JUDGMENT NO. 133

YEAR 2026

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 delivered the following

JUDGMENT

in proceedings concerning the constitutionality of Article 23(1) of Legislative Decree No. 160 of November 12, 2020 (Supplementary and corrective provisions to Legislative Decree No. 229 of November 3, 2017, concerning the revision and integration of Legislative Decree No. 171 of July 18, 2005, enacting the Recreational Boating Code and implementing Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003, in implementation of Article 1(5) of Law No. 167 of October 7, 2015) and Article 49-septies(21)(c) and (i) of Legislative Decree No. 171 of July 18, 2005 (Recreational Boating Code and implementation of Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003), brought by the Regional Administrative Court for Lazio, Third Section, in the proceedings pending between Altura società sportiva dilettantistica srl and the Ministry of Infrastructure and Transport and others, by means of an order dated October 23, 2025, registered under No. 225 of the 2025 register of orders and published in the Official Gazette of the Republic, 1st Special Series, No. 48 of the year 2025.

Having regard to the appearance of the President of the Council of Ministers;

having heard in chambers on June 8, 2026, the Judge Rapporteur Francesco Saverio Marini;

having deliberated in chambers on June 8, 2026.

The Law in Fact

1.– By order dated October 23, 2025 (Reg. Ord. No. 225 of 2025), the Regional Administrative Court for Lazio, Third Section, raised questions as to the constitutional legitimacy of Article 23(1) of Legislative Decree No. 160 of November 12, 2020 (Supplementary and corrective provisions to Legislative Decree No. 229 of November 3, 2017, concerning the revision and integration of Legislative Decree No. 171 of July 18, 2005, enacting the Recreational Boating Code and implementing Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003, in implementation of Article 1(5) of Law No. 167 of October 7, 2015) and Article 49-septies(21)(c) and (i) of Legislative Decree No. 171 of July 18, 2005 (Recreational Boating Code and implementation of Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003) [correctly: Article 23(1) of Legislative Decree No. 160 of 2020, insofar as it introduced Article 49-septies(21)(c) and (i) of Legislative Decree No. 171 of 2005], with reference to Articles 76 and 77(1) of the Constitution, as well as, limited solely to letter (i) concerning the minimum tariff schedule, to Article 117(1) of the Constitution, in relation to Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of December 12, 2006, on services in the internal market (so-called Services Directive, or Bolkestein Directive).

1.1.– The main proceedings originate from the judicial appeal brought by a company operating in the sailing and nautical sports sector, which also carries out boating school activities—namely, training activities for candidates seeking to obtain nautical licenses—seeking the annulment, subject to disapplication for incompatibility with EU law or, alternatively, referral to this Court regarding the constitutionality of the aforementioned provisions, of Ministerial Decree No. 142 of August 30, 2023 (Regulation governing boating schools), issued by the Minister of Infrastructure and Transport, in concert with the Minister of Economy and Finance, the Minister of Education and Merit, and the Minister of Enterprises and Made in Italy.

The appellant challenged Article 4 of the aforementioned ministerial decree, insofar as it imposes upon boating schools the obligation to demonstrate asset or financial capacity of not less than 50,000 euros, and Article 20 of the same decree, which introduces the obligation to adopt a tariff schedule complying with pre-established minimum amounts, subject to prior validation and visa by the administrative supervisory authorities.

The appellant company, alleging a direct infringement of its entrepreneurial prerogatives and the restriction of tariff autonomy in courses preparing for nautical license exams, claimed the derived unconstitutionality of the ministerial regulation due to the constitutional illegitimacy of the primary norms underpinning the regulatory power. The latter allegedly violated the time limits and scope of the legislative delegation: in particular, Article 1(1) of Law No. 167 of October 7, 2015 (Delegation to the Government for the reform of the recreational boating code), which defines the scope of the delegated matters, allegedly conferred no legislative mandate upon the Government to regulate the organizational and financial aspects of boating schools.

2.– The Lazio TAR, having deemed manifestly unfounded the alleged violation of the time limits of the delegation, raised questions concerning the constitutional legitimacy of the aforementioned provisions for violation of Articles 76 and 77(1) of the Constitution and, with regard solely to the minimum tariff schedule provision (Article 49-septies(21)(i) of Legislative Decree No. 171 of 2005), also for infringement of Article 117(1) of the Constitution, in relation to Article 15 of the Services Directive. This is because the latter challenged provision, besides falling outside the perimeter delineated by the enabling act, was not preceded by the proportionality test required by Article 15 of Directive 2006/123/EC, invoked as an interposed norm.

