JUDGMENT NO. 1

YEAR 2026

REPUBLIC OF ITALY

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

is 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, Roberto Nicola CASSINELLI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy proceedings concerning Article 10 of the Tuscan Regional Law of January 2, 2019, no. 2, laying down "Provisions concerning Public Social Housing (ERP)", in the part referring to Annex B, letter c-1), of the same regional law, brought by the Ordinary Court of Florence, Fourth Civil Section, in the proceedings between the Association for Legal Studies on Immigration (ASGI) APS, Altro diritto ODV - Interuniversity Research Centre on Prisons, Deviance, Marginality and Migration Governance, the Municipality of Arezzo, and the Tuscany Region, by order of October 26, 2024, registered under no. 91 of the register of orders of 2025 and published in the Official Gazette of the Republic no. 22, first special series, of 2025.

Having reviewed the briefs of appearance of the Tuscany Region, ASGI APS, and Altro diritto ODV - Interuniversity Research Centre on Prisons, Deviance, Marginality and Migration Governance;

having heard the Rapporteur Judge Filippo Patroni Griffi at the public hearing of November 5, 2025;

having heard the lawyer Alberto Guariso for ASGI APS, the lawyer Silvia Ventura for Altro diritto ODV - Interuniversity Research Centre on Prisons, Deviance, Marginality and Migration Governance, as well as the lawyer Marcello Cecchetti for the Tuscany Region;

deliberated in the council chamber of November 5, 2025.

Facts Considered

1.− The Ordinary Court of Florence, Fourth Civil Section, by order of October 26, 2024, registered under no. 91 of the register of orders of 2025, raised questions of constitutional legitimacy regarding Article 10 of the Tuscan Regional Law of January 2, 2019, no. 2, laying down "Provisions concerning Public Social Housing (ERP)", in the part referring to Annex B, letter c-1), of the same regional law, in reference to Articles 3 and 117, first paragraph, of the Constitution, the latter in relation to: i) Article 11 of Council Directive 2003/109/EC of November 25, 2003, concerning the status of third-country nationals who are long-term residents; ii) Article 24 of Directive 2004/38/EC of the European Parliament and of the Council of April 29, 2004, on the right of citizens of the Union and their family members to move and reside freely in the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC; iii) Article 12 of Directive 2011/98/EU of the European Parliament and of the Council of December 13, 2011, on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers who reside legally in a Member State.

The challenged legislation provides that, in the event of registered residency or continuous employment of at least one family member within the territorial area of reference of the call for applications for the allocation of public social housing (ERP), points 1; 2; 3; 3.5, or 4 shall be awarded for ranking purposes, depending on whether the presence in the territory has been for at least three, five, ten, fifteen, or twenty years, respectively.

1.1.− The referring court reports that it is called upon to rule, pursuant to Article 28 of Legislative Decree no. 150 of September 1, 2011 (Complementary provisions to the Code of Civil Procedure regarding the reduction and simplification of civil cognitive proceedings, pursuant to Article 54 of Law no. 69 of June 18, 2009), on an appeal filed by the Association for Legal Studies on Immigration (ASGI) APS and the association L’Altro Diritto ODV - Interuniversity Research Centre on Prisons, Deviance, Marginality and Migration Governance (L’Altro Diritto), against the Municipality of Arezzo and the Tuscany Region.

The appellant associations, as far as is relevant here, request that the discriminatory nature of the conduct taken by the Municipality of Arezzo be ascertained, which in the 2022 ERP call for applications included a clause relating to the awarding of points based on conditions of "historical presence," and that the Municipality be ordered to amend said call, to modify the rankings adopted based thereon (by re-formulating them without considering the allegedly discriminatory clause), and to reopen the deadlines for the submission of applications.

1.1.1.− The court a quo states that ASGI and L’Altro Diritto have noted that the aforementioned clause contained in the 2022 ERP call is identical to that provided for by the challenged regional legislation, whose current wording was adopted by the Tuscan Regional Law of September 21, 2021, no. 35 (Requirements for participation in the competitive call for the allocation of ERP housing. Conditions for the awarding of points. Amendments to Annexes A and B to Regional Law 2/2019), enacted following judgments no. 9 of 2021 and no. 44 of 2020 of this Court. However, the "enhancement" of prior residence provided for by the regional law – and consequently by the 2022 ERP call – is reportedly not in compliance with constitutional jurisprudence.

