JUDGMENT NO. 182
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 proceedings concerning the constitutional legitimacy of Article 87, paragraph 4, letter a) (correctly: of the combined provisions of Articles 87, paragraph 4, letter a), number 2, and 90, paragraph 1, letter d), of the Autonomous Province of Trento Law of August 4, 2015, No. 15 (Provincial Law for Territorial Governance), brought before the Court by the Regional Administrative Court of Trentino-Alto Adige, Trento branch, in the proceedings between A. V. and the Municipality of M., with Order of January 17, 2024, registered under No. 34 of the 2024 Orders Register and published in the Official Gazette of the Republic No. 12, first special series, of the year 2024.
Having considered the statement of the Autonomous Province of Trento;
having heard, at the public hearing of October 16, 2024, the Reporting Judge Luca Antonini;
having heard Attorney Sabrina Azzolini for the Autonomous Province of Trento;
having deliberated in chambers on October 29, 2024.
Facts
1. – By Order of January 17, 2024 (Reg. Ord. No. 34 of 2024), the Regional Administrative Court of Trentino-Alto Adige, Trento branch, raised, in reference to Articles 3 and 31 of the Constitution, questions of constitutional legitimacy of Article 87, paragraph 4, letter a) (correctly: number 2), of the Autonomous Province of Trento Law of August 4, 2015, No. 15 (Provincial Law for Territorial Governance), insofar as it "does not refer, in addition to the spouse who is not divorced or legally separated, also to the de facto cohabitant, as defined” by Article 1, paragraph 36, of Law No. 76 of May 20, 2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitation).
2. – The aforementioned Article 87 governs the construction contribution due for the execution of building works that increase the urban load and, in letter a) of paragraph 4, establishes the requirements of the "first home”, which is exempt, among other things, under the terms established by the subsequent Article 90, paragraph 1, letter d).
More precisely, according to the first provision, a "first home” exists: "1) if the housing unit is owned by the applicant; 2) if, at the time of signing the agreement provided for in Article 90, paragraph 2, the applicant and his/her spouse, not divorced or legally separated, are not owners or co-owners, heirs or legatees, of the right of ownership, use, usufruct or habitation on another dwelling suitable for family needs, within the provincial territory. [...]; 3) if the applicant undertakes to establish his/her residence there within one year of the declaration of completion of works and to maintain it for the following ten years”.
By virtue of the second provision, the construction contribution is not due "for new construction works intended to create the applicant's first home, limited to the first 120 square meters of net usable area and provided that the dwelling is not classified as luxury pursuant to the Decree of the Minister of Public Works of August 2, 1969”.
3. – The questions arose during the proceedings for the annulment of the decision by which a municipality rejected an application to obtain such exemption, considering that the negative requirement provided for in Article 87, paragraph 4, letter a), number 2), of Provincial Law No. 15 of 2015 is applicable, in addition to spouses, also to de facto cohabitants.
3.1. – As regards relevance, the referring TRGA, after specifying that the applicant and her partner constitute a couple cohabiting *more uxorio*, states that it cannot share the interpretation adopted by the municipality, since the challenged provision would refer unequivocally only to subjects united by the marriage bond.
3.2. – As regards non-manifest unfoundedness, the a quo judge observes that "it is not clear why” the undisputed provision, which constitutes "an exception to the generalized obligation to pay the construction contribution to the Municipality”, does not preclude the enjoyment of the aforementioned exemption when the de facto cohabitant of the applicant for the permit is already the owner or co-owner, heir or legatee of the rights of ownership, use, usufruct or habitation on a dwelling suitable for family needs, thus also giving rise to unjustified unequal treatment compared to the case where the applicant's spouse has these rights.
In support of the doubts of constitutional illegitimacy raised, the referring court cites Judgment No. 209 of 2022, in which this Court declared the unconstitutionality, for violation of Article 3 of the Constitution, of State provisions that, in essence, allowed de facto cohabitants, but not spouses residing and dwelling in different places, to benefit from the double exemption from the municipal property tax (IMU) on the main residence.
