ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Judges: Franco MODUGNO, 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 issued the following
JUDGMENT
in the proceedings for constitutional legitimacy of Article 1, paragraph 1, of Law of the Sardinia Region No. 5 of May 5, 2023 (Urgent provisions regarding primary care), promoted by the President of the Council of Ministers with a claim notified on June 28, 2023, filed with the court registry on July 3, 2023, registered under No. 22 of the 2023 claim register, and published in the Official Gazette of the Republic No. 33, first special series, of the year 2023.
Having seen the act of constitution of the Autonomous Region of Sardinia;
Having heard the reporting Judge Giulio Prosperetti at the public hearing of January 23, 2024;
Having heard the State Attorney Enrico De Giovanni for the President of the Council of Ministers, and the attorney Sonia Sau for the Autonomous Region of Sardinia;
Resolved in the council chamber of January 23, 2024.
Considered in fact
1. – With a claim notified on June 28, 2023, and filed on July 3, 2023 (reg. claim no. 22 of 2023), the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, raised issues of constitutional legitimacy of Article 1, paragraph 1, of Law of the Sardinia Region No. 5 of May 5, 2023 (Urgent provisions regarding primary care) for violation of the statutory competences under Articles 3, 4 and 5 of Constitutional Law of February 26, 1948, no. 3 (Special Statute for Sardinia), the exclusive state competence in the matter of "civil law,” pursuant to Article 117, second paragraph, letter l), of the Constitution, as well as the principle of equality established by Article 3 of the Constitution.
1.1. – The challenged regional provision establishes: "[It] is authorized, pending the approval of the regional supplementary agreement of the category, the increase of the maximum number of patients up to the maximum limit of 1,800 choices, on a voluntary basis, for primary care physicians operating in disadvantaged areas identified by the Region, where such increase is necessary to guarantee assistance”.
1.2. – The applicant notes that the regulation of the maximum number of patients for each primary care physician, which is the subject of the challenged regional provision, is established by Article 38 of the national collective agreement for the regulation of relations with general practitioners pursuant to Article 8 of Legislative Decree no. 502 of 1992 and subsequent amendments and additions – Three-year period 2016-2018, of April 28, 2022 (hereinafter: NCA), which, in paragraphs 1 and 2, establishes: "1. Physicians of the single primary care role listed in the registers may acquire a maximum number of choices equal to 1,500 units. Any derogations from the maximum may be authorized in relation to particular local situations, pursuant to Article 48, paragraph 3, point 5, of Law 833/78, for a specified period, not exceeding six months. 2. In implementation of regional planning, the RISA [Regional Supplementary Agreement] may provide for an increase in the maximum referred to in paragraph 1 up to the maximum limit of 1,800 choices exclusively for physicians operating within the multi-professional organizational forms of the single primary care role, with secretarial and nursing staff and possibly other healthcare personnel, to ensure continuity of care, as provided for in Article 35, paragraph 5, and/or in disadvantaged areas identified by the Region, where such increase is necessary to guarantee assistance”.
1.3. – In order to understand the censures promoted against the challenged regional provision, the state defense proceeds to a survey of the discipline that regulates the agreement relationship between the National Health Service and general practitioners.
In this regard, it represents that already Article 48 (Contract personnel) of Law no. 833 of December 23, 1978 (Establishment of the National Health Service) has established, in the first paragraph, that "[t]he uniformity of economic and regulatory treatment of contract healthcare personnel is guaranteed throughout the national territory by agreements, with a three-year duration, fully compliant with the national collective agreements stipulated between the Government, the regions and the National Association of Italian Municipalities (ANCI) and the most representative trade union organizations at the national level of each category".
The state defense also points out that the outlined structure for regulating the agreement relationship in question has been confirmed by Article 8, paragraph 1, of Legislative Decree no. 502 of December 30, 1992 (Reorganization of the regulations on healthcare matters, pursuant to Article 1 of Law no. 421 of October 23, 1992) and by Article 2-nonies of Decree-Law no. 81 of March 29, 2004 (Urgent measures to deal with situations of danger for public health), converted, with amendments, into Law no. 138 of May 26, 2004.
