JUDGMENT NO. 123

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Judges: 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 120, paragraph 1, letters a), c), number 2), d), number 2), and f), of the Law of the Sardinia Region of 23 October 2023, No. 9 (Provisions of an institutional, organizational and financial nature on various matters), initiated by the President of the Council of Ministers, with an appeal notified on 22 December 2023, filed with the registry on 22 December 2023, registered under No. 35 of the register of appeals 2023, and published in the Official Gazette of the Republic No. 4, special series I, of the year 2024.

Having regard to the act of establishment of the Autonomous Region of Sardinia;

Having heard at the public hearing on 8 May 2024, the reporting Judge Giovanni Pitruzzella;

Having heard the State Attorney Fabrizio Fedeli for the President of the Council of Ministers and the lawyers Giovanni Parisi, Roberto Silvio Murroni, and Mattia Pani for the Autonomous Region of Sardinia;

Deliberated in the council chamber of 4 June 2024.

Summary of Facts

1.– The President of the Council of Ministers challenged several provisions of the Law of the Sardinia Region of 23 October 2023, No. 9 (Provisions of an institutional, organizational, and financial nature on various matters), among which Article 120, which amends the Law of the Sardinia Region of 12 April 2021, No. 7 (Reform of the territorial structure of the Region. Amendments to Regional Law No. 2 of 2016, to Regional Law No. 9 of 2006 on maritime state property and urgent provisions on the conduct of municipal elections). In particular, the appellant challenges: a) Article 120, paragraph 1, letter a), according to which «the words "Province of North-East Sardinia," wherever they appear, are replaced by the following: "Province of Gallura North-East Sardinia"»; b) Article 120, paragraph 1, letter c), number 2), which amends Article 2, paragraph 1, of Regional Law of Sardinia No. 7 of 2021, establishing that «after letter d) the following is inserted: "d bis) the territorial district of the Province of Oristano is confirmed."»; c) Article 120, paragraph 1, letter d), number 2), which amends Article 5 of Regional Law of Sardinia No. 7 of 2021, establishing that «after paragraph 2 the following is inserted: "2-bis. In implementation of Article 2, paragraph 1, letter d bis) the Province of Oristano, with the provincial capital in Oristano, is composed of the following Municipalities: [...]"»; d) Article 120, paragraph 1, letter f), which replaces Article 23 of Regional Law of Sardinia No. 7 of 2021, which regulates the «Succession and transitional phase» and, among other things, establishes that «[t]he Regional Council shall take the necessary steps for the establishment of the Metropolitan City of Sassari and the Provinces of Gallura North-East Sardinia, Ogliastra, Sulcis Iglesiente and Medio Campidano, for the confirmation of the territorial district of Oristano, and for the amendments to the territorial districts of the Metropolitan City of Cagliari and the Province of Nuoro [...]» (paragraph 1).

According to the appellant, the challenged Article 120 would have «intervened [...] again on the procedure for the establishment and operation of the six provinces (Oristano, Nuoro, Ogliastra, Sulcis Iglesiente, Medio Campidano, Gallura-North East Sardinia) and the two metropolitan cities» (Cagliari and Sassari). Article 120 would concern «substantial variations of the territorial structure, without providing for the involvement of the populations concerned by the reform of the territorial districts of the Sardinian provinces», in violation of: a) Article 43, second paragraph, of Constitutional Law No. 3 of 26 February 1948 (Special Statute for Sardinia), according to which «[t]he regional law can modify the districts and functions of the provinces, in accordance with the will of the populations of each of the provinces concerned expressed by referendum»; b) Article 133, second paragraph, of the Constitution, in relation to Article 15, paragraph 1, of Legislative Decree No. 267 of 18 August 2000 (Consolidated Law on the system of local authorities), according to which, «[u]nder Articles 117 and 133 of the Constitution, the regions can modify the territorial districts of the municipalities after hearing the populations concerned, in the forms provided for by regional law».

