JUDGMENT NO. 198
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
Composed of:
President: Augusto Antonio BARBERA;
Justices: 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 pronounced the following
JUDGMENT
in the constitutional legitimacy proceedings of Articles 3, paragraphs 1 and 2, and 5, paragraph 47, letter a), of the Law of the Sardinia Region of 19 December 2023, no. 17, bearing «Amendments to Regional Law no. 1 of 2023 (Stability Law 2023), budget variations, recognition of off-budget debts and past liabilities, and various provisions», promoted by the President of the Council of Ministers with a writ of summons notified on 19 February 2024, filed in the registry on 22 February, registered under no. 6 in the registry of appeals for 2024, and published in the Official Gazette of the Republic no. 11, special series I, of the year 2024.
Heard in the public hearing of 15 October 2024, the Reporting Judge Maria Rosaria San Giorgio;
Heard the State Attorney Giammario Rocchitta for the President of the Council of Ministers;
Deliberated in the council chamber of 15 October 2024.
Considered in Fact
1.– By a writ of summons notified on 19 February 2024, filed on 22 February and registered under no. 6 in the registry of appeals for 2024, the President of the Council of Ministers, represented and defended by the State Attorney General's Office, promoted, inter alia, questions of constitutional legitimacy of Articles 3, paragraphs 1 and 2, and 5, paragraph 47, letter a), of the Law of the Sardinia Region of 19 December 2023, no. 17, bearing «Amendments to Regional Law no. 1 of 2023 (Stability Law 2023), budget variations, recognition of off-budget debts and past liabilities, and various provisions».
1.1.– Article 3 of the Sardinia Region Law no. 17 of 2023, entitled «Provisions regarding the allowances of metropolitan councillors and amendments to Regional Law no. 3 of 2022 and Regional Law no. 7 of 2021 regarding regional territorial planning», partially modifies the previous regional regulations on the allowances of metropolitan councillors. It is challenged by the President of the Council of Ministers, limited to paragraphs 1 and 2, for violation of Articles 3, 9, 117, second paragraph, letter p), and third paragraph, of the Constitution, the latter in relation to Article 1, paragraph 24, of Law 7 April 2014, no. 56 (Provisions on metropolitan cities, provinces, unions and mergers of municipalities), and to Article 3 of Constitutional Law 26 February 1948, no. 3 (Special Statute for Sardinia).
Paragraph 1 states as follows: «[m]etropolitan councillors, when not invested with delegations by the metropolitan mayor, shall receive an allowance equal to that provided for councillors of the capital municipality of the metropolitan city, pursuant to and for the purposes of Article 82 of Legislative Decree 18 August 2000, no. 267 (Consolidated Law on the system of local authorities)». Under paragraph 2, «[m]etropolitan councillors delegated by the metropolitan mayor are equated, pursuant to and for the purposes of Article 82 of Legislative Decree no. 267 of 2000, to members of the council of the capital municipality of the metropolitan city».
In the opinion of the appellant, the reference to Article 82 of Legislative Decree 18 August 2000, no. 267 (Consolidated Law on the system of local authorities), would not be «correct», since the allowance of metropolitan councillors would rather be governed, at the national level, by Article 1, paragraph 24, of Law no. 56 of 2014, which establishes that their office is unpaid.
The challenged regional provisions, in providing for a function allowance equal to that of the councillors of the capital municipality (or, in the case of delegations, to that of the members of the Council of the capital municipality), would entail an «increase in expenditure, as well as the establishment of an emolument that is in conflict with the aforementioned national legislation».
The aforementioned constitutional parameters would therefore be violated, both in relation to the intervening national provision, which establishes that the office is unpaid, and to Article 3 of the special statute of the Autonomous Region of Sardinia, which does not include the «financial matter» among the areas of exclusive legislative competence of the same.
