Equality and social benefits
E 'analogy the process by which widens the circle of the recipients of a social benefit? According to Conte and Perelman, yes. In administrative law performance is spoken of distributive justice (equality 'of the parties' Aristotelian). The Judgement of equality (between the case and rules) would always be the base extension analogue of rights: it is assumed that if this principle is not respected, there would be a space to be filled, and refers to other rules dealing with situations of alleged performance correctly.
In other words, from a technical and interpretive analogy as a tool to bridge the gaps, such an analogy as a provision for revision of the legislative decisions aimed at IMPOSE similar treatment against similar case (although not exactly equal). We can speak of a principle of analogy which limit the unequal treatment of similar cases.
Constitutional Court, 02 December 2005, n. 432
Done
1. - By order filed June 30, 2004, the Regional Administrative Court of Lombardy raised in relation to Articles. 3 , 32, first paragraph , 35, first paragraph and 117, second paragraph letter a) of the Constitution , question of the constitutionality of ' art. 8, paragraph 2 of the Law of the Lombardy Region January 12, 2002, No 1 (Measures for the development of regional public transport and local), as amended by ' art. 5, paragraph 7, of Law December 9, 2003, No 25 (Measures in the area of \u200b\u200blocal public transport and roads), "in so far does not include foreign nationals resident in the Lombardy region among the persons entitled to free travel on scheduled public transport services afforded to persons totally disabled for civil cases. " The court
referring pressed to be invested in the proceedings - istauratosi on appeal from a non-EU citizen and the CGIL (Italian General Confederation of Labour) in respect of the regional Lombardy Region - for the annulment of the decision of the Regional Executive No 7 / 16747 of 12 March 2004, which - putting a "new framework" for the issue of regional public transport tickets - allows free movement, on scheduled public transport services in the region, the disabled civilians on two conditions of Italian citizenship and residence in Lombardy. The referring court states that the contested measure is timely implementation of the provisions of ' art. 8 of the Law of the Region Lombardy n. 1 of 2002 , as amended. The standard - to establish favorable conditions for belonging to certain categories, including that of total disability to work - which requires assumptions of the benefit for Italian citizenship and residence in the Region, and therefore, by virtue of it, the applicant - granted permanent total disability with work disability and forced to go with public transport to the hospital three times a week to practice dialysis - was completely denied, as of July 31, 2004, the "passport to freedom of movement" that was already the owner. The referring court
- granted incidentally precautionary measure to authorize the applicant to make use of the aforementioned ticket, despite the entry into force of legislative news - questions the constitutionality of ' art. 8, paragraph 2, of Regional Law No 1 of 2002 , considering, first, the relevant question for the purposes of the definition of opinion: it is due to the fact that the annulment of the contested decision - making up the latter, slavish replication of the contents of the rule - would be a decision almost devoid of purpose, both in relation to the outcome of the interim protection granted, "is not sufficient for the suspension of Council Resolution called by order of the rule in the absence dell'espunzione [...] to which the provision in the resolution gives the same on this point only implementation. " In order to
not manifestly unfounded, the court first promises a contrast between the contested provision el ' art. 32, first paragraph of the Constitution : this parameter, describing the fundamental right of the individual psychological well-being, assumes ownership of it "without distinction", giving you access to a notion of "individual" undoubtedly includes also the foreign resident in Italy, since health is a primary universally recognized. By contrast, the contested provision does not include the benefit in question, also recognized on the basis of health conditions, foreigners resident in Lombardy, although with total physical disability.
According to the court, the rule would violate denounced also the reasonableness of fees, in contrast to the ' art. 3 of the Constitution , as it introduces a different treatment in situations that do not show evidence relevant to the sort of diversity, however, coming in relief measures support for severely disabled individuals.
Also - still finds the court - as Benefit is also aimed at protecting those who are "in trouble at work than to favor the recovery of mental and physical energy," the rule in question is at odds with the ' art. 35, first paragraph of the Constitution.