According to the appellant, the Region could not invoke its primary legislative power in the matter of «organization of local authorities and their respective districts» (Article 3, first paragraph, letter b, of the special statute), as the modification of the districts of the provinces would be regulated by the special rule referred to in Article 43 of the statute and, in any case, the primary regional legislative power should be exercised in compliance with the aforementioned state rules «which constitute principles of the legal system of the Republic».

The appellant recalls that this Court, with judgment No. 68 of 2022, declared inadmissible the questions of constitutional legitimacy promoted – always with reference to Article 43, second paragraph, of the special statute – on Article 6 of Regional Law of Sardinia No. 7 of 2021, a law that redefined the structure of the wide-area entities (metropolitan cities and provinces), establishing and abolishing some and modifying their respective districts. The Court noted the contradictory nature of the challenge, in that the appellant «limits the object of its challenge to Article 6 itself, without extending the censure to the entire law, or at least to the provisions thereof that have defined the territorial variations, while starting from the premise that such legislation was approved in violation of an essential procedural phase, statutorily provided for».

According to the appellant, in regulating, two years later, «the new provincial districts», the «procedures relating to the establishment of the Metropolitan City of Sassari and the Provinces of Gallura North-East Sardinia, Ogliastra, Sulcis Iglesiente and Medio Campidano, to the confirmation of the territorial district of Oristano, and to the amendments to the territorial districts of the Metropolitan City of Cagliari and the Province of Nuoro», and the succession between the entities involved and the related transitional phase, the regional legislator would have «proceeded to a regulatory novation that is suitable to make the violation» of Article 43 of the Regional Statute of Sardinia and «the interest to a ruling by this Court timely again». This assumption would be supported by the referendum held in Sardinia in 2012, precisely on the subject of provinces.

In conclusion, the President of the Council of Ministers asks the Court to declare the constitutional illegitimacy of Article 120, paragraph 1, letters a), c), number 2), d), number 2), as well as f), for violation of Article 43, second paragraph, of the special statute and of Article 133, second paragraph, of the Constitution, «also with reference to the interposing parameter» of Article 15 of the consolidated text on local authorities, «as the population concerned by the changes made to the territorial structures by the provisions in question was not heard».

2.– The Autonomous Region of Sardinia has appeared in the proceedings with a deed filed on 30 January 2024.

In general terms, the respondent observes that the challenged Article 120 «merely specifies some marginal and detailed elements of the transitional phase»; it would not intervene on the basic structure of Regional Law of Sardinia No. 7 of 2021 (saved by judgment No. 68 of 2022 of this Court), not modifying «either the number, or the consistency, and much less the contents of the Provinces».

Article 120 would represent an exercise of the primary regional legislative competence in the matter of «organization of local authorities and their respective districts» and would not violate Article 43, second paragraph, of the special statute, «since there is certainly no discussion of the establishment, modification, or abolition of existing Provinces». Article 120 would not involve any regulatory novation, but would regulate marginal aspects, not affecting the referendum prerogatives of the community.

The respondent raises a preliminary objection of inadmissibility of the ground of appeal under several profiles.

Firstly, it notes that the resolution of the Council of Ministers to appeal would not refer «to the rule concerning the "functioning” of the Sardinian Provinces and to the transitional phase concerning the succession between the entities involved» referred to in the challenged Article 120, paragraph 1, letter f); moreover, the invocation, by the appeal, of Article 3, first paragraph, letter b), of the special statute, would be inadmissible, as it was not mentioned in the government resolution.

Secondly, the Region observes that Article 120 of Regional Law of Sardinia No. 9 of 2023 would not determine any modification of the territorial structure already defined by Regional Law of Sardinia No. 7 of 2021. Therefore, the ground of appeal would be inadmissible «due to the unsuitability of the intervention invoked to guarantee the achievement of the result aimed at by the appellant», i.e. the participation of the population concerned – through the referendum – in the decision relating to territorial changes. Indeed, Regional Law of Sardinia No. 7 of 2021 would in any case remain in force, «immune from any censure, with its territorial variations now producing legal effects».

