JUDGMENT NO. 147

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

comprised of:

President: Giovanni AMOROSO;

Judges: Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has delivered the following

JUDGMENT

in the constitutional legitimacy proceedings concerning Article 13, paragraph 3, of Decree-Law No. 162 of December 30, 2019 (Urgent provisions concerning legislative deadlines, organization of public administrations, and technological innovation), converted, with amendments, into Law No. 8 of February 28, 2020, and Article 13, paragraph 5, of Decree-Law No. 183 of December 31, 2020, entitled "Urgent provisions concerning legislative deadlines, digital connections, implementation of Council Decision (EU, EURATOM) 2020/2053 of December 14, 2020, and withdrawal of the United Kingdom from the European Union," converted, with amendments, into Law No. 21 of February 26, 2021, initiated by the Council of State, Fifth Section, in the proceeding between RAV - Raccordo Autostradale Valle d’Aosta spa and the Ministry of Infrastructure and Transport and others, with a non-final judgment of January 15, 2025, registered under no. 9 of the registry of referral orders 2025 and published in the Official Gazette of the Republic no. 6, first special series, of 2025.

Having seen the statement of constitution of RAV - Raccordo Autostradale Valle d’Aosta spa, as well as the statement of intervention by the President of the Council of Ministers;

Having heard Judge Rapporteur Filippo Patroni Griffi in the public hearing of June 25, 2025;

Having heard the lawyers Luisa Torchia, Marco Annoni, and Gian Michele Roberti for RAV - Raccordo Autostradale Valle d’Aosta spa, as well as the State Attorney Paola Palmieri for the President of the Council of Ministers;

Deliberated in the Chamber of Council on July 7, 2025.

Facts Considered

1.− The Council of State, Fifth Section, with a non-final judgment of January 15, 2025, raised questions of constitutional legitimacy – with reference to Articles 3, 11, 41, 77, 97, and 117, first paragraph, of the Constitution, the latter in relation to Articles 49, 56, and 63 of the Treaty on the Functioning of the European Union, Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, and Article 1 of the Protocol additional to the European Convention on Human Rights (ECHR) – regarding Article 13, paragraph 3, of Decree-Law No. 162 of December 30, 2019 (Urgent provisions concerning legislative deadlines, organization of public administrations, and technological innovation), converted, with amendments, into Law No. 8 of February 28, 2020, and Article 13, paragraph 5, of Decree-Law No. 183 of December 31, 2020, entitled "Urgent provisions concerning legislative deadlines, digital connections, implementation of Council Decision (EU, EURATOM) 2020/2053 of December 14, 2020, and withdrawal of the United Kingdom from the European Union," converted, with amendments, into Law No. 21 of February 26, 2021.

1.1.− The referring judge reports that they are called upon to rule on the appeal, lodged by RAV - Raccordo Autostradale Valle d’Aosta spa (RAV), against two separate rulings by the Regional Administrative Tribunal for the Aosta Valley, which rejected the company’s appeals against two distinct notes from the Ministry of Infrastructure and Transport (MIT), which denied the appellant the annual adjustment of motorway toll tariffs, by the requested percentage increase, for the years 2020 and 2021.

RAV holds the concession for the design, construction, and operation of the Aosta - Mont Blanc Tunnel motorway, based on the single agreement signed on December 29, 2009. Articles 15 and 18 of this agreement, as well as Article 4 of the resolution of the Interministerial Committee for Economic Planning (CIPE) of June 15, 2007, No. 39 (Directive on the economic regulation of the motorway sector), govern the annual tariff adjustment mechanism. Pursuant to Article 21, paragraph 5, of Decree-Law No. 355 of December 24, 2003 (Extension of deadlines set by legislative provisions), converted, with amendments, into Law No. 47 of February 27, 2004, the proposal for adjustment must be submitted by October 15 of each year; the Minister of Infrastructure and Transport, in agreement with the Minister of Economy and Finance, shall issue a motivated decree on this proposal by December 15 thereafter.

The Council of State reports that the ministerial decrees concerning tariff adjustments for the years 2016, 2017, and 2018 – which linked said adjustment to the update of the Economic-Financial Plan (PEF) – were annulled by the TAR of the Aosta Valley (judgments of October 12, 2016, No. 45; September 12, 2017, No. 54; and June 27, 2019, No. 34, respectively). To the adjustment proposals for 2020 and 2021, the Ministry responded with the notes challenged in the first instance proceedings.

With reference to the PEF, the referring judge notes that both the agreement and CIPE resolutions No. 39 of 2007 and No. 27 of March 21, 2013 (Criteria for updating the economic-financial plan referred to in resolution of June 15, 2007, No. 39), provide that the concession duration is divided into regulatory periods of five years and that, six months before the expiry of each period, the parties shall proceed with its update, which must be completed by June 30 of the first fiscal year of the new regulatory period. RAV initiated the procedures for the adjustment of the PEF relating to the years 2014-2018 and then 2019-2023: the Ministry, even following numerous discussions with the concessionaire, has not proceeded with approval for either five-year period.

1.2.− The two ministerial notes challenged by RAV communicated to the concessionaire a tariff update of 0.00 percent, in consideration of the provisions of the two enactments challenged before this Court. The MIT, in fact, acknowledged the "postponement of the deadlines for concluding the annual tariff adjustment procedure," as provided by these regulations until the "definition of the procedure for updating the economic-financial plans," for which a new deadline is set. The reference in the two ministerial notes to Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, and to Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted, therefore constitutes, the Council of State affirms, "the sole and necessary reason for the decision," as it is expressly considered the determining element for overriding the findings of the completed investigations, which contained proposals for tariff adjustment.

In any case, these are not definitive denials of tariff adjustments for the years 2020 and 2021, as the challenged legal provisions themselves provide for a different deadline for deciding on the adjustment. The Council of State, at the same time, notes that both notes are prejudicial to the concessionaire's interests, as "regardless of the future recovery of said adjustment, the timing of the financial provision is in any case a relevant element for business activities."

1.3.− The referring judge specifies that they have suspended two proceedings of similar content pending the decision of this Court, "after notifying the parties and without them having expressed the need to directly engage with the Constitutional Court."

1.4.− The Council of State, after deeming the grounds of appeal not involving the challenged provisions to be unfounded, observes regarding relevance that any declaration of unconstitutionality of the latter would lead to the annulment of the impugned ministerial notes.

1.5.− The referring judge then proceeds to an extensive reconstruction of the normative scope of the challenged provisions.

1.5.1.− Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, results in the following effects for concessionaires whose five-year regulatory period has expired: i) it postpones the deadline for tariff adjustment for 2020 "until the definition of the procedure for updating the economic-financial plans"; ii) it sets March 30, 2020, as the deadline for concessionaires to submit proposals for updating the PEFs, which replace and annul the previous ones and must be reformulated in accordance with the resolutions adopted by the Transport Regulatory Authority (ART) pursuant to Article 16, paragraph 1, of Decree-Law No. 109 of September 28, 2018 (Urgent provisions for the city of Genoa, the safety of the national infrastructure and transport network, the earthquakes of 2016 and 2017, labor, and other emergencies), converted, with amendments, into Law No. 130 of November 16, 2018; iii) it sets July 31, 2020, as the deadline for updating the PEFs. Consequently, the Council of State observes, the final deadline for tariff adjustment is set at July 31, 2020.

1.5.2.− The challenged provision would not, however, have any impact on the competences of the ART, on the tariff regime, on the PEF discipline, or on its update.

In fact, ART was already competent in matters of tariff adjustment at the time of the entry into force of Decree-Law No. 162 of 2019, also for existing concessions (pursuant to Article 37 of Decree-Law No. 201 of December 6, 2011 (Urgent provisions for growth, equity, and consolidation of public accounts), converted, with amendments, into Law No. 214 of December 22, 2011, and Article 16 of Decree-Law No. 109 of 2018, as converted). In the exercise of this competence, ART had already established the tariff regime applicable to RAV (resolutions of February 18, 2019, No. 16, concerning "Tariff system for tolls related to the concessions referred to in Article 43 of Decree-Law 201/2011 as referred to in Article 37 of the same Decree. Initiation of the procedure" and of June 19, 2019, No. 64, concerning "Conclusion of the procedure initiated with resolution No. 16/2019 - Approval of the toll tariff system relating to the Single Agreement ANAS S.p.A. - Raccordo Autostradale Valle d’Aosta S.p.A."), which the referring judge reports were the subject of an appeal, deemed unfounded by the TAR of Piedmont, Second Section, with judgment of November 25, 2022, No. 1034).

At the same time, ART is also required "to issue an opinion within the framework of the PEF update procedure, having to comply with its resolutions and being able to request the necessary investigatory measures to fulfill its duties": and this, also with reference to existing motorway concession agreements, since the entry into force of Decree-Law No. 109 of 2018. It follows, the referring judge affirms, that even before the challenged provision, the proposals for updating the PEF must comply with the ART resolutions, without this being prevented – as confirmed by established administrative jurisprudence – by the procedure for updating the PEF having already commenced. Furthermore, ART may request the necessary investigatory measures, in adversarial proceedings with the concessionaire, which is obliged – also based on ART Resolution No. 64 of 2019 – to elaborate the PEF based on the regime defined by ART.

1.5.3.− The Council of State therefore affirms that, for the purpose of updating the PEF, the MIT was required to engage with ART even before the entry into force of the challenged provision, having to take into account the resolutions of ART and being able to request the concessionaire "any investigatory integration aimed at enabling ART to express its opinion": The challenged provision, therefore, has the effect of establishing that the reformulated PEF proposals cancel and replace the previous ones, but this "is instrumental not so much for the procedure and the administrative decision concerning the tariff adjustment (for which procedural discussions would have been sufficient), as for the fixing of a new deadline to proceed, determined from the date of the (new) commencement of the procedure, the justification for which is found precisely in the reformulation of the proposal."

The resulting procedural coordination effect would not be, in the opinion of the referring judge, "effectively achieved." This is because, since the two procedures – annual tariff adjustment and PEF update – must be concluded within the same deadline, ART must rule on the PEF update proposal before the annual tariff adjustment procedure is concluded, when instead the latter, concerning one of the fundamental economic aspects of the motorway concession, ends up having relevant effects on the second, "since imposing a different tariff system has repercussions on the economic-financial balance of the concessionaire company, and thus on the economic-financial plan and the agreement, of which the PEF is a technical annex" (citing Council of State, Fifth Section, judgment of July 27, 2021, No. 5585).