Finally, referring to the TAR considers that the provision in question violates the ' art. 117, second paragraph letter a) of the Constitution. Following the reform of Title V of the fundamental charter, have the system subject to state legislation, exclusively, and for the determination of essential levels of benefits relating to civil rights and social be guaranteed throughout the national territory, which the ruling of the fundamental principles governing the protection of health: areas, these, which - according to the court - "can not but also address the legal status of foreign citizens." Nevertheless - concludes the referring - the rule in question, establishing distinctive profiles among Italian and foreign citizens in relation to essential services on the right to health, "would seem to be outside the constitutional powers reserved to the Regions' and this, despite legislation Aliens ( art. 2, paragraph 5, of Legislative Decree no. July 25, 1998, No. 286 ) provides equal treatment between Italian citizens and nationals of countries outside the EU in accessing public services.
2. - In the present case have said the constitution is CGIL Lombardia, in its legal representative and general secretary, that the private plaintiff in the court, asking the question of upholding the constitutionality of a subsequent memory and reserving any further deduction.
3. - He also defended the Lombardy Region, in the person of the President pro tempore of the Regional Council, contending that the ineligibility and, anyway, the question is unfounded.
In the act of creation, the region - an historical premise of the regional legislation in terms of facilities for the use of public transport services - highlights Italian citizenship is first and foremost as "basic requirement [...] always constantly required for access to tariff concessions' on public transport services in Lombardy, the second a model widely used in various regional laws, and is not, therefore, an innovation of the contested legislation, a requirement which is to combine the possibility of extensive use of the benefit with the considerable cost of it. In the opinion of the regional, the free travel for certain categories of non-for may be either as an essential performance, or as a solution constitutionally required; it does not fall into those "minimum services" or those "public service" covered by the Articles. 16 17 of Legislative Decree no. November 19, 1997, No 442 (gives regions and local authorities of functions and tasks in the field of local public transport), is rather a matter of discretion of the regional legislature, whose burden falls entirely on the local government finance, having to reimburse the companies licensed to use the transportation service tariff reductions. Highlighted in this regard, the economic burdens already imposed on the past, to the regional transport companies and illustrates the financial penalties regional entity by reason of foreclosure of any substantial legislative powers in matters of taxation, the Lombardy region analyzed, therefore, the specific contents of the order of referral, arguing, first, a number of exceptions to inadmissibility.
Under a first aspect, is in dispute, a lack of reasoning in the order as to the pertinence of the matter: this is because, in existence before the legislation contested the prerequisite of Italian citizenship, does not explain - nor the referral order would be worth to clarify the fact - the former entitlement to free transport for the title by the plaintiff, hence the lack of motivation on relevance. The defense of Region contends, then the manifest inadmissibility of the question because they are formulated in a contradictory manner, requiring the court, on the one hand, an action additive to extend the benefit to the disabled also foreigners, and looked forward, on the other hand, an intervention ablative, on the assumption of violation of a rule of jurisdiction by the regional legislature: with the consequent elimination of the right of the disabled for Italian citizenship. Finally, it contends, however, a general lack of motivation on the ordinance does not clearly unfounded.
the merits, the defending regional shows, first of all, irrelevant of the reference to ' art. 32 della Costituzione. La disciplina regionale impugnata, infatti, risulta finalizzata esclusivamente ad una incentivazione ed agevolazione del servizio di trasporto pubblico, a nulla rilevando che il ricorrente nel giudizio a quo se ne serva per ragioni di salute; a conferma dello scopo normativo indicato, la Regione richiama l'inclusione, tra i beneficiari del trasporto gratuito, di categorie di soggetti - quali gli ufficiali o agenti di polizia giudiziaria - non bisognosi di una particolare tutela della salute. In nessun caso, peraltro, potrebbe ritenersi che «il diritto alla salute includa, tra le prestazioni garantite, quello ad essere trasportati gratuitamente, anche in caso di invalidità, ai luoghi di care ": this because, according to the defense of the Region, the" irreducible core "of essential services the right to health as a right capable of being" financially affected, "certainly can not be covered by the free transportation, which is a benefit merely incidental. There is also
- says the region - no violation of the principle of reasonableness: the requirements of Italian citizenship and residence in Lombardy constitute "preconditions" for access to benefits, the result of necessary balance between the need to extend the possible the number of recipients and to contain the economic outlay; penalty, if Conversely, the total elimination of the benefit itself.