1.2.– Article 5 of the Sardinia Region Law no. 17 of 2023, under the heading «Financial provisions regarding health and social policies», in paragraph 47, letter a), repeals paragraph 1 of Article 3-bis of the Law of the Sardinia Region of 6 March 2020, no. 6 (Rules on specialist training contracts and scholarships in the health area). The repealed provision, which had been introduced by Article 54, paragraph 1, letter d), of the Law of the Sardinia Region of 23 October 2023, no. 9 (Provisions of an institutional, regulatory and financial nature on various matters), established the following: «[t]he Region finances scholarships for attendance at specialist schools in the non-medical health area for: biologists, chemists, pharmacists, physicists, dentists, psychologists and veterinarians».
The President of the Council of Ministers challenges the repealing provision for conflict with Articles 3, 117, third paragraph, and 120, second paragraph, of the Constitution.
According to the appellant, paragraph 2 of Article 3-bis (not affected by the amendment) presents an «ambiguity» in the part in which, as regards the granting of regional scholarships for the «non-medical» area, which had been provided for by the repealed paragraph 1, it continues to refer to national legislation, laid down by Article 8 of Law 29 December 2000, no. 401 (Rules on the organisation and staff of the health sector), and by Article 35 of Legislative Decree 17 August 1999, no. 368 (Implementation of Directive 93/16/EEC on the free movement of doctors and the mutual recognition of their diplomas, certificates and other qualifications, and of Directives 97/50/EC, 98/21/EC, 98/63/EC and 99/46/EC amending Directive 93/16/EEC).
The national provisions referred to – observes the appellant – provide for funding for attendance at specialist schools exclusively for the medical area, defining the methods of distribution of the related scholarships. They could not therefore apply to the different area of non-medical specialisations.
Based on the national regulatory framework – completed, as highlighted in the appeal, by Article 2-bis of Decree-Law 29 March 2016, no. 42 (Urgent provisions on the functionality of the school and research system), converted, with amendments, into Law 26 May 2016, no. 89 – the Region would not be precluded from financing scholarships for attendance at specialist schools in the non-medical health area. However, with regard to the regulation of the methods of disbursement, the regional legislator could not involve «the national level and the Ministry of University and Research». Already during the examination of the Sardinia Region Law no. 9 of 2023 – reports the appellant – the aforementioned Ministry had raised observations on Article 54, requesting the suppression of any reference to national legislation, and the Autonomous Region of Sardinia «had undertaken the commitment» to provide in this sense. The formulation of the challenged provision would deviate from this commitment, which, while repealing «paragraph 1», which referred to the regional financing of scholarships for the non-medical area, left paragraph 2 of Article 3-bis of the Sardinia Region Law no. 6 of 2020 unchanged, thus maintaining the «erroneous» reference to national legislation. In this regard, the appeal states that the elimination of paragraph 1, instead of paragraph 2, would be the result of «a mere error».
This would result, first of all, in the violation of Article 3 of the Constitution «for conflict with the principle of reasonableness». Article 3-bis of the Sardinia Region Law no. 6 of 2020 would be «impossible to apply» following the repeal of paragraph 1, not even in light of «a systematic reading»: the subsequent paragraphs, which consequently «it is unclear what they refer to», would remain meaningless and, moreover, would be in contradiction with each other, since paragraph 2 refers to the national rules on scholarships, while paragraph 3 – as amended by Article 5, paragraph 47, letter b), of the Sardinia Region Law no. 17 of 2023 – now provides for direct regional financing in favour of universities.
Article 117, third paragraph, of the Constitution would also be violated, for infringement of the legislative power of the State in the concurrent matter of health protection. The appellant returns to argue that, at the national level, there is currently no provision for funding for attendance at specialist schools in the non-medical health area, in a regulatory framework which, consistently, does not define the methods for the disbursement of the relevant scholarships. In reiterating that the national provisions indicated by Article 3-bis, paragraph 2, of the Sardinia Region Law no. 6 of 2020 refer only to scholarships for the medical health area and could not be applied to other forms of funding, the appeal illustrates the consequent conflict of the challenged provision with Article 2-bis of Decree-Law no. 42 of 2016, as converted, containing a derogation from national legislation precisely for the activation of non-medical specialisation schools. In the opinion of the appellant, this would expose the «risk of future requests to the state administration to activate procedures for the disbursement of scholarships in the non-medical health area, while this issue is still being defined at the national level».
