ORDER NO. 199
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
ORDER
in the proceedings concerning the constitutional review of Article 19, paragraphs 5-quater, 5-quinquies and 5-sexies, of (Urgent Provisions for Financial Stabilization), converted, with amendments, into Law No. 111 of 15 July 2011, referred by the Regional Administrative Court for Campania, Fourth Section, in the proceedings between the Campania Region, Federazione lavoratori della conoscenza (FLC) - CGIL Campania and Federazione UIL Scuola-Rua, against the Presidency of the Council of Ministers, Ministries of Education and Merit, Economy and Finance, and the Lombardy Region, by order of 30 October 2023, registered at no. 157 of the register of orders 2023 and published in the .
Having seen the instrument of constitution of the Campania Region, and the instrument of intervention of the President of the Council of Ministers;
having heard, at the Chamber Council of 29 October 2024, the Reporting Judge Luca Antonini;
having deliberated at the Chamber Council of 29 October 2024.
Considering that the Regional Administrative Court for Campania, Fourth Section, by order of 30 October 2023 (reg. ord. no. 157 of 2023), raised a question of the constitutionality of Article 19, paragraphs 5-quater, 5-quinquies and 5-sexies, of Decree-Law No. 98 of 6 July 2011, converted, with amendments, into Law No. 111 of 15 July 2011, with reference to Article 117, third paragraph, of the Constitution;
that, according to the referring order, in the a quo proceedings the Campania Region challenged the decree of the Minister of Education and Merit, in agreement with the Minister of Economy and Finance, No. 127 of 30 June 2023, which, in implementation of the aforementioned provisions, established the criteria for defining the organic contingent of school principals and directors of general and administrative services, and its distribution among the regions for the school years 2024/2025 to 2026/2027;
that, in particular, the referring TAR, having rejected the objection of territorial incompetence raised by the defense of the State administrations, must assess the application for interim relief to suspend the effectiveness of the challenged provision and, at the same time, examine the question of the constitutionality of the underlying provisions, raised by the applicant Region in support of the illegitimacy, derivatively, of the aforementioned decree;
that the referring order considers the relevance of the question of constitutional legitimacy for the purposes of the decision to be evident, since, if this were accepted, the challenged decree "would lose its authorizing legislative basis", resulting in illegitimacy, with the consequence that the appeal would be upheld;
that, as regards the non-manifest unfoundedness of the question raised, the order observes that the challenged Article 19, paragraph 5-quater, would constitute a detailed provision, "authorizing an inter-ministerial decree to set guidelines for defining the organic contingent" of the aforementioned managerial and administrative personnel and its distribution among the regions; Article 117, third paragraph, of the Constitution, would thus be violated, reserving to State legislation only the determination of fundamental principles in the matter of "education", within which "the organizational function" would certainly fall;
that the "grid of criteria" set by the State legislature would bind the regions "within very limited margins", thus nullifying the provision, contained in the same provision, according to which these "independently provide for the sizing of the school network";
that, although the challenged paragraphs 5-quater and 5-quinquies do not state any criterion for the sizing of the school network, entrusting the definition thereof to a ministerial decree, the conflict with the invoked constitutional parameter would derive "from the combined operation" of the aforementioned authorizing provisions "and the slavish secondary source";
that the challenged paragraph 5-quinquies would also have a detailed character, "setting even a numerical coefficient" for identifying the number of school principals, in the event of failure to reach an agreement at the Unified Conference, "completely eliminating any scope for concurrent intervention by the regional legislature", substantially disempowered;
that, in conclusion, the legislative power of the regions in the regulation of the activity of sizing the school network on the territory would be infringed;
that the referring order has also granted the interim relief "suspending, within the limits of the regional interest of the applicant [...] and until the filing of the judgment of the Constitutional Court [...]", the challenged provision;
that the Campania Region has constituted itself in court, limiting itself to requesting the upholding of the raised question of constitutional legitimacy;
that the President of the Council of Ministers, represented and defended by the State Legal Office, having intervened in the proceedings, has first of all raised the inadmissibility of the question of the constitutional legitimacy of the challenged paragraph 5-sexies, of which the order would have completely omitted to argue the relevance and the non-manifest unfoundedness;
that all the criticisms would in any case be "inadmissible or, in any case, manifestly unfounded", considering that, "with regard to the same", this Court would have already ruled with , "considering them without merit";
that, in particular, the challenged provisions would fall within the headings of exclusive State legislative competence pursuant to Article 117, second paragraph, letters g) and n), of the Constitution – "administrative organization and structure of the State" and "general rules on education" – thus eliminating "all the criticisms articulated by the TAR Campania concerning their alleged "detailed" nature".