The defense of the region, therefore, argues the full correspondence between rule compliance and the cause and introduced legislation that, according to general principles, must be present. According to it, discipline censored - far from wanting to engage any form of discrimination against foreigners - promises "a serious relationship with the region" - expressed by the Italian citizenship or residence regional requirements made by both foreign - as a point balance between facilitating social and shortages of resources: choice, this, unimpeachable because alien's unreasonableness.
On the other hand, the contrast with the ' art. 3 of the Constitution , in terms of unreasonableness, is excluded - continues the defense of the region - from the fact that the situation of foreign and Italian citizens are fully comparable only with reference to fundamental rights, in whose group is not covered - even for the disabled - the right to travel free on public transport.
In Alleged violation of ' art. 35 of the Constitution are alleged to be the absolute inadequacy of the reasons given, is the assumption that motivates the argument of the referring court, appearing "frankly difficult" essentially a concession to those who are unable to work would violate the constitutional provision cited. Finally
- concluded the defense of the region - is no infringement of ' art. 117 of the Constitution. For one thing, in fact, the benefit in question can in no way qualify as an essential level of performance on the civil and social rights, while, on the other hand, the state jurisdiction on the 'principles' in relation to what exists in regard to the essential content of rights and, with reference to the right to health, free transportation to the disabled can not be covered in the core of the social right.
4. - Close to the hearing, the defense of private parties submit a statement, insisting on the acceptance of the question of constitutionality.
As regards the right to health, it is assumed that any distinction based on nationality is a source of unacceptable discrimination, expected that the invalids - same class as the applicant - free transport is functional to "facilitate access to care" and satisfy the requirements relating to right to health: with the result that "denying the first would mean the second." On the other hand - the defense goes private - is the same case law of the Constitutional Court to recognize the protection of health 'significant precedence over other needs and public interests, "thus preventing the draw distinctions with respect to the status of aliens.
With reference to the proposed breach of ' art. 3 of the Constitution , the two limits in the contested provision makes free transport - namely the Italian citizenship and residence in Lombardy - would be "flagrantly unconstitutional" because of the close connection between the benefit of free movement and right health of the disabled, unable to doubt that the civil, economic and social - for which the Constitution does not contain no explicit reference to the ownership of the "citizens" - should be classified among the "fundamental human rights" and, as such, to ensure, regardless of nationality and citizenship. Profile, this normatively reiterated in the most recent Italian legislation on foreigners, in particular in ' art. 41 of Legislative Decree no. 286 of 1998 , which establishes the equality of foreigners to Italian citizens, "for the enjoyment of the benefits and services, including economic, social assistance, including those provided [...] provided for disabled people '. In
"front counter" with these principles, the contested provision, excluding invalids total non-citizens from the list of beneficiaries of free transportation, would make no "rational justification", given that the nationality requirement does not present any 'connection with neither the need for care with no connection with the territory in which the services should be enjoyed. " There would, therefore, lack of consequence to the aim pursued by the recognition of the benefit and the criterion established by law for entitlement.
Finally, the private defense, the contested legislation would exceed the regional powers, creating "an interference with the migration policy and the regulation of the legal status of foreigners' that the Constitution (Articles . 117, subparagraph b, reserve to the State. Moreover, the contested provision would result in the induced effect of encouraging immigrants admitted into the country to leave to go to Lombardy in different regions, thus questioning the authority of the State "to decide on the admission of immigrants throughout the country."
