2024-07-25 14:46:12
(ANSA) – ROME, JULY 25 – The Constitutional Court, with ruling no. 146, filed today, declared the unconstitutionality of art. 2, paragraph 3, of Legislative Decree no. 51 of 10 May 2023 (Urgent provisions on the administration of public bodies, legislative deadlines and social solidarity initiatives), converted, with amendments, into Law no. 87 of 3 July 2023. The censored provision – on the issue raised by the Court of Naples, for the Teatro San Carlo affair – provides for the early termination of office, starting from 1 June 2023, for superintendents of opera and symphony foundations who, on the date of entry into force of the Legislative Decree, have reached the age of seventy, regardless of the expiry date of any current contracts. A rule – also applicable to foreign directors of lyric-symphonic foundations – with which the government had effectively sent Stephane Lissner, the French director at the helm of the Neapolitan lyric, into retirement, to be replaced by Carlo Fuortes, after having thus vacated the position of CEO of Rai. Lissner had appealed against the decree, obtaining reinstatement in his position. In the meantime, Fuortes had arrived at the helm of the Maggio Fiorentino. The Court of Naples had deemed the regulation to be detrimental to the principles of equality and reasonableness (art. 3 of the Constitution) and of good functioning and impartiality (arts. 97 and 98 of the Constitution) and had denounced the evident lack of the conditions prescribed by the Constitution for the recourse to the decree-law (art. 77 of the Constitution). The Court – explains a press release from the Consulta – has accepted the questions in reference to art. 77 of the Constitution and has declared the other objections absorbed. The Court reiterated that the use of the instrument of emergency decree, although entrusted to the autonomous political choice of the government, is subject to precise “constitutional limits” and to “legal rules that are not available to the majority, to guarantee the constitutional option for parliamentary democracy and the protection of political minorities”. This normative power “cannot justify the emptying of the political and legislative role of Parliament, which remains the seat of the representation of the Nation (art. 67 of the Constitution)” and must be exercised “in compliance with the constitutionally necessary balances”. The pre-existence of a factual situation that entails the need and urgency to provide constitutes a requirement of constitutional validity of the adoption of the decree-law and any evident lack of that prerequisite is configured as a defect of constitutional legitimacy of both the decree-law and the conversion law. The requirement of homogeneity is one of the revealing indicators of the existence or lack of the conditions for the validity of the government measure. The Court clarified that such limits are not only functional “to respect the fundamental balances of the form of government, but also serve to discourage a chaotic and disorganized way of legislating” that harms legal certainty and, in particular, “both the effective enjoyment of rights and the orderly development of the economy”. The provision that establishes the immediate termination of current positions, starting from a date identified on June 1, 2023, has no correlation with the purposes of safeguarding the efficiency of the lyric-symphonic foundations, which are also stated in the preamble of the decree-law “in generic and apodictic terms”. The lack of homogeneity of the contested provision also emerges from the analysis of the title of the legislative act and of the remaining provisions of the decree-law and from the parliamentary discussion, which does not indicate “resolving elements in order to the extraordinary necessity and urgency of regulating the ongoing relationships, according to the timing outlined in the decree-law, to give concrete implementation to the objective of efficiency declared in the preamble to the decree”. Not even in the judgment before the Court were decisive elements put forward in order to comply with the requirements prescribed by art. 77 of the Constitution. All the indicators described therefore converge in excluding, for the specific contested provision, that “need to give rapid regulatory responses to situations that need to be regulated in a way that is suitable to deal with the new and urgent needs […]which represents the necessary legitimacy of the decree-law in the constitutional system of sources”. (ANSA).
2024-07-25 14:46:12