The applicant notes that, in light of the illustrated state provisions, "the regulation of the employment relationship of general practitioners under agreement, although of a professional nature, is entrusted to the intervention of collective bargaining, the procedure of which has been modeled by the legislator with express reference to that provided for collective bargaining by Legislative Decree no. 165 of March 30, 2001 ("General regulations on the organization of employment in the service of public administrations") for public administration personnel whose relationship has been privatized. In terms of the relationship between the different levels of collective bargaining (national, regional and company), the reference, by Article 4 of Law no. 412 of 1991, to Article 40 ("National and supplementary collective agreements”) of Legislative Decree no. 165 of 2001, is of particular relevance”.
Article 40 of Legislative Decree no. 165 of 2001 establishes that supplementary collective bargaining takes place on matters, with the constraints and within the limits established by national collective agreements, between the parties and with the negotiation procedures that the latter provide, and provides, to guarantee compliance with these stringent constraints, the nullity and inapplicability of clauses of supplementary collective agreements that differ from the provisions of the national level.
The State Attorney General’s Office represents that, in implementation of the recalled state provisions, the employment relationships of general practitioners have therefore been governed by the NCA, which, in turn, identifies the specific aspects left to the definition of regional negotiation.
1.4. – According to the applicant, from the outlined regulatory framework, it clearly emerges "how the Regions are precluded from adopting legislation that affects an employment relationship that has already arisen and, in regulating its legal and economic treatment, from replacing collective bargaining, an essential source of regulation (cf. Constitutional Court, judgments no. 20 of 2021; no. 157/2019; no. 153/2021)”. In particular, reference is made to what was stated in the judgment no. 157 of 2019 regarding the nature of the agreement relationship of general practitioners and the attribution of the related discipline to the civil law based on the state provisions recalled and the referral made by them as a regulatory source to collective autonomy.
Therefore, the state defense maintains that the challenged provision constitutes an exercise of competence that goes beyond those recognized to the regional legislator by the state legislation of reference, insofar as "it authorizes a derogation in increase to the maximum number of patients, replacing the provisions of supplementary bargaining and, at the same time, departing from those of national collective bargaining” referred to in Article 38 NCA, since paragraph 2 reserves to the RISA the possibility of increasing to 1,800 patients the maximum fixed at 1,500 by paragraph 1 of the same article.
It would therefore be evident that the challenged regional rule, in providing for the increase of the maximum in question, would have violated the rules of national collective bargaining, replacing supplementary bargaining.
1.5. – Ultimately, according to the applicant, the challenged provision would first of all exceed the statutory competences attributed to the Autonomous Region by Articles 3, 4 and 5 of the statute; it would therefore be detrimental to Article 117, second paragraph, letter l), of the Constitution, since the determination of the maximum number of patients for each primary care physician, as an aspect of the related employment relationship attributable to the matter of "civil law,” is referred to collective bargaining by the aforementioned state provisions cited as interposed parameters; finally, it would entail the "violation of the need connected to the constitutional precept of equality (Article 3, Constitution), to guarantee the uniformity, on the national territory, of the fundamental rules of law that govern the relationships in question".
2. – The Autonomous Region of Sardinia was constituted in court with a document filed on August 2, 2023, requesting that the claim be declared inadmissible or, in any case, unfounded.
In support, the respondent Region makes some preliminary considerations.
First of all, it highlights that "already due to its territorial conformation, characterized by a few large urban centers and numerous towns scattered over a vast territory, far away and poorly connected, also located on minor islands and in the mountains, it has structural difficulties in guaranteeing primary care in disadvantaged areas”.
It also notes that Decree-Law no. 4 of January 28, 2019 (Urgent provisions on income support and pensions), converted, with amendments, into Law no. 26 of March 28, 2019, in introducing provisions for accessing early retirement, has "dramatically reduced the number of doctors in service, further aggravating the situation, and Covid has further made the choice, by doctors, of training in general medicine and, in any case, this type of assignment unattractive”.
