JUDGMENT NO. 126

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 9 of the Autonomous Province of Trento Act of 4 August 2022, No. 10 (Adjustment of the Autonomous Province of Trento's Budget Forecast for the 2022-2024 financial years), brought by the President of the Council of Ministers with a petition served on 7 October 2022, filed with the Registry on 11 October 2022, registered under No. 77 of the 2022 register of petitions and published in the Official Gazette of the Republic No. 47, first special series, of the year 2022.

Having seen the notice of appearance of the Autonomous Province of Trento;

having heard at the public hearing of 5 June 2024 the Reporting Judge Angelo Buscema;

having heard the State Attorney Giancarlo Caselli for the President of the Council of Ministers and the attorney Sara Valaguzza for the Autonomous Province of Trento;

having deliberated in chambers on 5 June 2024.

Facts

1. – The President of the Council of Ministers, represented and defended by the Attorney General of the State, with a petition registered under No. 77 of the 2022 register of petitions, raised questions of constitutional legitimacy of Article 9 of the Autonomous Province of Trento Act of 4 August 2022, No. 10 (Adjustment of the Autonomous Province of Trento's Budget Forecast for the 2022-2024 financial years) in relation to Articles 81, 97, 100 and 117, second paragraph, letters e), f) and l), 119 and 120 of the Constitution, as well as Articles 4, 8 and 105 of the Presidential Decree of 31 August 1972, No. 670 (Approval of the consolidated text of the constitutional laws concerning the special statute for Trentino-Alto Adige), in relation to Article 47 of Legislative Decree 30 March 2001, No. 165 (General rules on the organisation of work in the employment of public administrations).

1.1. – In the opinion of the referring party, Article 9 of Provincial Act No. 10 of 2022 would first violate Articles 100 and 117, second paragraph, letters e), f) and l), of the Constitution and Article 105 of Presidential Decree No. 670 of 1972, in relation to Article 47 of Legislative Decree No. 165 of 2001.

The applicant argues that the impugned provision, which inserted Article 60-bis into the Autonomous Province of Trento Act of 3 April 1997, No. 7 (Revision of the organisation of the Autonomous Province of Trento's personnel), assigning to an internal body, such as the Board of Auditors of the Province, the power to control the economic and financial compatibility of provincial collective agreements, would conflict with Article 47 of Legislative Decree No. 165 of 2001, indicated as the intervening provision which, in the absence of a statutory implementation provision, would also apply to regional and autonomous provincial bodies.

The conflict with the intervening provision would result in a violation of the State's exclusive legislative competence in the matters of "harmonisation of public budgets", "State bodies" and "jurisdiction and procedural rules" with regard to the powers of the Court of Auditors and, in particular, the function of certifying the reliability of the costs of collective agreements and verifying their compatibility with programming and budgetary instruments.

1.2. – Article 9 of Provincial Act No. 10 of 2022 would also be unconstitutional in relation to Articles 81, 97, 100, 117, second paragraph, letter l), 119 and 120 of the Constitution.

According to the State's defence, the need for coordination of public finance also concerns regions and provinces with differentiated autonomy, as it cannot be doubted that their finances are also part of broader public finance (reference is made to the judgment of this Court No. 425 of 2004).

With specific regard to the powers of the Court of Auditors in special autonomy systems, the applicant underlines how the controls assigned to the auditing judiciary are aimed at ensuring the sound financial management of local authorities, preventing budgetary imbalances and guaranteeing compliance with the internal stability pact and the constraint on debt, set by the last paragraph of Article 119 of the Constitution, also with a view to protecting the economic unity of the Republic and coordinating public finance (reference is made to the judgment of this Court No. 39 of 2014).

The preventive controls attributed to the competence of the Court of Auditors (a category to which the certification of collective agreements would also belong) would, therefore, be aimed at avoiding damage to the budgetary balance of the public sector, placing them on a different level from the control over administrative management carried out by local authorities. This is by virtue of the different interest in constitutional-financial legality and the protection of the economic unity of the Republic pursued by the aforementioned controls of the Court of Auditors (not only with reference to Article 100 of the Constitution, but also to Articles 81, 119 and 120 of the Constitution), compared to the internal controls incumbent on special autonomies.

