All unresolved points on essential levels of performance

After the Constitutional Court's ruling (No. 192 of 2024), which declared illegitimate a significant part of the Calderoli Law on differentiated autonomy, the Government returned to the issue with two separate regulatory interventions. On the one hand, the proxy bill No. 1623 - under consideration by the Senate - aimed at determining the essential levels of services (LEPs), indicated by the Court as a prerequisite for the transfer of matters to the Regions pursuant to Article 116, paragraph 3, of the Constitution and the stipulation of agreements. On the other hand, the approval in the Council of Ministers of 18 February of pre-agreement schemes on matters not referable to the LEPs, with the start of discussions with Lombardy, Veneto, Piedmont and Liguria.

It is questionable whether both interventions, at the end of a predictably long process, can pass a new constitutionality test. The issue of the LEPs remains essentially unresolved. It is worth remembering that the LEPs, introduced with the reform of Title V in 2001, were conceived as a "protection network" - according to the expression used by the Court - of essential civil and social rights, to be uniformly guaranteed to all citizens, regardless of their place of residence, in the new structure of regional competences outlined by Title V. Their determination, which is reserved to the State because it concerns the guarantee of substantial equality and the overall balance of regionalism, has however never been fully realised: neither within the framework of the so-called 'symmetrical' federalism, which concerns the matters set forth in Article 117 of the Constitution, nor within the framework of the 'asymmetrical' federalism envisaged by Article 116, third paragraph. It is in this regulatory vacuum that the Government's recent interventions take place, which risk taking the form of mere formal fulfilments, functional to circumventing the Court's findings rather than offering a substantial response: the effective and uniform guarantee of rights.

The draft enabling act and the outline agreements are complex; here are a few essential points. The decision - made at the technical level in the Commission chaired by Sabino Cassese and then implemented by the government - to exclude health protection from the draft delegated law on the LEP and, at the same time, to open up the possibility of including it in the pre-understandings with the requesting regions from the outset seems questionable. This is a decision with disruptive effects on our National Health Service. The Essential Levels of Care for Health (introduced in 1999) consist of a list of services and perform mainly a monitoring function; since they have never been accompanied by a determination of standard costs, they do not guide the allocation of resources according to actual needs, which remain differentiated among the Regions. Health financing is defined annually in the budget law on the basis of public finance constraints and allocated according to a per capita criterion weighted mainly by age, while deprivation indicators are only marginally considered.

If the pre-agreement schemes of the requesting regions - which are among the richest in terms of fiscal capacity - were followed up, they could allocate additional own resources to personnel, services, and supplementary funds, further widening the territorial gaps. Another critical point concerns the structure of the draft enabling act no. 1623, which proceeds on the basis of the indications of the Cassese Commission on OELs, which limited itself to a reconnaissance of OELs on the basis of the legislation in force only in those matters potentially subject to differentiation; the enabling act postpones the definition of the financial parameters and criteria for estimating the OELs to subsequent phases, entrusting it largely to technical bodies. But the measurability of the OELs - for all subjects, including those already assigned to the regions - like the LEAs, is not a merely technical matter. It means establishing which social rights are to be guaranteed and with which resources. If these choices are not taken explicitly by the legislator, through a clear and responsible determination of the LEPs, the financial quantification alone, based on a mere reconnaissance of the regulations in force and bound to the invariance of resources, becomes the place where the contents of the rights are implicitly determined. And it is here that Parliament's political responsibility is measured.

Director of the Research Centre in Economic Analysis and International Economic Development, Catholic University