1.6.− All the foregoing considered, the Council of State deems some of the questions of constitutional legitimacy or compatibility with European Union law raised by RAV to be "inadmissible," as they are extraneous to the subject matter of the dispute.

1.7.− The referring judge then accounts for the fact that Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, was amended by the other challenged provision, contained in Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted. The latter, on the one hand, postponed the deadline for updating the PEFs and adjusting the tariffs to July 31, 2021, and, on the other hand, involved in the postponement of the deadline not only, as the first challenged provision already did, the adjustment for the year 2020, but also that for the year 2021.

The legislation under Decree-Law No. 162 of 2019, as converted, was subsequently subject to further amendments, until its replacement by Article 8, paragraph 9, of Decree-Law No. 215 of December 30, 2023 (Urgent provisions concerning legislative deadlines), converted, with amendments, into Law No. 18 of February 23, 2024.

The Council of State, however, notes that the only provisions relevant in its judgment are those under Decree-Laws No. 162 of 2019 and No. 183 of 2020, as converted and in force at the date of adoption of the two ministerial notes challenged by RAV, the legitimacy of which must be assessed based solely on those legal provisions. The referring judge does not fail to note, however, that the amendments to these provisions have further postponed the deadline for concluding the tariff adjustment procedure, impacting "in a detrimental manner on the postponement" already ordered.

The referring judge further specifies that the aforementioned Article 8, paragraph 9, of Decree-Law No. 215 of 2023, as converted, would have no effect on RAV's continued interest in appealing: this is because, on the one hand, this provision would "expressly concern procedures taking place in 2024, having no relevance to the notes contested here" and, on the other hand, because the increase ordered – equal to 2.3 percent, corresponding "to the inflation index expected for 2024 by the Update Note of the Economic and Financial Document 2023" – could not be considered satisfactory of the appellant's interest, both because it is provisional and because it starts from 2024, whereas the dispute in the present proceedings concerns the years 2020 and 2021.

1.8.− The Council of State, before providing reasoning on the non-manifest unfoundedness, acknowledges the circumstance that the regime introduced by the challenged provisions raises doubts, in addition to constitutional legitimacy, regarding compatibility with "competitive aspects of the freedom to conduct business and [ownership of assets], enshrined in EU law."

It nevertheless deems it appropriate "to give precedence to the constitutional referral over the preliminary reference to the Court of Justice," both because the challenged provisions appear to violate "numerous constitutional principles and freedoms," as well as the correct exercise of primary legislative power, which assumes a "preliminary character," and because "the freedom to conduct business and the competition rules characterizing it are enshrined not only in EU law but also in Article 41 of the Constitution": from which an additional reason for preference for the choice to raise questions of constitutional legitimacy derives, as the possible annulment ruling would bring a benefit to the value of legal certainty in sensitive sectors. Furthermore, this preference is in line with the guidelines of both the Court of Justice of the European Union (citing the Fifth Section, judgment of September 11, 2014, Case C-112/13, A) and this Court (citing Judgment No. 269 of 2017).

1.9.− As for the doubts regarding constitutional legitimacy, the challenged provisions would conflict, first and foremost, with Articles 3 and 77 of the Constitution.

The Council of State is aware that the review by this Court regarding the existence of the prerequisites for adopting a decree-law is limited to cases of "evident lack" or "manifest unreasonableness or arbitrariness of the relevant assessment"; it also notes that the challenged provisions are homogeneous with the decree-laws in which they are included, whose objective is to provide for the extension and definition of expiring deadlines in order to ensure the continuity of administrative action.

However, the legislation contained in the challenged norms would conflict with the constitutional parameters invoked because it is "not functional to achieving the objective declared by the legislator," "does not possess an urgent nature," "is disproportionate," and "hinders the continuity of administrative action."

1.9.1.− In fact, the public administration has the power, independent of the challenged legislation, to act even beyond the deadline, which is merely organizational, set by law for the adoption of a specific act. The continuity of administrative action, therefore, would not have required the extension of procedural deadlines, but is rather prejudiced by it. This is because the challenged provisions, by postponing the deadlines, require the administration not to rule on the annual tariff adjustment in the absence of the PEF update, which in turn depends on the submission of a reformulated update proposal.

Furthermore, the challenged legislative intervention, by linking the deadline for tariff adjustment to the conclusion of the PEF update procedure, hinders the annual nature of the tariff adjustment, which has repercussions on business needs and does not correspond to any public interest need.

1.9.2.− The challenged normative intervention would not even be urgent, primarily because the procedural deadlines for updating the PEF and for the annual tariff adjustment had "already expired," on June 30 following the expiry of the previous regulatory period and December 15, 2019, respectively.

In light of the aforementioned competences of ART, moreover, the challenged provisions would not be necessary either to take into account the resolutions of said ART through the reformulation of the PEF update proposals, or to coordinate the two procedures, given precisely the "double 'role' of ART in the two procedures under review" and the investigatory powers exercisable by the administration.

1.9.3.− Even assuming that the normative intervention makes the procedural discipline more transparent and uniform, it would be disproportionate to the effects produced, in violation of Article 3 of the Constitution, because: i) such purposes "are not necessary in themselves [...] especially if one considers that the provision is addressed to (a few) market operators in a monopolistic regime and concerning whom no significant information asymmetries are found, given their experience and professionalism"; ii) the result would not be achieved with the least possible sacrifice, as it could be pursued without postponing the deadline for tariff adjustment, which is linked to that for PEF update, which alone requires reformulation; iii) the disproportionate effect would be aggravated by subsequent legislative amendments; iv) greater protection is not ensured for concessionaires whose PEF has not been updated for a long time.

1.9.4.− The challenged provisions, on the other hand, would produce consequences on the continuity of administrative action that would not have occurred had the "general rules governing administrative procedures" been applicable. In fact, they "do not allow or in any case postpone and make more difficult the application of institutions that compel the conclusion of procedures whose (organizational) deadlines have expired," such as the silence of non-action and the connected judicial protection, the action for which can only be exercised once the deadlines have passed (Article 31 of Annex 1 - Code of Administrative Procedure - to Legislative Decree No. 104 of July 2, 2010 (Implementation of Article 44 of Law No. 69 of June 18, 2009, delegating the government to reorganize administrative procedure)); damage from procedural delay and compensation as per Article 2-bis of Law No. 241 of August 7, 1990 (New provisions concerning administrative procedure and the right of access to administrative documents); the consequences provided for by Article 2, paragraph 9, of the same law on the position of the public official or manager responsible for the procedure. All this, without producing "other positive effects."

1.10.− The Council of State then notes that the challenged provisions "possess the characteristics of a measure-law, integrating the necessary conditions for their attribution to the aforementioned category": in fact, they concern only the motorway concessionaires whose five-year regulatory period has expired.

Measure-laws are not, in themselves, contrary to the Constitution, but remain subject to "a strict constitutional review under the aspects of non-arbitrariness, proportionality, and non-unreasonableness of the legislator's choice," and a judgment of expediency of the means adopted with respect to the pursued objective and a judgment of proportionality of the chosen measure must therefore be made.

In the specific case, the normative discipline "does not replace the measure (which must still be adopted), but modifies the rules of the relevant procedure," so what must be assessed is "the existence of a reason justifying the choice to intervene by law to delay administrative action by imposing the postponement of the deadline."

1.10.1.− According to the referring judge, the challenged legislation would produce distorting effects that reflect on the principles of Articles 3 and 97 of the Constitution.

By imposing a delay in deciding on the request for tariff adjustment and the update of the PEF, and by making the application of institutions aimed at compelling the conclusion of procedures whose organizational deadline has expired more difficult, it "disempowers the actions of public employees" and "prejudices the efficiency of the administrative system, which presupposes the timely and continuous exercise of public power," thus negatively impacting the proper functioning of public administration.

If the postponement of the tariff adjustment is functional to calming them down, the referring judge observes, first of all, that the rationalization of tariff systems – previously criticized also by the Court of Auditors, Central Section for Control on the Management of State Administrations (referencing resolution of December 18, 2019, No. 18/2019/G) – had already been carried out by the ART resolutions, applicable regardless of the challenged normative intervention.

In any case, the aim of avoiding an increase in tariffs would not be effectively pursued by postponing procedural deadlines, which would only alter "the correspondence between the use of the good and the payment of the relevant toll [and move the correspondence over time, potentially impacting future users, who use a good that no longer corresponds to that considered in the paid toll]." In fact, mere postponement does not allow for taking into account supervening events, which could also be unfavorable to the concessionaire, and does not prevent "delays in annual adjustment from reflecting on subsequent tariffs," which must take into account what was not paid previously (as provided by Annex A to ART Resolution No. 64 of 2019, point 32). However, since "the imposition of a patrimonial performance on motorists regardless of the actual use of the relevant road section" must be excluded (citing this Court's Judgment No. 208 of 2011), the timely adjustment of motorway tolls would be functional to respecting the principles of equity and proper functioning.

1.10.2.− The Council of State then notes that the failure to adjust tariffs "is generally an indication of a non-scrupulous management of the concession relationship," all the more so when considering that it is accompanied by the failure to update the PEF. Such management of the concession relationship has repercussions on the performance required of the concessionaire regarding investments and, therefore, could lead to the infrastructure becoming inadequate, "with the risk of prejudicing the interests of users of the motorway section, as well as the safety needs strictly connected to the object of the concession."

1.10.3.− The referring judge, concluding on this specific aspect, therefore deems that the challenged provisions, being measure-laws, are not proportionate to "the objectives pursued and the effects produced" and unreasonably affect the rights and guarantees established in the administrative procedure by Law No. 241 of 1990.

1.11.− The challenged provisions would also produce negative consequences "on the freedom to conduct business and social utility," violating Article 41 of the Constitution.

The postponement of deadlines which they entail, in fact, "prejudices the planning and resource acquisition capacities necessary for carrying out business activity as a center for promoting work and as an entity capable of providing services and carrying out work of interest to the community."

The Council of State observes, in this regard, that the uncertainty created by the challenged legislation – moreover reiterated over time – prevents the organization of business activity, which cannot immediately count on the financial provision, nor know when it will obtain it; all aggravated by the fact that only starting from 2024, with Article 8, paragraph 9, of Decree-Law No. 215 of 2023, as converted, the legislator provided for partial compensation mechanisms for the prejudice.

1.11.1.− The referring judge recalls this Court's jurisprudence according to which long-term relationships are not inherently unchangeable when there is a legitimate interest, the intervention is aimed at social utility purposes, and it does not result in illogical, irrational, or disproportionate choices.

