JUDGMENT NO. 1
YEAR 2024
Comments on the decision of
1. Giuseppe Giuliano, Regional health financing and provision of Essential Levels of Assistance in relation to the principles of harmonization of public budgets and coordination of public finance, for g.c of The Review of the Court of Auditors
2. Clemente Forte and Marco Pieroni, Accounting harmonization, financial coordination and the principle of financial balance: an inverted triptych, for g.c. of federalismi.it
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has pronounced the following
JUDGMENT
in the judgment on the constitutional legitimacy of Article 90, paragraph 10, of the Law of the Sicilian Region of May 3, 2001, No. 6 (Programmatic and financial provisions for the year 2001), as replaced by Article 58, paragraph 2, of the Law of the Sicilian Region of May 7, 2015, No. 9 (Programmatic and corrective provisions for the year 2015. Regional stability law), promoted by the Court of Auditors, Joint Sections for the Sicilian Region, in the judgment on the equalization of the general accounts of the Sicilian Region for the financial year 2020, with ordinance of February 7, 2023, registered under no. 41 of the ordinance register 2023 and published in the Official Gazette of the Republic No. 15, first special series, of the year 2023.
Having seen the act of constitution of the Sicilian Region, as well as the act of intervention of the Attorney General of the Court of Auditors;
having heard at the public hearing of November 21, 2023, the Reporting Judge Marco D’Alberti;
having heard the Deputy Attorney General of the Court of Auditors Adelisa Corsetti for the Attorney General's Office at the Court of Auditors and the lawyer Nicola Dumas for the Sicilian Region;
deliberated in the council chamber of November 23, 2023.
Considered in fact
1.– The Court of Auditors, Joint Sections for the Sicilian Region, in the judgment on the equalization of the regional accounts for the financial year 2020, with ordinance registered under no. 41 of the ord. reg. 2023, raised questions of constitutional legitimacy of Article 90, paragraph 10, of the Law of the Sicilian Region of May 3, 2001, No. 6 (Programmatic and financial provisions for the year 2001), as replaced by Article 58, paragraph 2, of the Law of the Sicilian Region of May 7, 2015, No. 9 (Programmatic and corrective provisions for the year 2015. Regional stability law).
The challenged provision provides for the allocation to the Regional Agency for Environmental Protection (ARPA or Agency) of a share of the ordinary annual funding of the resources of the Regional Health Fund (FSR), determined in the amount of 29 million euros (to be recorded in budget chapter 413372), to carry out mandatory institutional and technical control activities.
2.– The referring Sections, after a description of the course of the equalization judgment and the regulatory framework of reference, state that they have carried out investigations on the financing of ARPA in the financial year 2020 and have observed that, in application of the aforementioned Article 90, paragraph 10, of Regional Law No. 6 of 2001, an annual transfer of 29 million euros is made from the regional budget to that of ARPA, using the financial resources of the Regional Health Fund. This is done "in the absence, on the one hand, of a prior programming activity regarding the services that must be provided by the Agency within the framework of the LEA [Essential Levels of Assistance] during the financial year and, on the other hand, of a subsequent reporting of the effective use of resources in the provision of health services, based on economic accounting processes of management events based on the criteria of analytical accounting". The absences found would depend on the lack of a prescription which, within the framework of the aforementioned legal provision, establishes the methods of financing ARPA, establishing an immediate and binding link between the quantum of the transfer received and the provision of health services relating to the LEA.
2.1.– The Joint Sections therefore deduce their legitimacy to raise questions of constitutional legitimacy in the equalization of regional accounts, citing in this regard, among others, the judgments of this Court no. 146 and no. 138 of 2019 and no. 181 of 2015.
2.2.– According to the judge a quo, the questions would be relevant in the context of the equalization judgment due to the accounting effect produced by Article 90, paragraph 10, of Regional Law. Sicilian no. 6 of 2001 which, by financing ARPA through the allocation of quotas from the Regional Health Fund, would alter the result of the administration. Specifically, the challenged provision would allow the area of the so-called "health perimeter", traced by the state accounting discipline, to be illegitimately expanded, in violation of the constitutional principles on the matter, thus affecting the methods and quantity of financing of the LEA and, therefore, on the result of the administration. The referring party specifies that, if the challenged provision were declared constitutionally illegitimate, the illegitimacy of the expenses concerning the financing of ARPA in the year 2020 (recorded in expenditure chapter 413372) would follow, with the simultaneous exclusion, from the liabilities of the health perimeter of the financial year, at least of the part of them not effectively related to the provision of services related to the LEA.
