JUDGMENT NO. 168

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 rendered the following

JUDGMENT

in the proceeding concerning the constitutional legitimacy of Articles 1, 2, 3, and 4 of the Law of the Sardinia Region of February 5, 2024, No. 2 (Provisions on Education), brought by the President of the Council of Ministers with an appeal served on April 4, 2024, filed with the Registry on April 5, 2024, registered at No. 15 of the 2024 appeals register, and published in the Official Gazette of the Republic No. 20, first special series, of the year 2024.

Heard at the public hearing of September 25, 2024, the Reporting Judge Marco D'Alberti;

heard the State Attorney Federico Basilica for the President of the Council of Ministers;

deliberated in the deliberation chamber on September 25, 2024.

Facts

1. – By appeal served on April 4, 2024, filed on April 5, 2024, and registered at No. 15 of the 2024 appeals register, the President of the Council of Ministers, represented and defended by the State Attorney General, raised questions of constitutional legitimacy concerning Articles 1, 2, 3, and 4 of Law No. 2 of the Sardinia Region of February 5, 2024 (Provisions on Education). The questions are raised in reference to Articles 3, 5, and 56 of Constitutional Law No. 3 of February 26, 1948 (Special Statute for Sardinia) and Articles 3, 81, third paragraph, 97, 117, second paragraph, letters g) and n), of the Constitution, in relation to Article 1, paragraphs 557 and 558, of Law No. 197 of December 29, 2022 (State Budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025), and Article 5, paragraph 3, of Decree-Law No. 215 of December 30, 2023 (Urgent provisions concerning regulatory deadlines), converted, with amendments, into Law No. 18 of February 23, 2024.

2. – The applicant premises that Article 1 of Regional Law No. 2 of Sardinia of 2024 establishes that, pending the approval of a regional law reforming education and training, taking into account a series of peculiarities of the Autonomous Region itself, the procedure provided for in Article 56 of the Statute should be initiated, in order to define an implementing provision providing for the maintenance of all existing autonomies in the 2023-2024 school year. However, it observes that, as a consequence of the reorganization of the school network, introduced by Article 1, paragraphs 557 and 558, of Law No. 197 of 2022 and Article 5, paragraph 3, of Decree-Law No. 215 of 2023, as converted, "the possibility, for the 2024/2025 school year only, of increasing the number of autonomous schools by no more than 2.5 percent of the contingent quantified by interministerial decree No. 127 of 2023" has been provided for.

The President of the Council of Ministers therefore notes that, based on the aforementioned reorganization, the number of autonomous schools that can be established in Sardinia would be 234. On the other hand, the Autonomous Region, by confirming the same number of autonomous schools established in the 2023-2024 school year, equal to 270, would have determined an increase of 36 autonomies compared to the contingent established by national legislation, with a consequent increase in the school staff provided for the Region.

This would result in the unconstitutionality of the provision in question due to the inapplicability of the procedures provided for in Article 56 of the Statute to the matter of school staff numbers.

The regional provision would also compromise the unity and homogeneity, at the national level, of the rules governing the legal status and economic treatment of school staff, thus violating Articles 3 and 97 of the Constitution, and the exclusive legislative power of the State in the matter of general rules on education, pursuant to Article 117, second paragraph, letter n), of the Constitution. Furthermore, since the staff numbers for school personnel would be outside the scope of regional legislative competence, as they relate to state employees, there would also be a conflict with Article 117, second paragraph, letter g), of the Constitution, which assigns exclusive legislative competence to the State in the matter of "administrative organization and structure of the State". The applicant refers, on this point, to the considerations made in the judgment of this Court No. 223 of 2023.

3. – The President of the Council of Ministers also challenges Articles 2 and 3 of Regional Law No. 2 of Sardinia of 2024. Article 2, paragraph 1, provides that, until the initiatives provided for in Article 1 are defined and even in the event of a negative outcome, the Autonomous Region of Sardinia shall independently manage the sizing of the school network and the planning of the educational offer, through the adoption of an annual plan that takes into account the need to safeguard the specificities of the schools of the Region in implementation and compliance with regional and national regulations.

