JUDGMENT NO. 172

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Justices: 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 issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 1 of the Law of the Sicilian Region No. 6 of 5 July 2023 (Transitional provisions on the elections of the bodies of wide area entities), initiated by the Regional Administrative Tribunal for Sicily, First Section, in the proceedings between the Municipality of Enna and the Sicilian Region and others, by order of 14 February 2024, registered under No. 51 of the 2024 register of orders and published in the Official Gazette of the Republic No. 14, First Special Series, of the year 2024.

Having seen the acts of constitution of the Sicilian Region and the Municipality of Enna, as well as the act of intervention of F.M. D.;

Having heard in the public hearing of 15 October 2024 the Reporting Justice Francesco Viganò;

Having heard the lawyers Agatino Cariola for F.M. D., Viviana Sebastiana Fonte for the Municipality of Enna, and Nicola Dumas for the Sicilian Region;

Deliberated in the Chamber of Council of 15 October 2024.

Considered in fact

1.– By order of 14 February 2024, the Regional Administrative Tribunal for Sicily, First Section, raised questions of constitutional legitimacy of Article 1 of the Law of the Sicilian Region No. 6 of 5 July 2023 (Transitional provisions on the elections of the bodies of wide area entities), with reference to Articles 1, 3, 5 and 114 of the Constitution.

1.1.– The main proceedings concern the challenge, brought by the Municipality of Enna – initially with an appeal notified on 28 October 2022, then with additional grounds submitted on 1 February, 4 May, and 31 October 2023 – of four decrees of the President of the Sicilian Region (31 August 2022, No. 573; 29 December 2022, No. 610; 30 March 2023, No. 530; 15 September 2023, No. 566).

The referral order states in particular:

– that the first three decrees – concerning respectively the appointment of G. D.F. as Extraordinary Commissioner for the management of the Free Municipal Consortium of Enna, pending the establishment of the bodies of the entity and in any case not beyond 31 December 2022; the extension of the term of the commissarial management until 31 March 2023; and the further extension of the same management until 31 August 2023 – were adopted on the basis of Article 13, paragraph 43, of the Law of the Sicilian Region No. 16 of 10 August 2022 (Amendments to Regional Law No. 13 of 25 May 2022 and to Regional Law No. 14 of 25 May 2022. Variations to the Budget Forecast of the Sicilian Region for the three-year period 2022/2024. Various provisions), which postponed the elections of the presidents of the free municipal consortia and of the metropolitan councils from 2022 to 2023: an extension that has meanwhile been declared constitutionally illegitimate, due to conflict with Articles 3, 5, and 114 of the Constitution, by Judgment No. 136 of 2023 of this Court;

– that the fourth decree, concerning the appointment of C. M. as Extraordinary Commissioner for the management of the Free Municipal Consortium of Enna until the establishment of the elective bodies of the entity and in any case not beyond 31 December 2024, was instead adopted in application of the Sicilian Regional Law No. 6 of 2023;

– that Article 1, paragraph 1, letters a) and b), and c), of said regional law, amending respectively Articles 6, paragraph 2, 14-bis, paragraph 7, and 51, paragraph 1, of the Law of the Sicilian Region No. 15 of 4 August 2015 (Provisions regarding free Municipal Consortia and Metropolitan Cities), provides that, "pending the approval of the national law reforming the wide area entities aimed at introducing the election by universal and direct suffrage of the bodies of the aforementioned entities,” the date of the election of the bodies of the wide area entities is fixed by the President of the Region "within one hundred and twenty days from the date of the elections of the bodies of the local authorities in the ordinary electoral round to be held in the year 2024”, and that the term of the commissarial management of these entities be extended to 31 December 2024;

– that the censures articulated by the Municipality of Enna in the main proceedings, as integrated by the additional grounds, focus, inter alia, on the "derived” illegitimacy of the fourth decree, arising from the conflict with Articles 1, 3, 5, and 114 of the Constitution, of Article 1 of the Sicilian Regional Law No. 6 of 2023, which constitutes its basis.

1.2.– The referring court states that it considers unfounded the preliminary objections raised by the respondents Sicilian Region, Regional Department of Local Autonomies and Public Function, and Regional Department of Local Autonomies.