Thirdly, the Region raises a lack of motivation, under several profiles. The appeal would not explain how the challenged Article 120 would violate Article 43, second paragraph, of the special statute, which «refers specifically to a totally different hypothesis compared to the one under consideration». The statutory rule, that is, would be a «non-relevant» parameter, given that Article 120 would modify neither the districts nor the provincial functions. Furthermore, the appeal would not contain «any argument» with reference to the violation of Article 133, second paragraph, of the Constitution and of Article 15, paragraph 1, of the consolidated text on local authorities. Finally, the Government would not have taken into account Article 3, first paragraph, letter b), of the Statute of the Sardinia Region, which attributes to the Region primary legislative power in the matter of «organization of local authorities and their respective districts».

On the merits, the issue would be unfounded.

The Region notes that Article 43, second paragraph, of the special statute would not be violated because Article 120 of Regional Law of Sardinia No. 9 of 2023 would not introduce any modification of either the districts or the functions of the Sardinian provinces. The violation of Article 133, second paragraph, of the Constitution and Article 15, paragraph 1, of the consolidated text on local authorities would also be non-existent, «as they concern the modification of the territorial district of the Municipalities and certainly not of the Provinces» and, moreover, as they are referable to the ordinary regions and not to the Autonomous Region of Sardinia.

According to the respondent, Article 120 should be attributed to the scope of application of Article 3, first paragraph, letter b), of the special statute and not of Article 43, second paragraph, of the statute itself. The Region recalls the discipline dictated by the Law of the Sardinia Region of 2 January 1997, No. 4 (General reorganization of the provinces and ordinary procedures for the establishment of new provinces and the modification of provincial districts), and the fact that the referendum on territorial modifications of the provinces is not even required by Law No. 56 of 7 April 2014 (Provisions on metropolitan cities, provinces, unions and mergers of municipalities). Finally, it refers to the judgment of this Court No. 230 of 2001, from which the respondent deduces that, in the case of a comprehensive reform of the provinces, the referendum would not be essential, but an «possible participation» would be sufficient, for example through «resolutions of the Municipal Councils».

3.– By a brief filed on 17 April 2024, the President of the Council of Ministers has replied to the objections of inadmissibility raised by the Region, reiterating that the challenged Article 120 would confirm «substantial variations of the territorial structure», without the involvement of the populations concerned.

Reasoning in Law

1.– The President of the Council of Ministers challenges several provisions of Regional Law of Sardinia No. 9 of 2023, among which Article 120, which amends Regional Law of Sardinia No. 7 of 2021. In particular, the appellant challenges: a) Article 120, paragraph 1, letter a), according to which «the words "Province of North-East Sardinia," wherever they appear, are replaced by the following: "Province of Gallura North-East Sardinia"»; b) Article 120, paragraph 1, letter c), number 2), which amends Article 2, paragraph 1, of Regional Law of Sardinia No. 7 of 2021, establishing that «after letter d) the following is inserted: "d bis) the territorial district of the Province of Oristano is confirmed."»; c) Article 120, paragraph 1, letter d), number 2), which amends Article 5 of Regional Law of Sardinia No. 7 of 2021, establishing that «after paragraph 2 the following is inserted: "2-bis. In implementation of Article 2, paragraph 1, letter d bis) the Province of Oristano, with the provincial capital in Oristano, is composed of the following Municipalities: [...]"»; d) Article 120, paragraph 1, letter f), which replaces Article 23 of Regional Law of Sardinia No. 7 of 2021, which regulates the «Succession and transitional phase» and, among other things, establishes that «[t]he Regional Council shall take the necessary steps for the establishment of the Metropolitan City of Sassari and the Provinces of Gallura North-East Sardinia, Ogliastra, Sulcis Iglesiente and Medio Campidano, for the confirmation of the territorial district of Oristano, and for the amendments to the territorial districts of the Metropolitan City of Cagliari and the Province of Nuoro [...]» (paragraph 1).