In the present case, the conditions to deem the legislation challenged by the referrer legitimate are precisely lacking, for the reasons already highlighted concerning the incongruity of postponing the deadlines with respect to guaranteeing the continuity of administrative action.

1.11.2.− On the other hand, the challenged provisions would also appear to conflict with the third paragraph of Article 41 of the Constitution, because they would remove the concession relationship from the programs and controls provided for by law, even for the purpose of updating the PEF and annual tariff adjustments.

1.12.− According to the Council of State, the challenged regulatory regime "also prejudices (and for the same reasons) the competitive aspects of the freedom to conduct business," protected by Articles 49, 56, and 63 TFEU, Articles 16 and 17 CFREU, as well as Article 1 of the additional Protocol to the ECHR and the principle of *pacta sunt servanda*, with consequent violation of Articles 11 and 117, first paragraph, of the Constitution.

1.12.1.− The CJEU's jurisprudence, in fact, is said to have positions converging with this Court's jurisprudence regarding: i) legislative amendments to long-term relationships, which must provide for an adequate compensation system and, for economic operators, adjustments to the application of new rules; ii) the clarity, precision, and predictability of the effects of legal norms, in compliance with the principles of legal certainty and the protection of legitimate expectations, which cannot be invoked if a prudent and careful economic operator can foresee the adoption of a measure capable of harming its interests.

In this perspective, the Council of State interprets the notes sent by the European Commission within the framework of infringement procedure C-2006/2419, initiated against the Italian Republic following the adoption of the motorway concession regime under Decree-Law No. 262 of October 3, 2006 (Urgent provisions on tax and financial matters), converted, with amendments, into Law No. 286 of November 24, 2006, which introduced unilateral modifications to existing agreements, without indicating the purposes and justifications. In particular, in the note of November 28, 2007, the Commission criticized the modification, unilaterally by the State, of the tariff regime for the entire duration of the existing concession relationship.

In the present case, the conditions for admissibility of unilateral modifications of long-term relationships would not have been met, as the introduced measures would not be functional to the continuity of administrative activity; the postponement occurred "on the last useful day before the beginning of the year" and was subsequently reiterated in similar ways; the PEF relating to the concession in question expired in 2013 and tariff adjustments have been partial for many years; moreover, no compensation measures were provided, except from 2024 onwards.

1.12.2.− Finally, the referring judge observes that modifications to long-term relationships also affect the right to property, which, according to European jurisprudence, also includes legal positions of advantage. In light of this jurisprudence – which interprets Article 17 of the CFREU by taking into account Article 1 of the additional Protocol to the ECHR – the limitation of the "legitimate expectation of tariff adjustment and PEF update [should] be necessary and effectively pursue objectives of general interest and respect the principle of proportionality": which, for the reasons already illustrated, is not the case, according to the Council of State.

2.− By an act filed on February 25, 2025, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General, who concluded for the inadmissibility or unfoundedness of the raised questions of constitutional legitimacy.

2.1.− After extensively retracing the normative context in which the challenged provisions are situated, characterized by the new discipline that entrusts ART with competence in matters of tariff systems, the intervenor immediately highlights that the motorway concessionaires have not adapted to this new system, "also contesting in court both ART resolutions and the measures adopted by the competent Ministry in accordance with the introduced legislative changes and, in any case, proposing tariff adjustments not in compliance with the new regulatory provisions."

The adoption of Article 13 of Decree-Law No. 162 of 2019, as converted, should, therefore, be due to the fact that "the concessionaire companies had submitted tariff adjustment proposals still based on criteria established by the previous economic-financial plans, with the consequence that any tariff increases would not have resulted from the application of the criteria established by the sector regulatory authority and could have led to higher increases than those indicated by the sector authority."

The explanatory report accompanying the conversion bill would show that Article 13, paragraph 3, of the decree-law referred to is justified by the changed regulatory context involving the intervention of a sector Authority and would be necessary to "link the determination of tariff increases with the new PEFs and, even before that, with the new criteria for determining the tariff models established by the Authority, so that the principle of correlation between tariffs paid by users and costs actually incurred by the service manager is respected." The extension of procedural deadlines, therefore, would aim to ensure that the procedure "[takes place] in coherence with the new regulatory framework, designed starting from 2011, made applicable also to concessions existing in 2018 and operational with the completion of the regulatory activity conducted by ART during 2019."

The system for tariff adjustment introduced by ART resolutions, in fact, is profoundly different from the previous one and is inspired by the principle that adjustment for investments is recognized "only against the actual realization thereof," so the postponement of deadlines is "justified by the failure to finalize the economic-financial plans, which represent the reference framework for quantifying the recognizable tariff variations." Furthermore, the guarantee "of full recovery of any tariff differences not recognized in the reference year through the mechanism of figurative items regulated by ART" remains for the concessionaire.

2.1.1.− Regarding the second challenged provision, the State Attorney General observes that, as also emerges again from the explanatory report of the decree-law, the further postponement of the deadlines, and the consequent suspension of tariff adjustments also for the year 2021, is also due to the circumstance that many concessionaires submitted the PEF update "well beyond" the deadline set by Decree-Law No. 162 of 2019, as converted, in addition to the fact that the tariff adjustment requests "do not include the new tariff regime" introduced by ART.

2.2.− The intervening party's defense – after accounting for the subsequent amendments to Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, which are irrelevant in the present proceedings in any case – deems it appropriate to emphasize that Law No. 193 of December 16, 2024 (Annual Law for the Market and Competition 2023) "has proceeded to a general reorganization of the legislation concerning the motorway sector," which also affects the procedure for approving PEFs and, therefore, tariff adjustments. In particular, it is now provided that the PEF proposal is the responsibility of the grantor, not only to strengthen the role of the MIT but also to prevent the reservation of the power of initiative to concessionaires "from continuing to fuel delays and stalemates in the relevant approval processes," especially considering that the requests made so far were not fully aligned "with the requests made by the grantor (and also by ART to ensure their conformity with the system's regulatory constraints." The new legislation, the President of the Council of Ministers emphasizes, is also functional to preventing PEFs from being updated promptly and, correlatively, allowing for an effective review of investments made.

2.3.− Having established this, the intervenor deems the doubts concerning the violation of Article 77 of the Constitution unfounded in the first instance.

In the present case, in fact, there would not be a case of "evident lack" of prerequisites for adopting the decree-law.

The innovations introduced starting from ART Resolution No. 16 of 2019, in fact, would have made it necessary to link tariff adjustments to the new PEFs, as otherwise there would have been tariff increases calculated on the basis of "obsolete conventional criteria." The challenged provisions, therefore, would respond to the need "to promote the submission of Plans compliant with the new discipline," preventing the immediate update of tariffs from "determining significant toll increases, with negative effects on citizens and businesses." In this regard, the State Attorney General insists particularly on the fact that "the tariff adjustment procedure is strictly linked to the prior update of the PEF, in the absence of which it is not possible – especially due to the changed tariff regime resulting from the attribution of new regulatory powers to ART – to foresee a correct measure of tariff increase."

2.4.− The challenged provisions would also not be unreasonable as, contrary to what is asserted by the referring judge, they would allow, through the coordination of procedural deadlines, the continuity of administrative action in coherence with the new regulatory and sector framework.

In fact, they respond to the need to exclude tariff adjustments calculated based on previous regimes, also considering the circumstance that ART resolutions provide for "a remuneration of invested capital on average lower than that contemplated in the economic-financial plans with expired regulatory periods." Moreover, the PEF update proposals were not adequate for the new tariff regime, so the normative intervention aims to allow the tariff adjustment to be respectful of what is provided for by the sector authority's resolution, considering that tariff revisions are also justified based on the costs and investments of the PEF.

The setting of the March 30, 2020 deadline, provided for by the first challenged provision, would also be functional to setting a certain deadline by which to submit a PEF adequate to the subsequent legislation and not, as the referring judge claims, to prevent administrative continuity. The time extension established by the second of the challenged provisions would then find its justification in the prolongation of the state of emergency due to the COVID-19 pandemic.

The intervenor finally notes that the concessionaires, during the negotiation of the PEF and tariff adjustments, can bring arguments regarding lost revenue from omitted adjustments and that, in any case, the so-called figurative items accrue, so the challenged provisions would not be prejudicial to the legitimate expectations of the economic operator.

2.5.− The questions raised with reference to Articles 3 and 97 of the Constitution would also be unfounded, as there would have been no irreversible and definitive zeroing of tariff adjustments, since concessionaires retain the right to obtain a readjustment, only postponed in time and for the purpose of carrying out the tariff adjustment following the updates of the PEFs.

In compliance with the principle of proper functioning of the administration, the challenged provisions allow for an "attentive evaluation of the economic-financial impact of the changes, guaranteeing a transitional regulatory framework that allows for balancing the needs of the concessionaires with the necessity of an equitable management of the motorway network." All this, moreover, also for the purpose of "guaranteeing equity and social sustainability of motorway tolls," in line with European regulations.

The challenged normative intervention, moreover, would have a propulsive nature for administrative activity, inducing concessionaires to submit PEF update proposals that respect ART resolutions and, consequently, tariff adjustment proposals consistent with the new PEFs. They, therefore, guarantee the continuity of administrative activity within the new overall regulatory framework.

The challenged provisions would thus be considered an adequate and proportionate means aimed at achieving the objective of ensuring efficiency in motorway management, containing the excess profits of the concessionaire companies, which submitted tariff adjustment proposals based on the criteria set out in the expired PEFs and proposals to update these latter not in conformity with ART resolutions.

2.6.− The President of the Council of Ministers deems the question of constitutional legitimacy raised with reference to Article 41 of the Constitution to be manifestly unfounded.

The postponement of deadlines, as already argued, would have been necessary to allow for an adaptation to the new regulatory framework. Moreover, "the tariff update procedures typically conclude during the tariff period, authorizing increases that take into account the entire period on average, and this has never prevented concessionaires from recovering investment costs and expenses incurred. This is all the more true in the new tariff system introduced, which sees the mechanism of figurative items regulated by ART as the fundamental moment of readjustment."

The legitimate expectations of remuneration for the work performed and the planning and organizational needs of the enterprise remain guaranteed, in an equitable balance with the needs of regulating the infrastructure sector, which is a service of general interest, in line with what is required by Article 41 of the Constitution.

Furthermore, "the sector is characterized by the existence of concession agreements awarded without competition and particularly old," so there are long-term relationships that, under the conditions indicated by constitutional and supranational jurisprudence, allow for modificatory intervention by the State.

