ORDER NO. 154
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 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 34, paragraph 1, letter a), number 2), and letter b), of the Law of the Sardinia Region, October 23, 2023, No. 9 (Provisions of an institutional, regulatory and financial nature on various matters), initiated by the President of the Council of Ministers with an appeal served and filed with the Registry on December 22, 2023, registered under No. 35 of the 2023 appeals register and published in the Gazzetta Ufficiale della Repubblica No. 4, first special series, of the year 2024.
Having seen the act of constitution of the Autonomous Region of Sardinia;
having heard, at the public hearing of May 8, 2024, the Judge Rapporteur Antonella Sciarrone Alibrandi;
having heard the State Attorney Fabrizio Fedeli for the President of the Council of Ministers and the Attorneys Giovanni Parisi, Roberto Silvio Murroni and Mattia Pani for the Autonomous Region of Sardinia;
having deliberated in the deliberation chamber of May 8, 2024.
Considering that, by appeal filed on December 22, 2023 (registered under No. 35 of the 2023 appeals register), the President of the Council of Ministers, represented and defended by the State Attorney General, challenged, among others, Article 34, paragraph 1, letters a), number 2), and b), of the Law of the Sardinia Region, October 23, 2023, No. 9 (Provisions of an institutional, regulatory and financial nature on various matters);
that said article, in paragraph 1, letter a), number 2), replaced paragraph 6 of Article 3 of the Law of the Sardinia Region, September 11, 2020, No. 24 (Reform of the regional health system and systematic reorganization of the rules in the matter. Repeal of Regional Law No. 10 of 2006, Regional Law No. 23 of 2014 and Regional Law No. 17 of 2016 and further sectorial rules), with the following: "6. Simultaneously with the establishment of ARES, the ATS is placed in liquidation. The liquidation administration of ATS is competent for the liquidation of all assets and liabilities and all pending cases, from the date of its establishment and those previously pertaining to the abolished local socio-health areas and the abolished health companies. For the performance of all activities, the liquidation administration of ATS normally uses the personnel of ARES and, if necessary, further figures through the stipulation of specific agreements. The ATS Liquidator is appointed by the Regional Government. The costs related to the liquidation activity of ATS are met with resources in addition to those provided, with reference to the Sardinia Region, by the State-Regions agreement concerning the allocation of standard health needs”;
that, in the opinion of the applicant, this provision, insofar as it provides that the Liquidator of the Health Protection Agency (ATS) is appointed by the Regional Government, would conflict, through the intermediary rules contained in Articles 1 and 2 of Legislative Decree August 4, 2016, No. 171, concerning "Implementation of the delegation referred to in Article 11, paragraph 1, letter p), of Law August 7, 2015, No. 124, on health management", with Article 117, third paragraph, of the Constitution, for violation of fundamental principles concerning the protection of health (reference is made in this regard to the judgments of this Court No. 192 of 2017, No. 54 of 2015, No. 207 of 2010, No. 181 of 2006 and No. 270 of 2005);
that the appointment procedure of the Liquidator of the regional company, assimilated to the general manager of a Local Health Authority (ASL) due to the identity of the functions performed, could therefore not disregard the fundamental principles established by the State legislature on the appointment of general managers, such as: the formation of a shortlist of candidates following a specific selection procedure; the need to proceed with a new appointment after completion of the selection procedure, in case of expiry or termination of the appointment; the exceptionality of cases where recourse is made to other names included in the shortlist; the conclusion of the appointment procedure with a reasoned decision published on the regional website, followed by the conclusion of the contract with the indication of the objectives to be achieved (reference is made to the judgments No. 87 of 2019, No. 159 of 2018, No. 190 of 2017, No. 124 of 2015, No. 295 of 2009, No. 449 of 2006 and the Order No. 422 of 2005 of this Court);
that the challenged regional provision would not find any legal basis even in Constitutional Law February 26, 1948, No. 3 (Special Statute for Sardinia), Article 4, first paragraph, of which includes, among the matters of regional legislative competence, that of "public assistance and welfare" (letter h) and that relating to "public hygiene and health" (letter i), with the more favourable clause contained in Article 10 of Constitutional Law October 18, 2001, No. 3 (Amendments to Title V of Part Two of the Constitution) having to be applied, according to the applicant, based on the jurisprudence of this Court (judgments No. 162 of 2007, No. 134 of 2006, No. 270 of 2005 and No. 282 of 2002);
