JUDGMENT NO. 183

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 issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 6, paragraph 1, letter i), of the Law of the Umbria Region No. 17 of 14 June 1994 (Rules for the implementation of Law No. 21 of 15 January 1992, regarding the transport of persons by means of non-scheduled public transport), initiated by the Regional Administrative Tribunal for Umbria, First Section, in the proceedings between D. G. and the Province of Perugia, with order of 13 February 2024, registered under No. 29 of the register of orders 2024 and published in the Official Gazette of the Republic No. 11, First Special Series, of the year 2024, the hearing of which was set for the meeting in the council chamber of 15 October 2024.

Heard in the council chamber of 29 October 2024, Judge Rapporteur Antonella Sciarrone Alibrandi;

Deliberated in the council chamber of 29 October 2024.

Considered in fact

1.– By order of 13 February 2024 (reg. ord. No. 29 of 2024), the Regional Administrative Tribunal for Umbria, First Section, raised questions of constitutional legitimacy of Article 6, paragraph 1, letter i), of the Law of the Umbria Region No. 17 of 14 June 1994 (Rules for the implementation of Law No. 21 of 15 January 1992, regarding the transport of persons by means of non-scheduled public transport), insofar as it provides, among the necessary requirements for registration in the regional register of drivers of vehicles used for non-scheduled public services, that of «being a resident in one of the Municipalities of the Umbria Region», in conflict with Articles 3 and 117, second paragraph, letter e), and third paragraph, of the Constitution, and with Article 117, first paragraph, of the Constitution, in the wording prior to the reform referred to in Constitutional Law No. 3 of 18 October 2001 (Amendments to Title V of the Second Part of the Constitution), «for violation of the interposed rule referred to in Article 6 of Law No. 21 of 1992».

2.– The referring court states that D. G. acted for the annulment of the provision of 27 April 2023 with which the special provincial commission – established pursuant to the Umbria Region Law No. 17 of 1994 – rejected the application submitted by the appellant in order to sit the examination to be registered in the register of drivers of vehicles used for non-scheduled public car services of the Province of Perugia, referred to in Article 6 of Law No. 21 of 15 January 1992 (Framework Law for the transport of persons by means of non-scheduled public car services), as he did not meet the requirement of residence in one of the municipalities of the Umbria Region, as provided for by the contested regional law provision and by Article 2, paragraph 2, letter b), of the regulation approved by the Province of Perugia for the regulation of the activity of the aforementioned provincial commission (an act also challenged before the court a quo).

3.– The Regional Administrative Tribunal for Umbria doubts the constitutional legitimacy of Article 6, paragraph 1, letter i), of the Umbria Region Law No. 17 of 1994.

4.– In terms of relevance, the referring court believes that the main proceedings cannot be defined independently of the resolution of the questions of constitutional legitimacy raised, given that it is only due to the lack of the requirement of residence in one of the municipalities of Umbria that the appellant's application was not accepted by the competent administration.

5.– As to the non-manifest unfoundedness, the referring court first reconstructs the reference regulatory framework.

In this regard, it notes that the transport of persons by non-scheduled car services is governed, at the national level, by Framework Law No. 21 of 1992, Article 6 of which provides for the establishment of a special register of drivers at the chambers of commerce (paragraph 1) and, as an indispensable requirement for the issuance of the licence to operate the taxi service and the authorisation to operate the car rental service with driver (hereinafter: NCC), registration in the aforementioned register (paragraph 5). To this end, paragraph 2 provides as necessary the possession of the «professional qualification certificate» initially provided for by Article 80 of the Presidential Decree No. 393 of 15 June 1959 (Consolidated Text of the rules on road traffic) – a provision referred to by the aforementioned Article 6 of Law No. 21 of 1992 – and, subsequently, by Article 116 of Legislative Decree No. 285 of 30 April 1992 (New Highway Code).

For registration in the register of drivers, the court a quo further recalls, it is necessary to pass an examination to be held before a special regional commission, which «ascertains the requirements of suitability to perform the service, with particular reference to geographical and toponymic knowledge» (paragraph 3 of Article 6 of Law No. 21 of 1992).

Furthermore, the referring court points out that the Umbria Region, within the scope of the regional competences saved by Article 4 of Law No. 21 of 1992, has regulated the matter with the Umbria Region Law No. 17 of 1994, Article 4 of which provides that the examination for registration in the registers of drivers takes place before a special provincial commission, which, among other things, is required to assess that candidates also possess the specific requirements for registration in the register.

