JUDGMENT NO. 189

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

Composed of:

President: Giovanni AMOROSO;

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

JUDGMENT

in the constitutional legitimacy proceedings concerning Article 46, paragraphs 2 and 4-bis, of the Law of the Campania Region of 26 July 2002, no. 15 (Regional Finance Law for the year 2002), as amended, firstly, by Article 1, paragraph 2, of the Law of the Campania Region of 19 February 2004, no. 3 (Amendment to the Regional Law 26 July 2002, no. 15, Article 46), and, finally, by Article 1, paragraph 77, of the Law of the Campania Region of 21 January 2010, no. 2 (Provisions for the formation of the annual and multi-year budget of the Campania Region – Finance Law for the year 2010), promoted by the Court of Auditors, Regional Control Section for Campania, in the balancing judgment proceedings of the general statement of accounts of the Campania Region for the financial year 2023, by order of 3 March 2025, registered under no. 52 of the register of orders 2025 and published in the Official Gazette of the Republic no. 14, special series I, of the year 2025.

Having seen the deed of constitution of the Campania Region, as well as the deed of intervention of the Attorney General of the Court of Auditors;

having heard Judge Rapporteur Giovanni Pitruzzella at the public hearing of 21 October 2025;

having heard the lawyer Almerina Bove for the Campania Region;

deliberated in the council chamber of 21 October 2025.

Facts of the Case

1.– By order of 3 March 2025, registered under no. 52 of the register of orders 2025, the Court of Auditors, Regional Control Section for Campania, raised questions of constitutional legitimacy, with reference to Articles 81, 97, first paragraph, 117, second paragraph, letter l), and 119, first paragraph, of the Constitution, concerning Article 46, paragraphs 2 and 4-bis, of the Law of the Campania Region of 26 July 2002, no. 15 (Regional Finance Law for the year 2002), as amended firstly by Article 1, paragraph 2, of the Law of the Campania Region of 19 February 2004, no. 3 (Amendment to the Regional Law 26 July 2002, no. 15, Article 46) and, finally, by Article 1, paragraph 77, of the Law of the Campania Region of 21 January 2010, no. 2 (Provisions for the formation of the annual and multi-year budget of the Campania Region – Finance Law for the year 2010).

The regulation under review is challenged in the part where it permits the detachment or secondment of permanent employees of companies and consortia in which public participation is not less than 49 per cent (paragraph 2) and equates secondment to detachment (paragraph 4-bis).

1.1.– The referring judge suspended the decision on the balancing of the general statement of accounts for the financial year 2023 with reference to budget items U0058 and U00008, limited to expenditure for the payment of salaries to personnel detached or seconded, respectively, to the Regional Council (for an amount equal to Euro 739,996.2) and to the Regional Parliament (for an amount equal to Euro 1,217,604.67).

Regarding relevance, the referring judge highlights that the secondments and detachments were initiated or extended to meet the needs of the offices of direct collaboration with the Regional Council or the Regional Parliament and are based on the challenged provision, which has an unequivocal literal meaning, in his opinion incompatible with a constitutionally oriented interpretation.

Nor could the provisions of Article 19, paragraph 9-bis, of Legislative Decree No. 175 of 19 August 2016 (Consolidated Text on Public Participation Companies), added by Article 1, paragraph 898, of Law No. 197 of 29 December 2022 (State Budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025) be invoked. These innovations would be inapplicable to secondments initiated at an earlier time, such as those ordered by the Regional Council with Decrees No. 119 and No. 125 of 29 and 30 December 2022, and their extensions. Furthermore, the provisions of the regulation on public participation companies were not even referenced for the secondments and detachments ordered subsequently.

If the balancing were to proceed, applying the current regional regulation, a closing balance resulting "from the undue use of resources intended for the payment of emoluments to personnel detached/seconded respectively to the Regional Council and the Regional Parliament" would be validated.

1.2.– With regard to the non-manifest groundlessness, the referring section observes that the extension of the possibilities for secondment and detachment to personnel of companies with at least 49 per cent public participation and the assimilation of secondment and detachment violate the exclusive legislative competence of the State in the matter of "civil law" (Article 117, second paragraph, letter l, Constitution), as they would conflict with the discretionary choices made by the State legislator, who, in these cases, would not allow secondments and detachments.