"In our constitutional system”, in fact, "fiscal measures structured in such a way as to penalize those who, by formalizing their relationship, decide to marry or form a civil union cannot find acceptance. This is, however, precisely the effect produced by the challenged fourth period of Article 13, paragraph 2, because, as a consequence of the reference to the family unit contained therein, until such family unit is constituted, the rule allows each owner of a property who resides and dwells there habitually to peacefully enjoy the IMU exemption on the main residence, even if united in a de facto cohabitation: in this case, the partners will be entitled to a double exemption, because each of them will be able to consider their respective property as a family home. The choice to accept that their emotional relationship is governed by the legal rules of marriage or civil union, however, determines the effect of precluding the possibility of maintaining the double exemption even when actual needs, such as in particular work needs, require the choice of different registered residences and habitual dwellings”.
The a quo judge then recalled that the same judgment, "[d]eveloping this reasoning”, considered the further criticism relating to Article 31 of the Constitution to be well-founded, observing that "the Italian tax system proves stingy in supporting families. And this despite the generosity with which the Italian Constitution recognizes its value, as a lever capable of accompanying social, economic and civil development, dedicating three provisions to the protection of the family, with an attention that is rarely found in other legal systems”.
It therefore considered the challenged legislation to be also in conflict with Article 31 of the Constitution, as it ended up recognizing the right to exemption "only in the case of a ‘breakdown of the cohabitation relationship between the spouses’ and the consequent ‘disintegration of the family unit’”.
Referring to this judgment, the a quo judge considers that the challenged legislation, providing for the obstacle to exemption from the construction contribution only for spouses and not for de facto cohabitants despite the same prerequisites being present, namely "cohabitation and availability (by title of ownership or other real right) on the part of one of the two members of the couple of a dwelling suitable for the needs of the family”, is in conflict with Articles 3 and 31 of the Constitution.
4. – The Autonomous Province of Trento entered the proceedings and requested that the questions raised be declared unfounded, considering that a constitutionally oriented interpretation of the challenged provision is feasible, aimed at extending the obstacle provided for therein to de facto cohabitants as well.
Provincial Law No. 15 of 2015 of Trento – the Autonomous Province observes in this regard – was in fact adopted before Law No. 76 of 2016, which "[f]or the first time” would have recognized for de facto cohabitants those same "affective couple bonds and mutual assistance” to which the possible enjoyment, by one spouse, of the dwelling subject to the rights of ownership, use, usufruct or habitation held by the other could also be attributed: the reading of the suspected provision, therefore, should now "necessarily be adapted to the new legal framework” and disregard, consequently, "the form and manner” in which family units have been constituted.
This conclusion would not, moreover, be incompatible with the wording of the provision in question, which, in referring to the "availability” of another dwelling suitable for "family needs”, generically uses this term, referring to a concept of family in a broad sense, "without preclusions with respect to the forms in which it is constituted”.
5. – Shortly before the hearing, the Autonomous Province of Trento filed an explanatory memorandum, reiterating and elaborating on the arguments put forward in support of the feasibility of the conforming interpretation.
Reasons
1. – By Order of January 17, 2024 (Reg. Ord. No. 34 of 2024), the TRGA of Trentino-Alto Adige, Trento branch, doubts the constitutional legitimacy of Article 87, paragraph 4, letter a), number 2), of Provincial Law No. 15 of 2015, insofar as, in defining the obstacle to exemption from payment of the construction contribution for the main residence, it does not provide, in addition to the spouse of the applicant for the building permit, also for the de facto cohabitant.
2. – The aforementioned Article 87, in fact, governs the construction contribution due for the execution of building works that increase the urban load and, with the undisputed provision, establishes that the first home is considered as such in the presence of a negative requirement, given by the circumstance that the applicant for the building permit and his/her spouse, "not divorced or legally separated”, are not already "owners or co-owners, heirs or legatees, of the right of ownership, use, usufruct or habitation on another dwelling suitable for family needs, within the provincial territory”.
This provision, for the purposes relevant here, makes sense in light of the subsequent Article 90, paragraph 1, letter d), which provides for an exemption from the aforementioned construction contribution "for new construction works intended”, precisely, "to create the applicant's first home”, limited to the first 120 square meters of net usable area and provided that the residence is not classifiable as luxury.
