Sentenza n. 195 del 2024

Judgment No. 195 of 2024

JUDGMENT No. 195

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 1, paragraphs 527 and 557, of Law No. 213 of December 30, 2023 (State Budget for the Financial Year 2024 and Multi-Annual Budget for the Three-Year Period 2024-2026), initiated by the Campania Region with a petition notified on February 28, 2024, filed with the registry on March 1, 2024, registered under No. 9 in the register of petitions for 2024, and published in the Official Gazette of the Republic No. 14, first special series, of 2024.

Having reviewed the statement of appearance of the President of the Council of Ministers;

Having heard at the public hearing of October 29, 2024, the Reporting Judge Luca Antonini;

Having heard the lawyer Almerina Bove for the Campania Region and the State Attorney Fabrizio Urbani Neri for the President of the Council of Ministers;

Having deliberated in the Council Chamber of October 29, 2024.

Facts of the Case

1.– By petition notified on February 28, 2024, and filed on the following March 1 (reg. pet. No. 9 of 2024), the Campania Region, in the person of its President pro tempore, challenged, with reference to Articles 3, 5, 81, 97, 114, 117, third paragraph, 118, 119, and 120 of the Constitution, Article 1, paragraphs 527 and 557, of Law No. 213 of December 30, 2023 (State Budget for the Financial Year 2024 and Multi-Annual Budget for the Three-Year Period 2024-2026).

2.– The first of the aforementioned provisions stipulates that "[f]or the purposes of safeguarding the economic unity of the Republic, in consideration of the needs to contain public spending and in compliance with the principles of coordination of public finance, pending the definition of new rules of European economic governance, ordinary statute regions, for each of the years from 2024 to 2028, shall ensure a contribution to public finance equal to 350 million euros per year. The allocation of the contribution to public finance referred to in the preceding period shall be carried out, by April 30, 2024, through self-coordination among the regions, formalized by decree of the President of the Council of Ministers, upon the proposal of the Minister of Economy and Finance, in agreement with the Minister for Regional Affairs and Autonomies. In the absence of an agreement in self-coordination, the allocation shall be carried out, by May 31, 2024, by decree of the President of the Council of Ministers, upon the proposal of the Minister of Economy and Finance, in agreement with the Minister for Regional Affairs and Autonomies, in proportion to current expenditure commitments, net of expenditures relating to mission 12, Social Rights, Social Policies and Family, and mission 13, Health Protection, of the budget schemes of the regions, as resulting from the 2022 general financial statement or, in its absence, from the last approved financial statement. Ordinary statute regions are required to pay the amounts of the contribution to public finance, as determined pursuant to the preceding periods, to the revenue of the State budget under chapter X – article no. 3465 – art. 2 ("Refunds and various contributions due from ordinary statute regions”) by June 30 of each of the years from 2024 to 2028, providing notice thereof to the Ministry of Economy and Finance – Department of the State General Accounting Office. If the payment referred to in the preceding period is not made by the deadline, the Department of the State General Accounting Office shall recover it by means of a corresponding reduction of the resources due to each region for any reason."

2.1.– The Campania Region states in its introduction that it has ongoing plans to recover from budget deficits related to the financial years 2014 and 2015 and that, having to allocate a total of approximately 128 million euros to this objective in each financial year, the entity would suffer, due to the new contribution, a serious reduction in spending capacity in favor of citizens.

It also recalls that regional contributions to public finance balances should be achieved through the attainment of a non-negative balance, in terms of competence, between final revenues and final expenditures, pursuant to Articles 9, paragraph 1, of Law No. 243 of December 24, 2012 (Provisions for the Implementation of the Balanced Budget Principle Pursuant to Article 81, Sixth Paragraph, of the Constitution) and 1, paragraphs 465 and 466, of Law No. 232 of December 11, 2016 (State Budget for the Financial Year 2017 and Multi-Annual Budget for the Three-Year Period 2017-2019).

