JUDGMENT NO. 68

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has pronounced the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Articles 5, paragraphs 14, 19, 20 and 21, 7, paragraph 11, and 16, paragraph 7, of Regional Law of Sardinia No. 1 of 21 February 2023 (Stability Law 2023), initiated by the President of the Council of Ministers by application notified on 24 April 2023 and filed with the Registry on the same date, registered under No. 16 of the 2023 register of applications, and published in the Official Gazette of the Republic No. 19, First Special Series, of the year 2023.

Seen the instrument of constitution of the Autonomous Region of Sardinia;

Heard at the public hearing of 20 February 2024, the Reporting Judge, Giulio Prosperetti;

Heard the State Attorney, Giancarlo Caselli, for the President of the Council of Ministers, as well as Attorneys Mattia Pani and Andrea Secchi for the Autonomous Region of Sardinia;

Deliberated in the deliberation chamber of 20 February 2024.

Facts of the case

1. – By application filed on 24 April 2023 (reg. app. No. 16 of 2023), the President of the Council of Ministers, represented and defended by the State Attorney General's Office, initiated four questions of constitutional legitimacy concerning certain articles of the Regional Law of Sardinia No. 1 of 21 February 2023 (Stability Law 2023).

1.1. – The first question, concerning Article 5, paragraph 14, of Regional Law of Sardinia No. 1 of 2023, is initiated by the President of the Council of Ministers with reference to Articles 3 and 117, second paragraph, letter l), of the Constitution, in relation to Articles 11, paragraph 1, of Decree Law No. 35 of 30 April 2019 (Emergency measures for the healthcare service of the Region of Calabria and other urgent measures in healthcare), converted, with amendments, into Law No. 60 of 25 June 2019, and 23, paragraph 2, of Legislative Decree No. 75 of 25 May 2017, containing "Amendments and additions to Legislative Decree No. 165 of 30 March 2001, pursuant to Articles 16, paragraphs 1, letter a), and 2, letters b), c), d) and e) and 17, paragraph 1, letters a), c), e), f), g), h), l) m), n), o), q), r), s) and z), of Law No. 124 of 7 August 2015, on the reorganisation of public administrations", as well as Article 3, first paragraph, letter a), of Constitutional Law No. 3 of 26 February 1948 (Special Statute for Sardinia).

The contested provision establishes that: "[i]n order to equalize the average per capita levels of the contractual funds of personnel, the companies of the Regional Health Service, upon authorisation issued by resolution of the Regional Council adopted on the proposal of the Regional Councillor for Health, may redetermine the contractual funds of the areas of the sector and of management in compliance with the overall expenditure limit for personnel provided for by current state legislation and by the rules on collective bargaining and trade union representation provided for in Title III of Legislative Decree No. 165 of 2001. For these purposes, the ordinary current funding for the guarantee of the Essential Levels of Assistance (LEA) is increased by EUR 10,000,000 per year starting from the year 2023 (mission 13 - programme 01 - title 1)”.

In the opinion of the State Attorney General's Office, the contested provision would conflict with the provisions of Article 11, paragraph 1, of Decree Law No. 35 of 2019, as converted, which, in defining the current expenditure limits for the personnel of the companies of the Regional Health Service, allows for their increase, but according to a mechanism linked to the dynamics of the Regional Health Fund compared to the previous year.

Furthermore, by intervening on the measure of personnel remuneration, the contested provision would violate both Article 117, second paragraph, letter l), of the Constitution, which reserves to the exclusive legislative competence of the State the matter of civil law, and Article 3 of the Special Statute, which, although in the first paragraph, letter a), provides for an exclusive legislative competence of the Autonomous Region in the matter of "organisation of the offices and administrative bodies of the Region and legal and economic status of personnel," limits such competence within the confines of the Constitution and the principles of the legal system, as well as the fundamental rules of the economic-social reforms of the Republic.

