ORDER NO. 191
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 23-quater of Decree-Law No. 137 of 28 October 2020 (Further urgent measures regarding health protection, support for workers and businesses, justice and security, related to the COVID-19 epidemiological emergency), converted, with amendments, into Law No. 176 of 18 December 2020, brought by the Court of Audit, Joint Chambers in judicial session in a special composition, by orders dated 21, 25, 26, 27, and 28 November 2025, registered respectively under numbers 246, 248, 249, 250, and 251 of the 2025 register of orders and published in the Official Journal of the Republic, numbers 52 and 53, 1st special series, of the year 2025.
Having regard to the appearances of Ferrovienord spa, Società finanziaria di promozione della cooperazione economica con i paesi dell’est europeo-Finest spa, Autostrada regionale cispadana spa, and the Prosecutor General of the Court of Audit, as well as the intervention briefs of the President of the Council of Ministers;
having heard in chambers on 5 October 2026 the Judge Rapporteur Luca Antonini;
having deliberated in chambers on 5 October 2026.
Whereas, by five orders issued between 21 and 28 November 2025, registered under numbers 246, 248, 249, 250, and 251 of the 2025 register of orders, the Court of Audit, Joint Chambers in judicial session in a special composition, raised questions concerning the constitutional legitimacy of Article 23-quater, paragraph 2, of Decree-Law No. 137 of 28 October 2020 (Further urgent measures regarding health protection, support for workers and businesses, justice and security, related to the COVID-19 epidemiological emergency), converted, with amendments, into Law No. 176 of 18 December 2020;
whereas the censured provision amended Article 11, paragraph 6, letter b), of Annex 1 to Legislative Decree No. 174 of 26 August 2016 (Code of Public Accounting Justice, adopted pursuant to Article 20 of Law No. 124 of 7 August 2015), by adding, after the words «carried out by ISTAT», the following: «, solely for the purpose of applying national legislation on the containment of public spending», leading to the current wording of the aforementioned Article 11, which reads: «[t]he Joint Chambers in special composition, in the exercise of their exclusive jurisdiction in matters of public accounting, shall rule in a single instance on proceedings concerning: [...] b) the identification of public administrations carried out by ISTAT, solely for the purpose of applying national legislation on the containment of public spending»;
whereas the subject matter of the proceedings *a quibus* is the inclusion of the applicant entities in the lists prepared by the National Institute of Statistics (ISTAT), in certain years between 2020 and 2024, containing the identification of public administrations for the purpose of applying public finance provisions, pursuant to Article 1, paragraphs 2 and 3, of Law No. 196 of 31 December 2009 (Law on Accounting and Public Finance);
whereas, deeming the prerequisites for being classified as public administrations to be lacking, the applicants requested the partial annulment of the lists or, in the proceedings registered under No. 251 Reg. Ord. of 2025, concerning the Consortium for the Management and Expansion of the Research Network (GARR), a declaration that the current provisions on the containment of public spending are inapplicable to the applicant, following an incidental declaration of the illegitimacy of the list published in 2024;
whereas the judges *a quibus* deem the questions of constitutional legitimacy to be relevant for the adjudication of the claims brought by the applicants, given that the censured provision has limited the scope of accounting jurisdiction in matters concerning the identification of public administrations carried out by ISTAT;
whereas, with regard to non-manifest unfoundedness, the referral orders observe that the censured Article 23-quater, paragraph 2, would violate: a) Article 103, second paragraph, of the Constitution, in conjunction with Articles 81, sixth paragraph, and 97, first paragraph, of the Constitution, as well as Article 5, paragraph 1, letter a), of Constitutional Law No. 1 of 20 April 2012 (Introduction of the balanced budget principle into the Constitutional Charter), by limiting accounting jurisdiction in proceedings concerning the identification carried out by ISTAT «solely for the purpose of applying national legislation on the containment of public spending» while excluding it with regard to the European Union relevance of the ISTAT list, thereby removing from said jurisdiction a sphere of the unitary matter of accounting, in which domestic and European-law relevance profiles—upon which the former are contingent—are entirely inseparable; b) Article 3 of the Constitution, insofar as the provision, according to the interpretation provided by the Joint Civil Chambers of the Court of Cassation in judgment No. 30220 of 25 November 2024—pursuant to which jurisdiction over matters no longer reserved to the Court of Audit is attributed