Order read at the hearing of May 22, 2024, and attached to Judgment No. 140 of 2024

ORDER

Having examined the documents relating to the proceedings concerning the constitutional review of Article 9-ter of Decree-Law No. 78 of June 19, 2015 (Urgent provisions concerning territorial entities. Provisions to guarantee the continuity of security and territorial control devices. Rationalization of National Health Service expenditure and provisions concerning waste and industrial emissions), converted, with amendments, into Law No. 125 of August 6, 2015, brought before this Court by the Regional Administrative Court for Lazio, Third Quater Section, by orders registered under numbers 165 and 167 of the 2023 Orders Register and under numbers 38, 39, and 41 of the 2024 Orders Register, published respectively in the Official Gazette of the Republic, First Special Series, Nos. 2, 3, and 12 of 2024. Having noted that, pursuant to Article 4, paragraph 3, of the Supplementary Rules for proceedings before the Constitutional Court, FRL Medical Service srl (No. 165, 2023 Orders Register), Med-El Elektromedizinische Geraete Gmbh - Italian Branch (No. 167, 2023 Orders Register), Buhlmann Italia srl (No. 38, 2024 Orders Register), Medtronic Italia spa, and Instrumentation Laboratory spa (No. 41, 2024 Orders Register) have intervened; that the aforementioned companies report that they are the winning bidders in public tenders, announced by numerous healthcare organizations throughout the national territory, concerning the supply of medical devices, and consequently maintain that they hold an interest in the subject matter of the constitutional questions raised by the Lazio Regional Administrative Court, as they are destined to suffer immediate and direct effects deriving from this Court's ruling; that they further report having filed separate appeals before the same Court against the same administrative acts which gave rise to the a quo proceedings, and having raised similar claims of unconstitutionality in that forum with respect to the statutory provision which is the subject of the present proceedings; that Integra LifeSciences Italy srl, Crossmed spa, ICU Medical Europe srl, ICU Medical Italia srl, and Smiths Medical Italia srl have entered the proceedings registered under No. 167, 2023 Orders Register, and Alcon Italia spa in those registered under No. 39, 2024 Orders Register; that the companies define themselves as interested parties and necessary co-litigants in the a quo proceedings, as recipients of the order of the Lazio Regional Administrative Court, Third Quater Section, June 7, 2023, No. 2903, which ordered notification by public proclamation "to all interested parties – to be understood as all companies that have supplied public facilities […] with medical devices in the relevant years”; that the same companies add that they have filed separate appeals before the Lazio Regional Administrative Court against the recovery measures adopted in application of the challenged provision. Considering that, according to the established jurisprudence of this Court, those entitled to intervene in incidental constitutional review proceedings are "the parties to the a quo proceedings at the time of the referral order, in addition to the Prime Minister and, in the case of regional legislation, the President of the Regional Government” (among others, Judgment No. 119 of 2020 and Order No. 14 of 2022); that, as emerges from the procedural documents attached to the referral orders, at the time the constitutional questions were raised, none of the aforementioned companies were original parties to the a quo proceedings, nor did they intervene therein; that this Court's Order No. 13 of 2006, nor Judgment No. 74 of 2023, are not relevant in this regard, since all the aforementioned companies have reported having filed separate appeals before the Lazio Regional Administrative Court against their respective recovery measures, thus being parties to those different proceedings; that, therefore, the aforementioned companies do not have the status of parties in the a quo proceedings; that, as regards the position of the companies that claim to have an interest in intervening, pursuant to Article 4, paragraph 3, of the Supplementary Rules, the intervention of parties extraneous to the main proceedings is admissible only for third parties holding a qualified interest, directly and immediately related to the matter in dispute and not simply governed, like any other, by the rule under challenge (among others, Judgment No. 206 of 2019, with attached Order read at the hearing of June 4, 2019); that, in this case, the indicated companies do not hold an interest directly related to the subject matter of the main proceedings, but rather a mere reflected interest in the acceptance of the question, as they are subject to the challenged provision; that the circumstance that the aforementioned companies have filed, before the same referring Regional Administrative Court, separate appeals in which constitutional questions of identical tenor to those relating to the present incidental proceedings have been raised is also irrelevant, according to the established jurisprudence of this Court, "because, if it were otherwise, the incidental nature of the constitutional review proceedings would be substantially suppressed […] and the Court would not be able to verify the relevance of the question” (Order No. 202 of 2020); that, finally, the failure to refer the analogous pending proceedings to this Court is the result of a decision taken by the Lazio Regional Administrative Court, during the present constitutional proceedings (see, in this regard, Order No. 202 of 2020, and, recently, the Plenary Assembly of the Council of State, Judgment No. 4 of 2024); that, for the reasons set out above, both the interventions of FRL Medical Service srl, Med-El Elektromedizinische Geraete Gmbh - Italian Branch, Buhlmann Italia srl, Medtronic Italia spa, and Instrumentation Laboratory spa, and the appearances of Integra LifeSciences Italy srl, Crossmed spa, ICU Medical Europe srl, ICU Medical Italia srl, Smiths Medical Italia srl, and Alcon Italia spa must be declared inadmissible.

For these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the interventions by FRL Medical Service srl, Med-El Elektromedizinische Geraete Gmbh - Italian Branch, Buhlmann Italia srl, Medtronic Italia spa, and Instrumentation Laboratory spa; 2) declares inadmissible the appearances of Integra LifeSciences Italy srl, Crossmed spa, ICU Medical Europe srl, ICU Medical Italia srl, Smiths Medical Italia srl, and Alcon Italia spa. Signed: Augusto Antonio Barbera, President