The month of April of this year will go down in the history of our country’s legislative evolution as the period in which the foundations of the constitutional reformation in devolutionary terms were laid.
Indeed on 14 April the Chamber of Deputies approved, on a second reading, with 272 votes in favour, 3 against and 7 non-voters (and with part of the Opposition leaving the hall), the “Bossi” bill, better know as “devolution”. However, the contents of this bill seems bound to be substantially shared by a more systematic reformation of Section V of our Constitution; this latter reformation has been named after its proponent, Enrico La Loggia, whose reforming proposal has already been approved by the Executive in the 11 April 2003 session, and is now being examined by the State-Regional Authorities Conference unified to reach the required resolution. This legislative proposal, aimed at redesigning the whole text of Section V of our Constitution, as well as the proposal (already examined and approved by the Chamber of Deputies) contained in the so-called devolutionary project, both bear evidence of the intent of the current legislator to completely abandon the concurrent legislative power, as last drawn up by art. no 117 of the Constitution currently in force, in favour of a shared legislative power.
The Government’s intention, and hence the motivational drive that has spurred and enlivened the reforming process, is to eliminate areas of uncertainty which have emerged in connection with the attempt to identify state and regional competences; these uncertainties and doubts have emerged in particular in connection with the application of the current text of Section V of our Constitution, on which the Law Judge had to intervene with specific rulings.

The legislative solution that has been identified, and which can be chiefly appreciated in the outline of the organic bill presented for the Executive’s examination and approval, is therefore aimed at shedding light on the various legislative competences and how they are to be shared. It aims at attaining this goal through a more rigid sharing of the areas to be ascribed to the central and to the peripheral power, and also through the abrogation of the provision contained in the third paragraph of art. 116 of the Constitution, the one which indeed enables the attribution of new competences to regional authorities, through ordinary level laws. With the chief purpose of clarifying the meaning of the term “materia” (subject matter), it goes without saying that the Constitutional Court, with its ruling no. 282/2002, touched on the exegesis of the text of art. no. 117 of the Constitution, and more specifically on the meaning to be ascribed to the above-mentioned noun “materia”.
In this regard, the Judge provided a clear interpretation, by stating that with the noun “materia” we are not supposed to identify some sort of unique example as technically identified in the more traditional legislation structures, but rather some sort of “field”, which is meant to also include those “subject matters that are not really subject matters” but that may be viewed as linked, owing to legislative harmony and logics, to the subject matter that is more specifically mentioned in the legislative provision, so that they may be all viewed as being part of the same field. Taking specifically into account the analysis of the text of the “reforming regulation proposals”, it is quite obvious that both project outlines chiefly impact the text of art. no. 117, by suppressing the current legislation type and, hence, redesigning the “distribution structure of subject matters”, with the consequent sharing out of these between State and Regional Authority.
As regards the legislative power which is exclusively attributed to the central Authority, this is confirmed for the most traditional intervention fields (such as foreign policy, immigration, justice, defence and armed forces, monetary management and currency, public order, etc.) and is expanded to include a few subjects (such as transport networks, scientific education and research, legislation of professions and also the general legislation of local authorities); these are subject matters which the reformation – introduced with the constitutional laws no. 3 of 2001 – had entrusted to the concurring competence of State and Regional Authorities.
On the other hand, as regards Regional Authorities, these are granted, among others, legislative power in connection with “health care and organisation”, education and local police, as well as scientific research and technological innovation to support regional and local production activities. In the bill articles approved by the Government on 11 April 2003 a clear closing provision has been provided for to confirm the so-called residual clause, based on which any subject matter which is not covered by state legislation is meant as delegated to the Regional Authorities. Furthermore, the legislative outline in question provides under the paragraph introducing Regional Authorities’ exclusive legislative power, for some kind of “guarantee of the Guarantee”, aimed at safeguarding the principles of equality and uniformity.
The wording used (“In compliance with national interest...”) is aimed at protecting the unity and indivisibility of the Republic, which are unrenounceable principles that may be placed in serious danger by possible “ideological” changes that may be introduced in future law formulation adopted by individual Regional Authorities.
Health protection remains one of the State prerogatives, at least as far as issuing general rules is concerned, whereas health care and organisation are entrusted to the exclusive competence of the Regional Authorities.
This legislative statement has aroused significant interest, but it has above all caused serious concerns in the country. Indeed, too many possible risks have been identified in a provision that is aimed at ensuring that Regional Authorities have total independence in the dynamic process of drawing up laws regulating such a crucial sector as that of health care and organisation. The highest risk is represented by the social, economic and cultural differences characterising our Regional Authorities. These differentiations may, in fact involve the possible risk of significantly not homogeneous situations in guaranteeing the exertion and enjoyment of the basic right to Health, thus leading to a substantial inequality in the ways citizens are treated throughout the country. Besides, the legal provision introducing the financial resources equalizing system, would not be in itself sufficient to fill the gaps between the services to be supplied, nor would it therefore help ensure performances and outcomes that may benefit citizen’s health. The substantial amendment of art. no. 117 of the Constitution – as conceived in the outline of the constitutional bill approved by the Government and passed on to the State-Regional Authorities Conference unified to reach the required resolution – inevitably involves tangible exertion of the exclusive legislative function by the Regional Authorities as far as healthcare system organisation is concerned. According to the text of the articles, approved by the Executive on 11 April last, the current text of art. no. 117, in terms of entrusting the exclusive regional legislating power, would be replaced as follows: In compliance with national interest and with the obligations resulting from international and community undertakings, the Regional Authorities shall exert exclusive legislative power as regards the following subject matters:
a) health care and organisation;
b) school organisation, management of school and training institutes, without prejudice to the autonomy of school institutes;
c) definition of the parts of education and training programmes falling within the specific competence of Regional Authorities;
d) local police;
e) professional education and training;
f) promotion of cooperation and mutual aid;
g) crafts;
h) scientific research and technological innovation in support of regional and local productive activities;
i) regional broadcasting;
l) improvement of landscape, and of cultural and environmental assets; promotion and organisation of shows and of cultural and sports at a local or regional level;
m) industry at a regional level;
n) trade;
o) tourism at a regional level;
p) agriculture at a regional level;
q) territorial government;
r) any other subject-matter that is not explicitly restricted to State legislation.

