Appeal brought on 9 August 2021 by Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo against the judgment delivered on 2 June 2021 by the General Court (Seventh Chamber) in Case T-223/18, Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v European Commission

(Case C-492/21 P)

(2021/C 471/30)

Language of the case: Italian

Parties

Appellant: Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo (represented by: F. Rosi, avvocato)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

Grounds of appeal and main arguments

The appellant claims infringement of the obligation to state reasons and of the obligation to conduct inquiries; the appellant also alleges an incorrect interpretation of the concept of activity on the basis of solidarity and the concept of an undertaking and economic activity under Article 106 TFEU, particularly by reference to the Italian legal regime laid down in Legislative Decree 229/1999, which shows that the system whereby the Italian State provides financing to the regions does not come within a system on the basis of solidarity, but rather an economic system in the terms used to refer to a scheme relating to services of general economic interest (SGEIs).

More specifically, the appellant disputes the General Court’s definition of activity on the basis of solidarity set out in the judgment under appeal, which remained entirely generic and without reference to the rules in force in Italy in relation to the provision of health services. The General Court held that the judgment of the Court of Justice of 11 June 2020 in Dovera was applicable to the circumstances of the present case, without carrying out a detailed analysis of the Italian reform of 1999, and in particular without comparing it with the rules governing the provision of health services in the State of Slovakia.

In addition, the appellant disputes the finding that the concept of activity on the basis of universality can preclude the applicability of the regime laid down in Article 106 TFEU, having regard to the fact that a service provided, even if not entirely, on the basis of universality can be regarded as an economic activity in the same way as other services such as multimodal transport, electrical energy, water, telephone services, and so forth, even though it comes within the definition of an SGEI.

Likewise, the General Court does not specify that the State transfers to the regions an amount of financing and therefore requires the regions to pay the various public and private health service providers for their services on the basis of tariffs according to the choice of the patient/user.

Therefore, the regions enter into concession contracts for public services with all the operators under public ownership and private ownership, paying for services on the basis of a pre-established list of tariffs. Each health structure organises its own activity in a specific and independent manner in order to attract patients to its own structure.

In addition, patients can apply to health structures under public ownership or to those under private ownership in order to request the provision of a private service, thereby avoiding existing waiting lists in the aforementioned accredited scheme. The appellant therefore disputes the General Court’s assertion at the beginning of the judgment: ‘1. In Italy, the organisation of the health system is centred on the National Health Service (“the SSN”). In the context of the SSN, health services are financed directly by the social security contributions of the subscribers and by State resources, with the result that those services are provided free of charge or almost free of charge to all patients affiliated to the SSN by public bodies or private bodies under a contract. The management of the SSN is ensured mainly by the regions’.

The latter argument does not correspond to the actual organisation of health services in Italy or to the rules currently in force; in addition, the General Court fails to clarify its assertion that ‘health services are financed directly by the social security contributions of the subscribers and by State resources’, which is an abstract representation lacking context.

In other words, the General Court failed to set out what are the ‘social security contributions of the subscribers’ and what a ‘State resource’ consists of. In particular, the General Court does not carry out a detailed analysis of the contents of the provisions governing SGEIs for the purposes of Article 106 TFEU and the judgment of the Court of Justice in the 2003 Altmark case.

First the Commission, and then the General Court, should have carried out a detailed analysis of the scheme, also having regard to Protocol 26 to the Treaty referring specifically to SGEIs and to the fact that no precise definition of this specific sector of services has been drawn up.

In conclusion, the judgment of the General Court under appeal is merely a transposition of the content of the contested Commission decision, which the General Court held was not vitiated by a failure to state reasons.

It is for this reason that the complaints set out in detail by the appellant that, contrary to the General Court’s assertions, it challenged the Commission’s decision on the ground that it was entirely generic and did not refer to the rules currently in force in Italy, are unaffected.

Nor is it possible simply to transpose the content of the judgment of the Court of Justice in Dovera.

Moreover, the substantive challenge raised by the appellant which was submitted for examination by, first, the Commission and then the General Court, concerns specifically the verification of the correspondence of the Italian health system to the provisions in Article 106 TFEU and therefore to the application of the SGEI scheme.

On that point, the appellant criticises the General Court on the ground that it failed to make a ruling and therefore failed to state reasons.