There would be, first of all, the standing to sue and the legitimacy of the Municipality of Enna to challenge the contested decrees, as "an entity expressly involved by the law in the constitution of the bodies of the wide area entities in Sicily", given that, based on Article 6, paragraphs 5 and 6, of the Sicilian Regional Law No. 15 of 2015, the President of the free municipal consortium is elected, by the mayors and municipal councilors of the municipalities belonging to the free municipal consortium, among "the mayors of the municipalities belonging to the same free Municipal Consortium whose mandate expires no earlier than eighteen months from the date of the elections".

The challenge would also be admissible, as it concerns not Article 1 of the Sicilian Regional Law No. 6 of 2023, but the presidential decree appointing the commissioner, subject to a "specific censure proper to (constitutional) derived illegitimacy” and "challengeable with the typical instruments of administrative proceedings”, pursuant to Article 113 of the Constitution.

1.3.– Instead, the doubts of constitutional illegitimacy of Article 1 of the Sicilian Regional Law No. 6 of 2023 raised by the Municipality of Enna would be relevant and not manifestly unfounded.

1.3.1.– As to relevance, since the Sicilian Regional Law No. 6 of 2023 allows the postponement of the election of the Presidents of the free municipal consortia to a date to be fixed by the President of the Region "within one hundred and twenty days from the date of the elections of the bodies of the local authorities in the ordinary electoral round to be held in the year 2024" and extends the commissarial management until 31 December 2024, the first ground of appeal articulated by the Municipality of Enna should be rejected, given the "formal legitimacy" of the challenged decree.

1.3.2.– In relation to the non-manifest unfoundedness, the referring court recalls that the aforementioned Judgment No. 136 of 2023 declared constitutionally illegitimate Article 13, paragraph 43, of the Sicilian Regional Law No. 16 of 2022, which provided for the postponement by one year – from 2022 to 2023 – of the elections, already postponed several times, of the Presidents of the free municipal consortia and of the metropolitan councils, and simultaneously extended the mandate of the extraordinary commissioners appointed by the Region to carry out the functions of the former, considering that the postponement in question – devoid of any justification – adding to the previous ones, unreasonably prevented the holding of elections, in violation of the autonomy attributed to the wide area entities by Articles 5 and 114 of the Constitution.

The same conclusion would be imposed in reference to Article 1 of the Sicilian Regional Law No. 6 of 2023, which postpones the elections of the bodies of the wide area entities in Sicily by another year.

The postponement of the elections could not be considered immune from censure on the constitutional level simply because it was ordered "pending the approval of the national law reforming the wide area entities aimed at introducing the election by universal direct suffrage of the bodies of the aforementioned entities" (Article 1, paragraph 1, letters a and b, of the Sicilian Regional Law No. 6 of 2023).

On the one hand, this justification might at most be relevant in reference to the canon of reasonableness under Article 3 of the Constitution, but it would not serve to avert the violation of Articles 5 and 114 of the Constitution, given the continuing obstacle placed by the regional legislator to the establishment of the wide area entities in Sicily, in disregard of the warning contained in the indicated Judgment No. 136 of 2023, which had invited it to ensure "the timely conduct of the elections of the presidents of the free Municipal Consortia and of the Metropolitan Councils”.

On the other hand, the umpteenth postponement of the elections of the bodies of the wide area entities would not be justified by the presentation, both at the state level (with texts A.S. No. 57, No. 203, No. 367, No. 417 of 2023), and at the regional level (with the d.d.l. No. 319-97 of 2023), of draft laws aimed at reintroducing the election by universal direct suffrage of the bodies of provinces and metropolitan cities and at overcoming the discipline of the second-degree election provided for by Law No. 56 of 7 April 2014 (Provisions on metropolitan cities, on provinces, on unions and mergers of municipalities). These would in fact be "fleeting and in any case non-definitive data […] as they depend only on possible political determinations of national and regional parliamentary bodies, which are completely free on the if, what, how and when of their activities”.

