ORDER NO. 175

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 pronounced the following

ORDER

in the proceedings concerning the constitutional legitimacy of Article 40, paragraph 6, of Legislative Decree No. 286 of 25 July 1998 (Consolidated text of provisions governing immigration regulations and norms concerning the status of foreigners), as well as of Articles 3, paragraph 1, letter a), and 8, paragraph 1, letter t-bis), of Piedmont Region Law No. 3 of 17 February 2010 (Norms on social housing), as amended by Piedmont Region Law No. 2 of 27 February 2024, entitled «Amendments to Regional Law No. 3 of 17 February 2010 (Norms on social housing) and further provisions», brought by the Ordinary Court of Turin, First Civil Section, in the proceedings pending between Associazione per gli studi giuridici sull’immigrazione (ASGI) aps, H. C., Confederazione generale italiana del lavoro (CGIL) Piemonte, Sindacato unitario nazionale inquilini e assegnatari (SUNIA) Turin, Sindacato inquilini casa e territorio (SICET) Piemonte, Piedmont Region, and Agenzia territoriale per la casa del Piemonte centrale, by an order dated 4 November 2025, registered under No. 23 of the 2026 order register and published in the Official Gazette of the Republic No. 8, 1st special series, for the year 2026.

Having regard to the appearances entered by ASGI aps and others and by the Piedmont Region, as well as the intervention appearance of the President of the Council of Ministers;

having heard Judge Rapporteur Emanuela Navarretta at the public hearing of 8 July 2026;

having heard counsel Alberto Guariso for ASGI aps and others, counsel Massimo Scisciot for the Piedmont Region, and State Counsel Daniela Canzoneri for the President of the Council of Ministers;

deliberated in the chambers on 8 July 2026.

The Facts in Brief

1.– By an order dated 4 November 2025, registered under No. 23 of the 2026 order register, the Ordinary Court of Turin, First Civil Section, raised questions as to the constitutional legitimacy of Article 40, paragraph 6, of Legislative Decree No. 286 of 25 July 1998 (Consolidated text of provisions governing immigration regulations and norms concerning the status of foreigners), as well as of Articles 3, paragraph 1, letter a), and 8, paragraph 1, letter t-bis), of Piedmont Region Law No. 3 of 17 February 2010 (Norms on social housing), as amended by Piedmont Region Law No. 2 of 27 February 2024, entitled «Amendments to Regional Law No. 3 of 17 February 2010 (Norms on social housing) and further provisions», to the extent that they make access to public residential housing (hereinafter also: PRH) for citizens of non-European Union States holding a regular two-year residence permit conditional upon the performance of regular employment or self-employment.

The questions concerning Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 and Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010 are referred with reference to Articles 3 and 117, first paragraph, of the Constitution, the latter in relation to Article 12, paragraph 1, letter g), of Directive (EU) 2011/98 of the European Parliament and of the Council of 13 December 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 legally residing in a Member State, as well as Article 34 of the Charter of Fundamental Rights of the European Union.

Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010 alone is also challenged for violation of Article 117, first paragraph, of the Constitution, in relation to Article 11, paragraph 1, letter f), of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, to the extent that the performance of a work activity would be required of the latter as well.

Finally, the referring Court considers that Article 8, paragraph 1, letter t-bis), of the challenged regional law conflicts with Article 3 of the Constitution to the extent that it allows additional points to be awarded to applicants who reside, or have resided continuously, in the Piedmont territory for at least fifteen, twenty, or twenty-five years.

2.– The aforementioned questions were raised within the context of anti-discrimination proceedings brought by Associazione per gli studi giuridici sull’immigrazione (ASGI) aps, H. C., Confederazione generale italiana del lavoro (CGIL) Piemonte, Sindacato unitario nazionale inquilini e assegnatari (SUNIA) Turin, and Sindacato inquilini casa e territorio (SICET) Piemonte against the Piedmont Region and the Agenzia territoriale per la casa (ATC) of Central Piedmont.

In particular, the referring judge states that they are called upon to rule, pursuant to Article 28 of Legislative Decree No. 150 of 1 September 2011 (Supplementary provisions to the code of civil procedure concerning the reduction and simplification of cognitive civil proceedings, pursuant to Article 54 of Law No. 69 of 18 June 2009), on the discriminatory nature of the conduct engaged in by the Piedmont Region.