to the administrative judge—nevertheless produces unreasonable and illogical effects associated with the inseparable interweaving of the issues forming the subject matter of the two concurrent jurisdictions; c) Articles 24, 111, and 113 of the Constitution, insofar as it hinders access to jurisdiction and the right to judicial protection, and infringes the principle of the reasonable duration of trials, viewed from the perspective of the principle of the concentration of remedies; d) Article 117 of the Constitution, both insofar as, by limiting the jurisdiction of the Court of Audit solely to profiles inherent to national legislation on the containment of public spending, it ensures that the judicial system provides no remedy against the European Union law effects deriving from the identification act before any other judge (orders registered under numbers 246 and 251 Reg. Ord. of 2025); and because, in breach of Article 19 of the Treaty on European Union, Article 47, paragraph 2, of the Charter of Fundamental Rights of the European Union, and Articles 6 and 13 of the European Convention on Human Rights, it prevents the full effectiveness (*effet utile*) of European Union law from unfolding, since the judicial protection ensured by the accounting judge cannot satisfy the principle of the self-sufficiency of the action, according to which a qualified entity must be able to bring, through a single action, a claim aimed at preventing the application of European Union effects stemming from its listing (orders registered under numbers 248 to 250 Reg. Ord. of 2025);
whereas in the proceedings registered under No. 248 Reg. Ord. of 2025, the referring Joint Chambers also raise questions of constitutional legitimacy regarding Article 23-quater, paragraph 1, of Decree-Law No. 137 of 2020, as converted, pursuant to which: «[t]he entities indicated in list 1 annexed to this decree, as units that, according to criteria established by the European System of National and Regional Accounts in the European Union (ESA 2010), referred to in Regulation (EU) No. 549/2013 of the European Parliament and of the Council of 21 May 2013, contribute to the determination of public finance balances of the consolidated general government account, shall in any case be subject to the provisions on budget equilibrium and debt sustainability of public administrations, pursuant to and for the purposes of Articles 3 and 4 of Law No. 243 of 24 December 2012, as well as those concerning obligations to communicate data and information relevant to public finance»;
whereas, regarding relevance, the order observes that the applicant Finest spa requested the annulment of the ISTAT list published on 30 September 2020 to the extent that, in the absence of the legal prerequisites, it was included among public administrations, but that the latter «would not be satisfied by a potential favorable ruling» by the judge, because the aforementioned paragraph 1—applicable to the company as it is listed among the eight entities annexed to the decree-law, as converted, to which the provision refers—appears to have given statutory force to its status as a public administration, as evidenced by its omission from the lists published by ISTAT in the years 2021, 2022, and 2023;
whereas, therefore, the uncertainties concerning the applicant’s «legal standing» demonstrate «a current and concrete interest in a ruling on the merits [...] worthy of judicial protection»;
whereas the censured paragraph 1 would violate: a) Article 3 of the Constitution, as it constitutes a legislative measure (*legge-provvedimento*) devoid of any justificatory reason linked to specific economic or budgetary data of the entities concerned; b) Articles 24, 103, second paragraph, and 111, first and second paragraphs, of the Constitution, insofar as it affects the applicant’s right of defense, the accounting judicial function, and the principle of equality of arms, having altered the settlement of interests established by a prior judgment favorable to it; c) Articles 3 and 97 of the Constitution, since the *ex lege* attribution to eight entities of the status of public administration affects the modalities of administrative action aimed at ascertaining such a «particular status»; d) Article 117, first paragraph, of the Constitution, in relation to Article 19 TEU, Article 47 CFREU, and Articles 6 and 13 ECHR, by failing to offer «stable protection of the applicant’s right to a correct reassessment of its status as a "public administration” in accordance with the rules laid down by the ESA 2010 Regulation»;
whereas in all proceedings the President of the Council of Ministers intervened, represented and defended by the State Attorney General’s Office (*Avvocatura generale dello Stato*), requesting that the questions of constitutional legitimacy regarding paragraph 2 of Article 23-quater of Decree-Law No. 137 of 2020, as converted, be declared unfounded, without presenting defenses regarding the challenges brought against paragraph 1 of the same provision in the proceedings registered under No. 248 Reg. Ord. of 2025;