Instead, even before the adoption of the challenged provision, the 2021 budget law, "[i]n consideration of the savings connected to the reorganization of services also through digitization and the strengthening of agile work," established a measure of contribution to public finance equal to 196 million euros, for each of the years from 2023 to 2025, to be borne by the regions and the autonomous Provinces of Trento and Bolzano (Article 1, paragraphs 850 to 852, of Law No. 178 of December 30, 2020, containing "State Budget for the Financial Year 2021 and Multi-Annual Budget for the Three-Year Period 2021-2023," as amended by Article 1, paragraph 556, of Law No. 234 of December 30, 2021, containing "State Budget for the Financial Year 2022 and Multi-Annual Budget for the Three-Year Period 2022-2024").

Subsequently, with the decree of the President of the Council of Ministers of October 4, 2023 (Allocation of the contribution to public finance by the regions and the autonomous Provinces of Trento and Bolzano), not only was the allocation of this contribution among the regions carried out, but also an obligation to pay into the revenue of the State budget was established, as well as, in case of default, the recovery of the amount by the Department of the State General Accounting Office through a corresponding reduction of the resources due to the entity for any reason.

With a decree of November 20, 2023, the aforementioned Department then ordered the compensation of the amount owed by the Campania Region as a contribution to public finance, equal to 18,440,033.45 euros, by reducing the amounts "due to it as a health share of VAT participation for the month of November 2023."

In this regard, the Campania Region points out that it has filed an appeal against the aforementioned decree and the recovery measure adopted against it.

2.2.– With regard to the challenged provision, the petition first of all complains about the invasion by the state legislator of the sphere of regional competence in the matter of "coordination of public finance," in that a detailed provision would have imposed "a specific method of contribution," i.e., "the transfer of regional savings achieved to the state budget," thus compromising regional autonomy, in violation of Articles 3, 5, 117, third paragraph, 119, and 120 of the Constitution.

The challenged Article 1, paragraph 527, of Law No. 213 of 2023, in particular, could not be qualified as a fundamental principle, "providing for specific transfers, or, in their absence, indiscriminate cuts to state disbursements destined for the Regions," thus introducing "precise and stringent limits" to the financial and organizational autonomy thereof (citing Judgment of this Court No. 193 of 2012). The provision, furthermore, would not respect "even the requirement of temporariness," overlapping "with the contribution already in place," due from 2023 to 2025, and extending "further to 2028," in violation of what was affirmed by this Court (citing Judgment of this Court No. 289 of 2008).

2.3.– Under a further ground for censure, the foreseen transfer in cash to the State budget, "subtracting any space for decision-making autonomy from the Region," would violate the principle of financial autonomy guaranteed by Articles 114 and 119, first and second paragraphs, of the Constitution, as well as "completely subvert the logic of implementation" of the principles of territorial solidarity referred to in Article 119, third and fifth paragraphs, of the Constitution, since it would entail by the State "the ascertainment of new revenue" without indicating the "destination of such resources" (referring to Judgment No. 176 of 2012 of this Court).

2.4.– In addition, the petition complains about the imposition of the contribution to public finance also to regions with a recovery plan from a budget deficit, which would see, due to the aforementioned transfer, their cash availability further reduced, in addition to the constraints related to the recovery of the deficit.

The petitioner points out that "for a territorial entity, the recovery from past deficits is a priority public finance objective, placed before any further objective of coordination between the State and the Regions," since the submission to the recovery plan would require "guaranteeing spending savings defined for decades with a consequent reduced mandatory spending capacity in the territory."

In essence, by imposing "unreasonably rigid constraints," the challenged provision would therefore not take into account the actual financial situation of the territorial entities, nor would it adequately balance financial stability and the autonomy of the entities, conflicting with Articles 3, 81, and 97 of the Constitution.

In particular, the petition points out that "[i]n application of the challenged provisions, the Campania Region should ensure an annual contribution of approximately 35 million euros in addition to the 18,440,033.45 euros already requested by the Ministry pursuant to the provisions of paragraphs 850 and 851 of Article 1 of Law No. 178/2020, starting from 2023. Therefore, the Campania Region should transfer, in cash, to the State budget each year a sum equal to a total of approximately 54 million euros, in addition to having to repay each year a share of its deficit for an amount of at least 128,365,175.41 euros."

This "objective" circumstance would provide the figure for the "very serious damage" caused to the same Region by the introduction of the rules referred to in the challenged paragraph 527.

