JUDGMENT NO. 76

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, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 23 of the Law of the Emilia-Romagna Region of 12 July 2023, No. 7 (Repeals and amendments to regional laws and provisions in connection with the 2023 European session. Other regulatory adaptation measures), promoted by the President of the Council of Ministers with application notified on 11 September 2023, filed with the Registry on 12 September 2023, registered under No. 28 of the 2023 application register and published in the Official Gazette of the Republic No. 41, first special series, of the year 2023.

Seen the act of constitution of the Emilia-Romagna Region;

Heard at the public hearing of 19 March 2024, Justice Rapporteur Filippo Patroni Griffi;

Heard the State Attorney Enrico De Giovanni for the President of the Council of Ministers and the Attorney Maria Rosaria Russo Valentini for the Emilia-Romagna Region;

Resolved in the Chamber of Council on 19 March 2024.

Statement of Facts

1.− By application registered under No. 28 of the 2023 application register, the President of the Council of Ministers, represented and defended by the State Attorney's Office, has promoted, with reference to Article 117, third paragraph, of the Constitution, questions of constitutional legitimacy of Article 23 of the Law of the Emilia-Romagna Region of 12 July 2023, No. 7 (Repeals and amendments to regional laws and provisions in connection with the 2023 European session. Other regulatory adaptation measures), which replaces Article 10, paragraph 7, of the Law of the Emilia-Romagna Region of 23 December 2004, No. 29 (General rules on the organisation and functioning of the regional health service).

The contested provision intervened in the regional discipline of the Scientific Research and Treatment Institutes (IRCCS), based in the regional territory, regarding the criteria and procedures for the conferral of management positions of their complex structures, as well as the composition of the commission entrusted with the selection of the relevant eligible candidates. With regard to the latter, the regional legislature has provided that "[t]he Commission referred to in Article 15, paragraph 7-bis, letter a) of Legislative Decree No. 502 of 1992 is composed, in addition to the medical director, also of the scientific director".

The applicant complains about the conflict of the regional provision on the formation of the commission with Article 117, third paragraph, of the Constitution in the matters of "health protection" and "professions" in relation to Article 11, paragraph 2, of Legislative Decree of 16 October 2003, No. 288 (Reorganisation of the regulations of Scientific Research and Treatment Institutes, pursuant to Article 42, paragraph 1, of Law No. 3 of 16 January 2003).

1.1.− The applicant − after having stated that Article 23 of Regional Law No. 7 of the Emilia-Romagna Region of 2023, within the context of a periodic review of legislation, has provided for a regulatory adjustment in the field of health care − focuses first of all on the national legislation referred to by the contested provision.

The State defense states in this regard that the current Article 15, paragraph 7-bis, letter a), of Legislative Decree No. 502 of 30 December 1992 (Reorganisation of the regulations in health matters, pursuant to Article 1 of Law No. 421 of 23 October 1992) regulates "in general", the composition of the commission appointed for the selection of eligible candidates for the conferral of the position of director of a complex operational unit (UOC) of the entities of the National Health Service.

It is therein provided that the collegiate body shall be composed of the medical director of the company concerned and three directors of complex structures in the same discipline as the position to be conferred (of whom at least two from a region other than that of the company concerned with the coverage of the position), chosen by lot from the national list of UOC directors of the National Health Service (NHS) roles, from among whom the chairman is appointed.

1.2.− The applicant also deduces that the composition of the commission for the appointment procedure of the managers of complex structures finds a different regulation at state level precisely in relation to the IRCCS.

Article 11, paragraph 2, second sentence, of Legislative Decree No. 288 of 2003, in fact, provides that "[t]he commission referred to in paragraph 2 of Article 15-ter of Legislative Decree No. 502 of 1992 is composed, in addition to the scientific director, who chairs it, of two managers of the National Health Service personnel roles, in charge of a complex structure of the discipline subject of the position, one of whom is chosen by the Scientific Technical Committee and one identified by the general director".