The latter are indicated in paragraph 1 of Article 6 of the Umbria Region Law No. 17 of 1994, which, in letter i), also includes that of «being a resident in one of the Municipalities of the Umbria Region».

This provision is also reiterated by the regulation governing the activity of the aforementioned provincial commission – also challenged in part in the main proceedings – issued in implementation of the aforementioned regional law.

6.– Having premised this, the Regional Administrative Tribunal for Umbria, having discarded the possibility of a constitutionally compliant interpretation (in light of the unequivocal nature of the textual wording of the contested provision), doubts the constitutional legitimacy of Article 6, paragraph 1, letter i), of the Umbria Region Law No. 17 of 1994, which introduces, as a requirement for registration in the register of drivers of vehicles used for non-scheduled public car services (and consequently for access to the relevant admission examination), residence in a municipality of Umbria.

6.1.– The court a quo observes, first of all, that this requirement is not provided for by national law and that it introduces a limitation on competition, harming the exclusive legislative competence of the State referred to in Article 117, second paragraph, letter e), of the Constitution.

In particular, the contested provision would preclude all those not resident in Umbria from the possibility of accessing registration in the register of drivers of vehicles used for non-scheduled public car services, an essential requirement for the issuance of both the licence to operate the taxi service and the authorisation to operate the NCC service.

Referring to the case law of this Court in support (Judgments No. 265 and No. 30 of 2016), the referring court affirms that the regional provision would result in a limitation on the free entry of workers or businesses «into the regional labour market», involving a compression of the competitive structure of the market for non-scheduled public car services.

6.2.– For the Regional Administrative Tribunal for Umbria, Article 117, third paragraph, of the Constitution would also be violated, in relation to the matter of «professions»: by imposing «an access requirement for registration in the register of the professional figure in question, additional and not contemplated by the interposed rule» referred to in Article 6 of Law No. 21 of 1992, the contested regional provision would conflict with the principles set by the State framework law.

Referring to the constitutional case law (Judgments No. 209 of 2020 and No. 98 of 2013), the referring court maintains that, «due to its necessarily unitary character», it would be exclusively up to the State to identify professional figures, with their relative profiles and qualifying titles, with the regulation of those aspects that present a specific connection with the regional reality falling within the legislative competence of the regions, a circumstance that would not occur in the case in question.

6.3.– The provision that is the subject of the doubt of constitutional legitimacy would also be in conflict with Article 117, first paragraph, of the Constitution, in the wording prior to the amendments made by Constitutional Law No. 3 of 2001 and, therefore, in the version in force at the time of the addition of letter i) to paragraph 1 of Article 6 of the Umbria Region Law No. 17 of 1994 by Article 1, paragraph 1, of the Law of the Umbria Region No. 15 of 3 March 2000 (Integration of Regional Law No. 17 of 14 June 1994. Rules for the implementation of Law No. 21 of 15 January 1992, regarding the transport of persons by means of non-scheduled public transport).

In particular, the regional legislator would have intervened in a matter considered at the time to be of concurrent competence – «tramways and motor vehicle lines of regional interest» – and in which state legislation included «public services for the transport of persons and goods» (pursuant to Article 84 of Presidential Decree No. 616 of 24 July 1977, containing «Implementation of the delegation referred to in Article 1 of Law No. 382 of 22 July 1975»), violating the fundamental principles established by State Framework Law No. 21 of 1992, with particular reference to Article 6 thereof, which does not include residence among the requirements of suitability for registration in the register of drivers of vehicles used for non-scheduled public car services, but links access to the aforementioned register exclusively to requirements of reliability and professionalism.

6.4.– Finally, the contested provision would harm Article 3 of the Constitution, as it conflicts with the criteria of reasonableness and proportionality.

For the referring court, the requirement of residence in a municipality of Umbria would pursue a purpose that is dissimilar to the other requirements requested by paragraph 1 of Article 6 of the Umbria Region Law No. 17 of 1994, all aimed at identifying, on the part of the driver of vehicles used for non-scheduled public services, characteristics of mere reliability and professionalism.

The purpose of guaranteeing a stable connection with the territorial dimension of the service itself – which would also be worthy of protection – would have been pursued by means of a disproportionate and excessively burdensome measure (entailing a plurality of civil, administrative and tax consequences for the person concerned), while the same need could have been satisfied with the provision of an alternative requirement such as the election of domicile.