In this context, the defense of the respondent represents that "[t]he Region, therefore, pending the adoption of the new RISA, the tables of which have already been initiated – in which the structural discipline referred to in paragraph 2 of Article 38 of the NCA will be included – has exercised the power granted by paragraph 1 of the aforementioned article, pursuant to Article 48 of Law 833 of 1978, and in compliance with Article 32 of the Constitution”, providing, for this period of time, that doctors operating in disadvantaged areas may request to be authorized to exceed the maximum of 1,500.
According to the regional defense, the autonomy of the two paragraphs of the aforementioned provision of the NCA would be evident, "since the first allows the regions to deal with contingent situations, for a limited period, by increasing the maximum that is deemed most appropriate to the situation. In the case at hand, the Sardinia Region, having assessed the situation of the deficient areas, has discretionally decided to adopt the maximum of 1,800. The second paragraph, on the other hand, provides that, based on regional planning, the maximum of 1,800 patients may be provided for in the RISA, structurally therefore without time limits, for the sole ‘categories’ of doctors indicated therein”.
Based on the proposed exegesis of the contractual provisions in question, the regional defense assumes that "[t]he applicant is therefore wrong where it objects to the illegitimacy of the challenged regional provision on the basis of the combined provisions of these autonomous paragraphs of Article 38 of the NCA, given that the second is not a specification of the first but contains an autonomous discipline”. It would follow that the regional legislator would not have appropriated a discipline left to collective bargaining, "since it has exercised the power referred to in Article 38 of the NCA, which allows the regions to provide for a temporary derogation from the maximum number of patients with tools other than the RISA, to which, instead, is reserved the derogation, of a predetermined size and without time limits, referred to in paragraph 2”.
2.1. – The respondent concludes, therefore, for the declaration of inadmissibility and/or unfoundedness of the claim, assuming that "in essence, it is focused on the violation of Article 38, paragraph 2, of the NCA, which regulates the derogations from the maximum number of patients referred to the RISA, while it says nothing about the correct use, by the Region, of the temporary derogation referred to in paragraph 1”.
Considered in law
1. – With the claim indicated in the epigraph (reg. claim no. 22 of 2023), the President of the Council of Ministers, represented and defended by the State Attorney General’s Office, raised issues of constitutional legitimacy of Article 1, paragraph 1, of Law of the Sardinia Region No. 5 of 2023, for violation of the statutory competences attributed to the Autonomous Region by Articles 3, 4 and 5 of the statute, of the exclusive state legislative competence in the matter of "civil law,” pursuant to Article 117, second paragraph, letter l), of the Constitution, as well as the principle of equality established by Article 3 of the Constitution.
Article 1, paragraph 1, of Law of the Sardinia Region No. 5 of 2023 establishes: "[It] is authorized, pending the approval of the regional supplementary agreement of the category, the increase of the maximum number of patients up to the maximum limit of 1,800 choices, on a voluntary basis, for primary care physicians operating in disadvantaged areas identified by the Region, where such increase is necessary to guarantee assistance”.
According to the applicant, the aforementioned provision affects an aspect, such as that constituted by the determination of the maximum number of patients of each physician in the single primary care role, which is part of the regulation of the economic and regulatory treatment of the aforementioned healthcare personnel, entrusted by state legislation to the collective negotiation source.
In this case, Article 38, paragraphs 1 and 2, of the NCA of general practitioners of April 28, 2022, establishes, at the national level, the maximum number of 1,500 patients for each physician and entrusts to the second-level negotiation source, i.e., the RISAs, the possibility of increasing this maximum to 1,800 patients, when certain conditions exist.
1.1. – In recalling the constitutional jurisprudence that has attributed the discipline of the agreement relationship in question to the matter of "civil law” (judgments no. 153 and no. 20 of 2021, and no. 157 of 2019, are cited), the applicant deduces the constitutional illegitimacy of the challenged provision under multiple profiles.
