Sentenza n. 170 del 2024

Judgment No. 170 of 2024

JUDGMENT NO. 170

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 delivered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 3, paragraphs 12 and 13, of Regional Law No. 1 of the Sardinia Region of 5 February 2024 (Financial provisions regarding tourism promotion, healthcare and various matters), initiated by the President of the Council of Ministers through a claim notified on 8 April 2024, filed with the registry on 16 April 2024, registered under No. 16 of the 2024 claims register and published in the Official Gazette of the Republic No. 20, first special series, of the year 2024.

Having regard to the deed of constitution of the Autonomous Region of Sardinia;

Having heard the reporting Judge Emanuela Navarretta at the public hearing of 25 September 2024;

Having heard the State Attorney Giammario Rocchitta for the President of the Council of Ministers and the lawyer Sonia Sau for the Autonomous Region of Sardinia;

Deliberated in the council chamber of 25 September 2024.

Considered in fact

1.– By claim filed on 16 April 2024 (reg. claim no. 16 of 2024), the President of the Council of Ministers, represented and defended by the State Attorney General, initiated issues of constitutional legitimacy of Article 3, paragraphs 12 and 13, of Regional Law No. 1 of the Sardinia Region of 5 February 2024 (Financial provisions regarding tourism promotion, healthcare and various matters), for violation of Articles 3 and 4 of Constitutional Law No. 3 of 26 February 1948 (Special Statute for Sardinia) and Article 117, third paragraph, of the Constitution, in relation to the fundamental principles in the matter of «coordination of public finances», provided for in Article 15, paragraph 14, of Decree-Law No. 95 of 6 July 2012 (Urgent provisions for the revision of public expenditure with invariance of services to citizens and measures to strengthen the capital of companies in the banking sector), converted, with amendments, into Law No. 135 of 7 August 2012, as well as Article 8-quinquies of Legislative Decree No. 502 of 30 December 1992 (Reorganisation of the regulations on healthcare, pursuant to Article 1 of Law No. 421 of 23 October 1992).

2.– The challenged Article 3, in paragraph 12, provides that, «[a]s applicable to the resources remaining in the balance sheets of ATS [Health Protection Agency] in liquidation after the application of Article 5, paragraph 8, of Regional Law No. 1 of 2023, and subsequent amendments and integrations, the expenditure of EUR 3,291,344.42 is authorised in favour of ARES [Regional Health Agency] for the purposes referred to in Article 5, paragraph 12, of Regional Law No. 1 of 2023, with reference to the year 2021 (mission 13 - programme 01 - title 1)».

The following paragraph 13, also challenged, provides that, «[a]s applicable to the Regional Health Fund relating to the year 2024, ARES is authorised to transfer the sum of EUR 5,835,023.84 for the purposes referred to in Article 5, paragraph 12, of Regional Law No. 1 of 2023, with reference to the year 2023 (mission 13 - programme 01 - title 1)».

3.– The claimant argues, first of all, that the challenged rules «do not coordinate» with what was laid down – by the same Region – in Article 5, paragraphs 12 and 13, of Regional Law No. 1 of the Sardinia Region of 21 February 2023 (Stability Law 2023), also noting that «critical issues» emerge from a comparison between the aforementioned provisions.

In particular, the State Attorney General recalls, from the regional stability law 2023, the text of Article 5, paragraph 12 – in the version amended by Article 56, paragraph 1, of Regional Law No. 9 of the Sardinia Region of 23 October 2023 (Institutional, regulatory and financial provisions on various matters) – according to which «[t]he unused resources of the spending ceiling assigned for 2020 for hospital care may be redistributed among accredited private providers that have produced hospital activity exceeding the budget assigned in 2021 and to increase the spending ceiling for hospital care in 2023 even beyond the limits imposed by national legal provisions that provide for the reduction of the purchase of volumes of healthcare services from accredited private individuals for outpatient specialist care and for hospital care aimed at contracting public spending, as the Region provides for the financing of healthcare expenditure with its own resources».

From this provision, the claimant infers that the Region would have authorised the redistribution of unused resources from the 2020 spending ceiling to accredited private providers that exceeded the hospital budget in 2021 and would have allowed the increase of the 2023 spending ceiling for hospital care, derogating from the national limits for reducing the purchase of services from private individuals.

4.– Next, the President of the Council of Ministers identifies an incompatibility between the challenged rules and the fundamental principles of the matter of «coordination of public finances», provided for in Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted.

