JUDGMENT NO. 146

YEAR 2024

Comments on the Decision of

1. Renzo Dickmann, The excesses of emergency decree legislation between form of government and the system of sources. (Observations in the margin of Constitutional Court, July 25, 2024, No. 146), for the courtesy of federalismi.it

2. Federica Fabrizzi, A necessary judgment to establish a point of no return. Constitutional Court 146/2024 and the balance of the form of government, for the courtesy of federalismi.it

3. Marco Cecili, The lack of prerequisites of extraordinary necessity and urgency of the decree-law again under the scrutiny of the Constitutional Court, in the Studies 2024/III of this Journal, 1195

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Judges: Franco MODUGNO, Giulio PROSPERETTI, Francesco AMOROSO, Giovanni 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 2, paragraph 3, of the Decree-Law of May 10, 2023, No. 51 (Urgent provisions concerning the administration of public entities, legislative deadlines and social solidarity initiatives), converted, with amendments, into Law of July 3, 2023, No. 87, referred by the Ordinary Court of Naples, acting as labour judge, in the proceedings between Fondazione Teatro di San Carlo in Naples and S.M. L., with order of October 25, 2023, registered under No. 27 of the register of orders 2024 and published in the Official Gazette of the Republic No. 10, first special series, of the year 2024.

Having considered the application for joinder of S.M. L. and the intervention of the President of the Council of Ministers;

having heard at the public hearing of July 2, 2024, the reporting Judge Giovanni Pitruzzella;

having heard lawyer Giulio Enea Vigevani for S.M. L. and the State lawyer Chiarina Aiello for the President of the Council of Ministers;

having deliberated in the deliberation chamber of July 2, 2024.

Held

1.- By order of October 25, 2023 (r.o. No. 27 of 2024), the Ordinary Court of Naples, acting as labour judge, raised, with reference to Articles 3, 77, 97 and 98 of the Constitution, a question of constitutional legitimacy of Article 2, paragraph 3, of Decree-Law No. 51 of May 10, 2023 (Urgent provisions concerning the administration of public entities, legislative deadlines and social solidarity initiatives), converted, with amendments, into Law No. 87 of July 3, 2023.

The provision is challenged insofar as it provides, from June 1, 2023, for the termination of the office of superintendent of opera and symphonic foundations for those who, on the date of entry into force of the decree-law, have reached the age of seventy.

1.1.- The referring court states that it must decide on the appeal filed by the Fondazione Teatro San Carlo against the order that granted the request for immediate reinstatement of the superintendent.

After having excluded the feasibility of a restrictive interpretation of the new rules laid down by Decree-Law No. 51 of 2023, as converted, the Court observes that it is precisely the challenged provision that constitutes the legal basis for the termination of the appointment.

1.2.- On the point of not being manifestly unfounded, the referring judge argues, firstly, the conflict with the principles of equality and reasonableness (Article 3 of the Constitution). The provision, aimed at regulating a single case, that of the superintendent of the Teatro San Carlo, would introduce arbitrary disparities of treatment, would infringe on legitimate expectations and would not be justified by the need to promote generational change.

The principles of good administration and continuity of administrative action would also be violated, as automatic termination, linked to factors unrelated to the performance rendered, would expose the foundation to the risk of managerial discontinuity and would deprive the interested party of the right to assert their rights, with the guarantees of due process.

The referring court finally alleges the violation of Article 77 of the Constitution and observes that the provision was introduced using the instrument of emergency decree legislation, despite the evident lack of the prerequisites prescribed by the Constitution.

The purposes stated in the preamble, concerning the need to safeguard the efficiency of opera and symphonic foundations, would have no connection with the challenged provision: efficiency, in fact, would have required a gradual changeover and not immediate termination.

In the face of a derogating provision, applicable to a single person, an extraordinary case of necessity and urgency could not be configured, capable of justifying recourse to the instrument of the decree-law. For this purpose, the mere statement of the prerequisites of Article 77 of the Constitution would not be sufficient, nor could the overall reasonableness of the adopted rules be invoked.

2.- S.M. L. has joined the proceedings and requested that the questions raised by the Court of Naples be upheld.

