JUDGMENT NO. 147
YEAR 2024
Commentary on the Decision of
Enrico Verdolini
for g.c. of Diritti Comparati
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 delivered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 3, paragraph 1, letter b), of the Law of the Piedmont Region of 17 February 2010, No. 3 (Regulations on Social Housing), brought before the Court by the Ordinary Court of Turin, First Civil Section, in the proceedings between the Association for Legal Studies on Immigration (ASGI) aps, the Piedmont Region and the Municipality of Turin, by order of 10 November 2023, registered at No. 162 of the register of orders 2023 and published in the Official Gazette of the Republic No. 1, first special series, of the year 2024.
Having considered the pleadings of the Piedmont Region and, out of time, of the Association for Legal Studies on Immigration (ASGI) aps;
having heard, at the public hearing of 2 July 2024, the reporting Judge Filippo Patroni Griffi;
having heard the lawyer Massimo Scisciot for the Piedmont Region;
having deliberated in the deliberation chamber of 2 July 2024.
Facts
1.— The Ordinary Court of Turin, First Civil Section, by order of 10 November 2023 (reg. ord. no. 162 of 2023), raised questions of constitutional legitimacy, with reference to Article 3 of the Constitution, of Article 3, paragraph 1, letter b), of the Law of the Piedmont Region of 17 February 2010, No. 3 (Regulations on Social Housing), which provides, as a requirement for obtaining the assignment of social housing, "having had an address registered or exclusive or principal employment for at least five years in the regional territory, with at least three years, even non-consecutive, within the area of competence of the managing bodies of socio-welfare policies or being registered with the AIRE”.
1.2.— The referring judge reports that he is called upon to rule, pursuant to Article 28 of Legislative Decree 1 September 2011, No. 150 (Supplementary provisions to the Code of Civil Procedure concerning the reduction and simplification of civil proceedings, pursuant to Article 54 of Law 18 June 2009, No. 69) and Articles 281-decies et seq. of the Code of Civil Procedure, on the request of the Association for Legal Studies on Immigration (ASGI) aps to ascertain the discriminatory nature of the Piedmont Regional Regulation of 4 October 2011, No. 9/R, concerning "Regulations of the competition and ranking notice, pursuant to Article 5, paragraph 9, of Regional Law 17 February 2010, No. 3 (Regulations on Social Housing)" and the "ERP 2023 notice" of the Municipality of Turin, which refer to the requirements set out in Article 3, paragraph 1, letters b) and c), of Regional Law Piedmont No. 3 of 2010; consequently, it is specifically requested that the relevant clauses of the notice be removed and that the rankings be reopened for a suitable period. ASGI argues that both the five-year residence or work requirement (letter b) and the requirement of ineligibility for holders of international protection (letter c) are unconstitutional.
1.2.1.— The Court of Turin considered the doubts of constitutional legitimacy raised by ASGI in relation to the requirement of Article 3, paragraph 1, letter c), of Regional Law Piedmont No. 3 of 2010, to be manifestly unfounded and ruled on the relevant application with another order.
1.3.— On the other hand, the a quo judge considers the doubt of constitutional legitimacy of the requirements referred to in Article 3, paragraph 1, letter b), of the same regional law, to be relevant and not manifestly unfounded.
1.3.1.— On the point of relevance, the Court of Turin – having considered the active standing of ASGI, which was not contested by the defendants, the Municipality of Turin and the Piedmont Region – observes that both Article 3 of Regional Regulation No. 9/R of 2011 and Article 2 of the Municipality of Turin's notice refer to the requirements of the provision under scrutiny, so that there is "a full correspondence between the provision of regional law and the discrimination alleged by the applicant, also in terms of "indirect discrimination”, since "the requirements of prolonged residence constitute a particular disadvantage to the detriment of foreigners”. It follows that Article 3, paragraph 1, letter b), of Regional Law Piedmont No. 3 of 2010 "constitutes the indispensable prerequisite for the administrative acts of which the discriminatory nature has been requested, with the consequent injunctive and compensatory orders”.
1.3.2.— In support of the non-manifest unfoundedness, the referring judge refers to judgment No. 44 of 2020 of this Court (followed by judgments No. 145 and No. 77 of 2023), which – in declaring the unconstitutionality of a similar requirement – found that, since public residential buildings are intended to meet a housing need, "the condition of prior prolonged residence of its beneficiaries has no reasonable connection with it”, as it is not an indication of "any relevant condition in relation to the need that the service aims to meet”; similarly, there is no connection with "the condition of prior occupation”. Such requirements, it was therefore concluded, are contrary to Article 3 of the Constitution, both because they create unequal treatment to the detriment of those who do not possess them and because they contradict the social function of public residential buildings.