2.3.– As for the non-manifest lack of merit, the provision contained in the challenged provision would constitute a violation of the general principle of coordination of public finance pursuant to Article 117, third paragraph, of the Constitution. The provision in question, in fact, would qualify the expenditure for the financing of the Agency as a "health" expenditure, through its inclusion in the health perimeter, but would not link this quantification to services actually related to the LEA. In particular, there would be no criteria for determining these services, distinct from others, falling within the tasks of the Agency and as such not financeable with the resources allocated to the LEA.
2.4.– The referring party adds that Article 54 of the Law of the Sicilian Region of August 11, 2017, No. 16 (Programmatic and corrective provisions for the year 2017. Regional stability law. Excerpt I) has attributed to ARPA the qualification of «body of the health sector», thereby fully including the Agency in the list of the health area. However, with the judgment no. 172 of 2018 of this Court, the constitutional illegitimacy of this provision was declared, for violation of Article 117, third paragraph, of the Constitution, regarding the coordination of public finance. In this ruling, it was affirmed that: the functions pertaining to ARPA are only minimally attributable to health functions stricto sensu; the system of financing, qualification and control of environmental agencies must be considered clearly distinct from that of the bodies of the health sector; the Sicilian Region is engaged in returning from the health deficit and the inclusion of a body extraneous to health services implies the assumption of additional charges to the regional budget, in contrast with the recovery objectives that are typical of the plan.
2.5.– Article 90, paragraph 10, of Regional Law. Sicilian no. 6 of 2001 would also be in contrast with Article 117, second paragraph, letter e), of the Constitution, regarding the harmonization of public budgets, of which Article 20 of Legislative Decree no. 23 of June 2011 is an interposing norm. 118 (Provisions on the harmonization of the accounting systems and budget schemes of the Regions, local authorities and their bodies, pursuant to Articles 1 and 2 of Law No. 42 of May 5, 2009), which defines the accounting treatment of resources allocated to the financing of the individual regional health services. In this regard, the referring party recalls the constitutional jurisprudence concerning the "health perimeter", which has established the conditions, not derogable by regional legislation, for the identification and allocation of resources intended to guarantee the essential levels of services (judgments no. 233 of 2022 and no. 197 of 2019) and which does not allow for the allocation of current resources, specifically allocated in the budget for the financing of the LEA, to expenses other than those quantified for the coverage of the latter (judgment no. 132 of 2021).
2.6.– The judge a quo also doubts the compatibility of the provision in question with Articles 81, 97, first paragraph, and 119, first paragraph, of the Constitution, which regulate the principle of balance of public budgets. Through the challenged provision, the Sicilian Region would carry out an operation that, in the face of the decrease in resources for the LEA, would expand the spending capacity in the non-health sector, i.e. ordinary, of the regional budget, on which - in terms of substantial effects - the charges of expenses deriving from the transfer of staff from the hygiene and prophylaxis laboratories and relating to the operating and maintenance costs of the assets used by ARPA would not fall.
2.7.– The Joint Sections conclude by noting the absence of the prerequisites for a different, constitutionally oriented interpretation of the provision, due to its clear literal wording which, in regulating the methods of financing ARPA at the expense of the FSR, would not make any reference to the provision of health services relating to the LEA.
3.– The Sicilian Region has appeared in court, requesting that the documents be returned to the referring party or that the questions raised be declared unfounded.
3.1.– The Region believes that the economic resources allocated to ARPA would represent "a simple transfer of resources" from the Public Agency for Personal Services (ASP) to ARPA, using the FSR. This transfer would, in turn, be determined by the transfer of competences in matters of health prevention, which took place with the establishment of the System of agencies for environmental protection by Decree-Law of 4 December 1993, No. 496 (Urgent provisions on the reorganization of environmental controls and the establishment of the National Agency for Environmental Protection), converted, with amendments, into Law No. 61 of January 21, 1994.
The financing mechanism implemented in the Sicilian Region would also be consistent with that of other regions which would have provided, among the sources of financing of the related Regional Agencies, a share of the Regional Health Fund, determined on the basis of the functions assigned following the separation from the National Health Service.
3.2. – As proof of the assumption that the share of the FSR annually attributed to the Agency should be attributed to the health prevention activity carried out by the same, the Sicilian Region also cites Article 6, paragraph 1, letter h-bis) of the Law of the Sicilian Region of April 14, 2009, No. 5 (Rules for the reorganization of the Regional Health Service), which has allocated the financial resources available annually for the Regional Health Service also to the financing of ARPA for health prevention activities within its competence.