The challenged provision would further result in the "infringement of budget balance" and "sound financial management," contrary to Articles 81, 97, first paragraph, and 119, first paragraph, of the Constitution.

2.– By an act filed on 10 April 2025, the Campania Region constituted itself in the proceedings, requesting that the questions raised by the Court of Auditors be declared inadmissible or, in any case, unfounded.

3.– The Attorney General of the Court of Auditors sought to intervene in the proceedings before this Court, arguing the existence of a concrete and current interest and, therefore, the admissibility of his intervention, and asserting, as to the merits, the constitutional illegitimacy of the challenged provisions, based on the arguments already stated by the referring judge.

4.– Shortly before the public hearing, the Campania Region filed a supplementary brief, confirming the conclusions set out in the deed of constitution.

4.1.– As a preliminary matter, the questions of constitutional legitimacy would be irrelevant, since, since 2023, State legislation has permitted public administrations to second personnel from publicly held and controlled companies. The secondments, although ordered by the Region in implementation of the challenged regulation, would be fully compliant with the provisions of Article 19, paragraph 9-bis, of Legislative Decree No. 175 of 2016.

4.2.– The questions would, in any case, be unfounded.

The reference to the principles affirmed by this Court with Judgment No. 227 of 2020, which concerns a regional law intended to burden the costs of secondment onto the companies themselves, would not be pertinent, first of all. Conversely, the regional law challenged today places the primary and ancillary burdens of the seconded or detached personnel on the Region. This difference would be decisive in a proceeding focused on the alteration of public budgets.

Nor does Article 46, paragraph 2, of Regional Law no. 15 of 2002 intervene on the contractual regime of seconded personnel. From this point of view, therefore, the alleged violation of the State's exclusive legislative competence in the matter of "civil law" cannot be found.

Finally, the questions concerning the assimilation of seconded and detached personnel would not be founded. The challenged provisions would merely repeal the internal organizational regulation that bound the recourse to one or the other institution, in the context of heterogeneous and fragmented State legislation.

5.– At the public hearing, the Campania Region insisted on the acceptance of the conclusions set forth in its defensive briefs.

Considered in Law

1.– With the order indicated in the heading (reg. ord. no. 52 of 2025), the Court of Auditors, Regional Control Section for Campania, doubts the constitutional legitimacy of Article 46, paragraphs 2 and 4-bis, of Regional Law no. 15 of 2002 of Campania, as subsequently amended by Regional Laws no. 3 of 2004 and no. 2 of 2010 of Campania, with reference to Articles 81, 97, first paragraph, 117, second paragraph, letter l), and 119, first paragraph, of the Constitution.

1.1.– The referring judge’s challenges are directed, firstly, at Article 46, paragraph 2, first period, of Regional Law no. 15 of 2002 of Campania, which was initially repealed by Article 30, paragraph 8, of the Law of the Campania Region of 29 December 2005, no. 24 (Provisions for the formation of the annual and multi-year budget of the Campania Region – Finance Law 2006) and subsequently reinstated by Article 31, paragraph 39, of the Law of the Campania Region of 19 January 2007, no. 1 (Provisions for the formation of the annual and multi-year budget of the Campania Region – Regional Finance Law 2007).

This provision, as amended by Article 1, paragraph 77, of Regional Law no. 2 of 2010 of Campania, allows the Regional Council, the Regional Council, and the instrumental bodies of the Campania Region to request the detachment of permanent employees of companies and consortia in which public participation is not less than 49 per cent.

The referring judge also denounces Article 46, paragraph 4-bis, of Regional Law no. 15 of 2002 of Campania, inserted by Article 1, paragraph 2, of the Law of the Campania Region of 19 February 2004, no. 3.

This provision completely abolishes "in the assignment of personnel coming from bodies external to the Regional Council, the distinction between detachment and secondment referred to in the Regional Law of 25 August 1989, no. 15, Article 9 – last paragraph – and Article 14 – last two paragraphs".

1.2.– The challenged provisions fall within the regulation of secondment and detachment within public administrations.

