ORDER NO. 243
YEAR 2010
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of the following members:
- Francesco AMIRANTE, President
- Ugo DE SIERVO, Judge
- 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, "
has rendered the following
ORDER
in the proceedings regarding the constitutionality of Article 1, paragraph 796, letter o) of Law no. 296 of 27 December 2006 (Provisions for the formation of the annual and multiannual State budget – 2007 Finance Act), and Article 33, paragraph 2, of the Law of the Apulia Region no. 10 of 16 April 2007 (Provisions for the formation of the 2007 forecast budget and the 2007-2009 multiannual budget of the Apulia Region), as amended by Article 2 of the Law of the same Region no. 16 of 5 June 2007 (First amendment to the forecast budget for the 2007 financial year), referred by the Regional Administrative Tribunal (TAR) for Lazio in the proceedings between the National Order of Biologists and others and the Ministry of Health and others, pursuant to the referral order of 12 December 2007, registered under no. 75 of the 2010 register of orders and published in the Official Gazette of the Republic, no. 12, First Special Series, of the year 2010.
Having regard to the notice of appearance of the National Order of Biologists, as well as the intervention of the President of the Council of Ministers;
Having heard the Reporting Judge Giuseppe Tesauro in the chambers on 9 June 2010.
Considering that the Regional Administrative Tribunal for Lazio, Section III-quater, by way of a judgment-order dated 12 December 2007, has raised a question of constitutional legitimacy with reference to Articles 24, 32, 41, 97, 113, and 117 of the Constitution, regarding Article 1, paragraph 796, letter o) of Law no. 296 of 27 December 2006 (Provisions for the formation of the annual and multiannual State budget – 2007 Finance Act), and Article 33, paragraph 2, of the Law of the Apulia Region no. 10 of 16 April 2007 (Provisions for the formation of the 2007 forecast budget and 2007-2009 multiannual budget of the Apulia Region), as amended by Article 2 of the Law of the same Region no. 16 of 5 June 2007 (First amendment to the forecast budget for the 2007 financial year), insofar as they impose on private facilities accredited with the National Health Service (hereinafter, NHS) a reduction in the tariffs concerning the remuneration for services rendered on behalf of said Service;
that in the main proceedings the National Order of Biologists, in the person of its pro tempore President, requested the annulment of the following acts and measures: the Decree of the Minister of Health, issued in concert with the Minister of Economy and Finance, of 12 September 2006, regarding "Recognition and initial update of maximum tariffs for the remuneration of healthcare services”; the measure of the Department of Health Policies of the Apulia Region, protocol no. 24/796/AOSI2 of 25 January 2007, concerning "2007 Finance Act – Clarifications on the accounting of fixed quotas and discounts for outpatient specialist services”; the note of the General Director of the Local Health Authority BR/I of Brindisi of 31 January 2007, protocol no. 5199, concerning "DMS 12/9/2006. Modification of tariffs for the clinical pathology sector, and any other prior, connected or consequential act”; the resolution of the Regional Executive of the Apulia Region of 3 April 2007, no. 404, concerning the regulation of outpatient specialist assistance services provided within the scope of the Regional Health Service (RHS) and related tariffs, and any other prior, connected or consequential act;
that the aforementioned Article 1, paragraph 796, letter o), of Law no. 296 of 2006 concerns the remuneration of services rendered on behalf of the NHS by accredited private facilities and, in the part challenged, provides: "without prejudice to the provisions regarding the update of healthcare service price lists under Article 1, paragraph 170, fourth period, of Law no. 311 of 30 December 2004, as amended by this letter, starting from the date of entry into force of this law, accredited private facilities, for the purpose of remuneration for services rendered on behalf of the National Health Service, shall apply a discount equal to 2 percent of the amounts indicated for specialist services by the Decree of the Minister of Health of 22 July 1996, concerning "Outpatient specialist assistance services provided within the scope of the National Health Service and related tariffs”, published in the ordinary supplement no. 150 to the Official Gazette no. 216 of 14 September 1996, and equal to 20 percent of the amounts indicated for laboratory diagnostic services by the same decree”;
that Article 33, paragraph 2, of the Law of the Apulia Region no. 10 of 2007, as amended by the Law of the Apulia Region no. 16 of 2007, establishes: "Until the issuance of the new National Levels of Assistance (LEA), for the period between 1 January and the date of approval of the DIEF referred to in paragraph 1, the tariffs relative to the aforementioned services are those reported in the regional tariff nomenclature for outpatient specialist clinical pathology services indicated in Annex A) of Regional Executive Resolution no. 3784 of 22 September 1998, to which the 20 percent discount provided by Article 1, paragraph 796, letter o), of Law no. 296 of 27 December 2006 (Provisions for the formation of the annual and multiannual State budget – 2007 Finance Act) shall apply”;
