JUDGMENT NO. 293 OF 2010
Francesco AMIRANTE, President
Giuseppe TESAURO, Author of the Judgment
1/24
JUDGMENT NO. 293 YEAR 2010
In this case the Court considered an application from the Regional Administrative
Court for Campania concerning certain provisions of secondary legislation that
permitted public authorities to issue orders expropriating private property that
had initially been occupied unlawfully, as appropriate remedying any previous
procedural defects and even setting aside prior judgments of the administrative
courts that had ordered the property to be returned to its rightful owner. The
challenges were made on various grounds, including violation of the ECHR. In
ruling the contested legislation unconstitutional as ultra vires, the Court held that
the secondary legislation did not respect the principles and directional criteria
specified in the parent statute, but had enacted legislation that was innovative in
nature.
THE CONSTITUTIONAL COURT
composed of: President: Francesco AMIRANTE; Judges: Ugo DE SIERVO, Paolo
MADDALENA, Alfio FINOCCHIARO, Alfonso QUARANTA, Franco GALLO, Luigi
MAZZELLA, Gaetano SILVESTRI, Sabino CASSESE, Maria Rita SAULLE, Giuseppe
TESAURO, Paolo Maria NAPOLITANO, Giuseppe FRIGO, Alessandro CRISCUOLO,
Paolo GROSSI,
gives the following
JUDGMENT
in proceedings concerning the constitutionality of Article 43 of Presidential Decree
no. 327 of 8 June 2001 (Consolidated law of legislative and regulatory provisions
governing expropriations in the public interest), initiated by the Regional Administrative
Court for Campania by two referral orders of 28 October and one referral order of 18
November 2008, respectively registered as nos. 114, 115 and 116 in the Register of
Orders 2009 and published in the Official Journal of the Republic no. 17, first special
series 2009.
2/24
Considering the entries of appearance by N.D. and others, M.R.P. and others and the
Municipality of Casapesenna and others as well as the interventions by the President of
the Council of Ministers;
having heard the Judge Rapporteur Giuseppe Tesauro in the public hearing of 7 July
2010;
having heard Counsel Francesco Guerriero and Antonio Sasso for N.D. and others,
Antonio Sasso for M.R.P. and others, Fabrizio Vittoria for the Municipality of
Casapesenna and the Aavvocato dello Stato Maurizio Borgo for the President of the
Council of Ministers.
The facts of the case
1. – By three referral orders with identical content issued in three separate
proceedings, the first two of 28 October 2008 (no. 114 and no. 115 of 2009) and the
third of 18 November 2008 (no. 116 of 2009), the Regional Administrative Court for
Campania raised, with reference to Articles 3, 24, 42, 76, 97, 113 and 117(1) of the
Constitution, a question concerning the constitutionality of Article 43 of Presidential
Decree no. 327 of 8 June 2001 (Consolidated law of legislative and regulatory
provisions governing expropriations in the public interest).
1.1.– The first two referral orders (no. 114 and no. 115 of 2009), which concern
identical cases, state that the claimants are all owners of land in Casapesenna that is
subject to expropriation procedures, in relation to which the Regional Administrative
Court had annulled the contested decisions respectively by judgments no. 73 and no. 74
of 2008, and ordered the Municipality of Casapesenna to restore the land to its original
state and return it. By different applications, which were then joined by the Regional
Administrative Court, the claimants took action seeking the implementation of the
judgment, requesting that the land be returned, and challenged the Municipal Council
Resolution by which the Municipality ordered that the areas concerned be acquired as
3/24
public property* pursuant to Article 43(2) of Presidential Decree no. 327, subject to
payment of a sum as compensation.
1.2.– The referring court goes on to state with regard to the facts of the case that the
same court had already ruled on the dispute (judgment no. 387 of 23 January 2003),
where it had censured the administration’s actions due to the failure to follow the
procedure specified for amendments to the urban planning scheme, and due to the
failure to guarantee the interested parties a fair hearing. In the proceedings within which
referral order no. 114 of 2009 was issued, later judgments then annulled a note of the
municipality refusing to return the land occupied and ordered and that the land be
restored to its original state and returned (judgment no. 7290 of 5 June 2003), and again
the application seeking the enforcement of the previous judgment was accepted, with
the appointment of an ad hoc administrator to perform this task. Thereafter, by
judgment no. 2095 of 3 May 2005, the Council of State ruled that the administration
was under an obligation to return the occupied area.
The judgments of the Regional Administrative Court mentioned above (no. 73 and
no. 74 of 2008) subsequently annulled the acts relating to the procedure pursuant to
Article 43 of Presidential Decree no. 327 of 2001 on the grounds of lack of competence
and ordered the municipality to restore the land to its original state and return it. Finally,
the compulsory purchase order remedying past procedural defects was issued pursuant
to Article 43.
1.3.– The third referral order (no. 116 of 2009) states with regard to the facts of the
case that the claimant, an owner of land located in the Municipality of San Giuseppe
Vesuviano (province of Naples) had seen his land occupied by the said Municipality
without any expropriation order.
After a series of proceedings concerning the issue of jurisdiction, the Tribunale di
Nola, having established its jurisdiction on the basis of the illegitimate nature of the
occupation, finally ruled that the property could not be acquired by the public
administration.