Finally, Article 120, second paragraph, of the Constitution would be violated, for infringement of the principle of loyal cooperation «in its broad constitutional sense of suitability to pursue the right balance of the aims pursued by the State and the Regions». The alleged infringement would derive from the failure of the Autonomous Region of Sardinia to comply with the «commitment previously undertaken» to eliminate any reference to national legislation within the framework of the regulations laid down by Article 3-bis, paragraph 2, of the Sardinia Region Law no. 6 of 2020.
2.– The Autonomous Region of Sardinia did not appear in the proceedings.
Considered in Law
1.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, has challenged some provisions of the Sardinia Region Law no. 17 of 2023.
1.1.– In this seat, Article 3, paragraphs 1 and 2, of the Sardinia Region Law no. 17 of 2023, which establishes an «allowance» in favour of metropolitan councillors, is first of all under consideration. Pursuant to paragraph 1, the allowance is «equal to that provided for councillors of the capital municipality of the metropolitan city», if metropolitan councillors are not invested with delegations by the metropolitan mayor. Pursuant to paragraph 2, they are instead «equated [...] to the members of the council of the capital municipality of the metropolitan city» if they have received delegations from the metropolitan mayor. In both cases, the regional law refers to Article 82 of Legislative Decree no. 267 of 2000, containing the regulations on function allowances and attendance fees in favour of the administrators of local authorities.
In the opinion of the appellant, these provisions would entail an increase in expenditure, in contrast with national legislation, which, in Article 1, paragraph 24, of Law no. 56 of 2014, establishes that the office of metropolitan councillor is unpaid. Articles 3, 9, 117, second paragraph, letter p), and third paragraph, of the Constitution, «concerning the coordination of public finances», precisely in relation to the national provision of unpaid office de quo, as well as Article 3 of the regional statute of autonomy which would not allow the Sardinian legislator «to legislate in financial matters», would therefore be violated.
1.2.– The question is founded.
1.2.1.– It must be premised that the establishment of an allowance for councillors of metropolitan cities, as provided for by the challenged provisions, constitutes a novelty for the Sardinian regional legal system itself. Previously, the Law of the Sardinia Region of 4 February 2016, no. 2 (Reorganisation of the system of local autonomies of Sardinia), in fact established, in Article 1, paragraph 6, first sentence, that «[t]he offices of the bodies of the unions of municipalities, provinces and metropolitan cities are exercised on an unpaid basis».
This latter provision was in line with the national regulatory framework of reference, as it had evolved up to that moment.
On the other hand, the Consolidated Law on Local Authorities, in addition to having expressly provided for an allowance for the metropolitan mayor (Article 82, paragraph 1), had not excluded the possibility that metropolitan councillors could also receive compensation for the exercise of their function. Article 82, paragraph 8, letter d), had in fact referred to a specific ministerial decree the definition of «special function allowances for the administrators of metropolitan cities in relation to the specific functions assigned to them». This reiterated the provision of Article 9 of the coeval secondary source, approved by decree of the Minister of the Interior of 4 April 2000, no. 119 (Regulation containing rules for determining the amount of the function allowance and attendance fees for local administrators, pursuant to Article 23 of Law 3 August 1999, no. 265), according to which «[t]he administrators of metropolitan cities shall be entitled to a special function allowance which will be defined in a specific decree in relation to the specific functions assigned to metropolitan cities».
The national regulatory framework then changed radically first with Article 18, paragraph 10, of Decree-Law 6 July 2012, no. 95 (Urgent provisions for the revision of public expenditure with no change in services to citizens and measures to strengthen the capital of companies in the banking sector), converted, with amendments, into Law 7 August 2012, no. 135, which – as far as is of most interest in this seat – introduced the rule of unpaid office for the positions of metropolitan councillor, metropolitan mayor and deputy mayor. Law no. 56 of 2014 then intervened, which, within the framework of a broader reform of the system of local authorities (and, in particular, of metropolitan cities), in Article 1, paragraph 24, reiterated the principle of unpaid office for metropolitan councillors, as well as for the offices of metropolitan mayor and members of the metropolitan conference.