that, according to the referring court, some of the grounds of appeal raised by the applicant are well-founded and, consequently, by way of a "judgment-order”, it annulled in part qua: the aforementioned Ministerial Decree of 12 September 2006; the measure of the Department of Health Policies of the Apulia Region of 25 January 2007 (limited to the part in which it orders the application of said Ministerial Decree); the resolution of the Regional Executive of the Apulia Region of 3 April 2007, no. 404 (in the part in which it ordered the application of previous circulars "in execution of the Ministerial Decree of 12 September 2006”);
that, in its view, the challenged rules would instead prevent the acceptance of the further grounds of the appeal and would determine the reduction of compensation for services rendered for the month of December 2006 and for 2007, at least until the adoption by the Apulia Region of the Economic and Functional Policy Document (DIEF), and, in relation to them, the doubt of constitutional legitimacy would not be manifestly unfounded, essentially for the reasons set out by the TAR for Apulia in the order of 19 October 2007, no. 3631, which referred the relevant question to this Court;
that the issues are relevant, as it is both challenged rules that require that the financing of the services take place by applying a 20 percent discount on laboratory analysis services and a 2 percent discount on the remaining sectors, affecting the budget for the year 2007;
that, according to the referring court, the challenged state rule would violate Articles 24 and 113 of the Constitution, as it would render applicable the Ministerial Decree of 22 July 1996, despite it having been annulled by a judgment of the Council of State (Section IV, 29 March 2001, no. 1839) that has become final, thereby causing a vulnus to the functions constitutionally attributed to the judiciary;
that, furthermore, said provision would violate Article 41 of the Constitution, since the tariff for the remuneration of services was established by law, imposing a discount on existing tariffs without accounting for the reasons for such a measure and making reference to outdated tariffs, failing to consider the increase in the costs of production factors and, in any case, to verify, following an investigation, any lack of increase or decrease thereof, with the unreasonableness of the discipline being confirmed by the contradiction inherent in the fact that the legislator, just three months after the approval of the Ministerial Decree of 12 September 2006, which had confirmed the 1996 tariffs, expressed a different option, proceeding to a further reduction;
that, in the opinion of the TAR, the challenged state rule would compromise the functionality of the accredited private facilities and, in violation of Article 32 of the Constitution, would affect the right to health and the right to free choice of the patient, also because the public facilities of the NHS would not be able to ensure, by themselves, the provision of healthcare services;
that the failure to conduct a "complete investigation” (or, at any rate, the omission of evidence of its completion) would be in conflict with Article 97 of the Constitution, given that the legislator must base its choices on an "adequate knowledge of the facts, which it must account for”, possibly through references to preparatory work or other documents;
that, according to the referring court, the "system outlined by Article 1, paragraph 796, letter o)” of Law no. 296 of 2006 would be "in conflict with Article 117 of the Constitution, at the moment in which the State does not limit itself to setting criteria for the fixing of tariffs by the regions, but fixes them directly”;
that the needs of containing public spending and the state legislative competence regarding the coordination of public finance (Article 117, third paragraph, Constitution) would not, in fact, permit the detailed identification of the cost items of regional budgets to be reduced and, in any case, the indication of the instrumental nature of the measure with respect to the need to "guarantee compliance with Community obligations and the realization of public finance objectives for the three-year period 2007-2009, in implementation of the protocol of agreement between the Government, the Regions and the Autonomous Provinces of Trento and Bolzano for a national pact for health on which the Conference of Regions and autonomous provinces, in the meeting of 28 September 2006” would have required the performance of an adequate investigation and would not justify "the infringement of private interests in the name of the always-invoked reasons of containing public spending”;