While secondment provides for the temporary assignment of a public employee to serve in another administration or different public body, for the exclusive needs of that administration or body, detachment presupposes that the public employee is temporarily employed for the same public administration to which they belong and for the exclusive needs of that administration, in an office different from the one in which they are formally assigned (Court of Cassation, Fourth Civil Section, judgment of 1 April 2025, no. 8672).

In particular, secondment involves a dissociation between the ownership of the official position, which remains with the administration of origin, and the exercise of management powers: the employment relationship is modified, as the employee is integrated under the organizational-functional profile and under the hierarchical and disciplinary profile within the destination administration.

In detachment, conversely, the public employee is not assigned to an administration different from the one of origin, but to a different office of the same employer, for the latter's own needs (Court of Cassation, Fourth Civil Section, order of 15 January 2024, no. 1471).

2.– The regional regulation, by extending the faculty of secondment and detachment and by equating secondment and detachment, would be contrary to the "discretionary choices made by the State legislator in the exercise of exclusive competence in matters of civil law" (citing Judgment No. 227 of 2020), which would not contemplate any faculty of secondment for personnel of publicly held companies. Hence the conflict with Article 117, second paragraph, letter l), of the Constitution.

The authorization of "expenditure not sustainable considering the employment of seconded personnel from public companies, inadmissible as a matter reserved for the exclusive competence of the State legislator" would further determine the "infringement of budget balance" and prejudice "sound financial management," contrary to Articles 81, 97, first paragraph, and 119, first paragraph, of the Constitution.

3.– In the first place, it must be reaffirmed that the Court of Auditors, Regional Control Section, is entitled to raise questions of constitutional legitimacy of the laws that it must apply in the balancing judgment of the regions' accounts, with regard to aspects that have a direct or indirect impact on budget balances (most recently, Judgment No. 165 of 2025, point 3 of the Considered in Law; in the same vein, Judgment No. 39 of 2024, point 2 of the Considered in Law) "and therefore, with respect to provisions detrimental to both the principles that directly protect budget balance and sound financial management (Arts. 81 and 97, first paragraph, Const.), and those that oversee the division of powers between the State and the regions, when a 'functional correlation' is established" (Judgment No. 253 of 2022) between the violation of the parameter concerning competence and the violation of the financial parameters themselves" (Judgment No. 185 of 2024, point 2 of the Considered in Law).

4.– Preliminarily, the intervention of the Attorney General of the Court of Auditors, filed in this proceeding, must also be declared inadmissible.

4.1.– According to the consistent jurisprudence of this Court, only the parties to the original proceedings (Articles 3 and 4 of the Supplementary Rules for proceedings before the Constitutional Court) are admitted to intervene in the incidental proceedings of constitutional legitimacy (Articles 3 and 4 of the Supplementary Rules for proceedings before the Constitutional Court), in addition to the President of the Council of Ministers and, in the case of regional law, the President of the Regional Council (among many, judgments No. 39 of 2024, with the attached order read at the public hearing of 24 January 2024, No. 206 of 2019, with the attached order read at the public hearing of 4 June 2019, and No. 173 of 2019, with the attached order read at the public hearing of 18 June 2019).

In incidental proceedings of constitutional legitimacy, the intervention of subjects extraneous to the main proceeding (Article 4, paragraph 3, of the Supplementary Rules) is admissible only for third parties holding a qualified interest, directly and immediately pertaining to the substantive relationship brought before the Court, as is clear from the aforementioned rulings.

4.2.– The Attorney General of the Court of Auditors, in this specific case, is not a party to the original proceeding and cannot be considered to hold a qualified interest capable of legitimizing his intervention in the incidental proceeding of constitutional legitimacy, as established by Article 4, paragraph 3, of the Supplementary Rules.

The principles invoked to support the admissibility of the intervention of the Attorney General of the Court of Auditors were affirmed by this Court in proceedings concerning conflicts of attribution between entities, in which the Attorney General held the capacity of a party, and are therefore not relevant in the present case (Judgment No. 123 of 2023, point 2 of the Considered in Law), as this Court has recently reiterated (judgments No. 174 and No. 165 of 2025, with orders read, respectively, at the public hearings of 21 October and 7 October 2025, and Judgment No. 150 of 2025, point 2 of the Considered in Law).

5.– The analysis of the questions benefits from a preliminary examination of the subsequent legislative changes that have affected the challenged regulation.