There would be no homogeneity of purpose between the challenged provision and the others included in a decree-law called upon to regulate disparate matters. Even if it were to be considered that the measure aims to modify the requirements for the appointment of superintendents, the extraordinary necessity and urgency of providing for the automatic termination of those already in office and, in particular, the termination of a single superintendent would not be apparent.

The provision, classifiable as a legislative-administrative measure, would not be suitable to withstand the strict scrutiny of reasonableness and proportionality and would infringe on legitimate expectations in the stability of legal relationships.

The continuity of administrative action, strictly related to the principle of good administration, would also be prejudiced. The rule in question would not be justified even by the need to guarantee the reorganization of opera and symphonic foundations.

3.- The President of the Council of Ministers, represented and defended by the State Legal Office, has intervened in the proceedings and requested that the questions be declared inadmissible or, in any case, unfounded.

3.1.- The challenged provision would merely clarify what effects are produced by exceeding the age limit, explicitly stating a fact already inherent in the system. From this point of view, the inadmissibility of the questions would follow, as they lack relevance.

3.2.- The questions, on the merits, would not be well-founded.

The legislator would have established a general limit of seventy years for the conferral of superintendent appointments, a limit that is far from unreasonable and incongruous. This rule, aimed at eliminating the discrepancies of the previous system and promoting generational change, would pursue objectives of rationalization and harmonization.

The need to remove disparities in treatment would not only lead to the exclusion of the violation of Article 3 of the Constitution, but would also not allow the evident lack of the requirements of necessity and urgency referred to in Article 77 of the Constitution to be configured.

4.- Shortly before the public hearing, S.M. L. filed an explanatory memorandum, to reiterate the conclusions already submitted and to reply to the observations of the State's defence.

The challenged rule would determine constitutionally illegitimate discrimination due to age and, in pursuing the objective of generational change, would not balance the conflicting interests in a reasonable and proportionate manner.

As regards the violation of Article 77 of the Constitution, no arguments capable of refuting it would have been put forward, also in light of the heterogeneity of the content and teleology of the provisions included in the decree-law.

5.- At the hearing, the parties reiterated the conclusions submitted in their respective pleadings.

Reasons

1.- The Ordinary Court of Naples, acting as labour judge, by the order indicated in the heading (r.o. No. 27 of 2024), doubts the constitutional legitimacy of Article 2, paragraph 3, of Decree-Law No. 51 of 2023, as converted, which provides as follows: "The superintendents of opera and symphonic foundations who, on the date of entry into force of this decree, have reached the age of seventy, shall cease their office early from June 1, 2023, regardless of the expiry date of any contracts in progress."

The referring court states that it must apply this provision to decide on the appeal of the Fondazione Teatro San Carlo di Napoli, following the interim order by which S.M. L. was provisionally reinstated in the functions of superintendent of the Theatre.

1.1.- The challenged provision would be detrimental, first of all, to Article 3 of the Constitution.

The referring court alleges the conflict with the "standards of reasonableness and consistency" and with the protection of legitimate expectations.

The rules laid down by the legislator, applicable to the "specific and exclusive position held" by the superintendent of the Teatro San Carlo di Napoli and characterised by a marked "particular and derogating" value, would be a source of "a disparity of treatment that does not appear to be justified by an objective need for differentiation".

Furthermore, the provision in question would be both unreasonable and disproportionate, as it would be "neither necessary nor suitable to achieve the aims" of ensuring generational change and would provide incongruous means (the early termination of a single employment relationship) compared to the objective of promoting the entry "into the labour market of an indeterminate number of candidates for as many vacant positions".

Nor could the need to contain public spending be considered a plausible justification: the legislator would not have assessed in any way the consequences and the "onerous effects deriving from the application of the rule on the Foundation's budget".

1.2.- The referring court argues, secondly, the violation of Articles 97 and 98 of the Constitution.

By establishing the automatic termination of the appointment, with retroactive effect and without any assessment "of the results of the services rendered and the competences exercised in practice in the management of the functions", the challenged provision would negatively affect "good administration and the continuity of administrative action" and would deprive the interested party "of the guarantees of due process, within which to ascertain the results achieved in the performance of the appointment".