2.7.− With regard to the questions of constitutional legitimacy raised with reference to Articles 11 and 117, first paragraph, of the Constitution, as supplemented by the reference to Articles 49, 56, and 63 of the TFEU, the State Attorney General considers that they appear generic and not supported by adequate reasoning regarding non-manifest unfoundedness, resulting in their inadmissibility.

The Council of State, in fact, would have limited itself to invoking the provisions of the TFEU, subsequently advancing arguments concerning the "different issue of the principle of legitimate expectation connected to the needs for stability of the concession relationship and the protection of the right to property."

2.7.1.− The challenged provisions would in any case be in line with the CJEU jurisprudence cited by the referring judge, which admits "regulatory interventions motivated by priority public interest needs" (citing, in particular, the Fifth Section, judgment of November 7, 2024, Case C-683/22, Adusbef). This is all the more true considering that, in the present case, there is no unilateral modification of concession relationships, but only a postponement of deadlines functional to giving concrete effect to the new regulatory framework, while respecting that CJEU jurisprudence which requires, in the face of a modification of existing contractual conditions, adequate deadlines for concessionaires to adapt to the new regulatory arrangement.

Furthermore, the challenged legislation would not violate the right to property, as it is functional to protecting consumers by preventing tariff increases that are not justified by adequate investments in the infrastructure. At the same time, the postponement of deadlines does not compromise the economic-financial balance of the concessions, as concessionaires will be able to obtain tariff adjustments and necessary compensation once the new PEFs are approved.

The President of the Council of Ministers finally emphasizes that the new regulation of the sector aims to ensure greater efficiency of the system, effective equal treatment among operators, and more effective protection of the recipients of the activity that is the subject of the concession.

3.− By an act filed on February 25, 2025, RAV constituted itself in the proceedings, concluding for the upholding of the questions.

3.1.− The party, in extensively reconstructing the terms of the existing concession relationship and the regulatory discipline governing it, notes in particular that "[t]he annual tariff adjustment procedure is [...] entirely autonomous and distinct both in object and function from the different five-year PEF update procedure, as also pointed out several times by the Administrative Judge." Having established this, it reports that the PEF has never been updated by the MIT, despite having expired since December 31, 2013, and that since then it has been forced to fulfill its contractual obligations even in the absence of a PEF that guarantees financial balance, moreover without even having received the annual tariff adjustments recognized since 2020, based on the challenged legislation. Even the ART resolutions, adopted on the basis of legislation subsequent to the concession agreement, confirmed that tariffs are subject to annual adjustment and that the PEF has a five-year duration, also providing that the new tariff system would apply upon the update of the PEF.

3.1.1.− RAV also reports that, once the PEF expired in 2013, the grantor adopted measures "that wholly or partially denied [the] annual adjustment essentially due to the lack of an updated PEF"; such measures were all annulled by the TAR of the Aosta Valley, which recognized the concessionaire's right to "obtain the annual tariff adjustment as provided for in the Agreement regardless of the update of the PEF."

In 2019, in the face of the request for annual adjustment for 2020, the grantor had concluded the investigation "based on the existing contractual relationship, recognizing the correctness of the request made, with a minimal correction of the inflation indices considered" and, therefore, had deemed "RAV's request for annual tariff adjustment in the amount of 6.11% to be correct." On the very day the Decree-Law No. 162 of 2019, as converted, entered into force, the MIT then adopted the first ministerial note whose legitimacy is contested in the proceedings under review.

In 2020, with the PEF update procedure having remained without outcome, RAV submitted the tariff adjustment proposal for 2021. In this case too, the MIT had deemed the request for tariff adjustment in the amount of 5.83 percent to be correct, only to subsequently adopt, upon the entry into force of the second challenged provision, the other note whose legitimacy is contested in the proceedings under review.

3.1.2.− The party's defense observes, finally, that, despite further postponements of the deadline for tariff adjustment, "the MIT has in no way concluded the PEF update procedure for RAV (and for any other motorway concessionaire with an expired regulatory period)," even though the concessionaire has always submitted update proposals in compliance with ART Resolution No. 64 of 2019. In this regard, it is emphasized that RAV submitted "15 PEF update proposals between 2020 and 2024," has carried out investments on the infrastructure for over 87 million euros over the years, not envisaged in the expired PEF, "to fulfill its contractual obligations to adapt the infrastructure to the highest safety standards for users," and, despite this, has not seen the tariff adjustments recognized for the years 2020, 2021, 2022, and 2023, not even to the extent of accrued inflation.

3.2.− All the foregoing considered, on the merits, RAV deems all the doubts of constitutional legitimacy raised by the Council of State to be founded.

3.2.1.− As for the question raised with reference to Article 77 of the Constitution, the party's defense emphasizes that, from an examination of the intrinsic and extrinsic indices of Decree-Law No. 162 of 2019, it emerges that the purpose pursued by the challenged legislation is to extend deadlines in order to ensure administrative continuity.

The achievement of this objective, however, would be hindered, and indeed "irremediably precluded," precisely by the provisions under review by this Court. In fact, administrative continuity would not require any time extension of deadlines, as the competent administration can act even after the deadlines have passed, "apart from the consequences – of a sanctioning and compensation nature – connected to liability for the delayed exercise of such power (which – evidently – the norm intended inopportunely to eliminate)." This Court's jurisprudence has affirmed that the absence of a link between the purpose of the decree-law and the challenged provision is an index of the evident lack of prerequisites for the former and, therefore, in the absence of further and different purposes justifying the normative intervention under review, the question under examination should be deemed founded.

RAV further observes that the postponement of the deadlines in question was, in fact, ordered at a time subsequent to their expiry, according to a *modus operandi* that this Court had recognized as constitutionally illegitimate already with Judgment No. 314 of 2007.

The challenged legislation would not have even influenced the adoption of the new tariff system introduced by ART – which was already provided for by the previous legislation – nor would it have coordinated the tariff adjustment procedure with that for the approval of the new PEFs.

3.2.2.− The challenged provisions would also be contrary to the constitutional parameter of proportionality. In the face of incongruity with the declared purpose of the legislator, the verification of the effects of the provisions themselves on the addressees should be "particularly penetrating, under penalty of a manifestly unjustified sacrifice."

Since the non-approval of the PEF is not capable of causing a halt to the annual procedure for tariff adjustment – as administrative jurisprudence has repeatedly affirmed – the extension of deadlines provided for by the challenged legislation would appear manifestly unjustified because, in the absence of a link between the two procedures, it "only and unjustifiably prejudices the rights and interests of the Concessionaire." The effect of postponing the tariff adjustment, on the other hand, has been accentuated by the further postponements ordered by subsequent legislation, so much so that RAV has not obtained any adjustment from the year 2020 onwards.

3.2.3.− The provisions under review by this Court, as measure-laws, would also be prejudicial to Articles 3 and 97 of the Constitution, as the limits for the adoption of norms of this nature outlined by constitutional jurisprudence are not respected. In particular, the rights and legitimate interests of the addressees are prejudiced, without a better realization of the public interest being pursued.

Little doubt could be entertained regarding the prejudice caused, as the failure to adjust motorway tolls is borne exclusively by the concessionaires and clearly determines an economic loss corresponding to the lack of financial provision, without the certainty of recovering the missed tariff increase in the future. In the concession relationship, RAV observes, "the collection of tolls, duly adjusted over the period, constitutes the only way in which the concessionaire can recover the investments made and the costs incurred."

On the other hand, as the referring judge notes, the challenged norms prevent the concessionaire from resorting to the general instruments that ensure the proper functioning of administrative activity, without any public interest justifying the normative intervention being found.

Just as the concessionaire must continue in the management of the concession, so too the grantor must fulfill its obligations, annually providing for the adjustment of tariffs. Moreover, the "unbalanced arrangement of the concession relationship" produced by the challenged norms cannot fail to affect the maintenance of the motorway infrastructure, which requires planning of the concessionaire's investments and activities, which become increasingly complex from a financial point of view due to the lack of adjustments.

3.2.4.− RAV further argues regarding the violation of Article 41 of the Constitution and Article 16 of the CFREU, which ensure the same protections for the freedom to conduct business, and in particular allow for limitations on the freedom of private economic initiative only in the face of "proven justifications of social utility, as well as a proven link between the restriction imposed and the social purpose pursued."

The challenged norms would not respect these conditions, as they would irremediably affect essential elements of the concessionaire's business activity. Tariff levels, in fact, are functional to guaranteeing the overall economic-financial balance of investments and the connected management established in the PEF, so the postponement of their adjustment prevents "the concessionaire from planning its activity, both in terms of management and finance"; and this, in the face of contractual obligations that still require the concessionaire, "also for the purposes of development and safety of the infrastructure – in addition to high operating costs (including ordinary maintenance) – very high investment costs, linked to significant financial exposure (both in equity and debt capital)." The resulting framework would not even be justified by social utility objectives, as neither the continuity of administrative action, which is in fact hindered, nor the calming of tariffs, which is an objective that should "find its place and discipline in the institutional and regulatory framework established for this purpose by the legislator," can be considered in this light.

3.2.5.− Widely referencing infringement procedure No. 2419/2006, initiated by the European Commission following the regime of motorway concessions provided for by Decree-Law No. 262 of 2006, as converted, RAV observes that the challenged provisions are also contrary to the TFEU provisions invoked by the referrer.

The CJEU jurisprudence, in fact, "has [...] consistently confirmed that national rules governing concession relationships and hindering, or making the exercise of the concession itself less attractive, fall within the scope of application of the Treaty, and specifically the cited rules of the Internal Market." Rules such as those challenged, which make the exercise of the activity under concession less profitable, can only be justified if they are necessary and proportionate to the pursuit of higher public interest aims, which must be proven by the Member State, and in any case respectful of the general principles of legal certainty and legitimate expectation. The provisions under review would not respect these conditions, as they would affect the provisions governing the economic-financial balance of the relationship without responding to any public interest worthy of protection.

3.2.6.− According to RAV, finally, the questions of constitutional legitimacy raised with reference to Articles 11 and 117, first paragraph, of the Constitution, in relation to Article 17 of the CFREU and Article 1 of the additional Protocol to the ECHR, are also founded.

Recalling the jurisprudence of the CJEU and the ECtHR on the matter, the party's defense observes that the challenged norms "directly intervene on the legitimate expectation of the concessionaire, contained in the agreement and recognized by the conferring regulatory framework, to obtain the approval of the PEF and the annual tariff adjustment for the years 2020 and 2021." The concessionaire is thus "deprived of an essential 'good' for carrying out business activity, substantially classifiable as a 'credit,' through repeated legislative interventions that shift the effective recognition of this credit over time."

