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About incompatibilities between the Mayor and the activities of doctor with the national health submit for your kind attention the decision of the Supreme Court - Civil Division - 20 October 2001, 12862.
Happy reading!
OF THE PROCESS
Following the election held April 16, 2000, Dr. Erminio Marinelli was elected Mayor of Civitanova Marche, the election was validated by the City Council at its meeting on 8 May 2000, with a resolution rejecting the challenge of incompatibility move by an adviser on the survey of the profession of doctor performed dall'eletto.
By application filed June 6, 2000, the lawyer Roberto Gaetani, acting on his own and as a voter in the City, promoted before the Court of Macerata popular action planned by the l. 1147/1996, calling aside or annulment of the Board resolution 33/2000 was validated in so far as the election of the mayor. He claimed that the
Marinelli, exercising the profession of general practitioner under the agreement with the ASL 9, poured into the grounds of incompatibility under Article 8, first paragraph, no 2, l. 154/1981, as the Municipality of Civitanova Marche had a population of over 30,000 inhabitants and helps to provide local public health unit. The
Marinelli it was the defense with resisting the demand.
By judgment on 19 July and 24 August 2000, the Court rejected the application of Macerata offsetting the costs of litigation.
deemed rejected and absorbed certain exceptions made by Marinelli's defense, the Court based its decision on the assumption that under Article 8, paragraph 1, no 2, l. 154/1981 had been in an indirect or assumption by the Legislative Decree no. 502/1992 supporting the new regulatory framework of the national health service.
The Court of Ancona, on appeal the tribunal Gaetani, confirmed, then, in turn, the ruling of first instance, but with different motivation.
rejected, in fact, the idea of \u200b\u200brepeal implicit in Article 8, paragraph 1, no 2, l. By Legislative Decree 154/1981. 502/1992 cit. But nevertheless took the view that the express repeal of that rule provided in Article 274, first paragraph of the letter) of the next Leg. 267/2000 (for this profile, in his view, not to be suspected of unconstitutional delegation contained in excess of 31 l. 265/1999, was working as jus supervenies in the trial in progress, thus precluding the finding of the current (albeit initially subsisting ) because of incompatibility related to the occupation of doctor performed by the mayor.
against that ruling, filed February 10, 2001, Gaetani appealed, entrusted to three means of appeal.
It is the Marinelli, also with the proposition of his cross-appeal, punctuated by four grounds for complaint.
About incompatibilities between the Mayor and the activities of doctor with the national health submit for your kind attention the decision of the Supreme Court - Civil Division - 20 October 2001, 12862.
Happy reading!
OF THE PROCESS
Following the election held April 16, 2000, Dr. Erminio Marinelli was elected Mayor of Civitanova Marche, the election was validated by the City Council at its meeting on 8 May 2000, with a resolution rejecting the challenge of incompatibility move by an adviser on the survey of the profession of doctor performed dall'eletto.
By application filed June 6, 2000, the lawyer Roberto Gaetani, acting on his own and as a voter in the City, promoted before the Court of Macerata popular action planned by the l. 1147/1996, calling aside or annulment of the Board resolution 33/2000 was validated in so far as the election of the mayor. He claimed that the
Marinelli, exercising the profession of general practitioner under the agreement with the ASL 9, poured into the grounds of incompatibility under Article 8, first paragraph, no 2, l. 154/1981, as the Municipality of Civitanova Marche had a population of over 30,000 inhabitants and helps to provide local public health unit. The
Marinelli it was the defense with resisting the demand.
By judgment on 19 July and 24 August 2000, the Court rejected the application of Macerata offsetting the costs of litigation.
deemed rejected and absorbed certain exceptions made by Marinelli's defense, the Court based its decision on the assumption that under Article 8, paragraph 1, no 2, l. 154/1981 had been in an indirect or assumption by the Legislative Decree no. 502/1992 supporting the new regulatory framework of the national health service.
The Court of Ancona, on appeal the tribunal Gaetani, confirmed, then, in turn, the ruling of first instance, but with different motivation.
rejected, in fact, the idea of \u200b\u200brepeal implicit in Article 8, paragraph 1, no 2, l. By Legislative Decree 154/1981. 502/1992 cit. But nevertheless took the view that the express repeal of that rule provided in Article 274, first paragraph of the letter) of the next Leg. 267/2000 (for this profile, in his view, not to be suspected of unconstitutional delegation contained in excess of 31 l. 265/1999, was working as jus supervenies in the trial in progress, thus precluding the finding of the current (albeit initially subsisting ) because of incompatibility related to the occupation of doctor performed by the mayor.
against that ruling, filed February 10, 2001, Gaetani appealed, entrusted to three means of appeal.