According to the appellant associations, in fact, "the criteria for awarding points based on conditions of duration of presence (residency or performance of work activity) hold excessive relevance compared to other criteria," which instead correspond to the rationale of the legislation on ERP, aimed at guaranteeing the right to housing for those in need.

1.2.− Acknowledging that the appellants also contest the Municipality of Arezzo for further discriminatory conduct, separate, however, from the questions of constitutional legitimacy raised and concerning which, for reasons of judicial economy, the court deems it appropriate to rule at the conclusion of the present constitutional legitimacy judgment, the court a quo reports that the defendant local authority has preliminarily requested that the appeal be declared inadmissible due to lack of jurisdiction, lack of interest, and lack of active standing of ASGI and L’Altro Diritto: exceptions which, however, the court considers unfounded.

In light of the provisions of Article 28 of Legislative Decree no. 150 of 2011 and the jurisprudence of legitimacy, the existence of jurisdiction of the ordinary court is considered settled, as it concerns a dispute on matters of discrimination, regardless of the fact that it is implemented through an act of the public administration.

Nor can there be any doubt about the appellant associations' interest in bringing the action, as they – pursuant to Article 5 of Legislative Decree no. 215 of July 9, 2003 (Implementation of Directive 2000/43/EC on equal treatment between persons irrespective of racial or ethnic origin) and Article 5 of Legislative Decree no. 216 of July 9, 2003 (Implementation of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation and Directive 2014/54/EU on measures to facilitate the exercise of rights conferred on workers in the context of freedom of movement for workers) – act in court "on behalf of all subjects unlawfully prejudiced" by the conduct of the Municipality of Arezzo, the discriminatory nature of which they seek to have ascertained. The acceptance of the appeal, moreover, would lead to the removal of the points awarded based on mere historical residence and the obligation for the administration to review the rankings.

Finally, regarding active standing, the established jurisprudence of legitimacy has already affirmed that organizations registered in the list pursuant to Article 5 of Legislative Decree no. 215 of 2003 may also take action against conduct deemed discriminatory based on nationality (and not only ethnicity).

1.3.− Having established this, the Court of Florence recognizes that "the dispute under examination concerns a material area that falls within the sphere of competence that the TFEU attributes to the Union," but at the same time that the applicability of the domestic rule in contrast with European Union law would only be conditional when the latter has direct effect or is directly applicable.

Widely citing the principles established by the Court of Justice in this regard – including specifically concerning Directive 2003/109/EC – the referring judge observes that, even if EU law allowed for the non-application of the regional provision, what was established by this Court in Judgment no. 15 of 2024 must be considered, which would have "allowed the accumulation of the two instruments of disapplying the law with the referral to the Court of a question of constitutional legitimacy on the same law, with a view to guaranteeing an effective and future-oriented plan for removing discrimination (Article 28, paragraph 5, Legislative Decree no. 150/2011), including the removal of the normative act in contrast with EU law, which nonetheless follows the declaration of unconstitutionality." Hence, the admissibility of the questions, also in light of what has already been stated regarding the interest of ASGI and L’Altro Diritto to bring the action and the consequences in the a quo judgment of a possible declaration of unconstitutionality.

1.4.− Excluding the possibility of interpreting the challenged provisions in a manner consistent with the Constitution, the Court of Florence deems them of doubtful constitutional legitimacy, firstly, in reference to Article 3 of the Constitution.

Article 10 of the challenged regional law, in the part referring to Annex B, letter c-1), would attribute particular importance to prior residence, which, however, is not inherently linked to the function of the ERP service, aimed at "ensuring the satisfaction of the primary need for housing." Recalling the jurisprudence of this Court in this regard, the court a quo notes that, if a certain stability in the territory is consistent with the provision of the social service provided by the Municipality, territorial rooting "could in any case not assume an importance such as to exclude any relevance of need" (Judgment no. 44 of 2020), so that the rules considering it among the elements to be evaluated for ranking purposes must be "examined with particular attention, as they involve the risk of depriving certain subjects of access to public services simply by virtue of having exercised their right to free movement or having had to change their region of residence" (Judgment no. 107 of 2018).

