, while limited liability companies are excluded from this list.
Since, therefore, the appointed lawyer, even if registered on the list of court-appointed lawyers, cannot be paid pursuant to the legal aid regulations as a lawyer for an entity not included in Article 119 of the aforementioned DPR No. 115 of 2002, only the adjustment of the case in question to that of judicial liquidation can allow the judge of the controlled liquidation to declare the absence of assets with the automatic effect of admission to legal aid.
8. β The benefit of legal aid gives effect to Article 24, third paragraph, of the Constitution, which ensures that the indigent have the means to act and defend themselves before any jurisdiction, and to Article 3, second paragraph, of the Constitution, since it removes an economic obstacle to the principle of equality; however, the need to achieve a balance between these needs and that of containing public spending on justice (in this sense, Judgment No. 16 of 2018) means that legal aid does not apply equally to all trials and all situations.
Indeed, in this matter the legislator enjoys wide discretion, but with the limit of reasonableness, and this Court has considered the distinction justified in terms of the rules of access to legal aid only if correlated to the different characteristics and implications of the various proceedings (Judgment No. 157 of 2021).
8.1. β Furthermore, the implementation of the principle of equality requires equal treatment of homogeneous situations, and the two insolvency procedures compared by the referring court are characterized by the same structure and have the same function of settling the relationships between creditors and debtors, liquidating the latter's assets in implementation of the par condicio creditorum.
Moreover, both procedures guarantee access to debt-relieving measures, which make the debts remaining unsatisfied within the procedure unenforceable, so as to allow the debtor's useful reintegration "within the economic and social system, without the weight of past exposures, even in the face of only partial fulfillment with respect to the accrued liabilities" (Judgment No. 245 of 2019).
9. β Moreover, access to legal aid serves "to remove, in harmony with Article 3, second paragraph, of the Constitution (Judgment No. 80 of 2020), "the economic difficulties that may hinder the concrete exercise of the right of defense" (Judgment No. 46 of 1957, hereinafter cited from Judgment No. 149 of 1983; similarly, Judgments No. 35 of 2019, No. 175 of 1996 and No. 127 of 1979), ensuring the effectiveness of the right to act and defend oneself in court, which the second paragraph of the same Article 24 of the Constitution expressly qualifies as an inviolable right (Judgments No. 80 of 2020, No. 178 of 2017, No. 101 of 2012 and No. 139 of 2010; Order No. 458 of 2002) (Judgment No. 157 of 2021).
10. β In short, in the homogeneity of the interests pursued, the effectiveness of the defense in implementation of Article 24 of the Constitution must also be recognized to the controlled liquidation procedure that lacks assets for expenses, since it must, in any case, ensure the best satisfaction of creditors.
11. β Therefore, the unconstitutionality of Article 144 of DPR No. 115 of 2002 must be declared, insofar as it does not provide for the admission to legal aid of the controlled liquidation procedure, when the delegated judge has authorized the constitution in a trial and has certified the lack of assets for expenses, and of Article 146 of the same DPR No. 115 of 2002, insofar as it does not provide for the booking as a debit of the expenses of the controlled liquidation procedure.
For These Reasons
THE CONSTITUTIONAL COURT
1) declares the unconstitutionality of Article 144 of the Decree of the President of the Republic of May 30, 2002, No. 115, containing the "Consolidated text of legislative and regulatory provisions concerning court costs (Text A)", insofar as it does not provide for the admission to legal aid of the controlled liquidation procedure, when the delegated judge has authorized the constitution in a trial and has certified the lack of assets for expenses;
2) declares the unconstitutionality of Article 146 of DPR No. 115 of 2002, insofar as it does not provide for the booking as a debit of the expenses of the controlled liquidation procedure.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 21, 2024.
Signed:
Augusto Antonio BARBERA, President
Giulio PROSPERETTI, Rapporteur
Roberto MILANA, Director of the Registry
Deposited in the Registry on July 4, 2024
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