5.1.– Article 46, paragraph 2, first period, of Regional Law no. 15 of 2002 of Campania was amended by Article 49 of the Law of the Campania Region of 30 December 2024, no. 25 (Provisions for the formation of the financial budget forecast for the three-year period 2025-2027 of the Campania Region – Regional Stability Law for 2025) and, lastly, by Article 11 of the Law of the Campania Region of 22 July 2025, no. 13 (Measures for the reorganization and adaptation of legislation).

The regional legislator first extended the scope of application of the regulation to secondments requested "by virtue of the provisions of Article 19, paragraph 9 bis of Legislative Decree No. 175 of 19 August 2016 (Consolidated Text on Public Participation Companies)" (Art. 49 of Regional Law no. 25 of 2024 of Campania) and then specified that currently in effect are the secondments requested by virtue of the provisions "of Article 8, paragraph 3 of Decree-Law No. 25 of 14 March 2025 (Urgent provisions on recruitment and functionality of public administrations) converted with modifications by Law No. 69 of 9 May 2025 (Conversion into law, with modifications, of Decree-Law of 14 March 2025, no. 25, containing urgent provisions on recruitment and functionality of public administrations)" (Art. 11 of Regional Law no. 13 of 2025 of Campania).

Article 19, paragraph 9-bis, of Legislative Decree No. 175 of 2016, added by Article 1, paragraph 898, of Law No. 197 of 2022, permits, for a duration of one year and no later than 31 December 2026, the application of the institutes of secondment and detachment within the employment relationships of employees of publicly controlled companies, "also for needs strictly linked to the implementation of the National Recovery and Resilience Plan."

Article 8, paragraph 3, of Decree-Law No. 25 of 2025, as converted, adds a period to Article 3, paragraph 1, of Legislative Decree No. 44 of 22 April 2023 (Urgent provisions for strengthening the administrative capacity of public administrations), converted, with modifications, into Law No. 74 of 21 June 2023, and grants regions the faculty to assign to direct collaboration offices "their own permanent personnel and personnel coming from publicly held companies."

Regions may thus avail themselves, also for the benefit of their own employees, of the institutions provided for by Article 14, paragraph 2, of Legislative Decree No. 165 of 30 March 2001 (General provisions on the system of employment relationships of public administrations) and, in particular, of positions of "leave of absence, out of role, or secondment," of "fixed-term contracts governed by private law provisions," of "coordinated and continuous collaboration assignments," and other analogous institutions.

5.2.– These amendments, aimed at aligning regional legislation with the evolution of state legislation on secondment, do not, however, affect the thema decidendum, which concerns the secondments and detachments initiated under the previous regulation.

5.3.– Furthermore, with adequate reasoning, which passes the test of non-implausibility assigned to this Court regarding relevance (among many, judgments No. 137 of 2025, point 2 of the Considered in Law, and No. 105 of 2025, point 4.1. of the Considered in Law), the referring judge has substantiated the necessity of applying the challenged provisions, in the wording valid ratione temporis, in order to conclude the balancing judgment, and has denied that the case in dispute can be traced back to the subsequent regulation, provided for by the aforementioned Article 19, paragraph 9-bis, of Legislative Decree No. 175 of 2016.

Therefore, the exceptions of inadmissibility raised by the Campania Region in its supplementary brief regarding the lack of reasoning on relevance must be dismissed.

6.– The questions are well-founded, with reference to Article 117, second paragraph, letter l), of the Constitution.

7.– Having been called to assess the constitutional legitimacy of Article 15, paragraph 3, letter i), of the Law of the Molise Region of 10 May 2019, no. 4 (Regional Stability Law 2019), which allowed the temporary use of personnel from participated companies in other regional bodies, this Court clarified that provisions concerning the activities of companies participated by regions and local authorities, as they aim to define the legal regime of private law subjects, are attributable, among others, to the matter of "civil law" (Judgment No. 227 of 2020, point 10 of the Considered in Law) also invoked in the present proceedings.

The State regulation in force at that time, which is also relevant in the question now submitted for the review of this Court, had not provided for the possibility of secondment to administrations for personnel employed by publicly held companies.