In support of the challenge, the referring court cites the case law of this Court on "spoils system" and argues that no "personal bond and particular trust" exists "between the Foundation and the superintendent".

Nor would the rules introduced by Decree-Law No. 51 of 2023, as converted, be included in the context of a "wide-ranging reform" that requires immediate modification of the entity's organisational structure and the methods of appointing its bodies.

1.3.- Finally, the Court alleges the violation of Article 77 of the Constitution and highlights the evident lack of "a factual situation entailing the necessity and urgency of providing by means of an exceptional instrument, such as the decree-law".

This conclusion would be supported by numerous extrinsic and intrinsic indicators.

If the heading of the decree-law only mentions the provisions concerning the administration of public entities, legislative deadlines and social solidarity initiatives, the preamble refers to the "extraordinary necessity and urgency of establishing measures to guarantee the efficiency of the organisation of public provident institutions, as well as opera and symphonic foundations".

No correlation could be seen between the detailed provision, contained in Article 2, paragraph 3, of Decree-Law No. 51 of 2023, as converted, and the aims pursued by the decree-law. It would be difficult "to configure the necessity and urgency", in the face of a provision with "extremely limited scope", moreover "applicable to a single subject" and detached from an overall "reorganisation of Opera Foundations".

A "dogmatic statement" of the existence of the prerequisites of Article 77 of the Constitution would not be sufficient, which could not even be supported by the reasonableness of the legislative intervention. Moreover, in this case, the complexity of the matter would have required a gradual modulation of the new rules.

Nor could any curative effect be recognised in the conversion law.

2.- The objections of inadmissibility raised by the State's defence must be rejected, preliminarily, in consideration of the lack of relevance of the questions of constitutional legitimacy.

The referring court has not neglected the reconstruction of the relevant legal framework and has set out in a precise manner the reasons that corroborate the applicability of the challenged provision, as it is called upon to regulate the disputed case. Article 2, paragraph 3, of Decree-Law No. 51 of 2023, as converted, represents the legal basis for the decision to terminate the employment relationship of the superintendent of the Fondazione Teatro San Carlo di Napoli, which is at issue in the referring proceedings. From this perspective, the relevance of the doubt of constitutional illegitimacy is apparent. It is precisely the supervening provision that has terminated the ongoing employment relationship.

The reasoning offered by the Court therefore passes the test of not being implausible, which, as regards the prerequisite of relevance, is entrusted to this Court.

3.- The examination of the question raised with reference to Article 77 of the Constitution is logically prior, as it concerns the correct exercise of the primary legislative function.

The question is well-founded.

4.- The Government, pursuant to Article 77 of the Constitution, adopts the decree-law "under its responsibility", by virtue of an autonomous political choice. It is therefore not possible to predetermine the extraordinary cases of necessity and urgency that justify recourse to this instrument. The very wording used in Article 77 of the Constitution presents "a wide margin of elasticity", capable of encompassing a plurality of situations (judgment No. 171 of 2007, point 4 of the Reasons), which cannot be confined within rigid schemes (judgment No. 93 of 2011, point 4.1. of the Reasons).

However, the wide political autonomy of the Government in resorting to the decree-law does not equate to the absence of constitutional limits.

The decree-law has, "within the framework of sources, [...] a particular nature [...] as a provisional measure adopted in the presence of extraordinary prerequisites", a provisional measure "which is intended to operate for a limited period of time, losing its effectiveness from the outset in the event of failure to convert it into law within the time limit set in Article 77 of the Constitution" (judgment No. 161 of 1995, point 3 of the Reasons).

The adoption of the decree-law is provided for "as an exceptional hypothesis, subject to the observance of precise conditions" (judgment No. 360 of 1996, point 4 of the Reasons).

The organisation of the legislative function is closely connected both to the permanent aims of the State apparatus and its relations with society, and to the way in which the power of political direction is divided between the various constitutional bodies.

The system of sources of law therefore constitutes an essential component of the form of government, which allows it to adapt to the different dynamics of the political system.