*
Translator's note: the class of public property at issue was the “patrimonio indisponibile”, established
under Article 826 of the Italian Civil Code.
4/24
Thereafter, the Head of the Public Works and Town Planning Service and the
Expropriation Office of the Municipality of San Giuseppe Vesuviano adopted decree no.
prot. 2006 0020376, which was challenged in the main proceedings, ordering the
compulsory purchase of the area as municipal public property, and ordering that the
owner receive “in addition to the compulsory purchase indemnity, compensation and
interest on arrears starting from the time when the land was occupied without
justification”.
In particular, the claimant averred the violation of Articles 43 and 57(1) of
Presidential Decree no. 327 of 2001, complaining that the Article 43 procedure was not
applicable to this case and arguing that the transitional arrangements regulated under
Article 57(1) should apply, with the obligation to return the property and compensate
damages pursuant to Article 2043 of the Civil Code on the grounds of ongoing unlawful
occupation.
1.4.– In view of the above, the lower Court recalls that in cases where the courts
annul a decision relating to the procedure for expropriation in the public interest, the
owner may request – in proceedings in which enforcement is sought – that the property
be returned as an alternative to equivalent financial compensation for the damage, even
if the area has been irreversibly transformed as a result of the implementation of public
works. Moreover, the only remedy in order to avoid the return of the area is stated to be
the issue of a so-called “remedying” acquisition order under Article 43 of Presidential
Decree no. 327 of 2001, in the absence of which the administration cannot adduce the
prior implementation of the public works as grounds of objective impossibility, and
therefore as an impediment to its return.
1.5. – After referring to the case law of the Court of Cassation on “appropriative
occupation”, the Regional Administrative Court Campania argues that this figure is
incompatible with the legislation introduced by Presidential Decree no. 327 of 2001
which entered into force on 30 June 2003, since the provision currently disputed
subjects the transfer of the ownership of real estate used in the public interest following
its transformation, which occurred without a valid and enforceable expropriation order
or declaration of public interest, to the adoption of an appropriate discretionary
measure. Moreover, it cannot be concluded that Article 43 only makes provision in
5/24
respect of the future, since it is a provision with a procedural nature that refers to all
instances of occupation sine titulo, including those already in existence at the time the
consolidated legislative text entered into force (in support of this view, it refers to
Council of State, 4th Division, judgment no. 2582 of 21 May 2007, plenary session no. 2
of 29 April 2005, and Regional Administrative Court for Emilia-Romagna, 1st Division,
Bologna, judgment no. 2160 of 27 October 2003).
1.6.– As regards the issue of jurisdiction, the referring court considers that it must
confirm the consolidated case law according to which, in proceedings relating to
expropriations in the public interest, disputes concerning the occupation and
transformation of property pursuant to a declaration of public interest in a manner
consistent with that interest, including for the purposes of compensation, are reserved to
the exclusive jurisdiction of the administrative courts, even if they relate to acts which
were subsequently ruled unlawful.
1.7.– In view of the above, with reference to the resolution to purchase the areas,
the referring court cites the case law according to which that act pursues the goal of
remedying situations in which there were no legitimate expropriation procedures, and
that no significance is to be attached to the unlawful nature of the conduct: whether it
results from the lack of a declaration of public interest or the annulment of such a
declaration or resulting from other causes, and it is rather the sole fact that the public
interest could not be satisfied other than through the maintenance of the compulsory
purchase that is relevant in such cases.
As far as the relevance of the case is concerned, the referring court states that, if this
approach were to be followed, the application in this case would have to be ruled
procedurally inadmissible due to the formal expropriation order remedying past
procedural defects, whilst the challenge to the council’s resolution should be rejected
because the measure challenged would have to be deemed compatible with the
theoretical model provided for under Article 43.
1.8.– However, the Regional Administrative Court for Campania questions the
constitutionality of that provision, due to violation of Articles 3, 24, 42, 76, 97, 113 and
117, of the Constitution.
6/24
In particular, as far as Articles 3, 24, 42, 97 and 113 of the Constitution are
concerned, the court stresses that the exercise of the power to authorise the acquisition
of the area through the adoption of an administrative decision, which makes it possible
to avoid the property being returned and to remedy the prior illegal situation, had taken
on the nature of an “ordinary” instrument, by which “the unlawful is legalised”,
cancelling the tort through the purchase order. In this way the constitutional guarantee
of the right of ownership provided for under Article 42 of the Constitution is inverted
since the provision “permits the public administration, even where it acts deliberately,
[…] to evade the procedural obligations to grant a fair hearing, provide for three stages
to the project and to verify compliance with town planning rules”, rules which were
moreover imposed not only by the municipal authorities but also those responsible for
the protection of additional distinct restrictions.
On the other hand, the abuse of this instrument would require the provision to be
read narrowly, since in practice it would be very difficult to imagine situations in which
the Administration could not justify its actions by the requirement to pursue a public
goal.
On the other hand, in the opinion of the referring court, it is not possible to
disregard the principles established under the Constitution and the European
Convention on Human Rights and Fundamental Freedoms, ratified and implemented by
Law no. 848 of 4 August 1955 (Ratification and Implementation of the Convention for
the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4
November 1950 and of the Additional Protocol to the Convention, signed in Paris on 20
March 1952, below also ECHR or the European Convention), according to which
ownership rights may only be acquired by the Administration following the issue of a
formal administrative measure.