On the other hand - ends the memory - the contested provision also violates the general principles of and those set by state laws as fundamental. The latter - essentially obtainable from and - argue, in fact, in the sense of complete assimilation between foreign and Italian citizens in the enjoyment of benefits, including economic, social assistance, and this would be a no legislative powers to the regional point of view of the impossibility "to create two basic levels of care ': a reserved Italians resident with free movement on public transport, and another "very favorably" with the movement for foreigners pay.
Law
1. - The Regional Administrative Court of Lombardy, raises, in reference to Articles. 3 (parameter called in motivation, but not reproduced in part), 32, first paragraph , 35, first paragraph and 117 second paragraph letter a) of the Constitution , issue of the constitutionality of ' art. 8, paragraph 2 of the Law of the Lombardy Region January 12, 2002, No 1 (Intervention for the development of regional public transport and local), as amended by ' art. 5, paragraph 7, of Law December 9, 2003, No 25 (Measures in the area of \u200b\u200blocal public transport and roads), in so far does not include foreign nationals, residing in the Region, among which are entitled to free travel on scheduled public transport services, recognized the totally disabled persons for civil cases.
After describing the facts before it deems appropriate, the referring court points out, the point of not manifestly unfounded, as the contested provision appears to conflict with the ' art. 32 of the Constitution , because - as enunciated by the health parameter such as a fundamental right of the individual and collective interest, and having to recognize, therefore, to foreigners - the benefit provided by the contested provision, although attributed to citizens "because of the same state of health 'is not recognized" (a) foreign residents in the Lombardy Region that are in a situation characterized by a complete physical disability. " The contested provision also would be in contrast with the general reasonableness of fees laid down ' art. 3 Cst , as it would introduce a differential treatment in situations that - referring to the support measures introduced for the benefit of severely disabled people - are not elements of diversity relevant for sorting. Would be vulnerable, then, even the ' art. 35, first paragraph of the Constitution , as the benefit in question (of which the Court foreclosure foreign complains) would be recognized "even to protect those who are in difficulties than working to promote the recovery of psycho-physical energies. " It promises, finally, a contrast with the ' art. 117, second paragraph letter a) Cost , since introducing a differentiated regime between Italian citizens and foreigners, would be subject to the legislation violated the state on the determination of essential levels of benefits relating to civil and social rights, which must be guaranteed throughout the country ( art. 117, second paragraph, letter m ) and would have violated the fundamental principles established by the State in terms of health, "both areas which can not also cover the legal status of foreign citizens. "
2. - The defense of the Lombardy Region ruling raises three exceptions in paragraph eligibility.
In the first, recalls how the region - like the "history" of the contested legislation, as described in the very act of intervention - the requirement of Italian citizenship was already required by the regional legislation, since the law No 25 of 2003 , memorandum to the provision of which the constitutionality of the referring court doubts, merely "to change the definition of subsidy (from" Card free movement "to go to talk about" right to free movement " ) and request that the degree of disability is equal to 100%. Therefore remains unexplained, nella ordinanza di rimessione, la indicazione delle fonti normative o delle ragioni in base alle quali il ricorrente disponesse della tessera di libera circolazione. In mancanza di tale puntualizzazione - che assumerebbe, secondo la Regione, «un aspetto del tutto centrale per ciò che concerne la rilevanza della questione sollevata» - ne deriverebbe una preclusione alla disamina del merito, stante, appunto, la «carente esposizione dei fatti di causa che impedisce l'indispensabile controllo sulla rilevanza».
La eccezione è priva di fondamento. Non pare infatti corretto, innanzi tutto, l'assunto secondo il quale la disciplina dettata dalla legge n. 25 del 2003 presents no element of "novelty" than in the past, by the light of the evolution of regional legislation, from the discipline at the time introduced by ' art. 1 of Law November 16, 1984, No 57 laying down new rules for concessionary travel on local public transport services. In fact, the Regional Law 25 of 2003 , unlike the previous regulatory action - in which they identified as recipients of benefits, the "citizens" in particular categories - expressly stated, as potential users of the free movement or tariff concessions to the use of public transport services, only the "Italian citizens" added to the specification, this is technically improper - because the reference to the requirement of citizenship, "generously" given, appeared attributable to the Italian - who, however, , the evidence reveals a clear choice "reductive" in order to pit the beneficiaries.