From this perspective, the Court of Florence believes that the challenged provisions must be assessed "within the system constituted by the rules establishing the points to be awarded to applicants based on their subjective and objective conditions, and by those defining the requirements for access to the service" (Judgment no. 9 of 2021). Indeed, Tuscan Regional Law no. 2 of 2019 assigns a maximum of six points to "economic, social, and family conditions," a maximum of four points to objective conditions related to the severity of housing hardship, and a maximum of four points for the historical nature of presence: from which one can deduce the "evident 'overvaluation,' carried out by the regional legislator, of the situation connected to the seniority of residence compared to the relevance attributed to other conditions, particularly those that most reflect the state of need that the service aims to remedy." By providing some examples, the court a quo reaches the conclusion that the challenged normative framework overvalues the historical nature of residence compared to the actuality of the state of need, thereby contradicting what was affirmed by this Court in Judgment no. 9 of 2021, where it was noted that the prospect of stability "if it can contribute to determining the position of beneficiaries, must nevertheless retain a less significant character than the necessary centrality of the factors indicative of the state of need to which the service responds, such as those indicating the subjective and objective conditions of the applicants."

1.4.1.− The provisions submitted for review by this Court are also reportedly in conflict with Article 117, first paragraph, of the Constitution, in relation to the various provisions of European Union law previously cited.

The jurisprudence of the Court of Justice of the European Union has, in fact, reportedly already noted that regulations such as the one challenged, which disadvantage citizens of a Member State solely for having exercised their freedom of movement and residence, can only be justified if the restriction is "based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate aim pursued by the national law" (CGUE Judgment, July 21, 2011, Case C-503/09, Stewart, is cited).

In the present case, the challenged provisions, firstly, do not pursue a legitimate aim. If, in fact, the regional legislation intends to guarantee the right to housing for those in need, then "it is not clear how this aim can be achieved through the high valuation of prior residence, a criterion that, as stated, offers no prognosis regarding the future rootedness of the subject who can invoke it, and with the automatic postponement in the ranking for the allocation of housing to people who can invoke relevant subjective need factors to the advantage of those who do not possess such factors."

The Court of Florence observes, moreover, that, even if the aim "of granting a benefit only to those who can demonstrate a prognosis of future rooting in the territory" were considered legitimate, the challenged provisions would prove to be disproportionate "both in measure (awarding a score equivalent to or higher than several conditions expressing conditions of subjective need or housing hardship), and because alternative and more proportionate measures are well possible to achieve the same objective pursued by the legislator by attributing relevance to the seniority in the ranking, or by using the criterion of historical residency as a residual preference criterion, given equal subjective and objective needs evidenced by the applicants."

Furthermore, this Court had already found a violation of Article 117, first paragraph, of the Constitution, in relation to Article 21 of the Treaty on the Functioning of the European Union, by legislation that listed prior residence as a requirement for access to ERP (Judgment no. 168 of 2014 is cited). While aware that this decision considered a limitation on access and not a criterion for awarding points, the referring judge deems the related arguments valid also for the present review, as the provisions challenged today, which overvalue "prolonged residence, which acts [as] a discriminatory factor for those who cannot invoke it, proving to be a necessary prerequisite to compete on equal terms for admission to the benefit of access to public social housing (and not, therefore, as a mere rule of preference given equal needs evidenced)," equally result in unreasonable inequality both towards Union citizens and towards third-country nationals who are long-term residents.

2.− The Tuscany Region appeared in the proceedings with a brief filed on June 13, 2025, requesting that the present questions of constitutional legitimacy be deemed inadmissible or unfounded.

2.1.− The regional defense observes, first of all, that the jurisprudence of this Court cited by the referring judge declared the constitutional illegitimacy of "rules that gave relevance to the duration of residence for access to social benefits," whereas the challenged regional provisions consider residence or the performance of continuous work activity "only as an evaluative criterion for the formation of the ranking": this would exclude that they may be considered in contrast with Article 3 of the Constitution, in light of what was affirmed by this Court in judgments no. 145 of 2023, no. 199 of 2022, and no. 44 of 2020.

Considering residence not as an exclusionary criterion but as a rewarding one would allow for "an overall equitable satisfaction of the opposing pressures that manifest in these types of legislation," aimed on the one hand at protecting housing needs and on the other at ensuring administrative efficiency, by making the best use of limited public resources.

