ORDER NO. 176
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
ORDER
in the proceedings concerning the constitutional legitimacy of Article 40, paragraph 6, of Legislative Decree No. 286 of July 25, 1998 (Consolidated text of provisions concerning the regulation of immigration and rules on the status of foreigners) and of Article 22, paragraph 1, letter a), of Law of the Lombardy Region No. 16 of July 8, 2016 (Regional regulations on housing services), brought by the Ordinary Court of Milan, First Civil Section, single-judge bench, in the proceedings between S.F.F. H., E. S., Associazione degli studi giuridici sull’immigrazione (ASGI) aps, Avvocati per niente (APN) onlus, Associazione NAGA-Organizzazione di volontariato per l’assistenza socio-sanitaria e per i diritti di cittadini stranieri, rom e sinti (NAGA) odv, Sindacato inquilini casa e territorio (SICET) Lombardia, and Regione Lombardia and Azienda lombarda edilizia residenziale (ALER) Milano, by means of the order of July 16, 2025, registered under No. 224 of the 2025 register of orders and published in the Official Journal of the Republic No. 48, 1st special series, for the year 2025.
Having regard to the appearances entered by the parties, as well as the intervention brief of the President of the Council of Ministers;
having heard in the public hearing of May 19, 2026 the Judge Rapporteur Emanuela Navarretta;
having heard counsel Alberto Guariso for ASGI aps and the other private parties appearing, counsel Alessandra Zimmitti for the Lombardy Region, as well as State Counsel Paolo Gentili for the President of the Council of Ministers;
deliberated in chambers on July 8, 2026.
Whereas, by order of July 16, 2025 (reg. ord. No. 224 of 2025), the Ordinary Court of Milan, First Civil Section, single-judge bench, raised, with reference to Article 3, first and second paragraphs, of the Constitution, questions of constitutional legitimacy concerning Article 40, paragraph 6, of Legislative Decree No. 286 of July 25, 1998 (Consolidated text of provisions concerning the regulation of immigration and rules on the status of foreigners) and Article 22, paragraph 1, letter a), of the Law of the Lombardy Region No. 16 of July 8, 2016 (Regional regulations on housing services), insofar as they make access to public residential housing for legally resident foreigners holding a residence permit of at least two years conditional upon the pursuit of a regular activity as an employed or self-employed worker;
whereas the referring judge states that he must rule on a collective anti-discrimination action brought against the Lombardy Region and Azienda lombarda edilizia residenziale (ALER) Milano by Associazione degli studi giuridici sull’immigrazione (ASGI) aps, Avvocati per niente (APN) onlus, Associazione NAGA-Organizzazione di volontariato per l’assistenza sociosanitaria e per i diritti di cittadini stranieri, rom e sinti (NAGA) odv and Sindacato inquilini casa e territorio (SICET) Lombardia, as well as on a similar individual action brought against the same respondents by S.F.F. H., who challenged her removal from the ranking list for access to public residential housing (hereinafter also: PRH), resulting from dismissal for subsequent incapacity;
whereas E. S. subsequently intervened in the same main proceedings, having also been excluded from the PRH ranking lists for failing to perform work activity in 2023, due to precarious health conditions and the presence in her household of two minor children, one of whom is autistic;
whereas, on these premises, the referring judge questions the reasonableness of the requirement of currently performing a regular work activity, deeming it to be in breach of Article 3 of the Constitution, as it lacks an adequate connection to the state of need which PRH aims to address, and is instead designed precisely to exclude individuals experiencing conditions of greater vulnerability, resulting in unequal treatment compared to Italian and European Union citizens who find themselves in the same condition of need;
whereas, as a preliminary matter, the Court of Milan reconstructs the framework arising from 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 legally residing in a Member State, taking the view that the intention of the Italian State to avail itself, pursuant to Article 12(2)(d) of Directive 2011/98/EU, of the option to limit equal treatment under Article 12(1)(g) of the same directive may be inferred from a set of elements, specifically: i) the retention of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998; ii) the reference to Legislative Decree No. 286 of 1998 in the preamble to Legislative Decree No. 4 de March 4, 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); iii) the explanatory report of the implementing measure of the directive and the relative concordance table;
whereas the Lombardy Region entered an appearance and the President of the Council of Ministers intervened, represented and defended by the State Attorney General’s Office, asking that the questions be declared inadmissible or unfounded;
whereas, furthermore, all the associations that are parties to the main proceedings, as well as E. S., who intervened in the aforementioned proceedings, also entered an appearance, putting forward arguments in support of the merits of the said questions.
Considered that, by order of July 16, 2025 (reg. ord. No. 224 of 2025), the Court of Milan, First Civil Section, single-judge bench, raised, with reference to Article 3, first and second paragraphs, of the Constitution, questions of constitutional legitimacy concerning Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 and Article 22, paragraph 1, letter a), of regional Law of Lombardy No. 16 of 2016, insofar as they make access to public residential housing for legally resident foreigners holding a residence permit of at least two years conditional upon the pursuit of a regular activity as an employed or self-employed worker;
whereas the referring judge, for the purpose of assessing the contested legislation, argued that the Italian State correctly availed itself, pursuant to Article 12(2)(d) of Directive 2011/98/EU, of the option to limit the equal treatment referred to in Article 12(1)(g) of the same directive, which would protect Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 from potential inconsistencies with Directive 2011/98/EU;
whereas, subsequent to the filing of the referral order initiating these proceedings, the Ordinary Court of Turin, First Civil Section, single-judge bench, by order registered under No. 23 of the 2026 register of orders, raised questions of constitutional legitimacy concerning, inter alia, Article 40, paragraph 6, of Legislative Decree No. 286 of 1998, as well as Article 3, paragraph 1, letter a), of the Law of the Piedmont Region No. 3 of February 17, 2010 (Rules on social housing), insofar as they make access to public residential housing for citizens of States not belonging to the European Union holding a regular two-year residence permit conditional upon the pursuit of a regular activity as an employed or self-employed worker;
whereas in the order registered as reg. ord. No. 23 of 2026, the Court of Turin – unlike the *a quo* judge in the present proceedings – took the view that the Italian legal order has not correctly exercised the exemption option and therefore questioned the compatibility of Article 40, paragraph 6, of Legislative Decree No. 286 of 1998 and Article 3, paragraph 1, letter a), of regional Law of Piedmont No. 3 of 2010 not only with Article 3 of the Constitution, but also with Article 117, first paragraph, of the Constitution, in relation to Article 12(1)(g) of Directive 2011/98/EU;
whereas, within the framework of that second set of proceedings, this Court deemed it preliminary to ascertain whether the Italian legal order has correctly exercised the exemption option provided for in Article 12(2)(d) of Directive 2011/98/EU and identified interpretative doubts concerning the requirement of a clear expression of the intention to derogate on the part of the Member State;
whereas, therefore, pursuant to Article 267 of the Treaty on the Functioning of the European Union, this Court has ordered a reference for a preliminary ruling to the Court of Justice of the European Union and the suspension of the proceedings registered as reg. ord. No. 23 of 2026, pending the determination of the preliminary question;
whereas the determination of the question referred to the Court of Justice is liable to affect these proceedings as well;
whereas, therefore, it is appropriate to postpone the present proceedings to the new docket, pending the decision of the Court of Justice of the European Union.
on these grounds
THE CONSTITUTIONAL COURT
postpones the proceedings to the new docket.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 8, 2026.
Signed:
Giovanni AMOROSO, President
Emanuela NAVARRETTA, Rapporteur
Roberto MILANA, Director of the Registry
Filed in the Registry on October 22, 2026
The anonymized version conforms in its text to the original