It is also specified that the question of constitutionality is raised in
acknowledgement of the fact that the judgment by which the procedure was ruled
unlawful de facto amounts to “a kind of procedural prerequisite which is concluded with
the purchase order”, with the resulting “serious harm to the general principle of the
inviolability of the judgments of the administrative courts” […] which is essentially
“thwarted by an administrative decision to acquire property for the purposes of the
7/24
public interest without authorisation”. Besides, it should also be considered that the
acquisition remedying past procedural defects could in fact be “reiterated ad infinitum”,
thereby becoming no longer an extraordinary instrument, but rather an ordinary
measure, with the resulting “infringement of the principles of legal certainty and the
protection of legal rights”.
In this context, the court specifies that it has attempted all possible interpretations in
order to give the provision a constitutionally correct meaning, but without success.
1.9.– As far as Article 117(1) of the Constitution is concerned, having referred to
this Court’s judgment no. 349 of 2007 on the relationship between state legislation and
the obligations resulting from the ECHR, the referring court argues that the contested
provision is not compatible with the principles contained in the European Convention
and in Article 6 (F) of the Maastricht Treaty (as amended by the Treaty of Amsterdam),
according to which “[t]he Union shall respect fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms,
[...] as general principles of Community law”. This view is supported by the settled case
law of the European Court of Human Rights (judgments of 20 April 2006, 15 November
2005 and 17 May 2005), which has asserted on various occasions that Article 1 of the
First Protocol to the Convention is not compatible with the practice of “indirect
expropriation”, by which the administration becomes owner of the property without a
compulsory purchase order.
1.10.– Finally, the referring court challenges Article 43 also with reference to
Article 76 of the Constitution on the grounds that Article 7(2)(d) of the parent statute,
Law no. 50 of 8 March 1999 (Delegation of statutory powers and consolidated texts of
legislation on administrative procedures – Simplification Law 1998), authorised the
Government merely in respect of the “formal coordination of the text of applicable
provisions, making the changes necessary, subject to the limits of the said coordination,
to guarantee the logical and systematic consistency of the legislation, and also with the
purpose of simplifying the legislative language”. By contrast, the provision concerned is
not supported by “references to or principles and directional criteria contained in
previous legislation”, and it cannot be asserted that acquisition remedying past
8/24
procedural defects was a necessary change in order to guarantee the logical and
systematic consistency of the legislation.
2.– The claimants in the main proceedings (N.D. and others, with respect to referral
order no. 114 of 2009 and M.R.P. and others, with respect to referral order no. 115 of
2009) entered appearances in the proceedings before the Court by writs setting out
identical legal arguments, requesting that the question be accepted.
2.1.– Following a review of the grounds underlying the referral order, counsel for
the private parties argued, in the first place, that since the purchase order provided for
under the contested legislation was intended to “remedy” action carried out by the
public administration contra ius, resulting in the loss of ownership, it violated Articles
3, 24, 42, 97 and 117 of the Constitution, by “legalising” the illegal, and permitting the
unlawful tort.
Citing lengthy excerpts from judgment of the Court of Cassation on the institute of
appropriative occupation, the claimants consider that the contested Article 43 stands
outwith the “purview of constitutional principles”, since it grants the public
administration the power to order the acquisition of property even in the event that there
has been no prior declaration of public interest, or if such a declaration has been
annulled or rendered ineffective ab initio.
Ultimately, the contested provision is claimed to create an imbalance in favour of
the public body, impinging upon the certainty in legal relations and sacrificing the
legitimate expectations of private individuals in being able to invoke their legal rights
on the basis of the legislative conditions “applicable within the legal order at a given
point in the past”.
2.2.– As far as the violation of Article 117(1) of the Constitution is concerned, the
parties aver that the provision conflicts “with the principles underlying the European
Convention on Human Rights (ECHR), which has direct significance under internal law,
as well as Article 6 of the Maastricht Treaty, as amended by the Treaty of Amsterdam”.
This contrast is claimed to be evident in the light of the settled case law of the
European Court of Human Rights on so-called “indirect” expropriation.
In particular, the claimants recall certain decisions of that court in which it was held
that indirect expropriation is intended to stabilise a factual situation resulting from an
9/24
illegal act committed by the administration and that, “indirect expropriation should not
constitute an alternative means to expropriation carried out according to the correct
procedures either according to a principle developed in case law or a statutory provision
such as Article 43 of the consolidated text”.
The claimants go on to note that the “Italian anomaly” has also been the object of an
interim resolution of 14 February 2007 of the Committee of Ministers of the Council of
Europe, according to which the Italian authorities were “encouraged” “... to continue
their efforts and rapidly take all further measures needed to bring an end definitively to
the practice of ‘indirect expropriation’”.
Within this European context, the Italian government is then claimed to have
admitted expressis verbis that the provision laid down by Article 43 of the consolidated
text concerning expropriation in the public interest is in itself not consistent with the
Convention principles, so much so that a “corrective” application and interpretation was
suggested.