Such conduct consists in having adopted: i) Decree of the President of the Regional Government No. 9/R of 4 October 2011, entitled «Regulations of the call for applications and ranking list, in implementation of Article 5, paragraph 9, of Regional Law No. 3 of 17 February 2010 (Norms on social housing)», which incorporates the requirements referred to in Article 3, paragraph 1, of Piedmont Regional Law No. 3 of 2010, which include the performance of regular employment or self-employment pursuant to Article 40, paragraph 6, of Legislative Decree No. 286 of 1998; ii) Decree of the President of the Regional Government No. 10/R of 4 October 2011, entitled «Regulations on points, in implementation of Article 8, paragraph 1, of Regional Law No. 3 of 17 February 2010 (Norms on social housing)», as amended by Decree of the President of the Regional Government No. 1/R of 8 April 2024, entitled «Amendments to Regional Regulation No. 10/R of 4 October 2011 (Regulations on points in implementation of Article 8, paragraph 1, of Regional Law No. 3 of 17 February 2010 (Norms on social housing))», which limits admission to the ranking list to non-EU citizens who perform a work activity and which mandates, in the calls for applications for public residential housing, the application of points tied to residency in the Region, awarding five points to residents of at least twenty-five years, four points to residents of at least twenty years, and three points to residents of at least fifteen years.

The Court of Turin further specifies that the main proceedings also concern the discriminatory nature of the conduct engaged in by the ATC of Central Piedmont. The latter, acting through the housing assignment commissions, proceeded to draw up the ranking lists for open calls based on the requirements and points indicated in the challenged regional regulations and excluded from the already established ranking lists non-EU citizens lacking the requirement of currently engaging in subordinate employment or self-employment.

The applicants in the main proceedings, according to the referring judge, requested that the Piedmont Region be ordered to amend regional regulations No. 9/R and No. 10/R of 2011, correct the ranking lists formed in application of the contested requirements, and remove exclusions based on the absence of work activity.

3.– Regarding the non-manifest lack of foundation of the questions concerning the employment requirement, the Court of Turin considers, first of all, that Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 and Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010 conflict with Article 3 of the Constitution under the dual aspect of reasonableness and unequal treatment.

The referring judge reports that – according to the jurisprudence of this Court – public residential housing constitutes a social benefit intended to meet the housing needs of economically weak individuals and families, such that the relevant access requirements must bear a reasonable correlation to this objective (citing, in this regard, judgments No. 1 of 2025, No. 67 of 2024, No. 44 of 2020, and No. 107 of 2018). In relation to this rationale, the current performance of regular employment would not constitute a coherent indicator, as it would end up excluding precisely those individuals who find themselves in conditions of greater economic and social fragility.

4.– The referring judge also alleges the violation of Article 117, first paragraph, of the Constitution, in relation to Articles 12, paragraph 1, letter g), of Directive 2011/98/EU and 34 of the CFRUE.

The judge believes, in fact, that the directive recognizes the right of third-country workers falling within its scope to equal treatment with EU citizens as regards access to goods and services made available to the public, including housing procurement procedures.

Citing the jurisprudence of the Court of Justice of the European Union and judgment No. 54 of 2022 of this Court, the referring Court emphasizes that equal treatment constitutes the general rule, whereas derogations provided for by European Union law must be interpreted restrictively.

In any event, according to the referring judge, it is necessary for Member States to unequivocally express their intention to limit the application of equal treatment (citing, in this regard, the judgments of the Court of Justice of 25 November 2020, Case C-302/19, Istituto nazionale della previdenza sociale, paragraph 27 [recte: 26], and of 21 June 2017, Case C-449/16, Kerly Del Rosario Martinez Silva, paragraph 29). The burden of expressly declaring any derogations during the transposition activity arises – according to the referring judge – from the system of the directive considered as a whole and from the objectives inspiring it. Such a burden would be functional not only to safeguarding the effet utile of the directive, but also to the necessary transparency during the transposition phase, characterized by the constant dialogue of Member States with the Commission and by the «notification of their transposition measures with one or more documents intended to explain the relationship between the components of a directive and the corresponding parts of national transposition instruments» (recital 32 of Directive 2011/98/EU).

According to the referring judge, such an unequivocal manifestation of the intent to exercise the derogation cannot be found in the challenged legislation.

5.– A further question of constitutional legitimacy concerns third-country nationals who hold an EU long-term residence permit.

The Court doubts the constitutional legitimacy of Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010 to the extent that, by cross-referencing Article 40, paragraph 6, of Legislative Decree No. 286 of 1998, it subjects such foreigners as well to the requirement of performing regular work activity. According to the referring judge, such an interpretation would be incompatible with Article 117, first paragraph, of the Constitution, in relation to Article 11, paragraph 1, letter f), of Directive 2003/109/EC, which grants long-term residents the same treatment as nationals regarding access to goods and services made available to the public and housing procurement procedures. The regional provision would ultimately extend to long-term residents a limitation which, within the system of the consolidated immigration text and Union law, cannot operate against them.