4.1.– The State Attorney cites, as the content of the aforementioned Article 15, paragraph 14, the following text: «[t]o all individual contracts and all individual agreements in force in the 2012 financial year, pursuant to Article 8-quinquies of Legislative Decree No. 502 of 30 December 1992, for the purchase of healthcare services from accredited private entities for specialist outpatient care and for hospital care, a reduction is applied to the amount and the corresponding volumes of purchase in a fixed percentage, determined by the region or autonomous province, such as to reduce the total annual expenditure, compared to the expenditure recorded for the year 2011, by 0.5 percent for the year 2012, by 1 percent for the year 2013 and by 2 percent starting from the year 2014. The measure to contain expenditure referred to in this paragraph is in addition to any measures already adopted by the individual regions and autonomous provinces of Trento and Bolzano and also applies in the event of failure to sign the contracts and agreements, referring, in the latter case, to the regional programming acts or those of the autonomous provinces of Trento and Bolzano of healthcare expenditure. The level of expenditure determined for 2012 as a result of the application of the measure to contain expenditure referred to in this paragraph constitutes the level on which the measures that the regions must adopt, starting from 2013, pursuant to Article 17, paragraph 1, letter a), last period, of Decree-Law No. 98 of 6 July 2011, converted, with amendments, by Law No. 111 of 15 July 2011 [and] imposes the reduction in the purchase of services from private individuals for specialist outpatient and hospital care, aimed at containing public expenditure».

The claimant further reports that, starting from the year 2020, the expenditure limit indicated in the aforementioned Article 15, paragraph 14, first period, of Decree-Law No. 95 of 2012, as converted, was «re-determined in the value of the expenditure recorded in the year 2011, while respecting the economic and financial balance of the Regional Health Service», by virtue of the provisions of Article 45, paragraph 1-ter, of Decree-Law No. 124 of 26 October 2019 (Urgent provisions on tax matters and for non-deferrable needs), converted, with amendments, into Law No. 157 of 19 December 2019.

4.2.– From a comparison between the challenged regional rules and the aforementioned fundamental principles, the claimant infers that the Autonomous Region of Sardinia would have authorised a remuneration in favour of accredited private providers in excess of the expenditure limits assigned by the State legislator, which intended to «reduce the purchase of healthcare services by accredited private operators for specialist outpatient and hospital care with a view to spending review».

In particular, the State Attorney General believes that the aforementioned principles should also apply to regions with special statutes, without derogations being permitted, not even in favour of regions that provide for the financing of healthcare expenditure with their own resources.

Specifically, to confirm the binding nature, also with regard to the Autonomous Region of Sardinia, of the aforementioned fundamental principles of the matter of «coordination of public finances», the claimant recalls the provisions, for the years from 2019 to 2021, of Article 1, paragraph 572, of Law No. 145 of 30 December 2018 (State budget for the financial year 2019 and multi-year budget for the three-year period 2019-2021). This provision, for the dual purpose of «implementing the commitments in relation to foreign investments concerning the “Mater Olbia” hospital and applied medical research centre referred to in paragraph 1» and achieving «increases in the rates of active healthcare mobility and [a] reduction in the rates of passive mobility», temporarily and experimentally authorises the Autonomous Region of Sardinia «to plan the purchase of specialist outpatient and hospital healthcare services from private entities in an amount not exceeding the maximum level established by Article 15, paragraph 14, of Decree-Law No. 95 of 6 July 2012, converted, with amendments, into Law No. 135 of 7 August 2012, increased by 20 percent, without prejudice to the benefits relating to the derogation referred to in the second period of the same paragraph 14, introduced by Article 1, paragraph 574, of Law No. 208 of 28 December 2015 […]».

5.– Again with reference to Article 117, third paragraph, of the Constitution, in relation to the matter of «coordination of public finances», the claimant also detects a violation of the interposing rule provided for in Article 8-quinquies of Legislative Decree No. 502 of 1992.

The violation of this provision – according to the claimant – would be «prima facie» demonstrated by what has been argued regarding the alleged conflict with Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted.

The latter, in fact, would expressly refer to the contractual agreements referred to in the aforementioned Article 8-quinquies, so that the «violation carries its own self-sufficiency», since the aforementioned provision would establish «a procedure for the award, stipulation and execution of contracts in the health sector with the clear purpose of rationalising and economising the entire contract sector».

According to the claimant, it would therefore not be a casual circumstance that the state legislation of 2012, which provides for the aforementioned spending ceilings, mentions Article 8-quinquies, which, in itself, would not allow «the remuneration of services that exceed the spending ceiling, since the functionality of the healthcare expenditure programming system presupposes compliance with the established spending limits».