whereas the State’s defense counsel, recalling the judgment of the Court of Justice of the European Union of 13 July 2023, joined cases C-363/21 and C-364/21, Ferrovienord spa and Federazione italiana triathlon, which excluded any incompatibility with European Union law of the provision referred to in Article 23-quater, paragraph 2, maintains that the censured rule does not impair the judicial protection referred to in Articles 24 and 113 of the Constitution, because the limitation of accounting jurisdiction was followed by a re-expansion of the general jurisdiction of the administrative judge;
moreover, the latter would guarantee full protection to the entity included in the ISTAT list, without the need to also bring proceedings before the accounting judge, whose cognizance, according to the interpretation offered by the Court of Cassation, Joint Civil Chambers, in judgment No. 30220 of 2024, would have an «object that is not necessarily and exactly overlapping, as it is delimited solely to the effects of domestic rules on spending review»;
whereas the questions of constitutional legitimacy raised with reference to Articles 3, 81, 97, 103, 111, and 117 of the Constitution would also be unfounded, based on the «untenable assumption that inclusion in the ISTAT list has exclusive accounting relevance»;
whereas in all proceedings the Prosecutor General at the Court of Audit filed an «appearance-intervention brief» with substantially identical content, basing its appearance in the incidental proceedings on its status as a party to the proceedings *a quibus*, enshrined in Article 127, paragraph 2, of the Code of Public Accounting Justice, and, in the alternative, applying for intervention pursuant to Article 4, paragraph 3, of the Supplementary Norms for Proceedings before the Constitutional Court;
whereas, on the merits, the Prosecutor General, having summarized and endorsed the challenges of constitutional illegitimacy formulated by the referral orders, concluded that the questions raised are well-founded;
whereas Ferrovienord spa, Finest spa, and Autostrada regionale cispadana spa, applicants in the proceedings registered respectively under numbers 246, 248, and 251 Reg. Ord. of 2025, entered appearances, requesting that the censured provisions be declared constitutionally illegitimate.
Whereas, by the orders indicated in the heading (registered under numbers 246, 248, 249, 250, and 251 Reg. Ord. of 2025), the Court of Audit, Joint Chambers in judicial session in a special composition, raised questions concerning the constitutional legitimacy of Article 23-quater, paragraph 2, of Decree-Law No. 137 of 2020, as converted;
whereas the censured provision, by limiting the scope of accounting jurisdiction in proceedings concerning the identification of public administrations carried out by ISTAT «solely for the purpose of applying national legislation on the containment of public spending», would conflict, overall, with Articles 3, 24, 103, second paragraph—the latter in conjunction with Articles 81, sixth paragraph, and 97, first paragraph, of the Constitution, as well as Article 5, paragraph 1, letter a), of Constitutional Law No. 1 of 20 April 2012 —, 111, 113, and 117, first paragraph, of the Constitution, the latter in relation to Article 19 TEU, Article 47, paragraph 2, CFREU, and Articles 6 and 13 ECHR;
whereas the appearance in the proceedings of the Prosecutor General at the Court of Audit is admissible, for the same considerations and under the terms set out in judgment No. 39 of 2026 (point 14);
whereas the orders raise identical or closely connected questions, making the joinder of the relative proceedings appropriate;
whereas, subsequent to said orders, this Court, by judgment No. 39 of 2026, has already declared the constitutional illegitimacy of Article 23-quater, paragraph 2, of Decree-Law No. 137 of 2020, as converted;
whereas the aforementioned judgment deemed well-founded the challenges alleging the violation of Article 3 of the Constitution, with the absorption of all other challenges articulated by the referring judges, which were formulated on the basis of the rule of law affirmed by the Court of Cassation, Joint Civil Chambers, in judgment No. 30220 of 2024, to the effect that the delimitation of accounting jurisdiction operated by the aforementioned Article 23-quater corresponds to the re-expansion of the general jurisdiction of legitimacy of the administrative judge;
whereas this Court's aforementioned judgment acknowledged that «the previous criterion of jurisdiction concentration, achieved by vesting the Court of Audit, in a single instance, with the power to review both the correctness of the identification of public administrations carried out by ISTAT and compliance with spending review rules, responded to a fundamental requirement of legal certainty, guaranteed by assigning disputes to a single instance before a supreme judicial body specialized in accounting matters», noting that this criterion was therefore also capable of «resolv[ing] in a unitary manner and within a timeframe compatible with the spending policies of the entities concerned» disputes «inherent to both subjection to and application of complex spending review rules» (point 22.1.);