Beyond this, as is clear from the referral order, is not in any way affect, in the main proceedings, the fact whether the applicant had a private party or not entitled to benefit from the "card already in its free movement possession and maturity to July 31, 2004 'event, this, that would take instead emphasize sure if the complaint had been a revocation or otherwise inhibiting the benefit already granted. The object of the action in which joined the constitutionality of the accident is, by contrast, represented only by the decision of the Regional No 7 / 16747 of 12 March 2004 and the related Acts concerning the grant or not pro future benefit for disabled civilians Italian citizens: the effect of rendering irrelevant - at the nexus of INTERFERENCE than the resolution of the question of constitutional legitimacy - the Profiles on the legitimacy of any use in place of that benefit, by the applicant. So, no "verification" was (and could) do the referring court in regard to this aspect of the story before it scrutiny, with the obvious corollary to make the claim manifestly unfounded incomplete description of the case, the effects of motivation on the relevance of the matter.
3. - The defense of the region also raises another exception for inadmissibility ruling, based on the finding that the court would have made the question of constitutionality "in terms patently contradictory." Noted, the region that the referring court should, on the one hand, criticized the contested provision in so far confined to third Italian 100% disabled, living in the region, the right to free travel on public transport services, regional calling, therefore, the adoption of an additive intervention designed to extend the coverage to foreign residents in the region. On the other hand, remitting the same - 'prospectus (albeit in a confused way) the breach of' art. 117, paragraphs 2 and 3 of the Constitution and recalling the ' art. 2, paragraph 5, of Legislative lgs. July 25, 1998, No 286 , which provides for equal treatment of foreign nationals in access to public services "- would have required the Court a "radical intervention breakers', challenging the legislative competence of regional differential treatment between Italian and foreign citizens on public services. Place, in fact, that the breach of ' art. 117 of the Constitution "would lead to the entire law unconstitutional for lack of appeal ', the result - ending the region - that the acceptance of the question would inevitably lead to" the annulment of the benefit of the right to free transport for Italian citizens, the disabled 'in clear and irreconcilable conflict, then, with the request before the addition of which has been said and that the court referring reiterated in the body of referral order.
This exception is also without foundation. The referring court merely noted that even after the amendments made by Constitutional Law 3 of 2001 , the ' art. 117 of the Charter of Fundamental reserves to state law to determine the basic level of benefits relating to civil and social rights, which must be guaranteed throughout the national territory ( art. 117, second paragraph, letter m ), so as always State reserved the formulation of the fundamental principles which the concurrent legislation of the Regions must comply for the protection of health. Both these areas need to address - said the referral order - "even the legal status of foreign citizens [...] especially as the d. lgs. July 25, 1998, No 286 , all ' art. 2, paragraph 5 , provides for equal treatment between Italian citizens and nationals of countries outside the EU in accessing public services.
The profile of "incompetence" referred to by the court, therefore, is not "Absolute" - in those terms, the respondent region - but it is limited in its profile that the exercise of legislative power which the referring court takes as discriminatory. In fact, the subject of the question of constitutionality is not the provision itself, which, in outlining the conditions of the benefit it gives to the "Italian citizens" (discipline, this condition, where you do not make any request for ablation, or ventilation is no possibility of illegality). The only thing is censored, however, expressed only "negative" (hence the request for addition, and not ablation), the complaint focuses solely on foreclosure, introduced by the rule of foreigners to benefit, equal to the remaining conditions of the law, of the benefits established in favor of the disabled in terms of regional transport. Apart then, for the moment, any consideration on the merits, the merits of the findings made by the referring court, especially for what concerns the traceability of the actual situation of the case to "matter" set out by ' art. 117, second paragraph, letter m) of the Constitution , should be excluded - from the perspective cultivated by the court - those of the relief sought by it's contradictory, according to the region, undermine the eligibility of the matter.