3.– Regarding relevance (rilevanza), the referring court pointed out that the constitutionality review of the challenged regulatory act is inextricably dependent on the validity of the primary-level provisions that Ministerial Decree No. 142 of 2023 implements: the provisions suspected of unconstitutionality indeed impose obligations that the appellant company deemed unlawful due to the negative impact their compliance could exert on the pursuit of its business activity. Furthermore, facing an alleged failure to notify the initiating appeal of the main proceedings to at least one opposing party (controinteressato), the referring judge stated that the dual nature of the challenged act makes it difficult to identify ex ante those subjects who may claim a position as an opposing party against the appellant.

3.1.– Also concerning relevance, the referring TAR rebutted a further preliminary exception regarding an alleged lack of standing (legittimazione attiva) of the appellant company, on the grounds that it lacked the subjective legal position of opposing legitimate interest (interesse legittimo oppositivo) asserted in court, due to the failure to possess the financial capacity requirements established by the code and a valid authorization to operate as a boating school. The Lazio TAR dismissed this exception, holding that it does not appear from the records either that the appellant has been sanctioned for failure to meet the financial capacity requirement or that it lacks authorization to operate as a boating school.

4.– The referring judge also delimited the thema decidendum solely to those normative provisions capable of exerting a direct impact on Articles 4 and 20 of Ministerial Decree No. 142 of 2023, thereby excluding both the review of the entire text of Articles 23(1) of Legislative Decree No. 160 of 2020 and 49-septies of Legislative Decree No. 171 of 2005, and the feasibility of a constitutionally-oriented interpretation, given that the clear literal tenor of the delegated provisions precludes any accommodating hermeneutic operation.

5.– Finally, considering the objections raised by the appellant company—which also requested a preliminary reference to the Court of Justice of the European Union due to the alleged incompatibility between the provisions of the challenged ministerial regulation and Article 15 of the Services Directive—the referring court held that the situation of "double preliminary reference" (doppia pregiudizialità) under constitutional and EU law must be resolved by giving priority to the former, because should the defect of excess of delegation be established, this would radically eliminate the relevance of the issue concerning the violation of the aforementioned Article 15 of the Services Directive.

6.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office (Avvocatura generale dello Stato), which concluded for a declaration of inadmissibility of the questions due to insufficient reasoning regarding their non-manifest unfoundedness and for having omitted to evaluate the entire regulatory framework.

6.1.– The State Attorney’s Office also argued, in any event, that the objections were unfounded. The enabling act allegedly embodies a clear legislative mandate to comprehensively redesign the regulation of boating school activities so as to include aspects relating to the organizational, professional, and financial capacity of operators, in order to guarantee safety, quality of service, administrative efficiency, and a uniform minimum level of performance. Conversely, the referral order allegedly interpreted the scope of the delegation and the guiding principles and criteria in a "literal and punctiform" manner rather than within the overall framework of the delegation, failing to assess the ratio of the intervention and its material scope. In other words, the judge a quo should have considered that, within the context of an organic arrangement of the regulations concerning recreational navigation users, the possibility for the legislature to require a minimum level of financial soundness of the economic operator is implicit, traceable to the purpose of protecting the public interest in navigation safety, safeguarding human life at sea, and pursuing the principle of reorganization and rationalization of the entire sector, in order to protect users from the risk of breaches or service interruptions.

6.2.– Likewise, the question of constitutional legitimacy concerning the minimum tariff schedule, raised with reference to Article 117(1) of the Constitution in relation to Article 15 of the Services Directive, is—according to the state defense—unfounded: the provision of minimum tariffs, as explicitly stated in the explanatory report to Ministerial Decree No. 142 of 2023, aims to prevent excessive price-cutting and poor quality of services rendered. Nor can it be held that the provision infringes the freedom of private economic initiative when, as in the present case, the imposition of limits resulting from the setting of tariffs is not to be considered arbitrary or pursued through incongruous measures (reference is made to this Court’s Judgment No. 47 of 2018).