These provisions are challenged «as the population concerned by the changes made to the territorial structures by the provisions in question was not heard», with consequent violation of: a) Article 43, second paragraph, of the special statute, according to which «[t]he regional law can modify the districts and functions of the provinces, in accordance with the will of the populations of each of the provinces concerned expressed by referendum»; b) Article 133, second paragraph, of the Constitution, in relation to Article 15, paragraph 1, of Legislative Decree No. 267 of 2000, according to which, «[u]nder Articles 117 and 133 of the Constitution, the regions can modify the territorial districts of the municipalities after hearing the populations concerned, in the forms provided for by regional law».

2.– As seen, the Region raises – among other things – the objection of inadmissibility of the ground of appeal for lack of interest, i.e. «due to the unsuitability of the intervention invoked to guarantee the achievement of the result aimed at by the appellant», that is the participation of the population concerned – through the referendum – in the decision relating to territorial changes. In fact, Article 120 of Regional Law of Sardinia No. 9 of 2023 would not determine any modification of the territorial structure already defined by Regional Law of Sardinia No. 7 of 2021, a structure that, therefore, would remain unchanged, despite the lack of involvement of the populations in its definition.

The objection is well-founded.

With judgment No. 68 of 2022, this Court has already declared inadmissible the appeal filed against Regional Law of Sardinia No. 7 of 2021, noting that the President of the Council of Ministers had not included in the appeal the provisions that had defined the territorial variations: «[i]n this way, the appeal is shown to be inadmissible due to the contradiction and unsuitability of the intervention invoked "to guarantee the achievement of the result aimed at" by the appellant [...]. This intervention, in fact, could not restore the protection of the statutory principles allegedly violated, so that, in the final analysis, the interest in the appeal itself must be said to be lacking, as it was cultivated by the State [...]. In fact, even in the event of acceptance of the appellant's arguments, the mere annulment of the entire challenged Article 6 [...] could certainly not restore the principle affirmed in the appeal, i.e. the necessary participation of the populations concerned, through the referendum, in the procedure for the formation of the regional law. Regional Law of Sardinia No. 7 of 2021 would remain overall in force, immune from any censure, with its territorial variations now producing legal effects [...]».

After the aforementioned judgment No. 68 of 2022, on two other occasions the Court has declared the appeal inadmissible for the unsuitability of the judgment of acceptance to remove the violation: judgments No. 134 of 2023 (on the matter of invitations from local health authorities to an oncology screening program) and No. 229 of 2022 (on the matter of extension of the housing plan).

The appellant states that the challenged Article 120 of Regional Law of Sardinia No. 9 of 2023 would have made variations to the territorial structure of the provinces and would have «proceeded to a regulatory novation that is suitable to make the violation» of Article 43 of the Regional Statute of Sardinia and «the interest to a ruling by this Court timely again».

This interpretation does not correspond to the content of the aforementioned Article 120. The first three challenged provisions have a formal scope, in the sense that the first (paragraph 1, letter a) is limited to modifying the denomination of the Province of North-East Sardinia (adding «Gallura»), the second (paragraph 1, letter c, number 2) is limited to acknowledging that Regional Law of Sardinia No. 7 of 2021 had not modified the district of the Province of Oristano, and the third (paragraph 1, letter d, number 2) indicates the municipalities included in the Province of Oristano, retracing the list contained in the annex to the resolution of the Regional Council of 5 May 2021, No. 16/24 (resolution that approved the scheme for the reform of the territorial structure, on the basis of Article 2, paragraph 3, of Regional Law of Sardinia No. 7 of 2021).