The challenged regional law, following the amendments made in 2021, comprises a "very complex, articulated, and balanced system," within which all aspects in which housing need is expressed are considered, and where the conditions of historical presence are gradually considered, depending on the years of residence or work activity. The regional defense notes, in particular, that the maximum score attributable to social, economic, and family conditions and that attributable to continuous presence in the ranking for the allocation of housing are equal to 6 points and, therefore, capable of prevailing over the maximum score attributable based on historical permanence, equal to 4 points.

2.2.− According to the Tuscany Region, similar reasons should lead to the questions of legitimacy concerning Article 117, first paragraph, of the Constitution also being considered unfounded.

There would, in fact, be no contrast with Article 24 of Directive 2004/38/EC, as there is no overvaluation of prolonged residence.

With regard to the violation of Article 11 of Directive 2003/109/EC, the regional defense objects to the inadmissibility of the relevant question, because the challenged provisions do not provide for any differentiated treatment, and therefore the directive would have "no relevance in the case at hand." In any case, on the merits, any violation should be ruled out, as the directive itself requires rooting in the national territory of the long-term resident.

Finally, the question concerning the violation of Article 12 of Directive 2011/98/EU would also be inadmissible or unfounded. The referring judge, in fact, would not have provided reasoning regarding the alleged contrast between the challenged provisions and this parameter. On the merits, however, the doubts would be unfounded, since the challenged provisions do not provide for any different treatment for third-country nationals working in Italy, especially since the directive itself would give relevance to the need for stability of presence, allowing for limitations on access to housing procurement procedures.

3.− With briefs of identical content, filed on June 16 and 17, 2025, ASGI and L’Altro Diritto also appeared in the proceedings, requesting that the constitutional illegitimacy of the challenged provisions be declared.

3.1.− The associations note that these provisions were introduced by Tuscan Regional Law no. 35 of 2021, which, while intending to bring Tuscan Regional Law no. 2 of 2019 into compliance with Judgment no. 44 of 2020 of this Court, on the other hand, reintroduced with the provisions under review the same logic and purpose as the five-year residence requirement, previously established by regional legislation.

3.2.− Having established this, the associations consider the referral order erroneous where it excludes that the EU directives cited by the court a quo have direct effect, since, on the contrary, there could be no doubt as to their "self-executiveness." This incorrect qualification, however, could not affect the relevance of the questions, as the Court of Florence itself highlights that the constitutional referral would be necessary in consideration of the statements made by this Court in Judgment no. 15 of 2024: it is in light of the "logical-legal path" of that decision, and not of the alleged absence of direct effect, that the parties request that the relevance of the questions raised be assessed.

The associations further emphasize that the challenged provisions must also be examined in comparison with Article 12 of Directive 2011/98/EU and Article 24 of Directive 2004/38/EC, cited in the reasoning but not in the operative part, where the court a quo only invokes Directive 2003/109/EC. Considering the overall tenor of the referral order would be particularly important in light of the judgment of the Court of Justice of the European Union, First Chamber, July 29, 2024, Cases C-184/22, IK and C-185/22, CM, which would have clarified "the relationship between the power to derogate and causes of justification for indirect discrimination" and consequently "considerably restricted the 'room for maneuver' of the national legislator."

3.3.− On the merits, ASGI and L’Altro Diritto consider that the issue raised by the challenged provisions – historical residence as a rewarding criterion, addressed by this Court only in Judgment no. 9 of 2021 – is contiguous and homogeneous to that of residence as a barrier to access, which has instead often been the subject of constitutional decisions. The principles affirmed would, in fact, be the same: a) a link between the applicant and the territory may be required, but "prior residence constitutes a 'weak' prognostic element regarding the future stability of the beneficiary"; b) the preeminent criterion for awarding social services is the relevance of the need. The application of these principles would show the unreasonableness of the challenged provisions, especially since in this case "even mobility between Municipalities is at stake, given that points for historical residence are awarded for long residence in the Municipality or in the (only slightly larger) catchment area to which the call refers."

The defense of the associations notes, in particular, that, based on the challenged provisions, the applicant subject, who has exercised their freedom of movement and residence, might never acquire the right to public housing, even if they have significant needs. This, moreover, even though the regional legislator could opt for other solutions, such as taking into account seniority in the ranking, which would express the worsening of the need (judgments of this Court no. 147 and no. 67 of 2024 and no. 9 of 2021 are cited, as well as the judgment of the Ordinary Court of Milan of February 20, 2025, the order of the Ordinary Court of Padua of January 2, 2025, and the order of the Ordinary Court of Ferrara of July 6, 2021).

