JUDGMENT NO. 87

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, 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 8 of the Law of the Piedmont Region of 24 April 2023, no. 6 (Financial Budget 2023-2025), initiated by the President of the Council of Ministers with an appeal notified on 23 June 2023, filed with the Registry on 27 June 2023, registered under no. 21 of the register of appeals 2023 and published in the Official Gazette of the Republic no. 32, first special series, of the year 2023.

Having examined the deed of constitution of the Piedmont Region;

Having heard at the public hearing of 20 March 2024 the reporting Judge Antonella Sciarrone Alibrandi;

Having heard the State Attorney Giancarlo Caselli for the President of the Council of Ministers and the attorney Letizia Mazzarelli for the Piedmont Region;

Deliberated in the council chamber of 20 March 2024.

Facts of the Case

1. – By appeal filed on 27 June 2023 (reg. app. no. 21 of 2023), the President of the Council of Ministers, represented and defended by the State Attorney General's Office, challenged Article 8 of the Law of the Piedmont Region of 24 April 2023, no. 6 (Financial Budget 2023-2025), with reference to Articles 5, 120 and 117, third paragraph, of the Constitution, the latter in relation to Article 1, paragraphs 173 and 180, of Law No. 311 of 30 December 2004 (Provisions for the formation of the annual and multi-year budget of the State (Financial Law 2005)), insofar as – by replacing paragraph 2 of Article 14 of the Law of the Piedmont Region of 5 December 2016, no. 24 (Adjustment of the financial budget 2016-2018 and financial provisions) – it provides that the already planned cash transfer in favor of health management, to be drawn from the treasury account of ordinary management, is extended until 2032 (while previously it was expected to conclude by 2026) and the amounts to be transferred and allocated to the reduction of liabilities towards regional healthcare companies resulting on 31 December 2015 are modulated differently, year by year.

1.1. – The appellant states that in the original text of Article 14, paragraph 2, of Regional Law no. 24 of 2016, amounts and timing were determined according to which to achieve the full restitution, by 2026, of regional liquidity owed to the Regional Health Service (SSR) – amounting to 1,505 million euros – based on the provisions resulting from the meetings of the technical table for the verification of regional obligations and the Standing Committee for the verification of essential levels of care (LEA), referring to the period in which the Piedmont Region was in a plan for the recovery from the health deficit.

The State defense recalls, in fact, that from 29 July 2010 to 21 March 2017, the Region had been subjected to the «Plan for the recovery of requalification and reorganisation and identification of interventions for the pursuit of economic equilibrium pursuant to Article 1, paragraphs 173 and 180, of the Law of 30 December 2004». It also specifies that the aforementioned provisions, as well as the State-Regions agreement of 23 March 2005, have provided for forms of support from the central Government – and specifically from the Ministry of Health, in agreement with the Ministry of Economy and Finance, within the National System for Verification and Control of Healthcare (SiVeAS) – for the regions that sign agreements containing plans for recovery from the health deficit, such as, for example, the prior approval of measures prepared by individual regions in implementation of the provisions of the respective plans.

In this case, the State defense recalls that, with reference to the regional balance sheet for the year 2015, the aforementioned technical tables had noted that «based on what was communicated by the Region, extra-FSR resources allocated but not disbursed to SSR entities and sums taken from the treasury account by the Region for non-healthcare purposes for a total of 1 billion and 505 million euros, for the current portion alone» had emerged. The need to find a solution to this situation, of evident seriousness, had been taken into consideration during the evaluation of the positive conclusion of the plan for the recovery from the health deficit, and the Region had been asked to announce the initiatives that would be adopted for the restitution to the SSR of the total amount due.

With regard to an initial proposal for the restitution of the sums presented by the Region at the meeting of 16 November 2016, the aforementioned technical tables requested that a number of years not exceeding ten (2017-2026) be provided for and, in particular, that from 2017 to 2022 the cash transfer in favor of healthcare management be guaranteed for amounts equal to 65 million euros per year for 2017 and 2018, and 113 million euros per year for each fiscal year from 2019 to 2022, to be allocated to the reduction of liabilities towards regional healthcare companies resulting on 31 December 2015.