Moreover, in the present case, the proportionality test was duly carried out, since prior to the drafting of Legislative Decree No. 229 of November 3, 2017 (Revision and integration of Legislative Decree No. 171 of July 18, 2005, enacting the Recreational Boating Code and implementing Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003, in implementation of Article 1 of Law No. 167 of October 7, 2015), Legislative Decree No. 160 of 2020, and Ministerial Decree No. 142 of 2023, numerous consultations were held both with public bodies (entrusted with administrative and technical supervision over boating schools) and with the most representative trade associations in the sector, thus ruling out any lack of that balancing of interests which precedes the adoption of a tariff measure. Furthermore, the state defense recalls that EU case law has already established that the introduction of minimum or maximum tariffs by a Member State is compatible with EU rules on freedom of establishment, freedom to provide services, competition, and transport (reference is made to Court of Justice of the European Union, Second Section, Judgment of October 1, 1998, Case C-38/97, Autotrasporti Librandi Snc di Librandi F. & C., and Sixth Section, Judgment of October 5, 1995, Case C-96/94, Centro Servizi Spediporto, srl).

The Law in Reason

7.– By the order indicated in the heading (Reg. Ord. No. 225 of 2025), the Lazio TAR challenges the constitutional legitimacy of Article 23(1) of Legislative Decree No. 160 of 2020, insofar as it introduced Article 49-septies(21)(c) and (i) of Legislative Decree No. 171 of 2005, which provide for minimum asset capacity requirements for boating schools and the adoption of a minimum tariff schedule for training services provided to users, as conditions for the pursuit of their activity.

7.1.– The main proceedings originate from the judicial appeal brought by a company operating in the sailing and nautical sports sector, which also carries out boating school activities—meaning training activities for candidates seeking to obtain nautical licenses—seeking the annulment of the regulation set forth in Ministerial Decree No. 142 of 2023. By means of this regulation, the Minister implemented the provisions of delegated legislative decrees No. 229 of 2017 and No. 160 of 2020, through which the legislative delegation conferred by Article 1(5) of Law No. 167 of 2015 was exercised.

7.2.– The referring judge invokes, as parameters of comparison for the provisions suspected of unconstitutionality, Articles 76 and 77(1) of the Constitution, for excess of delegation, as well as, limited solely to the minimum tariff provision (Article 49-septies(21)(i) of Legislative Decree No. 171 of 2005), also Article 117(1) of the Constitution, in relation to Article 15 of the Services Directive. The restriction of tariff freedom is allegedly enacted not only outside the boundaries of the delegation but also in the absence of the necessary test of proportionality and necessity prescribed by European rules on services in the internal market.

7.3.– Enabling Act No. 167 of 2015 contains no reference whatsoever to asset capacity requirements and minimum tariff schedules for boating schools, neither in Article 1(1) concerning the delegated matters, nor in Article 1(2) containing the list of guiding principles and criteria with which the delegated legislature must comply. The only delegated matters that might bear some relevance to the provisions challenged today are, according to the referring court, the "updating of the psychophysical requirements [necessary] for obtaining the nautical license" (Article 1(1)(d)) and, among the guiding principles and criteria, the "reassessment and simplification of psychophysical requirements [...] for obtaining and renewing nautical licenses" (Article 1(2)(l)). Since the delegated legislative decrees intervened not only on the psychophysical requirements necessary for obtaining the nautical license, but also on the financial capacity requirements of boating schools and the minimum tariff schedule, the defect of excess of delegation is allegedly evident.

8.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office, raising, as preliminary procedural objections, the inadmissibility of the objections due to insufficient reasoning concerning their non-manifest unfoundedness.

In the view of the state defense, the order should have considered that, within the framework of an organic arrangement of the regulations governing recreational navigation users, the possibility for the legislature to require a minimum level of financial soundness of the economic operator is implicit, traceable to the purpose of protecting the public interest in navigation safety and the principle of reorganization and rationalization of the entire sector, in order to protect users from the risk of breaches or service interruptions.

8.1.– Similarly, the alleged violation of Article 117(1) of the Constitution, arising from the breach of Article 15 of the Services Directive, lacks—according to the state defense—adequate reasoning regarding its non-manifest unfoundedness: the order allegedly limited itself to noting the absence of the proportionality test with generic and hesitant reasoning, which moreover conflicts with the settled case law of this Court, according to which there is no constitutional obligation to state reasons in the statute or to incorporate into the statute formal declarations concerning the appropriateness and proportionality of the rules.