From another perspective, according to the applicant, the contested provision would determine an unjustified preferential treatment for the personnel of the companies of the Regional Health Service of Sardinia compared to the employees of the health companies of other regions, with the consequent violation of the principle of equality referred to in Article 3 of the Constitution.

1.2. – The second question, concerning Article 5, paragraphs 19, 20 and 21, of Regional Law of Sardinia No. 1 of 2023, is initiated by the President of the Council of Ministers with reference to Article 117, second paragraph, letter e), and third paragraph, of the Constitution, in relation to Articles 19 and 20 of Legislative Decree No. 118 of 23 June 2011 (Provisions on the harmonisation 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 5 May 2009), which define the accounting treatment of resources intended for the financing of the individual regional health services, as well as Article 3 of the Special Statute.

The contested provisions establish, in paragraph 19, that: "[t]he expenditure of EUR 150,000 is authorized, for each of the years 2023, 2024 and 2025, for the activation of free training courses for Social Health Operators (OSS). The sums are divided, by resolution of the Regional Council, adopted on the proposal of the Regional Councillor for Health, in favour of the Universities of Cagliari and Sassari (mission 13 - programme 07 - title 1)”; in paragraph 20 that: "[t]he further expenditure of EUR 250,000 is authorized, for each of the years from 2023 to 2037, in favour of the University of Sassari for the purposes referred to in Article 8, paragraph 32, of Regional Law No. 48 of 28 December 2018 (Stability Law 2019), (mission 13 - programme 07 - title 1)”; in paragraph 21 that: "[t]he total expenditure of EUR 1,740,000 is authorized, amounting to EUR 635,000 for the year 2023, of which EUR 70,000 as reimbursement for the activities carried out in 2022, EUR 540,000 for the year 2024 and EUR 565,000 for the year 2025 in favour of the University of Sassari, Department of Veterinary Medicine, for the implementation of the Integrated Development Project for the accreditation of the training of veterinarians in Sardinia (mission 13 - programme 07 - title 1)”.

The applicant maintains that the contested provisions, by charging the mission 13 of the budget of the Autonomous Region of Sardinia, relating to health protection, expenditures aimed at financing training-related activities and destined for the Universities of Cagliari and Sassari, bodies extraneous to the National Health Service (SSN), would result in an incorrect representation of regional health funding, thus violating Article 20 of Legislative Decree No. 118 of 2011, which guarantees the exact delineation of the revenues and expenditures related to the funding of the Regional Health Service.

1.3. – The third question, concerning Article 7, paragraph 11, of Regional Law of Sardinia No. 1 of 2023, is initiated by the President of the Council of Ministers with reference to Article 117, third paragraph, of the Constitution, in relation to Articles 1, paragraphs 330 and 332, of Law No. 197 of 29 December 2022 (State Budget for the financial year 2023 and multi-year budget for the three-year period 2023-2025), 23, paragraph 2, of Legislative Decree No. 75 of 2017, and 1, paragraph 604, of Law No. 234 of 30 December 2021 (State Budget for the financial year 2022 and multi-year budget for the three-year period 2022-2024), as well as Article 3 of the Special Statute.

The contested provision establishes that: "[w]ith reference to the regional collective bargaining 2019-2021, in order to allow the gradual adjustment of the administration allowance and the forestry allowance to the values established at national level, the resources allocated in Article 10, paragraph 1, of Regional Law No. 48 of 2018 to be allocated to collective bargaining, are increased by a total of EUR 15,003,036.42 before payroll taxes and IRAP starting from the year 2023 (mission 20 - programme 03 - title 1)”.

In the opinion of the applicant, the contested provision would not clarify either "what is the contractual reference relating to the "administration allowance” and the "forestry allowance” to which it refers”, nor would it account for "the recipients of the increases in these emoluments”, thus conflicting with the state discipline that establishes specific limits and modalities for the increase in the supplementary economic treatment of public employees.