that, consequently, even for the Autonomous Region of Sardinia, the regime of legislative competence in the matter in question should be that established by Article 117, third paragraph, of the Constitution, on the protection of health;
that Article 34, paragraph 1, letter b), also challenged, then added paragraph 5-bis to Article 13 of Regional Law Sardinia No. 24 of 2020, which reads "[p]ending the completion of the procedures referred to in paragraph 2, the health and administrative directors of ARES, AREUS, the local health authorities and the hospital and university-hospital companies are appointed in compliance with the provisions of letters a), b) and c) of paragraph 2. The managers thus identified are entitled to the remuneration provided for by the Regional Government resolution No. 51/31 of December 30, 2021, as amended by the Regional Government resolution No. 9/23 of March 24, 2022";
that also this provision, where it provides that, while the regional lists of eligible candidates are being updated, the position of health director and administrative director is assigned by direct appointment without any selection procedure, albeit among individuals possessing the requirements provided for in Article 13, paragraph 2, letters a), b) and c), of Regional Law Sardinia No. 24 of 2020, would conflict, according to the applicant, with Article 117, third paragraph, of the Constitution, through the intermediary rules of Articles 3 and 5 of Legislative Decree No. 171 of 2016, constituting principles of law concerning the protection of health (reference is made to the judgment No. 155 of 2022 of this Court);
that, as already observed for the previous provision, the constitutional jurisprudence (judgment No. 282 of 2002) has stated, with reference to special autonomies, that in the health sector, the rules of the special statute are not relevant, but rather Article 117, third paragraph, of the Constitution, with the more favourable clause of Article 10 of Constitutional Law No. 3 of 2001 applying;
that the Autonomous Region of Sardinia constituted itself as a party to the proceedings, with an act filed on January 30, 2024;
that the respondent highlighted the repeal of the challenged Article 34, paragraph 1, letter a), number 2), by Article 5, paragraph 32, letter a), of the Law of the Sardinia Region December 19, 2023, No. 17, concerning "Amendments to Regional Law No. 1 of 2023 (Stability Law 2023), budget variations, recognition of off-budget debts and past liabilities and various provisions", effective from December 20, 2023, also stating, with regard to letter b) of paragraph 1 of the same Article 34, "that the General Directorate of Health of the homologous Regional Department has proposed the repeal of the rule, the relevant process of which is at an advanced stage, but has not yet been completed".
Considering that, by act filed on April 17, 2024, the President of the Council of Ministers, following a decision of the Council of Ministers of April 15, 2024, partially withdrew the appeal, limited to the aforementioned provisions, on the basis of their repeal by Article 5, paragraphs 32, letter a), and 50, letter b), of Regional Law Sardinia No. 17 of 2023, without these having had any application in the meantime;
that the acceptance of the withdrawal by the Autonomous Region of Sardinia has not been received;
that, according to the consistent jurisprudence of this Court (ex multis, judgment No. 68 of 2024 and Order No. 20 of 2024), the declaration of withdrawal, even if not formally accepted by the respondent party, entails the cessation of the subject matter of the dispute where, even in light of the conduct of the parties, there is no interest in having the matter decided;
that, therefore, the cessation of the subject matter of the dispute must be declared with regard to the matters raised by the President of the Council of Ministers concerning Article 34, paragraph 1, letters a), number 2), and b), of Regional Law Sardinia No. 9 of 2023.
for these reasons
THE CONSTITUTIONAL COURT
reserving separate judgments on the decision of the further questions of constitutional legitimacy raised by the appeal mentioned above;
declares the cessation of the subject matter of the dispute concerning the questions of constitutional legitimacy of Article 34, paragraph 1, letters a), number 2), and b), of the Law of the Sardinia Region October 23, 2023, No. 9 (Provisions of an institutional, regulatory and financial nature on various matters), raised, with reference to Article 117, third paragraph, of the Constitution, by the President of the Council of Ministers with the appeal mentioned above.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on May 8, 2024.
Signed:
Augusto Antonio BARBERA, President
Antonella SCIARRONE ALIBRANDI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on July 30, 2024