6.– Finally, the Court of Turin challenges Article 8, paragraph 1, letter t-bis), of Piedmont Regional Law No. 3 of 2010, which allows additional points to be awarded to applicants who have resided or reside continuously in the regional territory for at least fifteen, twenty, or twenty-five years.

The referring judge reports that the regional regulations on points, as amended in 2024, award three, four, and five points respectively based on the duration of residence or previous continuous residence in the Piedmont territory. Such a criterion would be unreasonable because it values the mere duration of territorial rooting without connecting it either to the duration of housing need or to seniority of permanence on the ranking list.

7.– The President of the Council of Ministers, represented and defended by the State Attorney General’s Office, intervened in the proceedings and requested that the questions be declared inadmissible or, in any event, unfounded.

7.1.– As a preliminary matter, the State defense excepted a lack of relevance, arguing that the referring judge could have resolved the dispute by non-application of the domestic legislation allegedly incompatible with Union law. It also contested the standing of the collective applicant bodies and complained of an incomplete reconstruction of the regulatory framework.

7.2.– On the merits, the State Attorney General’s Office highlighted how Article 12, paragraph 2, letter d), of Directive 2011/98/EU, when referring to access to goods and services and housing procurement procedures, expressly allows Member States to limit equal treatment to third-country workers performing a work activity, restricting access to housing assistance.

The derogatory faculty disciplined by the directive would therefore allow equal treatment in the specific housing sector to be reserved for those effectively participating in the labor market. Consequently, Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 would constitute a legitimate exercise of this faculty, as it allows access to public residential housing to be made conditional upon the performance of regular subordinate or self-employment.

According to the State defense, the legislation reflects the structure and purposes of the directive, which, in recognizing a minimum common core of rights for third-country nationals not yet holding the more favorable status of long-term resident, links equal treatment to regular stay and integration into the labor market, allowing its gradual realization in specific sectors.

The employment requirement would also express an objective criterion of rooting and stability of social and economic integration, reasonably usable for distributing the scarce resource constituted by public residential housing.

The reference to the regularity of work activity would, on the other hand, be consistent with the EU objective of combating the exploitation of third-country workers and unfair competition stemming from irregular work.

The State Attorney General’s Office further excludes that the statements made in judgment No. 54 of 2022 of this Court regarding the failure to exercise the derogatory faculty, upheld in relation to benefits connected to maternity and birth, can be automatically extended to housing assistance.

7.3.– In addition, the State defense asserts that Article 3 of the Constitution cannot be employed to neutralize a derogation expressly permitted by Union law, without prejudice to the possibility for the national legislature to adopt more favorable provisions pursuant to Article 13, paragraph 2, of Directive 2011/98/EU.

7.4.– Lastly, according to the State Attorney General’s Office, the reasonableness of the system is confirmed by the circumstance that regularly staying third-country nationals lacking work activity are not left without housing protection, as they can access temporary measures and social housing provided for by paragraphs 1 to 4 of the same Article 40 of Legislative Decree No. 286 of 1998.

8.– The Piedmont Region entered an appearance, requesting that the questions be declared inadmissible or unfounded.

According to the regional defense, Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010 merely transposes the requirement provided for by the state discipline, which would be applicable to long-term residents as well.

As regards Article 8, paragraph 1, letter t-bis), of the aforementioned law, the Piedmont Region notes that the provision of points for prolonged residence cannot be considered constitutionally illegitimate per se, the concrete determination of the points being left to the regional regulation.

9.– Finally, ASGI aps, CGIL Piemonte, SUNIA Turin, and SICET Piemonte also entered an appearance, requesting that the questions be upheld.

The aforementioned associations exclude that the Italian State validly availed itself of the derogating faculty provided for by Article 12, paragraph 2, letter d), of Directive 2011/98/EU. In their view, limiting the rule of equal treatment requires an express, clear, and unequivocal manifestation of state intent made during transposition. This could neither be deduced from the maintenance of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998, which predates the directive, nor from the references contained in the explanatory report and other preparatory acts of Legislative Decree No. 40 of 4 March 2014 (Implementation of Directive 2011/98/EU 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 legally residing in a Member State), as they were not translated into a specific regulatory provision.

The same parties also reiterated the unreasonableness of the requirement of currently engaging in a work activity, as it is inconsistent with the function of public residential housing and apt to exclude individuals in conditions of greater need.

Lastly, they argued the constitutional illegitimacy of the rules concerning the awarding of additional points linked to long-term residence, as a criterion that tends to value an element entirely disconnected from housing need.