The appellant recalls that, at the meeting of 21 March 2017 (on which occasion the recovery plan concluded), the technical tables had taken note of the approval of Piedmont Region Law no. 24 of 2016, which, in Article 14, paragraph 2, had provided for what they had requested, and they concluded that, therefore, the program for the restitution of liquidity to the SSR for 1,505 million euros reflected what they had requested at the meeting of 16 November 2016.

1.2. – Having premised the above, the appellant considers that Article 8 of Piedmont Region Law no. 6 of 2023, where it provides for longer timeframes for the restitution of sums withdrawn from healthcare management (with full restitution postponed from 2026 to 2032) and, consequently, reduced annual amounts, has intervened on the described restitution mechanism, unilaterally amending Article 14, paragraph 2, of Piedmont Region Law no. 24 of 2016, in contrast with the findings and assumptions made in the analysis of the aforementioned monitoring bodies, with mixed regional-state composition (technical table and Standing Committee).

In essence, the regional regulatory intervention would come to modify the content of the agreements reached between the State and the Region regarding the described restitution of SSR resources by the regional body, in the absence of any modification of the same agreements or any prior dialogue between the Piedmont Region and the competent state administrations (specifically, the Ministry of Economy and Finance and the Ministry of Health) and, therefore, in violation of the principle of loyal cooperation that must inform relations between the State and the regions (Articles 5 and 120 of the Constitution).

Furthermore, having premised that, according to established constitutional jurisprudence, the concurrent legislative autonomy of the regions in the sector of health protection and, in particular, in the context of the management of the healthcare service may encounter limits in light of the objectives of public finance and the containment of expenditure, the appellant sees, from a concurrent perspective, the violation of the fundamental principles of coordination of public finance referred to in the third paragraph of Article 117 of the Constitution, in relation to Article 1, paragraphs 173 and 180, of Law No. 311 of 2004.

This latter provision (Article 1, paragraph 180, of Law No. 311 of 2004) – as subsequently confirmed by Article 1, paragraph 796, letter b), 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)», and by Article 2, paragraphs 80 and 95, of Law No. 191 of 23 December 2009, containing «Provisions for the formation of the annual and multi-year budget of the State (Financial Law 2010)» – has established a fundamental principle of coordination of public finance consisting in the binding nature for the regions of the interventions contemplated in the plan for the recovery from the health deficit. The challenged regional provision, consequently, would constitute a case of violation of the agreements deriving from the implementation of the recovery plan, to which the Region was subjected at the time, and therefore a violation of Article 117, third paragraph, of the Constitution.

2. – The Piedmont Region appeared in court and requested that the questions raised be declared unfounded.

2.1. – The regional defense recalls first of all that, at the meeting of 21 March 2017 of the technical table and the Standing Committee, the cessation of the measures provided for by the «Plan for the recovery of requalification and reorganisation and identification of interventions for the pursuit of economic equilibrium pursuant to Article 1, paragraph 180, of Law No. 311 of 2004» for the Piedmont Region was ordered.

It also believes that the challenged regional provision does not prevent the achievement of the common objective, sanctioned at the aforementioned meeting, which would consist in the reduction of liabilities towards regional healthcare companies, resulting on 31 December 2015, through the restitution of 1,505 million euros. The mere temporal extension of the restitution program, far from prejudicing the common objective agreed in the technical table of 21 March 2017, would appear reasonable, as it was determined by the radical change in the circumstances of the case. In this regard, the regional defense recalls that, in the years 2020-2022, the Region had had to invest significant resources to cope, first, with the needs related to the pandemic, and then with the increase in the costs of raw materials and energy. Furthermore, the drastic reduction of the Region's cash fund would have derived, on the one hand, from the delay in the transfers of resources by the State, and, on the other, from the provision of restitutions to the State – introduced by various state regulations from 2022 onwards – of sums due for various reasons.