4.− On June 4, 2025, RAV filed a memorandum in which, replying to the arguments of the President of the Council of Ministers, it insisted on the upholding of the questions.

4.1.− The party observes, first of all, that the facts demonstrate that the delays in updating the PEFs in conformity with ART resolutions are attributable to the grantor and not to the concessionaires. RAV, in fact, would have always submitted update proposals in a timely manner, so much so that even the TAR of the Aosta Valley recognized that "the failure to finalize the procedure for applying the new PEF is attributable exclusively to the grantor," which has not even adopted "an explicit measure explaining the reasons that prevented its timely approval." Overall, the party's defense reports that RAV has submitted twenty PEF update proposals between 2014 and 2024.

The grantor would have behaved this way towards other motorway concessionaires as well, which led the Council of State to ascertain the Ministry's non-performance. The same administrative judge would have also affirmed that, in itself, the entry into force of the new tariff system decided by ART does not constitute a sufficient reason to postpone the conclusion of the PEF update approval procedure.

4.2.− The assertion by the President of the Council of Ministers that there is a prerequisite link between PEF update and annual motorway tariff adjustment would also be erroneous. Administrative jurisprudence, in fact, would have repeatedly established RAV's right, and that of motorway concessionaires in general, to obtain the annual tariff adjustment regardless of the update of the PEF.

RAV, on the other hand, in the annual adjustment request for 2021, would have expressly formulated its request in conformity with the new tariff system defined by ART, in the event that the PEF update had been finalized.

In any case, the party observes that the challenged provisions do not introduce any prerequisite link, as they merely postpone the conclusion of the tariff adjustment procedure concurrently with that of the PEF update.

4.3.− The concessionaire also contests the assertion of the President of the Council of Ministers that the challenged provisions aim to apply the new tariff system introduced by ART, in the absence of which the tariff adjustment would not be commensurate with the cost of the infrastructure. Tracing the applicable discipline, set by the Agreement and CIPE resolutions, RAV observes that the tariff adjustment would have been recognized limited to the actual cost of the infrastructure borne by the concessionaire in the previous year. The challenged provisions, on the contrary, would have violated the pay-for-use principle underlying that discipline, as the users of the motorway concession held by RAV pay tariffs that do not include investment costs.

It follows, according to the party, that the challenged norms are neither reasonable nor proportionate, as the premise from which they start, namely that annual tariff adjustments based on the conventional discipline would have been higher than those resulting from ART resolutions, is incorrect.

4.4.− Reaffirming that the legislation subject to the questions of constitutional legitimacy has been further aggravated by subsequent legislative interventions, RAV's defense insists on the assertion that the challenged provisions are not functional to achieving the purpose declared by the Government when adopting the decree-law – ensuring administrative continuity – which would instead be irremediably precluded. Administrative continuity, in fact, implies the tendency for the power conferred on the public body to be inexhaustible, whereas the challenged provisions postpone the deadline for concluding the procedure, "justifying the non-performance of the Grantor and precluding a definition of the administrative matter submitted to its cognizance." This contradiction would demonstrate the foundedness of the doubts concerning the evident lack of prerequisites for adopting the decree-law.

Moreover, it would not even be correct to maintain that the challenged legislation allows for a better adoption of the ART tariff system, as this is based on Articles 37 and 41 of Decree-Law No. 201 of 2011, as converted, so "the Grantor could certainly have requested compliance with them, in the analysis of the PEF proposals submitted by the motorway concessionaires."

4.4.1.− RAV then notes that the absence of a prerequisite link between PEF approval and tariff adjustment is also intended to prevent the grantor from unreasonably delaying said approval, to simultaneously deny the adjustment of tariffs.

At the same time, "the assertion regarding the impact of applying the new tariff system in terms of a lower increase in tariffs is unsubstantiated and apodictic and, therefore, unsuitable to justify a normative intervention of this kind"; whereas the failure to increase tariffs has a distorting effect, as noted by the referrer.

4.5.− The party then observes how the failure to adjust motorway tolls – postponed to subsequent years as well – has caused evident economic prejudice, unrecoverable even in the future because any adjustment will apply only to future motorway users, with the result that the concessionaire cannot recover the investments made and the costs incurred. The reference to the mechanism of figurative items would also be irrelevant, in the face of the denial of tariff adjustments for a five-year period.

Hence, the foundedness of the questions raised with reference to Articles 3, 41, and 97 of the Constitution.

4.6.− Finally, as regards the alleged violation of supranational law, RAV's defense observes, first of all, that these are questions adequately motivated by the referrer, contrary to what is asserted by the President of the Council of Ministers.

On the merits, the questions would be founded, because *pejorative* modifications of long-term relationships – such as those under review – constitute, according to the party, restrictions on the freedoms of movement, as they prevent concessionaires from making their investments profitable. Furthermore, the challenged norms "unilaterally intervene on the conventional provisions governing the economic-financial balance of the relationship," without any public interest objective justifying them and causing "unreasonable and disproportionate effects on motorway concessionaires."

Nor would the objection that modifications to concessions are permitted by Article 43 of Directive 2014/23/EU of the European Parliament and of the Council of February 26, 2014, on the award of concession contracts, be valid, as this provision concerns hypotheses of modification without competition and in favor of the concessionaire.

5.− On June 4, 2025, the President of the Council of Ministers also filed a memorandum, in which he insisted on the inadmissibility or unfoundedness of the questions.

5.1.− The intervenor recalls, first of all, that ART was assigned the task of defining uniform toll tariff systems for all motorway concessions, including those already existing, with the aim of "guaranteeing effective equal treatment among operators in the sector and more effective protection of the recipients of the activity subject to concession," as also recognized by the Council of State. The revision by ART of the tariff system previously set by the agreements therefore pursues "objectives of clear general utility in terms of uniformity and rationalization of the system."

5.2.− Having established this, the intervenor notes that the administrative jurisprudence cited by RAV concerning the absence of a link between tariff adjustment and PEF update relates to adjustment requests preceding the aforementioned legislative reform, so it does not bring useful arguments for the review of the present questions.

The new tariff calculation methodology, instead, justifies "the necessary correlation between the economic-financial plan and the tariff update," as the criteria for giving relevance also to investments determine a strict link between the two procedures.

5.2.1.− The challenged legislation intervenes in this context, "dictated by the need to link the determination of tariff increases with the new PEFs and, even before that, with the new criteria for determining the tariff models established by the Authority." This is also because, the President of the Council of Ministers insists, "the majority of concessionaires had not submitted updated PEF proposals."

5.3.− The urgency to enact provisions, such as those challenged, that would allow the tariff adjustment to be aligned with the new system based on ART resolutions is therefore rooted in the profound change in the regulatory framework: this excludes that there is a case of evident lack of prerequisites for adopting the decree-law. Moreover, the legislative intervention in question was "the only viable option to ensure the correct identification of the tariff adjustment," which could not otherwise be ordered in the absence of economic-financial plans not compliant with the new regime.

To confirm this, the President of the Council of Ministers observes that, until the entry into force of the annual law for competition in 2023, the PEF had to be approved only following a preliminary agreement between the grantor and the concessionaire. The legislation under scrutiny, therefore, is a useful tool to prompt the achievement of said agreement and to identify tariff adjustments in line with the new PEF.

The same situation of delay in updating the PEFs, lamented by RAV, would be determined not by the grantor's inertia, but "by the difficulty of ensuring full alignment of the PEF proposals prepared by the concessionaire" with the ART resolutions. This is confirmed by the fact that, with the aforementioned competition law of 2023, the legislator attributed the definition of PEFs to the grantor "to avoid that the reservation of the power of initiative for the approval and revision of PEFs to the concessionaires could continue to fuel delays and stalemates in the relevant approval processes."

5.4.− The President of the Council of Ministers reiterates, then, that the postponement of the deadlines for adjustment does not eliminate the guarantee, for the concessionaire, of recovering any tariff differences through the mechanism of the so-called figurative items regulated by ART, which "have a certain character and are defined *ex ante*" and whose adequacy is assessed by ART itself, required to systematically verify the correct application of the criteria fixed by it.

Considered in Law

1.− The Council of State, Fifth Section, with the non-final judgment indicated in the heading (referral order no. 9 of 2025), raised questions of constitutional legitimacy regarding Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, and Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted, with which, for concessionaires whose Economic-Financial Plan (PEF) has expired, the deadline for adjusting motorway tolls, respectively, for the year 2020 and for the year 2021 was postponed. In both cases, this deadline was postponed until the definition of the PEF update procedure, to be completed by July 31, 2020 (first challenged provision) and then by July 31, 2021 (second challenged provision).

1.1.− The referring judge must apply both provisions because they are called upon to rule on the appeal, lodged by the motorway concessionaire RAV, against two distinct notes from the grantor MIT, which, based on the challenged norms, did not recognize the appellant the annual tariff adjustment for the Aosta-Mont Blanc Tunnel motorway for the years 2020 and 2021, by the requested percentage increase.

For the referring judge, the challenged provisions would conflict – as extensively set out in the Facts Considered – with several constitutional parameters (Article 77 of the Constitution and Articles 3, 41, and 97 of the Constitution) as well as, through Articles 11 and 117, first paragraph, of the Constitution, with European Union law (Articles 49, 56, and 63 TFEU; Articles 16 and 17 CFREU, the latter to be interpreted consistently with Article 1 of the additional Protocol to the ECHR).

2.− The circumstance that the Council of State doubts the compatibility of the two challenged provisions with regard to both constitutional parameters and multiple norms of European Union law does not invalidate the admissibility of the raised questions of constitutional legitimacy.

In such cases, the most recent jurisprudence of this Court leaves the judge the choice of which remedy to use between the constitutional referral and the non-application of national law, possibly – as suggested in the present case by the referring judge – after a preliminary reference to the Court of Justice of the European Union, as concentrated constitutional review also guarantees the primacy of Union law (thus, starting from Judgment No. 269 of 2017). It has even been recognized that the two remedies can be concurrently pursued, when the conditions for not applying national law incompatible with Union law and simultaneously raising a question of constitutional legitimacy on it are met (thus in the case of Judgment No. 15 of 2024): a "concurrence of judicial remedies [which] excludes any preclusion" (Judgment No. 20 of 2019) and which "cooperates in building increasingly integrated protections" (Judgment No. 1 of 2025) is thus fully realized.