The provision under scrutiny would also be unconstitutional on another ground, as it excludes from the need to possess the residential or employment requirement those registered with the Register of Italians residing abroad (AIRE), thereby introducing "a distinction without justification with respect to the function of the service”.
2.— The Piedmont Region appeared before the Court by means of a pleading filed on 21 January 2024, to which a report from the Welfare Directorate is attached, requesting the rejection of the question of constitutional legitimacy.
2.1.— The regional defence argues that "the systematic interpretation of Piedmontese legislation on the requirements for access to social housing highlights its specificity and uniqueness, which serves to differentiate it "structurally” from that of other regions”.
Regional legislation, in any case, would guarantee the "prevalence” of situations of documented "housing emergency” over any other selection criterion, including that of residence in the area rather than the performance of exclusive employment within the region. This is by virtue of Article 10, paragraph 5, of Regional Law Piedmont No. 3 of 2010, which provides that the requirement of the provision under scrutiny "is waived in the presence of situations of "housing emergency”” and therefore makes the regional regulatory framework "ontologically” reasonable. According to the Region's defence, the provision under scrutiny would instead "reinforce” the principle that, in the face of a housing emergency, any parameters of connection with the local area cannot be taken into consideration, "since the only relevant and overriding parameter is constituted by an "algorithm” of criteria that enhances the social function of the public housing service”.
In the light of the foregoing, the Piedmont Region considers it possible to deliver a judgment of interpretative rejection clarifying "that the lack of the requirement of five-year residence or employment "in loco” does not prevent access to the use of the social housing service in cases where the applicant is in a situation of so-called "housing emergency””.
3.— ASGI appeared before the Court, out of time, on 27 May 2024, requesting the upholding of the question of constitutional legitimacy.
4.— In the proximity of the hearing, the Piedmont Region filed a memorandum in which it insisted on requesting an "interpretative judgment of rejection or other "manipulative” order”.
The regional defence reiterated, in fact, that in cases of housing emergency pursuant to Article 10 of Regional Law Piedmont No. 3 of 2010, the requirements provided for in the provision under scrutiny are waived. This would mean that the residence criterion would not constitute "a requirement for access to public residential buildings, but a simple evaluative parameter within the rankings that each Piedmontese municipality will carry out within the framework of the procedures provided for by law”.
Insisting at the public hearing on its arguments, the regional defence also stressed the significant "impact on public order” of the provision in question.
Points of Law
1.— By the order indicated in the heading, the Ordinary Court of Turin, First Civil Section, raised, with reference to Article 3 of the Constitution, questions of constitutional legitimacy of Article 3, paragraph 1, letter b), of Regional Law Piedmont No. 3 of 2010, which provides, as a requirement for obtaining the assignment of social housing, "having had an address registered or exclusive or principal employment for at least five years in the regional territory, with at least three years, even non-consecutive, within the area of competence of the managing bodies of socio-welfare policies or being registered with the AIRE”.
1.1.— According to the referring judge, the provision under scrutiny is similar to others already declared unconstitutional by this Court in judgments No. 145 and No. 77 of 2023 and No. 44 of 2020. With the latter decision, in particular, it was affirmed that, since public residential buildings are intended to meet a housing need, "the condition of prior prolonged residence of its beneficiaries has no reasonable connection with it”, as it is not an indication of "any relevant condition in relation to the need that the service aims to meet”; similarly, there is no connection with "[n]or the condition of prior occupation”: hence the conflict found with Article 3 of the Constitution.
The provision under scrutiny, adds the a quo judge, would also be unconstitutional on another ground, as it excludes those registered with the AIRE from the need to possess the requirement in question, thereby introducing "a distinction without justification with respect to the function of the service”.
2.— As a preliminary matter, it should be noted that, subsequent to the order for referral, the following sentence was added to Article 3, paragraph 1, letter b), of Regional Law Piedmont No. 3 of 2010 – the wording of which is the subject of the scrutiny and is the result of the amendment made by Article 106, paragraph 2, of the Law of the Piedmont Region of 17 December 2018, No. 19 (Annual Law for the Reorganisation of the Regional System. Year 2018) – by Article 2, paragraph 2, of the Law of the Piedmont Region of 27 February 2024, No. 2, concerning "Amendments to Regional Law 17 February 2010, No. 3 (Regulations on Social Housing) and further provisions”: ". The applicant must, however, be resident or employed in one of the municipalities of the territorial area on the date of publication of the notice”.