It is the Marinelli, also with the proposition of his cross-appeal, punctuated by four grounds for complaint.
GROUNDS
1. With the three main reasons for the appeal, the Gaetani, respectively, argues that the Territorial Court erred in giving retroactive effect to the supervening norm (Article 274 of Legislative Decree no. 267/2000) is repealed due to incompatibility of the sub-article 8, paragraph 1 No 2, l. 154/1981; not to detect, in the alternative, not manifestly unfounded, the question of Article 274 of the said decree. 267/2000 to violation of Article 76 of the Constitution; not in place, however, the legal costs to be borne by Marinelli, who had given cause to exist while refusing his condition of incompatibility.
2. With the four complaints that make up the cross-appeal, the Marinelli, in turn, criticizes the Board of Appeal for not having detected the inadmissibility of the popular species in the proposal which, in the absence of concrete due to incompatibility sub article 8, paragraph 1, no 2, l. 154/1981, the repeal of that rule occurred under Legislative Decree. 502/1992, that its unconstitutionality, if found to be in force for conflict with Articles of the Constitution
3:51 3. The two actions must be brought together under Article 335 cpc
4. Should examine the preliminary objection of lack of integrity of an adversarial action against the prosecutor, suggested in opening the defense of Marinelli.
The exception is, however, unfounded, since the prosecutor - who was the President of the Court has ordered promptly notify the application in the first instance - then ritually, however, participated in the appeal stage, where he concluded on the merits, asking acceptance of the appeal.
5. It 'still ruling the question of admissibility of the people, which in this case applied for a declaration of revocation of an elected mayor.
argues, in fact, for this profile, the defense of the elect that the action brought by Gaetani is not eligible for lack of legal basis, as the popular action - according to Article 9 bis DPR 570/1960 - could only be directed to enforce the forfeiture against advisers municipal or the disqualification in respect of the mayor, and therefore could not be brought to demand the forfeiture of an elected office as mayor.
But this reading of the reference standard can not be shared, given the coincidence of an advisor with the office of mayor in the electoral system requirement in Article 9 a 154 and the resulting traceability also quoted the mayor (in its capacity as a competitor consigliere) dell'azione popolare per decadenza dalla carica elettiva prevista appunto, per i consiglieri in genere. Il che trova, del resto, conferma anche nel successivo d.lgs. 267/2000, il t.u. di coordinamento delle disposizioni sull'ordinamento degli enti territoriali e sul sistema di elezione dei correlativi organi, il cui articolo 70, a sua volta, ribadisce che l'azione per la decadenza della carica di sindaco può essere promossa, dinnanzi al Tribunale, da qualsiasi cittadino elettorale.
6. Nel merito, le altre questioni sollevate dalla parti attengono, in ordine di priorità logica:
a) alla vigenza della causa di incompatibilità sub articolo 8 l. 154/1981 alla data delle elezioni per cui è causa (3 rec. Incidental);
b) its actual application to the case (2 hack.)
c) the proposed unconstitutionality of the said Article 8 l. 154/81, if applicable and relevant in the trial court (4 hack.)
d) the applicability to proceedings in the course of jus superveniens (Article 274 of Legislative Decree no. 267/2000) repeal Article 8 l. 154/1981 (held by the Court on the merits and disputed with the first ground of the rich. Princip.)
s) in the alternative, the suspected unconstitutional, for excessive delegation and in breach of Article 76 of the Constitution, repeal of the provision contained in that you, who should have been a mere compilation and coordination (2 rec. Prince.). Besides the issue of settlement of charges under appeal (3 rec. Prince.).
7. In the opinion of the Board, matters sub a, b, c, are unfounded. Founded
is, however, the question d.
7.1. Can not share in the first place, in fact, the prospect - already rejected by the Court of argomentatamente again - an implied repeal occurred due to incompatibility of the most frequently mentioned in article 8, No 2, l. 154/1981, reflecting the new regulatory framework of the national health service introduced by Legislative Decree no. 502/1992.