2.5.– In contrast with Article 3 of the Constitution, as well as with Articles 97, 117, third paragraph, and 119 of the Constitution, the challenged provision would also determine "an illegitimate subtraction and appropriation of regional resources by the State."

2.6.– It would also be in contrast with the principles of equality and reasonableness, because the state legislator, in Article 1, paragraph 533, of Law No. 213 of 2023, would have exempted from the contribution to public finance local authorities in financial distress or in financial rebalancing procedures, while the challenged provision does not exclude regions in a recovery plan from the contribution to public finance, subjecting them to the same obligation established for entities under the ordinary regime.

2.7.– In any case, the same provision would violate Articles 3 and 97 of the Constitution in the part where it does not allow regions that are recovering from a budget deficit, instead of the cash transfer to the State, to enter the due contribution to public finance in a specific expenditure chapter of their budget, on which it is not possible to commit resources, "with the consequence that, at the end of the financial year, the related allocation flows into the Administration result, as a share of greater recovery of the deficit."

This would be the only constitutionally compatible method of implementing the contribution for an entity already in a recovery plan from a deficit, since the cash transfer to the State budget would represent an expropriation of its assets, in contrast with the case law of this Court (referring to Judgments No. 101 of 2018 and No. 247 of 2017).

2.8.– Finally, the petition complains that the challenged paragraph 527 would violate regional financial autonomy, guaranteed by Article 119 of the Constitution, in the part where it provides, in a contradictory and therefore detrimental to Article 3 of the Constitution, that, in the event of failure to pay the contribution by the regions within the established deadline, the recovery shall be carried out "by means of a corresponding reduction in the resources due to each region for any reason."

In fact, by allowing the reduction of resources due for any reason, the rule "contradict[s] the entire structure" of the provision under consideration, in particular where, in the third period, it "distinguishes expenditures related to social rights and health protection."

In this way, an irremediable damage would be caused to the community, introducing a principle "de facto 'punitive'," capable of affecting precisely those fundamental rights of the person that the legislator, in the aforementioned third period, instead, "[intended] to exclude from the potential financing channels of the regional participation in state finance."

3.– The Campania Region has also challenged Article 1, paragraph 557, of Law No. 213 of 2023, in the part where it provides that "[w]ithin sixty days from the date of entry into force of this law, the Minister of Health, by his own decree adopted in agreement with the Minister of Economy and Finance, shall identify the criteria and methods of distribution […], as well as the system for monitoring the use of the sums," of the "Fund for Next-Generation Sequencing tests for the diagnosis of rare diseases," established, pursuant to the preceding paragraph 556, in the state of expenditure of the Ministry of Health, with an endowment equal to 1 million euros for the year 2024.

The challenged provision, excluding any form of involvement of the system of territorial autonomies in the determination of the criteria for the distribution of the fund's resources, would violate the principle of loyal cooperation referred to in Article 120 of the Constitution and Articles 117, third paragraph, 118, and 119 of the Constitution, since, being ascribable to the area of concurrent legislation of health protection, it should have guaranteed the participation of the regions.

In particular, the petition recalls extensive passages of Judgment No. 40 of 2022 of this Court, which declared the constitutional illegitimacy of a "completely analogous provision" – i.e., Article 19-octies, paragraph 2, of Decree Law No. 137 of October 28, 2020 (Further urgent measures regarding the protection of health, support for workers and businesses, justice and security, connected to the epidemiological emergency from COVID-19), converted, with amendments, into Law No. 176 of December 18, 2020 –, based on arguments that would be fully applicable to the one under consideration. The latter, in conclusion, would violate the parameters evoked in the part where it does not provide for the adoption of the decree in agreement with the Permanent Conference for Relations between the State, the Regions, and the Autonomous Provinces of Trento and Bolzano.

4.– By a statement filed on April 8, 2024, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, appeared in the proceedings, requesting that the petition be rejected.