The assignment to the provincial Board of Auditors of prerogatives of the Court of Auditors would result in a violation of Articles 81 and 97 of the Constitution, in particular with regard to the principle of budgetary balance of public administrations, also "in accordance with the European Union legal order"; of Article 100 of the Constitution, which assigns to the Court of Auditors the "control over the financial management of bodies to which the State contributes on an ordinary basis"; of Articles 117, second paragraph, letter l), 119 and 120, of the Constitution, which provide for the exclusive State legislative competence in the matter of "harmonisation of public budgets" and "civil order", and compliance with the balance of the budgets of local authorities.

1.3. – On a further concurrent ground, Article 9 of Provincial Act No. 10 of 2022 would be unconstitutional for violation of the principles of protection of the balance and sound management of the budget referred to in Articles 81, 97 and 117 of the Constitution and Articles 4 and 8 of the special statute, in relation to Article 47 of Legislative Decree No. 165 of 2001.

The impugned provincial provision would, in fact, conflict with the reserve of controls recognised by constitutional provisions and intervening State laws to the Court of Auditors when it assigns exclusively to an internal body the competence to control the economic and financial compatibility of collective agreements, preventing the aforementioned Court from exercising its prerogatives in this regard.

Moreover, in the opinion of the Attorney General, Article 47 of Legislative Decree No. 165 of 2001 would directly extend its effectiveness also to the provincial system without the need for implementing rules, as it is attributable to the fundamental principles of economic and social reform of the Republic that the provincial system would be required to respect pursuant to Article 117 of the Constitution and Articles 4 and 8 of the special statute.

2. – The Autonomous Province of Trento appeared in court requesting that the petition be declared inadmissible or, in any case, unfounded.

2.1. – The defence of the Autonomous Province of Trento first argues the inadmissibility of the petition for lack of its own and direct reasons by the Government explicitly stating the reasons why the political body has found the constitutional legitimacy issues raised.

The Government would, in fact, have limited itself to attaching to the appeal decision the complaints expressed by the control section of the Court of Auditors without expressing the "political assessment" in this regard and without indicating the constitutional parameters allegedly violated. The grounds of the petition would, in fact, be expressed in a report by the control section of the Court of Auditors for Trentino-Alto Adige – to which the Government's document refers – and not in a prior and compliant decision of the Council of Ministers, as prescribed by Article 2, paragraph 3, letter d), of Law 23 August 1988, No. 400 (Regulation of Government activity and organisation of the Presidency of the Council of Ministers).

This event would result in the inadmissibility of the petition.

The provincial defence argues that the rule of correspondence between the content of the complaints expressed in the decision of the Council of Ministers that decides on the appeal and the grounds of the petition finds its rationale in the need to keep the dispute, which concerns the bodies of the State, within the institutional dynamics between constitutional subjects, being a dispute of "political nature".

The Autonomous Province also argues the inadmissibility of the petition for insufficient reasoning of the criticisms, heterogeneous and unsubstantiated, in which the evocation of numerous constitutional parameters would not be matched by equally numerous arguments aimed at clarifying adequately, or even sufficiently, the different aspects of the violation.

The petition would be inadmissible, finally, because, in the opinion of the Autonomous Province, the applicant would not have correctly reconstructed the legal framework.

The Province argues that Article 47 of Legislative Decree No. 165 of 2001 would refer exclusively to national collective bargaining, which includes bodies not present at the provincial level (such as sector committees), and that, among the administrations listed in Article 41 of the same legislative decree, to which Article 47 refers, the autonomous provinces would not be included.

This incorrect reconstruction of the legal situation would undermine the entire argumentative structure of the criticisms, resulting in their inadmissibility (reference is made to the judgments of this Court No. 2 of 2018, No. 69 of 2016 and No. 153 of 2015).

2.2. – The petition would, however, be unfounded on the merits.