10.– Prior to the public hearing, the Piedmont Region and the private parties filed illustrative briefs, insisting on their respective conclusions.

Conclusions on Points of Law

11.– By the order indicated in the heading and registered under No. 23 ord. reg. of 2026, the Court of Turin, First Civil Section, raised questions as to the constitutional legitimacy of Articles 40, paragraph 6, of Legislative Decree No. 286 of 1998, and 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010, as amended by Article 2, paragraph 1, of Piedmont Regional Law No. 2 of 2024, with reference to Articles 3 and 117, first paragraph, of the Constitution, the latter in relation to Articles 12, paragraph 1, letter g), of Directive 2011/98/EU and 34 of the CFRUE, to the extent that they make access to PRH housing for citizens of non-European Union States holding a regular two-year residence permit conditional upon the performance of regular subordinate or self-employment.

The aforementioned regional provision is also challenged, with reference to Article 117, first paragraph, of the Constitution, regarding Article 11, paragraph 1, letter f), of Directive 2003/109/EC, to the extent that – according to the referring judge – the performance of a work activity is required of long-term residents as well.

Finally, the Court of Turin considers Article 8, paragraph 1, letter t-bis), of the same regional law to conflict with Article 3 of the Constitution, to the extent that it allows additional points to be awarded to housing applicants who reside, or have resided continuously, in the Piedmont territory for at least fifteen, twenty, or twenty-five years.

12.– This Court deems it preliminary to examine the questions raised regarding Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 and Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010, with reference to Article 117, first paragraph, of the Constitution, in relation to Article 12, paragraph 1, letter g), of Directive 2011/98/EU, reserving the subsequent examination of any other question, including procedural ones.

Indeed, the Court deems it necessary to ascertain beforehand whether the rule imposing equal treatment applies within the Italian legal order, pursuant to the aforementioned Article 12, paragraph 1, letter g), of Directive 2011/98/EU, or whether the two challenged domestic provisions are to be correlated with a correct exercise of the derogating faculty provided for by Article 12, paragraph 2, letter d), of the same directive.

13.– Article 12, paragraph 1, letter g), of Directive 2011/98/EU establishes that «[t]hird-country workers referred to in Article 3(1)(b) and (c) shall enjoy equal treatment with nationals of the Member State where they reside as regards: [...] g) access to goods and services and public supply made available to the public including procedures for obtaining housing as provided for by national law, without prejudice to the freedom of contract in accordance with Union and national law».

Such equal treatment concerns both third-country citizens admitted to a Member State for employment purposes pursuant to Article 3, paragraph 1, letter b), of Directive 2011/98/EU, and those admitted for purposes other than work pursuant to subsequent letter c), provided they are authorized to work (to this effect, see also recital 20 of the aforementioned directive).

This was reaffirmed by the Court of Justice of the European Union itself, which emphasized that equal treatment is not restricted solely to holders of a single work permit, but extends also to holders of a residence permit for purposes other than work, provided they are authorized to work in the host Member State (Court of Justice, Grand Chamber, judgment of 2 September 2021, Case C-350/20, O.D. and Others, paragraphs 45, 46, and 50, as well as, subsequently, First Chamber, judgment of 5 March 2026, Case C-151/24, Luevi; judgment No. 54 of 2022 of this Court).

14.– Alongside the equal treatment set forth in Article 12, paragraph 1, letter g), of Directive 2011/98/EU within the subjective perimeter highlighted above, the subsequent paragraph 2, letter d), of the same Article 12 recognizes the faculty of Member States to derogate from it «(i) by limiting its application to third-country workers who are in employment; (ii) by restricting access to housing assistance».

14.1.– Regarding the exercise of this derogating faculty, the jurisprudence of the Court of Justice has provided various interpretive clarifications.

First of all, it specified that, since equal treatment is the general rule, Member States may introduce derogations, but these must be «interpreted [...] restrictively» (Fifth Chamber, judgment of 25 November 2020, Case C-302/19, Istituto nazionale della previdenza sociale, paragraph 26, as well as Grand Chamber, judgment of 24 April 2012, Case C-571/10, Servet Kamberaj, paragraph 86, referred to by Seventh Chamber, judgment of 21 June 2017, Case C-449/16, Kerly Del Rosario Martinez Silva, paragraph 29; Second Chamber, judgment of 4 March 2010, Case C-578/08, Rhimou Chakroun, paragraph 43).

In addition, it emphasized that derogations may only be invoked if the competent authorities of the Member State have «clearly expressed the intention to make use» of them (Kerly Del Rosario Martinez Silva judgment, paragraph 29; Servet Kamberaj judgment, paragraphs 86 and 87).