The fourth challenged provision (paragraph 1, letter f), on the other hand, has a substantial content, as it replaces Article 23 of Regional Law of Sardinia No. 7 of 2021, which regulates the transitional phase, i.e. the transition from the previous structure to the one resulting from the law itself. The new Article 23, however, does not make any changes to the districts of the provinces: it leaves the territorial structure configured by Regional Law of Sardinia No. 7 of 2021 unchanged, containing an implementing discipline of the one that actually introduced the territorial changes of the Sardinian provinces.

Article 120 of Regional Law of Sardinia No. 9 of 2023, therefore, has not replaced the rules that in 2021 created new provinces and modified some existing ones, but has only replaced Article 23 of Regional Law of Sardinia No. 7 of 2021, containing the discipline of the transitional phase: which excludes the regulatory novation denounced by the appellant.

Therefore, as in the case which was the object of the judgment No. 68 of 2022, in which the President of the Council had challenged a discipline «"ancillary” with respect to the fundamental choices regarding territorial variations», so also in today's case, the possible annulment of the challenged provisions would be devoid of legal utility for the purpose of removing the alleged violation (lack of involvement of the populations in the territorial variation procedure): which reveals the lack of interest of the appellant, with consequent inadmissibility of the ground of appeal.

3.– The Region also raises – in addition – the objection of inadmissibility of the questions for lack of motivation, under several profiles.

In particular, the appellant's argument would be deficient in relation both to the violation of Article 43, second paragraph, of the special statute (which would be a «non-relevant» parameter, given that Article 120 of Regional Law of Sardinia No. 9 of 2023 would not modify either the districts or the provincial functions) and to the violation of Article 133, second paragraph, of the Constitution and of Article 15, paragraph 1, of the consolidated text on local authorities.

The objection is well-founded.

According to the «consistent case law of this Court, "the need for adequate motivation to support the request for a declaration of constitutional illegitimacy is more demanding in the proceedings brought as a principal action, compared to those initiated as an incidental action” (ex multis, judgment No. 171 of 2021; similarly, judgments No. 119 of 2022 and No. 219 of 2021). The appellant, therefore, "has not only the burden of identifying the challenged provisions and the constitutional parameters of which it complains of violation, but also that of attaching, in support of the questions raised, a motivation that is not merely assertive. The appeal must therefore contain an indication of the reasons for which there would be a conflict with the parameters invoked and a, albeit synthetic, argument in support of the censures” (thus judgment No. 95 of 2021)» (judgment No. 155 of 2023).

The appeal does not meet this standard. It does not explain why the discipline of the transitional phase would produce variations to the territorial structure of the provinces: it is stated apodictically that Article 120 determines a «regulatory novation» of the 2021 discipline, but this assumption is not supported by a sufficient argument.

The motivation of the question relating to Article 133, second paragraph, of the Constitution and to Article 15, paragraph 1, of the consolidated text on local authorities is also deficient, given that these parameters do not even concern the provinces, but the establishment of new municipalities and the modification of municipal districts.

4.– The other objections of inadmissibility remain absorbed.

For These Reasons

THE CONSTITUTIONAL COURT

reserving for separate pronouncements the decision on the further questions of constitutional legitimacy promoted with the appeal indicated in the heading;

declares inadmissible the questions of constitutional legitimacy of Article 120, paragraph 1, letters a), c), number 2), d), number 2), and f), of the Law of the Sardinia Region of 23 October 2023, No. 9 (Provisions of an institutional, organizational and financial nature on various matters), promoted, with reference to Article 43, second paragraph, of Constitutional Law No. 3 of 26 February 1948 (Special Statute for Sardinia), and to Article 133, second paragraph, of the Constitution, in relation to Article 15, paragraph 1, of Legislative Decree No. 267 of 18 August 2000 (Consolidated Law on the system of local authorities), by the President of the Council of Ministers with the appeal indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 4 June 2024.

Signed:

Augusto Antonio BARBERA, President

Giovanni PITRUZZELLA, Reporting Judge

Roberto MILANA, Director of the Registry

Filed in the Registry on 4 July 2024