1.4. – The fourth and final question, concerning Article 16, paragraph 7, of Regional Law of Sardinia No. 1 of 2023, is initiated by the President of the Council of Ministers with reference to Article 117, second paragraph, letter e), and third paragraph, of the Constitution, in relation to Articles 19 and 20 of Legislative Decree No. 118 of 2011, as well as with reference to Article 3 of the Special Statute.

The contested provision establishes that: "[t]he further expenditure of EUR 1,177,000 is authorized, for each of the years 2023, 2024 and 2025, for the purposes referred to in Regional Law No. 21 of 1 June 1999 (Transfer to the provinces of the functions regarding the control and fight against harmful insects and parasites of humans, animals and plants and the suppression of special roles being phased out), (mission 09 – programme 05 - title 1)”.

According to the applicant, the expenditure provision contained in the contested provision, similarly to what has already been noted in relation to the measures referred to in Article 5, paragraphs 19, 20 and 21, of the same Regional Law of Sardinia No. 1 of 2023, would have been illegitimately included in the area of the regional budget intended for health expenditures, in clear contrast with the provisions of Article 20 of Legislative Decree No. 118 of 2011, with the consequent violation of Article 117, second paragraph, letter e), and third paragraph, of the Constitution and Article 3 of the Special Statute for Sardinia.

In this regard, the State Attorney General's Office refers to Judgment No. 255 of 2022 of this Court which, in declaring the constitutional illegitimacy of Article 5, paragraph 19, of the Law of the Region of Sardinia No. 17 of 22 November 2021 (Provisions of an institutional-financial nature and in matters of economic and social development), stated that "[w]ith regard to the supplementary salary of the personnel of public administrations, it is the constant orientation of this Court to consider that the relative modalities and criteria for increase, established by state legislation, are also binding for the special autonomies", since they are "functional "to preserve the economic-financial balance of the complex of public administrations and also to guarantee the economic unity of the Republic, as required by constitutional principles and by the constraints deriving from Italy's membership of the European Union (Judgment No. 82 of 2005, as well as Judgment No. 62 of 2017)'".

2. – The Autonomous Region of Sardinia was party to the proceedings, alleging the inadmissibility and, in any case, the unfoundedness of all the questions of constitutional legitimacy initiated by the President of the Council of Ministers with the application referred to in the heading.

2.1. – With regard to the first question of constitutional legitimacy, concerning Article 5, paragraph 14, of Regional Law of Sardinia No. 1 of 2023, the Autonomous Region of Sardinia points out that the contested provision is limited to allowing the companies of the Regional Health Service, upon authorization issued by resolution of the Regional Council, to redetermine the contractual funds of the areas of the sector and of management, but in "compliance with the overall expenditure limit for personnel provided for by current state legislation and by the rules on collective bargaining and trade union representation provided for in Title III of Legislative Decree No. 165 of 2001”.

The lack of foundation of the question would therefore emerge, in the opinion of the regional defense, from the very, unequivocal, literal tenor of the contested provision.

The respondent also underlines that the provisions of Article 11, paragraph 1, of Decree Law No. 35 of 2019, as converted, cited by the applicant as an intermediate violated parameter, would not pertain to the matter of civil law, but to that of coordination of public finance, referred to in Article 117, third paragraph, of the Constitution, the violation of which, however, has not been proposed in the application.

These provisions, in any case, while constituting fundamental principles of coordination of public finance, would not be applicable to the Autonomous Region of Sardinia which, since 2007, provides for the financing of the overall needs of the NHS on its territory, without any contribution from the state budget.

With regard, then, to the alleged violation of Article 117, second paragraph, letter l), of the Constitution, which reserves to the State the exclusive legislative competence in the matter of civil law, according to the regional defense, the contested provision would not directly regulate the economic treatment of employees, limiting itself to allowing the redetermination of the contractual funds of the areas of the sector and of management, but leaving it to collective bargaining, as established by state legislation, to define the legal and economic treatment of personnel.