3. – In the opinion of the referring court, the challenged provision would be in conflict, first of all, with Article 3 of the Constitution: there would be no reason, in fact, to allow the enjoyment of the described exemption in the event that the de facto cohabitant of the applicant for the building permit has ownership (or one of the aforementioned rights) on a dwelling suitable for family needs in the provincial territory, which would also result in unjustified unequal treatment between de facto cohabitants and married couples.
In this way, the challenged normative provision would also violate Article 31 of the Constitution, as it would not take into account the needs for the protection of the family, ending up penalizing it.
4. – It should be preliminarily clarified that from the overall wording of the referral order it emerges that the a quo judge criticizes not only the definition of main residence, but above all the related exemption – indeed, this is the subject of the dispute in the main proceedings – so that the petitum actually concerns the combined provisions of Article 87, paragraph 4, letter a), number 2), and Article 90, paragraph 1, letter d), of Provincial Law No. 15 of 2015.
5. – The referring court starts from the assumption that an adapting interpretation of Article 87, paragraph 4, letter a), number 2), of Provincial Law No. 15 of 2015 is not feasible, as it cannot be considered that the obstacle requirement provided for therein can be extended, in this way, also to the case of de facto cohabitation; the letter of the law, the a quo judge observes in fact, "constitutes the limit to which even the constitutionally oriented interpretation must stop, since the incident of unconstitutionality must be raised whenever the interpretative option presumed to be in conformity with the Constitution is incongruous with the literal wording of the rule itself (in these terms Cass. civ., Sez. un., March 22, 2019, No. 8230)”.
Conversely, the Autonomous Province argues that such a conclusion can be reached, on the basis of the literal wording and a historical-evolutionary interpretation.
5.1. – The hermeneutical premise of the a quo judge is acceptable, in light of the clear textual wording of the provincial provision in question: this, in expressly referring to the "spouse”, is in fact unequivocal in circumscribing its application only to those who are bound by the marriage bond (and by the civil union, by virtue of Article 1, paragraph 20, of Law No. 76 of 2016).
On the other hand, the argument of the Autonomous Province of Trento that it would be a matter, in this case, of resorting to a historical-evolutionary interpretation based on the subsequent enactment, with respect to the provincial law in question, of Law No. 76 of 2016, which "[f]or the first time” would have also recognized for de facto cohabitants "affective couple bonds and mutual moral and material assistance”, is without merit.
On the contrary, it should be noted that, at the time of the adoption of Provincial Law No. 15 of 2015, de facto cohabitation already represented a phenomenon that had recognition at the normative level – being provided for, albeit fragmentarily, by a plurality of provisions, as recently noted by this Court (Judgment No. 148 of 2024) – and jurisprudential.
Moreover, the provincial legislator itself intervened again (with the Autonomous Province of Trento Law of June 16, 2017, No. 3, concerning "Amendments to the 2015 Provincial Law for Territorial Governance and other provincial provisions on the environment, energy, public works, tourism and hunting”) on the definition of first home and on the related exemption for the case of new constructions even after the aforementioned Law No. 76 of 2016, without, however, introducing a reference to de facto cohabitation.
6. – Having clarified this, it should be noted that, albeit through different paths, both the referring judge and the Autonomous Province of Trento ask this Court to circumscribe the scope of the challenged facilitative provisions, the former through an additive ruling aimed at a downward equalization, which would preclude the enjoyment of the benefit also for de facto cohabitants, the latter through a – however, unfeasible – constitutionally oriented interpretation that achieves the same result.
In effect, these provincial provisions constitute actual privilege rules, which, as the referring judge points out, constitute "an exception to the generalized obligation to pay the construction contribution to the Municipality” and conflict first of all with the principle of reasonableness, as emerges from a deeper understanding of the ratio of the construction contribution.