that, finally, the TAR concludes, the challenged regional rule would be vitiated by the same defects and would violate the principle of good administration (Article 97 of the Constitution), as: it entrusts the fixing of new tariffs to a future provision, without setting any deadline; it does not provide for any adjustment mechanism between provisional tariffs and those that, eventually, should have been fixed, so that identical services in 2007 could be subject to different remuneration not in consideration of their objective entity, but due to the casual temporal positioning of their execution within the same year;
that, in the opinion of the referring court, the financial difficulties of the Region could not be indiscriminately placed on the service providers and the regional rule in question would violate the cited constitutional parameter, in the part in which it entrusts to a future "Economic and Functional Policy Document (DIEF)” the methods for using the health fund allocated to the Region for the year 2007, and refers the service tariffs to the "regional tariff nomenclature for outpatient specialist clinical pathology services indicated in Annex A) of Regional Executive Resolution no. 3784 of 22 September 1998”, to which to apply the discount provided by Article 1, paragraph 796, letter o), of Law no. 296 of 2006;
that the National Order of Biologists, in the person of its pro tempore President, the applicant in the main proceedings, has appeared in the proceedings, requesting that the question be upheld, while reserving the right to present arguments;
that the President of the Council of Ministers has intervened, represented and defended by the State Attorney General’s Office, requesting that the question of constitutional legitimacy concerning the state rule be declared unfounded, as an identical question has already been declared unfounded by this Court with judgment no. 94 of 2009.
Considering that the Regional Administrative Tribunal for Lazio, Section III-quater, by way of a judgment-order dated 12 December 2007, has raised a question of constitutional legitimacy with reference to Articles 24, 32, 41, 97, 113 and 117 (recte: Article 117, third paragraph) of the Constitution, regarding Article 1, paragraph 796, letter o) of Law no. 296 of 27 December 2006 (Provisions for the formation of the annual and multiannual State budget (2007 Finance Act)), and Article 33, paragraph 2, of the Law of the Apulia Region no. 10 of 16 April 2007 (Provisions for the formation of the 2007 forecast budget and 2007-2009 multiannual budget of the Apulia Region), as amended by Article 2 of the Law of the same Region no. 16 of 5 June 2007 (First amendment to the forecast budget for the 2007 financial year), insofar as they impose on private facilities accredited with the National Health Service (hereinafter, NHS) a reduction in the tariffs concerning the remuneration for services rendered on behalf of said Service;
that the question, although proposed by a "judgment-order”, with which the TAR accepted some of the grounds proposed by the applicant, annulling in part qua some of the acts challenged in the main proceedings, without ruling on the censures whose decision it deemed conditioned on the prior definition of the constitutional incident, is nevertheless admissible;
that the provision contains, in fact, a double order of rulings and is configurable as an "order”, in the part in which the referring court, by it, has raised a question of constitutional legitimacy, without having applied the challenged rules and without having defined the main proceedings, of which, for the part not defined, it ordered the suspension (judgment no. 94 of 2009);
that the referring court has, moreover, not implausibly reasoned regarding the relevance of the question as proposed, also in relation to the regulation applicable ratione temporis, with reference to the services subject to the main proceedings;
that an identical question, concerning the same rules, raised with reference to the same constitutional parameters and the same profiles, also proposed by the TAR of Lazio, Section III-quater, with two orders issued on the same date, having content largely identical to the one under examination, has already been decided by this Court, together with the homologous questions proposed by substantially analogous referral provisions (one of which was expressly recalled by the referring court, to adopt its reasoning), and declared unfounded (judgment no. 94 of 2009);
that, with said judgment, this Court first reconstructed the complex evolution of the regulation of the provision and remuneration of healthcare services and, after highlighting the fundamental characteristics that connote the current system, emphasized the necessity for the ordinary legislator to proceed with the balancing of the needs to guarantee equally to all citizens, throughout the national territory, the fundamental right to health, to the widest possible extent, and to make healthcare expenditure compatible with the limited financial resources, within the framework of a general planning of the interventions to be carried out in this field;