As regards the alleged violation of Articles 100 and 117, second paragraph, letters e), f) and l), of the Constitution, Article 105 of the special statute, in relation to Article 47 of Legislative Decree No. 165 of 2001, as an intervening State provision, the provincial defence specifies that if, on the one hand, the impugned provision would not affect at all the functions of the Court of Auditors, but, on the contrary, would presuppose its legal prerogatives, integrating its action with reference to provincial collective bargaining, on the other hand, the statutory implementing rules would still be suitable to introduce special organisational measures, as provided for in Article 8, No. 1), of the special statute, which assigns to the primary legislative competence of the Autonomous Province the matter of "organisation of provincial offices and personnel employed therein", within which provincial collective bargaining would fall.

Therefore, in the opinion of the Province, Articles 100, with regard to the powers of the Court of Auditors, and 117, second paragraph, letters f) and l), of the Constitution, with regard to the exclusive State legislative competence, respectively, in the matters of "State bodies" and "jurisdiction and procedural rules", would not be violated, because these matters would not be the subject of the provincial legislative intervention, nor would they have been affected by it.

Articles 117, second paragraph, letter e), of the Constitution, with regard to the exclusive State legislative competence in the matter of "harmonisation of public budgets", nor Articles 119 and 120 of the Constitution – with respect to which, as already mentioned, the applicant would not have argued the criticisms – would not be violated either, as the determination of the appropriations for provincial collective bargaining would be carried out by the Autonomous Province of Trento in compliance with the provisions of State programming and budget documents and the particular financial autonomy recognised to the Province itself pursuant to Articles 119 of the Constitution and 79 of the special statute.

The violation of Article 105 of the Statute of Autonomy alleged by the applicant would also be based on the alleged direct applicability to the Autonomous Province of Article 47 of Legislative Decree No. 165 of 2001 and on the absence of a specifically applicable provincial regulation for controls on provincial collective bargaining. In the opinion of the provincial defence, there would instead be a consolidated system of rules, suitable to guarantee the control entrusted to the Board of Auditors on provincial collective agreements, which would operate in conjunction with the scrutiny of the Court of Auditors.

As regards the alleged violation of Articles 81, 97 and 117 of the Constitution, with regard to the principles of protection of the balance and sound management of the budget and the coordination of public finance, the Autonomous Province observes that the transitional provision would not jeopardise the principle of budgetary balance or the sustainability of public debt, since the expenditure relating to provincial collective bargaining would have been adopted in compliance with the State's macroeconomic parameters.

Moreover, the petition would be based on an erroneous interpretation of Article 47 of Legislative Decree No. 165 of 2001 and this would place the presentation of the Attorney General in clear contrast with what has been established by constitutional jurisprudence (reference is made to the judgment of this Court No. 171 of 2005), which has stated that the accounting control procedures must be carried out in a way that is compatible with the provincial system without any constraints being invoked deriving from fundamental rules of economic and social reform.

2.3. – With a brief filed on 17 October 2023, the Autonomous Province of Trento requested that the inadmissibility of the petition be declared due to a change in the legal framework in force.

The provincial defence points out that, during the present proceedings, Legislative Decree 31 July 2023, No. 113 (Implementing rules of the special statute for the Trentino-Alto Adige/Südtirol region containing amendments to Presidential Decree 15 July 1988, No. 305, on the controls of the Court of Auditors) and Article 11, paragraph 16, of the Autonomous Province of Trento Act of 8 August 2023, No. 9 (Adjustment of the Autonomous Province of Trento's budget forecast for the 2023-2025 financial years), which inserted paragraph 1-bis into Article 60-bis of Provincial Act No. 7 of 1997, which states: "1-bis. This article is repealed from the date of entry into force of the implementing provision referred to in paragraph 1", have been adopted.

Therefore, the impugned legislation would have lost its current relevance and effectiveness and the petition would be inadmissible for lack of interest.

Reasons

1. – The President of the Council of Ministers, represented and defended by the Attorney General of the State, with a petition registered under No. 77 of the 2022 register of petitions, raised questions of constitutional legitimacy of Article 9 of Provincial Act No. 10 of 2022, in relation to Articles 81, 97, 100 and 117, second paragraph, letters e), f) and l), 119 and 120 of the Constitution, as well as Articles 4, 8 and 105 of Presidential Decree No. 670 of 1972, in relation to Article 47 of Legislative Decree No. 165 of 2001.