As the referring judge itself does not fail to note, the dialogue with this Court, moreover, has the merit, in case of upholding the questions of constitutional legitimacy, of removing the challenged norms from the legal system with *erga omnes* effects, thus offering an additional guarantee to the primacy of Union law and a by no means negligible benefit to the constitutionally relevant value of legal certainty (Judgments No. 7 of 2025, No. 181 and No. 15 of 2024).

2.1.− Nor can there be doubt, in the present case, of the "constitutional tone" of the questions raised, through Articles 11 and 117, first paragraph, of the Constitution, in relation to Union law (Judgments No. 93, No. 31, and No. 7 of 2025, No. 181 of 2024; Ordinance No. 21 of 2025). The link with interests or principles of constitutional relevance, in fact, is *in re ipsa*, as norms of Union law are invoked – in various ways and under various profiles – which, like the equally invoked Article 41 of the Constitution, protect the freedom to conduct business and simultaneously outline the limits that it may or must encounter.

3.− The examination on the merits of the questions cannot disregard an essential reconstruction of the complex factual and normative framework within which the litigation object of the proceedings under review arose and into which the challenged provisions are inserted.

3.1.− CIPE Resolution No. 39 of 2007 provides that "the tariff relating to each concessionaire is adjusted annually" (point 4.1.), based on a tariff formula defined therein. The Agreement governing the concession held by RAV – signed on December 29, 2009, with ANAS spa, subsequently succeeded by the MIT, and approved by legislative act (Article 8-duodecies, paragraph 2, of Decree-Law No. 59 of April 8, 2008 (Urgent provisions for the implementation of community obligations and the execution of judgments of the Court of Justice of the European Communities), converted, with amendments, into Law No. 101 of June 6, 2008) – reiterates and specifies what was provided for by the aforementioned CIPE resolution (Articles 15 and 18).

Article 21, paragraph 5, of Decree-Law No. 355 of 2003, as converted, provides that proposals for tariff variation are submitted by the concessionaire to the grantor by October 15 of each year; the MIT, with a ministerial decree adopted in concert with the Minister of Economy and Finance, approves or rejects the proposed variations by December 15 thereafter.

CIPE Resolutions No. 39 of 2007 (at point 5) and No. 27 of 2013 provide that the duration of the concession is divided into five-year regulatory periods, governed by an Economic-Financial Plan attached to each agreement. This Plan "has the function of guaranteeing the economic and financial balance of the initiative [...] throughout the entire management period [...]. If the concession is qualified by the transfer of operational risk from the grantor to the concessionaire, the PEF is the instrument through which the concrete distribution of risk between the parties to the relationship is implemented, the adequacy and sustainability of which must be assessed by the grantor administration in light of the applicable technical and economic regulations and on the basis of any prescriptions that the administration itself has dictated with the *lex specialis* of the selection procedure for the concessionaire" (Council of State, Fifth Section, judgment of February 4, 2022, No. 795).

The PEF is subject to update at the end of each regulatory period, to be concluded – following discussions between the parties – by June 30 of the first fiscal year of the new regulatory period (CIPE Resolution No. 27 of 2013).

3.2.− The establishment of ART, by Article 37 of Decree-Law No. 201 of 2011, as converted, has affected this discipline of the concession relationship.

In fact, the legislator has attributed to the new sector regulatory Authority the competence to define the "criteria for the fixing by the competent subjects of tariffs, fees, tolls, taking into account the need to ensure the economic balance of regulated undertakings, the productive efficiency of management, and the containment of costs for users, undertakings, and consumers" (Article 37, paragraph 2, letter b); to "verify the correct application by the interested parties of the criteria set out in letter b)" (Article 37, paragraph 2, letter c); as well as, with specific reference to the motorway sector, to establish "toll tariff systems based on the price-cap method, with determination of the productivity indicator X on a five-year basis for each concession" (Article 37, paragraph 2, letter g).

These competences, by Article 16, paragraph 1, of Decree-Law No. 109 of 2018, as converted, were extended – through amendments to the aforementioned Article 37 – also to existing concessions.

Decree-Law No. 201 of 2011 itself, as amended by Decree-Law No. 109 of 2018, as converted, also provided that, in relation to updates to existing motorway agreements, where they involve variations or modifications to the investment plan (as in the case of PEF update), the grantor consults ART for the aspects within its competence under Article 37, paragraph 2, letter g) (i.e., for tariff systems); ART, if necessary, issues prescriptions to which the agreement text must be adapted; the grantor verifies the application of the criteria for determining tariffs (Article 43, paragraphs 1 and 2-bis).

3.2.1.− ART exercised its competences during 2019.

The Authority first initiated the procedure to establish the new toll tariff system (Resolution No. 16 of 2019), calling for a public consultation on the document attached to the resolution concerning said tariff system. Subsequently, as provided in Resolution No. 16 of 2019, it adopted a final resolution for each concession: as far as RAV is concerned, this is Resolution No. 64 of 2019, which expressly provides that the new tariff system shall apply with effect from January 1, 2020 (point 32.1 of Annex A to the same resolution).

3.3.− The challenged provisions affect the regulatory framework referred to above.

The first of these – Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and in the text relevant to the proceedings under review, as the first of the ministerial notes impugned therein was adopted on its basis – provides as follows:

"3. For concessionaires whose five-year regulatory period has expired, the deadline for the adjustment of motorway tolls relating to the year 2020 is postponed until the definition of the procedure for updating the economic-financial plans prepared in conformity with the resolutions adopted pursuant to Article 16, paragraph 1, of Decree-Law No. 109 of 2018, by the Transport Regulatory Authority referred to in Article 37 of Decree-Law No. 201 of December 6, 2011, converted, with amendments, by Law No. 214 of December 22, 2011. By March 30, 2020, concessionaires shall submit to the Grantor the proposals for updating the economic-financial plans, reformulated pursuant to the aforementioned legislation, which annul and replace any previous update proposal. The update of the economic-financial plans submitted by March 30, 2020, shall be finalized no later than July 31, 2020."

The effect of this provision for concessionaires whose five-year regulatory period has expired – such as RAV, whose PEF expired at the end of 2013 and, as emerges from the documents and the hearing discussion, has never been renewed – is, as the referring Council of State also observes, threefold: i) it postpones the deadline for tariff adjustment for 2020 "until the definition of the procedure for updating the economic-financial plans"; ii) it sets March 30, 2020, as the deadline for submitting PEF update proposals, which must be reformulated in conformity with ART resolutions and which annul previous update proposals; iii) it sets July 31, 2020, as the deadline for updating the PEFs: a deadline which, therefore, also becomes the deadline for tariff adjustment for 2020.

The second challenged provision – Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted, relevant in the proceedings under review as the second of the ministerial notes impugned therein was adopted on its basis – affects the text of the first challenged provision with two substitutions, where it provides that "the words 'relating to the year 2020' are replaced by the following: 'relating to the year 2020 and the year 2021' and the words 'no later than July 31, 2020' are replaced by the following: 'no later than July 31, 2021'."

Based on this provision, therefore: i) the deadline for tariff adjustment for 2020 is further postponed; ii) the deadline for tariff adjustment for 2021 is postponed; iii) the deadline for updating the PEFs is further postponed to July 31, 2021, which also serves as the deadline for tariff adjustment for the aforementioned two years.

3.4.− As the referring judge also extensively reports, the legislator, after Decree-Law No. 183 of 2020, as converted, further amended the text of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, by shifting the deadlines for updating PEFs and adjusting tariffs forward from time to time, even for additional years.

3.4.1.− With Article 2, paragraph 1, of Decree-Law No. 121 of September 10, 2021 (Urgent provisions concerning investments and safety of infrastructure, transport, and road circulation, for the functionality of the Ministry of Infrastructure and Sustainable Mobility, the Superior Council of Public Works, and the National Agency for the Safety of Railways and Road and Motorway Infrastructure), converted, with amendments, into Law No. 156 of November 9, 2021, the deadline for updating PEFs was postponed to December 31, 2021; concurrently, the deadlines for tariff adjustment for the years 2020 and 2021, as well as "those relating to all years included in the new regulatory period," were further postponed.

3.4.2.− With Article 24, paragraph 10-bis, of Decree-Law No. 4 of January 27, 2022 (Urgent measures concerning support for undertakings and economic operators, labor, health, and territorial services, connected to the COVID-19 emergency, as well as for containing the effects of price increases in the electricity sector), converted, with amendments, into Law No. 25 of March 28, 2022, the deadline for updating PEFs was postponed to October 31, 2022; consequently, due to the amendment made by the previously cited Decree-Law No. 121 of 2021, as converted, the deadline for tariff adjustment for the years 2020, 2021, and 2022 was postponed to the same October 31, 2022.

3.4.3.− Again, with Article 10, paragraph 4, of Decree-Law No. 198 of December 29, 2022 (Urgent provisions concerning legislative deadlines), converted, with amendments, into Law No. 14 of February 24, 2023, the deadline for updating PEFs was postponed to December 31, 2023, and consequently, the deadline for tariff adjustment for the years 2020, 2021, 2022, and 2023 was postponed.

3.4.4.− With Article 8, paragraph 9, of Decree-Law No. 215 of 2023, as converted, finally, the legislator entirely replaced Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, in these terms:

"3. By March 30, 2024, the concessionaire companies for which the five-year regulatory period has expired shall submit the proposals for updating the economic-financial plans prepared in conformity with the resolutions adopted pursuant to Article 16, paragraph 1, of Decree-Law No. 109 of September 28, 2018, converted, with amendments, by Law No. 130 of November 16, 2018, by the Transport Regulatory Authority referred to in Article 37 of Decree-Law No. 201 of December 6, 2011, converted, with amendments, by Law No. 214 of December 22, 2011, as well as by the provisions issued by the grantor. The update of the economic-financial plans, submitted by March 30, 2024, in conformity with the established procedures, shall be finalized by December 31, 2024. In the interim of the conventional updates, the motorway tolls relating to the concessions referred to in the first period shall be increased by 2.3 percent, corresponding to the inflation index expected for 2024 by the Update Note of the Economic and Financial Document 2023. Adjustments, in excess or in deficit, with respect to the aforementioned tariff increases shall be defined during the update of the economic-financial plans."