In this context, the disbursement of the higher amounts which, based on what was agreed in the meetings of the technical table for the verification of regional obligations, should have been paid into the healthcare account starting from 2023, would have prejudiced the payment of debts, maintained as residual, in favor of non-healthcare beneficiaries, with respect to whom prompt compliance would still be required. The changes introduced by the challenged regional provision would therefore be reasonable and sustainable, insofar as, by correctly balancing the opposing needs, they would allow the regional body to honor the commitment made at the aforementioned meeting of 21 March 2017 and, at the same time, not to completely paralyze its operations in the multiple areas, other than healthcare, in which the same body is called to intervene.

Moreover, by virtue of the cash transfers received by the Region, the ASL system, since 2017, having the necessary liquidity available, would have guaranteed scrupulous respect for the payment times of commercial debts in accordance with Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011, on combating late payment in commercial transactions. It would therefore not be necessary, starting from 2023, for a cash flow doubled compared to previous years, nor would there be any risk of an infringement procedure by the European Union against the Italian State, as the payment times for commercial transactions established by the aforementioned Directive 2011/7/EU would have been fully respected.

In the opinion of the Region, the challenged provision would therefore not be in contrast with the recovery plan, from which it exited following the meeting of 21 March 2017, nor would it be incompatible with the commitments made at the aforementioned meeting, having only rescheduled the restitution times for the liquidity owed to the healthcare system, without affecting the total quantum of such restitution.

3. – At the public hearing the parties insisted on the acceptance of the conclusions formulated in the pleadings.

Reasons for the Decision

1. – The President of the Council of Ministers, represented and defended by the State Attorney General's Office, has challenged Article 8 of Piedmont Region Law no. 6 of 2023, insofar as it has replaced paragraph 2 of Article 14 of Piedmont Region Law no. 24 of 2016, with reference to Articles 5, 120 and 117, third paragraph, of the Constitution, the latter in relation to Article 1, paragraphs 173 and 180, of Law No. 311 of 2004.

In more detail, the State defense censures the aforementioned Article 8 insofar as it has extended to the year 2032 the deadline (originally set at 2026) for the restitution of the sums unduly withdrawn from healthcare management and has differently modulated, starting from 2023, the amounts to be withdrawn, year by year, from the treasury account of ordinary management and to be allocated to the reduction of liabilities towards regional healthcare companies, as resulting on 31 December 2015. The appellant believes, in fact, that the challenged provision has unlawfully modified, unilaterally, the content of the agreements, incorporated in Article 14, paragraph 2, of Piedmont Region Law no. 24 of 2016, reached between the State and the Region, through the technical table for the verification of regional obligations and the Standing Committee for the verification of LEAs, bodies with mixed regional-state composition, at the meeting of 21 March 2017, in which the positive conclusion of the plan for the recovery from the health deficit had been declared.

The State defense complains that these modifications of the program for the restitution of sums to the SSR were made in the absence of any prior modification agreement, nor of any prior dialogue between the Piedmont Region and the competent state administrations (specifically, the Ministry of Economy and Finance and the Ministry of Health) and, therefore, in violation of the principle of loyal cooperation that must inform relations between the State and the regions (Articles 5 and 120 of the Constitution).

The challenged regional provision, in the appellant’s opinion, would, from a concurrent perspective, be detrimental to the fundamental principles of coordination of public finance referred to in the third paragraph of Article 117 of the Constitution, in relation to Article 1, paragraphs 173 and 180, of Law No. 311 of 2004, considering that the concurrent legislative autonomy of the regions in the sector of health protection and, in particular, in the context of the management of the healthcare service, may encounter limits in light of the objectives of public finance and the containment of expenditure, «moreover in a "framework of explicit sharing by the Regions of the absolute necessity to contain the deficits of the health sector” (see judgments no. 91/2012 and no. 193/2007)».

The challenged Article 8 would then be in specific contrast with the agreements concerning the implementation of the plan for the recovery from the health deficit, to which the Region had been subjected from 29 July 2010 to 21 March 2017, agreements whose binding nature for the regions subject to the same plans constitutes a fundamental principle of coordination of public finance expressly established by Article 1, paragraph 180, of Law No. 311 of 2004 and reiterated by Article 1, paragraph 796, letter b), of Law No. 296 of 2006, as well as by Article 2, paragraphs 80 and 95, of Law No. 191 of 2009.