This principle, linked to the need to obtain cost savings from the functioning of local authorities, still inspires the national legislation of reference, even in the presence of some signals to the contrary, limited, however, only to specific public offices.
1.2.2.– This Court, with a consistent approach, has qualified the national rules that establish that the functions entrusted to the administrators of local authorities are unpaid as a fundamental principle of the concurrent matter of «coordination of public finance», noting that the national legislator has made a «fundamental choice» that binds and directs the discipline entrusted to the concurrent legislative competence of the regions (judgments no. 23 of 2014 and no. 151 of 2012), including those with special autonomy, in a manner consistent, moreover, with the contemporary provision of the indirect election of the leading bodies of the redesigned territorial authorities (judgment no. 168 of 2018). It has been specified in particular that «[w]ith regard to the public finance constraints carried by national legislation, this Court consistently holds that they "apply, as a rule, also to subjects with special autonomy (judgment no. 36 of 2004; subsequently, judgments no. 54 of 2014, no. 229 of 2011, no. 169 and no. 82 of 2007, no. 417 of 2005 and no. 353 of 2004), since they are functional to preventing budget deficits, to preserving the economic and financial equilibrium of all public administrations and to guaranteeing the economic unity of the Republic (judgment no. 82 of 2015), given that the finances of the Regions with special statute are part of the enlarged public finance (judgment no. 80 of 2017)” (judgment no. 231 of 2017)» (judgment no. 141 of 2024).
1.2.3.– The regulatory intervention of the Autonomous Region of Sardinia, in providing for an allowance in favour of metropolitan councillors, has therefore been in conflict with the fundamental principle of coordination of public finance, which is still in force and not available even in the unfolding of the special autonomy of the Region itself.
The constitutional illegitimacy of Article 3, paragraphs 1 and 2, of the Sardinia Region Law no. 17 of 2023, for violation of Article 117, third paragraph, of the Constitution, must therefore be declared, with absorption of the remaining censures.
2.– The second group of questions that is examined in this seat concerns the provision of Article 5, paragraph 47, letter a), of the Sardinia Region Law no. 17 of 2023, which repealed paragraph 1 of Article 3-bis of the Sardinia Region Law no. 6 of 2020.
The provision last mentioned had been introduced by Article 54, paragraph 1, letter d), of the Sardinia Region Law no. 9 of 2023, which had established the commitment, for the Region, to disburse «scholarships for attendance at specialist schools in the non-medical health area».
The repealing, according to the appellant, would give rise to an «ambiguity» in the resulting legislation: paragraph 2 of the same Article 3-bis has in fact been maintained, which establishes the methods of disbursement of the scholarships and which, on this point, refers to the national provisions referred to in Article 8 of Law no. 401 of 2000 and Article 35 of Legislative Decree no. 368 of 1999.
From the highlighted ambiguity would derive the violation of Article 3 of the Constitution «for conflict with the principle of reasonableness».
Furthermore, the infringement of Article 117, third paragraph, of the Constitution is lamented for violation of the concurrent legislative competence of the State in the matter of «health protection», in relation to the intervening provision of Article 2-bis of Decree-Law no. 42 of 2016, as converted, which does not provide for funding for attendance at specialisation schools in the non-medical area, while temporarily allowing their activation.
Finally, Article 120, second paragraph, of the Constitution would also be violated for infringement of the principle of loyal cooperation, since, in approving the challenged provision, the Autonomous Region of Sardinia would have failed to comply with a «commitment previously undertaken» with the Government, concerning precisely the elimination, in the text of Article 3-bis, paragraph 2, of the Sardinia Region Law no. 6 of 2020, of any reference to national legislation.
2.1.– Preliminarily, it is necessary to report on a regulatory change, which occurred during the proceedings.