6.– Finally, Articles 3 and 4 of the special statute would also be violated, since the challenged rules «exceed the regional competence in the matter of healthcare expenditure».

7.– The Autonomous Region of Sardinia has appeared in court, with a deed filed on 8 May 2024, requesting that the claim be declared inadmissible and, in the alternative, unfounded.

8.– According to the defendant's defence, the alleged constitutional illegitimacy defects would be exposed «partly in a generic manner» and «partly in a manner that is neither clear nor coherent».

8.1.– Firstly, the claim, in noting the «inconsistency between the challenged rules and Article 5, paragraph 12, of Regional Law No. 1 of 21 February 2023», as well as the «existence of critical issues between the aforementioned provisions», would have omitted to motivate the meaning of these assertions and to indicate the violated constitutional parameters.

8.2.– Furthermore, the logical path aimed at involving Article 8-quinquies of Legislative Decree No. 502 of 1992 would be generic and unclear, especially since, «in addition to the reference to the need for tenders for the award of agreements with the SSR», the claimant would not make «any mention of other parts of the provision that would be violated».

In addition, the defendant notes that the aforementioned Article 8-quinquies, whose paragraph 1-bis has introduced a system for selecting accredited structures, for the purposes of stipulating agreements with the NHS (Article 15, paragraph 1, letter b, number 1, of Law No. 118 of 5 August 2022, containing the «Annual Law for the Market and Competition»), is not yet in force (Article 4, paragraph 7-bis, of Decree-Law No. 215 of 30 December 2023, containing «Urgent provisions on regulatory deadlines», converted, with amendments, into Law No. 18 of 23 February 2024, having deferred its entry into force until 31 December 2024).

9.– On the merits, the regional defence contests the alleged violation of the fundamental principles of the matter of «coordination of public finances», provided for in Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted, as it notes that the expenditure limits indicated therein would not be opposable to the Autonomous Region of Sardinia, which fully bears its own healthcare expenditure. Therefore, it could not be bound by state rules for the coordination of public finances aimed at dictating rules for containing healthcare expenditure (the judgments of this Court No. 231 of 2017 and No. 125 of 2015 are cited).

The defendant specifies that the challenged rules would have been adopted by the Region in the exercise of its concurrent legislative competence in the matter of «health protection», attributed by Article 117, third paragraph, of the Constitution and by Article 4 of the special statute, which would bind the Region – as self-sufficient in the financing of healthcare expenditure – solely to ensure the «minimum thresholds of the standards and the expenditure necessary to guarantee them».

The regional defence also reconstructs the ratio of the challenged rules, aimed at protecting the right to health and inspired by the need to reduce the long waiting lists, formed as a result of the COVID-19 pandemic, which would have generally led – together with the ageing of the population – to an increase in healthcare expenditure in Sardinia. Despite this overall picture and the simultaneous expansion of the essential levels of care introduced with the decree of the President of the Council of Ministers of 12 January 2017 (Definition and updating of the essential levels of care, pursuant to Article 1, paragraph 7, of Legislative Decree No. 502 of 30 December 1992), the State would, conversely, have still considered it «sustainable to maintain the limit of the value of the expenditure recorded in 2011, therefore more than 12 years earlier».

Ultimately, the defendant's defence believes that the challenged rules correspond to the legitimate exercise of regional legislative power, in full compliance with the division of competences between the State and the regions, the Autonomous Region of Sardinia having introduced measures aimed at «increasing the supply of services to citizens through the resources of its budget» and the State having no right to dictate financial coordination rules, where it does not contribute to the financing of healthcare expenditure (the judgment of this Court No. 11 of 2021 and the case law cited therein are reported, in this regard).

It would, conversely, be of no relevance that, in the past, the same Autonomous Region has chosen, in full autonomy, to apply state rules in this matter, as this circumstance would not prevent the Sardinian legislator from subsequently adopting a discipline different from that prescribed for regions whose healthcare expenditure is borne by the State.

10.– During the hearing of 25 September 2024, the parties insisted on the acceptance of the conclusions presented in their respective briefs.

Considered in law

1.1.– The challenged Article 3, paragraph 12, provides that, «[a]s applicable to the resources remaining in the balance sheets of ATS in liquidation after the application of Article 5, paragraph 8, of Regional Law No. 1 of 2023, and subsequent amendments and integrations, the expenditure of EUR 3,291,344.42 is authorised in favour of ARES for the purposes referred to in Article 5, paragraph 12, of Regional Law No. 1 of 2023, with reference to the year 2021 (mission 13 - programme 01 - title 1)».

