JUDGMENT No. 174

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 delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Articles 4, paragraph 1, letter a), and 7, paragraph 16, of the Law of the Sardinia Region of 19 December 2023, No. 17, concerning "Amendments to Regional Law No. 1 of 2023 (2023 Stability Law), budget variations, recognition of off-budget debts and past liabilities and miscellaneous provisions", initiated by the President of the Council of Ministers with an application served on 19 February 2024, filed with the registry on 22 February 2024, entered at No. 6 of the register of applications 2024 and published in the Official Gazette of the Republic No. 11, first special series, of the year 2024.

Having heard the Judge Rapporteur Marco D’Alberti at the public hearing of 15 October 2024;

having heard the State Attorney Giammario Rocchitta for the President of the Council of Ministers;

having deliberated in chambers on 15 October 2024.

Facts

1. – By application served on 19 February 2024, filed on 22 February following and entered at No. 6 of the register of applications 2024, the President of the Council of Ministers, represented and defended by the State Legal Office, initiated, inter alia, questions of constitutional legitimacy of Articles 4, paragraph 1, letter a), and 7, paragraph 16, of the Law of the Sardinia Region of 19 December 2023, No. 17, concerning "Amendments to Regional Law No. 1 of 2023 (2023 Stability Law), budget variations, recognition of off-budget debts and past liabilities and miscellaneous provisions".

2. – Article 4, paragraph 1, letter a), of Sardinia Regional Law No. 17 of 2023 amended Article 124 of the Law of the Sardinia Region of 23 October 2023, No. 9 (Institutional, organizational and financial provisions on various matters), which lays down rules on "[i]nterventions for the recovery of basements, pilotis and ground floor premises".

In particular, the provision under number 1) of letter a) inserted in paragraph 2 of the aforementioned Article 124, after the words "are permitted", the following: ", also by exceeding the volumetric indices and the height and number of floors limits provided for by the current municipal and regional urban planning regulations,".

As a result of this amendment, Article 124, paragraph 2, of Sardinia Regional Law No. 9 of 2023 now provides that "[i]n buildings intended for residential use, interventions for the reuse of existing basements, pilotis and ground floor premises are permitted, also by exceeding the volumetric indices and the height and number of floors limits provided for by the current municipal and regional urban planning regulations, with the aim of containing the consumption of new land and promoting the implementation of technological interventions for containing energy consumption".

2.1. – The President of the Council of Ministers states that he challenged (with application entered at No. 35 of the register of applications 2023) the same Article 124 in the text prior to the amendment, because it was considered to be in contrast with the principle of unitary urban planning of the territory, expressed in Article 41-quinquies of Law 17 August 1942, No. 1150 (Urban Planning Law), and complains that the amendment introduced by Article 4, paragraph 1, letter a), of Sardinia Regional Law No. 17 of 2023 would reintroduce the same conflict, allowing the potential increase in the cubature of residential buildings and the alteration of urban standards.

Although attributable to the regional legislative power in matters of "building and urban planning", pursuant to Article 3, first paragraph, letter f), of Constitutional Law 26 February 1948, No. 3 (Special Statute for Sardinia), the challenged provision would not have respected the limits that the same Article 3 of the Sardinia Statute places on this power, where it provides for its exercise in harmony with the Constitution, the principles of the legal system and international and national obligations.

Consequently, the aforementioned statutory parameter, as well as Articles 9 and 117, first and second paragraphs, letter s), of the Constitution, would be violated.

The principle of loyal collaboration pursuant to Articles 5 and 120 of the Constitution would also be violated, due to non-compliance with the "obligation of concerted and shared planning, necessary for orderly urban development and to identify transformations compatible with the State requirements of the [c]ode of cultural and landscape heritage".

3. – Article 7 of Sardinia Regional Law No. 17 of 2023, which provides for "[d]ispositions on investments and public works", provides, in paragraph 16, that "[a]fter paragraph 3 of Article 37 of Regional Law 13 March 2018, No. 8 (New rules on public contracts for works, services and supplies), the following shall be inserted: "3-bis. For the contracts referred to in paragraph 1, the achievement of a minimum score equal to 60 percent of the maximum value attributable to the technical offer itself shall constitute a requirement for admission of the technical offer.".

