JUDGMENT NO. 196

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 4, paragraph 1, of Legislative Decree No. 7 of 29 January 2024 (Urgent provisions for the 2024 electoral consultations and concerning the revision of the registers of the resident population and the determination of the legal population), converted, with amendments, into Law No. 38 of 25 March 2024, brought by the Liguria Region with appeal notified on 24 May 2024, filed with the Registry on the same date, registered under No. 19 of the 2024 appeals register and published in the Gazzetta Ufficiale della Repubblica No. 24, first special series, of the year 2024.

Having seen the joinder of the President of the Council of Ministers;

Having heard at the public hearing of 29 October 2024 the Reporting Judge Filippo Patroni Griffi;

Having heard Attorney Aurelio Domenico Masuelli for the Liguria Region and the State Attorney Fabrizio Urbani Neri for the President of the Council of Ministers;

Having deliberated in chambers on 29 October 2024.

Facts

1. – The Liguria Region, with the appeal filed on 24 May 2024 (appeal reg. no. 19 of 2024), raised questions of constitutional legitimacy of Article 4, paragraph 1, of Legislative Decree No. 7 of 29 January 2024 (Urgent provisions for the 2024 electoral consultations and concerning the revision of the registers of the resident population and the determination of the legal population), converted, with amendments, into Law No. 38 of 25 March 2024, with reference to Articles 3, 5, 48, 51, 97, second paragraph, 114 and 118 of the Constitution.

The applicant Region premises that it is proceeding with the appeal following the related proposal of the Regional Council for Local Authorities of the Liguria Region, formulated pursuant to Article 32, second paragraph, of Law No. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court). The impugned provision, which, as will be immediately explained, affects the rules relating to the term limits of mayors, would in fact violate "fundamental constitutional principles safeguarding local autonomy," unreasonably distinguishing between municipalities: hence the possibility for the Region to challenge it in protection of the powers of local authorities (judgments No. 220 of 2021 and No. 298 of 2009 of this Court are cited). This is also in consideration of the fact that the new legislation "produces effects that generally affect the overall sphere of powers of the Region's local authorities, to be understood in a broad and complete sense, not referred to only the aspect of the exercise of individual, specific administrative powers, but also and above all to the fundamental component of political expression, which constitutes its indispensable prerequisite."

1.1. – On the merits, the Liguria Region observes, first of all, that following the impugned provision – which partially amends Article 51, paragraph 2, of Legislative Decree No. 267 of 18 August 2000 (Consolidated Text of Laws on the Organization of Local Authorities) – for mayors of municipalities with a population of up to 5,000 inhabitants, no term limit is provided; for mayors of municipalities with a population between 5,001 and 15,000 inhabitants, a limit of three consecutive terms is provided; for mayors of municipalities with a population exceeding 15,000 inhabitants, the limit of two consecutive terms is maintained. The Region considers the circumstance that the limit of two terms is maintained for the larger municipalities to be contrary to the constitutional parameters, when for those with a population between 5,001 and 15,000 inhabitants the limit is three consecutive terms.

1.2. – Having reconstructed the relevant legal framework, also in light of the case law of the Court of Cassation and the Council of State, as well as the recent judgment No. 60 of 2023 of this Court, the Liguria Region, first of all, believes that the new legislation in this matter, as determined by the impugned provision, significantly and manifestly unreasonably impacts fundamental rights pursuant to Articles 48 and 51 of the Constitution.

The limit of two consecutive terms, in fact, is maintained "for a small number of entities" and, therefore, becomes an exception to the rule, without there being valid constitutional reasons to justify it, given that it is based "only on the size data."

According to the applicant, many of the reasons cited by the case law in relation to the previous system "lose their consistency in light of the new legislation."

In particular, if the term limit is aimed at ensuring "effective equal opportunity among candidates, the freedom of vote of individual voters and the overall genuineness of the electoral competition, the physiological turnover of political representation and, ultimately, the very democracy of local authorities" (judgment No. 60 of 2023 of this Court is cited), the current distinction between municipalities with a population between 5,001 and 15,000 inhabitants and municipalities with a population exceeding 15,000 inhabitants would find no valid justification: these needs, in fact, would arise in exactly the same terms for all municipalities. If anything – argues the Liguria Region – it is precisely in municipalities of smaller size that the purposes underlying the limit should find even more reason to exist, since here the relationship between elected and elector "is certainly more intense and direct."