4. - The question then would be unacceptable, according to the regional defense of lack of motivation on the non-manifestly unfounded, because - even to disregard certain gaps to syntax, which would obscure the reasoning of the court - the various parameters would be set out in apodictic form, generic and lacking in adequate support argument. Pure
that exception must be rejected. To determining whether the disputed condition of eligibility for hours, it is necessary that the "reasons" to doubt the constitutionality, in terms of the individual parameters which assumes the violation, to be articulated in terms of sufficient clarification and recognition within the tissue of argument which make the referral order, without any need, on the one hand, specific sacramental formulas, or, on the other hand, the particular requirements of "demonstration" on the other hand in itself incompatible with the specific and limited scope within which the election must take place to cross "not manifestly unfounded". These minimum requirements have paid the referral order, since, in reference to each of the profiles involved in the question and for each of the parameters of the invocation, the referring court has provided relevant and appropriate reasons. The fact, then - highlighted by the Region to support the plea of \u200b\u200binadmissibility - for which the violation 's art. 3 Cst is set out in the body of the referral order, but not further mentioned in the device, it proves irrelevant, given that the "reasons" of the complaints and the corresponding questions are set out in terms of everything from unique ' application of the constitutionality of these proceedings.
5. - The substance, the question is based.
L ' art. 8 of the Law of the Lombardy Region January 12, 2002, No 1 , as replaced by ' art. 5, paragraph 7, of Law December 9, 2003, No 25 provides special providence in favor of certain categories, on scheduled public transport services in the region: in particular, with effect from 1 August 2004, next to the categories of beneficiaries indicated in paragraph 1 of that Article , the right to free travel on these services is also recognized "the Italian citizens invalids, disabled workers and disabled residents in Lombardy with a degree of disability equal to 100% [...] and any accompanying person, in the manner prescribed by special act of the Regional Government. " Compared to other categories of persons set out in paragraph 1 - all, as it were, subjectively classified by the source (war invalids and service; deported to Nazi death camps; invalid by reason of acts of terrorism and victims of organized crime), or the nature of disability (with no view to absolute blindness and deaf-mute) - the disabled referred to in paragraph 2 of this rule, submit, as a common and unifying feature, only the percentage of disability in this case, the highest ever.
The ratio of the benefit is, therefore, attributable to the choice of the regional legislature to facilitate - through the use of free services - access to local public transport system in favor of a group of people united by belonging to a more serious condition of disability. We move in a highly social objectives dictated by providence, in this case connected, in terms of "cause" legislation, to values \u200b\u200bof solidarity, not separated by reverberations guessed that the peculiar conditions of the beneficiaries and the nature of the benefit may specifically to the needs of present life and relationships, not least those related to protecting the right to health, in the presence of such a serious handicap.
making the distinction that is at issue here, and which focuses on the entire range of the complaints raised by the referring court, therefore, revolves around the foreclosure law to please - the subject of legal challenge - has declared intention was to introduce to foreigners: with this compromise - according to the court - not only "the general reasonableness of fees that can evoke [...] as a parameter of coherence of the regional legislative provision with the principles enshrined in the interests of situations due to identical ratio of interpretation, "but, also, the necessary protection of health ( art. 32 of the Constitution) and labor ( art. 35, first paragraph of the Constitution ), as well as the reserve to state law regarding the determination of essential levels of benefits concerning civil and social rights to be guaranteed throughout the national territory ( art. 117, second paragraph, letter m, the Constitution ), and about the fundamental principles on legislation on regional competitor health.
5.1. - In principle, they are correct the findings made by the defense about regional peculiarities that characterize the status of foreigners in the framework of constitutional values. In particular, it is settled jurisprudence of this Court, the constitutional principle of equality does not tolerate discrimination between the position of the citizen and that only when the alien is referred to the enjoyment of the inalienable rights man (see, among others, the decision No. 62 of 1994 ) thereby making it legitimate for the legislator, the introduction of rules applicable only to those who are in possession of requirement of citizenship - or reverse it is free - provided that does not compromise the exercise of those fundamental rights.