The President of the Council of Ministers complains that such a provision "finds no counterpart in the current public contracts code", therefore it would violate the exclusive State legislative competence in the matter of "protection of competition", pursuant to Article 117, second paragraph, letter e), of the Constitution.

The new paragraph 3-bis, in fact, would not be attributable to the primary regional legislative competence in the matter of "public works of exclusive interest to the Region", pursuant to Article 3, first paragraph, letter e), of the Sardinia regional Statute, since the exercise of this competence is subject to the limits deriving from the Constitution, from the principles of the legal system of the Republic, from international obligations, from national interests and from the fundamental rules of the Republic's economic and social reforms. These latter limits, in the aforementioned matter of regional competence, would be filled with content by the provisions of Legislative Decree 31 March 2023, No. 36 (Public Contracts Code pursuant to Article 1 of Law 21 June 2022, No. 78, delegating to the Government in the matter of public contracts), which has the nature of an interposed parameter.

The applicant also complains that the challenged provision, in referring to paragraph 1 of Article 37 of the same Regional Law No. 8 of 2018, already declared unconstitutional by this Court in Judgment No. 166 of 2019, would violate the constitutional res judicata, pursuant to Article 136 of the Constitution.

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

Points of Law

1. – With the application indicated above, the President of the Council of Ministers, represented and defended by the State Legal Office, challenged various provisions of Sardinia Regional Law No. 17 of 2023.

The decision on the other questions of constitutional legitimacy raised in the same application is reserved for a separate judgment; those relating to Article 4, paragraph 1, letter a), and Article 7, paragraph 16, are now examined.

2. – Article 4, paragraph 1, letter a), of Sardinia Regional Law No. 17 of 2023 amended Article 124 of Sardinia Regional Law No. 9 of 2023, which lays down rules on "[i]nterventions for the recovery of basements, pilotis and ground floor premises".

The aforementioned letter a) is divided into numbers 1) and 2).

The provision under number 1) amended paragraph 2 of Article 124, while that under number 2) replaced paragraph 3.

From the content of the application it is clear that the challenge, although literally referring to the entire letter a), concerns only number 1), to which the examination must therefore be limited.

The amendment in question consisted in the insertion in paragraph 2 of Article 124, after the words "are permitted", of the following: ", also by exceeding the volumetric indices and the height and number of floors limits provided for by the current municipal and regional urban planning regulations,".

Consequently, Article 124, paragraph 2, of Sardinia Regional Law No. 9 of 2023 now provides that "[i]n buildings intended for residential use, interventions for the reuse of existing basements, pilotis and ground floor premises are permitted, also by exceeding the volumetric indices and the height and number of floors limits provided for by the current municipal and regional urban planning regulations, with the aim of containing the consumption of new land and promoting the implementation of technological interventions for containing energy consumption".

According to the President of the Council of Ministers – who reports having initiated, with a previous application entered at No. 35 of the register of applications 2023, similar questions of constitutional legitimacy of the same Article 124, in the text prior to the amendment – the challenged provision would violate Article 3, first paragraph, letter f), of the Sardinia regional Statute, since, by allowing the potential increase in the cubature of residential buildings and the alteration of urban standards, it would conflict with the principle of unitary urban planning of the territory, expressed in Article 41-quinquies of Law No. 1150 of 1942, thus not respecting the limits of the primary regional legislative competence in matters of "building and urban planning".

Furthermore, Articles 9 and 117, first and second paragraphs, letter s), of the Constitution would be violated, as well as the principle of loyal collaboration pursuant to Articles 5 and 120 of the Constitution, the latter due to non-compliance with the "obligation of concerted and shared planning, necessary for orderly urban development and to identify transformations compatible with the State requirements of the Code of cultural and landscape heritage".

2.1. – The questions raised with reference to Articles 9 and 117, first and second paragraphs, letter s), of the Constitution, as well as the principle of loyal collaboration pursuant to Articles 5 and 120 of the Constitution, are inadmissible.

