Waiting lists, on replacement powers free hand for the government to 'go it alone'

What will happen now? If the positions, as it seems, are confirmed to be irreconcilable, the government may resort to a unilateral act, a solution already adopted - not without fierce controversy - with the adoption of Ministerial Decree No. 77 of 23 May 2022 on territorial healthcare. That measure was provisionally christened in the jargon 'Dm 71', using a shifted rhetorical figure that referred the numbering to an already existing decree because the new legislation stood as subsequent and complementary to the hospital standards that were defined with Dm 70 of 2015.

Regarding the importance of that decree, it can only be recalled that it was to implement Mission 6 of the NRP. The text of the document had not obtained the envisaged agreement in the State-Regions Conference due to the clear opposition of the Campania Region, so the government continued the process without the Regions, applying the provisions of article 3, paragraph 3, of legislative decree 281/1997 that allows the government to proceed unilaterally.

Finally, for the sake of completeness, we will summarise the contents of the aforementioned Decree 281/1997, so important after the amendment of Title V of the Constitution. The relations between the State and the Regions were systematised with Decree 281/1997 and it is worth remembering that this last delegated decree ex lege 59/1997 (the so-called Bassanini Law 1, the first of a total of four laws) regulates the relations of cooperation between the State and the territorial autonomies that are implemented in specific Conferences. The acts of the State-Regions Conferences and the Unified Conference are: the Opinion, the Agreement and the Understanding.

The consultative function vis-à-vis the Government is performed through the expression of the Opinion of the Regions and Autonomous Provinces. The Conference is obligatorily consulted on all draft bills, legislative decrees or regulations of the Government in matters of interest to the Regions and when provided for by specific regulatory provisions (Article 2, paragraph 3 of Legislative Decree 281/1997). The opinion is compulsory but not binding and must be issued within twenty days following the transmission of the measure by the Government (ordinary deadline).

The Agreement (Articles 4 and 9, paragraph 2, of the decree) represents the instrument with which the Government and the Regions coordinate the exercise of their respective competences and the performance of activities of common interest in implementation of the principle of loyal cooperation. It is aimed at achieving the objectives of functionality, economy and effectiveness of administrative action. The Agreement provides for the unanimous assent of the Government and the Presidents.

Agreements - or, rather, understandings - are sanctioned on the proposal of the Government in all cases where the legislation in force so provides. They are finalised with the assent of the Government and the Presidents. If the agreement is not reached within thirty days after the first meeting at which it is placed on the agenda, the Council of Ministers may proceed by means of a reasoned resolution (Art. 3, para. 3). In the case of justified urgency, the Council of Ministers may provide for it without complying with the agreement procedures, and the measure is submitted to the State-Regions Conference within the following fifteen days (Art. 3, Paragraph 4).

It is abundantly clear that when the national legislator wants to give the act maximum force, it indicates the adoption of the highest level, i.e. the Agreement, which requires unanimity: the contrary vote of even a single region prevents the act from being concluded. In today's case, as three years ago for Ministerial Decree 77, the law opted for the Agreement, thus leaving unaffected the possibility for the state to proceed unilaterally.