Finally, it excluded that derogatory value can be attributed to «provisions adopted [...] before the transposition into domestic law of the aforesaid directive [since such provisions] cannot be regarded as establishing the limitations on the right to equal treatment which Member States have the option of introducing pursuant to that directive» (Kerly Del Rosario Martinez Silva judgment, paragraph 30).

14.2.– In line with the aforementioned criteria, this Court has also emphasized the need for the Member State to unequivocally express its intention to derogate from the general rule of equal treatment and, in a case concerning birth and maternity allowances, held that there is a burden to expressly declare the derogatory intent during the transposition activity, to safeguard both the effet utile of the directive and transparency in the transposition phase (judgment No. 54 of 2022, point 9.4.1. of The Law in Brief).

15.– Having stated this, it is necessary to examine the national regulatory framework, within which the challenged Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 is located – also cross-referenced by Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010 – which the Court of Turin considers to be in conflict with the rule of equal treatment under Article 12, paragraph 1, letter g), of Directive 2011/98/EU (infra, points 16 and 17).

Subsequently, it is necessary to analyze the implementing phase of Directive 2011/98/EU and its relationship with the challenged state provision, which has a derogatory content with respect to equal treatment, but appears consistent with what is permitted by Article 12, paragraph 2, letter d), of Directive 2011/98/EU (infra, points 18, 19, 19.1., 19.2., and 19.3.).

Finally, the interpretive doubts concerning the exercise of the derogatory faculty under Article 12, paragraph 2, letter d), of Directive 2011/98/EU, which the national case gives rise to and which this Court deems necessary to submit to the Court of Justice, must be highlighted (infra, points 20 and 21).

16.– Article 40 of Legislative Decree No. 286 of 1998 consists of six paragraphs.

The first four govern reception centers and social housing, whether collective or private, intended to meet the immediate and transitional needs of foreigners regularly staying for reasons other than tourism, while awaiting the procurement of ordinary housing.

Paragraph 6 concerns instead access to public residential housing and brokerage services possibly set up by regions or local authorities to facilitate access to housing leases and subsidized credit regarding housing, recovery, purchase, and leasing of the primary dwelling.

The text currently in force of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 is the result of the amendment introduced by Article 27, paragraph 1, letter d), of Law No. 189 of 30 July 2002 (Amendments to immigration and asylum legislation).

In its original version, the provision established that «[f]oreigners holding a residence card and regularly staying foreigners who are registered on employment placement lists or who engage in regular subordinate or self-employment have the right to access, on equal terms with Italian citizens, public residential housing, brokerage services of social agencies possibly set up by each Region or by local authorities to facilitate access to housing leases and subsidized credit regarding housing, recovery, purchase, and leasing of the primary dwelling».

The 2002 amendment replaced paragraph 6, adding the requirement of at least a two-year duration of the residence permit and eliminating the alternative of registration on employment placement lists.

The current text therefore provides that «[f]oreigners holding a residence card and regularly staying foreigners who hold a residence permit of at least two years and who engage in regular subordinate or self-employment have the right to access, on equal terms with Italian citizens, public residential housing and brokerage services of social agencies possibly set up by each region or by local authorities to facilitate access to housing leases and subsidized credit regarding housing, recovery, purchase, and leasing of the primary dwelling».

17.– Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 was also cross-referenced by the challenged Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010, following the amendments introduced by Article 2, paragraph 1, of Piedmont Regional Law No. 2 of 2024.

Prior to this intervention, the regional discipline allowed access to public residential housing for citizens of States not belonging to the European Union, provided they were regularly staying in Italy.

Piedmont Regional Law No. 2 of 2024, in replacing the challenged Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010, provided instead – in addition to the requirement of the non-EU citizen being «regularly resident in Italy pursuant to current immigration regulations» – the requirement of the necessary performance of «regular subordinate employment or self-employment, pursuant to Article 40, paragraph 6» of Legislative Decree No. 286 of 1998.

The regional discipline also specifies that all requirements demanded by Article 3, paragraph 1 – including therefore those mentioned above – must subsist not only at the time of assignment, but also at the time of executing the agreement and subsequently, under penalty of annulment of the assignment itself (Articles 3, paragraph 4, and 16, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010).

18.– Comparing now the content of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 (as well as the homologous Article 3, paragraph 1, letter a), of Piedmont Regional Law No. 3 of 2010) with the rule on equal treatment set forth in Article 12, paragraph 1, letter g), of Directive 2011/98/EU, two aspects of differentiation emerge.

