With the approval of the constitutional law no. 3/2001, which alters the 5th Title of our Constitution, Italy now faces the federalist scenario, that is the reformation process aimed at acknowledging broader legislative and ruling competence to the Regional Authorities, as well as granting them new and important institutional functions.
In this way our country has adjusted to the normative evolution which is now shared by almost all the members of the European Community. Indeed, the “federalising process” is a course that several countries have undertaken, in an effort to privilege, as far as service supply is concerned, the local rather than the central level; the former is unanimously viewed as the most suitable to perceive the needs of the surrounding community and in this way fully meet its requirements.
From this point of view, which can be described as revisionist with a proneness to federalism, the aspect that is chiefly addressed and focussed on in general debate is that of essential service levels. Indeed, the regional contexts differ greatly from each other: for culture, history and, last but not least, for their “entrepreneurial” skills.
Such differences matter and will continue to matter until they continue to represent a significant cause for discrimination and disparity. Hence the unrenounceable belief that the State must guarantee and safeguard the fundamental principles of all beneficiaries. Not all countries obviously choose the same political-legislative method in designing their “devolution procedures”, since each nation has its own “breeding ground” to take into account. Indeed, the issue/objective was not only that of decentralising, but above all that of under no circumstances failing to comply with the unrenounceable principles of unity and equality, as well as uniformity.
This last principle (which, alas, we possibly do not view as unrenounceable as the others!), that is uniformity, has represented a significant problem in the various legislative courses aimed at ruling the subject in some important countries (Germany and Spain).

