We are publishing, as part of the “Palestra Universitaria” column, the abstract of the graduation thesis written by Ms Anna Emanuela Lupo – former student at the Political Science Faculty of the University of Calabria, who graduated summa cum laude on 22 May 2003. The subject matter dealt herewith is definitely of significant importance and extremely topical, in view of the recent Reformation of Title II of the Italian Constitution and also of the debated Devolution hypothesis. Dottoressa Lupo has dealt with the subject in style, by following scientific criteria, and has expanded on the topic in an excellent manner.

The principle of subsidiarity was introduced in the Constitutional law no. 3 of 2001, which also redesigned the relations between State and society, by reviewing the distribution of public competences in the management of services and of citizens’ benefits.
Our legislation has enacted this principle both in its vertical and in its horizontal aspects. The existing art no. 118 constitutionalises the principle of subsidiarity. The latter, originally of community origin (art no. 5 of the ECT), was enacted and regulated by our legislation through art no. 4, paragraph 3, of the Law no. 59/97, concerning the assignment of functions and administrative tasks by the Regional Authorities to the Local Authorities.
The principle of subsidiarity may be defined as the criterion whereby decisions need to be made by the most decentralised institutional level, should this choice be justified and consistent with the requirement to ensure efficiency and effectiveness to the action of the public authorities. This is a principle or criterion of a procedural nature, and not a principle or criterion of a substantial nature, which means it is a principle displaying a ‘dynamic’ contents: it does not say which is the “final” Authority responsible for exercising a function, the so-called subsidiary authority that is put in charge of the performance of the Authority devolving action, but rather indicates the path that should be followed to identify the competent party.
The text of paragraph 1 of art. no. 118 of the Constitution is devoted to vertical subsidiarity. This provision states the basically general administrative power of Municipal Authorities, save for the case in which – in order to guarantee a unified discharge of administrative duties – this is granted to Provincial Authorities, Metropolitan Cities, Regional Authorities or the State, pursuant to the principles of subsidiarity, differentiation and adequacy.
The real innovation relates to horizontal subsidiarity, “constitutionalised” with paragraph 4 of the same art. no. 118. In this case, the social notion of this principle is privileged versus the institutional one.

This indeed encourages the activity and responsibilities of lower level parties, whilst enabling higher-level institutional parties to intervene retrospectively, in the event that the action of the lower level party has proved inadequate, or else in order to guarantee the evaluations required for a unified and coordinated discharge of the related duties on a broader territorial scale. Pursuant to the referenced art no. 118, paragraph 4, private citizens must almost be “sponsored”, since the regulation does not provide for the possibility of encouraging private citizens’ autonomous enterprise, but explicitly prescribes that “the State, Regional Authorities, Metropolitan Cities, Provincial Authorities and Municipal Authorities encourage the autonomous enterprise of citizens, whether individually or associated, to carry out activities of general interest, pursuant to the principle of subsidiarity”.
The peculiarity of this principle lies in the way the text identifies the parties playing the leading role. We no longer have public authorities with different competences, but rather two separate subjects playing their respective roles within the social organisation: on one side we have public authorities, on the other we have private citizens, whether individually or associated, responsible for economic enterprises of general interest, traditionally strictly provided by the public system. Hence, the word “encourage” should be interpreted as “should encourage”, even though this does not mean that public parties must always and in any case “encourage”, but rather that these are left with the responsibility to do so whenever there is evidence that public authorities are unable to carry out the referenced activities of general interest at a high quality/quantity level. Therefore, the principle of horizontal subsidiarity becomes a procedural obligation, and more specifically the responsibility of the legislator or of any other public authority to make the necessary assessments, before taking a specific task upon itself or assigning it to another body, as to the existence of the above-mentioned prerequisites. It is therefore the responsibility of representative public authorities – and above all of the national or regional legislator – to directly assess, as far as social subsidiarity is concerned, the potential of the competing private citizens, in connection with specific activities of general interest, by comparing such with the potential of public authorities.