9.– The exceptions raised by the state defense are unfounded, because the order satisfies the admissibility requirement, in accordance with constitutional case law, pursuant to which deficient reasoning on non-manifest unfoundedness is to be found in the absence "of any illustration of the reasons why the challenged legislation would constitute a violation of the invoked constitutional parameter" (on this point, ex multis, Judgment No. 88 of 2025; in the same sense, Judgments No. 29 of 2026 and No. 110 of 2024, orders No. 127 of 2024, No. 159 of 2021, and No. 261 of 2012): an absence which cannot be found in the present case.

Any further grounds contesting the merits of the arguments put forward by the referring court do not pertain to the issue of the admissibility of the questions, but rather to their merits.

10.– On the merits, the questions of constitutional legitimacy raised with reference to Articles 76 and 77(1) of the Constitution are well-founded.

It must be noted that when the scope established by the enabling act assumes, as in the present case, extremely defined and specific contours, the Government has a very narrow margin of action: indeed, there is an inversely proportional relationship between the literal element and the functional-teleological element: the less precise and unequivocal the former, the more relevant the latter becomes (on this point, inter alia, Judgments No. 213 of 2025, No. 98, No. 96, and No. 22 of 2024, No. 150 of 2022). The aforementioned Enabling Act No. 167 of 2015 contains an analytical list of delegated matters and indicates very specific guiding principles and criteria, which strictly bind the discretion of the delegated legislature.

Of particular relevance is the absence of any reference, even indirect, to the asset requirements and tariff schedules of boating schools within the scope of the delegation: Law No. 167 of 2015 refers, in fact, only to amendments to the recreational boating code regarding the administrative regime and navigation of recreational craft, supervisory activities concerning the safety of recreational navigation and accident prevention, the revision of penalty provisions, the updating of psychophysical requirements for obtaining the nautical license, and approval procedures concerning LPG, methane, or electric-powered boats. None of these subjects includes the material scope governed by the provisions challenged today.

Nor can one arrive at different conclusions by considering the guiding principles and criteria. Consistent with the scope of the delegation, they refer to the objective of procedural simplification, but only in relation to recreational craft, the regulation of marinas, moorings, and sailing instructors, not boating schools. Nor can it be held that there is an indirect basis in letter (l) of Article 1(2) of Law No. 167 of 2015, since that guiding principle and criterion is strictly confined solely to the "reassessment and simplification of psychophysical requirements, with particular reference to visual and auditory ones, for obtaining and renewing nautical licenses and revision of the procedures for ascertaining and certifying the same." Therefore, it does not legitimize an extension of the scope of the delegation so as to include the asset requirements and tariff schedules of boating schools.

Even the argument advanced by the State Attorney General’s Office, aimed at rooting the constitutional legitimacy of the delegated provision in the general clause of "navigation safety" and the "safeguarding of human life at sea," cannot be shared. Although safety and the harmonization of the boating sector inform the entire framework of the reform, such purposes in themselves cannot widen the scope of the delegation to matters it does not contemplate.

Thus, by virtue of both a literal interpretation of the enabling act and a systematic or teleological interpretation, the provisions forming the subject of today’s questions of constitutional legitimacy fall outside the scope of the delegation and violate Articles 76 and 77(1) of the Constitution. Consequently, the constitutional illegitimacy of Article 23(1) of Legislative Decree No. 160 of 2020 must be declared, insofar as it introduced Article 49-septies(21)(c) and (i) of Legislative Decree No. 171 of 2005, for violation of Articles 76 and 77(1) of the Constitution.

11.– The aforementioned upholding of these questions renders absorption necessary for the further objection formulated, limited solely to the aforementioned letter (i), with reference to Article 117(1) of the Constitution, in relation to Article 15 of the Services Directive.

on those grounds

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 23(1) of Legislative Decree No. 160 of November 12, 2020 (Supplementary and corrective provisions to Legislative Decree No. 229 of November 3, 2017, concerning the revision and integration of Legislative Decree No. 171 of July 18, 2005, enacting the Recreational Boating Code and implementing Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003, in implementation of Article 1(5) of Law No. 167 of October 7, 2015), insofar as it introduced Article 49-septies(21)(c) and (i) of Legislative Decree No. 171 of July 18, 2005 (Recreational Boating Code and implementation of Directive 2003/44/EC, pursuant to Article 6 of Law No. 172 of July 8, 2003).

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on June 8, 2026.

Signed:

Giovanni AMOROSO, President

Francesco Saverio MARINI, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on July 21, 2026