According to the constant jurisprudence of this Court, in main proceedings the applicant has the obligation not only to identify the challenged provisions and the constitutional parameters whose violation is alleged, but also to provide, in support of the questions raised, reasons which are not merely assertive, but sufficiently clear and complete (among many, Judgments No. 155, No. 125 and No. 80 of 2023, No. 135 of 2022).

As regards the violation of Articles 9 and 117, second paragraph, letter s), of the Constitution, the applicant does not allege any specific reason for censure and merely indicates the parameters allegedly violated, whose reference at most allows one to hypothesize that he generically invokes the constitutional protection of the environment and the State's legislative competence in the same matter.

As regards the violation of Article 117, first paragraph, of the Constitution, which is alleged without identifying any interposed parameter, not even generic reconstructive hypotheses can be formulated.

The lack of adequate reasoning also concerns the alleged conflict with the principle of loyal collaboration. The applicant complains of non-compliance with the "obligation of concerted and shared planning, necessary for orderly urban development and to identify transformations compatible with the State requirements of the Code of cultural and landscape heritage". However, there is a lack of clear and adequate reasoning, and not merely assertive, on the specific terms of the conflict of the challenged provision with the parameter invoked (in the same sense, Judgment No. 142 of 2024, point 3 of the Points of Law, on similar questions raised with the aforementioned application entered at No. 35 of the register of applications 2023).

2.2. – Turning to the examination on the merits of the censure of the violation of Article 3, first paragraph, letter f), of the Sardinia regional Statute, its perimeter must first be exactly defined.

The concise grounds of appeal focus on the possibility that the reuse interventions of basements, pilotis and ground floor premises located in residential buildings may produce an increase in cubature and an alteration of urban standards (in other words, on the possibility that building density limits set by standards or, more rigorously, by municipal planning are exceeded), without challenging the possible exceeding, through reuse, of the further "height and number of floors limits". Consequently, the censure must be confined to the part of the challenged provision which, by amending paragraph 2 of Article 124 of Sardinia Regional Law No. 9 of 2023, allows the exceeding of the "volumetric indices" provided for by the current municipal and regional urban planning regulations (in a similar sense, again Judgment No. 142 of 2024, points 5.4. and 5.4.1. of the Points of Law, on the failure to challenge, in that judgment, the "possible exceeding of the further limits of height, distance between buildings and maximum ratios between areas allocated to settlements and areas allocated to collective activities, public green spaces or car parks").

2.2.1. – Having said that, it is observed that the challenged provision, in its content, is attributable to the matter of "building and urban planning", attributed by Article 3, first paragraph, letter f), of the Sardinia regional Statute to the primary legislative competence of the Autonomous Region of Sardinia.

However, according to the same Article 3 of the Statute, this competence must be exercised in compliance with the fundamental rules of economic and social reforms, laid down by the State legislature to "respond comprehensively to a unitary interest" and which "therefore require implementation throughout the national territory" (Judgment No. 198 of 2018).

This Court has already attributed Article 41-quinquies of Law No. 1150 of 1942 to these rules, identified by the applicant as an interposed parameter, which expresses the principle of necessary urban planning of the territory (among many, Judgments No. 147, No. 136, No. 90 and No. 17 of 2023) and constitutes the foundation of the regulation of urban standards (Judgment No. 142 of 2024).

The applicant therefore complains that the regional legislature, by providing for the reuse of basements, pilotis and premises located on the ground floor even by exceeding the volumetric indices provided for by the current municipal and regional urban planning regulations, would have exceeded the limits of its primary competence, represented by the principle of urban planning and the regulation of urban standards.

The validity of the censure derives from the stable nature of the expressly derogating regulation of volumetric indices contained, in general terms, in the challenged provision, a regulation which, according to the constant constitutional jurisprudence, the regional legislature can introduce provided that the general derogations are characterized by "exceptionality and [...] temporariness" and by the pursuit of "specific objectives, consistent with the said characteristics" (among many, Judgment No. 17 of 2023).

In this regard, the considerations made by this Court in the aforementioned Judgment No. 142 of 2024 are relevant, under two aspects (discussed, respectively, in points 6.1.2. and 6.3.3. of the Points of Law).