whereas, conversely, the fragmentation of jurisdiction resulting from the censured provision «has fundamentally undermined this outcome», producing both a prolongation of «the time required for a definitive decision on the legitimacy or otherwise of inclusion in the list» and «the possibility of conflicting judicial decisions», such that, ultimately, the «splitting of jurisdiction thus highlights a defect of manifest intrinsic irrationality in the censured rule» (again, point 22.1.);
whereas the supervening declaration of constitutional illegitimacy of the aforementioned Article 23-quater, paragraph 2, in upholding questions overlapping with those under scrutiny, renders the latter devoid of subject matter and consequently entails their manifest inadmissibility (inter alia, orders No. 131 and No. 48 of 2026, No. 209, No. 208, and No. 35 of 2025);
whereas the order registered under No. 248 Reg. Ord. of 2025 also raises questions of constitutional legitimacy regarding paragraph 1 of the aforementioned Article 23-quater, logically conditional upon the upholding of those concerning the provision that substantially precludes accounting jurisdiction itself;
whereas this provision, by laying down specific rules applicable only to the applicant company Finest spa and the other seven entities included in the list annexed to Decree-Law No. 137 of 2020, as converted, would have a regulatory/administrative content devoid of justification and would infringe both the right of defense of the recipient entities and the accounting judicial function;
whereas a defect in the statement of reasons concerning the relevance of the questions raised is evident, as the judge *a quo* omitted to clarify the meaning attributed by it to Article 23-quater, paragraph 1, of Decree-Law No. 137 of 2020, as converted, «ultimately "leaving it to the Court to choose which interpretation underlies the doubt of constitutionality submitted for scrutiny”» (judgment No. 39 of 2026, point 25.2.);
whereas, being called upon to rule on the partial annulment of the ISTAT list published in the Official Journal on 30 September 2020, the referring judge ought to have explicitly stated the reasons supporting the retroactive effect of the censured provision, which entered into force after the identification activity carried out by ISTAT that led to the company's inclusion in the list;
whereas, instead, when stating the reasons for the relevance of the questions raised, the order asserts that «the applicant would not be satisfied by a potential favorable ruling» of the judge, thereby implicitly excluding that the censured provision can retroactively obstruct the upholding of the action, and focuses instead on the uncertainty that the provision would leave, for the future, regarding the applicant's legal classification;
whereas, therefore, the manifest inadmissibility of the questions of constitutional legitimacy raised regarding paragraph 1 of the aforementioned Article 23-quater must be declared.
on those grounds
THE CONSTITUTIONAL COURT
having joined the proceedings,
1) declares the manifest inadmissibility of the questions concerning the constitutional legitimacy of Article 23-quater, paragraph 2, of Decree-Law No. 137 of 28 October 2020 (Further urgent measures regarding health protection, support for workers and businesses, justice and security, related to the COVID-19 epidemiological emergency), converted, with amendments, into Law No. 176 of 18 December 2020, raised, in relation overall to Articles 3, 24, 81, sixth paragraph, 97, first paragraph, 103, second paragraph—the latter also in conjunction with Article 5, paragraph 1, letter a), of Constitutional Law No. 1 of 20 April 2012 (Introduction of the balanced budget principle into the Constitutional Charter)—, 111, 113, and 117, first paragraph, of the Constitution, the latter in relation to Article 19 of the Treaty on European Union, Article 47, paragraph 2, of the Charter of Fundamental Rights of the European Union, and Articles 6 and 13 of the European Convention on Human Rights, by the Court of Audit, Joint Chambers in judicial session in a special composition, by the orders indicated in the heading;
2) declares the manifest inadmissibility of the questions concerning the constitutional legitimacy of Article 23-quater, paragraph 1, of Decree-Law No. 137 of 2020, as converted, raised, in relation overall to Articles 3, 24, 97, 103, second paragraph, 111, first and second paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to Article 19 TEU, Article 47 CFREU, and Articles 6 and 13 ECHR, by the Court of Audit, Joint Chambers in judicial session in a special composition, by the order registered under No. 248 of the 2025 register of orders, indicated in the heading.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 October 2026.
Signed:
Giovanni AMOROSO, President
Luca ANTONINI, Rapporteur
Valeria EMMA, Registrar
Filed in the Registry on 6 November 2026