Considering that the Regional Administrative Court for Campania, Fourth Section (reg. ord. no. 157 of 2023), raised a question of the constitutionality of Article 19, paragraphs 5-quater, 5-quinquies and 5-sexies, of D.L. No. 98 of 2011, as converted;
that, according to the referring judge, the challenged provisions violate Article 117, third paragraph, of the Constitution, interfering with a detailed intervention in the matter of concurrent legislative competence "education", to which this Court has consistently attributed the rules on school sizing;
that the objection of inadmissibility of the question of constitutional legitimacy of the aforementioned paragraph 5-sexies, explained by the State Legal Office on the assumption of the absolute lack of motivation in this regard, is unfounded, emerging from the referring order, in a synthetic but clear manner, that the provision which is the subject of the a quo proceedings would also constitute implementation of this provision, therefore relevant for the purposes of the decision, and that it would present a detailed character identical to that of paragraphs 5-quater and 5-quinquies, strictly connected to it, therefore infringing Article 117, third paragraph, of the Constitution;
that, with , filed on 22 December 2023 and, therefore, subsequent to the referring order under scrutiny, this Court has already decided questions entirely analogous to the one now under examination, brought by the Tuscany, Emilia-Romagna and Puglia Regions with appeals concerning Article 1, paragraph 557, of Law No. 197 of 29 December 2022 (State Budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025), a provision which inserted paragraphs 5-quater, 5-quinquies and 5-sexies into Article 19 of D.L. No. 98 of 2011, as converted;
that, in identifying the material scope to which the challenged provisions are to be attributed, this judgment recognized that they "interfere with the concurrent regional competence in the matter of education, in terms of school sizing, consistently classified in this material area by the jurisprudence of this Court";
that, in fact, under the discipline in question, the organic contingent of school principals and administrative staff is defined and, within the limits of this, the regions provide for the organization of their school network;
that the same judgment considered, however, that, despite this interference, "the provisions in question are based, however, predominantly on different headings of exclusive State competence";
that, in particular, they relate primarily to the matter of "administrative organization and structure of the State", referred to in letter g) of the second paragraph of Article 117 of the Constitution, since, both in terms of the determination of the contingent and in terms of the choice of overcoming the legal institution of regency, "they relate to personnel included in the State public employment"; secondly, they fall within the exclusive State legislative power in the matter of "general rules on education", referred to in Article 117, second paragraph, letter n), of the Constitution, having the objective of carrying out a review of criteria and parameters for the overall determination of staff and because they aim "to redefine a fundamental aspect of the functional autonomy [...] which characterizes the schools, being aimed at establishing a necessary link between autonomy and the effective ownership of a manager, so that the former is no longer given in the absence of such a figure";
that, therefore, this Court has declared unfounded the questions raised with reference to Article 117, third paragraph, of the Constitution, noting that "[o]nce it is recognized that the challenged provisions have been adopted in the exercise of the aforementioned headings of exclusive State legislative competence, their detailed nature cannot be complained of";
that, with respect to the aforementioned , the referring order under scrutiny does not present new arguments, or such as to lead to a different conclusion;
that, consequently, the question must be declared manifestly unfounded (ex plurimis, orders and , and ).
Having seen Articles 26, second paragraph, of Law No. 87 of 11 March 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
for these reasons
THE CONSTITUTIONAL COURT
declares the manifest unfoundedness of the question of the constitutional legitimacy of Article 19, paragraphs 5-quater, 5-quinquies and 5-sexies, of Decree-Law No. 98 of 6 July 2011 (Urgent Provisions for Financial Stabilization), converted, with amendments, into Law No. 111 of 15 July 2011, raised, with reference to Article 117, third paragraph, of the Constitution, by the Regional Administrative Court for Campania, Fourth Section, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 29 October 2024.
Signed:
Augusto Antonio BARBERA, President
Luca ANTONINI, Reporter
Roberto MILANA, Registrar
Filed with the Registry on 13 December 2024