3.3.1.− The fact that the challenged provisions assign a lower weight to the score relating to prior residence compared to the other elements taken into consideration would not serve to exclude the defect of constitutional legitimacy, because – in line with what was affirmed by the cited Judgment no. 9 of 2021 – what matters is that the challenged criterion "allows for the possibility that needier persons are overtaken by less needy persons, simply by virtue of having resided for a longer time in the same Municipality." Residence as such, the associations insist, cannot have a greater relevance than one or more conditions of need, as happens when applying the challenged provisions.

The regional law under review, moreover, already takes into account seniority of presence in the ranking or in other ERP housing – by awarding 0.5 points for each year – so that the additional score for historical residence would not be functional to consider the prolongation of the state of need, but would be a "mere reward for being settled as such, totally extraneous to the purpose of the institute."

3.3.2.− ASGI and L’Altro Diritto further observe that the acceptance of the raised questions would not preclude the political decision-maker from awarding higher scores for presence in the ranking or from considering seniority only if a condition of need also exists. The nullification of the challenged provisions, in short, would leave the regional legislator with the task of following up on the affirmed principles.

Alternatively, and in the event that this Court intended to replicate the decision-making model used in Judgment no. 31 of 2025, the parties point out the options of the aforementioned judgment of the Court of Milan: exclusion of residence, unless a condition of need also exists; the score for the duration of residence cannot outweigh the condition of need; valuation of even minimal periods of residence.

3.4.− The private parties also consider the questions raised in reference to Article 117, first paragraph, of the Constitution, to be well-founded, as the jurisprudence of the CJEU would have already recognized that "requirements that favor long-term resident applicants indirectly violate the obligations of equal treatment" (the already cited judgment of the Court of Justice, Cases C-184/22 and C-185/22, is particularly cited).

To support this conclusion, and citing various reports from the National Institute of Statistics (ISTAT), the associations note that: i) the propensity for internal mobility among foreigners is more than double that of Italians; ii) the propensity for mobility is higher in the presence of more precarious social conditions, so that long-residence criteria exclude precisely those most in need; iii) the progressive increase in fixed-term contracts makes the need to move to access new job opportunities more likely, which, moreover, happens more frequently for low-wage workers. Moreover, this Court in judgments no. 1 of 2025 and no. 147 of 2024 would have already "acknowledged the link between poverty and mobility, so that the point does not require further confirmation."

All this, in conclusion, demonstrates the indirect discrimination caused by the challenged provisions, without it being able to find any justification, as already argued by the court a quo.

3.5.− The two associations specify, finally, that the arguments made are valid for the valuation of both registered residence and the performance of continuous work activity, which still attributes a higher score to those with a longer historical presence. Indeed, under this second profile, the defect would be even more significant, because the neediest persons – workers with fixed-term contracts and low wages – would be disadvantaged, and the "principle of free movement, which constitutes a factor of growth for the economy as a whole," would be particularly harmed.

4.− On October 13, 2025, the Tuscany Region filed a brief in which it insisted on the declaration of inadmissibility or unfoundedness of the questions raised.

4.1.− In addition to reiterating arguments already used in the brief of appearance, the regional defense, with reference to the alleged violation of Article 3 of the Constitution, observes that the challenged provisions should be read also considering Article 14 of Tuscan Regional Law no. 2 of 2019. This provision, in fact, governs the "[a]uthorized use of housing," which is a temporary method of granting a dwelling to a non-assigned household that meets the requirements for access to ERP, among which mere residence is provided for (and not also prolonged residence, which, as provided by the challenged provisions, is only a criterion for the formation of rankings)."

4.2.− As for the alleged conflict with EU regulations and, therefore, with Article 117, first paragraph, of the Constitution, the Tuscany Region notes that the overall reading of Directive 2004/38/EC itself allows for considering the duration and stability of residence, which only if permanent makes the availability of sufficient resources so that the foreigner and their family members do not become a burden on the social assistance system of the Member State unnecessary for access to social benefits. The challenged provisions, therefore, would be compliant with this directive because they establish a fair balance between housing needs and administrative efficiency.

5.− On October 14, 2025, L’Altro Diritto filed a brief in which it insisted on the acceptance of the questions raised.