First of all, the statutory competences of the Autonomous Region of Sardinia under Articles 3, 4 and 5 would be violated, since the challenged provision intervenes on the regulation of the employment relationship of physicians in the single primary care role that falls outside the aforementioned competences.
Article 117, second paragraph, letter l), of the Constitution, would therefore be violated, since the determination of the maximum number of patients for each primary care physician, as an aspect of the related employment relationship attributable to the matter of "civil law” reserved to the exclusive legislative competence of the State, is referred to collective bargaining by the state provisions cited as interposed parameters (Article 48 of Law no. 833 of 1978; Article 8, paragraph 1, of Legislative Decree no. 502 of 1992; Article 40 of Legislative Decree no. 165 of 2001; Article 2-nonies of Decree-Law no. 81 of 2004, as converted; Article 38, paragraphs 1 and 2, of the aforementioned NCA).
Finally, Article 3 of the Constitution would also be violated, since the challenged provision would determine a violation of the principle of equality which is achieved through the guarantee of uniformity throughout the national territory of the fundamental rules of law that govern the agreement relationship of physicians in the single primary care role.
1.2. – The Autonomous Region of Sardinia – having briefly premised the reasons for the regulatory intervention, identified in the structural difficulty it encounters in ensuring primary care due to the characteristics of the regional territory and the reduction in available medical personnel – in the merits presents an exegesis of paragraphs 1 and 2 of Article 38 NCA, which would still allow the Region to intervene legislatively in the terms of the challenged regional intervention, which would therefore be legitimate.
2. – The issues are not founded.
3. – The problem of identifying the matter of competence to which the challenged provision should be attributed must be examined and resolved in light of the most recent findings of the jurisprudence of this Court.
The judgment no. 124 of 2023 stated that "to identify the matter to which the challenged rule should be attributed, it is necessary to take into account its ratio, the purpose it pursues and its content, setting aside the marginal aspects and the reflected effects, in order to precisely identify the interest protected, according to the so-called prevalence criterion".
In application of this criterion, the aforementioned ruling, and previously the judgment no. 112 of 2023, have ruled out that the regional provisions, challenged in the respective principal proceedings, entailed the alleged violation of the exclusive state legislative competence in the matter of civil law insofar as they pertain to profiles of the agreement relationship of general practitioners, since they have considered that they were instead dictated primarily by organizational needs producing "secondary effects on the progress of agreement relationships”.
Specifically, with the judgment no. 124 of 2023, relating to a regulatory intervention by the Autonomous Region of Friuli-Venezia Giulia, which has provided a preferential criterion for the purposes of the transfer of contracted physicians in addition to those established by collective bargaining, this Court has affirmed that "the regional provision first of all has an organizational ratio, in order to protect health, which it pursues by trying to ensure proximity medicine also to the inhabitants of the deficient areas”.
In analogous terms, the cited judgment no. 112 of 2023, concerning a provision of the Veneto Region that affected methods of employment of specialist doctors in training at emergency-urgency hospital facilities, was expressed. In this decision it was in fact affirmed that "[i]n this way, the regional legislator prepares an extraordinary organizational remedy aimed at guaranteeing continuity of care in a crucial sector, such as that of emergency medicine, otherwise prejudiced by the shortage of healthcare personnel," and that the challenged provision "invests, therefore, a strictly inherent area to healthcare organization, which, as repeatedly stated [...], constitutes a fundamental component of health protection (ex aliis, judgments no. 113 and no. 9 of 2022, no. 192 of 2017)".
4. – Coming to the case in question, this Court notes that the limit of the maximum number of patients is a profile strongly conditioned by needs related to the organization of the healthcare service functional to the protection of health.
Therefore, in the face of a national collective agreement that allows the RISA to derogate from the maximum, increasing it up to 1,800 patients, in order to ensure primary care for those who live in disadvantaged areas, the regional intervention is limited to integrating, pending the approval of the RISA, therefore with a temporary regime, the contractual discipline, in compliance with the framework of principle established by the NCA.
The collective negotiation relating to the regulation of the agreement relationship of primary care physicians must, therefore, necessarily confront the effects it produces on the right of citizens to health protection, in implementation of Article 32 of the Constitution.