At the same time, and on the specific side of the right to health, this Court has repeatedly pointed out that 'the right to medical treatment necessary for the protection of health is "constitutionally conditioned" by the demands of balancing other constitutionally protected interests, subject, however The guarantee of "a core of inalienable right to health as an area protected by the Constitution inviolable human dignity, which requires to prevent the creation of situations without protection, which may in fact jeopardize the implementation of that right" [....] This "irreducible core" of health as a right of the person must therefore be recognized even by foreigners, whatever their position in relation to the rules governing the entry and residence in the state, although the legislature could provide for different means of exercising same. " Therefore, even an alien unlawfully present in the State 'shall be entitled to receive all benefits which are postponed and urgent, according to the criteria set out by ' art. 35, paragraph 3 (Legislative Decree no. No. 286 of 1998) , it is a fundamental human right which must be guaranteed, as required, generally by ' art. 2 of the Decree-Law No 286 of 1998 '(see Judgement No. 252 of 2001 ).
In this framework, and if you have about the text and the spirit of the rule to be challenged, agree with the assumption of the Region, in so far stressed that the choice "of legislative attributed to certain categories of persons a right to free movement, or an entitlement to preferential rates, not in any way constitutes an essential performance or minimal, nor is there, of course, a choice constitutionally required. "
For one thing, in fact, the forecast benefits in question is addressed to heterogeneous categories of beneficiaries, even more all related to the genus of the disabled, like the knights of Vittorio Veneto or agents and police officers in public safety services , respectively, classified in categories of worthy or users of the service ratione officii: hence the impossibility to consider the right to health (or the right to work) as a fundamental value to the protection of which correlate - to more abstract through a link of "indispensability" - the provision of Providence. On the other hand, it is also evident in the inability to identify regional transportation service is intended to complement - and always - the "irreducible core of the right to health as an area protected by the Constitution inviolable human dignity", which is primarily above, given that it is the nature of the service to evoke the satisfaction of a range undefined (and undefinable) the need to move.
Providence in favor of the disabled, therefore, can not be justified on the basis of individual "needs" of locomotion (including well may include - but not necessarily and not only - those related to health or at work). It rinviene its reason for being in a logic of social solidarity, in the reasonable assumption of the difficult conditions faced by the residents in that to be totally disabled, see greatly reduced, if not totally eliminated, their earning capacity.
5.2. - If the provision of free or concessional rates for the disabled meets social goals and fits into the category of provisions for so-called "optional", it is not intended in itself to satisfy the fundamental rights, the result - said the region - legitimacy choices designed to balance the benefit with the maximum use of limited financial resources, to address the most significant burden in question derives from the benefit for the regional body. On the other hand, if such a balance is also imposed "with respect to organizational and financial resources, staying safe, in any case, this irreducible core of the right to health" which has been already mentioned (see, among many The Judgement No 509 of 2000 ), the more weight that you require - says the region - "if the aim is to contain the economic outlay for additional services that cost."
L'assunto della Regione, corretto in linea di principio, risulta tuttavia del tutto eccentrico rispetto alla previsione oggetto di censura. La circostanza che la Regione abbia nella specie introdotto un regime di favore senz'altro eccedente i limiti dell'"essenziale", sia sul versante del diritto alla salute, sia su quello delle prestazioni concernenti "i diritti civili e sociali che devono essere garantiti su tutto il territorio nazionale", non esclude affatto che le scelte connesse alla individuazione delle categorie dei beneficiari - necessariamente da circoscrivere in ragione della limitatezza delle risorse finanziarie - debbano essere operate, sempre e comunque, in ossequio al principio di ragionevolezza; al legislatore (statale o regionale to be) is permitted, in fact, introduce different schemes, about the treatment of individual subsidiaries, only in the presence of a "cause" legislation does not clearly irrational or, worse, arbitrary.