Article 5, paragraph 7, of the Law of the Sardinia Region of 18 September 2024, no. 13 (Budget adjustment 2024-2026 and budget variations based on the provisions of Articles 50 and 51 of Legislative Decree no. 118 of 2011, and subsequent amendments and integrations, and recognition of off-budget debts), has, in fact, replaced paragraph 2 of Article 3-bis of the Sardinia Region Law no. 6 of 2020, inserting the original wording of paragraph 1: in substance, therefore, the provision that establishes scholarships for the specialisation schools of the non-medical area has been reintroduced but, at the same time, the previous reference (which was found in paragraph 2) to national legislation referred to in Article 8 of Law no. 401 of 2000 and Article 35 of Legislative Decree no. 368 of 1999 has been eliminated.
The State Attorney's Office, at the public hearing, acknowledged that these amendments have excluded the reference to national methods of disbursement of scholarships. Nevertheless, it has insisted on requesting the decision on the merits on the promoted questions of constitutional legitimacy, fearing – similarly to what was argued in the appeal – that the commitment to the granting of scholarships, as derived from the Law of the Sardinia Region, may still involve the national level of government, in the face of requests for scholarships for attendance at non-medical specialisation schools.
2.2.– This Court considers, also in light of what has been represented by the treasury defence, that the ius superveniens has not determined the termination of the dispute.
There are, in fact, no elements from which to deduce that the challenged provision, in the wording in force at the time of the promotion of the questions, did not receive application in the meantime. It, in fact, could well have, in the albeit short period of time in which its validity lasted, allowed the competent administrative offices even just to initiate the preliminary procedures for the disbursement of scholarships in favour of trainees in the non-medical health area, and this precisely according to the methods practiced at the national level (thanks to the regulatory reference that was found in the previous text of Article 3-bis, paragraph 2), as such considered incorrect and specifically challenged by the appellant.
According to the case law of this Court, in the face of the amendment of the challenged provision in proceedings brought by way of principal action, the termination of the dispute is determined when two conditions occur simultaneously: the satisfactory nature of the claims made in the appeal and the failure to apply the challenged provision in the meantime (ex plurimis, judgments no. 68 of 2024 and no. 92 of 2022). In the case at hand, even if we were to consider that the ius superveniens is actually satisfactory – a circumstance that, in fact, the appellant has expressly denied – the further condition referred to does not occur in any case, for what was previously observed.
2.3.– That said, on the merits the questions are unfounded.
2.3.1.– The text of Article 3-bis of the Sardinia Region Law no. 6 of 2020, in the wording in force at the time of the submission of the appeal, was not affected by such a serious level of ambiguity as to cause its concrete inapplicability or, even, total incomprehensibility, as argued in the reason for censure that invokes Article 3 of the Constitution and the principle of reasonableness.
In fact, even in the face of the "repeal" of paragraph 1, the discipline of paragraph 2, which expressly referred to the disbursement of scholarships, these latter also indicated by the heading of the article, still remained. There was also already paragraph 3 which (with reference to the previous article) indicated in any case the amount and the amounts provided and which, by means of the final period added by Article 5, paragraph 47, letter b), of the Sardinia Region Law no. 17 of 2023, reiterated the «regional» nature of the financing, «attributed directly to the beneficiary universities».
Therefore, the extremes of the absolute «indeterminacy of the [...] application requirements» in the presence of which, according to the most recent case law of this Court, a provision of law is constitutionally illegitimate for violation of Article 3 of the Constitution in that it is «irremediably obscure, and therefore a harbinger of intolerable uncertainty» in its concrete application (judgment no. 110 of 2023), do not apply.
2.3.2.– The repeal of paragraph 1 (even before the reintroduction of the same rule in the amended paragraph 2) did not even lead to the violation of Article 117, third paragraph, of the Constitution, in relation to the intervening national provision referred to in Article 2-bis of Decree-Law no. 42 of 2016, as converted. The appellant refers, here, to the blocking of funding that derives from this latter provision, which, even in the transitional period of initial activation of the specialisation schools in the non-medical area, currently does not allow the disbursement of scholarships.
While it is partly necessary to agree with the appellant regarding the inclusion of the challenged discipline among the matters of concurrent legislative competence of State and regions – since an aspect concerning specialist training activities in the health area is regulated, which can be traced, predominantly, to the matters of professions and health protection (judgments no. 112 of 2023, no. 249 of 2018 and no. 126 of 2014) – it cannot, however, be considered that the provision of the blocking of scholarships, imposed at national level with the aforementioned rule referred to in Article 2-bis of Decree-Law no. 42 of 2016, as converted, can configure a fundamental principle suitable for binding the regional legislator.