7.– The Province of Perugia (a party to the proceedings a quo) did not appear in court, and the Umbria Region, despite having received notification of the order of reference to the President of the Regional Council, did not intervene.

Considered in law

1.– The Regional Administrative Tribunal for Umbria, First Section, raises questions of constitutional legitimacy of Article 6, paragraph 1, letter i), of the Umbria Region Law No. 17 of 1994, insofar as it provides, among the requirements necessary for registration in the register of drivers of vehicles used for non-scheduled public services, that of «being a resident in one of the Municipalities of the Umbria Region».

2.– In the main proceedings, the annulment of the provision with which the competent provincial commission rejected the applicant's application to sit the examination to be registered in the register of drivers of vehicles used for non-scheduled public car services of the Province of Perugia is requested, due to the lack of the aforementioned requirement.

3.– In terms of relevance, the referring court observes that the applicant's application was rejected by the competent administration only as a result of the lack of the requirement of residence in one of the municipalities of Umbria.

4.– As to the non-manifest unfoundedness, the Regional Administrative Tribunal for Umbria observes that, pursuant to Article 6 of Law No. 21 of 1992, registration in the register of drivers of vehicles and vessels used for non-scheduled public car services constitutes an indispensable condition for the issuance of both the licence to operate the taxi service and the authorisation to operate the NCC activity, and that, for the purposes of such registration, the State law, in paragraph 2, is limited to providing as necessary the possession of the «professional qualification certificate» required by the Highway Code.

The court a quo also points out that the Umbria Region has regulated the matter with the Umbria Region Law No. 17 of 1994, Article 6 of which provides, in letter i) of paragraph 1, that aspiring drivers must possess certain requirements in order to be registered in the relevant register and, among these, that of residence «in one of the Municipalities of the Umbria Region».

4.1.– Having discarded, in light of the unequivocal nature of the textual wording of the contested provision, the possibility of a constitutionally compliant interpretation, the referring court believes that the requirement of residence in Umbria, not provided for by national law, determines a limitation on competition, precluding all non-residents from the possibility of accessing registration in the provincial register of drivers.

In this way, the exclusive legislative competence of the State referred to in Article 117, second paragraph, letter e), of the Constitution would be encroached upon, because the regional provision, resulting in a limitation on the free entry of workers or businesses «into the regional labour market», would involve a compression of the competitive structure of the market for non-scheduled public car services.

4.2.– Article 117, third paragraph, of the Constitution would also be violated, in relation to the matter of «professions», due to conflict with the fundamental principles set by Article 6 of Law No. 21 of 1992, which does not contemplate, among the requirements for access to the register of drivers, that of residence.

4.3.– The same defect would afflict the contested provision, even if compared with Article 117, first paragraph, of the Constitution, in the wording prior to the amendment made by Constitutional Law No. 3 of 2001 and, therefore, in the version in force at the time of the addition of letter i) to paragraph 1 of Article 6 of the Umbria Region Law No. 17 of 1994 by Article 1 of the Umbria Region Law No. 15 of 2000.

In particular, the regional legislator, intervening in a matter considered at the time to be of concurrent competence – «tramways and motor vehicle lines of regional interest» – would have violated the fundamental principles established by State Framework Law No. 21 of 1992, in which context registration in the register of drivers of vehicles used for non-scheduled public car services is subject exclusively to the possession of requirements of reliability and professionalism.

4.4.– Finally, the contested provision would harm Article 3 of the Constitution, as it conflicts with the criteria of reasonableness and proportionality.

On the one hand, in fact, the requirement in question would be totally eccentric with respect to the other requirements also established by Article 6 of the Umbria Region Law No. 17 of 1994, all relating to the mere characteristics of reliability and professionalism on the part of the driver of vehicles used for non-scheduled public services. On the other hand, the condition of residence in one of the Umbrian municipalities would be disproportionate and excessively burdensome for the person concerned, with respect to the purpose of guaranteeing a stable connection with the territorial dimension of the service.

5.– Before examining the questions raised in detail, it is appropriate, in order to mark the boundaries of regional legislative power, to proceed with a, albeit synthetic, reconstruction of the reference regulatory framework, as well as with the identification of the material scope to which the contested legislation can be traced.