Only upon completion of this process, will the body be in a position to choose among the candidates according to the principle of horizontal subsidiarity, prescribing the procedures that public authorities are to follow in the event that they are chosen for the task. Hence the reversal of the motivation obligation, which naturally results in the duty to provide for, in legislative, regulatory and administrative deeds, for the concept of motivation in a broad sense, whereby the issuing Authority assumes the activity-related competences and the implementation, departing from the referenced “favor”, introduced by the aforementioned paragraph 4 of the Constitution. All this involves a distortion of the traditional behaviours of public administration and of the relations between public and private parties. Accreditation, introduced in our legislation by the Legislative Decree no. 502/92, as amended and integrated, represents the technical method to ensure that private citizens are allowed to supply work and services in the field of Health.
Today, it is deemed to be the “fundamental principle regulating the new relations between public and private parties”, in that it is the “official acknowledgement” meant for facilities and services supplying high-quality healthcare assistance. Accreditation hence represents a pre-arranged course to be followed for the selection or the identification of the “the autonomous enterprise of citizens, whether individually or associated”, which the Public Administration must refer to and grant subsidiarity to – save for grounded denial – for carrying out activities of general interest. This emerges from the rulings of the Constitutional Court which have, for different purposes, dealt with accreditation (no. 355/93 and no. 426/95), as well as from part of jurisprudence and from the tat this stage it is worthwhile dwelling on the subject of “horizontal subsidiarity and healthcare”. The legislator has only taken action to establish that the poor have a social right to benefit from healthcare services free of charge, without defining the concept of “poor”.
The Constitution therefore only identifies the level below which a person is poor, and, once this level has been identified, it provides for the Republic and competent facilities to guarantee free treatment to the people who are assessed and acknowledged to be such. Art. no. 32 of the Constitution therefore protects the right to health “as a fundamental right of citizens and as an interest of the general public”, and then refers the reader, as far as the exercise of the right to the so-called healthcare assistance is concerned, to the methods and term identified by the ordinary legislator.
The interpretation problem involved by the text of paragraph 4 of art. no. 118 as far as Health organisation is concerned, is above all “identifying private authorities in the healthcare field”, or rather how “autonomous private enterprise” is protected compared to public institutions, whether of a profit or of a non-profit nature. Nobody has ever questioned the fact that the Constitution did not allow for private citizens to offer, more or less free of charge, healthcare-related activities. It would be interesting to investigate whether, before the introduction of the constitutional law no. 3/2001, the Constitution actually allowed for a totally public nature of healthcare, whereby only public parties could organise and supply healthcare services.
Today, pursuant to the principle of horizontal subsidiarity, the healthcare activity pursued by private citizens is protected, in that it cannot be forbidden. Private citizens, as described in art. no. 118, also include individuals who often offer to carry out, absolutely free of charge, unpaid activities which are of unquestionable general and public interest. This happens very often in the Health market, so much so that it represents a significant positive financial component in expense budgets, thanks to its total neutrality, for the very reason that in this specific field the role of voluntary work has always played a massive role. And this role is gradually increasing owing to the stimuli coming from everywhere, in the area of solidarity (suffice it to mention the sector of domiciliary assistance involving disabled and terminally ill patients). The Turco-Napolitano law (Law no. 328/200) had already introduced, as a criterion to identify both public and private parties, the principle of subsidiarity in its twofold meaning. This law – which aimed at organising services to be supplied to individuals as an integrated system or a network of services which public and private facilities could contribute to – was aimed at chiefly promoting the implementation of integration and support tasks through the activity and positive effort of families, as well as of all the other social parties close to those who experienced difficult circumstances.
We hence switched from solidarity delegated to public authorities to social solidarity, carried out by individual people and by families (this is why the concept of “shared responsibility” welfare was mentioned). As regards the “right to Health”, subsidiarity is understood to refer to the end of the monopolistic position of public bodies in the production and supply of Health-related services and work, or else to the identification of a broader regional government and planning role in life quality and protection processes.
The subsidiarity concept conveys a signal of responsible commitment on the part of private citizens, who communicate, relate and interact with public institutions, within a shared perspective providing for a solidarity-based modernisation of our country.

The reformation of the Health system is proceeding towards a “rationalised” management and managerial organisation, all the more so as the present centre-right government, as voiced by Minister Sirchia, shows a strong approval of the significantly vanguard choices made in this area by the Lombardy Regional Authority.
The combination of the regionalisation and managerialisation trends appears now indissoluble: the strengthening of the regional level, on one side, and the adoption of competition mechanisms on the other, appear to be the only practicable routes to obtain cost containment, greater efficiency in the supply of healthcare services and protection of the equity principle.
The most debated issues nowadays – especially following approval by the executive of the parliamentary bill named “La Loggia”, proposing a new amendment of Title V of the Constitution – are: - a fully shared, supportive and united form of federalism, involving a real enforced autonomy with the establishment of an equalising fund reducing the differences between rich and poor Regional Authorities; - accreditation of private citizens and hence a profitable cooperation of public and private service suppliers within a healthy administrative competitive environment; - full equalization, as a guarantee for geographical areas with a lower fiscal capacity per citizen, and at the same time the even though gradual removal of quality and efficiency differences among regional healthcare services, which so far have been far too evident between central-northern Italy and southern-insular Italy. For a successful outcome of the regionalisation process, it is however necessary for the Regional Authorities themselves to assume their institutional role, as well as strengthening and reorganising their councillorships, so that these may become efficient “centres for processing rules and criteria for resource distribution and for Health Unit and hospital analysis and assessment criteria, providing incentives for those which reach high levels of effectiveness, efficiency and cost effectiveness”. Healthcare regionalisation therefore appears the only method available to achieve an organisation of the Health system capable of applying the principle of subsidiarity.
The realization of this principle involves indeed a gradual approach as regards tasks, responsibilities and autonomy, based on the resources available, on the competence and qualifications existing at the different levels of a complex system, capable of making the most of all the parties supplying services that the State does not appear to be able to offer. As far as such parties are concerned, we are not only referring to accredited public and/or private healthcare facilities, but also to the “third sector” falling within the non-profit category. This is a sector comprising a new and lively reality, full of resources and motivation, deeply rooted within our country, which is fully entitled to claim its own leading role in the world of Health. We are therefore referring to a protagonist that has a right to compete, as an alternative to other candidates (even though public), for carrying out activities of general interest in the social and healthcare field; a chance that the constitutional provisions will now make easier to achieve.

Translated by interpres sas