2.3.– Finally, citing the case law of this Court, the private parties endorse the
objections raised with reference to Article 76 of the Constitution, since the possibility of
acquisition introduced by Article 43 Presidential Decree no. 327 of 2001 is claimed to
“lack any connection with currently applicable legislation”, whilst the secondary
legislator had not been authorised to supplement or correct the applicable provisions,
but simply to reorganise them through an initiative involving mere coordination.
3.– The Municipality of Casapesenna entered an appearance in the proceedings
relating to referral orders no. 114 and no. 115 of 2009, criticising the arguments adopted
by the lower court in support of the referral orders. In the first place, in asserting that the
institute concerned “was to remain exceptional in nature according to Parliament’s
intention”, whereas it has in fact “taken on the nature of an ordinary instrument”, the
Campania court is claimed to have confused the hypothetical “incorrect” application of
the provision concerned with its unconstitutionality. Moreover, it is also not correct to
assert that Article 43 permits the unlawful tort since, on the contrary, the provision at
issue had precisely precluded at root the possibility, as occurred in the past, that the tort
could per se result in the acquisition of ownership by the public administration.
10/24
The lower court is claimed to have erred also with regard to the alleged
circumvention of procedural obligations, since the purchase order must take special
account of the interests in conflict, comprehensively comparing them and providing
appropriate reasons for the “current existence of a specific and concrete public interest”.
In this sense therefore, the exacting obligation to give reasons permits precisely the
administrative courts to assess its “logical nature and reasonableness”.
3.1.– As far as the contrast with the case law of the Strasbourg court is concerned,
the Municipality of Casapesenna considers that, contrary to the position of the referring
court, the judgments of the European Court have not concerned the application of
Article 43 of Presidential Decree no. 327 of 2001, but the practice of appropriative
occupation,* for which it is precisely Article 43 that provides the legislative framework.
3.2.– The objection that the provision constitutes a violation of the judgments of the
administrative courts is also claimed to be groundless since the provision under
examination is not able to call into question either the annulment of the acts carried out
with the intention of expropriation or the right to compensation of the private individual
who has been unlawfully dispossessed, and is rather limited to enabling the public
administration to choose pecuniary compensation rather than compensation in the form
of specific action. On the contrary, far from violating a prior judgment of the
administrative courts, Article 43 guarantees their fullest implementation, since it limits
the public administration’s right to choose pecuniary compensation rather than
compensation in the form of specific action to individual cases in which specific
prerequisites are met.
3.3.– Finally, with regard to the violation of Article 76 of the Constitution, it is
noted that since the consolidated text on expropriations is intended to achieve the
legislative reorganisation and simplification of procedural and organisational rules, it is
innovative in nature and does not merely involve compilation, which means that when
*
Translator's note: referred to in the text by its alternative name of “reverse accession” (in Italian
accessione invertita), a concept peculiar to Italian law that highlights the operation in reverse of the
normal rule that buildings accede to the land. In administrative law, reverse accession occurs, subject
to the fulfilment of certain conditions, where the state occupies land without completing normal
compulsory purchase procedures. The land, previously under private ownership, accedes to the
buildings and any servitudes or burdens on the land cease to exist.
11/24
coordinating the applicable provisions, “the amendments necessary to guarantee the
logical and systematic consistency of the legislation” may be made.
4.– The President of the Council of Ministers entered an appearance in all
proceedings, represented by the Avvocatura Generale dello Stato who, in distinct
submissions with essentially identical consent requested that the question be ruled
inadmissible and groundless.
4.1.– The State representative avers in the first place that the question is
inadmissible due to lack of relevance, recalling that in judgment no. 191 of 2006, this
Court expressly held that the contested provision did not have the status of a procedural
rule, which means that the referring court should have considered whether or not it was
applicable to the specific cases before it. In fact, the issue of the applicability of Article
43 of the consolidated text on expropriations to occupations sine titulo effected prior to
the entry into force of Presidential Decree no. 327 of 2001 represents one of the most
debated issues both in the academic literature as well as in case law. In fact, alongside
the case law mentioned in the referral order, there are first and foremost several rulings
to the contrary of the Court of Cassation which, by judgments no. 23943 of 22
September 2008 and no. 26732 of 19 December 2007 held that it did not apply in
consideration of the fact that, in regulating the applicability of the new legislation (and
not only of the provisions of a substantive nature), Article 57 of Presidential Decree no.
327 of 2001 introduced a criterion based exclusively on the time when the first act in
the expropriation procedure was performed, irrespective of its subsequent development
and any subsequent measures issued by the expropriating body.
Moreover, by judgment no. 4660 of 26 September 2008, the Council of State itself
held that Article 43 did not apply to a case, such as that currently under examination,
that had been concluded prior to the entry into force of the consolidated text.
4.2.– The question is also claimed to be inadmissible because the referring court did
not attempt to interpret the contested provision in a manner compatible with the
Constitution. This is because the court started on the basis of the application of the
provision by the administrations and according to the “living law” (i.e. uniform and
settled case law), which in its opinion would have led to abnormal results, such as that
relating to the applicability of Article 43 within proceedings in which enforcement is
12/24
sought, which would be liable to negate the acknowledgement of the right for the
property to be returned and overturn the force of the judgment.