5.1.− The association first contests the conclusions of the Tuscany Region regarding the violation of Article 3 of the Constitution, as Judgment no. 9 of 2021 of this Court would have established principles that lead to the unconstitutionality of the challenged provisions. Prior residence, in fact, would be a weak prognostic element regarding the future stability of the beneficiary and, in any case, could never prevail over the relevance of the need.

The regional legislation, instead, would lead to an overvaluation of residence compared to the state of need, which is even more unreasonable because it is required in a limited territorial area. The private defense also observes that the regional law awards points for seniority of presence in the ranking or in other ERP housing, thereby already taking into account historical being settled, but correctly combined with the state of need.

5.2.− According to L’Altro Diritto, the arguments of the regional defense regarding compliance with EU regulations would also be flawed. The requirements for granting a long-stay permit, in fact, "have nothing to do with the social and assistance purpose to which a call for access to public social housing is instead intended."

The court a quo, in any case, would have correctly cited the jurisprudence of the CJEU which has already affirmed that "requirements that favor long-term resident applicants indirectly violate the obligations of equal treatment (as they are requirements more easily attainable by natives)."

6.− On October 15, 2025, ASGI also filed a brief in which it insisted on the acceptance of the questions raised.

6.1.− The identification of the state of need undoubtedly belongs to the political decision-maker, the private party observes. The Tuscany Region did so by providing, on the one hand, that those with an ISEE indicator below Euro 16,500 and who meet the other requirements indicated in Annex A can access ERP housing; on the other hand, by awarding points according to "a very wide series of indicators" in Annex B.

Indeed, once the legislator has thus identified, in its discretion, the factors of need, it is unreasonable that a person, exhibiting one or more of those needs, can be overtaken in the ranking by another person who has resided in the territorial area for a longer time, but who has none of the needs indicated in Annex B. Prior residence, in fact, would say nothing about the need, which indeed pushes – as this Court recognized in judgments no. 1 of 2025 and no. 147 of 2024 – for continuous movement.

To demonstrate that historical presence is truly an indicator of future stability, "statistical proof would be required that people, after obtaining housing, tend to stabilize in the Municipality (or Region) in a greater percentage if they have already resided there for a long time." However, not only – ASGI observes – has no local authority ever provided such proof, but it is also "absolutely foreseeable" that a household will decide to stabilize because it has obtained housing, regardless of prior and prolonged residence in that same place.

All this does not imply that presence in the territory cannot be taken into account, but it would be constitutionally necessary for it to be "understood as the duration of the need." This could happen by valuing presence in the ranking, as suggested by this Court in judgments no. 147 of 2024 and no. 9 of 2021, or, as suggested by ASGI's defense, by considering the need factors in Annex B "in their permanence over time." Moreover, contesting the regional defense on this point, the private party notes that this Court has never affirmed "either expressly or implicitly the legitimacy of regulations like the one under discussion, which can determine the 'overtaking' in the ranking of those who claim only prior residence."

6.2.− Regarding the violation of EU directives, which "propose an obligation of equality (between Italians and foreigners) strengthened compared to what can derive from the general principle of equality (and the consequent reasonableness control) under Article 3 of the Constitution," ASGI believes that the Region's defenses are "rather obscure" and, in any case, do not provide any argument that demonstrates that the indirect disparity of treatment pursues a legitimate aim by proportionate and necessary means.

Considered in Law

7.− The Court of Florence, Fourth Civil Section, with the order indicated in the heading (registered order no. 91 of 2025), raised questions of constitutional legitimacy regarding Annex B, letter c-1, of Tuscan Regional Law no. 2 of 2019, referred to by Article 10 of the same regional law, in reference to Articles 3 and 117, first paragraph, of the Constitution. This provision provides that, in the event of registered residency or continuous employment of at least one family member within the territorial area of reference of the call for applications for the allocation of ERP housing, points 1; 2; 3; 3.5, or 4 shall be awarded for ranking purposes, depending on whether the presence in the territory has been for at least three, five, ten, fifteen, or twenty years, respectively.