that the cited ruling set out the arguments that exclude that the reference contained in the challenged discipline to previous tariffs, in light of its temporarily limited nature, allows, by itself, to consider it unreasonable (also in consideration of the subsequent regulatory events, also expressly indicated), with the possibility that services rendered in the same year (but subject to different regulations) are differently remunerated not being relevant to the contrary;
that the censures referred to Article 41 of the Constitution were declared unfounded, as the impairment of every margin of profit was not proven, especially in consideration of the temporarily limited nature of the discipline and the circumstance that the provision of services on behalf of the NHS is in any case the result of a choice by private facilities;
that an analogous conclusion was affirmed regarding the censure proposed in relation to Article 32 of the Constitution, because the principle of free choice is not absolute and must be balanced with the other constitutionally protected interests, in consideration of the objective limits that the ordinary legislator itself encounters in relation to the available financial resources, while the impact of the challenged discipline on the permanence of private facilities within the organization of the NHS, with possible prejudice to the functionality of the latter, was considered unsuitable to give substance to the censure, as the relative projection was entrusted to a merely hypothetical argument;
that the reference to Article 97 of the Constitution was judged irrelevant, since said parameter is not referable to the performance of the legislative function;
that the question raised in relation to Articles 24, 103 and 113 of the Constitution was declared unfounded, since the ordinary legislator provided for a regulation of the remuneration of services, attracting it, temporarily, to the legislative sphere, by virtue of a choice that is neither unreasonable nor manifestly arbitrary, establishing a discipline without retroactive effect, which, therefore, did not violate the final judgment and the effects of the judgment of the Council of State (Section IV, 29 March 2001, no. 1839), indicated as the allegedly infringed judgment;
that judgment no. 94 of 2009 considered the question referred to Article 117, third paragraph, of the Constitution as unfounded, both because the state rule did not exclude the power of the Regions to establish higher tariffs, which remain charged to regional budgets, and in light of the sharing of the objective of reducing health expenditure (expressed by the Conference of Regions and autonomous provinces, in the meeting of 28 September 2006, in relation to the protocol of agreement between the Government, the Regions and the Autonomous Provinces of Trento and Bolzano for a national pact for health), also explaining the arguments in support of the unfoundedness and irrelevance of the deductions concerning the direct fixing of the tariffs in question by the state rule;
that such arguments, and the further ones carried out in said judgment, have led, finally, this Court to judge the censures concerning the regional rule as unfounded (referred to all the parameters indicated above, except for Article 117, third paragraph, Constitution, to be considered invoked only in relation to the state rule);
that the referring court does not propose arguments that are different and additional with respect to those deduced with two referral provisions, of content largely identical to the one under examination, pronounced by the same TAR of Lazio, Section III-quater, on the same date, evaluated, together with the others that proposed the questions decided by judgment no. 94 of 2009, and, consequently, the question must be declared manifestly unfounded.
Having regard to Articles 26, second paragraph, of Law no. 87 of 11 March 1953, and 9, paragraph 2, of the Supplementary Norms for proceedings before the Constitutional Court.
FOR THESE REASONS
THE CONSTITUTIONAL COURT
declares the manifest unfoundedness of the question of constitutional legitimacy of Article 1, paragraph 796, letter o), of Law no. 296 of 27 December 2006 (Provisions for the formation of the annual and multiannual State budget – 2007 Finance Act), raised with reference to Articles 24, 32, 41, 97, 113 and 117, third paragraph, of the Constitution, by the Regional Administrative Tribunal for Lazio, with the order indicated in the epigraph;
declares the manifest unfoundedness of the question of constitutional legitimacy of Article 33, paragraph 2, of the Law of the Apulia Region no. 10 of 16 April 2007 (Provisions for the formation of the 2007 forecast budget and 2007-2009 multiannual budget of the Apulia Region), as amended by Article 2 of the Law of the same Region no. 16 of 5 June 2007 (First amendment to the forecast budget for the 2007 financial year), raised with reference to Articles 24, 32, 41, 97 and 113 of the Constitution, by the Regional Administrative Tribunal for Lazio, with the order indicated in the epigraph.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 5 July 2010.
Signed:
Francesco AMIRANTE, President
Giuseppe TESAURO, Reporting Judge
Giuseppe DI PAOLA, Chancellor
Filed in the Registry on 7 July 2010.