However, this is *ius superveniens* which is unable to affect these proceedings and, in particular, is incapable of causing the return of the documents to the a quo judge: the new provision, in fact, does not in any way alter the normative meaning of the provision under scrutiny, which has remained unchanged, so that it does not affect the assessments concerning the relevance and the non-manifest unfoundedness of the question of constitutional legitimacy raised by the Court of Turin.
3.— On the merits, the question is well-founded.
3.1.— The case law of this Court has long affirmed that the right to housing is among "the essential requirements characterising the sociality to which the democratic State desired by the Constitution conforms”, therefore called upon to guarantee a fundamental social right that contributes "to ensuring that the life of every person reflects every day and in every aspect the universal image of human dignity” (judgments No. 43 of 2022 and No. 217 of 1988; more recently, to the same effect, judgment No. 28 of 2024).
Public residential buildings (ERP) constitute fulfilment of this duty that the Constitution places upon the Republic, as they "are aimed at ensuring the concrete satisfaction of this primary need, because they serve to "guarantee housing to economically weak subjects in the place where their interests are located” (judgment No. 176 of 2000), in order to ensure a dignified existence for all those who do not have sufficient resources (Article 34 of the Charter of Fundamental Rights of the European Union), through a public service responsible for the "provision of housing for workers and less well-off families” (judgment No. 168 of 2014)” (judgment No. 44 of 2020).
3.2.— In the exercise of their competences in this area, on several occasions, some regional legislators have variously provided, for access to ERP, requirements analogous to those challenged by the order for referral from the Court of Turin.
Whenever such requirements have been submitted to the judgment of constitutional legitimacy of this Court, it has repeatedly and consistently been affirmed that "no reasonable correlation is seen between the need to access housing, where one is in economically fragile conditions, and previous and prolonged residence – however it is defined […] – in the regional territory” (thus, most recently, judgment No. 67 of 2024). The requirement of prolonged residence, in fact, prevents the satisfaction of the right to housing independently of any assessment relating to the situation of need or hardship, which is not affected by the duration of the stay in the regional territory; it does not consider that it is precisely those in need who frequently move from one place to another in search of work opportunities; it is not an indication of a prospect of settlement (judgments No. 67 of 2024, No. 145 and No. 77 of 2023, No. 44 of 2020 and No. 166 of 2018). It is therefore, precisely because it is completely detached from any assessment of the state of need, "incompatible with the very concept of social service, as a service intended primarily for economically weak subjects” (judgments No. 9 of 2021 and No. 44 of 2020) and is therefore unconstitutional for violation of Article 3 of the Constitution on three grounds: for intrinsic unreasonableness, precisely because it is a requirement completely unrelated to the function of social housing; because it creates unjustified unequal treatment between persons who are in the same conditions of fragility; and because it betrays the duty of the Republic to "remove economic and social obstacles which, by limiting in fact the liberty and equality of citizens, prevent the full development of the human person” (judgment No. 67 of 2024).
The requirement of prior prolonged occupation, sometimes provided as an alternative to that of prolonged residence, has also been considered unconstitutional. This condition, too, has no reasonable connection with the rationale of the ERP, as it similarly constitutes a rigid threshold of access and therefore denies any relevance to the need in granting the benefit, indeed negating it "precisely to the most economically vulnerable subjects, in contradiction with the social function of the service” (judgment No. 44 of 2020). On the other hand, it cannot be denied that it is precisely those in need who are led to move from one place to another, in search of employment that can guarantee them and their families a free and dignified existence (judgments No. 67 and No. 53 of 2024).
3.2.1.— Nor, to the contrary, has it been found relevant that such requirements are intended to modulate the allocation of housing on the basis of the prospect of settlement in the regional territory of the persons intending to access the ERP, as it is not from the previous stay in the region that "such a prospect of settlement can be inferred” (judgment No. 67 of 2024).
The "forecast of stability” (judgment No. 44 of 2020), if anything, can be made at the stage of drawing up the rankings by using indices capable of basing it, such as the seniority of the applicant's presence in the rankings themselves, "as a circumstance that documents the worsening of social suffering due to the failure to meet the housing request” (judgment No. 67 of 2024). This, however, always provided that the prospects of stability retain "a less relevant character than the necessary centrality of the significant factors of the need situation to which the service responds, such as those indicating the subjective and objective conditions of the applicants” (judgment No. 9 of 2021).
3.3.— In the light of the principles now recalled, the present provision under scrutiny must also be declared unconstitutional, as it provides, as alternative requirements for obtaining social housing, previous and prolonged residence or employment for at least five years in the regional territory.