First, national legislation requires the requirement of holding a residence permit of «at least two years»; furthermore, it presupposes the effective performance of subordinate or self-employment, in lieu of the mere holding of a permit authorizing the performance of work activity, as required by Article 12, paragraph 1, letter g), of Directive 2011/98/EU.

Nevertheless, as already highlighted above, Article 12, paragraph 2, letter d), points (i) and (ii), of Directive 2011/98/EU allows equal treatment regarding housing access to be limited, restricting it «to third-country workers who are in employment», provided that Member States have correctly exercised this derogating faculty.

19.– It is therefore necessary to examine the implementing discipline of Directive 2011/98/EU and its coordination with Article 40, paragraph 6, of Legislative Decree No. 286 of 1998.

19.1.– The aforementioned directive was transposed by Legislative Decree No. 40 of 2014.

The preamble of that legislative decree contains the following wording: «[h]aving regard to the consolidated text of provisions governing immigration regulations and norms concerning the status of foreigners, pursuant to Legislative Decree No. 286 of 25 July 1998, and subsequent amendments».

This is followed by the normative text of Legislative Decree No. 40 of 2014, which consists of two articles: Article 1, which introduces amendments precisely to Legislative Decree No. 286 of 1998, without however mentioning Article 40, paragraph 6, the prescriptive content of which thus remains unchanged, and Article 2, which repeals provisions of other normative texts.

Within the framework of the procedure that led to the aforementioned legislative decree, the explanatory report to the relative draft explains the relationship between the pre-existing discipline under Legislative Decree No. 286 of 1998 and what is provided by Directive 2011/98/EU. In particular, with reference to equal treatment under Article 12 of the directive, it specifies that as regards «access to public services, equalization in the domestic legal order concerns all foreign citizens (Art. 2, paragraph 5, Legislative Decree No. 286/1998). Access to housing, on the other hand, is limited to foreign citizens holding a residence permit of at least two years who engage in regular subordinate employment (Art. 40, paragraph 6, Legislative Decree No. 286/1998); the current provision is consistent with the European directive (Art. 12, paragraph 2, letter d) -ii) which allows Member States to limit access compared to the broader pool of foreign workers who are addressees of the directive».

Correlatively, the concordance table annexed to the report indicated, as national provisions corresponding to Article 12, paragraph 1, letter g), of the directive, Articles 2, paragraph 5, and 40, paragraph 6, of Legislative Decree No. 286 of 1998, namely the provision establishing equal treatment and the one contemplating the derogation.

In the same sense is the opinion approved by the XIV Permanent Committee (European Union Policies) of the Chamber of Deputies on the draft legislative decree (A.G. 61), according to which Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 provides requirements that «fall within the powers of "derogation” permitted by Art. 12, c. 2, letter d) sub i), of Directive 2011/98» (Parliamentary Acts, 17th Legislature, Bulletin of Parliamentary Committees and Commissions, 21 January 2014).

19.2.– The aforementioned manner of implementing Directive 2011/98/EU generated an interpretive conflict within the Italian legal order concerning the correct exercise of the derogatory faculty by the national legislature.

According to a first line of interpretation, the state intent to avail itself of the limitation faculty can be deduced from the set of elements accompanying transposition and, in particular: the choice to keep the pre-existing provision unchanged; the cross-reference to the consolidated immigration text in the preamble; the explanatory report, in which the prescriptive content of Article 40, paragraph 6, was considered consistent with Article 12, paragraph 2, letter d), of Directive 2011/98/EU (to this orientation belongs the referral order to this Court originating from the Ordinary Court of Milan, dated 16 July 2025, registered under No. 224 of the 2025 order register).

According to a different orientation, on the other hand, the derogatory faculty was not correctly exercised by the Italian State, since the mere maintenance of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998, which predates the implementation of the directive, and the generic cross-reference to the consolidated immigration text in the preamble of Legislative Decree No. 40 of 2014 would not be sufficient to constitute the clear exercise of derogation required by Union law (in this sense have ruled: Court of Appeal of Venice, Second Civil Section, judgment of 18 February 2026; Ordinary Court of Cremona, Civil Section, judgment of 28 November 2024; Ordinary Court of Bologna, First Civil Section, judgment of 22 July 2024, which disapplied the domestic norm).

19.3.– Faced with this interpretive conflict, this Court deems it appropriate, first of all, to emphasize the interpretive function that, within the Italian legal order, the explanatory report to the draft legislative decree plays in reconstructing what is objectively inferable from the text of the decree itself.