2.‒ As a preliminary matter, it is necessary to specify that, from the overall tenor of the appeal, although formulated in a very concise manner, it can be deduced that the appellant identifies a joint violation of the fundamental principles regarding the coordination of public finance referred to in the third paragraph of Article 117 of the Constitution, and of the principle of loyal cooperation, which would have been realized as a result of the changes made unilaterally by the Piedmont Region to the program for the restitution of sums unduly withdrawn from healthcare management and used for other purposes. The program – as mentioned – had been agreed with the representatives of the Ministry of Economy and Finance and the Ministry of Health present in the technical table and in the Standing Committee, bodies with mixed regional-state composition, and defined at the meeting of 21 March 2017, in which the positive conclusion of the plan for the recovery from the health deficit to which the Piedmont Region had been subjected since 29 July 2010 had been declared.

The constitutional illegitimacy of such unilateral modifications is, in fact, denounced by referring both to the jurisprudence of this Court on the limits, in general, that the region encounters in the exercise of its competence «in the context of the management of the health service [...] in light of the objectives of public finance and the containment of expenditure», in a «framework of explicit sharing by the Regions of the absolute necessity to contain the deficits of the health sector» (judgment no. 193 of 2007); and to the specific configuration, as a fundamental principle of coordination of public finance, of the principle of binding nature of the plans for recovery from the regional health deficit and of the related operational programs, signed by the State and by the regions in deficit, from which derives the prohibition for the regions subject to such plans to adopt measures conflicting with all the specific interventions indicated therein.

Moreover, a similar dual presentation of the issue is reflected in the intervening state rules invoked by the appellant, which are not overlapping: the first, that is, Article 1, paragraph 173, of Law No. 311 of 2004, contemplates, in fact, a general principle – on which we will dwell later (point 4) – of a jointly agreed definition between the State and the regions of the measures aimed at achieving the objectives of maintaining the financial balance of the regional healthcare system (with consequent reciprocal constraints: of the State, regarding the disbursement of the agreed funding, and of the region, regarding compliance with the agreed objectives); the second, that is, Article 1, paragraph 180, of the same Law No. 311 of 2004, instead contains the specific principle of the binding nature of recovery plans and subsequent operational programs, signed by the State and the region, and the consequent prohibition for the regions to adopt laws and/or measures conflicting with the interventions indicated in the same plans or programs, during the period of validity of the latter.

3.‒ As a preliminary matter, it is easy to note that – in line with the constant jurisprudence of this Court according to which «in the identification of the subject to which a given rule is to be ascribed, […] it is necessary to consider its ratio, purpose and content, leaving out marginal aspects and reflective effects» (judgment no. 267 of 2022) – the challenged regional provision must be attributed to the areas of concurrent regional competence of the coordination of public finance and health protection.

Indeed, in regulating the restitution, by the Region, of sums previously withdrawn from regional healthcare management and used for other purposes, it aims to ensure financing of the Regional Health Service that is, at the same time, consistent with the objectives of public finance and the containment of costs, as well as with the guarantee of an efficient healthcare service suitable for providing healthcare services in compliance with constitutional standards. In essence, it intends «to achieve a management of the public healthcare function that is efficient and capable of responding to citizens' needs in a manner consistent with the budget rules» (judgment no. 190 of 2022).

4.‒ On the basis of these premises, the question raised with reference to Article 117, third paragraph, of the Constitution must be declared well-founded, first of all in relation to the fundamental principles of coordination of public finance established by Article 1, paragraph 173, of Law No. 311 of 2004, also with regard to the principle of loyal cooperation.