This provision would therefore constitute the applicable discipline for management positions in the Institutes by virtue of the principle of speciality and would rise to a fundamental principle, to which the contested Article 23 of Regional Law No. 7 of the Emilia-Romagna Region of 2023 should have adhered.

1.3.− The President of the Council then seeks to clear the field of possible interpretative doubts about the invoked interposed parameter, originating from its reference to the previous Article 15-ter of Legislative Decree No. 502 of 1992, which no longer deals with the body responsible for the selection of eligible candidates for the position of management of complex structures: Article 11, paragraph 2, of Legislative Decree No. 288 of 2003 would, in fact, operate a static reference to the rules contained in the superseded provision and, moreover, would refer to it only for the purpose of identifying the commission, and then independently dispose of its composition.

The evaluation body in the IRCCS, therefore, would not have been in any way affected by the reforms that have affected its formation in the general state discipline.

1.4.− In conclusion, according to the applicant, the failure to re-propose, by the contested regional provision, of the special type state provision would give rise to a violation of the fundamental principles laid down by the state legislature in the matters under concurrent legislative competence of "health protection" and "professions": the methods and requirements of access to health management, in particular at the top level, would, in fact, constitute principles laid down to improve the performance of the service offered to guarantee both the proper conduct of the administration and the quality of the assistance activity provided.

2.− The Emilia-Romagna Region has been constituted in court, requesting that the questions be declared inadmissible or, in any case, unfounded.

According to the respondent, Regional Law No. 7 of the Emilia-Romagna Region of 2023 would not be a source that innovates, but rather should be categorised among the laws issued periodically for the review of existing legislation, in order to make it more intelligible, by eliminating references to repealed provisions or by interventions of adjustment.

With this purpose of updating, Article 23 intervened on paragraph 7 of Article 10 of Regional Law No. 29 of the Emilia-Romagna Region of 2004, relating to the composition of the selection committees for the heads of complex operational units in the IRCCS, replacing the reference to the "superseded by modification" Article 15-ter of Legislative Decree No. 502 of 1992, with the reference to the current Article 15, paragraph 7-bis, letter a), of the same legislative decree.

2.1.− The Region immediately objects that the contested provision − in providing that "[t]he Commission referred to in Article 15, paragraph 7-bis, letter a) of Legislative Decree No. 502 of 1992] is composed, in addition to the medical director, also of the scientific director" − reproduces the presence in the commission of the medical director, as already provided by the regional legislature since 2006, without the State having contested anything at that time. This would result in the lateness and lack of interest in the appeal.

2.2.− To support the unfoundness of the questions, the Emilia-Romagna Region first examines the content of the relevant state provisions and then that of the contested regional provision.

As for the former, the respondent's defense deduces that: a) the rules relating to the composition of the commissions for the selection of medical personnel responsible for the UOC of the National Health Service were contained, until 2012, in Article 15-ter of Legislative Decree No. 502 of 1992, according to which the commission was composed of the medical director, who chaired it, and two managers of the NHS personnel roles; b) the relevant discipline was first amended by Decree-Law No. 158 of 13 September 2012 (Urgent provisions to promote the development of the country through a higher level of health protection), converted, with amendments, into Law No. 189 of 8 November 2012; c) this, on the one hand, has "moved" the location of the discipline, inserting the relevant rules in paragraph 7-bis of Article 15 of Legislative Decree No. 502 of 1992 and, on the other hand, has reformulated the composition, providing that the medical director and three UOC directors are members, chosen by lot from the special national list; d) the amendment thus intended to guarantee greater impartiality, transparency and objectivity of the selection procedure; e) finally, to further increase the achievement of these objectives, with Article 20, paragraph 1, of Law No. 118 of 5 August 2022 (Annual Law for the Market and Competition 2021), the state legislature has intervened again imposing, among other things, that, of the three "technical" members, at least two be responsible for complex structures in regions other than that where the company concerned with the coverage of the position is based.