The first concerns the question that the President of the Council of Ministers had raised, for violation of the same parameters invoked here, against Article 124 of Sardinia Regional Law No. 9 of 2023 in the previous text, which allowed the reuse interventions of basements, pilotis and ground floor premises without expressly allowing the exceeding of the volumetric indices.

This Court considered the question unfounded, excluding that "the regulation on the reuse of spaces and volumes gives rise in itself to the derogation from volumetric indices". However, it observed, noting the stable derogating scope of the provision challenged here, that "[t]his is confirmed a contrario in the ius superveniens that amended paragraph 2 of Article 124", since "Article 4, paragraph 1, letter a), of Sardinia Regional Law No. 17 of 2023 added to the rule that allows the reuse of existing basements, pilotis and ground floor premises in buildings intended for residential use, the clause "also by exceeding the volumetric indices and the height and number of floors limits provided for by the current municipal and regional urban planning regulations"", expressly authorizing "[o]nly with this addition [...] the exceeding of building density".

The second aspect concerns the acceptance, on the basis of the same censures, of the question of constitutional legitimacy of Article 123, paragraph 11, of Regional Law No. 9 of 2023, which expressly allowed the recovery of attics "also by exceeding the volumetric indices and height limits provided for by the current municipal and regional regulations".

This Court noted, in particular, that the challenged derogating provision, "despite the appreciable aim of reducing land consumption, disregards the density provided for by urban planning instruments in stable terms, generally allowing reuse interventions with regard to a particularly wide range of spaces and volumes". Hence the conclusion that "[t]he challenged regional rule [...] violates [...] the interest in orderly building development safeguarded by standards and the principle of planning".

Finally, this Court considered it sufficient, to restore the constitutional legitimacy of the provision, to "delete the clause "of the volumetric indices and"".

The same reasons – and the same limitation of the ablative judgment (for the considerations made here in the previous point 2.2.) – also apply to the derogating provision under examination.

Therefore, the unconstitutionality of Article 4, paragraph 1, letter a), of Sardinia Regional Law No. 17 of 2023 must be declared, in the part in which, at number 1), it amended Article 124, paragraph 2, of Sardinia Regional Law No. 9 of 2023, limited to the words "of the volumetric indices and".

3. – Turning to the examination of Article 7, paragraph 16, of Sardinia Regional Law No. 17 of 2023, it inserted in Article 37 of Sardinia Regional Law No. 8 of 2018 the new paragraph 3-bis, according to which "[f]or the contracts referred to in paragraph 1, the achievement of a minimum score equal to 60 percent of the maximum value attributable to the technical offer itself shall constitute a requirement for admission of the technical offer".

In the opinion of the applicant, Article 3, first paragraph, letter e), of the Sardinia regional Statute and Article 117, second paragraph, letter e), of the Constitution would be violated, since this provision "finds no counterpart in the current public contracts code" pursuant to Legislative Decree No. 36 of 2023, thus exceeding the limits of the regional legislative competence in the matter of "public works of exclusive interest to the Region" and thus encroaching on the exclusive State legislative competence in the matter of "protection of competition".

The challenged provision would also violate the constitutional res judicata pursuant to Article 136 of the Constitution, since it refers to paragraph 1 of Article 37 of the same Regional Law No. 8 of 2018, already declared unconstitutional by this Court in Judgment No. 166 of 2019.

3.1. – The censure of the violation of the constitutional res judicata, raised with reference to Article 136 of the Constitution, must first be examined, as it concerns the exercise of the legislative power itself, "which would be inhibited by the constitutional precept whose violation is alleged" (Judgment No. 151 of 2024; in the same sense, among many, Judgments No. 73 of 2022 and No. 215 of 2021).

3.1.1. – The question is unfounded.

According to the constant approach of this Court, the violation of the constitutional res judicata only occurs when the new provision maintains or restores, even indirectly, the effects of the same normative structure that was the subject of the declaration of unconstitutionality (among many, again Judgments No. 151 of 2024 and No. 73 of 2022).

The applicant invokes as res judicata Judgment No. 166 of 2019, which, for the purposes relevant here, declared the unconstitutionality of paragraph 1 (and, consequently, of paragraphs 2, 3, 4 and 8) of Article 37 of Sardinia Regional Law No. 8 of 2018.