Finally, with regard to the anticipated violation of Article 3 of the Constitution, the regional defense maintains the inadmissibility of the question, for the generality of the reasons put forward by the State Attorney General's Office and, in any case, its lack of foundation, as the contested provision would only aim to guarantee, through collective bargaining, equal economic treatment for employees who perform identical tasks.

2.2. – With reference to the second question of constitutional legitimacy, concerning Article 5, paragraphs 19, 20 and 21, of Regional Law of Sardinia No. 1 of 2023, the regional defense objects, preliminarily, to the inadmissibility of the censures.

In particular, according to the regional defense, the questions initiated with reference to Articles 117, second paragraph, letter e), of the Constitution and 3 of the Special Statute, should be considered inadmissible, since these parameters are not mentioned in the resolution of the Council of Ministers to initiate the application.

The censures initiated should, in any case, be declared inadmissible, as they are formulated in absolutely generic terms, without providing any explanation of the reasons why the expenses provided for in the contested provisions should be considered extraneous to the scope of health expenditures and, therefore, in contrast with Article 20 of Legislative Decree No. 118 of 2011.

Moreover, according to the respondent, Articles 19 and 20 of Legislative Decree No. 118 of 2011, which impose on the regions a homogeneous representation of health-related expenditures in the budgets, in order to allow for "immediate comparability between health revenues and expenditures", could not be applied to the Autonomous Region of Sardinia which, pursuant to the provisions of Article 1, paragraph 836, of Law No. 296 of 27 December 2006, containing "Provisions for the formation of the annual and multi-year budget of the State (financial law 2007)”, "provides for the financing of the overall needs of the National Health Service on its territory without any contribution from the state budget”.

This is in accordance with what has been stated, even recently, by this Court, according to which "the State, when it does not contribute to the financing of health expenditure, does not even have the right to dictate rules for financial coordination (Judgment No. 341 of 2009; subsequently reiterated by the judgments No. 174 of 2020, No. 241 of 2018, No. 231 of 2017, No. 75 of 2016, No. 125 of 2015, No. 115 of 2012 and No. 133 of 2010)” (Judgment No. 11 of 2021).

2.3. – In relation to the third question of constitutional legitimacy, concerning Article 7, paragraph 11, of Regional Law of Sardinia No. 1 of 2023, the regional defense maintains, preliminarily, the inadmissibility of the censures formulated with reference to Article 1, paragraphs 330 and 332, of Law No. 197 of 2022, for the generality of the reasons given by the applicant and the irrelevance of the intermediate regulatory parameter.

In any case, according to the regional defense, the questions initiated should be considered unfounded, since the administration and forestry allowances provided for in the contested provision, having a fixed and continuous frequency and being included in the calculation base considered for the purposes of severance pay, would constitute components of the fundamental economic treatment due to employees and not, as instead maintained by the applicant, supplementary elements of their remuneration.

Furthermore, the circumstance that the Autonomous Region of Sardinia contributes to the achievement of national public finance objectives through specific agreements stipulated with the Government would make the state provisions integrating fundamental principles of coordination of public finance inapplicable to it.

In this sense, the respondent refers to Judgment No. 5 of 2022 of this Court and points out that "for the special autonomies - under the pact and agreement method between the Autonomous Region and the State, translated into state law - the definition, through this route, of the annual amount of the contribution to public finance objectives makes the specific state provisions integrating fundamental principles in the matter of coordination of public finance not directly applicable in the interested regional context".

In the opinion of the regional defense, therefore, the question of constitutional legitimacy of Article 7, paragraph 11, of Regional Law of Sardinia No. 1 of 2023 should be considered, in addition to being inadmissible, unfounded, both because the State would not have the right to dictate principles of coordination of public finance towards the Autonomous Region of Sardinia, and because the allowances considered in the contested provision would not have the character of supplementary remuneration, so the limits imposed by state legislation on such items of expenditure could not be applied to them.