The political and motivational drive of this legislative initiative is certainly not related to the ideal inspired by the creation of Welfare, and hence of the Welfare State, which as of today characterises almost all European countries. The State model used as a reference by the proposing legislator is definitely of a liberal type: a structural organisation which accepts and adopts the Anglo-Saxon experience, which has certainly represented an unfailing reference parameter in identifying the inspiring principle of the whole reformation process. With the introduction of the constitutional text whose approval is currently being debated, almost all the sectors involved in Welfare would be entrusted to the exclusive legislative competence of the Regional Authorities. These would be granted almost absolute power and total discretionary power to restore the Welfare State, that is to destructure it “as required”.

Substantially, with the regulation quoted above, provided the Regional Authorities succeed in effectively activating the legislative function in the subject matters involved, they would be granted the broadest possible decision-making freedom, owing to which a significant inequality may materialise in the Country in the enjoyment of broadly speaking Health-related services. Over the last few years, owing to the importance that the healthcare organisation has for society, as it cuts across all fields of everyday life, there has been a pressing sequence of various juridical forms introduced to protect the right to health, born by legislative provisions, amended and integrated over the years, with an almost frantic trend. Suffice it to mention, in this regard, the repeated legislative amendments made to the original text of the legislative decree no. 5021 of 30 December 1992, deeply altered by the law that established the National Health Service2 . The current distribution of legislative competences grants the State exclusive power to establish essential assistance levels (LEA) and fund also the structural organisation of the service, through the national healthcare fund (FSN). By adopting the legislative decree no. 56/00, which introduced fiscal federalism – drawn up and approved to enact art. no. 10 of the delegated law no. 133 of 13 May 1999, containing “provisions concerning fiscal equalization, rationalisation and federalism” – healthcare-related State transfers were abolished, and, consequently, Regional Authorities were granted the responsibility of acquiring the necessary financial resources to guarantee proper exertion of institutional functions delegated to them in the field of Healthcare management. However, the introduction of fiscal federalism, and of the so-called healthcare fiscal federalism in particular, started giving rise to significant difficulties in its practical implementation, so much so that it turned out to be a mere legislative enunciation. A federalism that has only been enunciated is therefore frozen as far as its implementation is concerned: by the traditional adjustment difficulties displayed by the Regional Authorities, by their strong, consolidated traditional deficits and by the impossibility on their part to reach the financial independence required to properly carry out their institutional tasks; this is therefore an autonomy that can only genuinely be pursued through the attribution to Regional Authorities of actual taxation power and not simply through the mere and insignificant fiscal sharing they have been granted. The regulations providing for distinct competences have in any case enabled Regional Authorities to be granted autonomy within significant fields. This organisation distribution has enabled the realisation of diversified healthcare organisation models throughout the country, whilst the State is responsible for the identification of essential assistance levels, as well as being responsible (at least until the constitutional reformation is approved and enforced!) for the determination of the key Health protection principles. Considerations. The first issue we need to analyse is understanding whether a reformation organised in this way qualifies for the necessary constitutional “coverage”, taking into account that the key principle of equality, obviously related to the enjoyment of the fundamental right to Health, risks to be disregarded, or at least placed in serious danger. This risk may indeed manifest by resulting in a substantial non-application of equality and uniformity principles throughout the country, owing to the atavistic economic and financial non homogeneity displayed by our regional realities, which has always represented the real Achilles’ heel of our development system. Therefore, leaving to the State the residual right-duty to lay down the general criteria from the point of view and with the purpose of investing Regional Authorities with certain responsibilities, so