4.1.– The reason for the petition relating to Article 1, paragraph 527, of Law No. 213 of 2023 would be unfounded, since the regional contribution to public finance would be fully "consistent with constitutional case law on the matter" (referring to Judgments of this Court No. 122 of 2023 and No. 79 of 2014). It, in fact: a) would be aimed at containing overall public spending, in compliance with the principles of coordination of public finance; b) would have a transitional character, without either providing for specific instruments or methods for the pursuit of the aforementioned objective, or affecting with a detailed regulation the individual regional budget policies.

In particular, the thesis of the petitioner aimed at giving relevance to the situation of the regions in a recovery plan would be unfounded, it being clear that in recent years every public finance maneuver has provided, "for all territorial entities," both a containment of expenditure by the entities themselves and a recovery of the related savings to the State budget.

On the other hand, the state defense observes, the payment of the aforementioned savings to the revenue of the State budget, or the recovery by means of a corresponding reduction in the resources due to each region for any reason, would be an essential method "so that the containment of public spending under examination can produce its effects" on all public finance balances (net balance to be financed, net borrowing, and borrowing requirement).

Furthermore, the challenged provision would guarantee respect for both regional autonomy and the principle of loyal cooperation, entrusting to an agreement between the regions in self-coordination the allocation of the contribution and, in any case, the intervention of the State, foreseen only in the event of a lack of agreement, would occur on the basis of criteria consistent with the content of Judgment No. 79 of 2014 of this Court, excluding from the calculation the expenses relating to Missions 12 and 13 resulting from the regional financial statements.

The Attorney General's Office also refutes the petitioner's thesis aimed at limiting the methods of contribution to public finance balances by the regions only to the achievement of the balance provided for in Article 9, paragraph 1, of Law No. 243 of 2012; in reality, the same provision, in paragraph 5, would allow the state law to "provide for further obligations to be borne by the entities referred to in paragraph 1 regarding participation in the achievement of the public finance objectives of all public administrations."

Nor would the petitioner's assertion that the recovery from past deficits constitutes a priority public finance objective, placed before any further objective of coordination between the State and the regions, be founded.

In this regard, notwithstanding the general regulation on the repayment of regional deficits no later than the duration of the legislature, established by Article 42, paragraph 12, of Legislative Decree No. 118 of June 23, 2011 (Provisions on the harmonization of accounting systems and budget schemes of the Regions, local authorities, and their bodies, pursuant to Articles 1 and 2 of Law No. 42 of May 5, 2009), the Attorney General's Office observes that state provisions aimed at "favoring the recovery of the deficit by the territorial entities over a longer period of time, of at least 20 financial years, precisely because they are aimed at ensuring sound financial management and the economic sustainability of the recovery, cannot be considered incompatible with further public finance maneuvers" deemed necessary by the State in order to achieve objectives of containment of public spending.

4.2.– With regard to the second challenged provision, the state defense considers that the "literal wording" of the challenged paragraph 557 of Article 1 of Law No. 213 of 2023 "does not provide for an exclusive competence of the State in the matter, not excluding a priori the involvement of the regions in the subsequent regulatory detail phases of the provision."

Judgment No. 40 of 2022 of this Court would therefore be "not fitting to the case in point," considering that between the provision examined by it and the one under consideration there would be a "radical diversity"; the ground for the petition would therefore be inadmissible, "for the current lack of interest," or, in any case, unfounded.

5.– With a brief filed on October 8, 2024, the Campania Region disputed the assertion of the state defense that the challenged Article 1, paragraph 527, would be consistent with constitutional case law and, in particular, with Judgment No. 79 of 2014, since the provisions examined on that occasion imposed a containment of regional spending, while the one object of the proceedings provides for the regions "a specific method of contribution," which, by imposing the cash transfer to the State budget of the amount quantified for each of the years from 2024 to 2028, would "subtract any space for regional decision-making autonomy."

The regional defense also denies that the aforementioned transfer constitutes "an essential method" for pursuing the balance and public financial stability, as argued by the State Attorney General's Office; the legislator, in fact, with a different method from those followed in the past to ensure the contribution to public finance by the regions, would have in this case "operat[ed] a real forced levy of resources to the detriment of the Region," deprived unexpectedly and illegitimately "of funds essential for the exercise of its constitutional prerogatives."

Furthermore, from Article 9, paragraph 5, of Law No. 243 of 2012, cited by the state defense, it would not be possible to derive the "approval" of any other measure of contribution to public finance, "even if constitutionally illegitimate," such as the one under consideration.