6.1. – This contribution, in fact, has "the nature of an imposed patrimonial performance, of a non-tax nature”, general and non-reciprocal (Council of State, plenary assembly, judgments of August 30, 2018, No. 12, and December 7, 2016, No. 24), and "represents a private contribution to the public expenditure required for the execution of urbanization works” (Council of State, fourth section, judgment of May 27, 2024, No. 4685, and, again, Cons. Stato, ad. plen., No. 12 of 2018 and No. 24 of 2016); the exemption from its payment therefore translates into an exception to the duty to contribute to this expenditure.
Specifically, the contribution is composed of two quotas, parameterized, respectively, to the urbanization charges and the construction cost, which represent, one, the greater sacrifice imposed on the community in terms of urban load and, the other, the increase in the value of the real estate property resulting from the construction.
The rationes of the two quotas are different: the first aims to compensate the community for the cost that the construction determines for it; the second aims to socialize the greater value that the owner obtains from the construction.
In this perspective, that of the costliness of the building permit is a "general rule” (Judgment No. 296 of 1991; the administrative jurisprudence is oriented in the same direction: ex plurimis, Council of State, second section, judgment of December 28, 2021, No. 8682, and fourth section, judgment of June 1, 2020, No. 3405), which constitutes a fundamental principle of the "territorial governance” matter (ex plurimis, Judgments No. 247 and No. 64 of 2020) and "fundamental rule of economic and social reforms” (Judgment No. 1033 of 1988).
6.2. – Exceptions to the rule of costliness are provided for, also by State legislation – Article 17, paragraph 3, of Presidential Decree No. 380 of June 6, 2001, containing the "Consolidated text of legislative and regulatory provisions on building matters. (Text A)” – but these are always aimed at pursuing general interests, of a solidarity or incentive nature for activities and interventions that have a positive impact on the environment. Outside these cases of exemption, a (mere) reduction of the contribution for the creation of first homes is provided for: Article 17, paragraph 2, of the building consolidated text establishes, in fact, that in this case it is "equal to that established for the corresponding public residential building”, or to "only the quota of urbanization charges”, as specified by the preceding paragraph 1 of the same Article 17. The State legislator, therefore, for the first home, has provided for the exemption from payment of only the quota corresponding to the construction cost, renouncing the socialization of what derives to the owner from the construction, but certainly not also of the quota relating to urbanization charges, or to the surplus of works and the consequent cost that the new building intervention places on the community.
7. – The in-depth analysis of the ratio of the construction contribution reveals the unreasonableness of the challenged normative provision, which recognizes an exemption that, moreover, has no equals in other regional or provincial legislation.
7.1. – The evident singularity of this provision lies in exempting the builder, not only from the socialization of the greater value that he/she receives, but also from the urbanization charges, or from the cost that he/she places on the community, without any actual general interest being found.
The individual interest in building one's first home may, in certain cases, certainly be supported by the legal system, because Article 47 of the Constitution provides that the Republic shall promote "access by the popular savings to home ownership”, but it cannot always be qualified, a priori, as a "general” interest to the point of exempting indiscriminate beneficiaries from the costs relating to urbanization charges, caused by them, making them fall on general taxation – incidentally, it should also be remembered that the Autonomous Province of Trento, like other special autonomies, is mainly financed with participations in national taxes and only to a small extent with an autonomous tax effort, as this Court has already had occasion to find (Judgment No. 27 of 2024).
The Trentino exemption mechanism, in other words, does not simply determine a lower tax revenue for the treasury, as is the case, for example, for the IMU exemption for the first home, pursuant to Article 1, paragraph 741, letter b), first period, of Law No. 160 of December 27, 2019 (State budget for the financial year 2020 and multi-year budget for the three-year period 2020-2022), or for the waiver, in the case of subsidized housing, of the socialization of the increase in the value of the real estate property resulting from the construction (Article 17, paragraph 1, building consolidated text).
This mechanism, however, has the effect of exempting those who build from bearing the serious negative externality that they, through urbanization charges, determine for the community.
To aggravate the unreasonableness is, moreover, the circumstance that the provincial legislator has not attributed any importance to a situation of fragility of the applicant for the benefit, which is not in fact limited to only the less well-off.