The Region shares the thesis of the speciality of the discipline dictated for the IRCCS commission by Legislative Decree No. 288 of 2003, and yet believes that Article 11, paragraph 2, of the aforementioned decree would itself refer to Legislative Decree No. 502 of 1992: in particular, in this single paragraph, the state legislature would treat the regime of the personnel of "non-privatised" Institutes and the composition of the selection commission – which is an integral element of the personnel discipline – and, in doing so, would subject both to the provisions of Legislative Decree No. 502 of 1992.

Specifically, with regard to the commission, Article 11, paragraph 2, of Legislative Decree No. 288 of 2003 refers to the previous Article 15-ter of Legislative Decree No. 502 of 1992, contrary to the contested regional provision, which refers to the current Article 15, paragraph 7-bis.

The regional defense contests the nature attributed by the Government to the reference contained in the interposed parameter: it would not be a static reference to the previous Article 15-ter of Legislative Decree No. 502 of 1992, but rather a dynamic reference, as demonstrated by the reference contained in paragraph 2 of Article 11 to "Legislative Decree No. 502 of 1992, and subsequent amendments". The examination commission, consequently, would have in the IRCCS the same composition as the other NHS entities, with the only peculiarity of having, among its members, the scientific director.

On the other hand, according to the respondent, also "a logical-systematic reading of the principles" would lead to the conclusion that the described reforms to the general state discipline also affect the special discipline of the IRCCS: the need for impartiality and the purpose of selecting the best managers, underlying the changes made to the composition of the commission in the health companies, would be common to the conferral of management positions in the Scientific Research and Treatment Institutes which, likewise, are NHS entities pursuant to Article 1, paragraph 1, of Legislative Decree No. 288 of 2003.

2.3.− As for the regional legislation, the respondent first traces its evolution.

Regional Law No. 29 of the Emilia-Romagna Region of 2004, in providing "General rules on the organisation and functioning of the regional health service", since its original version, deals in Article 10 with the "Scientific Research and Treatment Institutes" located in its territory.

As a result of the rewriting by Regional Law No. 2 of the Emilia-Romagna Region of 3 March 2006 (Amendments to Article 10 of Regional Law No. 29 of 23 December 2004, concerning scientific research and treatment institutes), paragraph 7 of Article 10 of Regional Law No. 29 of the Emilia-Romagna Region of 2004 has also regulated the composition of the commission for the selection of the director of the UOC of the IRCCS, providing that it be composed of the scientific director (chairman by right), the medical director and a manager of the NHS (identified by the board of directors).

In this way, the Emilia-Romagna Region would have literally taken up what was provided for by Article 11 of Legislative Decree No. 288 of 2003 − which in turn referred to the discipline of the analogous commission referred to in the then current Article 15-ter of Legislative Decree No. 502 of 1992 −, with the variant of the replacement, among the members, of one of the two directors of the complex structure of the NHS with the medical director.

With the further amendment made by Article 13, paragraph 1, letter d), of Regional Law No. 4 of the Emilia-Romagna Region of 19 February 2008 (Discipline of disability assessments − further simplification measures and other provisions in health and social matters), a further period was added to paragraph 7 of Article 10 of Regional Law No. 29 of 2004, according to which "[t]he Commission is chaired by the medical director or the scientific director depending on whether the conferral of the management position is related to a complex structure mainly oriented towards assistance activities or research activities, as defined in the company act".

The contested provision, finally, has intervened again on paragraph 7 of Article 10: first, the reference to the state provision that currently regulates the composition of the selection committee (the current Article 15, paragraph 7-bis, letter a, instead of the previous Article 15-ter of Legislative Decree No. 502 of 1992) was corrected; secondly, the co-presence of the scientific director and the medical director was confirmed; thirdly, the provision for the alternation of the presidency between the two members by right was eliminated, given that the applicable state discipline assigns it to one of the managers drawn by lot.

2.4.− The regional provisions that have succeeded each other, according to the respondent Region, would constitute a legitimate exercise of its concurrent legislative competence in the matter of "health protection".

In this regard, first of all, the respondent argues that the provisions of Legislative Decree No. 288 of 2003 could not be interpreted so precisely and rigidly as to exclude any margin of intervention by the regional legislature.