The petitioner, finally, excludes that from Judgment No. 9 of 2024 of this Court, cited by the Attorney General's Office, it can be inferred the compatibility between the fulfillment of the contribution to public finance under examination and the recovery from the deficit that the Campania Region is carrying out over a long period of time. According to the regional defense, while on that occasion a measure was being considered that deferred the repayment of the budget deficit over time, "the plan to recover from the health deficit," to which the petitioner is subject, would impose stringent financial constraints on the regions "for the different (and opposite) purpose of reaching the repayment of the deficit in the shortest possible time." It would therefore be unreasonable that the challenged provision "completely ignores the actual situation" of the entities in this situation.

Legal Reasoning

1.– With the petition indicated in the epigraph (reg. pet. No. 9 of 2024), the Campania Region has raised issues of constitutional legitimacy of Article 1, paragraphs 527 and 557, of Law No. 213 of 2023.

1.1.– With the first ground, the petitioner challenges the aforementioned paragraph 527, the content of which can be summarized as follows: a) ordinary statute regions shall ensure, for each of the years from 2024 to 2028, a contribution to public finance equal to 350 million euros per year; b) the contribution is established for the purposes of safeguarding the economic unity of the Republic, in consideration of the needs to contain public spending and in compliance with the principles of coordination of public finance, as well as pending the definition of new rules of European economic governance; c) the allocation of the aforementioned contribution to public finance is carried out, as a priority, based on the agreement between the regions and, if this does not occur by April 30, 2024, by the State, which provides for it by May 31, 2024, in proportion to the current expenditure commitments resulting from the regional general financial statement, net of expenditures relating to Mission 12, Social Rights, Social Policies and Family, and to Mission 13, Health Protection; d) the amounts thus determined must be paid by the regions to the revenue of the State budget, in a special chapter, by June 30 of each of the years from 2024 to 2028; e) the Department of the State General Accounting Office shall recover the unpaid amount by means of a corresponding reduction in the resources due to each defaulting region for any reason.

1.1.1.– The petitioner Region complains, first of all, that a provision structured in this way could not qualify as a legitimate fundamental principle of the matter, of concurrent competence, "coordination of public finance."

By imposing the obligation to pay the amount of the contribution to the revenue of the State budget, the legislator would have adopted a detailed provision, which would affect "regional savings," frustrating regional autonomy and compromising the exercise of regional powers to protect the administered community, in violation of Articles 3, 5, 117, third paragraph, 119, and 120 of the Constitution.

The requirements set by constitutional case law would also be violated because, in addition to introducing "precise and stringent limits" to the financial and organizational autonomy of the regions, the provision would not respect "even the requirement of temporariness," overlapping "with the contribution already in place," due from 2023 to 2025, and extending "further to 2028."

1.1.2.– Under a further ground for censure, the foreseen transfer in cash to the State budget, "subtracting any space for decision-making autonomy from the Region," would violate the principle of financial autonomy guaranteed by Articles 114 and 119, first and second paragraphs, of the Constitution, as well as "completely subvert the logic of implementation" of the principles of territorial solidarity referred to in Article 119, third and fifth paragraphs, of the Constitution, since it would entail by the State "the ascertainment of new revenue" without indicating the "destination of such resources" (referring to Judgment No. 176 of 2012 of this Court).

1.1.3.– A subsequent, and subordinate, complaint affects the provision of the obligation to pay the contribution established by the challenged paragraph 527 because it would also apply to regions in a recovery plan from a budget deficit, thus reducing the cash availability of such entities in view of what is already necessary for compliance with the constraints related to the recovery of the deficit.

By imposing "unreasonably rigid constraints," the challenged provision would not take into account the actual financial situation of the territorial entities, nor would it adequately balance financial stability and the autonomy of the entities, thus violating Articles 3, 81, and 97 of the Constitution.

1.1.4.– In contrast with Articles 3, 97, 117, third paragraph, and 119 of the Constitution, the challenged provision would also determine "an illegitimate subtraction and appropriation of regional resources by the State."