The provision under scrutiny at Article 3, paragraph 1, letter b), also provides that of these five years, at least three, even non-consecutive, have been spent "within the area of competence of the managing bodies of socio-welfare policies”. In this way, the provision under scrutiny here determines an even stricter rigidity in access to the ERP, as it further restricts the range of persons who can obtain satisfaction of their right to housing (judgment No. 77 of 2023). Those already settled in the regional territory, but who are resident or employed in a territorial area different from that in which the procedures for the allocation of social housing are initiated, end up being treated in an unjustifiedly undifferentiated manner, thus compressing even within the same Region, and in a completely random manner, the freedom of movement of persons in need.
4.— The arguments put forward by the Piedmont Region do not lead to different conclusions. The regional defence argues that "the systematic interpretation of Piedmontese legislation on the requirements for access to social housing highlights its specificity and uniqueness, which serves to differentiate it "structurally” from that of other regions”. Article 10, paragraph 5, of Regional Law Piedmont No. 3 of 2010, in fact, would allow municipalities to waive the requirements challenged by the Court of Turin "in the presence of situations of housing emergency”, so that in such circumstances the applicant could obtain social housing even in the absence of "parameters of connection with the local area”: hence the request for an "interpretative judgment of rejection”.
4.1.— The fallacy of the defence’s argument is already shown by the circumstance, previously underlined, that the ERP ontologically responds to the task of the Republic of guaranteeing the right to housing to those who do not have the economic capacity to access the market, thus satisfying a primary need of every person. The fact that the plurality of concrete situations determines a varied picture of conditions of hardship, some possibly definable as "housing emergency”, does not detract from the fact that the potential assignees of social housing are all persons who are in need, to whom a dignified existence must be ensured.
4.2.— To exclude the feasibility of the hermeneutic option proposed by the Piedmont Region, however, is the circumstance that the alleged waiver of the requirements in question has a much more limited and, above all, very different application than the regional defence claims.
Pursuant to Article 10, paragraphs 1 and 2, of Regional Law Piedmont No. 3 of 2010, in fact, the institution of "housing emergency” does allow municipalities to satisfy the right to housing "outside the rankings” (paragraph 1), but only if "the requirements prescribed by Article 3” are met (paragraph 2). Even in cases of "housing emergency”, therefore, the applicant must meet the requirements of the provision under scrutiny.
The waiver of these latter, to which the regional defence refers, on the other hand, only applies when "conditions of particular urgency are ascertained by the municipality”; but "particular urgency” and "housing emergency” are not legally overlapping concepts, so much so that, and significantly, the former only enables the administration to carry out "temporary arrangements that cannot exceed a period of two years, non-extensible or renewable” (Article 10, paragraph 5). To all intents and purposes, therefore, it is not a case of assigning housing in derogation of the contested requirements, but of simple temporary arrangements, carried out, albeit independently of the existence of the aforementioned requirements, but for a limited and defined period of time.
Further proof of this is the fact that the cases of "housing emergency” are indicated in Article 6 of Regional Regulation 4 October 2011, No. 12/R, concerning "Regulations of the procedures for the assignment of social housing, pursuant to Article 2, paragraph 5, of Regional Law 17 February 2010, No. 3 (Regulations on Social Housing)”, and these further demonstrate how limited the scope of application of the alleged waiver relied upon by the Piedmont Region is: it is only in the presence of one of these specific situations – the assessment of whose existence, as well as of the "particular urgency”, is left to the municipality in concreto – that it is possible to proceed to "accommodation” in social housing, temporary and non-extensible or renewable, for persons who do not meet the requirements of the provision under scrutiny.
5.— Article 3, paragraph 1, letter b), of Regional Law Piedmont No. 3 of 2010 – as amended by Article 106, paragraph 2, of Regional Law Piedmont No. 19 of 2018 – must therefore be declared unconstitutional to the extent of the words "for at least five years” and "with at least three years, even non-consecutive, within the area of competence of the managing bodies of socio-welfare policies”.
For these Reasons
THE CONSTITUTIONAL COURT
declares the unconstitutionality of Article 3, paragraph 1, letter b), of the Law of the Piedmont Region of 17 February 2010, No. 3 (Regulations on Social Housing) – as amended by Article 106, paragraph 2, of the Law of the Piedmont Region of 17 December 2018, No. 19 (Annual Law for the Reorganisation of the Regional System. Year 2018) – to the extent of the words "for at least five years” and "with at least three years, even non-consecutive, within the area of competence of the managing bodies of socio-welfare policies”.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 2 July 2024.
Signed:
Augusto Antonio BARBERA, President
Filippo PATRONI GRIFFI, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on 25 July 2024