As repeatedly stated in its judgments in 1631/99, 8187 and 16205/00, from which there is no reason to depart, has not failed, by the said Decree. 1992, inspired the specific reason because of incompatibility for the office of mayor of the staff of USL in because, while operators of such powers nell'arretramento Health Units (ASL hours) on the ground, at the advancement of the powers of regions, within the framework of the same decree. in 1992 (see article 2, paragraph 14 , as well as better defined in Articles 3 and 4 ter of the next Leg. 229/1999), the relationship between communication and ASL have not been completely severed, remaining instead in the hands of the mayor, alone or as part of Conference of Mayors, a important role in the formation of the program, the address health and financial audit of the ASL, by the immanence in the component of the hospital elected mayor of a possible conflict of interest for the coincidence of quality controlled and controller structure .
7.2. Nor is it seriously call into question the traceability in this case it is due to the prediction of incompatibility sub Article 8 No 2, l. 154/1981 cit.
In view of the cross-appellant - as the cause of incompatibility in respect of the health agreement, referred to the office of mayor of the municipality, "whose territory coincides with the USL, whose territory encompassed by the 'or the municipality with a population of more than 30,000 people who "helps to establish the Health Trust" - none of these situations occurs in respect of the Mayor of the Municipality of Civitanova Marche. Expected: a) that the territory of that municipality does not coincide with that of ASL (which depends on Marinelli), or b) it covers, nor c) the Municipality of Civitanova may be relevant as part of an association of municipalities " that "helps to establish the Health Trust," because the figure of organizzatoria 'Association of Municipalities, "for this purpose provided by law 833/78 health, was abolished by the legislature in 1992.
But it is evident that the removal to the contrary the figure organizzatoria the Association of Municipalities does not erase the fact of inclusion of the Municipality of Civitanova, with others in the same spatial reference ASL (supra), that fulfill, however, against Marinelli because of its professional quality, incompatibility envisaged in Article 8, No 2, l. 154/1981 for the mayor of the municipality whose territory coincides, albeit partially (id est encompassed that is wider) of ASL to which the election.
7.3. Manifestly inconsistent then the question of the constitutionality of the provision cited above. In correlative perspectives, the defense of Marinelli indeed moving from the premise that has been severed by legislative decree. 502/1992 any relationship between USL and the City, through which "there is no reason why the mayor of a municipality no longer has any ability to influence the life management ASL can not be simultaneously also appointed to the same professional. "
But such a premise is, as already demonstrated, erroneous, that are swept up in the root corollaries that he would take the point of reasonableness of the provision in question.
7.4. Ascertained at this point that the Court has done well to consider the territorial force (the date of the elections) and report the elected mayor of the Municipality of Civitanova Marche the cause of incompatibility in the repeatedly invoked Article 8 l. 154/1981, should be considered whether it had then, conversely, incorrectly, as claimed by the applicant in the main, the view that - despite the well established condition of incompatibility in respect of subsisting Marinelli from the same peacefully and not removed within a period referred to 'Article 20 of Law 265/1999 - the imposition of disqualification of an elected remain, however, prevented the application of jus in superveniens, to repeal the cases of incompatibility.
7.4. On this point, the Board believes based censorship Gaetani.
According to the firm address of this Court, once established, as in this case, the existence of a case of incompatibility to elected office and his failure to remove within the law, is irrelevant at the time of the judicial decision that has failed may be less due to incompatibility, which has, however, explained that its effects do not tolerate late removal (see . numbers 3508/93, 1465/95, 3684/00).
Indeed, the commencement of the action, under Article 9 bis, paragraph 3 of Presidential Decree 570/1960, as supplemented by the law firm retained by the law 1147/1966 and 154/1981, defines and "crystallizes" the situation (although not most at the moment the action was brought election, although at the end of the tenth day following such commencement, to effetto dell'intervento correttivo, in sentenza 160/1997 della Corte costituzionale, e del successivo intervento adeguativo del legislatore, con il citato articolo 20 l. 265/1999); restando con ciò, di conseguenza, esclusa sia la possibilità che l'eletto adempia tardivamente all'obbligo di rimuovere la causa di incompatibilità, sia la possibilità di rilevanza di altre situazioni legittimanti che sopravvengono dopo la domanda giudiziale (cfr. pure 16205/00).
Né il principio così enunciato può tollerare deroga - come presupposto dalla Corte di appello - quando, e per il solo fatto, che la nuova situazione legittimante sia costituita, come nel caso che ne occupa, da una norma sopravvenuta di abrogazione of the former grounds of incompatibility, which resulted in the disqualification of an elected representative.
The reference is specifically Article 274 of Legislative Decree no. 267/2000, which has just repealed the law 154/1981 that extent.