The referring court complains that the challenged legislation, although it considers prolonged residence or continuous work activity not as a requirement for access to the rankings, but as a criterion for awarding a score, increasing with the number of years of settlement in the territory, is in contrast, firstly, with Article 3 of the Constitution. The regional rule, in fact, would overvalue a condition – the historical nature of presence in the territory – which is not correlated to the state of hardship of the applicant, which must be assessed with reference to the conditions that most reflect the state of need that the public social housing service tends to remedy, with the discriminatory consequence that less needy applicants, but present in the territory for a longer time, may overtake more needy applicants in the ranking.

The invoked provisions of European Union law (point 1 of the Facts Considered), and therefore Article 117, first paragraph, of the Constitution, would also be violated, because the criterion of historical presence would prove to be disproportionate and discriminatory towards EU citizens and third-country nationals who are long-term residents.

8.− Preliminarily, it must be noted that the fact that the court a quo doubts the compatibility of the regional legislation with reference to both Article 3 of the Constitution and several norms of European Union law does not affect the admissibility of the questions of constitutional legitimacy.

As for the complaints concerning the provisions of European Union law, the existence of the "constitutional tone" of the questions raised cannot be doubted in this case (judgments no. 147, no. 93, no. 31 and no. 7 of 2025, no. 181 of 2024; order no. 21 of 2025), since the referring judge contests the reasonableness of the challenged discipline, highlighting its discriminatory nature.

Furthermore, the Court of Florence is called upon, on the one hand, to ascertain whether the conduct of the Municipality of Arezzo, which adopted in the 2022 ERP call a clause that, in implementation of the challenged regional rules to which it conforms, awards points for historical presence, is discriminatory or not; on the other hand, if the discriminatory nature of such conduct is ascertained, to adopt, pursuant to Article 28, paragraph 5, of Legislative Decree no. 150 of 2011, a plan for the removal of the discrimination, which, even in light of what is provided for in Annex B, letter c-1), to Tuscan Regional Law no. 2 of 2019 (to which the impugned call conforms), requires the Municipality to remove the clause from the call, reformulate the rankings without considering the discriminatory clause, and reopen the deadlines for the submission of applications. In such circumstances, this Court has already recognized that the "declaration of unconstitutionality of the domestic legislation [...] offers a surplus of guarantee to the primacy of European Union law, in terms of certainty and uniform application. While it remains true that the obligation to apply provisions with direct effect is incumbent not only on all judges but also on the public administration itself – so that if there is domestic legislation incompatible with these provisions, it must not be applied – it may also occur that, due to lack of awareness of the aforementioned incompatibility or due to hermeneutic conclusions that deem it non-existent, domestic rules continue to be used and applied. Precisely to avoid this eventuality, and without prejudice to the other remedies that the legal system knows for the uniform application of the law when this happens, the question of constitutional legitimacy offers the possibility, if the prerequisites exist, to arrive at the removal from the legal system, with the binding effect typical of judgments of acceptance, of those rules that are in contrast with European Union law" (Judgment no. 15 of 2024).

9.− The question raised in reference to Article 3 of the Constitution is well-founded.

9.1.− The jurisprudence of this Court has constantly emphasized the central consideration of the state of need for access to public social housing. That the right to housing falls "among the essential requirements characterizing the social nature to which the democratic State willed by the Constitution conforms," thus being called upon to guarantee a fundamental social right that contributes "to ensuring that every person's life reflects every day and in every aspect the universal image of human dignity" (Judgment no. 217 of 1988), is an interpretative outcome reached by constitutional jurisprudence for some time and reiterated recently (judgments no. 1 of 2025, no. 147 and no. 67 of 2024).

ERP precisely responds to this duty of the Republic, as such a service "is aimed at ensuring in practice the satisfaction of this primary need, because it serves to 'guarantee housing to economically weak subjects in the place where their interests are based'" (Judgment no. 176 of 2000), in order to ensure a dignified existence for all those who do not have sufficient resources (Article 34 of the Charter of Fundamental Rights of the European Union), through a public service intended for the "provision of housing for the neediest workers and families" (Judgment no. 168 of 2014)" (Judgments no. 147 of 2024 and no. 44 of 2020; in almost analogous terms also Judgment no. 1 of 2025).