1.1.5.– It would also be in contrast with the principles of equality and reasonableness because the state legislator, in Article 1, paragraph 533, of Law No. 213 of 2023, would have exempted from the contribution to public finance local authorities in financial distress or in financial rebalancing procedures, while the challenged provision does not exclude regions in a recovery plan from the contribution to public finance, subjecting them to the same obligation established for entities under the ordinary regime.

1.1.6.– In any case, the same provision would violate Articles 3 and 97 of the Constitution in the part where it does not allow regions that are recovering from a budget deficit, instead of the cash transfer to the State, to enter the due contribution to public finance in a specific expenditure chapter of their budget, on which it is not possible to commit resources, "with the consequence that, at the end of the financial year, the related allocation flows into the Administration result, as a share of greater recovery of the deficit."

This would be the only constitutionally compatible method, since the cash transfer to the State budget would represent, for an entity already in a recovery plan from a deficit, an expropriation of its assets, in contrast with the case law of this Court (referring to Judgments No. 101 of 2018 and No. 247 of 2017).

1.1.7.– Finally, the petition complains that the challenged paragraph 527 would violate, in a contradictory way and therefore detrimental to Article 3 of the Constitution, regional financial autonomy, guaranteed by Article 119 of the Constitution, in the part where it provides that, in the event of failure to pay the contribution by the regions within the established deadline, the recovery shall be carried out "by means of a corresponding reduction in the resources due to each region for any reason."

In this way, an irremediable damage would be caused to the community, introducing a principle "de facto 'punitive'," capable of affecting fundamental rights of the person, that the legislator, in the aforementioned third period, instead, "[intended] to exclude from the potential financing channels of the regional participation in state finance."

1.2.– The second ground of the petition challenges Article 1, paragraph 557, of Law No. 213 of 2023, in the part where it does not provide that the decree of the Minister of Health, in agreement with the Minister of Economy and Finance, be adopted in agreement with the Permanent Conference for Relations between the State, the Regions, and the Autonomous Provinces of Trento and Bolzano, which identifies the criteria and methods of distribution, as well as the system for monitoring the use of the sums, of the "Fund for Next-Generation Sequencing tests for the diagnosis of rare diseases," established pursuant to the preceding paragraph 556 in the state of expenditure of the Ministry of Health with an endowment equal to 1 million euros for the year 2024.

By excluding any involvement of the regions in the determination of the criteria and methods of access to the fund, the provision would violate Articles 117, third paragraph, 118, and 119 of the Constitution as well as the principle of loyal cooperation referred to in Article 120 of the Constitution, infringing regional powers in the matter of concurrent legislative competence "health protection."

2.– Prior to the examination of the first ground, it is necessary to recall the two legislative interventions, relating to the challenged Article 1, paragraph 527, of Law No. 213 of 2023, adopted after the notification of the petition, which took place on February 28, 2024.

2.1.– First of all, Article 3, paragraph 12-octies (introduced during the conversion and entered into force on February 29, 2024), of Decree Law No. 215 of December 30, 2023 (Urgent provisions regarding regulatory deadlines), converted, with amendments, into Law No. 18 of February 23, 2024, on the one hand, reduced, for the year 2024 only, to 305 million euros the contribution to be borne by the ordinary statute regions; on the other hand, it deferred by one month the three deadlines provided for by the aforementioned paragraph 527, respectively: a) to carry out the allocation, through self-coordination among the regions; b) for the substitute intervention by the State; c) to pay the relative amount.

The second legislative intervention – originating from the exceeding of the aforementioned deadlines without the allocation having been carried out, not even by the State, nor, consequently, the contribution for the year 2024 having been paid – was carried out by Article 19 of Decree Law No. 113 of August 9, 2024 (Urgent measures of a fiscal nature, extensions of regulatory deadlines, and interventions of an economic nature), converted, with amendments, into Law No. 143 of October 7, 2024.

The aforementioned Article 19 amended the challenged paragraph 527 and inserted paragraphs 527-bis to 527-quinquies, making the following changes to the regulation of the contribution to public finance: a) for the year 2024 only, the obligation of direct payment of the contribution to the revenue of the State budget was eliminated and, for the same year, the regions with a budget deficit as of December 31, 202