4.1.‒ It is necessary, first of all, to recall that the aforementioned Article 1, paragraph 173, of Law No. 311 of 2004 has further shaped the consensual model of «financial regulation between the State and the Regions in the healthcare sector» (judgment no. 36 of 2005), inaugurated by the agreement sanctioned in the Standing Conference for relations between the State, the regions and the Autonomous Provinces of Trento and Bolzano on 3 August 2000, then followed by the agreement of 8 August 2001 between the Government, the regions and Autonomous Provinces of Trento and Bolzano containing additions and modifications to the agreements sanctioned on 3 August 2000 (repertory of acts 1004) and 22 March 2001 (repertory of acts 1210) on healthcare, and, in particular, implemented through the so-called health pacts, the result of agreements always reached in the State-Regions-Autonomous Provinces Standing Conference, in which the amount of the State's contribution to the financing of the National Health Service (SSN) and the precise obligations of the regions are determined at the same time, from an incentive and conditionality perspective.

The financial law for 2005 (Law No. 311 of 2004) is based on the same principle which, precisely with Article 1, paragraph 173, has linked access to supplementary state funding (provided for by the previous paragraph 164) to the stipulation of a State-regions agreement, aimed at guaranteeing – among other things – the monitoring of regional healthcare expenditure in view of the objective of compliance by the regions with the maintenance of the economic-financial balance of the regional healthcare system.

In this agreement – signed on 23 March 2005 in the State-Regions-Autonomous Provinces Standing Conference – it was established, inter alia, in Article 6, that the regions undertake to guarantee with their own programming the economic-financial balance of their healthcare companies, and to implement forms of quarterly verification, as well as to comply with the obligation to adopt the measures necessary for the restoration of management to equilibrium.

Only if a situation of imbalance occurs, corresponding to a deficit equal to or greater than 5 percent (according to the current formula, introduced by Article 2, paragraph 77, of Law No. 191 of 2009, which has incorporated the agreement of 3 December 2009), the region must present a recovery plan (already provided for by paragraph 180 of Article 1 of Law No. 311 of 2004), of a duration not exceeding three years, which, once approved by the region and submitted to the opinion of the joint Technical Monitoring Structure (referred to in Article 3, paragraph 2, of the agreement of 3 December 2009) and of the State-Regions-Autonomous Provinces Standing Conference, must be approved by the Council of Ministers (Article 2, paragraphs 78 and 79, of Law No. 191 of 2009). For the entire time of validity of this plan, the region is prevented from adopting any measure, even legislative, that hinders its implementation and that affects the measures provided for therein; as it is also excluded that the same may introduce levels of healthcare beyond the essential ones and, therefore, may express its own health policy. Furthermore, in the event of failure to fully implement the plan within the three-year period, the plan may be continued, with the same effects, «according to operational programs» aimed at «achieving the structural objectives of the plan itself» pursuant to Article 15, paragraph 20, of Decree-Law No. 95 of 6 July 2012 (Urgent provisions for the revision of public expenditure with no change in services to citizens as well as measures to strengthen the equity of companies in the sector), converted, with modifications, into Law No. 135 of 7 August 2012, these instruments constituting, as this Court has had several occasions to affirm, an expression of the «fundamental principle aimed at containing public healthcare expenditure and of the related principle of coordination of public finance» (judgment no. 190 of 2022), in view of overcoming the deficit situation.

4.1.1.‒ From the regulatory framework recalled so far, it is clear that, starting from 2000, the consensual-agreement module constitutes the general model of regulation of the financing of the healthcare service, regardless of the specific situation in which the signing of the plan for recovery from the health deficit takes place and, therefore, independently of the peculiar consequences that only the latter determines.

It is a matter of experience that «the current legislation for the financing of the national health service originates from a series of agreements between the State and the Regions», on the basis of which are defined «both the services that the Regions are required to guarantee uniformly throughout the national territory, and the corresponding level of financing» (judgment no. 98 of 2007).

Such a choice, moreover, reflects the peculiarities of the healthcare sector and the inevitable involvement in it of state and regional competences.