1.2.– In particular, the claimant, after having noted critical issues and a lack of coordination between the challenged rules and other provisions laid down by the Autonomous Region of Sardinia, believes that Article 3, paragraphs 12 and 13, of Regional Law No. 1 of the Sardinia Region of 2024 would have allowed the Region to remunerate private providers of accredited healthcare services in excess of the expenditure limits imposed by the state legislator, thus determining the violation of the fundamental principles of the matter of «coordination of public finances», referred to in Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted. In essence, the state discipline aimed at containing public expenditure through the reduction of the amount and volumes of healthcare services provided by accredited private individuals for specialist outpatient and hospital care would have been derogated.

1.3.– Again with reference to the same constitutional parameter, the President of the Council of Ministers denounces a conflict with the interposing rule referred to in Article 8-quinquies of Legislative Decree No. 502 of 1992, arguing that the reasons for the alleged vulnus would be deductible «prima facie» from what has been argued regarding the alleged violation of Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted.

1.4.– Finally, the claim denounces a conflict with Articles 3 and 4 of the special statute, since the challenged rules «exceed the regional competence in the matter of healthcare expenditure».

2.– The Autonomous Region of Sardinia has appeared in court with a deed filed on 8 May 2024, raising two objections of inadmissibility.

2.1.– Firstly, the defendant believes that the claim has generically noted the «inconsistency between the challenged rules and Article 5, paragraph 12, of Regional Law No. 1 of 21 February 2023», as well as the «existence of critical issues between the aforementioned provisions», without motivating these assertions and omitting to indicate the violated constitutional parameter.

2.1.1.– The objection is well-founded.

The claimant does not clarify how the denounced lack of coordination between regional rules can translate into a defect of constitutional legitimacy, so much so that the reference to any constitutional parameter violated as a result of the aforementioned internal disharmony of the regional discipline does not emerge from the reasoning. The claimant has omitted, in essence, to indicate «the provisions of the Constitution or of the constitutional laws, which are assumed to be violated», as instead provided for by Article 23, first paragraph, letter b), of Law No. 87 of 11 March 1953 (Rules on the constitution and functioning of the Constitutional Court), by virtue of the reference referred to in Article 34, first paragraph, of the same law. The issue is therefore inadmissible, given the omitted indication of the violated constitutional parameter (judgment No. 193 of 2007, and, in the same sense, judgment No. 116 of 2006), and given the impossibility of inferring it from the overall reasoning of the claim (judgment No. 195 of 2021).

2.2.– With reference then to the issue concerning the violation of Article 117, third paragraph, of the Constitution, in relation to the fundamental principle of the matter of «coordination of public finances», which is assumed to be provided for by Article 8-quinquies of Legislative Decree No. 502 of 1992, the regional defence objects to the generality and lack of clarity of the censure. This, in fact, would have limited itself to making «reference to the need for tenders for the award of agreements with the SSR», omitting any «mention of other parts of the provision that would be violated».

2.2.1.– This objection is also well-founded.

The claimant partially illustrates the content of the provision containing the interposing rule and limits itself to stating that the reasons for its violation would be implicit and «prima facie» deductible from what has been argued regarding the violation of Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted.

However, according to the constant jurisprudence of this Court, the challenge must be based on adequate reasoning, not merely assertive, nor deductible only by relationem, all the more so in that it concerns judgments initiated in the main way, with respect to which the need for a congruent argument arises in even more significant terms than those established in the incidental way (ex multis, judgments No. 95 of 2024, No. 125, No. 57 and No. 47 of 2023).

2.3.– For the same reasons, the inadmissibility of the issue initiated in reference to Articles 3 and 4 of the statute of the Autonomous Region of Sardinia must be declared ex officio, as this censure is devoid of any reasoning.

3.– On the merits, it is necessary to examine the remaining issue of constitutional legitimacy, with which the claimant deduces the violation of the fundamental principles in the matter of «coordination of public finances», provided for in Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted.

4.– The issue is unfounded.

4.1.– With the challenged rules, the Autonomous Region of Sardinia regulates the destination of the resources remaining from the budgets of the Health Protection Agency, in liquidation, deducted the sums necessary to implement Article 5, paragraph 8, of Regional Law No. 1 of the Sardinia Region of 2023, and subsequent amendments and integrations.