In this perspective, the challenged provision pursues the priority purpose of contributing, through the increase of the maximum, to ensure basic healthcare to citizens of disadvantaged areas of the Autonomous Region of Sardinia, thus making up, pending the definition of the RISA, for the major critical issues that have arisen at the local level, attested by the preparatory work of the legislative initiative and stated in the act of constitution in court of the Region itself.
The circumstance that the regulatory intervention under examination provides, pending the approval of the RISA of the category, the increase of the maximum up to the limit of 1,800 – choices that the RISA itself can provide pursuant to Article 38, paragraph 2, NCA –, attests its contingent and temporary nature as a link with the framework that will be defined structurally by second-level collective bargaining.
This also taking into account the time necessary for the definition of the RISA, given that Article 3, paragraph 4, NCA provides that "[t]he Regions and the trade union organizations signing this Agreement undertake to define the Regional Supplementary Agreements within the term referred to in the following Article 8, paragraph 3" or within twelve months from the planning acts referred to in paragraph 2 of the same Article 8, which in turn must be defined by the regions within six months from the entry into force of the NCA.
The physiological, consistent duration of the aforementioned negotiation process – and, in the hypothesis, its prolongation – could in fact involve the risk of leaving the population of citizens in disadvantaged areas of the Autonomous Region of Sardinia without primary care for a considerable period of time.
Nor, to this end, is the aforementioned possibility, provided by Article 38, paragraph 1, second period, NCA, to operate an increase of the maximum defined at the national level, adequate, due both to the limited temporal scope (not exceeding six months in any case) allowed by it for the derogation, and because the regulatory intervention assumes, as is evident, a much broader and more generalized dimension.
5. – Ultimately, the ratio, the purpose and the contents of the challenged provision lead to identifying the interest protected by it as a priority in the need to organize the regional health service in such a way as not to leave citizens without basic medical assistance.
With the intervention under examination, the Autonomous Region of Sardinia, in fact, prepares an organizational solution that finds its root in the right protected by Article 32 of the Constitution, pending the definition of the RISA of which, however, it does not prejudice the outcomes, where the effects produced on the progress of the agreement relationships by the challenged provision can be considered circumscribed, also taking into account that the possible increase of the maximum for each contracted physician takes place "on a voluntary basis”.
There is, therefore, a need similar to that already put by this Court as the basis for the aforementioned judgments no. 124 and no. 112 of 2023.
For these reasons, the challenged provision, due to its purpose and its intrinsic contents, must be considered an exercise of the concurrent legislative competence of the Autonomous Region of Sardinia in the matter of "health protection", with reference to the organizational profiles of primary care.
Therefore, the censure relating to the violation of the exclusive legislative competence of the State in the matter of "civil law” is not founded.
6. – The ascertained unfoundedness of the aforementioned censure also entails that of the further and related issues referred to Articles 3 of the Constitution and 5 of the statute.
Indeed, the alleged violation of the principle of equality under Article 3 of the Constitution does not assume its own independent function, representing the mere reflection of the denunciation of violation of the exclusive state legislative competence (ex plurimis, judgments no. 124 and no. 112 of 2023, and no. 6 of 2022), just as, likewise, the censure referred to Article 5 of the statute lacks a motivation independent from that relating to the violation of Articles 3 and 4 of the statute itself.
For These Reasons
THE CONSTITUTIONAL COURT
Declares the issues of constitutional legitimacy of Article 1, paragraph 1, of Law of the Sardinia Region No. 5 of May 5, 2023 (Urgent provisions regarding primary care), promoted, with reference to Articles 3 and 117, second paragraph, letter l), of the Constitution, as well as to Articles 3, 4 and 5 of Constitutional Law No. 3 of February 26, 1948 (Special Statute for Sardinia), by the President of the Council of Ministers with the claim indicated in the epigraph, to be unfounded.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 23, 2024.
Signed:
Augusto Antonio BARBERA, President
Giulio PROSPERETTI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on February 27, 2024