In Italy there have always been strong territorial conditions of imbalance, which have caused and continue to cause great difficulties in the latest daily events, characterised by a feverish pursuit of “devolution”.
In a situation showing this degree of imbalance, especially from an economic point of view, it is the State’s mandatory duty to grant the overcoming of such unjust disparities. Therefore, the guarantees covering protection of rights and their related enjoyment cannot – in the light of the above mentioned principle and of the State’s role as a guarantor – drop below “basic services”, as this would involve an obvious breach of the fundamental right.
Therefore, only through a healthy, proper and “fulfilled” institutional cooperation, would the granting of a possible delegation by the central government in favour of the regional ruling of a certain discipline be justified; this would obviously have to take place in compliance with the criteria and principles that the central government law itself may have previously set.
The Conference on the relations among the State, the Regional Authorities and the Trento and Bolzano Autonomous Provinces, held on 25 October 2001, has represented the first working opportunity and proving ground for the definition of the LEAs within the National Healthcare Plan.
During the conference, the debate centred on the normative “identification” of the LEAs and also on the identification of the public/private subject that has to bear their actual cost, that is on the definition of their gratuitousness and/or sharing of the related expenses by the citizens/users.
Therefore, there are some levels of assistance which the State is obliged to define without referring them to autonomous local authorities, for these to identify them through the exertion of the regional ruling power. The State coordinates and, in compliance with the Constitution (art. No. 117, letter “m”) becomes exclusively in charge of the definition of service essential levels, which have to be guaranteed on the whole national territory. It is hence the duty of the ordinary legislator to define essential levels of performance relating to civil and social rights, by making choices which will obviously take into account the reference economic and social context, that is by comparing the essentiality of such levels and the juridical situations involved. It will have to do all this, whilst duly taking into account that these rights will not be referred to the mutability of local bodies’ choices, nor will they be subject to a possible political evaluation by them, even though generically defined and not set out in depth. Having made this last statement, we need to analyse in greater depth the meaning of LEA; hence the question that springs to mind is: what does “Essential Levels” mean? These are certainly identified and set out also on the basis of a political choice made by the legislator. But essentiality also and (above all!) depends on other objective factors: the conditions of individual citizens and of citizens as a whole. Because of their capital importance, besides fixing such levels, it is right to provide for and set out a minimal territorial organisation structure.
The State intervenes to guarantee the principle of uniformity, to prevent the differences in organisation structure and produced wealth from leading to an unacceptable inequality in service between one region and the other.
It will have to do all this to avoid that whoever be precluded the supply of even a single essential service because he/she lives in a certain poorer location. Hence the constitutional nature granted to vertical subsidiarity with the new letter of art. 117. This is a principle that, on one side grants local authorities a broad decentralisation in the exercise and right to certain functions and, on the other side, with the connivance of the subsequent art. no. 120, legalises an intervention power on the part of the State, as a substitute “in the event of non compliance with international rules and treaties or with EC regulations, in the event of serious danger for public safety, or else whenever the safeguard of juridical and economic unity so requires.”
In the exercise of this “commissarial” power, the central Government is therefore absolutely legally entitled to intervene in local authorities’ stead to protect civil and social rights, in the event that such authorities do not guarantee the free and decorous enjoyment of such rights or else safeguard these with insufficient provisions. Autonomous local bodies are to suitably exercise the functions they are responsible for: their choices must be consistent with the various situations they have to face each time.
The State is a guarantor and, as such, is fully authorised to redefine the financial intervention and to exercise the authority that enables it to take the place of the inadequate local government.
The introduction of federalism alters organisation structures without however being able to modify the supply of the services which guarantee the safeguard of the rights that have been ratified by the Constitution.
The ordinary legislator is called to define the essential levels for the services concerning civil and social rights. Jurisprudence previously provided for an equalisation between the safeguard of social rights and that of legitimate interests, owing to the “administrative facere” implied by the exercise of social rights.
The constitutional judiciary has gradually acknowledged social rights as constitutional rights, which means that these rights are inviolable, inalienable, they cannot be disposed of or renounce. These have even been acknowledged at an EC level, but the Union has almost subordinated them to the requirements of the market, and the Court of Justice had deemed their possible restrictions valid in the event that these justify the meeting of common interests within the community. However, an inviolable right cannot become a mere opportunity.
Should this be the case, then we would be witnessing a deprivation of its value. In this regard, it has often been deemed that the crisis of the Welfare State is due to the high cost of social rights. But this does not represent a fully valid justification. Indeed, if on one side it is true that all social rights involve an administrative cost, on the other side it is also true that civil rights “cost”, especially as a result of the traditional organisational and structural minimal levels, which unfortunately characterise the organisation, and which the administration is in any case to guarantee in order for these rights to be exercised.
A federalist reform, as a broader form of decentralisation, when working regularly, intrinsically involves the introduction of a certain social difference and disparity margin, a lack of homogeneity that the central government may allow, even though not always and not at all levels.
Based on this condition, a question springs to mind: what impact will this federalist reform have on health? Article no. 32 of the Constitution safeguards the right to health; this is not only viewed as a right to enjoy physical and mental wellbeing, but as a right to prevention, to be cured, if sick, and hence be rehabilitated. It is quite clear, however, that such constitutional objectives cannot be attained through a mere “proclamation”, but require the adoption of rules (and the related financial resources!) that may allow their practical implementation.
We all know that the provisions of the Constitution are not self-enforceable; therefore, it is the duty of the ordinary legislator to introduce institutional measures to fulfil the propositions of the highest ruling rank. Based on the federalist constitutional reform, the Regional Authorities and the State have become “jointly in charge” of legislative power with regards to healthcare.
Taking into account the inviolable principle that the protection of health, prevention, cure and rehabilitation services represent the basis of our daily life – for the very fact that they cut across all social and economic sectors – one wonders whether its regulation can be entrusted to the discretionary power of the regional authorities, even though only as far as details are concerned. State laws set out the healthcare service levels to be guaranteed to all citizens in the National Healthcare Plan.
State planning therefore sets out the chief prevention, cure and rehabilitation objectives countrywide. In the same National Healthcare Plan the central rank legislator indicates the priority intervention areas, with the objective or rebalancing the population’s healthcare conditions. Objectives are identified by taking into account effectiveness and suitability principles, by providing evidence that a treatment is effective in reducing or eliminating a disease, and that it is suitable in terms of supply modalities. The plan indicates the priority intervention areas, associated with prevention, cure and rehabilitation services. It identifies the target-projects to be accomplished through procedures integrating the healthcare and sociomedical services that need to be guaranteed throughout the territory.
The plan provides for the parameters required to control the actual guarantee of the LEAs and identifies the annual funding required in line with the services to be guaranteed. Regional Authorities may introduce further services, through the coordination work carried out by a national organ: the State/Regional Authorities Permanent Conference. From a healthcare point of view, the LEAs are guaranteed by the National Health Service through specially designed public resources, which will only be used to reimburse the services meeting certain requirements of effectiveness, suitability, cost effectiveness and proved scientificity.
These services are funded through the National Healthcare Fund, which, once shared out among the various Regional Authorities, will represent in this matter the “restricted” economic/financial element that the health enterprises will have available downstream.
Evaluation of service compatibility with the designed technological, scientific and economic parameters is carried out by the Single Drug Commission. Such evaluations are usually influenced by certain variable and progressive factors, concerning the impact on the quality of life and the greater benefits in terms of health that can be obtained by individual citizens and by the general public.
The contents of the essential levels, of course, cannot be disposed of by the regional legislators, who are only left with the residual power to increase their quality-quantity degree, also by suggesting alternative or accessory intervention methods, which may better meet the targeted requirements of their own community. It is letter m) of art. no. 117 that reiterates the system’s centralistic requirements, based on which it is the State that is indeed responsible (as a result of the enforcement of EC regulations) also for guaranteeing the international relations it draws up, in conformity with art. no. 11 of our Constitution.
Regional Authorities are, in turn, obliged to guarantee the essential levels of assistance set out by the central state law, even though this does not involve for them any obligation to guarantee the supply of these services free of charge. Besides, art. no. 32 of the Constitution does not oblige the State to establish and provide for public apparatuses to guarantee assistance, but only to “guarantee gratuitousness of healthcare services in favour of the poor”.
This is the logic that affects the funding problem, as well as the condition that allows credited private bodies to supply healthcare services whose costs are fully charged to the patients. Regional Authorities ensure such levels through their own healthcare services or through the credited ones. This regulation has introduced the principle of fiscal federalism; hence the essential services that the Regional Authorities will supply, through the facilities of their healthcare system, can be free of charge, involve a limited prescription charge or be fully charged to the patient.
The legislative decree no. 56/2000, on one side introduces fiscal federalism and, on the other, establishes an Equalising Fund in favour of the most disadvantaged regions, which is therefore aimed at rebalancing solidarity and equality. This measure introduces and grants Regional Authorities an imposition power (so to speak!), as well as financial autonomy, and, at the same time, provides for an obligation, on the part of the central authority to readjust the financial system to the guarantee requirements, by setting aside additional resources and carrying out special interventions in favour of regions with a low productive calling. With regards to such “equalising” interventions, art. no. 119 of the Constitution explicitly prescribes that, in addition to an ordinary funding intervention in favour of Regional Authorities and local authorities, the State may exceptionally intervene through special funding, in order to overcome territorial diversities in guaranteeing rights, as well as overcoming differences in terms of quality of life.
The new general rule prescribes that local authorities are to self-finance their activities and, in this way, Regional Authorities have acquired discretionary powers to freely manage their resources.
Should the required availability be lacking, assistance will be provided by the Equalising Fund, which has been set up with the very purpose of rebalancing the diversities that discretionary powers cause in the regions that do not have a strong productive calling. And at this point a few questions arise:

- Will the drop in the restrictions concerning the destination of such resources, with the consequent discretionary power by the body to decide which sectors to fund, result in a reduction of the “constitutional” guarantees for the services relating to social and civil rights?

- Do the Regional Authorities possess adequate resources to guarantee a high level of essential services?

It will be present-day history to supply a response to such questions; today we can only make a few comments on the nature of our system, in the light of the federalist reform which has taken place. Autonomism cannot endanger equality of rights: these cannot be allowed to drop below the minimum level fixed by the state legislator. According to the original constitutional perspective, Regional Authorities were not acknowledged the responsibilities and autonomies which today grant them a key role with regards to their choices. The interests involved are manifold; they are diversified in the forms and in the degrees of protection, and local governmental bodies could meet these requirements in a more adequate manner, provided the necessary resources are made available. Italy has decided to sail from the centralisation shores, to berth at the federalist quay, by following its own route, in view of the impossibility to deem the reforms that alter the institutional structure as universally enforceable. However, the Welfare State does not simply “proclaim” rights, but becomes positively involved in favour of these, as the “right to health” is not simply a right to maintain one’s state of wellbeing, but a right to obtain the supply of healthcare services, if sick, and to obtain the restoration of the original health conditions as far as possible. Federalism and decentralisation are part of the prerequisites for democracy, a democracy that allows us to confide in governmental organs. Our hope is that they will not allow interterritorial and personal inequalities, and that they will properly safeguard essential rights, as a cultural, economic and social result of the transformation which is still in progress.1 Translated by Interpres sas

Francesca Greco
Flora Nicole Posteraro
Fourth-year and third-year students respectively
in the UNICAL University Course in Political Science