3.3.– The Sicilian Region then recalls that Article 1, paragraph 1, of Law no. 132 of 28 June 2016 (Establishment of the National Network System for Environmental Protection and regulation of the Higher Institute for Environmental Protection and Research) established the National Network System for Environmental Protection (SNPA), consisting of the Regional Agencies and the Autonomous Provinces of Trento and Bolzano for environmental protection. Within the regulatory framework following this law, the following principles would be affirmed: the integration between the services provided by the environmental protection system and the collective prevention objectives provided for by the LEA; the financing with part of the funds previously allocated to the regional health service of the functions and personnel of the Agencies. This latter circumstance would also be confirmed by the technical report of April 18, 2017, of the Legislative Office of the Ministry of the Environment and the Protection of the Territory and the Sea on the final text of the bill to establish the SNPA, as well as by the decree of the President of the Council of Ministers of January 12, 2017 (Definition and updating of essential levels of assistance, referred to in Article 1, paragraph 7, of Legislative Decree no. 502 of December 30, 1992). In particular, it would emerge from Annex 1 of this decree that the functions carried out by the Agencies would be attributable to programs included in the intervention areas concerning the LEA.
3.4.– The Region observes that even the most recent orientations of the national legislator would lead to an increasingly close integration between the health and environmental areas and recalls, in particular, Article 27 of Decree-Law no. 36 of April 30, 2022, containing "Further urgent measures for the implementation of the National Recovery and Resilience Plan (PNRR)", converted, with amendments, into Law No. 79 of June 29, 2022.
3.5.– The Sicilian Region also underlines that, with Article 4 of the Law of the Sicilian Region of February 22, 2023, No. 2 (Regional stability law 2023-2025), the regional legislator, in order to overcome the objections raised by the Court of Auditors in the referral order, has replaced the challenged provision, providing for a financing regime at the expense of the FSR closely related to the services that ARPA performs annually within the framework of the disbursements of the LEA, especially in the field of health prevention.
4.– The Attorney General of the Court of Auditors has intervened in the proceedings.
4.1.– In support of the admissibility of his participation in the proceedings, the public prosecutor recalls the right of the bodies of the State and the regions to intervene in proceedings before this Court (Article 20, second paragraph, of Law No. 87 of 11 March 1953, containing "Rules on the constitution and functioning of the Constitutional Court"), according to the discipline contained in Article 4, paragraph 3, of the Supplementary Rules for judgments before the Constitutional Court.
The intervener recalls the rulings of this Court in judgments for conflict of attribution between bodies, which have affirmed the admissibility of the intervention of the Attorney General of the Court of Auditors (judgments no. 184 and no. 90 of 2022) and notes that the outcome of the judgment on constitutional legitimacy would be likely to affect the power of the PM accountant to act in court to protect the interests of the entire community in the correct management of public resources and, in particular, on the power to challenge the decision of equalization of the regional general accounts. He adds that, if the Supplementary Rules allow the intervention in the constitutional judgment also of third parties, a fortiori this should be allowed for the original parties in the judgment a quo.
4.2.– On the merits, the intervener refers to the considerations made by the Court of Auditors in the referral order.
5.– With a memorandum filed in view of the hearing, the Sicilian Region insisted on the deductions already made and added that the ius superveniens would not have innovated the matter, but only clarified and explained the close correlation between the activity of ARPA and the National Health Service, with particular regard to the LEA.
The correctness of the regulation of financing for ARPA in the financial year 2020 would also be confirmed by the fact that also in the year 2020 the Agency would have carried out activities already related to the LEA, according to the same correlation matrix between the essential levels of environmental technical services (LEPTA) and the LEA agreed with the Regional Department of Health Activities and Epidemiological Observatory (DASOE) for the year 2023, in the same percentage of 85 percent of the complex of activities carried out by the Agency for the first half of the year 2023.
Ultimately, the Sicilian Region adds, due to the homogeneity of the activity carried out by the Agency, since its establishment, its activities related to the LEA for the year 2023 would coincide with those historically carried out by the same Agency in all previous years, including 2020.
Considered in law
1.– The Court of Auditors, Joint Sections for the Sicilian Region, within the context of the judgment on the equalization of the Region's accounts for the financial year 2020, raises questions of constitutional legitimacy of Article 90, paragraph 10, of the Regional Law. Sicilian no. 6 of 2001, in the text amended by Article 58, paragraph 2, of the Regional Law. Sicilian no. 9 of 2015, with reference to Articles 81, 97, first paragraph, 117, paragraphs second, letter e), and third, and 119, first paragraph, of the Constitution.
