Fiscal shield, implementation in the health sector opens the rebus on the duties of the general manager and the comparison with the liability rules for doctors

On 22 January next, Law 1/2026, the so-called Foti Law, better known as the fiscal shield, will enter into force. The final approval of the bill was met with mixed comments from the respective political camps. The law consolidates and renders structural the treasury shield, a legal instrument that was temporarily introduced during the Covid and extended several times for the implementation of the National Recovery and Resilience Plan (NRP) until the last extension expired on 31 December. Leaving aside the lengthy delegation to the Government contained in Article 3, it must be noted that the crux of the law is certainly Article 1, i.e. the changes made to the 1994 mother-law: in essence, the renewed characteristics of administrative liability in the light of the oft-mentioned 'erarial shield'.

The law in question has a considerable innovative scope for the entire public administration, but for the health sector it entails some application peculiarities due to specific aspects of the organisation of the companies and bodies of the SSN. Let us see, then, these distinctive features that will characterise from now on the administrative responsibility of top management, managers and, in general, of personnel. These peculiarities can be divided into those that are purely formal and those that, although theoretically the same, nevertheless have difficulties of application in the field.

The former undoubtedly include recourse to the advisory opinion of the Court of Auditors (Article 2 of Law 1/2026), an instrument expressly excluded for healthcare. Similarly, health agencies cannot have recourse to the preventive control of legitimacy (Article 3, paragraph 1-quater, of Law 20/1994 revised), with the sole exception of cases in which they are public entities implementing the NRP or the National Complementary Plan (NCP).

The second container includes certain aspects of the exemptions of fault. Specifically, I refer to the 'degree of clarity and precision of the rules violated' and the reference to 'prevailing case law or opinions of the competent authorities'. With regard to the first aspect, the specific rules that deal with NHS issues are very often written in a convoluted manner and at the limits of comprehension. One can give dozens of examples in this regard, the most recent being Section 944 of the Budget Law 2026, which I have no hesitation in describing as 'illegible'. The second aspect also fluctuates in uncertainty, and the jurisprudence of the Supreme Court and the Council of State themselves often change trend after only a few months; not to mention the accounting jurisprudence. The situation of 'pareristics' certainly does not appear any more straightforward, starting with the correct identification of who the 'competent authorities' are. The disconcerting affair of the Revenue Agency's interpellation on nurses' overtime shows - beyond the merits of the issue - that not even at the level of the institutional leadership is it possible to correctly identify who does what and who is competent to answer specific questions.

But the decidedly more complex issue is that of the 'political organs', i.e. the correct definition of the perimeter of the figure of the political organ in the organisation of the SSN. It is abundantly clear that the issue revolves around the office of General Director of healthcare companies. In other words, whether the General Manager is the holder of political-administrative functions or whether he is the holder of management functions. This definition is essential in order to correctly contextualise the concept of presumed good faith introduced by Article 1(4) of the recent law.