2.– The Sicilian Region, the respondent in the main proceedings, has appeared in the proceedings, requesting that the questions be declared inadmissible or, in the alternative, unfounded.

2.1.– The referral order would first of all exhibit a generic motivation regarding the relevance of the questions, which would not be in a relationship of instrumentality with the definition of the main proceedings.

2.2.– On the merits, unlike that implemented with Article 13, paragraph 43, of the Sicilian Regional Law No. 16 of 2022 and censured by this Court with Judgment No. 136 of 2023, the further postponement by one year of the elections of the bodies of the wide area entities, ordered by Article 1 of the Sicilian Regional Law No. 6 of 2023, would be justified – as results from the very "literal and motivational tenor” of the provision – by the "process of legislative evolution of national importance for overcoming the so-called Delrio Law already underway”. The failure of the President of the Council of Ministers to challenge the Sicilian Regional Law No. 6 of 2023 would rather demonstrate that the regional legislation is "instrumental to the implementation of the new directions in the matter of direct election of the bodies of the wide area entities".

2.3.– The declaration of constitutional illegitimacy of Article 1 of the Sicilian Regional Law No. 6 of 2023 would then have the paradoxical effect of "eliminating from the legal order precisely the transitional legislation aimed at disciplining procedurally, in first application, the second-level election of the wide area entities provided for by regional law No. 15 of 4 August 2015 [...] to be held in the year 2024", thus conflicting with the warning contained in Judgment No. 136 of 2023.

2.4.– The administrative measures of commissariamento challenged in the main proceedings would then be based on Articles 97 and 98 of the Constitution, which enunciate the canons of good performance of administrative action and of continuity of public powers and of the administrative function, as well as on Article 120, second paragraph, of the Constitution, which provides for the exercise of substitute powers to protect legal or economic unity and essential levels of services concerning civil and social rights, and on Article 145 of the administrative organization of local authorities in the Sicilian Region, approved by Law of the Sicilian Region No. 16 of 15 March 1963 and subsequent amendments, which governs the appointment of the Extraordinary Commissioner in replacement of the bodies of the free municipal consortium. Therefore, the possible declaration of constitutional illegitimacy of Article 1 of the Sicilian Regional Law No. 6 of 2023 could not in any case "automatically imply the declaration of nullity" of the administrative measure appointing the extraordinary commissioner, as this is implicitly based on rules of constitutional rank and justified by the need to ensure the functionality of the commissariated entity.

3.– The Municipality of Enna, the appellant in the main proceedings, has also appeared in the proceedings, requesting the acceptance of the questions.

Having retraced the sequence – culminating in the adoption of the Sicilian Regional Law No. 6 of 2023 – of the postponements of the elections of the bodies of the wide area entities ordered from 2015 to 2024, the Municipality complains that the "punctual and continuous interventions" of the regional legislator have "in fact prevented the constitution of the wide area entities in Sicily". This would entail "the violation of the principles of democracy referred to in Article 1, first paragraph, of the Constitution in that referendums and elections (albeit indirect) represent the highest moment of manifestation of popular sovereignty"; the "[v]iolation of Article 3 of the Constitution and therefore [the] conflict with the principle and canon of reasonableness because the exceptional situation that could justify, immediately after the entry into force of the reform discipline, the extension originally ordered in 2016, cannot be a valid justification for the numerous subsequent extensions that have followed one another over a period of nine years"; the "[v]iolation of Articles 5 and 114 of the Constitution in that the autonomy and representativeness of the entities in question are emptied by a commissariamento sine die".

Having extensively recalled Judgment No. 136 of 2023 of this Court, the party observes that with the Sicilian Regional Law No. 6 of 2023 the same defects of unconstitutionality in which the regional legislator has already incurred in the previous formations of the same discipline of the matter in question would have been "plainly reproduced".

As to the circumstance that this regional law was issued "[p]ending the approval of the regional law for the reorganization of the free Municipal Consortia and Metropolitan Cities, aimed at introducing the election by universal and direct suffrage of the bodies of the aforementioned wide area entities" (Article 1, paragraph 1, first period), the Municipality of Enna observes that the d.d.l. No. 319-97 of 2023, aimed at reintroducing the direct election of the bodies of the wide area entities, was "rejected by the Sicilian Regional Assembly most recently in the session of 7 February 2024", on the grounds that such a discipline would be contrary to Law No. 56 of 2014, which contains economic and social reform rules binding on the Sicilian Region.