The impugned provision provides: "1. The following is inserted after Article 60 of the 1997 Provincial Personnel Act: "Art. 60-bis Provisions concerning the certification of provincial collective bargaining". 1. The Province shall promote the approval of a specific statutory implementing provision in order to introduce at provincial level a provision concerning the verification by the Court of Auditors of the reliability of the quantification of the costs of provincial collective bargaining and its compatibility with the programming and budgetary instruments provided for the State by Article 47 of Legislative Decree No. 165 of 2001. Until the entry into force of the implementing provision, this verification shall be ensured exclusively by the Province in the exercise of the functions of coordination of public finance assigned to it by Article 79 of the Statute of Autonomy, through the Board of Auditors of the Province, provided for in Article 6, paragraph 3-bis, of Presidential Decree 15 July 1988, No. 305 (Implementing rules of the special statute for the Trentino-Alto Adige region for the establishment of the control sections of the Court of Auditors of Trento and Bolzano and for the personnel employed therein), and established by Article 78-bis 4 of the 1979 Provincial Accounting Act; the Board of Auditors shall carry out the verification on the basis of a technical report on the quantification of the costs prepared by APRAN."

1.1. – The applicant argues that Article 9 of Provincial Act No. 10 of 2022 would first violate Articles 100 and 117, second paragraph, letters e), f) and l), of the Constitution and Article 105 of Presidential Decree No. 670 of 1972, in relation to Article 47 of Legislative Decree No. 165 of 2001. The impugned provision, by assigning to an internal body the competence to control the economic and financial compatibility of provincial collective agreements, would conflict with Article 47 of Legislative Decree No. 165 of 2001, indicated as the intervening provision.

This conflict would result in a violation of the State's exclusive legislative competence in the matters of "harmonisation of public budgets", "State bodies" and "jurisdiction and procedural rules", pursuant to Article 117, second paragraph, letters e), f) and l), of the Constitution, with regard to the powers of the Court of Auditors and, in particular, the function of certifying the reliability of the costs of collective agreements and verifying their compatibility with programming and budgetary instruments.

1.2. – Article 9 of Provincial Act No. 10 of 2022 would also be unconstitutional in relation to Articles 81, 97, 100, 117, second paragraph, letter l), 119 and 120 of the Constitution.

The applicant asserts that the assignment to the Board of Auditors of the Autonomous Province of Trento of prerogatives of the Court of Auditors would result in a violation of Articles 81 and 97 of the Constitution, in particular with regard to the principle of budgetary balance of public administrations, also "in accordance with the European Union legal order"; of Article 100 of the Constitution, which assigns to the Court of Auditors the "control over the financial management of bodies to which the State contributes on an ordinary basis", as well as Articles 117, second paragraph, letters e) and l), 119 and 120 of the Constitution.

1.3. – On a further concurrent ground, the impugned provision would be unconstitutional for violation of the principles of protection of the balance and sound management of the budget referred to in Articles 81, 97 and 117 of the Constitution and Articles 4 and 8 of the special statute, in relation to Article 47 of Legislative Decree No. 165 of 2001.

The impugned Article 9, by assigning exclusively to an internal body the competence to control the economic and financial compatibility of collective agreements, preventing the auditing judiciary from exercising its prerogatives, would conflict with the reserve in the matter of control recognised by constitutional provisions and intervening State laws to the Court of Auditors.

The applicant argues that Article 47 of Legislative Decree No. 165 of 2001 would be directly effective also with regard to the provincial system without the need for implementing rules, as it is attributable to the fundamental principles of economic and social reform of the Republic, which the provincial system would be required to respect pursuant to Articles 4 and 8 of the special statute.

2. – The Autonomous Province of Trento appeared in court arguing the inadmissibility of the petition for several reasons, the examination of which is preliminary to the examination of the merits.

As a preliminary matter, the first and most radical ground for inadmissibility of the petition must be examined, concerning the absence of a reasoned decision of the Council of Ministers.