In support of the assumption, the judgment of this Court No. 270 of 2005 is cited, by which the constitutional illegitimacy of some provisions of Legislative Decree No. 288 of 2003 relating to the composition and designation of other bodies of the IRCCS (in particular, the Board of Directors, the Board of Statutory Auditors and the President) was declared because they were considered "unjustifiably detailed and therefore invasive […] of the scope left to the possible exercise of regional legislative power".

2.5.− Furthermore, in exercising its legislative power, the Region would have legitimately taken into account two needs.

On the one hand, the contested rules would guarantee the presence in the IRCCS commissions of the medical director (as provided for health companies by Legislative Decree No. 502 of 1992), alongside the scientific director (as provided for by Legislative Decree No. 288 of 2003), due to the prevailing and relevant assistance activity carried out by the Institutes.

On the other hand, the regional discipline would implement the principle-rules established by the most recent national legislature to guarantee transparency, impartiality and meritocracy in the selection of the top medical management.

2.6.− Finally, the respondent recalls that with judgment No. 181 of 2006 the question of constitutional legitimacy promoted by the President of the Council of Ministers was declared unfounded precisely against Regional Law No. 29 of the Emilia-Romagna Region of 2004, in the part in which it regulated (in Article 8, paragraph 3) the appointment procedures of the directors of complex structures in health companies.

Of this pronouncement, the respondent highlights the passages in which it was stated, on the one hand, that the regions, by virtue of the concurrent legislative competence attributed to them, would be "free to regulate the procedures relating to the conferral of management positions of health structures" and, on the other hand, that in doing so they must pursue the "technical and neutral selection of the most capable" […] with procedural methods aimed at guaranteeing the conditions for a transparent and impartial exercise of the administrative activity".

The Region would have applied these principles with the contested provision.

Legal Considerations

1.− The President of the Council of Ministers, with the application indicated in the epigraph (reg. app. No. 28 of 2023), impugns, with reference to Article 117, third paragraph, of the Constitution, Article 23 of Regional Law No. 7 of the Emilia-Romagna Region of 2023, which replaces Article 10, paragraph 7, of Regional Law No. 29 of the Emilia-Romagna Region of 2004.

The regional legislature has intervened in the regional discipline of the Scientific Research and Treatment Institutes based in the regional territory with regard to the criteria and procedures for the conferral of the relevant management positions of complex structures as well as the composition of the collegiate body entrusted with the selection of the eligible candidates, providing, with regard to the latter, that "[t]he Commission referred to in Article 15, paragraph 7-bis, letter a) of Legislative Decree No. 502 of 1992 is composed, in addition to the medical director, also of the scientific director".

The state complaint focuses on this period.

In particular, according to the contested provision, the collegiate body for the Emilia IRCCS is formed − as a result of the reference to the current state legislation relating to the formation of the same commission for the entities of the National Health Service (Article 15, paragraph 7-bis, letter a), of Legislative Decree No. 502 of 1992) − by the medical director and three directors of complex structures in the same discipline as the position to be conferred, identified by lot from the special national list of UOC directors belonging to the regional roles of the NHS, as well as − by virtue of the special additional rule − by the scientific director.

The conflict with Article 117, third paragraph, of the Constitution is denounced in relation to the fundamental principle of the matters of "health protection" and "professions" laid down by Article 11, paragraph 2, of Legislative Decree No. 288 of 2003, which states that "[t]he commission referred to in paragraph 2 of Article 15-ter of Legislative Decree No. 502 of 1992 is composed, in addition to the scientific director, who chairs it, of two managers of the National Health Service personnel roles, in charge of a complex structure of the discipline subject of the position, one of whom is chosen by the Scientific Technical Committee and one identified by the general director".

According to the applicant, the aforementioned Article 11, paragraph 2, of Legislative Decree No. 288 of 2003, would rise to an interposed parameter because it dictates a specific discipline for the IRCCS, which as such prevails by specialty over the general one dictated by Legislative Decree No. 502 of 1992 for health companies (territorial and hospital).