However, in the opinion of the Avvocatura dello Stato, nothing would have
prevented the referring court from assessing the unlawful nature of the compulsory
purchase order in the light of a constitutionally informed interpretation within
proceedings in which enforcement is sought on the same grounds as those submitted in
support of the question of constitutionality.
4.3. – On the merits, the State representative specifies in the first place that, far
from being an ordinary instrument, the mechanism of “acquisition remedying past
procedural defects” by contrast amounts to a “legal escape route” from illegal situations
that have developed over the course of the years.
As far as the relationship with the judgment ordering the return of the property is
concerned, it is emphasised that the provision under examination does not per se
amount to an instrument to circumvent court judgments, but if anything it is rather the
non-functional use of the provision by the Administration which could result in that
consequence. It is therefore claimed to be the task of the administrative courts to review
rigorously that balancing of interests underlying the measure, according to the
principles of reasonableness and proportionality.
The President of the Council of Ministers then highlights that in this case the court
could indeed have ruled, pursuant to Article 21-septies of Law no. 241 of 7 August 1990
241 (New provisions relating to administrative proceedings and on the right of access to
administrative documents) that the purchase order issued by the municipal
administration was void on the grounds that it infringed a court order.
4.4.– As regards the question relating to the violation of Article 117(1) of the
Constitution due to violation of the ECHR, notwithstanding the questions concerning
the provision’s constitutionality mooted in certain decisions of the Court of Cassation
(judgment no. 26732 of 2007, cited above), the Avvocatura dello Stato states that the
question concerning the compatibility of Article 43 was never considered by the
Strasbourg Court. In view of the above, the referring court should in any case have
applied an interpretation compatible with “ECHR principles” before raising a question
of constitutionality. Besides, the administrative courts have on various occasions
13/24
expressed the view that Article 43 is fully compatible with the provisions of the ECHR
as interpreted by the European Court of Human Rights.
4.5.– Finally, as regards the alleged action in excess of the legislative authorisation,
the President of the Council of Ministers again recalls the case law of the administrative
courts that is claimed to preclude the existence of such grounds for invalidity.
4.6.– Finally, the Avvocatura dello Stato stresses that any “repeal” of the contested
provision would have the inevitable consequence of the “return to fashion” of the
institutes of “appropriative occupation” and “illegitimate appropriative occupation”
created through case law, which would expose the State to further numerous
unfavourable judgments by the Strasbourg Court.
Conclusions on points of law
1.– The questions raised by the Regional Administrative Court for Campania by
three distinct referral orders with largely identical content (no. 114, no. 115 and no. 116
of 2009) concern Article 43 of Presidential Decree no. 327 of 8 June 2001
(Consolidated law of legislative and regulatory provisions governing expropriations in
the public interest) governing the “Unauthorised use of property for purposes in the
public interest”.
1.1.– The proceedings concern the same provision, which is contested with
reference to the same principles on the same grounds and largely according to the same
arguments. Therefore, since they raise an identical question, they are hereby joined for
decision by a single judgment.
2.– The contested provision concerns the legislation governing the unauthorised use
of property for purposes in the public interest and permits an authority that has used real
estate for the said purposes without a valid and enforceable expropriation order or
declaration of public interest to order that it be purchased as public property, subject to
the obligation to compensate the owner. The provision also regulates the time and
content of the purchase order, appeals against it, the right of the public administration to
request the administrative courts to “order the payment of damages, precluding the
14/24
return of the property without limits in time”, and sets the criteria according to which
the damages are to be quantified.
According to the referring court, as regards the issue of relevance, the application of
the legislation laid down by Article 43 would result in the procedural inadmissibility of
applications seeking the implementation of judgments, in consideration of the formal
purchase order remedying past procedural defects; at the same time, any challenges to
the resolution ordering the purchase should be dismissed, since the measure appealed
against should be deemed to be compatible with the theoretical model designed by the
legislation as a whole, notwithstanding the fact that an order to return the property had
already been issued in this case (in particular, in the proceedings registered as no. 114
and no. 115 of 2009, following the annulment of the decisions relating to the procedure
under Article 43).
The provision is claimed to violate first and foremost Articles 3, 24, 42, 97 and 113
of the Constitution on the grounds that, according to the interpretation presumed to
constitute the “living law” it permits expropriations to be legalised that are unlawful due
to the failure to make a declaration of public interest, the annulment of the decisions or
on any other grounds. In this way, it provides for the exercise of a power by the
authorities to purchase the area and prevent the return of the property, cancelling the
unlawful tort even where it has been confirmed by a judgment of the administrative
courts, and permitting “the public administration, even where it acts deliberately, … to
evade the procedural obligations to grant a fair hearing, provide for three stages to the
project and to verify compliance with town planning rules” causing “serious harm to the
general principle of the inviolability of the judgments of the administrative courts”,
which is essentially “thwarted by an administrative decision to acquire property for the
purposes of the public interest without authorisation”.
3.– In the opinion of the Regional Administrative Court, the contested provision
also violates Article 117(1) of the Constitution since it does not comply with the
principles laid down by the European Convention on Human Rights, as interpreted by
the Strasbourg Court, which has held that the practise of so-called “indirect
expropriation” violates Article 1 of the First Protocol. It is also claimed to violate
Article 6 (F) of the Maastricht Treaty (as amended by the Treaty of Amsterdam),
15/24
according to which “[t]he Union shall respect fundamental rights, as guaranteed by the
European Convention for the Protection of Human Rights and Fundamental Freedoms,
[...] as general principles of Community law”.