In confirmation of what has been argued so far, the applicant Region notes that, from an examination of the preparatory work, it emerges that the new legislation was induced by the observation that "in municipalities of smaller demographic size it is in fact often problematic to find candidates for the position of mayor, so that the prohibition of re-election for a third term entails significant difficulties". This, however, would apply to "municipalities of truly smaller size", i.e., those with a population below 5,000 inhabitants, and cannot be considered as such those up to 15,000 inhabitants, given that "the argument of the alleged difficulty in finding candidates for the position of mayor is not objectively foreseeable for almost all municipalities": hence the unreasonableness of the new legislation, which would be based on arguments "factually erroneous, inconsistent and implausible."

In light of the foregoing, the impugned provision would be unconstitutionally illegitimate insofar as it excludes the possibility of a third consecutive term as mayor "for a very limited sphere of local authorities, identified on the basis of only the reference to the size data": both the passive right to vote and the active right to vote would be unreasonably infringed, also impacting the functioning of local authorities.

1.3. – The Liguria Region then claims that the impugned provision is also contrary to Articles 3 and 97, second paragraph, of the Constitution, as it unreasonably prevents local administrators from fully performing the functions of their mandate. The possibility of "ensuring a period of continuity of political and administrative action," where this obviously has the consent of the citizens, would in fact be "existing and appreciable" also for municipalities with a population exceeding 15,000 inhabitants, in relation to which, indeed, the need would be "worthy of even more careful consideration" due to the complexity of the interventions necessary in local authorities of such size.

1.4. – Finally, according to the applicant, the impugned legislation would also be contrary to Articles 3, 5, 114 and 118 of the Constitution, as it "does not appear to respect the obligation not only to promote local authorities on an equal footing, but also to ensure their autonomy". The limitation imposed by the legislator, in fact, would unjustifiably impact "the very possibility of ensuring all municipalities and their citizens, through the exercise of active and passive electoral rights, an adequate level of government for a period reasonably established by the legal system on an equal footing". This, it is emphasized, would also produce effects on the functions which, pursuant to Article 118, second paragraph, of the Constitution, municipalities exercise on the basis of powers conferred by regional law.

1.5. – The Liguria Region concludes by observing that there would be the prerequisites "for the adoption of a judgment of acceptance with an additive effect, aimed at declaring the unconstitutionality of the impugned rule insofar as, while allowing the possibility of a third consecutive term for mayors of municipalities with a population between 5,001 and 15,000 inhabitants, it does not also provide for the same possibility for mayors of municipalities with a larger population". The legislator, in fact, would have already exercised its discretion by bringing the limit of consecutive terms to three for a vast majority of municipalities, a limit which, for the aforementioned reasons, could only be extended to municipalities with a population exceeding 15,000 inhabitants.

2. – By instrument filed on 27 June 2024, the President of the Council of Ministers, represented and defended by the State Attorney General, entered an appearance, requesting that the appeal be declared inadmissible or, in any case, unfounded.

2.1. – According to the respondent, first of all, the questions would all be inadmissible because aimed at reviewing matters of discretion reserved to the discretion of the state legislator.

2.2. – On the merits, recalling the principles affirmed most recently by judgment No. 60 of 2023 of this Court, the President of the Council of Ministers notes that the legislator, in the legislation in question, has taken into account, on the one hand, the difficulty of finding candidates in the smaller municipalities and, on the other, the interests "in ensuring effective equal opportunity among candidates, the freedom of vote of individual voters, the physiological turnover of political representation."

The balance between these opposing needs has always found a point of equilibrium in the limitation of consecutive terms for larger municipalities: a limitation which, following the impugned legislation, remains "unchanged" for municipalities with a population exceeding 15,000 inhabitants, but is "variously calibrated" for municipalities with a smaller population. Such a choice by the legislator could therefore not be considered as violating Articles 3, 48 and 51 of the Constitution.

2.3. – The question raised with reference to Articles 3 and 97, second paragraph, of the Constitution would be manifestly unfounded, as no limit on consecutive terms would be constitutionally legitimate, if precedence were to be given to the continuity of administrative action.

2.4. – Similarly unfounded would be the doubts of constitutional legitimacy relating to compliance with Articles 3, 5, 114 and 118 of the Constitution.

The impugned legislation, in fact, would be "neutral with respect to the objective of promoting local authorities"; it would determine only a temporary limitation of the passive right to vote, functional to ensuring the "effectiveness of the exercise of the democratic rights of citizens"; it would ensure protection of the needs for equal opportunity and freedom of vote of citizens, without limiting or altering the functions and autonomy of local authorities.

In other words, the legislator intended to guarantee "the democratic government of local authorities" avoiding the risk that the mayor, after two consecutive terms, "may benefit from an advantageous position compared to other candidates."

3. – Shortly before the public hearing, the Liguria Region filed a brief in which it insisted on the acceptance of the questions of constitutional legitimacy.