2.4. – With reference to the fourth and final question of constitutional legitimacy, concerning Article 16, paragraph 7, of Regional Law of Sardinia No. 1 of 2023, the regional defense objects to the inadmissibility of the censures, both under the profile of the anticipated violation of Article 117, second paragraph, letter e), of the Constitution, as this parameter would not be mentioned in the resolution of the Council of Ministers to initiate the challenge, and for the generality of the reasons given, the applicant having stated, but not demonstrated, the extraneousness to the scope of health expenditures of the intervention provided for by the contested provision.

On the merits, the question would, in any case, have to be considered unfounded.

This is because, according to the respondent, Articles 19 and 20 of Legislative Decree No. 118 of 2011, which impose on the regions a homogeneous representation of health-related expenditures in the budgets, in order to allow for "immediate comparability between health revenues and expenditures", as already argued with reference to the similar questions relating to Article 5, paragraphs 19, 20 and 21, of Regional Law of Sardinia No. 1 of 2023, would not be applicable to the Autonomous Region of Sardinia, which takes exclusive responsibility for its own health expenditures and towards which, therefore, the State could not dictate principles of coordination of public finance.

3. – With an explanatory memorandum filed close to the public hearing, the respondent reiterated the defenses and objections previously formulated, pointing out that the Law of the Region of Sardinia No. 9 of 23 October 2023 (Provisions of an institutional, organisational and financial nature on various matters) has made significant amendments to both Article 5, paragraphs 19, 20 and 21, and Article 16, paragraph 7, of Regional Law of Sardinia No. 1 of 2023.

These regulatory amendments, consisting in the relocation of the expenditures provided for by the contested provisions to missions of the regional budget extraneous to those of the health perimeter, would determine, in the opinion of the regional defense, the cessation of the matter in dispute in relation to the relative questions.

4. – By deed filed on 30 January 2024, notified on 29 January 2024, the President of the Council of Ministers, in accordance with the resolution of the Council of Ministers of 25 January 2024, waived the challenge limited to Article 5, paragraph 14, of Regional Law of Sardinia No. 1 of 2023.

In the reasons for the waiver, it is represented that, in light of the clarifications contained in the instrument of constitution in court of the Autonomous Region of Sardinia, the anticipated criticalities of the contested provision, which should therefore be considered, in the opinion of the applicant, constitutionally legitimate ab initio, have been considered overcome.

5. – At the public hearing of 20 February 2024, the defense of the Autonomous Region of Sardinia and the State Attorney General's Office insisted on the acceptance of their respective conclusions regarding the remaining questions, as set out in the defense briefs.

Considered in law

1. – With the application referred to in the heading, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, initiated four questions of constitutional legitimacy of Regional Law of Sardinia No. 1 of 2023: the first, relating to Article 5, paragraph 14; the second, concerning paragraphs 19, 20 and 21 of the same Article 5; the third, relating to Article 7, paragraph 11, and the fourth question, finally, concerning Article 16, paragraph 7.

2. – With reference to the first question, which concerns Article 5, paragraph 14, of Regional Law of Sardinia No. 1 of 2023, it must be noted, preliminarily, that, by deed filed in the immediate vicinity of the public hearing, the applicant, following a corresponding resolution of the Council of Ministers of 25 January 2024, waived the challenge of Article 5, paragraph 14, of Regional Law of Sardinia No. 1 of 2023.

Based on the constant jurisprudence of this Court (ex multis, Judgment No. 106 of 2021), the declaration of waiver, even if not formally accepted by the respondent party, entails the cessation of the matter in dispute, where, also in light of the conduct of the parties, no interest emerges that the question be decided.

In the case at hand, the defense of the Autonomous Region of Sardinia, at the public hearing of 20 February 2024, acknowledged the partial waiver of the application by the President of the Council of Ministers and did not discuss the waived question.

It follows that, in relation to the said question, the cessation of the matter in dispute must be declared.

3. – The second and fourth questions can be examined together, concerning completely analogous censures.