4.– Finally, the referring court considers that the contested Article 43 violates
Article 76 of the Constitution since it was enacted in breach of the criteria laid down in
the parent statute, Law no. 50 of 8 March 1999 (Delegation of statutory powers and
consolidated texts of legislation on administrative procedures – Simplification Law
1998).
5.– The Avvocatura dello Stato averred that the questions were inadmissible due to
their lack of relevance in the proceedings before the lower court, since this Court, the
Court of Cassation and the Council of State had already ruled that Article 43 did not
apply to appropriative occupations that occurred prior to 30 June 2003, the date on
which Presidential Decree no. 327 of 2001 entered into force.
5.1.– The objection is groundless. The question concerning the applicability of the
provision under examination has not been resolved unequivocally under case law. In
fact, the Court of Cassation has ruled that the adoption of a purchase order remedying
past procedural defects pursuant to Article 43 was inadmissible with regard to
appropriative occupations that occurred prior to the entry into force of Presidential
Decree no. 327 of 2001 (judgments, no. 23943 of 22 September 2008, no. 20543 of 28
July 2008 and no. 26732 of 19 December 2007). Conversely, the principle that “the
procedures regulating the purchase of an area occupied without authorisation remedying
past procedural defects as set out in Article 43 are generally applicable also to
occupations that initiated before the provision entered into force” is now predominant in
the case law of the Council of State (Council of State, 4th Division, judgment no. 1762
of 26 March 2010, 4th Division, judgment no. 3509 of 8 June 2009, and also: plenary
session, judgment no. 2 of 29 April 2005, 2th Division, judgment no. 5830 of 16
November 2007, examined without any findings as to jurisdiction by the Joint Divisions
of the Court of Cassation in judgment no. 9001 of 16 April 2009).
Given this contrast, the referral orders provided reasons in support of the
applicability of the provision which were not implausible, referring to the absolutely
predominant case law and the “living law” of the Council of State.
16/24
6.– On the merits, as a preliminary matter it is necessary to examine the challenges
relating to Article 76, of the Constitution. In fact, it is for this Court “to assess the
overall body of objections and the questions constituting the thema decidendum placed
before it for examination” and “to determine, including on the grounds of procedural
economy, the order in which they are to be treated in the judgment and to rule the other
moot” (most recently, judgments no. 181 of 2010 and no. 262 of 2009) in cases
involving “questions that are self-standing due to the lack of a relationship of priority of
one over another” (judgment no. 262 of 2009).
In this case, the challenges relating to Article 76 of the Constitution clearly take
priority in logical and legal terms, since they relate to the correct exercise of the
legislative function, and therefore were they to be well founded this would supersede at
root any question relating to the normative content of the provision under examination.
6.1.– The referring court avers that Article 76 of the Constitution has been violated
on the grounds that Article 43 is not supported by “references to or principles and
directional criteria contained in previous legislation”, since the parent statute, Law no.
50 del 1999, provides merely for the formal coordination of the text of applicable
provisions and, within the limits of that coordination, only permitted changes necessary
to guarantee the logical and systematic consistency of the legislation, and also with the
purpose of simplifying the legislative language.
7.– The question is well founded.
8.– The contested provision regulates the institution of “acquisition with remedying
effect”. In particular, it provides inter alia in paragraph 1 that, “having assessed the
interests in conflict, an authority which uses real estate for purposes in the public
interest that has been modified without a valid and enforceable expropriation order or
declaration of public interest may order that it be purchased as public property and that
the owner be compensated”. It is then specified in paragraph 2 that the compulsory
purchase order “...a) may be issued even if the decision that gave rise to the restriction
with a view to expropriation, the decision to declare the public interest of certain works
or the expropriation order has been annulled;”.
The provision therefore establishes the possibility for the public authorities to
purchase private property that has previously been occupied and changed in order to
17/24
implement works in the public interest, including in the event that the declaration of
public interest has been invalidated with retroactive effect as a consequence of its
annulment or on other grounds, or even where no such declaration has been made
whatsoever (“lack of a valid and enforceable expropriation order or declaration of
public interest”).
8.1.– The contested provision is contained in the consolidated text on expropriations
drawn up in accordance with Law no. 50 of 1999, in turn related to Law no. 59 of 15
March 1997 (Authorisation to the Government to confer functions and tasks upon the
regions and local authorities, to reform the Public Administrations and for
administrative simplification), which had provided for a general and permanent
instrument to simplify and delegate legislative powers.
In particular, the authorisation related to the “reorganisation” of the provisions listed
in Annex I to Law no. 59 del 1997 (as in force pursuant to Article 1 of Law no. 340 of
24 November 2000 – Arrangements governing the delegation to secondary legislation of
statutory provisions and the simplification of administrative procedures – Simplification
law 1999) which contemplated, as its object, the “procedure for expropriation on public
interest grounds and other related procedures: Law no. 2359 of 25 June 1865 and Law
no. 865 of 22 October 1971”.
