ORDER NO. 173
YEAR 2026
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Francesco VIGANÒ;
Judges: Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Francesco Saverio MARINI,
has pronounced the following
ORDER
in proceedings concerning the constitutionality of Article 51, paragraph 4, of Legislative Decree No. 259 of August 1, 2003 (Electronic Communications Code), brought by the Court of Cassation, Third Civil Section, in the proceedings pending between Cellnex Italia spa and Telecom Infrastructure Partners Italia srl unipersonale, by order of April 3, 2026, registered under No. 77 of the 2026 order register and published in the Official Journal of the Republic No. 20, 1st Special Series, for the year 2026.
Having regard to the appearances entered by Telecom Infrastructure Partners Italia srl unipersonale, Cellnex Italia spa, as well as the intervention brief filed by Infrastrutture Wireless Italiane (INWIT) spa;
having heard the Judge Rapporteur Antonella Sciarrone Alibrandi, at the-in-chambers session of October 19, 2026, scheduled, pursuant to Article 5, paragraph 1, of the Supplementary Rules for Proceedings Before the Constitutional Court, to rule on the admissibility of INWIT’s intervention;
deliberated in the in-chambers session of October 19, 2026.
Whereas, by order of April 3, 2026, registered under No. 77 R.O. of 2026, the Court of Cassation, Third Civil Section, raised, with reference to Articles 3 and 41 of the Constitution, questions as to the constitutional legitimacy of Article 51, paragraph 4, of Legislative Decree No. 259 of August 1, 2003 (Electronic Communications Code), to the extent that it does not provide for the application of Articles 38 and 39 of Law No. 392 of July 27, 1978 (Regulation of Urban Real Estate Leases) even when a dispositive act concerning real estate, or portions thereof, on which electronic communications network infrastructure is located, has as its object the constitution of a lesser real right, specifically usufruct or surface rights;
whereas, by a brief filed on June 5, 2026, Infrastrutture Wireless Italiane (INWIT) spa (hereinafter: INWIT) requested leave to intervene in the proceedings;
whereas the said company stated that it is a national operator in the passive infrastructure sector for electronic communications, "holding the same substantive legal position" governed by the challenged provision;
whereas, therefore, according to INWIT, the relationship between its position and the questions of constitutional legitimacy raised by the Court of Cassation is "direct, immediate, and current," given that Article 51, paragraph 4, of Legislative Decree No. 259 of 2003 governs "the same type of legal relationships of which INWIT is a party on a daily basis in the exercise of its infrastructural activities" and that, consequently, the decision requested from this Court is "destined to immediately impact the content of such relationships";
whereas, having stated the foregoing, it requested admission to intervene pursuant to the current Article 4, paragraph 3, of the Supplementary Rules for Proceedings Before the Constitutional Court;
whereas, by a memorial filed on June 24, 2026, pursuant to Article 5 of the Supplementary Rules, Cellnex Italia spa—which entered an appearance in these proceedings by a brief filed on June 3, 2026—stated that it had no opposing interest regarding the admission of INWIT’s intervention.
Considered that, pursuant to Article 5 of the Supplementary Rules, as amended by the resolution of March 12, 2026, published in the Official Journal of April 23, 2026, No. 94, and which entered into force on May 8, 2026, this Court must rule in chambers on the admissibility of the intervention;
that, with regard to the assessment of the prerequisites for the admissibility of the intervention, the new text of Article 4 of the said Supplementary Rules applies;
that the intervener is not a party to the main proceedings (*giudizio a quo*) and cannot be classified as a holder "of a qualified interest, pertaining directly and immediately to the legal relationship at issue in the proceedings," as indicated by Article 4, paragraph 3, of the Supplementary Rules, which remained substantially unchanged following the aforementioned amendments;
that, according to the settled case law of this Court, "the legal relationship at issue in the proceedings" must be understood as the one forming the subject matter of the main proceedings (*giudizio a quo*) (recently Order No. 113 of 2026), and it is not sufficient, for the admissibility of an intervention pursuant to Article 4, paragraph 3, of the Supplementary Rules, that the entity holds interests analogous to those at issue in the main proceedings (Order No. 81 of 2026);
that the legal relationship at issue in the main proceedings pertains to the right of enjoyment claimed by Cellnex Italia spa with respect to the specific roof terrace granted in usufruct to Telecom Infrastructure Partners Italia srl unipersonale and is therefore extraneous to the intervener, which holds merely an analogous substantive legal position;
that neither are the prerequisites met for the admissibility of the intervention pursuant to paragraph 4 of the aforementioned Article 4 of the Supplementary Rules, since INWIT has not demonstrated that it is a party to another proceeding, pending as of the date of publication of the referral order in the Official Journal (May 20, 2026), in which the challenged provision must be applied and in which an exception of constitutional illegitimacy concerning the same provision was raised within that deadline (Order No. 168 of 2026);
that, consequently, the intervention must be declared inadmissible.
Having regard to Articles 4 and 5 of the Supplementary Rules for Proceedings Before the Constitutional Court.
on those grounds
THE CONSTITUTIONAL COURT
declares inadmissible the intervention made in the proceedings concerning constitutional legitimacy brought by the Court of Cassation, Third Civil Section, registered under No. 77 R.O. of 2026 by Infrastrutture Wireless Italiane (INWIT) spa.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on October 19, 2026.
Signed:
Francesco VIGANÒ, President
Antonella SCIARRONE ALIBRANDI, Author
Roberto MILANA, Director of the Registry
Filed in the Registry on October 20, 2026