The report is a document which, although devoid of normative value, nevertheless emanates from the Government and «helps to fully understand the structure of the act and the content of the individual articles of which it is composed» (Directive of the President of the Council of Ministers of 16 February 2018, entitled «Approval of the Guide to the analysis and verification of the impact of regulation, in implementation of Decree of the President of the Council of Ministers No. 169 of 15 September 2017», Annex 1, point 4.1.). Furthermore, it serves to «clearly indicate how the new provisions being introduced intervene on existing legislation, in order to facilitate the reading of the new rules and avoid possible interpretive doubts» (Directive of the President of the Council of Ministers of 26 February 2009, entitled «Instruction of Government regulatory acts», point 2.1.1.).

This Court itself has repeatedly made use of the reference to this document as proof of the correct identification of meanings that the text of the provision, in its semantic valence, permitted to be deduced, taking into account the systematic reference context and coordination with other interpretive canons (judgments No. 139 and No. 81 of 2025, No. 175 of 2022).

In the same terms, the report has also been valued by legitimacy jurisprudence (recently, Court of Cassation, Joint Criminal Sections, judgment of 25 May-21 September 2023, No. 38481), in the wake of what was affirmed more generally for all preparatory works (ex plurimis, Court of Cassation, Labour Section, order of 17 November 2021, No. 35064 and judgment of 3 March 2021, No. 5821).

Well then, on the basis of such premises, it can be considered that the explanatory report to the draft legislative decree with the connected concordance table, in clarifying that the maintenance of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 stems from its consistency with the derogating faculty granted by Article 12, paragraph 2, letter d), of Directive 2011/98/EU, brings to light what underlies Legislative Decree No. 40 of 2014. In essence, it makes clear the intent of the legislature, understood in an objective sense (i.e., the voluntas legis, pursuant to Article 12 of the preliminary provisions to the civil code), oriented towards the exercise of the derogating faculty.

Nevertheless, this is precisely an intentio legis that acquires clarity thanks above all to what is expressed in the explanatory report to the draft legislative decree with the correlated concordance table, as well as in the opinion of the XIV Permanent Committee (European Union Policies) of the Chamber of Deputies.

From the EUR-Lex portal, in the section concerning transposition by the Italian Republic, Legislative Decree No. 40 of 2014 appears to have been transmitted to the European Commission.

20.– Having thus outlined the national regulatory framework, this Court therefore considers that certain interpretive doubts remain, from the perspective of European law, regarding Article 12, paragraph 2, letter d), of Directive 2011/98/EU, which are not easily overcome, as they find no immediate solution in previous rulings of the Court of Justice.

First of all, while it is true that the latter excluded the possibility of attributing derogatory value to «provisions adopted [...] before the transposition into domestic law of the [...] directive» (Kerly Del Rosario Martinez Silva judgment, paragraph 30), it must nevertheless be noted that, in that case, it was the referring court itself which argued that «the Italian Republic did [not] intend to avail itself of the option, provided for by that provision, to limit equal treatment by relying on Article 12(2)(b) of Directive 2011/98, since it did [not] manifest such an intention in any way» (still in paragraph 30).

Conversely, in the present case, there is not only a pre-existing provision – Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 – but also its confirmation which can be inferred from the choices of the legislature, which, in transposing Directive 2011/98/EU with Legislative Decree No. 40 of 2014, intervened on Legislative Decree No. 286 of 1998 without affecting that rule precisely because it considered it consistent with the derogating faculty under Article 12, paragraph 2, letter d), of the aforementioned directive, as clarified by the explanatory report to the draft legislative decree and the other documents mentioned above (supra, point 19.3.).

On the other hand, this Court is not unaware that, in relation to Article 12, paragraph 2, letter d), of Directive 2011/98/EU, the Court of Justice requires a «clear expression of the intention to make use of the derogation» (Istituto nazionale della previdenza sociale judgment, paragraph 26; Kerly Del Rosario Martinez Silva judgment, paragraph 29; Servet Kamberaj judgment, paragraphs 86 and 87).

Well then, if from the perspective of the Italian legal order it can be considered that, precisely in light of what is expressed in the explanatory report to the draft legislative decree and the other texts mentioned above, the intent of the legislature to exercise the derogation appears clear, it is nevertheless necessary to ask whether, from the perspective of European law, an implementation of the derogating faculty that is not formulated expressly in the normative text implementing the directive falls within the notion of «clear expression of the intention to make use of the derogation» required by the Court of Justice.

