Competition, regions can put new licences for coach companies out to tender

The Regions can issue licences for hire with driver, provided they put them out to tender. With sentence 206/2024 (editor Antonini), the Constitutional Court closes a complex case that pitted the Calabria Region against the Prime Minister's Office, and above all allowed it to get to the bottom of the consequences produced by the structural deficit of competition in non-scheduled public transport.

The story began in April 2023, when Calabria's Regional Law 16 authorised up to 200 new car rental with driver, entrusting them directly to Ferrovie della Calabria srl, an in-house company of the Region. In yesterday's decision, the judges of the law ruled that the decision to issue the new licences was correct, while the implementation methods that dribbled the instead obligatory passage of the public tender were not. But the point, they said, is more complex.

The Consulta's decision establishes first of all that the regions can intervene directly in the issuing of authorisations, overriding the exclusive municipal competence provided for by Law 21 of 1992 (Articles 5 and 8). And it does so by deeming 'the rigid provision contained in the old discipline introduced in 1992 to be cedeable to subsequent regional laws that define a more articulated and up-to-date structure, in function of the protection of a level of interests that concerns important development potential of the entire regional territory'. The possibility is offered by the 2001 reform of Title V, which, although now dated, nevertheless intervened after the archaeological law of 1992. Already in other sectors, for example in commerce, the Constitutional Court had already held that the municipal exclusivity established by pre-2001 laws was binding only until the regions intervened with their own regulations (sentences 164/2019, 98/2017 and ordinance 199/2006).

But in the issue of non-scheduled transport, this articulated legal premise allows to invest a substantial knot, represented by the setbacks suffered by citizens in a fundamental right such as mobility as a result of a protectionist policy that raises barriers against the competition represented by the Ncc against taxis. Faced with Palazzo Chigi's appeal against the Calabria Region, in fact, the Consulta had first of all raised before itself the question of the constitutional legitimacy of the state rule (Article 10-bis, paragraph 6 of Decree 135/2018) that had blocked any new Ncc authorisation until the creation of the 'national public computerised archive' of non-scheduled public transport companies, which had remained dormant for six years.

On that occasion (judgement 137/2024), the Court rejected the long freeze on licences, highlighting in stark terms the effects of a protectionism that "has first and foremost harmed the elderly and frail population, who especially in metropolises are unable to use (or even simply to reach) other scheduled transport services, but has stringent mobility needs" especially "with reference to care needs" and "has damaged tourism and Italy's international image, since the insufficient mobility offer has jeopardised the possibility of easily reaching holiday resorts". It is precisely from this latter need that Calabria, led by its president Roberto Occhiuto (Fi), has moved, the victim of a paradox whereby thanks to promotional policies and agreements with airlines it has attracted thousands of tourists to its airports, who are then forced to endure interminable odysseys to reach the coasts and other holiday resorts. To overcome this stalemate, which in fact involves both the State and the municipalities generally siding in defence of taxis, the Regions can therefore intervene by giving concrete expression to the "etymological meaning of the principle of subsidiarity - argues the Court - which is that of subsidium afferre", bringing "aid to the overall system of non-scheduled public transport, enhancing the supra-municipal dimension also inherent in the Ncc service". But it cannot do so by violating the principles of competition protected by the tender.