With the amendment, with content partly different from that expressed by the replaced text, the legislator, therefore, postponed the deadline for the adoption of PEFs to December 31, 2024, providing that they must be submitted, in conformity with ART resolutions, by March 30, 2024; established that the PEFs whose update was submitted "in conformity with the established procedures" must be adopted by December 31, 2024; finally, it determined a provisional increase in motorway tolls, postponing to the moment of PEF update the tariff variations that may lead to an excess or deficit amount compared to the flat rate indicated *ex lege*.

3.5.− The relevant regulatory framework was further affected by two different legislative interventions, which did not affect the text of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and amended, but of which account must also be taken.

3.5.1.− With Article 1, paragraph 1, of Decree-Law No. 89 of June 29, 2024 (Urgent provisions for strategic infrastructure and investments, for criminal proceedings, and on sports), converted, with amendments, into Law No. 120 of August 8, 2024, the following paragraph 3-bis was added to the aforementioned Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and amended: "By July 31, 2024, the concessionaire companies for which the five-year regulatory period expires in 2024 shall submit the proposals for updating the economic-financial plans prepared in conformity with the resolutions adopted pursuant to Article 16, paragraph 1, of Decree-Law No. 109 of September 28, 2018, converted, with amendments, by Law No. 130 of November 16, 2018, by the Transport Regulatory Authority referred to in Article 37 of Decree-Law No. 201 of December 6, 2011, converted, with amendments, by Law No. 214 of December 22, 2011, as well as by the provisions issued by the grantor. The update of the economic-financial plans, submitted by July 31, 2024, in conformity with the established procedures, shall be finalized by December 31, 2024."

With this provision, the legislator substantially applied, also to concessionaires whose five-year regulatory period would expire during 2024, the discipline of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and amended, expressly referring, as mentioned, only to concessionaires whose regulatory period has already expired.

3.5.2.− Lastly, with Law No. 193 of 2024, the legislator significantly intervened on the motorway concession sector.

As far as is most relevant here, it provided that the PEF is prepared by the grantor and that the grantor also proposes its modifications during the concession term; in both cases, ART's competence to issue an opinion is reiterated (Article 9, paragraphs 2 and 5). Regarding motorway tolls, ART's competence to dictate the applicable tariff system is reiterated (Article 12). At the same time, Articles 37, paragraph 2, letter g), and 43, paragraph 1, of Decree-Law No. 201 of 2011, as converted, were further amended, following the previous interventions that had already attributed to ART competence in tariff and PEF matters for existing concessions (Article 16, paragraphs 3 and 4, respectively).

Concurrently, it was provided that, for the PEF update procedures of the concessionaire companies for which the five-year regulatory period had expired as of the entry into force of Decree-Law No. 215 of 2023, the provisions of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and amended, apply (Article 14, paragraph 1); for concessionaire companies for which the five-year regulatory period expires after the entry into force of the law, the discipline contained in Article 14, paragraph 2, applies.

4.− All the aforementioned legislative interventions subsequent to the challenged provisions do not affect the relevance of the questions of constitutional legitimacy raised by the Council of State.

4.1.− The provisions that, subsequent to Decree-Law No. 183 of 2020, as converted, amended or replaced Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, were, in fact, all adopted after the ministerial notes challenged by RAV and therefore – as correctly noted by the referring judge itself, who moreover observes that they, by further postponing the deadlines, had an effect "in a detrimental manner on the postponement" already imposed – are incapable of influencing the administrative judgment.

4.2.− The other legislative interventions, subsequent to the challenged provisions, which modified the reference regulatory framework, are equally irrelevant to the proceedings under review.

This applies, first of all, to the new paragraph 3-bis added to Article 13 of Decree-Law No. 162 of 2019, as converted and amended, which regulates the procedure for adopting PEFs relating to concessions whose five-year regulatory period would expire during 2024, whereas the challenged provisions apply to concessionaires whose PEFs have already expired.

The new discipline established by Law No. 193 of 2024 is also incapable of affecting the relevance of the present questions, due to the express transitional provision in Article 14, paragraph 1, which, as mentioned above, renders applicable the discipline of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as replaced by Decree-Law No. 215 of 2023, as converted, to the PEF update procedures of concessionaire companies for which, as of the entry into force of the latter decree-law, the five-year regulatory period had expired.

5.− Among the various questions of constitutional legitimacy, those raised, due to the alleged evident lack of prerequisites for adopting the decree-law, with reference to Article 77 of the Constitution, take logical-legal priority, as they concern the correct exercise of primary legislative power (among many, Judgments No. 146 of 2024 and No. 8 of 2022).

According to the Council of State, the challenged provisions are homogeneous with the decree-laws in which they are inserted, both aimed – as is clear from the preamble and preparatory works – at extending or postponing deadlines in order to ensure administrative continuity.

However, according to the referring judge, the postponement of deadlines brought about by the aforementioned provisions was not necessary to achieve the objective declared by the legislator – ensuring administrative continuity – as the administration always has the power to act beyond the organizational deadline; nor was it urgent, both because the procedural deadlines had already expired, and because, even before the challenged provisions, it was necessary to take into account the ART resolutions both for the update of the PEFs and for tariff adjustments.

5.1.− In relation to the questions raised concerning the correct use of the decree-law, this Court has long and consistently affirmed that, due to the elasticity of the clause in Article 77, second paragraph, of the Constitution, "[...] the extraordinary cases of necessity and urgency that legitimize the recourse to this instrument cannot be predetermined" (Judgment No. 146 of 2024), so that its review, which must not overlap with that of the Government and Parliament, is limited to cases of "evident lack" of prerequisites (thus starting from Judgment No. 29 of 1995), to be found in light of intrinsic and extrinsic indices of the challenged provisions (ex multis, Judgments No. 146 of 2024, No. 33 of 2019, No. 5 of 2018, No. 93 of 2011, and No. 128 and No. 171 of 2007) and regardless of any assessment of the reasonableness of the introduced discipline (Judgment No. 171 of 2007).

5.2.− In the aforementioned perspective, the present questions are unfounded.

5.2.1.− Both challenged provisions – as the referring Council of State also recognizes – are materially homogeneous with the decree-laws in which they are inserted. In fact, they affect deadlines, as do the other provisions of both decree-laws, as is evident from their titles, preambles, and the identical heading of Article 13 of Decree-Law No. 162 of 2019 and Article 13 of Decree-Law No. 183 of 2020.

5.2.2.− Nor can a heterogeneity of the challenged provisions with respect to the purpose – ensuring administrative continuity – expressed identically in the preambles of both decree-laws be found, in the terms of evidence of the flaw required by the jurisprudence of this Court.

The adoption of ART resolutions on the toll tariff system during 2019, coupled with, in relation to the second challenged provision, the COVID-19 epidemiological emergency, which developed starting in February 2020 and had a significant impact on the conduct of ongoing administrative proceedings, cannot be considered in itself arbitrary the Government's assessment of the existence of the extraordinary case of necessity and urgency to postpone the deadlines for concluding the procedures relating to the update of PEFs and tariff adjustment, in a material area concerning infrastructures of primary relevance and interest for the Country.

6.− The Council of State, moreover, considers the challenged provisions contrary to Articles 3, 41, and 97 of the Constitution.

6.1.− Starting from the observation that the administration, when faced with organizational deadlines, always has the power to act even if they have passed, the referring judge observes that the norms under scrutiny unreasonably prejudice the continuity of administrative action, with violation of Articles 3 and 97 of the Constitution.

In fact, they produce consequences that would not have occurred had the "general rules governing administrative procedures" been applicable. This is because they, on the one hand, impose a delay in deciding on the request for tariff adjustment and the update of the PEF and, on the other hand, "do not allow or in any case postpone and make more difficult the application of institutions that compel the conclusion of procedures whose (organizational) deadlines have expired"; without all this being functional to calming tariffs, not only because the rationalization of the latter had already been carried out by ART resolutions, but also because the postponement of their adjustment – which will have to take into account what has not already been paid as compensation – alters "the correspondence between the use of the good and the payment of the relevant toll and moves the correspondence over time, potentially impacting future users, who use a good that no longer corresponds to that considered in the paid toll."

The failure to adjust tariffs and the failure to update the PEF would also be "an indication of a non-scrupulous management of the concession relationship," which has repercussions on the performance required of the concessionaire regarding investments and, ultimately, on the adequacy and safety of the infrastructure and on the interests of users of the motorway section.

6.2.− The challenged provisions would also produce negative consequences "on the freedom to conduct business and social utility," violating Article 41 of the Constitution.

The postponement of deadlines which they entail, in fact, "prejudices the planning and resource acquisition capacities necessary for carrying out business activity." The Council of State observes, in this regard, that the uncertainty created by the challenged legislation – moreover reiterated over time – prevents the organization of business activity, which cannot immediately count on the financial provision, nor know when it will obtain it.

6.3.− The questions are founded.

6.3.1.− Concessions such as those in the motorway sector have a contractual nature and find their source of discipline in the relevant agreement, which governs the relationships between the grantor and the concessionaire.

It is a legal phenomenon attributable to so-called government by contract, within which administrative function is exercised not through a measure, but through the adoption of a consensual module, sometimes deemed by the legislator more suitable for governing complex manifestations of reality both from an economic and social perspective and from the perspective of the dynamics between public interest and private interests. Not by chance, these are contractual relationships of great importance for the interests of the Country, due to the impact they have, as in this case, on the realization of complex essential infrastructures, on transport, and on national competitiveness itself.

From this framing of the phenomenon, some considerations follow, relating both to the exercise of administrative function and to the arrangement of relationships as outlined by the consensual module adopted, attributable to the case once significantly termed concession-contract.

6.3.2.− On the side of administrative action, whose coordinates must be found in Article 97 of the Charter, it should be noted that the principle of continuity thereof requires avoiding any delay that is not strictly functional to safeguarding the public interest to which the concrete procedure is aimed and which could thus unjustifiably prejudice the interests of private parties. Faced with a complex but analytically disciplined procedure, aimed at guaranteeing the balance between the parties inherent in the adoption of the consensual (rightly: contractual) module, a provision that directly regulates that procedure, unilaterally affecting an element of the factual circumstance, in a way unfavorable to only one of the parties, appears completely dissonant. And it appears significant to emphasize that, in this way, the legislator unfavorably affects the private party and to the advantage of the public administration, acting by law that alteration of the equality between the administration and the private party that the adoption of the consensual module by administrative means intended to avoid.

Nor does such alteration of the equality between the parties and consequently of the contractual balance appear supported, in the present case, by an adequate reason of public interest.