In particular, the Region authorises the Regional Health Agency to allocate: the sum of EUR 3,291,344.42 to the redistribution among accredited private providers, which have produced hospital activity exceeding the budget assigned in the year 2021, and the sum of EUR 5,835,023.84 to the increase of the hospital spending ceiling in the year 2023 (Article 3, paragraphs 12 and 13, of Regional Law No. 1 of the Sardinia Region of 2024).

4.2.– The claimant laments the violation of the fundamental principles of the matter of «coordination of public finances» that place a ceiling on healthcare expenditure. Specifically, it refers to Article 15, paragraph 14, of Decree-Law No. 95 of 2012, as converted, which, in the currently valid version, states: «[t]o the contracts and agreements in force in the 2012 financial year […] for the purchase of healthcare services from accredited private entities for specialist outpatient care and for hospital care, a reduction is applied to the amount and the corresponding volumes of purchase in a measure determined by the region or autonomous province, such as to reduce the total annual expenditure, compared to the expenditure recorded for the year 2011, by 0.5 percent for the year 2012, by 1 percent for the year 2013 and by 2 percent starting from the year 2014. Starting from the year 2016 […] the regions and autonomous provinces of Trento and Bolzano may plan the purchase of highly specialised hospital care services, as well as services provided by hospitals and scientific research institutes (IRCCS) for the benefit of citizens residing in regions other than those of belonging included in the agreements for the compensation of interregional mobility […] and in the bilateral agreements between the regions for the governance of interregional healthcare mobility […], in derogation of the limits provided for in the first period. In order to guarantee, in any case, the invariance of the financial effect connected to the derogation referred to in the preceding period, the regions and autonomous provinces of Trento and Bolzano shall take alternative measures, aimed, in particular, at reducing the inappropriate services of low complexity provided in outpatient, emergency room, ordinary hospitalisation and rehabilitation and long-term care, purchased from accredited private providers, to such an extent as to ensure compliance with the reduction objectives referred to in the first period, as well as the objectives provided for by Article 9-quater, paragraph 7, of Decree-Law No. 78 of 19 June 2015, converted, with amendments, by Law No. 125 of 6 August 2015; alternative measures in other areas of healthcare expenditure may also contribute to the achievement of the aforementioned financial objective. […] The regions publish, for each IRCCS, on a quarterly basis, the value of the services rendered to extra-regional patients in each region. […] The measure to contain expenditure referred to in this paragraph is in addition to any measures already adopted by the individual regions and autonomous provinces of Trento and Bolzano and also applies in the event of failure to sign the contracts and agreements, referring, in the latter case, to the regional programming acts or those of the autonomous provinces of Trento and Bolzano of healthcare expenditure. The level of expenditure determined for 2012 as a result of the application of the measure to contain expenditure referred to in this paragraph constitutes the level on which the measures that the regions must adopt, starting from 2013 […]».

In essence, the provision establishes, for all contracts and agreements in force in the 2012 financial year, a reduction in the amount and the corresponding volumes of purchase for healthcare services from accredited private entities for specialist outpatient and hospital care, dictating reduction percentages, which have subsequently been modified.

In particular, Article 45, paragraph 1-ter, of Decree-Law No. 124 of 2019, as converted, provided that, starting from the year 2020, the expenditure limit indicated in the aforementioned Article 15, paragraph 14, first period, of Decree-Law No. 95 of 2012, as converted, is «re-determined in the value of the expenditure recorded in the year 2011», after which this value was then increased, by Article 1, paragraph 233, of Law No. 213 of 30 December 2023 (State budget for the financial year 2024 and multi-year budget for the three-year period 2024-2026), «by 1 percentage point for the year 2024, by 3 percentage points for the year 2025 and by 4 percentage points starting from the year 2026 […]».

4.3.– Faced with the aforementioned censure, it should be noted that the challenged discipline emanates from a region with a special statute – Sardinia – that fully finances its own regional health service, by virtue of the provisions of Article 1, paragraph 836, 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)», according to which «[s]tarting from the year 2007, the Sardinia region provides for the financing of the overall needs of the National Health Service in its territory without any contribution from the State budget».

4.4.– In this regard, since judgments No. 133 of 2010 and No. 341 of 2009, this Court has affirmed that, where «the State does not contribute to the financing of the [regional or] provincial health service, […] it also has no right to dictate rules for financial coordination that define the methods of containing [healthcare] expenditure».

The same principle has subsequently been reaffirmed (with judgments No. 231 of 2017, No. 75 of 2016, No. 125 of 2015, No. 187 and No. 115 of 2012), also with specific reference to laws of the Autonomous Region of Sardinia (judgments No. 141 of 2024, No. 1