Article 3, paragraph 1, provides, on an experimental basis, that for the 2024-2025 school year only, without prejudice to the staff contingent determined pursuant to Article 2, the Autonomous Region of Sardinia, after agreement with the State, shall ensure the maintenance of an "office with organizational and managerial functions, at the autonomous schools subject to closure based on the parameters referred to in Article 2". In order to guarantee the aforementioned office, the Autonomous Region intends to bear the cost associated with the remuneration and allowances deriving from the employment of a teacher with the functions of a school principal's collaborator, an administrative assistant, and up to three school assistants; the related cost is estimated at 600 annual hours.

According to the applicant, the two regional provisions would violate the scope of legislative competence established in Articles 3 and 5 of the Statute of the Sardinia Region and would conflict with Article 117, second paragraph, letter g), of the Constitution, in relation to the reform of the school network sizing system, since the maintenance of the offices provided for in the challenged provisions would concern an area relating to personnel employed in the state public service.

The application of the national collective agreement for the education and research sector to the personnel employed in the establishment of the aforementioned offices would also result in additional costs without financial coverage for the State budget, in violation of Article 81, third paragraph, of the Constitution. There would also be an encroachment of regional legislative power into the attributions reserved by Article 117, second paragraph, letter n), of the Constitution to exclusive state legislation on general rules on education, since the State would be responsible for managing the recruitment of school personnel and the consequent variation in the size of staff allocations.

Furthermore, with regard to Article 3, paragraph 2, of Regional Law No. 2 of Sardinia of 2024, the applicant points out that the recipients of the resource transfers for the establishment of the aforementioned offices referred to in paragraph 1 are not explicitly stated.

4. – The President of the Council of Ministers therefore challenges Article 4 of Regional Law No. 2 of Sardinia of 2024, concerning financial resources, referring to the constitutional parameters and intervening rules invoked in the challenge to the previous articles of the same regional law, noting that their annulment would automatically lead to the overturning of the financial provision as well.

5. – Finally, the applicant invokes, "for the sake of caution," some precedents of this Court (in particular, judgment No. 279 of 2020), which exempt from the obligation to compare the statutory legislative competences in the event that the challenged provisions concern the violation of exclusive state legislative competences.

6. – The Autonomous Region of Sardinia did not intervene in the proceedings.

Points of Law

1. – The President of the Council of Ministers, with the appeal indicated in the heading (reg. ric. no. 15 of 2024) challenges Articles 1, 2, 3, and 4 of Regional Law No. 2 of Sardinia of 2024.

2. – Article 1 establishes that, pending the approval of a regional law reforming education and training, taking into account a series of peculiarities of the Autonomous Region itself, the procedure provided for in Article 56 of the Statute should be initiated, in order to define an implementing provision providing for the maintenance of all existing autonomies in the 2023-2024 school year. The applicant believes that the Autonomous Region of Sardinia, by confirming the same number of autonomous schools established in the 2023-2024 school year, would have determined an increase compared to the contingent established by national legislation, with a consequent increase in the school staff provided for the Region. This would conflict with the constitutional principles on the division of exclusive legislative powers in the matter of education, pursuant to Article 117, second paragraph, letter n), of the Constitution, and with those concerning the administrative organization and structure of the State, pursuant to letter g), in relation to the rules on the reform of the school network sizing system, pursuant to Article 1, paragraphs 557 and 558, of Law No. 197 of 2022 and Article 5, paragraph 3, of Decree-Law No. 215 of 2023, as converted. The applicant refers, on this point, to the considerations made in the judgment of this Court No. 223 of 2023.

The applicant also observes that the procedure under Article 56 of the Statute of the Sardinia Region would not be applicable to the matter of school staff numbers and that the challenged provision would also violate Articles 3 and 97 of the Constitution, compromising the unity and homogeneity, at the national level, of the rules governing the legal status and economic treatment of school staff.