This choice, made by the State legislator "in the exercise of exclusive competence in matters of civil law," reflects the "strictly private nature of the relationship" and draws a clear line of demarcation between the personnel of publicly held companies and that employed by public administrations (furthermore, Judgment No. 227 of 2020, in the already cited point 10 of the Considered in Law).

8.– The ratio decidendi of the aforementioned ruling is based on the relevance of the regulation of secondments and detachments to the matter of civil law.

It is incumbent upon the State legislator to outline the salient features of these institutes, inseparably linked to the structure of employment relationships, also in order to safeguard the principles established by Article 97 of the Constitution in the most effective way, while respecting budget constraints.

In the present questions as well, the division of powers is decisive with respect to the aspect of the distribution of burdens among the employers involved, which was emphasized by the regional defense in its supplementary brief.

8.1.– Article 46, paragraph 2, first period, of Regional Law no. 15 of 2002 of Campania, by expanding the scope of secondment and detachment and by defining aspects essential to the regulation of the employment relationship and, therefore, requiring uniform regulation, has thus exceeded the limits of regional competences.

8.2.– The same considerations also apply to the integral assimilation of secondment and detachment in the assignment of personnel from bodies external to the Regional Council, as provided for by the challenged Article 46, paragraph 4-bis, of the same Regional Law no. 15 of 2002 of Campania.

The identification of the distinguishing features between two tools equally functional to the organizational needs of public administrations and fraught with implications for the regulation of the employment relationship, with reference to the modalities of carrying out the work performance and the configuration of its various aspects, including remuneration (Judgment No. 172 of 2018, point 9.2. of the Considered in Law, concerning secondment), is reserved to the State legislator.

Nor can the alleged fragmentation of State regulation, highlighted in the supplementary brief of the Campania Region, legitimize the intervention of the regional legislator in an area that falls outside its powers.

9.– Therefore, the constitutional illegitimacy of Article 46, paragraph 2, first period, of Regional Law no. 15 of 2002 of Campania, in the text reinstated by Article 31, paragraph 39, of Regional Law no. 1 of 2007 of Campania and subsequently amended by Article 1, paragraph 77, of Regional Law no. 2 of 2010 of Campania, in the wording prior to the amendments introduced by Article 49 of Regional Law no. 25 of 2024 of Campania and by Article 11 of Regional Law no. 13 of 2025 of Campania, and of Article 46, paragraph 4-bis, of the same Regional Law no. 15 of 2002 of Campania, inserted by Article 1, paragraph 2, of the Law of the Campania Region of 19 February 2004, no. 3, must be declared.

10.– The examination of the remaining challenges is absorbed.

for these reasons

THE CONSTITUTIONAL COURT

1) declares the constitutional illegitimacy of Article 46, paragraph 2, first period, of the Law of the Campania Region of 26 July 2002, no. 15 (Regional Finance Law for the year 2002), in the text reinstated by Article 31, paragraph 39, of the Law of the Campania Region of 19 January 2007, no. 1 (Provisions for the formation of the annual and multi-year budget of the Campania Region – Regional Finance Law 2007) and therefore amended by Article 1, paragraph 77, of the Law of the Campania Region of 21 January 2010, no. 2 (Provisions for the formation of the annual and multi-year budget of the Campania Region – Finance Law for the year 2010), in the wording prior to the amendments introduced by Article 49 of the Law of the Campania Region of 30 December 2024, no. 25 (Provisions for the formation of the financial budget forecast for the three-year period 2025-2027 of the Campania Region – Regional Stability Law for 2025) and, finally, by Article 11 of the Law of the Campania Region of 22 July 2025, no. 13 (Measures for the reorganization and adaptation of legislation);

2) declares the constitutional illegitimacy of Article 46, paragraph 4-bis, of Regional Law no. 15 of 2002 of Campania, inserted by Article 1, paragraph 2, of the Law of the Campania Region of 19 February 2004, no. 3 (Amendment to the Regional Law 26 July 2002, no. 15, Article 46);

3) declares inadmissible the intervention filed by the Attorney General of the Court of Auditors.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 21 October 2025.

Signed:

Giovanni AMOROSO, President

Giovanni PITRUZZELLA, Rapporteur

Roberto MILANA, Chancery Director

Filed in the Registry on 18 December 2025