8.2.– Due to the clear tone of the provisions referred to, it is clear that the
authorisation granted thereunder expressly related to the legislative fabric comprised of
Laws no. 2359 of 1865 and no. 865 of 1971.
In summary, the system for expropriation in the public interest created under the
above laws was comprised of a procedure premised on a measure declaring that the
work was in the public interest and setting time limits, with parallel arrangements for
cases relating to work that was urgent or could not be postponed. Thereafter, Law no.
865 of 1971 provided for the consolidation of the procedure into one single stage,
associating the declaration of public interest, or the declaration that public works were
urgent or could not be postponed, with the approval of works projects by the competent
bodies.
Subsequently, following a considerable number of flaws in administrative
expropriation procedures, which resulted in rulings that the public administration’s
18/24
occupation was unauthorised, the case law of the Court of Cassation elaborated the
institutions of “appropriative occupation” and “illegitimate appropriative occupation”.
In summary, “appropriative occupation” was characterised by an anomaly in the
expropriation procedure which was not concluded with a formal compulsory purchase
order, whilst “illegitimate appropriative occupation” referred to the transformation of
privately owned real estate without any declaration of public interest. In the former case
(the leading case for which is judgment no. 1464 of the Joint Divisions of 26 February
1983), the purchase of the property resulted in a reversal of the civil law institution of
accession, regulated under Articles 935 et seq of the Civil Code, in consideration of the
irreversible transformation of the real estate. According to this account, the irreversible
destination of private land unlawfully occupied meant that the public body gained title
over the land by original right with the concurrent extinction of the private individual’s
proprietary rights. The later judgment no. 3940 of 10 June 1988 of the Joint Divisions
then established the legal figure of “appropriative occupation”, and limited it to cases in
which there had been a valid declaration of public interest that permitted the public
interest to take precedence over that of the private individual.
On the other hand, “illegitimate appropriative occupation” – which is not
accompanied by a declaration of public interest either ab initio or as a result of the
subsequent annulment of the relative order or due to expiry of the relevant time limits –
did not as such thus result in actual acquisition by the public administration.
8.3.– This, in essence, is the legislative context against which Article 43 was
enacted, alongside the institutions developed through case law mentioned above which
governed the area of law over time.
When drafting the consolidated text the secondary legislator was required to comply
with the following principles and directional criteria contained in Article 7(2) of Law
no. 50: the specific identification of the applicable text of the provisions (Article 7(b));
an indication of the provisions repealed, including implicitly, by subsequent provisions
(letter c); the “formal” coordination of the text of applicable provisions making, within
the limits of the said coordination, the changes necessary to guarantee the logical and
systematic consistency of the legislation, and also with the purpose of simplifying the
legislative language (letter d).
19/24
The parent statute then required an indication of the provisions not inserted into the
consolidated text that were nonetheless to remain in force (letter e) and the express
repeal of all of the remaining provisions – not referred to – that regulated the area of law
subject to delegation to secondary legislation, which were to be expressly indicated in a
dedicated annex to the consolidated text (letter f).
8.4.– It is therefore necessary to verify whether the secondary legislator complied
with the aforementioned principles and directional criteria.
According to the settled case law of this Court, constitutional review of delegated
legislation entails a comparison between the outcomes of two interpretative processes.
The first concerns the provisions that determine the subject matter, principles and
directional criteria indicated in the delegation, taking account of the overall legislative
context into which they were incorporated and identifying the grounds and purposes
underpinning the parent statute. The second concerns the provisions enacted by the
secondary legislator, which are to be interpreted in a manner compatible with the
principles and directional criteria specified in the parent statute (see inter alia,
judgments no. 230 of 2010, no. 98 of 2008, no. 54 of 2007, no. 280 of 2004 and no. 199
of 2003).
Therefore, it must on the one hand refer to the rationale underlying the parent
statute, whilst it must on the other take account of the possibility – inherent in the
instrument of delegated legislation – that provisions may be introduced which
consistently develop the principles set out in the parent statute. Moreover, although it
falls to the discretion of the secondary legislator to enact legislation that represents a
consistent development – and if appropriate also completes – the express choices of
Parliament (judgment no. 199 of 2003; order no. 213 of 2005), it is nonetheless
necessary that this discretion be exercised within the limits laid down by those
principles and directional criteria.
Moreover, according to the settled case law of this Court, if as in this case the
delegation concerns the review, reorganisation and restructuring of pre-existing
legislation, these goals will justify an adaption of the legislation to the new overall
legislative framework resulting from the accumulation over time of overlapping
provisions enacted to cover different situations and within different frameworks.
20/24
However, the introduction of substantively innovative solutions compared to the
previously applicable legislation is admissible only if appropriate principles and
directional criteria are specified to limit the discretion of the secondary legislator
(judgment no. 170 of 2007 and no. 239 of 2003).
8.5.– In the light of these principles, it is clear that the challenges raised by the
referring courts are well founded.
On this point, the parent statute had granted the secondary legislator the power to
make provision only for a “formal” coordination relating to “applicable” legislation. By
contrast, the institution provided for and regulated under the contested provision is
characterised by numerous novel aspects compared both to the legislation governing
expropriation contained in the provisions expressly referred to in the parent statute as
well as the institutions developed predominantly in case law.