In reviewing various regional provisions that established territorial rooting as a requirement for access to ERP, this Court has repeatedly affirmed that "no reasonable correlation is found between the need to access the right to housing, when one is in conditions of economic fragility, and prior and prolonged residence – however defined [...] – in the regional territory" (thus Judgment no. 67 of 2024). The criterion of prolonged residence or work activity, in fact, "proceeds from the premise, contradicted by empirical reality, that the housing need is more pressing only because the stay in the territory is longer [...] and attenuates and deserves less protection in the face of discontinuous presence" (Judgment no. 1 of 2025). And, if qualified as a requirement for access to ERP, that criterion "prevents the satisfaction of the right to housing regardless of any assessment relating to the situation of need or hardship, which is not affected by the duration of the stay in the regional territory; it does not consider that precisely those in need often move from one place to another in search of job opportunities; it is not an indicator of a prospect of rooting (judgments no. 67 of 2024, no. 145 and no. 77 of 2023, no. 44 of 2020 and no. 166 of 2018)" (Judgment no. 147 of 2024).

9.2.− From the centrality of the consideration of the state of need for the allocation of ERP housing follows the constitutional illegitimacy also of any legislative provision that – like the challenged one – although not providing for territorial rooting as a requirement for access to ERP, attributes to permanence in the territory "an importance such as to exclude any relevance of need" (Judgment no. 44 of 2020) or, in any case, a weight more relevant "than the necessary centrality of the factors indicative of the state of need to which the service responds, such as those indicating the subjective and objective conditions of the applicants" (Judgment no. 9 of 2021); in other words, that allows, in the awarding of points for the formation of the ranking, the prevalence of criteria related to territorial rooting over indices revealing the state of need.

The *ex lege* attribution of such a prevalence of the criterion of territorial rooting over the state of need contrasts with Article 3 of the Constitution for various reasons.

Firstly, from the perspective of the reasonableness and adequacy of the means to the purpose of the discipline on the matter, as it obliterates or renders recessive the state of need compared to territorial rooting: "[T]he effect of adopting a criterion that is unreasonable with respect to the rationale of the social service thus translates into a violation of the principle of equality between those who can or cannot claim a condition – that of prolonged residence in the regional territory – completely dissociated from their state of need. And this can clearly affect both Italian and foreign citizens" (thus Judgment no. 67 of 2024).

Secondly, because it violates the principle of equality in the formal sense (Article 3, first paragraph, of the Constitution), as it determines, for the formation of the ranking, an unjustified disparity of treatment between persons who are all in conditions of fragility (Judgment no. 147 of 2024, taken up by Judgment no. 1 of 2025).

Finally, because it conflicts with the principle of equality in the substantive sense (Article 3, second paragraph, of the Constitution), which entrusts the Republic with the task of "removing economic and social obstacles that, by limiting the freedom and equality of citizens in fact, prevent the full development of the human person" (Judgments no. 1 of 2025, no. 147 of 2024 and no. 67 of 2024).

9.3.– This Court does not intend to deny absolutely that the criterion of territorial rooting can be taken into consideration for the allocation of public social housing.

But, as has already been stated, "the prolongation of the wait can usefully be reflected in the seniority of presence in the allocation ranking, as a circumstance that documents the worsening of social suffering due to the non-realization of the housing request and which, therefore, effectively 'evidences a relevant factor of need in function of the service provided' (Judgment no. 9 of 2021)" (thus Judgment no. 67 of 2024). Such a criterion can reasonably support a prospect of stability to be evaluated in the formation of the ranking (Judgment no. 44 of 2020), as it can be inferred that the needy but not allocated applicant, who nevertheless remained in the territory, will hardly exercise their freedom of movement once their right to housing is finally satisfied.

In this regard, moreover, the challenged regional law itself has oriented, as it provides for the attribution of a progressive score for seniority of presence in the ranking or in other ERP housing (Annex B, letter c-2). And there is no doubt that this prolonged presence can be an indicator of the persistence of a state of need, as it is correlated to it.

9.4.– In conclusion, in light of all the considerations set out, the constitutional illegitimacy of Annex B, letter c-1), to Tuscan Regional Law no. 2 of 2019, referred to by Article 10 of the same regional law, must be declared.

The questions of constitutional legitimacy raised in reference to Article 117, first paragraph, of the Constitution remain absorbed.

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Annex B, letter c-1), to the Tuscan Regional Law of January 2, 2019, no. 2, laying down "Provisions concerning Public Social Housing (ERP)", referred to by Article 10 of the same regional law.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on November 5, 2025.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Roberto MILANA, Chancellor Director

Filed in the Chancellery on January 8, 2026