2.− As a preliminary point, the Region raises the objection of lateness and lack of interest in the appeal, as the contested provision would reproduce the rule, already in force since 2006 and never contested by the State, of the simultaneous presence of the medical director and the scientific director in the selection committee of the "chief physicians" of the IRCCS.

2.1.− The objection is unfounded.

According to the constant jurisprudence of this Court, the institute of acquiescence does not apply in the main proceedings, given that the contested provision, even if reproducing, in whole or in part, an earlier non-contested rule, still has the effect of reiterating the injury from which the interest in appealing arises (ex plurimis, judgments No. 112 of 2023, No. 255 and No. 23 of 2022).

3.− The examination of the merits of the questions raised requires an essential reconstruction of the regulatory framework relating to the Scientific Research and Treatment Institutes and that relating to the composition of the commission for the selection of eligible candidates for the conferral of management positions of complex structures, limited to the aspects affected by the questions.

3.1.− The IRCCS are hospital structures characterised by the simultaneous and connected performance of highly specialised diagnostic-therapeutic activities and research activities, which they carry out according to the guidelines of the National Health Research Programme and in coherence with the regional programming acts on the matter.

Since Law No. 833 of 23 December 1978 (Establishment of the national health service), the IRCCS have been the subject of special regulations compared to those dictated in general for the organisation and functioning of NHS entities, and this is due to the peculiar characteristics of the Institutes, both from the point of view of the duality of the functions performed, and for the organisational forms specifically chosen.

The current discipline of the IRCCS − which can be attributed mainly to the matters of concurrent legislative power of "health protection" and "scientific research" (for all, judgment No. 270 of 2005) – at state level is contained in Legislative Decree No. 288 of 2003, recently amended by Legislative Decree No. 200 of 23 December 2022 (Reorganisation of the discipline of the Scientific Research and Treatment Institutes), which, with different measures of coordination between scientific and assistance activities, has pursued the objective of strengthening the relationship between research, innovation and healthcare, established by the relevant enabling act (Article 1, paragraph 1, first paragraph, letters a, b and h, of Law No. 129 of 3 August 2022, containing "Delegation to the Government for the reorganisation of the discipline of Scientific Research and Treatment Institutes, referred to in Legislative Decree No. 288 of 16 October 2003").

According to the aforementioned legislation, the Institutes are divided into two categories, depending on the type of legal personality: those of private law ("the Institutes of private law"), to which legal-administrative autonomy is guaranteed, and those of public law, which are entities of the National Health Service and which may have the form of a public entity ("the non-transformed Institutes") or foundation ("IRCCS Foundations").

Specifically, Article 11, paragraph 2, of Legislative Decree No. 288 of 2003, adopted as an interposed parameter, is dedicated to the "non-transformed Institutes", like the contested regional provision.

According to the agreement of the Permanent Conference for relations between the State, the regions and the Autonomous Provinces of Trento and Bolzano, dated 1 July 2004 − to which Article 5, paragraph 1, of Legislative Decree No. 288 of 2003 mandates the discipline of the organisation, management and operation of the Institutes in the form of a public entity − the bodies thereof include, among others, the general director, who is responsible for the representation and management of the entity, the medical director, who assists the former and directs the health services, and the scientific director who, appointed by the Minister of Health, on the opinion of the President of the Region, is responsible for the research activity of the Institute. The latter also chairs the scientific-technical committee, in which the medical director and eight other members participate, and which performs consultative functions and support for clinical and research activities (Article 15 of the standard model of the organisation regulation of the Institutes attached to the aforementioned act of Agreement).

3.2.− With regard to the legal and economic treatment of the personnel of the public entity Institutes, the first sentence of Article 11, paragraph 2, of Legislative Decree No. 288 of 2003 subjects it to the discipline of Legislative Decree "No. 502 of 1992, and subsequent amendments", contained in its Title V (headed "Personnel") and including the regime of conferral, performance and termination of the position of director of complex structure (Articles 15 to 17-bis). The second sentence of the same paragraph, on the other hand, departs from the general legislation precisely on the point of the composition of the commission in charge of the relevant selection.