Although draft laws aimed at the reintroduction of the direct election of the bodies of wide area entities have been presented at the state level, "the expectation of legislative measures – at the state as well as regional level – that are future and uncertain" could not justify "the sine die postponement of the elections for the formation of the governing bodies of the intermediate entity", in violation of Articles 1, 3, 5, and 114 of the Constitution and of Judgment No. 136 of 2023 of this Court.

4.– F.M. D. intervened ad adiuvandum in the proceedings before this Court.

The intervener observes that his standing to intervene would derive:

a) from his status as a citizen elector registered in the electoral lists of the Municipality of Aci Castello and therefore "interested in the conformation of the institutional structures in which the circuit of representation and political responsibility is expressed at all levels of government, starting from the local level" (Judgment of this Court No. 1 of 2014 is cited);

b) from his having initiated, with a request for recognition of his right to participate in the constitution of the governing body of the Metropolitan City of Catania, the proceedings in the course of which the questions of constitutional legitimacy of the Sicilian Regional Law No. 15 of 2015 and of Law No. 56 of 2014 examined by this Court with Judgment No. 240 of 2021 were raised;

c) from his having filed, on 22 March 2024, an act of intervention in the present main proceedings.

The intervention should then be considered admissible in light of the case law both constitutional ( Judgment No. 294 of 2011 is cited, which in Considered in fact gives an account of the intervention, before this Court, of the party in proceedings different from the main proceedings), and of the European Court of Human Rights (judgment of 23 June 1993, Ruiz-Mateos v. Spain, is referred to).

5.– In the proximity of the public hearing, the Sicilian Region filed an illustrative brief, in which it notes that Article 1 of the Sicilian Regional Law No. 6 of 2023, censured by the referring court, was repealed by Article 1, paragraph 2, of the Law of the Sicilian Region No. 24 of 8 August 2024 (Postponement of the elections of the bodies of wide area entities). This new provision, "in adherence to the objections raised”, would have "defined, containing it within an even clearer and more strictly contingent range, the new term for postponing the elections”.

The Region therefore requests that the acts be returned to the referring court for a new assessment of the relevance of the questions raised.

6.– The Municipality of Enna also filed an illustrative brief, which, while acknowledging the entry into force of the Sicilian Regional Law No. 24 of 2024, considers that it has not complied with the warning contained in Judgment No. 136 of 2023, nor remedied the vulnera reported by the referring court in the present proceedings. The new regulatory framework would rather have confirmed the already censured postponement of the elections to 2024, thus manifesting the "will of the Sicilian legislator to continue in the commissariamenti of the LCCs and not proceed with the indirect elections".

7.– F.M. D. also filed an illustrative brief, reiterating his legitimacy to intervene in the constitutional proceedings for the reasons already set out in the act of intervention and adding that "the popular action recognized to all citizen-electors in electoral matters is a true and proper general principle of our legal system, which is in turn an expression of values that absolutely characterize the constitutional structure, such as that of popular sovereignty and participation in the ‘political organization’ of the Country".

8.– Also in the proximity of the public hearing, both the Sicilian Region and F.M. D. produced in the proceedings the decree of the President of the Sicilian Region No. 551 of 1 October 2024, which calls the elections of the Presidents and Councils of the Free Municipal Consortia of Agrigento, Caltanissetta, Enna, Ragusa, Siracusa, and Trapani as well as of the Metropolitan Councils of Palermo, Catania, and Messina for 15 December 2024.

9.– At the hearing of 15 October 2024, F.M. D. reiterated his submissions regarding the admissibility of his intervention, adding that he is in a situation analogous to that of the defaulting party who decides to appear late in the proceedings, or of one who intervenes in the merits of the proceedings in which a regulation of jurisdiction has been promoted.

Considered in law

1.– With the order indicated in the heading, the TAR Sicily, First Section, censured Article 1 of the Sicilian Regional Law No. 6 of 2023, denouncing its conflict with Articles 1, 3, 5, and 114 of the Constitution.