3.1. – The applicant, reiterating the arguments already used in the introductory document, observes in particular that, according to the new legislation, the general rule is that a third consecutive term is possible, moreover valid for almost all municipalities; the rule of two terms is therefore special but, being based only on the size data of the local authority, would be without justification.

3.2. – The objection of inadmissibility raised by the President of the Council of Ministers regarding the discretion of the legislator would be unfounded, because what is challenged is the manifest unreasonableness of the legislative choice not to allow the third term also in municipalities with a population exceeding 15,000.

3.3. – The Liguria Region then challenges the arguments used by the respondent to challenge the soundness of the doubts of constitutional legitimacy.

In particular, on the one hand, it would be a "petition of principle" that the need to avoid an excessive number of consecutive terms would be more strongly felt in larger municipalities; on the other hand, the alleged violation of Article 97, second paragraph, of the Constitution would have been deduced together with that of Article 3 of the Constitution, because what is challenged is not the limit itself on consecutive terms, but the difference in treatment between municipalities, which therefore affects the principle of administrative continuity, even more relevant for larger local authorities.

Reasons

1. – The Liguria Region, with the appeal in question, has raised questions of constitutional legitimacy of Article 4, paragraph 1, of Legislative Decree No. 7 of 2024, as converted, with reference to Articles 3, 5, 48, 51, 97, second paragraph, 114 and 118 of the Constitution, insofar as it does not provide, even for mayors of municipalities with a population exceeding 15,000 inhabitants, the possibility of a third consecutive term.

1.1. – The impugned provision has amended Article 51, paragraph 2, of the Consolidated Text on local authorities, providing, in particular, that the second period is replaced by the following: "For mayors of municipalities with a population of up to 15,000 inhabitants, the limit provided for in the first period shall apply upon expiry of the third term. The provisions referred to in the preceding periods shall not apply to municipalities with a population of up to 5,000 inhabitants."

According to the applicant, the legislative intervention – which, while maintaining the limit of two consecutive terms for mayors of municipalities with a population exceeding 15,000 inhabitants, brings to three the limit of consecutive terms for mayors of municipalities between 5,001 and 15,000 inhabitants and removes it for mayors of municipalities below 5,000 inhabitants – would be based on a mere size data, in itself not capable of justifying the difference in treatment between local authorities. The impugned provision would therefore violate Articles 3, 48 and 51 of the Constitution, as the active and passive electoral rights of citizens of municipalities with a population exceeding 15,000 inhabitants would be unreasonably limited; it would violate Articles 3 and 97, second paragraph, of the Constitution, since it would unreasonably prevent citizens from having a period of continuity of political and administrative action in larger municipalities; finally, it would violate Articles 3, 5, 114 and 118 of the Constitution, as the unjustified discrimination between municipalities would not respect the constitutional obligation to promote local authorities and ensure their equality.

2. – The President of the Council of Ministers, having entered an appearance, has objected to the admissibility of all the questions, because they would be aimed at reviewing matters of discretion reserved to the discretion of the state legislator.

2.1. – The objection must be rejected.

The Liguria Region expressly acknowledges that the legislation relating to the limit of consecutive terms for mayors is an expression of the legislator's discretion: however, it believes that this discretion has been exercised unreasonably and that, in order to remedy the resulting constitutional violation, it is necessary to extend the limit of three consecutive terms also to the mayors of municipalities with a population exceeding 15,000 inhabitants.

In other words, this Court is asked to extend a choice already made by Parliament – that of the limit of three consecutive terms for mayors of municipalities with a population between 5,001 and 15,000 inhabitants – to another case for which – unreasonably, in the applicant's opinion – the legislation provided is different. Any assessment of the correctness of such a proposal concerns, however, the merits of the questions of constitutional legitimacy and not their admissibility (in similar terms, judgments No. 134 of 2024, No. 200 of 2023 and No. 171 of 2022).

3. – On the merits, the questions are all unfounded.

They can be dealt with jointly because, although they invoke different constitutional parameters, they all revolve, in fact, around the alleged unreasonableness of the legislative choice to provide for different limits on consecutive terms for mayors, depending on the size of the population of the municipalities.

3.1. – A limit on consecutive terms, in the number of two, was introduced for the first time with Article 2 of Law No. 81 of 25 March 1993 (Direct election of the mayor, the president of the province, the municipal council and the provincial council), simultaneously with the provision for the direct election of the mayor. Article 51, paragraph 2, of the Consolidated Text on local authorities, in implementation of the delegation to "combine and coordinate the existing legislative provisions concerning the organization of municipalities and provinces and their associative forms" (Article 31, paragraph 1, of Law No. 265 of 3 August 1999, containing "Provisions concerning the autonomy and organization of local authorities, as well as amendments to Law No. 142 of 8 June 1990"), confirmed the rule of the so-called two consecutive terms.