The need, expressed by the intervenor's defense, to ensure the application of the new tariff system in the face of requests allegedly conflicting with it by the concessionaire, could already have been satisfied by the application of the resolutions of both CIPE and ART intervening in the meantime and would have justified, if anything, a denial of approval of non-compliant PEFs and the consequent tariff increases precisely on the basis of such discrepancy, whereas – as seen – the notes challenged in the proceedings under review are motivated exclusively on the basis of the postponement of deadlines pursuant to the challenged provisions.

Conversely, as noted by both the referring judge and RAV, by imposing not to act within the originally envisaged deadlines on the request for tariff adjustment and on the PEF update, continuity in the exercise of administrative action and in the ordinary conduct of the contractual relationship has been suspended, the effect of making the institutions aimed at compelling the conclusion of procedures whose organizational deadline has expired substantially inoperative has been added, as a guarantee of the proper functioning of that administrative action; with the consequence of producing, to the detriment of that proper functioning, the disempowerment of public employees and, above all, the legislative coverage of actions by the public administration abstractly capable of generating its liability on a civil level.

The illegitimate effects determined by the challenged provisions, moreover, have been accentuated by the further postponements of deadlines dictated by subsequent legislation, which reiterate and consolidate the alteration of parity between the public and private parties, without there being a public interest to support this change in balance.

Finally, it should not be overlooked, also on the level of reasonableness, the paradoxical effect of the challenged postponement of procedural deadlines, which does nothing other than alter the correspondence between the use of the good and the payment of the relevant toll, in disregard of the principle, established to protect users, of pay-for-use, by keeping users, at a given time, of the infrastructure immune from tariff increases, and potentially impacting, with connected increases, future users.

6.3.3.− The alteration of the balance between the parties is also particularly accentuated on the side of the contractual relationship resulting from the concession, with consequent violation of Article 41 of the Constitution. It must indeed be considered that, in relationships of this kind, precisely due to the importance they hold and the interests they intend to satisfy, the contractual balance agreed between the parties assumes maximum relevance, as it is functional to aligning the exercise of the concession with the interests of the Country and in full guarantee of the users.

Within this framework, the legislator does not lose the possibility to intervene on the concession relationship, by setting forth normative discipline partly different from that in force at the time the agreement was concluded. What this Court constantly affirms is valid in this regard, namely that "with reference to long-term relationships, and to the disadvantageous modifications that affect them according to the mechanism of so-called improper retroactivity, [...] the legislator has broad discretion and can even modify the discipline of those relationships unfavorably, even if the object is constituted by perfect subjective rights, provided that the retroactivity finds adequate justification on the level of reasonableness and does not degenerate into an irrationally harmful regulation of the legitimate expectations of citizens (ex plurimis, Judgments No. 241 of 2019, No. 16 of 2017, No. 203 of 2016, and No. 236 of 2009)" (Judgment No. 234 of 2020).

This has been particularly true in the motorway sector, where "the existing concessions – granted in the vast majority for decades and without resorting to competitive procedures – are the result of choices made with a view not attentive to the efficiency of the sector and management," with a consequent framework "not sufficiently transparent under the profile of the criteria, the applied tariff models, and the amortization systems of investments" (Court of Auditors, Central Section for Control on the Management of State Administrations, resolution No. 18/2019/G).

It is in the wake of such evaluations and considerations, moreover, that, as seen, the legislator has deemed it necessary to establish a Transport Regulatory Authority, entrusting it with specific competences, to be exercised – it should be noted – also with reference to existing concessions, regarding the determination of criteria for fixing motorway tolls, as well as verifying the compliance of interested parties with these criteria. In the presence of multi-year concession relationships concerning the management of common assets of strategic importance, in fact, it remains a priority "to ensure compliance with standards of efficiency and economy, to protect the users' interest in maintaining adequate service quality levels" (Council of State, Sixth Section, judgment of May 4, 2022, No. 3484).

The challenged provisions, instead, introduce a discipline that – while not modifying the regulation of the concession relationship *per se*, as it apparently limits itself to postponing the deadlines for the conclusion of tariff adjustment and PEF update procedures – ends up irrationally altering the contractual balance between the parties, unbalancing it in favor of one of them, the grantor administration, with negative repercussions on the interests of both the concessionaires and the users.

Their substantial effect, in fact, is to "block" – and restart from scratch – the PEF update procedure, shifting forward the deadline for its conclusion, further postponed by subsequent legislative interventions. In doing so, the legislator legitimizes the silence-of-non-action of the grantor – which, as emerged also during the public hearing discussion, has never expressly rejected a PEF proposal to date – and simultaneously prevents the concessionaire from taking action against such silence.

By thus interfering with the paritary concession relationship, in which contractual elements prevail over authoritative ones, not only is the principle of proper functioning of public administration violated – which, according to a modern conception of public power, requires that the exercise thereof be based on canons of correctness and due process as well as the principle of administrative function obligation – but consequences of no small moment can arise for the motorway infrastructure, its efficiency, and its safety, which require planning for maintenance and investments.

From this perspective, in fact, the update of the PEF and the annual tariff adjustment – which, in the context of the renewed regulatory framework centered on ART's competences in the matter, are strictly correlated – are functional to allowing the concessionaire to plan the expenditure capacity and the investments to be made on the motorway network, so as to efficiently fulfill the contractual obligations arising from the agreement. The postponement of the deadlines for the conclusion of the procedures under review alters the contractual balance and prevents the concessionaire from having the necessary financial provision, thus undermining its freedom of private economic initiative.

6.3.4.− The imbalance of the concession relationship thus established is not even functional to preventing, as stated in the submissions by the President of the Council of Ministers, an alleged unjustified increase in tariffs, based on the assumption that they could be calculated based on old criteria.

Both the establishment of ART and the subsequent extension of its competences to existing concessions, which led to the 2019 resolutions, which dictated uniform criteria for calculating tariffs, preclude such an eventuality. It is now up to an effective and dutiful dialogue between the parties, inspired by the principle of good faith, to apply the resolutions of the Transport Regulatory Authority, updating the PEFs and adjusting the tariffs according to the criteria dictated by those resolutions.

The challenged provisions – and those that followed them – have, instead, systematically postponed and differently sequenced the procedural sequence, of a contractual nature, regarding the update of PEFs and the adjustment of tariffs, transforming it in fact into a sequence of non-measures.

The outcome is twofold. Firstly, there is an unreasonable block of administrative activity, which has the paradoxical consequence of preventing the implementation of that legislative design centered on homogeneous tariffs, established based on the criteria of the sector authority. Secondly, an imbalance is created between the parties to the concession relationship: the concessionaire is held to fulfill all obligations inherent in the concession, and specified in the agreement, without being able to count on the financial provision that the regulatory system guarantees it within set timeframes; the grantor administration is exempted, for a limited but undefined time and certainly of significant duration, from fulfilling the obligations undertaken towards the concessionaire, as a guarantee of the enterprise's economic needs, and, correlatively, of the infrastructure's safety to protect users.

6.3.5.− The constitutional illegitimacy of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and in the text in force before the amendments under Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as well as of Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted, must therefore be declared.

The further questions of constitutional legitimacy raised remain absorbed.

6.3.6.− The declaration of unconstitutionality must be extended as a consequence, pursuant to Article 27 of Law No. 87 of March 11, 1953 (Provisions on the constitution and functioning of the Constitutional Court), to the provisions that, by affecting the original text of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted, have further postponed the deadlines provided therein, thus aggravating the constitutional flaws ascertained in these proceedings. The legislative acts in question, in their sequence, are even more symptomatic of the misuse of legislative power noted above.

Article 2, paragraph 1, of Decree-Law No. 121 of 2021, as converted, Article 24, paragraph 10-bis, of Decree-Law No. 4 of 2022, as converted, and Article 10, paragraph 4, of Decree-Law No. 198 of 2022, as converted, must therefore also be declared unconstitutional.

for these reasons

THE CONSTITUTIONAL COURT

1) declares the unconstitutionality of Article 13, paragraph 3, of Decree-Law No. 162 of December 30, 2019 (Urgent provisions concerning legislative deadlines, organization of public administrations, and technological innovation), converted, with amendments, into Law No. 8 of February 28, 2020, and in the text in force before the amendments under Article 13, paragraph 5, of Decree-Law No. 183 of December 31, 2020, entitled "Urgent provisions concerning legislative deadlines, digital connections, implementation of Council Decision (EU, EURATOM) 2020/2053 of December 14, 2020, and withdrawal of the United Kingdom from the European Union," converted, with amendments, into Law No. 21 of February 26, 2021;

2) declares the unconstitutionality of Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted;

3) declares, as a consequence, pursuant to Article 27 of Law No. 87 of March 11, 1953 (Provisions on the constitution and functioning of the Constitutional Court), the unconstitutionality of Article 2, paragraph 1, of Decree-Law No. 121 of September 10, 2021 (Urgent provisions concerning investments and safety of infrastructure, transport, and road circulation, for the functionality of the Ministry of Infrastructure and Sustainable Mobility, the Superior Council of Public Works, and the National Agency for the Safety of Railways and Road and Motorway Infrastructure), converted, with amendments, into Law No. 156 of November 9, 2021;

4) declares, as a consequence, pursuant to Article 27 of Law No. 87 of 1953, the unconstitutionality of Article 24, paragraph 10-bis, of Decree-Law No. 4 of January 27, 2022 (Urgent measures concerning support for undertakings and economic operators, labor, health, and territorial services, connected to the COVID-19 emergency, as well as for containing the effects of price increases in the electricity sector), converted, with amendments, into Law No. 25 of March 28, 2022;

5) declares, as a consequence, pursuant to Article 27 of Law No. 87 of 1953, the unconstitutionality of Article 10, paragraph 4, of Decree-Law No. 198 of December 29, 2022 (Urgent provisions concerning legislative deadlines), converted, with amendments, into Law No. 14 of February 24, 2023;

6) declares unfounded the question of constitutional legitimacy of Article 13, paragraph 3, of Decree-Law No. 162 of 2019, as converted and in the text in force before the amendments under Article 13, paragraph 5, of Decree-Law No. 183 of 2020, as converted, raised, with reference to Article 77 of the Constitution, by the Council of State, Fifth Section, with the non-final judgment indicated in the heading;

7) declares unfounded the question of constitutional legitimacy of Article 13, paragraph 5, of Decree-Law No. 183 of 2020, converted, with amendments, into Law No. 21 of 2021, raised, with reference to Article 77 of the Constitution, by the Council of State, Fifth Section, with the non-final judgment indicated in the heading.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 7, 2025.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Roberto MILANA, Chancellor Director

Filed at the Chancellery on October 14, 2025