Article 37, entitled "Awarding Committee", provided, in paragraph 1, that "[i]n the procedures for awarding contracts for works and concessions using the criterion of the most economically advantageous offer, identified on the basis of the best quality/price ratio pursuant to Article 95 of Legislative Decree No. 50 of 2016, for the purposes of appointing the members of the tendering committee," the Region should establish "the electronic register of tendering committee members, divided by categories of specialization, to which the contracting authorities [would have had] free and direct access".

In challenging this provision, the President of the Council of Ministers argued that it, by providing for the establishment at the Regional level of the "electronic register of tender committee members", deviated from Article 78 of Legislative Decree 18 April 2016, No. 50 (Public Contracts Code), which had established at the National Anti-Corruption Authority (ANAC) the mandatory National Register of members of the judging committees in the procedures for awarding public contracts, also giving ANAC the competence to define, with specific guidelines, the criteria and methods of registration, as well as the methods of operation of the judging committees.

Accepting the question, for the conflict of the challenged paragraph 1 with the statutory limits of the regional legislative power in the matter of public works, this Court observed that Article 78 of Legislative Decree No. 50 of 2016, "in making the drastic choice of removing the appointment of tender committee members from the contracting authorities" and in providing for the establishment and management, by ANAC, of the aforementioned "mandatory National Register of members of the judging committees", had introduced "a radical innovation [...] inspired by aims of transparency, impartiality, protection of competition and prevention of crimes", in the exercise of the "exclusive State competences of the protection of competition and public order" (Judgment No. 166 of 2019, points 9.2. and 9.3. of the Points of Law).

Paragraph 3-bis of Article 37, added by the here challenged Article 7, paragraph 16, of Sardinia Regional Law No. 17 of 2023, has a content entirely extraneous to the establishment of the "electronic register of tender committee members", therefore it does not reproduce nor maintain or restore, directly or indirectly, the effects of the provision under paragraph 1. The challenged provision, in fact, concerns the requirements for admission of the technical offer in the contracts to be awarded using the criterion of the most economically advantageous offer.

3.2. – We can now proceed to the examination of the censure of Article 7, paragraph 16, under the different aspect of the allocation of competences.

The applicant complains of exceeding the limits of the regional legislative power in the matter of "public works of exclusive interest to the Region", pursuant to Article 3, first paragraph, letter e), of the Sardinia regional Statute.

These limits, which derive from the need to respect international obligations, the fundamental rules of economic and social reforms, as well as the general principles of the legal system of the Republic, would be found in the provisions of the current public contracts code enacted by the State in the exercise of its exclusive legislative competence in the matter of "protection of competition". This is therefore the correct meaning to be attributed to the simultaneous invocation of the aforementioned statutory parameter and Article 117, second paragraph, letter e), of the Constitution.

3.2.1. – The question is well-founded.

Although the applicant does not expressly indicate specific provisions of Legislative Decree No. 36 of 2023 limiting the regional legislative power, it must be considered that the challenged provision concerns the "technical offer" in the award procedures of the contracts referred to in paragraph 1 of Article 37 of Sardinia Regional Law No. 8 of 2018, i.e., as seen, in the award procedures of "contracts for works and concessions using the criterion of the most economically advantageous offer, identified on the basis of the best quality/price ratio". This objective scope allows the identification with certainty of the relevant State rules in those which, in Title V of Part V of Book II of Legislative Decree No. 36 of 2023 (Articles 107 to 112), regulate "[t]he selection of tenders", with particular regard to Article 108, which, among other things, lays down rules on the criterion of the most economically advantageous offer.

The challenged provision provides that, if the contract is awarded using this criterion, the technical component of the offer must achieve a minimum score, equal to sixty percent of the maximum ceiling set by the contracting authority for the evaluation of that component, otherwise the technical offer will not be admitted. Considering that the achievement of the minimum score can only be verified after the evaluation of the offer by the tendering committee, the regional legislature has introduced, following this evaluation, an automatic exclusion clause for the technical offer from the award procedure, which leaves no margin for the contracting authority to make a different choice.