This last provision, invoked as an interposed parameter, provides that it is formed by the scientific director, who chairs it, and by two UOC directors of the National Health Service, one of whom is chosen by the scientific technical committee and one identified by the general director.

From the perspective of speciality, the legislator has thus issued a specific provision on the composition of the collegiate body, differentiating it from that established by the previous paragraph 2 of Article 15-ter of Legislative Decree No. 502 of 1992, according to which the commission was formed by the medical director (chairman by right) and by two managers of the NHS personnel roles in charge of a complex structure, one of whom was identified by the general director and one by the board of directors. By virtue of the characteristic research activity of the Institutes, Legislative Decree No. 288 of 2003 has, therefore, considered it necessary that the selection of eligible candidates to whom to confer the managerial responsibility of the UOCs be carried out by members who are also sensitive to the profiles of research and has, therefore, replaced the scientific director with the medical director in the presidency and has assigned the appointment of one of the technical members to the collegiate body specifically in charge of initiatives and opinions on scientific activity, namely the scientific-technical committee.

3.3.− In turn, the Emilia-Romagna Region, within the framework of Regional Law No. 29 of 2004, containing the rules on the organisation and functioning of the regional health service, has adopted its own discipline on IRCCS (Article 10) and, starting from 2006, has also regulated the composition of the commission responsible for the selection of eligible candidates for management positions of complex structures of the aforementioned Institutes.

Paragraph 7 of Article 10 – in the text in force until the substitution provided for by the criticised Article 23 of Regional Law No. 7 of the Emilia-Romagna Region of 2023 – provided for a three-member commission, formed by the medical director, the scientific director, and a UOC director of the discipline subject of the position, chosen by the board of directors. The presidency of the body was attributed to the medical director or the scientific director depending on whether the assignment of the position concerned a structure with a prevalence of assistance or research.

The Emilia-Romagna Region, in the exercise of its concurrent legislative power, had thus considered it appropriate to compose the collegiate body taking into account in part the general model provided for NHS entities (as regards the medical director as a member by right and the technical member appointed by the board of directors) and in part the special provision of the IRCCS (as regards the presence of the scientific director).

3.4.− Intervening again in the matter, with the provision under examination, the regional legislature has provided that the commission be composed of five members: again, by right, the scientific director and the medical director, alongside the renewed technical component, identified in three directors of complex structures, chosen by lot.

As emerges from the explanatory report to the bill and also highlighted by the defense of the respondent, with the reformulation of the rules the Region, on the one hand, intended to comply with the principle of Article 11, paragraph 2, of Legislative Decree No. 288 of 2003, reiterating the presence in the commission of the scientific director and, on the other hand, wanted to incorporate the changes made by national legislation on the formation of the commissions for the selections of the UOC directors in health companies.

In this regard, it should be remembered that, as a result of Article 4 of Decree-Law No. 158 of 2012, as converted, and Article 20 of Law No. 118 of 2022: a) the general discipline of the selection commissions has passed from paragraph 2 of Article 15-ter to paragraph 7-bis, letter a), of Article 15 of Legislative Decree No. 502 of 1992; b) the number of members has been increased to four (one by right, still identified in the medical director, and three technical), c) the investiture of experts has changed, no longer by appointment by the bodies of the entity, but by lot from the national list of UOC directors belonging to the regional roles of the NHS; d) it is guaranteed that at least two technical commissioners perform their duties in regions other than that of the company to which the selection refers; e) the presidency is attributed to the director drawn with greater seniority of service and his vote prevails in case of parity; f) the role of the commission is enhanced, which, following the comparison of curricula, qualifications and interviews and the attribution of consequent scores, no longer limits itself, as in the past, to preparing a shortlist of the best candidates, among whom the general director chose the structure manager to appoint, but now draws up a "ranking" of which the general director takes note, conferring the position to the first ranked (Article 15, paragraph 7-bis, letter b