The censured provision, amending Articles 6, paragraph 2, 14-bis, paragraph 7, and 51, paragraph 1, of the Sicilian Regional Law No. 15 of 2015, postpones the elections of the Presidents of the free municipal consortia and of the metropolitan councils to a date fixed by decree of the President of the Sicilian Region to be adopted "within one hundred and twenty days from the date of the elections of the bodies of the local authorities in the ordinary electoral round to be held in the year 2024", and simultaneously extends to 31 December 2024 the term of the commissarial management of the functions of the Presidents of the free municipal consortia.

This postponement (which follows sixteen other previous postponements of the elections of the Sicilian wide area entities) would unreasonably and unjustifiably prevent the constitution of the bodies of the wide area entities in Sicily, in violation of the autonomy constitutionally attributed to the entities in question.

2.– Preliminarily, the inadmissibility of the intervention in the present proceedings of F.M. D. must be reiterated, for the reasons set out in the procedural order read at the hearing of 15 October 2024 and attached to this judgment.

3.– The objection, raised by the Sicilian Region, of inadmissibility of the questions for the generality of the motivation on the relevance and lack of instrumentality with respect to the definition of the main proceedings must then be rejected.

The referring court has in fact specified:

– that it considers that the standing to sue and the legitimacy of the Municipality of Enna to challenge the decree appointing the Extraordinary Commissioner for the management of the Free Municipal Consortium of Enna exist, given that, pursuant to Article 6, paragraphs 5 and 6, of the Sicilian Regional Law No. 15 of 2015, the mayor and the municipal councilors are entitled to active and passive voting rights in relation to the election of the President of the free municipal consortium;

– that it considers admissible the challenge by the Municipality of Enna, as it concerns an administrative act for which the applicant assumes, among other things, "derived" illegitimacy, as it is based on a provision of law (Article 1 of the Sicilian Regional Law No. 6 of 2023) that is considered constitutionally illegitimate;

– that it considers that the censure of the applicant Municipality of Enna can be accepted, and decree No. 566 of 2023 annulled, only after the declaration of constitutional illegitimacy of Article 1 of the Sicilian Regional Law No. 6 of 2023, the act not being affected by other defects that could totally undermine its legitimacy.

This precise motivation certainly exceeds the threshold of non-implausibility to which this Court must base its external assessment on the relevance of the questions (ex multis, Judgments No. 80 of 2024, point 4.1. of Considered in law; No. 50 of 2024, point 3.5.1. of Considered in law; No. 164 of 2023, point 4 of Considered in law).

4.– During the present proceedings, the Sicilian Regional Law No. 6 of 2023, Article 1 of which is the subject of the censures of the referring court, was repealed by Article 1, paragraph 2, of the Sicilian Regional Law No. 24 of 2024.

This latter regional law does not provide for any further postponement of the elections of the bodies of the wide area entities, but directly identifies a time interval for the carrying out of the electoral consultations (a Sunday between 1 and 31 December 2024).

In light of this new regulatory event, the Sicilian Region has asked this Court to return the acts to the referring court for a new assessment of the relevance of the questions.

The request cannot be accepted.

According to the constant case law of this Court (ex multis, Judgments No. 227 of 2021, point 6 of Considered in law; No. 170 of 2019, point 3 of Considered in law; No. 7 of 2019, point 3 of Considered in law; No. 240 of 2018, point 3 of Considered in law; No. 245 of 2016, point 2.1. of Considered in law; as well as, conversely, Order No. 30 of 2024), when the censured provisions constitute the basis of administrative measures challenged before the administrative court, "[t]he ius superveniens does not require the return of the acts to the referring court, as it is irrelevant in the main proceedings, where the legitimacy of administrative measures to be evaluated based on the principle tempus regit actum is discussed" (Judgment No. 245 of 2016, point 2.1. of Considered in law), and therefore "with regard to the situation of fact and of law existing at the time of their adoption" (Judgment No. 170 of 2019, point 3 of Considered in law).