The provision at issue is incompatible with the principle laid down by ' art. 3 of the Charter of Fundamental , because its ballot should be limited within the specific provision, under which the service is provided free to all non-disabled resident in Lombardy who have a degree of disability equal to 100% but only those among them who enjoy the Italian citizenship. The requirement citizenship can not assume - as the region relies - as "preliminary criteria for access" to the benefit, and without it having been "conceived in reference to a specific category of persons' in fact, it poses - the provision - as a specific condition is a condition for admission to the favorable regime, not unlike other specific requirements that apply to identify individual preference categories.
Nor can it be said, as the region considers that the nationality requirement can legitimately compete to select the beneficiaries of Providence because of financial needs, like that of the residence, since - while the residence, compared Providence to a regional, a criterion is not unreasonable for the assignment of the benefit - must reach different conclusions for citizenship, which therefore presents itself as a condition further, superfluous and inconsistent, the effects of a hypothetical scheme differentiated from a social measure sees 100% disabled in the category of beneficiaries. Distinguish, for the purpose of applicability of the measure, Italian citizens by citizens of foreign countries - the EU or not - that is stateless, therefore ends up in the fabric to introduce regulatory elements completely arbitrary distinction, since there is no reasonable correlatability between the positive condition eligibility (the Italian citizenship, in fact) and other specific requirements (100% disability and residence) on which their recognition and define the rationale and function.
On the other hand, and how to collect the private parts, the ' art. 41 of Legislative Decree no. July 25, 1998, No 286 (Consolidated text of provisions governing immigration and the status of foreigners) expressly enshrines the principle that "foreigners who hold a residence card or residence permit of not less than one year as well as the children entered their residence or their residence permit, are treated as third Italian for the fruition of the benefits and services, including economic, social assistance, including those provided [...] for the deaf, the blind civilians, provided for disabled people and the poor. "
This provision - like the others contained in the consolidated text - is, by virtue of ' art. 1, paragraph 4, of legislative decree no 286 of 1998 fundamental principle "within the meaning of ' art. 117 of the Constitution " (obviously in the text then in force) "in matters of legislative competence of the Regions, including falls that of the transport Regional. A principle, then, that - beyond the different emphasis that may attach to it under the new distribution of legislative powers between state and regions - may well be called as necessary paradigm on which lines to calibrate the reasonableness of today's ballot; This is because, just having regard to the general relief that this principle continues to play in the system, any choice of the regional legislature that introduced exceptional arrangements in relation to it - as indeed happened in the provision to be challenged - should allow it to find the same regulatory structure a specific, transparent and rational "reasonable excuse", such as to "explain" at the constitutional level, the "reasons" as a basis for exemption. A similar conclusion may also arrive with reference to Articles. 2 and 3, paragraph 4, of Law February 5, 1992, No 104 (Framework Law for the assistance, social integration and rights of disabled people), which - as part of the basic principles and with regard to benefits in terms of handicap - equate to citizens and foreigners stateless persons resident, domiciled or a permanent abode in the country.
Since then, as defined in the contested provision ratio other than that intended to introduce a foreclosure discriminating, from the list of beneficiaries of social benefits, foreigners as such, it is therefore unconstitutional under the relevant part of it, for violation of ' art. 3 of the Constitution.
remain absorbed the additional profiles put forward by the referring court.
PQM
THE CONSTITUTIONAL COURT
ruled as unconstitutional Constitutional 's art. 8, paragraph 2 of the Law of the Lombardy Region January 12, 2002, No 1 (Measures for the development of regional public transport and local), as amended by ' art. 5, paragraph 7 of the Law of the Lombardy Region 9 December 2003, n. 25 (Measures in the area of \u200b\u200blocal public transport and roads), in so far does not include foreign residents in the Lombardy Region among the persons entitled to free travel on scheduled public transport services afforded to persons totally disabled for civil cases.
Decided in Rome, in seat of the Constitutional Court, Palazzo della Consulta, 28 November 2005.
FILED IN THE OFFICE 2 December 2005.
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