ORDINANCE NO. 72
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÃ’, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has rendered the following
ORDINANCE
in the proceedings concerning the constitutional review of Article 9-ter of Legislative Decree No. 78 of 19 June 2015 (Urgent provisions concerning territorial entities. Provisions to ensure the continuity of security and territorial control devices. Rationalization of National Health Service expenditure and provisions concerning waste and industrial emissions), as converted, with amendments, into Law No. 125 of 6 August 2015, referred by the Regional Administrative Court for Lazio, Third-Quater Section, in the proceedings between Siemens Healthcare srl and the Ministry of Health and others, pursuant to Order of 24 November 2023, registered under No. 165 of the 2023 Register of Orders and published in the Official Gazette of the Republic No. 2, first special series, of the year 2024, the hearing of which was set for the Chamber Council meeting of 9 April 2024.
Having considered the pleadings of Siemens Healthcare srl and the Tuscany Region, as well as the pleadings in intervention of Medtronic Italia spa, FRL Medical Service srl and Instrumentation Laboratory spa and the President of the Council of Ministers;
Having considered the requests for setting the Chamber Council for a decision on the admissibility of the interventions filed by Medtronic Italia spa and Instrumentation Laboratory spa;
Having heard, at the Chamber Council meeting of 11 April 2024, the Reporting Judge Maria Rosaria San Giorgio and the Reporting Judge Marco D'Alberti;
Having deliberated at the Chamber Council meeting of 11 April 2024.
Considering that, by Order of 24 November 2023, the Regional Administrative Court for Lazio, Third-Quater Section, raised questions of constitutional legitimacy of Article 9-ter of Legislative Decree No. 78 of 19 June 2015 (Urgent provisions concerning territorial entities. Provisions to ensure the continuity of security and territorial control devices. Rationalization of National Health Service expenditure and provisions concerning waste and industrial emissions), as converted, with amendments, into Law No. 125 of 6 August 2015, in relation to Articles 3, 23, 41 and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights;
That the referring judge reports that he must decide on the appeal against the regional measures by which, pursuant to the legal provision, the recovery of the balancing charges resulting from exceeding the expenditure ceiling for medical devices, relating to the years 2015, 2016, 2017 and 2018, together with the underlying general acts, has been ordered against the appellant company (supplier of medical devices for the National Health Service);
That Medtronic Italia spa and Instrumentation Laboratory spa intervened in these incidental proceedings, pursuant to Article 4, paragraph 3, of the Supplementary Rules for proceedings before the Constitutional Court, and filed requests, pursuant to Article 5 of the same Supplementary Rules, for the prior and separate determination of the issue concerning the admissibility of the intervention;
That both companies report that they are successful bidders in public tenders, called by numerous health companies throughout the national territory, for the supply of medical devices, and consequently argue that they are holders of an interest related to the subject matter of the constitutional questions raised by the Lazio TAR, as they are destined to suffer immediate and direct effects from the ruling of this Court;
That the two interveners also report that they have filed separate appeals before the same TAR, against the same administrative acts from which the a quo proceedings originate, and have raised similar constitutional illegality claims concerning the legal provision that is the subject of these proceedings;
That they also point out that they have "formally constituted themselves" in the a quo proceedings.
Considering that Medtronic Italia spa and Instrumentation Laboratory spa do not hold the status of parties in these incidental proceedings, as, according to the procedural documents attached to the order of the referring judge, at the time of the referral of the constitutional questions they had not yet intervened in the a quo proceedings;
That, in fact, according to the consistent jurisprudence of this Court, those who were parties to the a quo proceedings at the time of the referral order are admitted to intervene in the incidental constitutional proceedings, in addition to the President of the Council of Ministers and, in the case of regional law, the President of the Regional Government (among many, Judgment No. 119 of 2020 and Order No. 14 of 2022);
That the intervention of parties not involved in the main proceedings, pursuant to Article 4, paragraph 3, of the Supplementary Rules, is admissible only for third parties holding a qualified interest, directly and immediately related to the relationship in question and not simply regulated, like any other, by the provision under scrutiny (among many, Judgment No. 206 of 2019, with attached order read at the hearing of 4 June 2019);
That, in this case, Medtronic Italia spa and Instrumentation Laboratory spa do not hold an interest directly related to the subject matter of the main proceedings, but rather a mere reflected interest in the acceptance of the question, as they are subject to the provision under scrutiny;
That the fact that the aforementioned companies have filed separate appeals before the same referring TAR, where constitutional questions of the same tenor as those relating to these incidental proceedings have been raised, in which they request to intervene, is not relevant, according to the consistent jurisprudence of this Court, "&because, if it were otherwise, the incidental nature of the constitutional proceedings would be substantially suppressed [...], and the Court would not be able to verify the relevance of the question" (Order No. 202 of 2020);
That, for the reasons set out above, the interventions of Medtronic Italia spa and Instrumentation Laboratory spa must be declared inadmissible.
For These Reasons
THE CONSTITUTIONAL COURT
declares inadmissible the interventions of Medtronic Italia spa and Instrumentation Laboratory spa.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 11 April 2024.
Signed:
Augusto Antonio BARBERA, President
Maria Rosaria SAN GIORGIO – Marco D'ALBERTI, Reporting Judges
Roberto MILANA, Director of the Registry
Filed with the Registry on 23 April 2024