3. – Articles 2 and 3 of Regional Law No. 2 of Sardinia of 2024 are also challenged.

Article 2, paragraph 1, provides that, until the initiatives provided for in Article 1 are defined and even in the event of a negative outcome, the Autonomous Region of Sardinia shall independently manage the sizing of the school network and the planning of the educational offer, through the adoption of an annual plan that takes into account the need to safeguard the specificities of the schools of the Autonomous Region in implementation and compliance with regional and national regulations.

Article 3, paragraph 1, provides, on an experimental basis, that for the 2024-2025 school year only, without prejudice to the staff contingent determined pursuant to Article 2, the Autonomous Region of Sardinia, after agreement with the State, shall ensure the maintenance of an "office with organizational and managerial functions, at the autonomous schools subject to closure based on the parameters referred to in Article 2": the cost associated with the remuneration and allowances deriving from the maintenance of the office is borne by the Region.

The two provisions would violate the scope of legislative competence established in Articles 3 and 5 of the Statute of the Sardinia Region and would conflict with Article 117, second paragraph, letter g), of the Constitution, since the maintenance of the offices provided for in the challenged provisions would concern an area relating to personnel employed in the state public service. There would also be an encroachment into the attributions reserved by Article 117, second paragraph, letter n), of the Constitution to exclusive state legislation on general rules on education. Furthermore, additional costs without financial coverage for the State budget would be introduced, in violation of Article 81, third paragraph, of the Constitution.

4. – Finally, Article 4 of Regional Law No. 2 of Sardinia of 2024, concerning financial resources, is challenged, which, according to the applicant, would be automatically overturned by the annulment of the preceding provisions.

5. – With regard to Article 1 of Regional Law No. 2 of Sardinia of 2024 and the questions raised in reference to the competence parameters under Article 117, second paragraph, of the Constitution, a brief analysis of the rules invoked as intervening parameters by the Government in the present appeal is necessary, and in particular of Article 1, paragraph 557, of Law No. 197 of 2022, and Article 5, paragraph 3, of Decree-Law No. 215 of 2023, as converted.

Article 1, paragraph 557, of Law No. 197 of 2022 inserts, in Article 19 of Decree-Law No. 98 of July 6, 2011 (Urgent provisions for financial stabilization), converted, with amendments, into Law No. 111 of July 15, 2011, paragraphs 5-quater, 5-quinquies, and 5-sexies. The first two paragraphs establish that the regions shall manage school sizing on the basis of the parameters identified by a decree of the Minister of Education and Merit, in agreement with the Minister of Economy and Finance and within the limits of the staff contingent of school principals (SP) and directors of general and administrative services (DGAS) identified by the same decree. This decree is adopted following an agreement at the Unified Conference; if no agreement is reached at this level, the aforementioned Ministers shall unilaterally adopt the decree.

Article 5, paragraph 3, of Decree-Law No. 215 of 2023, as converted, also invoked as an intervening parameter in the present appeal, allowed the regions to activate, for the 2024-2025 school year only, "a further number of autonomous schools by no more than 2.5 percent of the contingent of corresponding positions of school principal and director of general and administrative services" defined by a specific ministerial decree. These additional autonomous schools may only be assigned "acting positions and without a corresponding increase in hiring capacity."

6. – It should also be specified that with judgment No. 223 of 2023 this Court observed that the provisions introduced by Law No. 197 of 2022 "modify the rules for defining the staff contingent of school principals and directors of general and administrative services (DGAS) and its distribution among the regions". These provisions "without in any way affecting the concrete possibility for the regions to locate the school buildings where the autonomous institutions or their branches are to be located [...] redefine the size of the staff contingent of SPs and DGASs, to which the quantitative identification of autonomous school institutions is related based on the new criterion that establishes a one-to-one relationship between each of these and a principal". The judgment adds that the state legislation, in establishing that the number of autonomous schools must correspond to that of SPs and DGASs, "aims [...] to overcome the institution of acting positions".