In the first place, there is no indication in the laws mentioned in Annex I to Law no.
59 of 1997 of any provision that could justify an initiative by the public administration
to remedy past procedural defects in the compulsory purchase procedures provided for.
Nor moreover is it possible to refer to the context of the findings in case law
referred to above, since various aspects of “acquisition with remedying effect”, as
governed by the contested legislation, clearly exceed the bounds of the institutions of
appropriative occupation and illegitimate appropriative occupation, as described in that
case law.
In fact, Article 43 first and foremost treats the two figures in identical terms,
creating the possibility for the administrations and any party that uses the property to
apply to the administrative courts – in any situation and at any time – for an order
awarding compensation rather than the return of the property. Moreover, the legislation
also extends to easements, which case law had excluded from the scope of appropriative
occupation as an institution that cannot impinge upon the acquisition of real rights in re
aliena, since it did not contemplate the irreversible transformation of the land into an
essential component for the public works.
Finally, the contested provision postpones the time when property is transferred
until the compulsory purchase order is issued.
21/24
These are aspects that are of undoubted significance as essential characteristics of
the situation, and demonstrate that the provision under examination is not only
markedly innovative compared to the positive legislative context which it was permitted
only to reorganise, but is not even consistent with the case law findings which were
able, through interpretation, to provide a certain remedy for serious defects that had
emerged during expropriation procedures. This feature of the contested legislation is
significantly confirmed by the fact that, according to the case law of the Court of
Cassation on urgent occupation, the subsequent conclusion of an administrative
procedure could not have retroactive remedying effect due to the discretionary choices
of the public body or the powers it was authorised to exercise. On the other hand,
according to the arrangements resulting from the contested provision, provision is made
for a generalised remedying power granted to the very same administration that
committed the unlawful act, notwithstanding any court orders requiring the restoration
in the form of specific action of the proprietary right infringed.
Ultimately, the secondary legislator could not enact entirely innovative legislation
without any limitation on its discretion as expressly specified under the parent statute.
Regarding this matter, this Court has in fact asserted that, as broad as the power to enact
complementary provisions granted to the secondary legislator may be, “the free
assessment” of that power “may never be elevated to the status of principle or
directional criterion, as the antithesis of binding legislation such as, by definition, the
legislation contained in the parent statute” (judgments no. 340 of 2007 and no. 68 of
1991).
On the contrary, it is not sufficient to aver, as argued by the Avvocatura dello Stato,
that the secondary legislator sought to take account of the objections raised in the case
law of the Strasbourg court to the practice of “indirect” expropriations.
Independently of any consideration relating to the fact that this was not
contemplated under the principles and directional criteria set out in Article 7 of Law no.
50 del 1999, as well as the legitimate doubt regarding the appropriateness of the choice
made by the provision to guarantee compliance with the ECHR principles which cannot
be resolved here, the solution chosen amounts to only one of several possible. The
secondary legislator could have achieved that objective and regulated the area of law in
22/24
different ways, or even entirely removed the possibility of purchase based exclusively
on the fact of possession, thereby guaranteeing the return of the property to the private
individual, on an analogous basis to other European legal systems. Moreover, the
Strasbourg court is also not without some significance in this context since it specified,
albeit on an incidental basis, that indirect expropriation violates the principle of legality
because it is not able to ensure a sufficient degree of certainty and permits the
administration to use a factual situation resulting from “illegal actions” to its own
advantage, regardless of whether it is the consequence of an interpretation in case law or
if is results from legislation – with express reference to Article 43 of the consolidated
text, challenged here – since that form of expropriation cannot in any case constitute an
alternative to expropriation according to the “proper due procedure” (Sciarrotta and
others v. Italy – Third Section – judgment of 12 January 2006 in appeal no. 14793/02).
Therefore, even considering the Strasbourg case law, it is by no means certain that
the mere transposition into law of an institution that is theoretically liable to perpetuate
the same negative consequences of indirect expropriation will per se be sufficient to
resolve the serious violation of the principle of legality.
In view of the above findings, the Court finds that the whole of Article 43 of
Presidential Decree no. 327 of 2001 should be ruled unconstitutional since the
legislation relating to the acquisition of easements contained in paragraph 6-bis appears
to be strictly and inseparably related to the other paragraphs both due to the express
reference made by the provisions subject to challenge, as well as because it is premised
on their application and regulates further aspects of their application (see judgment no.
18 of 2009).
9.– Since the provisions have been ruled unconstitutional with reference to Article
76 of the Constitution, the questions posed with reference to Articles 3, 24, 42, 97, 113
and 117(1) of the Constitution are moot.
ON THOSE GROUNDS
THE CONSTITUTIONAL COURT
23/24
declares that Article 43 of Presidential Decree no. 327 of 8 June 2001 (Consolidated
law of legislative and regulatory provisions governing expropriations in the public
interest) is unconstitutional.
Decided in Rome at the seat of the Constitutional Court, Palazzo della Consulta, on
4 October 2010.
Signed:
Francesco AMIRANTE, President
Giuseppe TESAURO, Author of the Judgment
Giuseppe DI PAOLA, Registrar
Filed in the Court Registry on 8 October 2010.
The Director of the Registry
Signed: DI PAOLA
24/24