that they are able to make laws on the quality and depth of the assistance, represents an excessive responsibility for the current legislator, a responsibility he is taking upon himself with a certain degree of imprudence, by proposing the current Constitution reformation project, which is possibly the result of political mediation rather than of health, social and juridical considerations. Indeed, delegating to the Regional Authorities the identification and determination of the services that may prove most adequate for their territorial situation and the adoption of healthcare and hospital assistance standards means that the legislator has accepted the idea, or rather identified the solution, to accept the realisation of healthcare services that are substantially differentiated throughout the country. We are hereby referring to services differing in quality and extent and, with this, to the introduction of a discrimination that will be directly laid on the citizens’ shoulders, as they will be forced to emigrate towards a healthcare organisation that is not only more efficient and effective but also (unfortunately) more cost-effective and in keeping with their personal financial situation. Within this general and so complex reformation picture, another major problem, by no means secondary, is represented by the role that the National Health Service itself will play in the future organisation of Healthcare. In short, a careful exegete, analysing the text of the reformation proposal, would question whether this still has a real purpose. Should the answer be no, that is should the proposed reformation involve that it has substantially been superseded, we would be facing an unprecedented disaster from a Welfare State point of view, a disaster that would make great part of social advances attained over the last 50 years of history and fight for democracy vain. Indeed, with the dismantlement of the National Health Service, significant treatment inequalities may arise among different regions, since those that are provided with limited, or in any case inadequate, economic and financial resources, would find themselves with very few opportunities of raising funds, which would on the other hand be significantly drained from the wealthier Regional Authorities. Funding undoubtedly represents the crucial issue of the devolution proposal, since, as already mentioned in connection with the legislative decree no. 56/2000, it has already allegorically represented the “gravestone” of fiscal federalism, the extremely serious problem which as of today continues to make it impossible to introduce a federalist regime. As things stand at the moment, it is easy to forecast the start and development of a hot debate, also among the various institutions involved, on a very sensitive issue which has to do with the fundamental right to Health protection, in view of the fact that the Regional Authorities have a definitely liberalist and no longer interventionist attitude towards the State. Besides, healthcare has always represented a rather significant cost for public economy and hence for the State, which has now been deprived of its traditional protection and welfare functions. The problem will therefore be diverted, or rather conveyed below institutional organisation, and since not all Regional Authorities possess the same resources at the moment, this will represent a real obstacle, the factor which will have the greatest impact on the parliamentary course of the constitutional reformation. Therefore, in order to guarantee that legislative powers (which will be granted to the Regional Authorities as soon as the Parliament approves the requested constitutional reformation) are properly exerted in the Healthcare field, we shall need to have two major and objective certainties: that the required “institutional professionalism” has been reached by the Regional Authorities (and by all of them!), in that they are able to make laws also from “a technical and evolutionary” point of view, and actual ownership or else substantial ability to obtain the necessary financial resources required for their System, resources for whose attainment the Regional Authorities will be exclusively responsible. Therefore the discrimination between regions that have sufficient financial resources available and poor regions, which will therefore be penalised by the reformation, will result in the latter perceiving the “Counter-Reformation” as a worsening of the status quo. Another hermeneutical consideration should be made on the meaning of the text used for the articles of the devolution bill (the so-called Bossi bill) approved by the Chamber of Deputies on 14 April 2003. More specifically, this consideration should be dedicated to the meaning that the legislator attaches to the word “they shall activate”: whether this means “they may activate” or else “they must activate”.