3.1. – The President of the Council of Ministers challenged Articles 5, paragraphs 19, 20 and 21, as well as Article 16, paragraph 7, of Regional Law of Sardinia No. 1 of 2023, considering that the aforementioned provisions violate, in relation to Articles 19 and 20 of Legislative Decree No. 118 of 2011, both Article 117, second paragraph, letter e), of the Constitution, in the matter of "harmonization of public budgets", and Article 117, third paragraph, of the Constitution, in the matter of concurrent legislative competence of "coordination of public finance", thus exceeding the limits that Article 3 of the special statute for Sardinia imposes on the exercise of regional legislative power.

3.2. – According to the State Attorney General's Office, in fact, the challenged regional provisions would lead to an incorrect representation of regional health funding, having included, in the "health perimeter" of the regional budget, expenditures completely extraneous to it, as they relate to training activities to be carried out at the Universities of Cagliari and Sassari (Article 5, paragraphs 19, 20 and 21) and to the control and fight against harmful insects and parasites of humans, animals and plants (Article 16, paragraph 7).

More precisely, the Autonomous Region of Sardinia, in the case under consideration, would have violated the principles regarding the harmonization of public budgets, which cannot undergo territorial derogations, not even within the constitutionally guaranteed special autonomies (ex multis, Judgment No. 80 of 2017).

The challenged provisions would, therefore, have illegitimately expanded the perimeter of health expenditures, violating Article 20 of Legislative Decree No. 118 of 2011 which, in paragraph 1, first period, instead, requires the regions to guarantee, within the framework of the budget, "an exact delineation of the revenues and expenditures relating to the financing of their own regional health service", with the declared "aim of allowing immediate comparability between the health revenues and expenditures recorded in the regional budget and the resources indicated in the acts" of health financial planning.

3.3. – It is necessary to acknowledge, preliminarily, the ius superveniens referred to in Regional Law of Sardinia No. 9 of 2023, which came into force on 24 October 2023, with which, in order to remedy the critical profiles reported by the State, the regional legislator modified the contested provisions, allocating the expenditures provided for by them to new missions of the regional budget, different from that relating to health protection.

As a result of these changes, the Autonomous Region of Sardinia requested, with an integrative memorandum filed on 29 January 2024, that the cessation of the matter in dispute be declared.

According to the constant jurisprudence of this Court, a modification of the challenged provision in a main action determines the cessation of the matter in dispute when two conditions occur at the same time: the satisfactory nature of the claims advanced with the application and the fact that the challenged provision has not had medio tempore application (ex multis, Judgment No. 92 of 2022).

Although the amendments made by the regional legislator should be considered, in the case at hand, to be satisfactory, having brought the planned expenses back into areas of the regional budget that are extraneous to the perimeter of health expenditures, these amendments occurred only on 24 October 2024, a good eight months after the date of entry into force of the challenged provisions, and without any demonstration of their non-application having been provided.

This does not allow for the declaration, in this case, of the cessation of the matter in dispute (ex multis, Judgment No. 268 of 2022).

Therefore, the examination of the questions must be carried out with reference to the challenged provisions in their original version.

3.4. – In relation to the aforementioned questions of constitutional legitimacy, the exceptions of inadmissibility formulated by the Autonomous Region of Sardinia must also be preliminarily rejected.

3.4.1. – The respondent maintains, first of all, the inadmissibility of both questions initiated by the applicant with reference to Article 117, second paragraph, letter e), of the Constitution, in the matter of harmonization of public budgets, as well as, for the one concerning Article 5, paragraphs 19, 20 and 21, with reference also to Article 3 of the Special Statute.

These constitutional parameters, in fact, would not have been invoked in the resolution of the Council of Ministers to initiate the challenges.

According to the jurisprudence of this Court, the question initiated by way of a main action, with respect to which there is a lack of the necessary full correspondence between the application and the resolution of the Council of Ministers that authorized it, is inadmissible (ex multis, Judgments No. 272 and No.