5.1.– For what is relevant here, the activity of transporting persons by means of non-scheduled public car services is regulated, at State level, by Law No. 21 of 1992, which, in Article 1, identifies non-scheduled public car services as «those that provide for the collective or individual transport of persons, with a complementary and supplementary function with respect to scheduled public transport […] and which are carried out, at the request of the transported persons or of the transported person, in a non-continuous or periodic manner, on routes and according to schedules established from time to time» (paragraph 1). The same Article 1 then establishes that «[n]on-scheduled public car services» constitute the taxi and NCC services (paragraph 2).

Of particular importance here is Article 6 of the State law in question, which, in paragraph 1, provides for the establishment of a special «register of drivers of vehicles or vessels used for non-scheduled public car services» at the chambers of commerce.

Paragraph 2 is limited to expressly providing, as the only «indispensable requirement for registration in the register», the possession of the «professional qualification certificate», which presupposes the issuance of the driving licence of the required category (today by Article 116 of the Highway Code) for the type of vehicle used for transport services.

Pursuant to paragraph 3, registration in the register takes place after an examination – to be held at least monthly – by a special regional commission, «which ascertains the requirements of suitability for the performance of the service, with particular reference to geographical and toponymic knowledge».

Furthermore, paragraph 4 of the same Article 6, in the second sentence, establishes, among other things, that the regions «define the criteria for admission to the register».

Paragraph 5 specifies, finally, that registration in the register constitutes an indispensable requirement for the issuance of the licence to operate the taxi service and the authorisation to operate the car rental service with driver: in fact, these activities are not liberalised, but are subject to authorisation, issued by the municipal administration, through a public competition notice, to individuals who own or have the availability in leasing or long-term rental of the vehicle (Article 8, paragraph 1, of Law No. 21 of 1992).

Within the scope of the regional competences saved by the aforementioned paragraph 4 of Article 6 of Law No. 21 of 1992, the Umbria Region has regulated the matter with the Umbria Region Law No. 17 of 1994.

In its current wording, Article 4 of this regional law provides that the examination for registration in the registers of drivers takes place before a special provincial commission, which, among other things, is required to ascertain the possession by candidates of specific access requirements, in addition to those imposed by State law.

The requirements for registration in the register – and, first of all, necessary to sit the preparatory examination before the provincial commission – are indicated in paragraph 1 of Article 6 of the same regional law, which, in letter i) (introduced by Article 1 of the Umbria Region Law No. 15 of 2000), also includes residence «in one of the Municipalities of the Umbria Region».

The other requirements requested by the same Article 6 of the Umbria Region Law No. 17 of 1994, following the subsequent repeal of those originally provided for by letters a) and h), are:

«b) not having been given one or more final convictions to imprisonment for a total of more than two years for non-culpable offences or not being subject by executive order to one of the prevention measures provided for by current legislation. The requirement is considered met when rehabilitation has occurred;

c) absence of revocation orders of previous authorisations or licences, referred to in this law;

d) non-membership of mafia-type associations, referred to in Law No. 55 of 19 March 1990;

e) completion of compulsory schooling;

f) possession of the professional qualification referred to in Article 116, paragraph 8, of Legislative Decree No. 285 of 30 April 1992, for registration in the sections reserved for drivers of cars and motor scooters;

g) possession of the professional qualification, referred to in the Decree of the Ministry of Transport of 5 February 1986, for registration in the section reserved for drivers of vessels».

5.2.– From the illustrated regulatory overview, it emerges that both Law No. 21 of 1992 and the contested letter i) of paragraph 1 of Article 6 of the Umbria Region Law No. 17 of 1994 – introduced by Article 1 of the Umbria Region Law No. 15 of 2000 – were adopted before the amendment of Title V of Part II of the Constitution.

Before this reform, the matter of «tramways and motor vehicle lines of regional interest» was expressly assigned to the regions under a system of concurrent legislative power, and State legislation included in it, in a precise manner, also «public services for the transport of persons and goods» (Article 84 of Presidential Decree No. 616 of 1977).

This Court has already clarified (Judgment No. 56 of 2020) that Law No. 21 of 1992, governing the sector of non-scheduled public car services in an organic manner, was established as a «framework law» for the definition of the fundamental principles, with the competence of the regions being assigned to regulate the matter for the rest pursuant to the aforementioned Presidential Decree No. 616 of 1977 (Article 4).

Following the change in the distribution of competences operated by Constitutional Law No. 3 of 2001, local public transport continues to be considered a matter of regional legislative competence, but has moved into the broader residual regional legislative competence referred to in Article 117, fourth paragraph, of the Constitution (ex multis, Judgments No. 137 and No. 78 of 2018, No. 30 of 2016 and No. 452 of 2007), as has been affirmed precisely with reference to the sector of «public transport service, scheduled and non-scheduled» (Judgments No. 56 of 2020 and No. 5 of 2019).