This exegetic effort should definitely be faced, since the future regulation of Healthcare in our country will depend on its correct interpretation (which hopefully will be directly provided by the legislator, and will therefore become true!). Indeed, if these words mean that “they may”, we would face the risk that in the near future, at least in the nearest future, we would have an uneven legislation, with the unpleasant result that some Regional Authorities would continue to only apply state principles, and a consequent non-regulation as far as the healthcare system territorial organisation is concerned. Should this be the case, it would be desirable for the legislator to at least set a final deadline by which the Regional Authorities may exert their constitutional rights, so as to avoid the creation and above all indefinite dragging on of dangerous legislative deficits. Lastly, we cannot avoid wondering whether our country’s health organisation is indeed ready or mature to withstand the devolution. The answer to this question depends very much on the objective inter-regional differences, which may turn into real social and economic gaps, which may prove so evident that they may split into two our territorial and geopolitical reality. In a way, the consequences of this reformation may destabilise the balance of our country. The State cannot afford the risk that its unity and cohesion may be attacked and destroyed by a reformation that is in some ways short-sighted. This is a reformation that at all cost, possibly because of a fideistic approach, wants to decentralise competences in crucially complex areas, without taking into account the areas of welfare backwardness which continue to characterise certain territorial (and not only territorial!) realities of our Country. The age-old problem arising from the gap existing between wealthy and poor regions may be solved through the creation of no infrastructures, and new economic recovery cycles and processes. Differences among different territories have always existed and will always exist, with the bitter realistic consequence that this gap is bound to antagonise any type of reformation, if these are not associated to serious measures for the actual development of the areas which are still depressed, owing to the strong unemployment rate and to the absence of a productive tissue. Self-referentiality has always facilitated strong parties and discouraged the weaker ones. In such a complex situation, it is indispensable to find the proper balance between the inescapable need to amend our Constitution, which is now a distorting mirror of the acknowledged requirements of the new State organisation that is being set up, and the need to penalise the poorer brackets of our population. Since society changes over the years, laws need to accurately interpret the changes that are taking place. This however does not mean that an institutional set-up, or the application results of a reformation, positively experienced in a Country, should be deemed to be universally valid for all national realities. Similar objectives may be reached by also by following different routs. Italy has not yet solved the “South-Italy Issue”. By abandoning southern Regional Authorities to their actual, natural and spontaneous entrepreneurial and financial skills would only broaden the North-South divide, and in fact making impossible for the Regional Authorities to fund their Health systems.

Dott. Federico Jorio - Cosenza
Avv. Gerardo Guzzo - Salerno
Avv. Mara Tamburri - Perugia

NOTES 1 The Legislative Decree no. 502 of 30 December 1992, concerning the “Reorganisation of healthcare regulations, pursuant to art. 1 of Law no. 421 of 23 October 1992.”, was amended and integrated bu the following legislative provisions: -Legislative Decree no. 517 7 December 1993; -Legislative Decree no. 229 of 19 June 1999; -Legislative Decree no. 517 of 21 December 1999; -Legislative Decree no. 56 of 18 February 2000; -Legislative Decree no. 49 of 2 March 2000; -Legislative Decree no. 168 of 7 June 2000; -Legislative Decree no. 254 of 28 July 2000; -Legislative Decree no. 405 of 16 Novem ber 2001; 2 Cf. Law no. 833 of 23 December 1978.

Translated by interpres sas