The challenged provision provides for the allocation to the Sicilian Regional Agency for Environmental Protection (ARPA or Agency) of a share of the ordinary annual funding of the resources of the Regional Health Fund (FSR), determined in the amount of 29 million euros (to be recorded in budget chapter 413372), to carry out mandatory institutional and technical control activities.
The referring party denounces the violation of the general principle of coordination of public finance pursuant to Article 117, third paragraph, of the Constitution, since Article 90, paragraph 10, of Regional Law. Sicilian no. 6 of 2001 would qualify the expenditure for the financing of ARPA as a health expenditure through its inclusion in the health perimeter, without linking this quantification to services actually related to the LEA.
The challenged provision would also be in contrast with Article 117, second paragraph, letter e), of the Constitution, regarding the harmonization of public budgets, in relation to Article 20 of Legislative Decree no. 118 of 2011, which defines the accounting treatment of resources allocated to the financing of the individual regional health services; the referring party recalls, in this regard, the constitutional jurisprudence concerning the "health perimeter", which has established the conditions, not derogable by regional legislation, for the identification and allocation of resources intended to guarantee the LEA.
Furthermore, the judge a quo doubts the compatibility of the challenged provision with Articles 81, 97, first paragraph, and 119, first paragraph, of the Constitution, which regulate the principle of balance of public budgets. Through the challenged provision, the Sicilian Region would carry out an operation that, in the face of the decrease in resources for the LEA, would expand the spending capacity in the non-health sector, i.e. ordinary, of the regional budget.
2.– Preliminarily, it should be reiterated what was stated in the order read out at the hearing, attached to this provision, on the inadmissibility of the intervention of the Attorney General of the Court of Auditors, as a subject other than the Section President holding the Attorney General's Office at the Jurisdictional Appeal Section for the Sicilian Region, to whom the quality of party in the judgment a quo must be recognized.
3.– Also in a preliminary manner, the conditions do not exist for ordering the return of the documents to the judge a quo, so that he takes into account the changes to the challenged provision made by Regional Law. Sicilian no. 2 of 2023.
The new wording of Article 90, paragraph 10, of Regional Law. Sicilian no. 6 of 2001 now provides for the allocation to ARPA of an "indistinct annual operating contribution" (letter a) equal to 7 million euros and an "annual contribution for the three-year period 2023-2025 at the expense of the regional health fund" (letter b), for the pursuit of objectives related to the LEA, for a maximum amount of 24 million euros per year.
This change, however, does not affect the relevance of the questions raised in the judgment a quo, since for the correct determination of the result of the administration of the financial year 2020, the provisions in force pro tempore come into play, including the regional provision in its wording subject to challenge by the referring party (in terms, in a similar hypothesis, see the judgment no. 233 of 2022).
4.– On the merits, logical reasons lead to first addressing the question raised with reference to the exclusive legislative competence of the State pursuant to Article 117, second paragraph, letter e), of the Constitution, regarding the harmonization of public budgets, in relation to the interposing norm on the "health perimeter" referred to in Article 20 of Legislative Decree no. 118 of 2011.
The question is well-founded.
4.1.– Article 20, paragraph 1, of Legislative Decree no. 118 of 2011 requires the regions to guarantee, within the framework of the budget, «an exact perimeterization of the revenues and expenditures relating to the financing of their regional health service», for the declared «purpose of allowing an immediate comparison between the health revenues and expenses recorded in the regional budget and the resources indicated in the acts» of health financial programming. To achieve this objective, paragraph 1 of the same article prescribes the adoption of an articulation of budget chapters that allows to guarantee «separate evidence» of the magnitudes typified therein, the first of which, in Section A) «[r]evenues» (letter a), indicates the «ordinary current health financing as derived» from the aforementioned sources of programming, which corresponds, to letter a) of Section B) «[e]xpenditure», the «current health expenditure for the financing of the LEA [...]». For the health perimeter thus brought to evidence, specific accounting rules are then established which, as stated in the subsequent paragraph 2, are aimed at «guaranteeing effectiveness in the financing of the levels of health assistance».
4.2.– This Court recalled, in judgment no. 132 of 2021, that the aforementioned Article 20 «establishes indispensable conditions in the identification and allocation of resources pertaining to the essential levels of services», from which derives «the impossibility of allocating current resources, specifically allocated in the budget for the financing of the LEA, to expenses, still of a health nature, but different from those quantified for the coverage of the latter». With the only exception, provided for by Article 30, paragraph 1, third period, of the same Legislative Decree no. 118 of 2011, in favor of regions that, managing «in a virtuous and efficient manner the current resources allocated to guarantee the LEA», as well as «achieving both the quality of the services provided and savings in the budget», «may legitimately maintain the savings obtained and allocate them to broader health purposes».
