The Council of State, acting as the referring court, by Opinion No. 1381 of 9 December 2025, entered in the 2025 Register of Orders under No. 261, raised a question of constitutional legitimacy concerning Article 7, paragraph 3, of Presidential Decree No. 426 of 6 April 1984, according to which “in matters falling within the jurisdiction of the autonomous section of Bolzano, an extraordinary appeal to the President of the Republic shall not be permitted”, on the grounds of an alleged conflict with Article 90 of the Special Statute for Trentino-Alto Adige/Südtirol and with Articles 3, first paragraph, 5, 24, first paragraph, and 87, first paragraph, of the Constitution.

The Court preliminarily recalls that the autonomous status of the Autonomous Region of Trentino-Alto Adige/Südtirol has its historical roots in the De Gasperi-Gruber Agreement of 5 September 1946, which affirmed the equality of rights of the German-speaking inhabitants of the Province of Bolzano and of the neighbouring bilingual municipalities of the Province of Trento with those of the Italian-speaking population, from a broader perspective not confined to the linguistic dimension alone.

Among the measures adopted to safeguard such autonomy, Article 90 of the Special Statute provides for the establishment of a Regional Administrative Justice Tribunal with an autonomous section for the Province of Bolzano. Pursuant to this provision, Presidential Decree No. 426 of 1984 regulated the organisation of the Regional Administrative Justice Tribunal, establishing the Trento section and the autonomous section of Bolzano and providing, in Article 7, paragraph 3, that no extraordinary appeal to the President of the Republic may be brought in matters falling within the jurisdiction of the latter.

The Court identifies the rationale of this provision in the protection of linguistic minorities under Article 6 of the Constitution, since the exclusion of the extraordinary appeal ensures that disputes concerning the territory of the Autonomous Province of Bolzano are decided by a court with a parity-based composition, having regard to the particular demographic, social and cultural circumstances of the Italian- and German-speaking groups living in South Tyrol.

As regards the Special Statute, the question is unfounded: although the challenged provision does not strictly concern the organisational structure of the Regional Administrative Justice Tribunal, it nevertheless falls within the purposes pursued by the Special Statute, including the recognition of equal rights for citizens belonging to the different linguistic groups and the safeguarding of their respective ethnic and cultural characteristics.

Nor are the challenges based on Articles 5 and 87, first paragraph, of the Constitution well founded, since the function of deciding extraordinary appeals does not fall among the powers constitutionally vested in the President of the Republic and, in any event, does not belong to the institutional dimension within which his role as representative of national unity must be understood.

By contrast, the questions concerning Articles 3, first paragraph, and 24, first paragraph, of the Constitution are declared inadmissible. Examining them jointly, the Court reiterates that the extraordinary appeal constitutes a judicial-type remedy alternative to ordinary judicial proceedings, with which it shares only certain structural and functional features. Its exclusion therefore does not affect the minimum threshold of judicial protection, since the possibility of bringing proceedings before an independent and impartial court remains guaranteed.

The granting of the constitutional challenge would, however, give rise to a tension between judicial protection and the protection of linguistic minorities: on the one hand, the removal of the exclusion provided for by Article 7, paragraph 3, of Presidential Decree No. 426 of 6 April 1984 would extend the use of the extraordinary appeal to disputes falling within the ordinary jurisdiction of the Autonomous Section of Bolzano; on the other hand, there would no longer be any certainty that such disputes would be adjudicated at first instance by a judicial body with a parity-based composition.

Nor would the opposition procedure provided for by Article 48 of the Code of Administrative Procedure be sufficient for this purpose. The protection of linguistic minorities would ultimately depend on an individual procedural choice by the parties, so that, where no opposition were lodged, the dispute would be removed from the jurisdiction of the local court. The protection afforded to minorities would thus become contingent upon individual procedural choices rather than being guaranteed in general terms.

The Court therefore considers that resolving the tensions identified above would require a different regulatory framework for the extraordinary appeal, adapted to the specific autonomous status of the Province of Bolzano and incorporating the safeguards necessary to protect linguistic minorities. The choice of the means through which such a new balance should be achieved, however, entails systemic policy choices falling within the competence of the legislature and cannot be made by the Constitutional Court through a judgment of annulment.

 

(Comment by Bruno Pitingolo)