This Court has recognised that the exercise of the public healthcare function at two levels of government derives from the interplay between constitutional and organisational profiles. The state level is called upon to define the services that the SSN is required to provide to citizens – that is, the essential levels of care – and the overall amount of economic resources necessary for their financing; the regional level is instead responsible for organising the respective service on the territory and guaranteeing the provision of services in compliance with constitutionally compliant standards (judgment no. 190 of 2022). Therefore, «[t]he presence of two levels of government makes it necessary to define a system of rules that regulates their cooperation relationships», while respecting their reciprocal competences, «in order to achieve a management of the public healthcare function that is efficient and capable of responding to citizens' needs in a manner consistent with the budget rules» (again judgment no. 190 of 2022).

In this key, it is evident that, in the sector in question, the «physiological dialectic» between the State and the regions must be based on «loyal cooperation oriented towards the common good» through which «the pluralistic model recognised by the Constitution can […] develop in a generative perspective […] towards the best protection of the right to health» (judgment no. 40 of 2022). This translates «in concrete terms, into duties and expectations – of information, of the provision of coordination tools and, in general, of genuinely cooperative, correct and non-obstructive behaviors, in short, precisely, loyal – which cannot be other than reciprocal» (judgment no. 217 of 2020) and therefore also concern the regions, considering the relational nature of the aforementioned principle (again, judgment no. 217 of 2020).

4.1.2.‒ In this case, the plan for recovery from the health deficit of the Piedmont Region had initially been signed for the three-year period 2010-2013 and then continued, due to the failure to achieve the objectives indicated therein, through the 2013-2015 operational programs ‒ prepared in implementation of Article 15, paragraph 20, of Decree-Law no. 95 of 2012, as converted ‒ and completed with a one-year delay. The exit from this plan was, finally, ordered following the positive evaluation relating to its conclusion, carried out at the aforementioned joint meeting of the technical table and the Standing Committee of 21 March 2017.

This positive evaluation – as is also clearly evident from the preparatory work of Article 14 of Piedmont Region Law no. 24 of 2016 – had also been carried out by virtue of the introduction, by the Piedmont Region, by its own law, of the provision concerning the ten-year program for the restitution of the sums (amounting to approximately 1,505 million euros) which, destined for healthcare management, had resulted, during monitoring, to have been unduly withdrawn from the latter and used for other purposes, with the result of putting regional healthcare companies in the position of not being able to promptly comply with payments, in violation of Directive 2011/7/EU, and of contributing to the situation of economic-financial imbalance. The program for the restitution of sums introduced by Article 14, paragraph 2, of the aforementioned Regional Law no. 24 of 2016 had also been agreed during monitoring with the technical table and the Standing Committee, as shown in the minutes of the joint meeting of 16 November 2016. In that session, in fact, the aforementioned bodies, while expressing their favor towards the regional choice of proceeding with a formal definition of the procedure for the restitution of regional liquidity owed to the SSR, through a specific rule to be included in the regional law for budget adjustment for the year 2016, had requested, however, that the restitution proposal be limited to a number of years not exceeding ten, also formulating a proposal for annual modulation of the amounts to be withdrawn from the treasury account of ordinary management and to be allocated to healthcare management within the decade. According to the latter, it was expected that: i) in 2017 and 2018, the cash transfer in favor of healthcare management should have been carried out for amounts equal to 65 million euros per year; ii) for each of the years 2019-2022, the transfer would have been 113 million euros per year; iii) finally, with reference to the following four years (2023-2026), a progressive, strong increase in the sums to be transferred was provided, corresponding to approximately two thirds of the total charges (923 million euros) in view of the completion of the restitution.

At the joint meeting of the technical table and the Standing Committee of 21 March 2017, the coherence of the program for the restitution of liquidity to the SSR, «formally adopted by regional law» as specifically defined by Article 14 of Regional Law no. 24 of 2016, «with what was requested by the Tables at the meeting of 16 November 2016» was noted, and it was stated that it «makes it possible to overcome the observations already made at the meeting of 20 April 2016 regarding the positive conclusion of the Recovery Plan».

From what has been reported, it therefore clearly emerges that the Piedmont Region, incorporating this program for the restitution of liquidity to the SSR into its own law, had committed itself not only to carrying out the planned restitution, but also to carrying it out within the maximum period of ten years, according to specific methods that it could well have modulated differently, in implementation of what was established, by agreement, by Article 6 of the agreement of 2