In this context, «the determination and constant updating in financial terms of the resources linked to the provision of the LEA in favor of all those who are on the territory of the various Regions» is fundamental (judgment no. 91 of 2020).
Therefore, the interposing norm «is specifically functional, consistently with the heading of the same (Transparency of health accounts and allocation of resources to the financing of individual regional health services), to avoid accounting opacities and undue distractions of funds intended to guarantee the LEA» (judgment no. 233 of 2022).
4.3.– The challenged provision, in providing that all expenses for the operation of the Agency could be covered, indiscriminately, by the Regional Health Fund, is in contrast with the interposing norm referred to in the aforementioned Article 20, since, in the text in force ratione temporis, it allocated resources to ARPA indiscriminately, without distinguishing between those necessary to guarantee the services related to the LEA and those intended for services of the Agency of a non-health nature, as such not financeable through the Regional Health Fund.
4.4.– The Sicilian Region argues that the economic resources allocated to ARPA would represent "a simple transfer of resources", already intended to cover expenses concerning the health sector, from the Public Agency for Personal Services (ASP) to ARPA. This is because Decree-Law no. 496 of 1993, as converted, had provided that the establishment of regional environmental agencies should take place "without additional charges for the regions" (Article 03, paragraph 2) and that these agencies should be assigned the functions for environmental protection and the corresponding financial resources that were once the responsibility of the local health authorities (Article 03, paragraph 1, first period).
This circumstance, however, is not relevant with respect to the questions of constitutional legitimacy raised by the accounting judge, since it does not exempt the Sicilian Region from the obligation to identify a correlation between the resources allocated to ARPA and the LEA. The harmonization of public budgets, in fact, is a matter of exclusive competence of the State which cannot undergo territorial derogations, not even within the constitutionally guaranteed special autonomies (among the many, judgment no. 80 of 2017).
4.5.– For the same considerations, the affirmation of the Region is not significant regarding the alleged existence of numerous regional laws (including those of the regions currently subject, like the Sicilian one, to recovery plans) which would still provide for a similar financing of the agencies for environmental protection largely financed by the FSR.
4.6.– Nor is the analysis, carried out in the Region's defenses, of the numerous functions assigned by state legislation to ARPA, in order to demonstrate that the Agency carries out certain activities relating to the health sector, including those necessary for the achievement of the LEA, as such financeable through the FSR. decisive.
In fact, the assignment to ARPA of functions not exclusively referable to environmental protection and also concerning the health field cannot justify the failure to comply with the aforementioned state discipline on the "health perimeter", which requires the precise identification of the resources intended to guarantee the LEA, under penalty of violation of Article 117, second paragraph, letter e), of the Constitution, regarding the harmonization of public budgets.
4.7.– Furthermore, the Sicilian legislator, after the adoption of the referral order of the Court of Auditors, radically modified the challenged provision, innovating – with Article 4 of Regional Law. Sicilian no. 2 of 2023 – the previous regulation on the financing of ARPA and providing for an ordinary operating contribution of this Agency which is added to that charged to the FSR. Significantly, it is now established that the portion of resources allocated to the Agency using the Regional Health Fund must be allocated to the «pursuit of primary prevention objectives related to the environmental and climatic determinants directly and indirectly associated with the prevention and control of health risks related to the provision of the LEA and the financing of costs for services that have these characteristics based on the guidelines dictated by the Regional Council on a three-year basis».
Therefore, also from the ius superveniens referred to in Article 4 of Regional Law. Sicilian no. 2 of 2023, which rewrote Article 90, paragraph 10, of Regional Law. Sicilian no. 6 of 2001, it can be deduced that the previous regulatory statement lacked the necessary correlation between the resources allocated to ARPA using the Regional Health Fund and the LEA.
Consequently, the question raised by the Joint Sections of the Court of Auditors with reference to Article 117, second paragraph, letter e), of the Constitution is well-founded.
5.– Similarly well-founded is the question raised with reference to Article 117, third paragraph, of the Constitution.
5.1.– It should be recalled that the Sicilian Region is subject to the constraints of the plan to recover from the health deficit and, consequently, in its budget no additional health expenses can be provided other than those relating to the essential levels.
In fact, as constantly affirmed by this Court, also towards the Sicilian Region itself (judgment no. 172 of 2018), the subjection to these constraints prevents the possibility of increasing health spending for reasons not inherent in guaranteeing essential services and,