But the rule can not be at issue in the trial in progress, as it usually occurred, in substance, that can not be made for the future, let alone could neutralize situations (as mentioned) have "crystallized" for revocation, in the absence of specific provision intertemporal, specifically to enable the application of the ius novum also in the running processes not yet defined by res judicata (as, in its time, for example, Article 12 l. 154/1981 with regard to innovative discipline introduced by the law).
7.5. Consumption remains the objection of unconstitutionality of the said Article 274 l. 267/2000, for excessive delegation, the demonstrated applicability of that rule in this case, which makes it unacceptable to irrelevance, the correlative question.
7.6. It remains also absorbed the remainder of the complaint in order to Gaetani settlement of costs in the trial court, having such expenses in any event be restated as a result of the novum iudicium consequent to acceptance of the first main reason for the appeal.
8. In conclusion, it should be accepted the first plea of \u200b\u200bthe main action, con assorbimento dei suoi mezzi residui, ed integralmente respinto il ricorso incidentale.
9. L'accoglimento del riferito motivo comporta la cassazione della sentenza impugnata e la decisione della causa nel merito con la conseguente declaratoria di decadenza dell'eletto sindaco per sussistenza e mancata rimozione della causa di incompatibilità sub articolo 8, comma 1, n. 2, l. 154/1981, applicabile ratione temporis alla fattispecie.
10. Sussistono giusti motivi per compensare tra le parti le spese dell'intero giudizio.
P.Q.M.
La Corte riunisce i giudizi; rigetta il ricorso incidentale ed accoglie il primo motivo del ricorso principale, con assorbimento dei suoi due mezzi residui; cassa la sentenza contested and, deciding the case on its merits, granting the application and declare the office as the elected mayor of the Municipality of Civitanova Marche.
compensation between the parties the costs of the entire trial.
1. With the three main reasons for the appeal, the Gaetani, respectively, argues that the Territorial Court erred in giving retroactive effect to the supervening norm (Article 274 of Legislative Decree no. 267/2000) is repealed due to incompatibility of the sub-article 8, paragraph 1 No 2, l. 154/1981; not to detect, in the alternative, not manifestly unfounded, the question of Article 274 of the said decree. 267/2000 to violation of Article 76 of the Constitution; not in place, however, the legal costs to be borne by Marinelli, who had given cause to exist while refusing his condition of incompatibility.
2. With the four complaints that make up the cross-appeal, the Marinelli, in turn, criticizes the Board of Appeal for not having detected the inadmissibility of the popular species in the proposal which, in the absence of concrete due to incompatibility sub article 8, paragraph 1, no 2, l. 154/1981, the repeal of that rule occurred under Legislative Decree. 502/1992, that its unconstitutionality, if found to be in force for conflict with Articles of the Constitution
3:51 3. The two actions must be brought together under Article 335 cpc
4. Should examine the preliminary objection of lack of integrity of an adversarial action against the prosecutor, suggested in opening the defense of Marinelli.
The exception is, however, unfounded, since the prosecutor - who was the President of the Court has ordered promptly notify the application in the first instance - then ritually, however, participated in the appeal stage, where he concluded on the merits, asking acceptance of the appeal.
5. It 'still ruling the question of admissibility of the people, which in this case applied for a declaration of revocation of an elected mayor.
argues, in fact, for this profile, the defense of the elect that the action brought by Gaetani is not eligible for lack of legal basis, as the popular action - according to Article 9 bis DPR 570/1960 - could only be directed to enforce the forfeiture against advisers municipal or the disqualification in respect of the mayor, and therefore could not be brought to demand the forfeiture of an elected office as mayor.
But this reading of the reference standard can not be shared, given the coincidence of an advisor with the office of mayor in the electoral system requirement in Article 9 a 154 and the resulting traceability also quoted the mayor (in its capacity as a competitor consigliere) dell'azione popolare per decadenza dalla carica elettiva prevista appunto, per i consiglieri in genere. Il che trova, del resto, conferma anche nel successivo d.lgs. 267/2000, il t.u. di coordinamento delle disposizioni sull'ordinamento degli enti territoriali e sul sistema di elezione dei correlativi organi, il cui articolo 70, a sua volta, ribadisce che l'azione per la decadenza della carica di sindaco può essere promossa, dinnanzi al Tribunale, da qualsiasi cittadino elettorale.