6.– This Court has often been called upon to examine regional laws issued before the aforementioned reform of Title V, but challenged for violation of the new parameters for the distribution of competences, invoked alone or together with the previous ones.

When this has occurred, the constitutional case law, far from affirming a general principle regarding the applicability of the old or the new Title V, has rather favoured an approach based on the verification of the persistence, in the transition from one system of distribution of competences to the other, of limits placed from the outset on the exercise of regional legislative power. This allows the examination to be referred also (or only) to the parameters that have subsequently occurred.

To this end, this Court has deemed it the burden of the referring courts to give reasons, on pain of inadmissibility, for the reasons for the invocation of the new parameters (thus, among the most recent, Judgments No. 8 of 2024 and No. 52 of 2022; Order No. 247 of 2016), without prejudice to the referability of the examination to the parameters in force at the time of the issuance of the regional legislation, in compliance with the principle of continuity, according to which the regional rules adopted in compliance with the pre-existing constitutional framework maintain their validity until the moment in which they are replaced by new rules dictated by the authority endowed with competence in the new system (among the most recent, Judgments No. 2 of 2024, No. 189 of 2021 and No. 244 of 2020).

6.1.– The described persistence is particularly suited to the transversal limits that express the need to guarantee uniformity of regulation in the national territory and that, for this reason, are intended to remain despite any expansion of regional attributions within the material scope of reference, as a consequence of the change (from concurrent to residual) of the configuration of the legislative competence of the regions.

This Court, for example, has noted this persistence in reference to the limit to regional legislative power constituted by the prohibition of altering the fundamental rules governing private relations: a limit that the constitutional case law has consistently held to be operative (Judgment No. 132 of 2023), even before it was expressed – pursuant to the new Article 117, second paragraph, letters l) and o), of the Constitution – in the reservation to the exclusive power of the State of the matters, respectively, «civil order» (Judgments No. 189 of 2020, No. 265 of 2013 and No. 282 of 2004) and «social security» (Judgment No. 244 of 2020).

7.– Having premised this, also in the present case it is possible to identify a boundary that regional legislative power has never been enabled to cross, either before or after the reform of Title V.

7.1.– This Court, in fact, has already stated that the protection of competition now belongs to the exclusive legislative competence of the State, pursuant to Article 117, second paragraph, letter e), «as a further safeguard of the freedom of economic initiative guaranteed by Article 41 of the Constitution» (Judgment No. 67 of 2011), thus underlining the close link between the aforementioned constitutional provisions, which are placed in a relationship of true contiguity with each other.

Other precedents (Judgments No. 94 of 2013 and No. 270 of 2010) have recalled, however, how the earlier constitutional case law, in interpreting precisely Article 41 of the Constitution, immediately placed emphasis on the «freedom of competition» as a manifestation of the freedom of private economic initiative, albeit susceptible to limitations justified by reasons of «social utility» and by «social purposes» (Judgments No. 97 of 1969 and No. 46 of 1963). At a later stage, a broader concept of the guarantee of freedom of competition was offered, its «dual purpose» having been highlighted, because «on the one hand, it integrates the freedom of economic initiative that belongs to all entrepreneurs in the same measure and, on the other hand, it is directed to the protection of the community, as the existence of a plurality of entrepreneurs, in competition with each other, helps to improve the quality of products and to contain their prices» (Judgment No. 223 of 1982), thus further connoting competition as a «basic value of the freedom of economic initiative» (Judgment No. 241 of 1990).

It should be added that, as constantly recalled by this Court, in the European context, the «ordering principle of an open and freely competitive market economy» has always been constituted (among many, Judgment No. 14 of 2004) and that the Community principles have always been imposed on compliance also by the regional legislator (among many, already Judgment No. 182 of 1976 and the case law cited therein).

The combination of these considerations leads to the conclusion that the protection of competition constitutes a limit that has always conditioned the exercise of regional legislative power, even before the reform of Title V, finding emergence, albeit implicitly, in the fundamental principles dictated by the laws of the State in matters of concurrent legislation, which – as will be clarified in relation to the specific case – in many cases substantially complied with it.

With the expansion of regional attributions arranged by the aforementioned reform, finally, the constitutional legislator, entrusting the «protection of competition» to the exclusive State legislative power, felt the need