In this regard, it is useful to recall that, at the level of national regulation, Article 8 of Law no. 401 of 2000 extends to «veterinarians, dentists, pharmacists, biologists, chemists, physicists, psychologists» the methods, provided for doctors by Article 35 of Legislative Decree no. 368 of 1999, which allow to determine every three years the need for graduates who can enrol in post-graduate specialisation schools, with the clarification that «the annual survey of the need also remains firm for the purposes of the annual allocation of scholarships within the scope of the resources already provided». Only temporarily, pending «an organic definition of the matter», the emergency legislator of 2016 subsequently decided to "activate" specialisation schools for the non-medical area – which up to that moment were not yet operational – with an explicit derogation from the provisions of Article 8 of Law no. 401 of 2000, without «new or greater burdens on public finances» (Article 2-bis of Decree-Law no. 42 of 2016, as converted).
Therefore, with regard to the current situation which sees scholarships in the non-medical area not funded, no complete "fundamental choice", systematically and consistently pursued by the national legislator, can be identified. The lack of funding ordered by Article 2-bis of Decree-Law no. 42 of 2016, as converted, explicitly qualified as a «derogation» with respect to legislation that is otherwise still applicable, results in a rule dictated by a particular contingency, which certainly cannot prevent the regions from intervening in the ordinary way and with their own resources (as, moreover, the treasury defence itself acknowledges), within the scope of the competences constitutionally attributed to them. With particular regard to the Autonomous Region of Sardinia, it should then be emphasised that, under Article 5, first paragraph, letter a), of its statute of autonomy, it «has the power to adapt the provisions of the laws of the Republic to its particular needs, issuing rules of integration and implementation», and this also with reference to the matter of «education of all levels, organisation of studies».
The Autonomous Region of Sardinia, therefore, in accordance with the provisions of its statute of autonomy, may well provide, with its own resources, for the funding of scholarships for specialisation schools in the non-medical health area, and in this sense the regulations laid down by Article 3-bis of the Sardinia Region Law no. 6 of 2020 (in the wording prior to the amendments last introduced by the Sardinia Region Law no. 13 of 2024) should be understood.
2.4.– Finally, the censure relating to an alleged conflict with Article 120, second paragraph, of the Constitution is unfounded, under the profile of the violation of the principle of loyal cooperation, because the Sardinian legislator has failed to comply with a previous «commitment» undertaken with the Government.
In this regard, it is sufficient to note that the appellant has not filed any official act of the Autonomous Region of Sardinia from which, in theory, the «commitment» in question could be inferred, which the Region would have failed to respect. This, regardless of other considerations, of a more general level, regarding the actual possibility of considering «loyal cooperation» as a factor that is imposed in the legislative formation procedure, including regional ones: a possibility that the case law of this Court has constantly excluded, except for the exceptional cases, constitutionally provided for, of legislative concertation (judgment no. 237 of 2017 and, most recently, judgment no. 139 of 2024), which in this case are not relevant.
for these reasons
THE CONSTITUTIONAL COURT
1) declares the constitutional illegitimacy of Article 3, paragraphs 1 and 2, of the Law of the Sardinia Region of 19 December 2023, no. 17, bearing «Amendments to Regional Law no. 1 of 2023 (Stability Law 2023), budget variations, recognition of off-budget debts and past liabilities, and various provisions»;
2) declares unfounded the questions of constitutional legitimacy of Article 5, paragraph 47, letter a), of the Sardinia Region Law no. 17 of 2023, promoted, with reference to Articles 3, 117, third paragraph, and 120, second paragraph, of the Constitution, by the President of the Council of Ministers, with the appeal indicated in the headnote.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 15 October 2024.
Signed:
Augusto Antonio BARBERA, President
Maria Rosaria SAN GIORGIO, Reporting Judge
Roberto MILANA, Director of the Registry
Filed in the Registry on 13 December 2024