In subsequent years, the legislator progressively deemed it necessary to introduce some exceptions to the prohibition of a third consecutive term.

Article 1, paragraph 138, of Law No. 56 of 7 April 2014 (Provisions on metropolitan cities, provinces, unions and mergers of municipalities) provided that "[f]or municipalities with a population of up to 3,000 inhabitants, the provisions referred to in paragraphs 2 and 3 of Article 51 of the Consolidated Text shall not apply; however, mayors of the same municipalities are allowed a maximum of three terms."

Subsequently, Article 3 of Law No. 35 of 12 April 2022 (Amendments to the Consolidated Text pursuant to Legislative Decree No. 267 of 18 August 2000, concerning the limitation of the mandate of mayors and management control in smaller municipalities, as well as to Legislative Decree No. 39 of 8 April 2013, concerning the incompatibility of appointments in privately held entities under public control) repealed the provision introduced in 2014 and amended Article 51, paragraph 2, of the Consolidated Text on local authorities, providing for the limit of three consecutive terms for mayors of municipalities with a population of less than 5,000 inhabitants and maintaining the limit of two for all others.

With the impugned provision, as already mentioned, the legislator has again intervened on Article 51, paragraph 2, of the Consolidated Text on local authorities. As a result of this legislative amendment, for mayors of municipalities with a population exceeding 15,000 inhabitants, the prohibition of a third consecutive term remains in force; for mayors of municipalities with a population between 5,001 and 15,000 inhabitants, the limit of consecutive terms is three; for mayors of municipalities with a population of up to 5,000 inhabitants, no term limit is provided. This last legislative amendment was expressly justified – in the Government's explanatory memorandum to the draft law converting Law No. 38 of 2024 – with reference to the difficulty of identifying candidates for the position of mayor in municipalities of smaller demographic size.

3.2. – This Court has recently stated that "[t]he provision of the maximum number of consecutive terms – in close connection with the direct election of the top body of the local authority, which acts as a balanced counterbalance – reflects […] a legislative choice suitable to realize and guarantee further fundamental rights and constitutional principles: the effective equal opportunity among candidates, the freedom of vote of individual voters and the overall genuineness of the electoral competition, the physiological turnover of political representation and, ultimately, the very democracy of local authorities" (judgment No. 60 of 2023).

Precisely because it is the result of a balance between different constitutional interests, the identification of the point of equilibrium between them by the legislation in question is an expression of the legislator's discretion, which can be reviewed by this Court only if it is manifestly unreasonable (judgments No. 114 and No. 47 of 2024, No. 88 and No. 73 of 2023): which, in this case, is not.

With the impugned provision, in fact, the legislator has deemed it necessary, on the basis of experience, to shift the "specific point of equilibrium" (again, judgment No. 60 of 2023) between the opposing constitutional interests at stake, balancing them differently depending on the demographic size of the local authority, on the assumption that there are significant differences between the classes of municipalities in which the current legislation is articulated, in terms of the economic and social interests pertaining to them.

The amended Article 51, paragraph 2, of the Consolidated Text on local authorities is therefore inspired by a gradual logic: no term limit in the smallest municipalities, a limit of three consecutive terms for intermediate municipalities, a limit of two consecutive terms for the most populous municipalities. This is a choice that is not manifestly unreasonable, which, although according to a different logic and structure than the previous ones, intends to achieve a fair balance between the rights and constitutional principles that are considered. This is all the more true in relation to the aspect specifically challenged by the Liguria Region, i.e., that of providing, for mayors of municipalities with a population exceeding 15,000 inhabitants, a limit of two consecutive terms, rather than three as is the case for mayors of municipalities with a population between 5,001 and 15,000 inhabitants: as mentioned, it falls within the legislator's discretion to provide, depending on the demographic size of the local authority and in view of the consequently existing differences, a different limit on consecutive terms.

4. – The questions of constitutional legitimacy raised by the Liguria Region must therefore be declared unfounded.

For these reasons

THE CONSTITUTIONAL COURT

declares unfounded the questions of constitutional legitimacy of Article 4, paragraph 1, of Legislative Decree No. 7 of 29 January 2024 (Urgent provisions for the 2024 electoral consultations and concerning the revision of the registers of the resident population and the determination of the legal population), converted, with amendments, into Law No. 38 of 25 March 2024, raised, with reference to Articles 3, 5, 48, 51, 97, second paragraph, 114 and 118 of the Constitution, by the Liguria Region with the appeal indicated above.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 29 October 2024.

Signed:

Augusto Antonio BARBERA, President

Filippo PATRONI GRIFFI, Reporting Judge

Roberto MILANA, Registrar

Filed with the Registry on 10 December 2024