On 9th February 2015, the Constitutional Court of Italy issued judgment no. 13 regarding the issue of constitutionality of a recently introduced legislation which establishes 0,50 EUR as the maximum rate of the regional tax on noise emissions for civil aircraft, due both by national and foreign aircraft operators to an Italian Region for every take-off and landing in an airport situated in its territory.
Originally the tax on aircraft noise was established by article 90 and subsequent to Law no. 342/2000. The tax is determined by noise emissions certified by the International Civil Aviation Organization for each type of aircraft and the take-off weight of the aircraft. State flights, as well as health and emergency flights, are exempt from this tax. Revenue from the tax should be used mainly for the completion of noise-monitoring systems, noise depollution and eventual compensation of the population living close to the airport.
In 2011, the above-mentioned tax became IRESA (the Italian acronym for Imposta regionale sulle emissioni sonore degli aeromobili civili), a truly regional tax, so each Region could regulate the amount. In 2013, The Lazio Region, where the airports of Rome are situated, established variable rates for IRESA, varying from a minimum of 1,60 EUR per ton to a maximum of 2,50 EUR per ton.
The aforementioned legislation inscribes itself in the theme regarding the measures adopted by Governments in order to reduce noise produced by aircraft.
Indeed, starting from the 1970's, the increasing level of noise pollution made it necessary for States and operators to actively intervene in this field. These measures do not concern the individual aircraft, but the whole air transport system. The entire normative system follows a so-called balanced approach, that is to say, each action must preserve the environmental advantages while taking into account sustainable development of an airport. As known, this approach was introduced by ICAO's Assembly Resolution A33/7.
IRESA was applied by some Italian Regions – not every Region introduced it – with important differences.
The unequal regulation of the tax, as stressed by the Italian Competition Authority (AGCM) in its official opinion of 27th August 2013, could be harmful to competition, by adversely affecting the conditions of viability of aircraft operators.
The National Legislator, accepting the recommendation of the Competition Authority defined a common criteria in calculating the IRESA through Law no. 9/2014. As already described, the mentioned legislation establishes 0,50 EUR as the maximum amount of IRESA's, i.e. a lower rate than the one fixed by the Lazio Region.
For these reasons, the Lazio Region raised the issue of constitutionality of the said legislation by virtue of its incompatibility with article 117 of the Italian Constitution, relating to the separation of legislative powers between the State and Regions.
In the Lazio Region's reasoning, the legislation appears to violate the principles on the separation of legislative powers between State and Regions, where the State's role is to coordinate the tax system. The applicant argued that the legislation is intrinsically contradictory and does not aim to identify "uniform criteria as to the calculation of the tax" as requested by AGCM. It didn't introduce a fundamental principle, but rather established a detailed provision for immediate application.
Moreover, an extremely low rate would have the effect of nullifying the impact of the tax. In fact, the new rate doesn't promote competition, because older and noisier aircraft will be subjected to a regime similar to that of more efficient aircraft.
The Constitutional Court however, rejected the applicant's arguments and confirmed the constitutionality of the contested legislation.
Firstly, in the Court's view, the challenged discipline doesn't affect the legislative powers of the Regions and the Lazio Region failed to provide proof in this regard.
Secondly, the challenged provision doesn't establish a unique rate, but a maximum rate that Regions can regulate and adjust on the basis of criteria specified by the law. The legislation therefore identifies uniform criteria for the calculation of the tax which is necessary for the protection of competition.
The above-mentioned goal, at the same time, is bound up with the original one, i.e. the promotion of noise depollution, as highlighted by Law no. 342/2000.
The intersection of the numerous objectives of the contested legislation, promotion of noise depollution and protection of competition, all included in the legislative powers of the State, supports the fully legality and legitimacy of the contested legislation and the consequent rejection of the Lazio Region's complaint.
The Italian Regions, therefore, have to amend the IRESA rates in such way that the maximum amount doesn't exceed 0,50 EUR. It is worth stressing that, until now, every Italian Region which introduced the IRESA has established higher rates than the newly-introduced maximum amount.
In conclusion, national and foreign aircraft operators will benefit from the reduction of the tax on noise emissions, due for every take-off and landing in an airport situated in Italy.
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