The first decision of the Council of Ministers of 28 September 2022 does not indicate either the article of the provincial law under appeal, or the constitutional parameters violated, or the grounds of the petition. Nor does the subsequent supplementary decision of 5 October 2022 indicate the constitutional parameters, nor does it provide arguments to justify the appeal against Article 9 of Provincial Act No. 10 of 2022. Both decisions of the Council of Ministers merely refer, respectively, to the notes of 16 September and 5 October 2022 of the President of the control section of the Court of Auditors for Trentino-Alto Adige.

3. – The objection is well-founded.

This Court has stated that, being situated within a framework characterised by the tax nature of constitutional competences, the decision of the Council of Ministers, to be adopted in anticipation of the petition for constitutional legitimacy against regional or provincial laws, is based on a need, not of a formal, but of a substantial nature, connected to the importance of the act of appealing the law and the gravity of its possible constitutional effects (Judgment No. 15 of 2015).

Being a decision of the constitutional body entrusted with the direction of national policy, which is responsible, on behalf of the unity of the State system, for the power to urge the reinstatement of the constitutional order that is assumed to have been violated by a regional or provincial law, the decision of the Council of Ministers involves a choice of institutional policy aimed at prefiguring, at least in its essential lines, the alleged violation, in order to delimit with sufficient clarity the subject of the question to be raised and which will be defined in its legal terms in the subsequent petition of the President of the Council of Ministers, through the indication of the legislative provisions suspected of unconstitutionality and the constitutional provisions that are assumed to be violated (in this sense, judgments No. 223 and No. 163 of 2023 and previous ones cited therein).

In the main proceedings, therefore, there must be "full and necessary correspondence between the decision by which the legitimate body determines the appeal and the content of the petition, given the political nature of the act of appeal" (Judgment No. 223 of 2023), and therefore "the omission of any mention of a constitutional parameter in the decision authorising the appeal by the political body implies the exclusion of the applicant's intention to raise the question in this regard, with the consequent inadmissibility of the question that, on the same parameter, has been raised by the defence in the petition" (judgments No. 163 of 2023, No. 128 of 2018 and No. 239 of 2016).

In this case, the decision of the Council of Ministers contains no trace of the constitutional parameters and the reasons supporting the alleged unconstitutionality of the provisions of the Autonomous Province to be submitted to this Court, limiting itself to a mere and uncritical reference per relationem to the aforementioned notes of the Court of Auditors and this, in the light of the constitutional jurisprudence cited, makes the petition inadmissible.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the questions of constitutional legitimacy of Article 9 of the Autonomous Province of Trento Act of 4 August 2022, No. 10 (Adjustment of the Autonomous Province of Trento's Budget Forecast for the 2022-2024 financial years), raised, in relation to Articles 81, 97, 100, 117, second paragraph, letter l), 119 and 120 of the Constitution, by the President of the Council of Ministers with the petition indicated in the heading;

2) declares inadmissible the questions of constitutional legitimacy of Article 9 of Provincial Act No. 10 of 2022, raised, in relation to Articles 81, 97 and 117 of the Constitution and Articles 4 and 8 of Presidential Decree 31 August 1972, No. 670 (Approval of the consolidated text of the constitutional laws concerning the special statute for Trentino-Alto Adige), in relation to Article 47 of Legislative Decree 30 March 2001, No. 165 (General rules on the organisation of work in the employment of public administrations), by the President of the Council of Ministers with the petition indicated in the heading;

3) declares inadmissible the questions of constitutional legitimacy of Article 9 of Provincial Act No. 10 of 2022, raised, in relation to Articles 100 and 117, second paragraph, letters e), f) and l), of the Constitution, and Article 105 of the special statute for Trentino-Alto Adige, in relation to Article 47 of Legislative Decree No. 165 of 2001, by the President of the Council of Ministers with the petition indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 June 2024.

Signed:

Augusto Antonio BARBERA, President

Angelo BUSCEMA, Reporting Judge

Valeria EMMA, Registrar

Filed with the Registry on 15 July 2024