Such a doubt regarding the admissibility of a non-textual exercise of the derogating faculty under Article 12, paragraph 2, letter d), of Directive 2011/98/EU does not appear, moreover, to be dispelled in light of the judgment of the Fifth Chamber of 10 June 2021, Case C-94/20, Land Oberösterreich, concerning the different derogating faculty provided for by Article 11 of Directive 2003/109/EC. In that ruling, the Court of Justice, on the one hand, notes that the referring court, after citing the report of a committee of the parliament of the Land of Upper Austria, considered «that that committee thereby expressed the intention of the parliament of the Land of Upper Austria to make use of the option to apply the derogation provided for by that provision» (paragraph 22), reiterating, at the outset of the examination of the first preliminary question, «that the referring court proceeds on the premise [...] that the authorities competent for the implementation of that directive clearly stated that they intended to make use of the derogation provided for in Article 11(4) of that directive, which it is for that court to verify» (paragraph 34). On the other hand, however, the Court of Justice does not express itself on this manner of exercising the derogating faculty, which was not the subject of the preliminary question, but focuses its attention on the very content of the derogation. Indeed, it concludes by observing that, «even if use has been made of the option to apply the derogation provided for in Article 11(4) of that directive» (paragraph 49), the interpretation of the derogating provision would in any event preclude what is established by Austrian law.

Ultimately, uncertainty regarding Article 12, paragraph 2, letter d), of Directive 2011/98/EU arises because the scope of the requirement of a «clear expression of the intention to make use of the derogation», established by the Court of Justice, could have different implications depending on the weight that, interpretatively, must be attributed: to the margin of discretion of national legislatures in exercising the faculty to derogate from equal treatment; to the obligation of clarity towards the subjects to whom the directive grants rights; to compliance with sincere cooperation under Article 4, paragraph 3, of the Treaty on European Union, which reverberates on the duty to communicate implementing measures, as well as other measures that Member States adopt «in the field governed by [...] this directive» (Article 16, paragraph 2, of Directive 2011/98/EU). In this regard, recital 32 of Directive 2011/98/EU provides that «[i]n accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified».

Faced therefore with the many requirements involved and the varying significance to be attributed to each of them in interpreting Article 12, paragraph 2, letter d), of Directive 2011/98/EU, the latter could abstractly embrace different constructions.

In particular, with reference to the present case, it could be interpreted as meaning that the intention to avail oneself of the derogating faculty is "clear” only if formulated expressly in the normative text implementing the directive, or as meaning that a clear derogatory intent may also be inferred interpretatively thanks to what is expressly clarified in the explanatory report of the legislative decree and, more generally, in the preparatory works of the normative text.

21.– In light therefore of the various interpretive options that abstractly arise, this Court, in homage to the principle of sincere cooperation under Article 4, paragraph 3, of the TEU (most recently, orders No. 147 of 2026 and No. 161 of 2024) and by reason of the exclusive competence of the Court of Justice to provide the definitive interpretation of Union law (Court of Justice, Third Chamber, judgment of 12 February 2026, Case C-56/25, Petlichev, paragraph 56; Grand Chamber, judgment of 18 December 2025, Case C-448/23, European Commission v Poland, paragraphs 206 and 213; Grand Chamber, judgment of 22 February 2022, Case C-430/21, RS, paragraph 72), deems it appropriate to submit a request for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union.

It therefore stays these proceedings in order to submit the following preliminary question to the Court of Justice:

– whether Article 12, paragraph 2, letter d), of Directive 2011/98/EU must be interpreted as meaning that the intention to derogate from equal treatment must be formulated expressly in the text of the discipline implementing the directive, or as meaning that a clear derogatory intent may also be inferred thanks to what is expressly clarified in the explanatory report of the legislative decree and, more generally, in the preparatory works of the normative text.

on those grounds

THE CONSTITUTIONAL COURT

1) orders that the following preliminary question be submitted, pursuant to Article 267 of the Treaty on the Functioning of the European Union, to the Court of Justice of the European Union:

– whether Article 12, paragraph 2, letter d), of Directive (EU) 2011/98 of the European Parliament and of the Council of 13 December 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 legally residing in a Member State must be interpreted as meaning that the intention to derogate from equal treatment must be formulated expressly in the text of the discipline implementing the directive, or as meaning that a clear derogatory intent may also be inferred thanks to what is expressly clarified in the explanatory report of the legislative decree and, more generally, in the preparatory works of the normative text;

2) stays these proceedings until the aforementioned preliminary question is determined;

3) orders the transmission of a copy of this order, together with the case files, to the Registry of the Court of Justice of the European Union.

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

Signed:

Giovanni AMOROSO, President

Emanuela NAVARRETTA, Author

Roberto MILANA, Director of the Registry

Filed in the Registry on 22 October 2026

 

The anonymized version conforms in its text to the original