This Court, in the same judgment, noted that the rules laid down by the state legislator are based, predominantly, on two different headings of its exclusive competence. Firstly, the matter of "administrative organization and structure of the State", referred to in letter g) of the second paragraph of Article 117 of the Constitution, is relevant, since the determination of the school contingent and the simultaneous choice of overcoming the legal institution of acting positions relate to personnel employed in the state public service. Secondly, the matter of "general rules on education", falling within the exclusive state legislative power under Article 117, second paragraph, letter n), of the Constitution, must be considered, because the revision of criteria and parameters for determining the overall staff concerns this matter (judgment No. 200 of 2009); and because the state provisions aim "to redefine a fundamental aspect of the functional autonomy [...] that characterizes school institutions, being aimed at establishing a necessary link between autonomy and the effective title of a principal, so that the former is no longer given in the absence of this figure" (again judgment No. 223 of 2023).

Ultimately, based on the indications given by the above-mentioned decision, the competence of the regions regarding the performance of the school sizing function remains unchanged: they can autonomously define the type and location of school institutions, and decide to establish new branches or to aggregate existing ones, also taking into account the particular needs of each territory. However, the state reform requires them to respect, in the performance of this function, the staff contingent determined by the ministerial decree and to overcome, in the long term, the institution of acting positions, subject to the specific percentage derogation provided for in Article 5, paragraph 3, of Decree-Law No. 215 of 2023, as converted, for the 2024-2025 school year only.

7. – With this premise, it is evident how Article 1 of Regional Law No. 2 of Sardinia of 2024, in setting itself the objective of maintaining all existing autonomous schools, and therefore regardless of the managerial contingent defined by the State, is in conflict with Article 117, second paragraph, letter n), of the Constitution, which assigns exclusive state legislative competence to the matter of "general rules on education", since it violates the principle of correspondence between principals assigned to the regions and the school institutions present in the territory.

The challenged provision is equally in conflict with letter g) of the second paragraph of Article 117 of the Constitution, since, as explicitly stated in judgment No. 223 of 2023, the "determination of the [school] contingent" and the simultaneous "choice of overcoming [...] the legal institution of acting positions relate to personnel employed in the state public service".

8. – Articles 2 and 3 of Regional Law No. 2 of Sardinia of 2024 also encroach on areas reserved to the exclusive legislative competence of the State.

The two provisions, in fact, read together, have the stated objective of establishing at the autonomous schools subject to closure (and, therefore, in those that it will not be possible to maintain due to the lack of agreement with the State under Article 1) an "office with organizational and managerial functions". The increased costs for the establishment of the office, composed of "a teacher who performs the duties of a school principal's collaborator, an administrative assistant, and up to three school assistants", are borne by the Autonomous Region, in the amount quantified in the subsequent Article 4.

Articles 2, 3, and 4 therefore violate Article 117, second paragraph, letter n), of the Constitution, as they affect school autonomy and the determination of staff numbers, removing some teaching staff from the performance of teaching duties. Furthermore, they also conflict with letter g) of the same second paragraph, concerning the job description of personnel employed in the state public service, without however clarifying how the personnel to be assigned to the aforementioned offices should be selected.

9. – In conclusion, the unconstitutionality of Articles 1, 2, 3, and 4 of Regional Law No. 2 of Sardinia of 2024 must be declared, for violation of Article 117, second paragraph, of the Constitution, letters g) and n), with absorption of the questions raised in reference to the further parameters invoked.

The remaining provision of the challenged regional law, concerning its entry into force (Article 5), is devoid of independent normative effect. Therefore, the declaration of unconstitutionality must be extended to the entire text of the regional law (judgments No. 31 of 2021, No. 228 of 2018, and No. 217 of 2015).

for these reasons

THE CONSTITUTIONAL COURT

declares the unconstitutionality of Law No. 2 of the Sardinia Region of February 5, 2024 (Provisions on Education).

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 25, 2024.

Signed:

Augusto Antonio BARBERA, President

Marco D'ALBERTI, Reporting Judge

Roberto MILANA, Registrar

Filed with the Registry on October 28, 2024