ORDER NO. 79
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President: Augusto Antonio BARBERA; Judges: Franco MODUGNO, Giulio PROSPERETTI, 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
ORDER
in the proceedings concerning the constitutional legitimacy of Article 9 of the Sicilian Regional Law No. 2 of 22 February 2023 (2023-2025 Regional Stability Law), brought by the President of the Council of Ministers with an appeal served on 29 April 2023, filed with the Registry on 2 May 2023, registered under No. 17 of the 2023 appeal register and published in the Official Gazette of the Republic No. 21, first special series, of the year 2023.
Having seen the notice of appearance of the Sicilian Region;
Having heard at the public hearing of 16 April 2024 the Reporting Judge Giulio Prosperetti;
Having heard the State Advocate Giammario Rocchitta for the President of the Council of Ministers and the Advocate Nicola Dumas for the Sicilian Region;
Having deliberated in chambers on 16 April 2024.
Considering that, with the appeal indicated above (Reg. Ric. No. 17 of 2023), the President of the Council of Ministers, represented and defended by the State Legal Department, challenged, among others, Article 9 of the Sicilian Regional Law No. 2 of 22 February 2023 (2023-2025 Regional Stability Law), for violation of Articles 97, fourth paragraph, and 117, second paragraph, letters g) and l), of the Constitution, and for violation of the powers conferred upon the Sicilian Region by Royal Legislative Decree No. 455 of 15 May 1946 (Approval of the Statute of the Sicilian Region), converted into Constitutional Law No. 2 of 26 February 1948;
that the challenged provision establishes: "the following shall be added after paragraph 4 of Article 64 of Regional Law No. 21 of 12 August 2014, as subsequently amended: "4bis. The provisions of paragraph 4 shall also apply to regional public bodies and Sicilian healthcare and hospital companies”;
that, according to the appellant, the aforementioned regional provision, extending to Sicilian healthcare and hospital companies the provision of Article 64, paragraph 4, of Sicilian Regional Law No. 21 of 12 August 2014 (Adjustment of the Region's budget for the financial year 2014. Variations to the Region's budget forecast for the financial year 2014 and amendments to Regional Law No. 5 of 28 January 2014 "Programmatic and corrective provisions for the year 2014. Regional Stability Law. Miscellaneous provisions"), would violate Article 97, fourth paragraph, of the Constitution, in relation to Article 35 of Legislative Decree No. 165 of 30 March 2001 (General rules on the organisation of work in the employment of public administrations) and the provisions of Presidential Decree No. 483 of 10 December 1997 (Regulation concerning the competition rules for managerial personnel of the National Health Service), and Presidential Decree No. 220 of 27 March 2001 (Regulation concerning the competition rules for non-managerial personnel of the National Health Service), circumventing the rule of public competition as a general non-derogable criterion except in cases expressly indicated by law for peculiar and extraordinary needs of public interest in access to public employment;
that Article 117, second paragraph, letters g) and l), of the Constitution would also be violated, in relation to Articles 19 of Legislative Decree No. 175 of 19 August 2016 (Consolidated text on publicly held companies) and 11, paragraph 1, of Decree-Law No. 35 of 30 April 2019 (Emergency measures for the health service of the Calabria Region and other urgent health measures), converted, with amendments, into Law No. 60 of 25 June 2019, inasmuch as the challenged provision, intervening on the rules governing the employment relationship of healthcare personnel, would regulate the matters of "administrative organisation of the State and national public bodies” and "civil order”, reserved as such to the exclusive legislative power of the State, exceeding the legislative powers of the Sicilian Region, as defined by Article 14 of the Sicilian Regional Statute;
that, with a document filed on 6 June 2023, the Sicilian Region entered an appearance in the proceedings, which, with reference to the challenge concerning Article 9 of Sicilian Regional Law No. 2 of 2023, limited itself to highlighting the submission of a proposal for a regional law repealing the challenged provision;
that, on 26 March 2024, shortly before the hearing, the respondent filed a memorandum in which it noted that, following the filing of the appeal which initiated these constitutional legitimacy proceedings, Sicilian Regional Law No. 25 of 21 November 2023 (Various financial provisions. Amendments to rules) was approved, Article 28, paragraph 4, of which repealed, with effect from 24 November 2023, pursuant to Article 30, paragraph 1, of the same Sicilian Regional Law No. 25 of 2023, Article 9 of Sicilian Regional Law No. 2 of 2023;
that the regional defence, with the aforementioned supplementary memorandum, produced in court Note No. 10784 of 15 February 2024, with which the General Accounting Office of the Sicilian Region certified that "the challenged provisions of Regional Law No. 2 of 22 February 2023 listed in the attached list, with the exception of Articles 36, 38 and 48 [...], have not been applied interim from an accounting point of view from the date of their enactment to the date of their repeal by Article 28, paragraph 4, of Regional Law No. 25 of 21 November 2023”;
that the Sicilian Region, on the basis of these elements, requested a declaration that the subject matter of the dispute has ceased to exist;
that, during the public hearing of 16 April 2024, the State Legal Department acknowledged the respondent's request, not contesting the lack of application of the challenged provision.
Considering that, pending these proceedings, Article 28, paragraph 4, of Sicilian Regional Law No. 25 of 2023 repealed, with effect from 24 November 2023, pursuant to Article 30, paragraph 1, of the same Sicilian Regional Law No. 25 of 2023, the challenged provision;
that on 26 March 2024 the respondent filed a supplementary memorandum requesting a declaration that the subject matter of the dispute has ceased to exist, producing in court the note of the General Accounting Office of the Sicilian Region No. 10784 of 15 February 2024, certifying that the challenged provision has not been implemented during the period in which it was in force;
that, according to the consistent case law of this Court, the repeal of the challenged provision, where it has not been applied interim, determines the cessation of the subject matter of the dispute (ex plurimis, judgments No. 200, No. 117 and No. 78 of 2020; Order No. 101 of 2020);
that the Sicilian Region has declared that the challenged provision has not been applied, producing in court the conforming note of the General Accounting Office of the Sicilian Region No. 10784 of 15 February 2024, without the State Legal Department raising any objections in this regard;
that, therefore, the prerequisites exist to declare that the subject matter of the dispute has ceased to exist, limited to the issues in these proceedings.
For These Reasons
THE CONSTITUTIONAL COURT
reserving separate rulings on the decision of the further questions of constitutional legitimacy raised by the appeal indicated above;
declares that the subject matter of the dispute has ceased to exist with regard to the questions of constitutional legitimacy of Article 9 of Sicilian Regional Law No. 2 of 22 February 2023 (2023-2025 Regional Stability Law), raised, with reference to Articles 97, fourth paragraph, and 117, second paragraph, letters g) and l), of the Constitution and the powers conferred upon the Sicilian Region by Royal Legislative Decree No. 455 of 15 May 1946 (Approval of the Statute of the Sicilian Region), converted into Constitutional Law No. 2 of 26 February 1948, by the President of the Council of Ministers with the appeal indicated above.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 16 April 2024.
Signed:
Augusto Antonio BARBERA, President
Giulio PROSPERETTI, Reporting Judge
Roberto MILANA, Registrar
Filed with the Registry on 7 May 2024