In the main proceedings, the Municipality of Enna has challenged before the TAR Sicily, among other things, the decree of the President of the Region appointing C. M. as Extraordinary Commissioner for the management of the Free Municipal Consortium of Enna, complaining of its "derived” illegitimacy, arising from the conflict with Articles 1, 3, 5, and 114 of the Constitution of Article 1 of the Sicilian Regional Law No. 6 of 2023, on the basis of which the administrative act was adopted.

It is therefore evident that the legitimacy of the challenged decree will have to be assessed, in the main proceedings, on the basis of the law in force at the time of its adoption, and therefore of the Sicilian Regional Law No. 6 of 2023, without its subsequent repeal by Article 1, paragraph 2, of the Sicilian Regional Law No. 24 of 2024 being relevant.

5.– On the merits, the questions are well-founded with reference to Articles 5 and 114 of the Constitution, with absorption of the additional censures.

5.1.– Judgment No. 136 of 2023 declared constitutionally illegitimate Article 13, paragraph 43, of the Sicilian Regional Law No. 16 of 2022, due to conflict with Articles 3, 5, and 114 of the Constitution.

This provision had postponed the elections of the bodies of the wide area entities of the Sicilian Region from 2022 to 2023; and had simultaneously extended the final term of the commissarial management of the functions of the presidents of the free municipal consortia from "not beyond 31 August 2022” to "not beyond 31 August 2023”.

Having retraced the succession of the fifteen regional laws, preceding No. 16 of 2022, which had ordered as many postponements of the elections of the bodies of the wide area entities of the Sicilian Region, this Court noted that the institutional structure of these entities has remained "substantially unimplemented so far", since the continuous postponements of the elections by the Sicilian legislator have "in fact prevented the constitution of the wide area entities in Sicily". Such a situation was considered to be in conflict with Articles 5 and 114 of the Constitution, which require the establishment of the free municipal consortia (entities that take the place, in the Region, of the abolished provincial districts) and of the metropolitan cities, in compliance with their nature as autonomous and constitutionally necessary entities; as well as with the canon of reasonableness under Article 3 of the Constitution, since the postponement of the elections had been ordered without any justification.

This Court has therefore invited the Sicilian Region to remedy this situation "without further delay, through the timely holding of elections of the presidents of the free Municipal Consortia and of the Metropolitan Councils, so that also in Sicily the intermediate entities are established and endowed with the autonomy constitutionally guaranteed to them, and an end is put to the repeatedly extended commissarial management".

5.2.– The Sicilian Regional Law No. 6 of 2023, promulgated the day before the deposit of Judgment No. 136 of 2023 and which came into force on 8 July 2023, again postponed the elections of the president of the free municipal consortium and of the metropolitan council, this time to a date to be fixed by decree of the President of the Region "within one hundred and twenty days from the date of the elections of the bodies of the local authorities in the ordinary electoral round to be held in the year 2024" (Article 1, paragraph 1, letters a and b). Letter c) of paragraph 1 of Article 1, amending Article 51, paragraph 1, of the Sicilian Regional Law No. 15 of 2015, then extended the commissarial management of the functions of President of the free municipal consortium to "not beyond 31 December 2024".

These regulatory interventions are self-described as having been implemented "[p]ending the approval of the regional law for the reorganization of the free Municipal Consortia and Metropolitan Cities, aimed at introducing the election by universal and direct suffrage of the bodies of the aforementioned wide area entities" (Article 1, paragraph 1, first alinea); a regional law that, in effect, was in the planning stage at the time of the presentation of the d.d.l. No. 502 of 26 May 2023, which was then finalized in the Sicilian Regional Law No. 6 of 2023 (thus the report to the d.d.l.).

Article 1, paragraph 1, letters a) and b), also specify that the postponement of the elections is ordered "pending the approval of the national law reforming the wide area entities aimed at introducing the election by universal direct suffrage of the bodies of the aforementioned entities".

5.3.– Contrary to what was argued by the regional defense, the circumstance that the regional law under scrutiny today motivates the new postponement of the elections with reference to political reform processes that are not yet completed, does not, in the opinion of this Court, exclude the constitutional vulnera reported by