Even those who are wealthy and, hypothetically, already own numerous houses outside the Province, who decide to establish their residence in the provincial territory, are exempted.
Only for this reason does this person enjoy the exemption, which, however, as mentioned, burdens the entire community for the negative externality determined by the urbanization charges.
This externality can therefore end up weighing also on those who, although subject to general taxation, are still in difficult economic conditions or who, in any case, do not have sufficient resources to build a house of their own.
Moreover, precisely because the exemption is not structured (for example, through the provision of an income requirement) in such a way as to be genuinely concerned with situations of fragility, the profiles of unreasonableness also emerge with regard to the failure to exclude de facto cohabitants, contributing to creating the unjustified discrimination on which the referring court focuses.
Nor is the described unreasonableness mitigated by the limitation of the exemption to the first 120 square meters and to non-luxury dwellings, because even in this circumscribed area of application the irrationality of the legislation in question remains evident, which ends up, in any case, placing the cost determined by the constructions on general taxation, and therefore also on low-income people.
7.2. – Some time ago this Court had underlined that "the evolution of social consciousness” and "the serious crisis of public finances” make increasingly less bearable the "favorable treatments” that tend to qualify as privileges (Judgment No. 421 of 1995); more recently, it has again highlighted the need for a "particularly rigorous” scrutiny of tax relief rules that are not attributable "to the implementation of other constitutional principles (such as, for example, the protection of the family, the right to health or the development of social security)” (Judgment No. 120 of 2020).
It is, moreover, in this perspective, aimed at highlighting the reciprocal integration relationships that bind people in social life, that the Constitution, according to a "deontological (and not merely utilitarian) approach” (again Judgment No. 421 of 1995), qualifies as "mandatory” the fulfillment of the duties of economic, political and social solidarity (Article 2 of the Constitution).
This Court, therefore, cannot refrain from particularly stringent scrutiny of all those rules that, brought to its attention, prove to be, even outside the strictly fiscal field, without any teleological perspective attributable to the implementation of other constitutional principles or the common good, creating arbitrary privileges that do not help social cohesion.
8. – Having recognized, therefore, the actual existence of the described violations of the principle of reasonableness, this Court cannot, however, but also consider the questions raised by the referring court to be inadmissible, complaining, in particular, that the challenged rules unreasonably introduce, and moreover in violation of Article 31 of the Constitution, a privilege that also ends up disadvantaging (contrary to what was stated in Judgment No. 209 of 2022) couples who decide to marry or enter into a civil union.
This is because the ways in which the identified violations could be overcome can be multiple, implying system interventions on the complex normative framework mentioned above; therefore, these are initially left to the discretion of the provincial legislator, who, in compliance with the principle of reasonableness and on the basis of the models present in the State legislation, has several options available to bring the exemption back within a constitutionally compatible framework.
Moreover, in the micro-system of the Trentino legislation on construction contribution, not only does the exemption from the construction contribution also occur in other cases, with respect to that criticized by the referring court, relating to the first home (as in the case, for example, of interventions aimed at recovering constructions, buildings or buildings in historical settlements), but also in numerous others that are independent of it (for example, with regard to works functional to the exercise of aquaculture activities, woodpiles and sheds, parking lots, as well as plants and technological equipment).
The mere downward equalization requested by the referring court would therefore give rise to a disharmonious normative framework. It is therefore up to the provincial legislator to provide, promptly, for a systematic reform of this set of exemptions.
for these reasons
THE CONSTITUTIONAL COURT
declares inadmissible the questions of constitutional legitimacy of the combined provisions of Articles 87, paragraph 4, letter a), number 2), and 90, paragraph 1, letter d), of the Autonomous Province of Trento Law of August 4, 2015, No. 15 (Provincial Law for Territorial Governance), raised, in reference to Articles 3 and 31 of the Constitution, by the Regional Administrative Court of Trentino-Alto Adige, Trento branch, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 29, 2024.
Signed:
Augusto Antonio BARBERA, President
Luca ANTONINI, Reporter
Roberto MILANA, Director of the Chancellery
Filed with the Chancellery on November 19, 2024