Nevertheless, the flexibility of the constitutional provisions on the form of government, modelled on the scheme of "open-ended rules", does not exclude the operation of normative principles and legally binding rules on the part of the majority, to guarantee the constitutional choice for parliamentary democracy and the protection of political minorities.

In a modern parliamentary democracy, which recognises the fundamental role of political parties (Article 49 of the Constitution), a continuum is established between the Government and Parliament, thanks to the operation of the parliamentary majority that supports the Government. Therefore, the latter assumes the role of driving force of political direction.

However, this function cannot justify the undermining of the political and legislative role of Parliament, which remains the seat of the representation of the Nation (Article 67 of the Constitution), where political minorities can express and promote their positions in a transparent debate (Article 64, second paragraph, of the Constitution), under the scrutiny of public opinion.

Our parliamentary democracy, therefore, assigns significant legislative powers to the Government, which must, however, be exercised in compliance with the constitutionally necessary balances.

5.- According to constitutional rules, the legislative function is exercised collectively by the two Chambers (Article 70 of the Constitution). In line with this role of Parliament, the legislative powers assigned to the Government must be exercised in compliance with the conditions laid down by the Constitution to guarantee the legislative functions of the two Chambers.

With regard to delegated decrees, Parliament establishes with the delegation law the principles and guidelines that the Government must adhere to (Article 76 of the Constitution), regulations must conform to the principle of legality (Article 17 of Law No. 400 of August 23, 1988, concerning "Rules governing Government activity and the organisation of the Presidency of the Council of Ministers") and, in the case of decree-laws, Parliament may refuse conversion into law, causing it to lose its effectiveness with ex tunc effect (Article 77 of the Constitution), or may modify its rules through the approval, during conversion, of amendments.

As the case law of this Court has clarified, amendments to the law converting the decree-law must concern the same subject matter as the latter, otherwise they are unconstitutional (most recently, judgments No. 215 and No. 113 of 2023). In this way, a concurrence of sources is achieved, the first governmental and the second parliamentary, in the regulation of the same subject matter.

However, even before the conversion law, the limits must concern the decree-law and are set in order not to invalidate the legislative function of Parliament.

The urgency of legislating is a need recognised by the constitutional system. On the one hand, Article 72 of the Constitution assigns to the parliamentary regulations the competence to establish expedited procedures for draft laws of which the urgency is declared (a provision that could also be used to limit the use and abuse of decree-laws). On the other hand, Article 77 of the Constitution assigns to the Government the power to adopt decree-laws, but the Government cannot give such a broad interpretation of extraordinary cases of necessity and urgency as to systematically replace the parliamentary legislative procedure with the mechanism of succession of the decree-law and the conversion law.

6.- As this Court has stated, "the pre-existence of a factual situation entailing the necessity and urgency of providing by means of the use of an exceptional instrument, such as the decree-law, constitutes a requirement for the constitutional validity of the adoption of the said act, so that the eventual evident lack of that prerequisite constitutes both a defect of constitutional legitimacy of the decree-law, if adopted outside the scope of the constitutionally provided applications, and a procedural defect of the conversion law itself [...]. Therefore, there is no impediment for the Constitutional Court to proceed to the examination of the decree-law and/or the conversion law in terms of compliance with the requirements of constitutional validity relating to the pre-existence of the prerequisites of necessity and urgency, since the related examination by the Chambers during conversion entails a completely different assessment, namely, a purely political one both with regard to the content of the decision and with regard to its effects" (judgment No. 29 of 1995, point 2 of the Reasons).

7.- In the review entrusted to this Court, a crucial role is played by the requirement of homogeneity, which is configured as "one of the indicators capable of revealing the existence (or, in its absence, the defect) of the conditions of validity of the government measure" (judgment No. 151 of 2023, point 4.2. of the Reasons).

The "evident extraneousness of the challenged rule to the subject matter regulated by other provisions of the decree-law in which it is inserted" therefore emerges as an indicator symptomatic of the manifest lack of the requirement of the extraordinariness of the case of necessity and urgency (judgment No. 22 of 2012, point 3.3. of the Reasons).