Such a provision is not contemplated by Article 108 of the Public Contracts Code.

Paragraph 4 of this provision provides that "[t]he tender documents shall establish the criteria for awarding the offer, relevant to the nature, subject matter and characteristics of the contract", and that, "[i]n particular, the most economically advantageous offer, identified on the basis of the best quality/price ratio, shall be evaluated on the basis of objective criteria, such as the qualitative, environmental or social aspects connected with the subject matter of the contract". It also provides that "[t]he contracting authority, in order to ensure the effective identification of the best quality/price ratio, shall value the qualitative elements of the offer and shall identify criteria designed to guarantee effective competitive comparison on the technical aspects".

The Public Contracts Code is therefore based on the principle of "autonomy of choice of the awarding authority, which [...] must correlate the identification, in addition to the criteria, also of the elements for evaluating them, to the nature, subject matter and content of the contract", and it is its discretion "both to determine and then apply the criteria deemed most suitable to assess the most advantageous nature of the offer" (Judgment No. 23 of 2022, with arguments referring to Article 95, paragraph 6, of the previous Public Contracts Code, but extensible to the similar provisions of Article 108 of Legislative Decree No. 36 of 2023).

By imposing an unavoidable minimum score for the technical offer, the challenged regional provision ultimately undermines the autonomy of choice of the contracting authority, which is precluded, among other things, from a different weighting of the evaluation criteria, if it considers adopting a range between the minimum and maximum, as provided for by the aforementioned Article 108, paragraph 7. This latter provision entrusts the contracting authority itself with the power to assess, case by case, the adequacy of the difference, without establishing it in a fixed manner.

According to the constant approach of this Court, the provisions of the Public Contracts Code concerning the choice of the contractor (the award procedures) are attributable to the matter of the protection of competition and constitute fundamental rules of economic and social reform, also implementing "international obligations arising from Italy's participation in the European Union" (Judgment No. 114 of 2011). It follows that the regions, even those with special autonomy, cannot lay down rules differing from them. In particular, this Court has stated that "[c]ompetition, which generally finds in the uniformity of regulation "a value in itself because different regional regulations are likely to create disparities in regulation, producing territorial barriers" (Judgment No. 283 of 2009), a fortiori, does not tolerate differentiated rules at local level in the procedures that give access to the conclusion of public contracts" (again, Judgment No. 23 of 2022).

The guarantee of effective competitive comparison requires the autonomy of the contracting authorities in evaluating the best offer on a case-by-case basis.

This autonomy has been strengthened by the new 2023 Public Contracts Code compared to its previous versions. This is clearly demonstrated by the Code's provisions dedicated to the "general principles" governing public contracting: in particular, the rules contained in the first three articles of the Code.

According to the "principle of result", contracting authorities "shall pursue the result of awarding the contract and its execution with the utmost speed and the best possible ratio between quality and price, in compliance with the principles of legality, transparency and competition" (Article 1, paragraph 1).

According to the "principle of trust", the "initiative and decision-making autonomy of public officials is promoted and valued, with particular reference to assessments and choices for the acquisition and execution of services according to the principle of result" (Article 2, paragraph 2).

Finally, according to the "principle of market access", contracting authorities "shall encourage [...] market access for economic operators in compliance with the principles of competition, impartiality, non-discrimination, publicity and transparency, proportionality" (Article 3, paragraph 1).

The autonomy of contracting authorities, therefore, is enhanced: limiting it would mean jeopardizing the competition between companies aspiring to the award of the contract.

In conclusion, the challenged provision has exceeded the limits set by the aforementioned fundamental rules, adopted by the State in the name of the protection of competition, to the primary legislative competence that Article 3, first paragraph, letter e), of the Statute attributes to the Autonomous Region of Sardinia.

The unconstitutionality of Article 7, paragraph 16, of Sardinia Regional Law No. 17 of 2023 must therefore be declared, which inserted paragraph 3-bis in Article 37 of Sardinia Regional Law No. 8 of 2018.

For these reasons

THE CONSTITUTIONAL COURT

reserves for a separate judgment the decision on the other questions of constitutional legitimacy raised by the application indicated above;