Compliance with the provisions of Article 77 of the Constitution requires "an intrinsic coherence of the rules contained in the decree-law, either from an objective and material point of view, or from a functional and purposive point of view. The urgent need to provide may, therefore, concern a plurality of rules linked either by the unitary nature of the regulated cases, or by the intention to deal with a complex and varied extraordinary situation, which requires objectively heterogeneous interventions, as they relate to different matters, but all aimed at the sole purpose of urgently providing remedies to this situation" (judgment No. 8 of 2022, point 6.1. of the Reasons).

Homogeneity, therefore, does not presuppose that the decree-law concerns only one specific and circumscribed matter, but that its provisions are connected to a common aim and present an intrinsic coherence from a functional and purposive point of view (judgment No. 137 of 2018, point 5.1. of the Reasons).

As regards government measures with multiple content, the provisions, although heterogeneous from a material point of view, must be united by the objective and all tend towards a unitary aim, albeit characterised by considerable latitude (judgment No. 244 of 2016).

On the other hand, a decree-law that opens up to "intruding rules", extraneous to its purpose, exceeds the limits imposed on the Government's legislative function and sacrifices in a constitutionally intolerable way the role assigned to Parliament in the legislative process.

In fact, in the presence of a very short deadline, within which Parliament must decide whether and with which amendments to approve the law converting the decree-law, the heterogeneity of the government normative act prevents effective parliamentary examination and discussion on the merits of the normative text. The brevity of the deadline given to Parliament to decide whether to approve the conversion law and with which amendments requires, in order to respect Parliament's legislative function, that the subject matter to be regulated be circumscribed.

Without respect for these conditions, the decree-law is transformed into an improper "draft law with guaranteed urgency", in which the most disparate rules can be poured, trusting that the conversion law will consolidate its effectiveness.

8.- The constitutional limits on emergency decree legislation and the conversion law are not only functional to respect for the fundamental balances of the form of government, but also serve to discourage a chaotic and disorganised way of legislating that prejudices legal certainty.

The phenomenon of "intruding rules", inspired by a purpose completely different from that of the original legislative text, is also criticised by other constitutional courts, which operate in constitutional systems that do not know the institution of the decree-law (Conseil constitutionnel, Décision n. 2023-863 DC du 25 janvier 2024), with arguments that reveal the need, inherent in the system of sources, for the homogeneity of their preceptive content.

"Intruding rules" in the text of a decree-law, characterised by contents that can no longer be traced back to a unitary purpose, even broadly interpreted, give rise to fragmented, often incoherent legislation, of problematic interpretation, which aggravates the phenomenon of legal uncertainty and thus prejudices both the effective enjoyment of rights and the orderly development of the economy.

A sufficient degree of predictability of the legal consequences of behaviours is essential in this perspective, a predictability that the disorderly accumulation of laws undermines irremediably.

Legal certainty, far from being a mere philosophical aspiration, constitutes a principle of constitutional importance and must guide the interpretation of the provisions of the Fundamental Charter, is a living and integral part of the European constitutional heritage and, in concrete terms, is expressed as a need for clarity and univocity, as this Court has reiterated recently (judgment No. 110 of 2023).

9.- In the light of the constitutional framework that has been reconstructed, the question raised by the Court of Naples must be examined.

The analysis cannot but start from the defect of the requirement of homogeneity, which the arguments of the referring court highlight, with observations taken up and developed also by the defence of the private party.

This requirement must be examined in the light of internal and external indicators, which contribute to providing the constitutional review with precise points of reference, preventing the scrutiny of this Court from encroaching upon and overlapping with the assessments that are the responsibility of the Government, in adopting the decree-law, and of Parliament, in converting it.

On the other hand, the synergistic and overall assessment of these indicators safeguards the effectiveness of the review that the Constitution entrusts to this Court, as the guardian of the task of "preserving the system of normative sources and, with it, respect for the values for the protection of which this task is provided" (judgment No. 171 of 2007, point 4 of the Reasons).

The indicators described must then be weighed and acquire meaning and significance in the dialectic of the constitutional process, both in proceedings initiated incidentally and in those initiated principally.

10.- A first element, indicative of the evident non-existence of the requirements set out in Article 77 of the Constitution, is imposed on the assessment of this Court.

Article 2, paragraph 3, of Decree-Law No. 51 of 2023, as converted, in establishing the immediate termination of the appointments of superintendents who, on the date of June 1, 2023, have exceeded the age of seventy, presents no correlation with the aims stated in the preamble.

These aims relate to the "extraordinary necessity and urgency of establishing measures to guarantee the efficiency of the organisation of public provident institutions, as well as opera and symphonic foundations" and therefore do not concern in any way the termination of ongoing appointments.

These aims are presented in generic and dogmatic terms and prove to be inconsistent with the rules on the abrupt termination of appointments already conferred, in its content of precise detail that is relevant in this case.

Efficiency, moreover, must also be understood in the light of the statements of principle of this Court (judgment No. 153 of 2011), cited by the State's defence itself in the hearing in support of the public nature of the foundations.

The rules governing opera and symphonic foundations pursue the objective "of directly and effectively protecting the unitary and founding values of the dissemination of musical art, the training of artists and the musical education of the community (Article 3 of Legislative Decree No. 367 of 1996), especially young people, also with the declared aim of transmitting the fundamental civic values traditionally cultivated by the most noble theatrical and cultural institutions of the Nation" (point 5.3. of the Reasons).

The public interests underlying the rules governing opera and symphonic foundations and linked to values of primary constitutional importance (Articles 9 and 33 of the Constitution), do not represent sufficient justification for recourse to emergency decree legislation with regard to the particular area regulated by the challenged provision.

Nor does the reference to Article 13 of Legislative Decree No. 367 of 1996, which regulates the tasks of primary importance of the superintendent and defines the cases of termination of the appointment, provide clarifying elements regarding the case of extraordinary necessity and urgency that the Government has put forward to intervene with the instrument of the decree-law and provide for immediate termination of the appointment, intended to have repercussions on the programming of the entity's activities and on the delicate and long-term choices that such programming requires.

As regards the specific intertemporal rules submitted to the scrutiny of this Court, not even the title of the decree-law, in the indiscriminate reference to the "Urgent provisions concerning the administration of public entities, legislative deadlines and social solidarity initiatives", sheds light on the rigorous prerequisites prescribed by Article 77 of the Constitution.

11.- The inhomogeneity of the challenged provision is also confirmed by the analysis of the broader context in which the legislator's intervention is framed.

Article 2, paragraph 3, of Decree-Law No. 51 of 2023, as converted, is part of Chapter I and follows Article 1, dedicated to the reorganization of public provident institutions.

The decree-law, in Chapter II, extends certain legislative deadlines and, in Chapter III, deals with social solidarity initiatives.

In a measure characterised by a multiplicity of objects, the challenged provision not only finds no firm and recognisable anchorage in the title of the decree-law and in the preamble, but also does not connect coherently to the normative fabric of the text, examined in a broader horizon.

Therefore, a common purposive trajectory cannot be discerned, capable of revealing, for a provision characterised by precise preceptive content, a unitary ratio, which would serve to link it to the other provisions of the decree-law, even in the plurality and diversity of the material areas involved.

12.- Nor can probative elements of the case of extraordinary necessity and urgency that is at the origin of the legislative intervention be derived from the parliamentary discussion.

The debate that accompanied the conversion into law does not allow the identification, with particular regard to the transitional provision under discussion, of the extraordinary necessity and urgency of intervening with the early termination of ongoing employment relationships, according to a timetable (June 1, 2023) that the State's defence itself, in response to the request for clarification made at the hearing, has not convincingly correlated to the prerequisites of Article 77 of the Constitution.

The preparatory work, with arguments also drawn from the intervention of the President of the Council of Ministers, extensively refers to the need to harmonise the pre-existing rules and to promote generational change, without, however, dwelling on the particular provision under scrutiny by this Court.

Nevertheless, the considerations made in this regard, in focusing attention on the substantive legislation, do not indicate resolutive elements concerning the extraordinary necessity and urgency of regulating ongoing relationships, according to the timetable set out in the decree-law, to give concrete effect to the objective of efficiency declared in the preamble of the decree.