6. Nel merito, le altre questioni sollevate dalla parti attengono, in ordine di priorità logica:
a) alla vigenza della causa di incompatibilità sub articolo 8 l. 154/1981 alla data delle elezioni per cui è causa (3 rec. Incidental);
b) its actual application to the case (2 hack.)
c) the proposed unconstitutionality of the said Article 8 l. 154/81, if applicable and relevant in the trial court (4 hack.)
d) the applicability to proceedings in the course of jus superveniens (Article 274 of Legislative Decree no. 267/2000) repeal Article 8 l. 154/1981 (held by the Court on the merits and disputed with the first ground of the rich. Princip.)
s) in the alternative, the suspected unconstitutional, for excessive delegation and in breach of Article 76 of the Constitution, repeal of the provision contained in that you, who should have been a mere compilation and coordination (2 rec. Prince.). Besides the issue of settlement of charges under appeal (3 rec. Prince.).
7. In the opinion of the Board, matters sub a, b, c, are unfounded. Founded
is, however, the question d.
7.1. Can not share in the first place, in fact, the prospect - already rejected by the Court of argomentatamente again - an implied repeal occurred due to incompatibility of the most frequently mentioned in article 8, No 2, l. 154/1981, reflecting the new regulatory framework of the national health service introduced by Legislative Decree no. 502/1992.
As repeatedly stated in its judgments in 1631/99, 8187 and 16205/00, from which there is no reason to depart, has not failed, by the said Decree. 1992, inspired the specific reason because of incompatibility for the office of mayor of the staff of USL in because, while operators of such powers nell'arretramento Health Units (ASL hours) on the ground, at the advancement of the powers of regions, within the framework of the same decree. in 1992 (see article 2, paragraph 14 , as well as better defined in Articles 3 and 4 ter of the next Leg. 229/1999), the relationship between communication and ASL have not been completely severed, remaining instead in the hands of the mayor, alone or as part of Conference of Mayors, a important role in the formation of the program, the address health and financial audit of the ASL, by the immanence in the component of the hospital elected mayor of a possible conflict of interest for the coincidence of quality controlled and controller structure .
7.2. Nor is it seriously call into question the traceability in this case it is due to the prediction of incompatibility sub Article 8 No 2, l. 154/1981 cit.
In view of the cross-appellant - as the cause of incompatibility in respect of the health agreement, referred to the office of mayor of the municipality, "whose territory coincides with the USL, whose territory encompassed by the 'or the municipality with a population of more than 30,000 people who "helps to establish the Health Trust" - none of these situations occurs in respect of the Mayor of the Municipality of Civitanova Marche. Expected: a) that the territory of that municipality does not coincide with that of ASL (which depends on Marinelli), or b) it covers, nor c) the Municipality of Civitanova may be relevant as part of an association of municipalities " that "helps to establish the Health Trust," because the figure of organizzatoria 'Association of Municipalities, "for this purpose provided by law 833/78 health, was abolished by the legislature in 1992.
But it is evident that the removal to the contrary the figure organizzatoria the Association of Municipalities does not erase the fact of inclusion of the Municipality of Civitanova, with others in the same spatial reference ASL (supra), that fulfill, however, against Marinelli because of its professional quality, incompatibility envisaged in Article 8, No 2, l. 154/1981 for the mayor of the municipality whose territory coincides, albeit partially (id est encompassed that is wider) of ASL to which the election.
7.3. Manifestly inconsistent then the question of the constitutionality of the provision cited above. In correlative perspectives, the defense of Marinelli indeed moving from the premise that has been severed by legislative decree. 502/1992 any relationship between USL and the City, through which "there is no reason why the mayor of a municipality no longer has any ability to influence the life management ASL can not be simultaneously also appointed to the same professional. "
But such a premise is, as already demonstrated, erroneous, that are swept up in the root corollaries that he would take the point of reasonableness of the provision in question.
7.4. Ascertained at this point that the Court has done well to consider the territorial force (the date of the elections) and report the elected mayor of the Municipality of Civitanova Marche the cause of incompatibility in the repeatedly invoked Article 8 l. 154/1981, should be considered whether it had then, conversely, incorrectly, as claimed by the applicant in the main, the view that - despite the well established condition of incompatibility in respect of subsisting Marinelli from the same peacefully and not removed within a period referred to 'Article 20 of Law 265/1999 - the imposition of disqualification of an elected remain, however, prevented the application of jus in superveniens, to repeal the cases of incompatibility.
7.4. On this point, the Board believes based censorship Gaetani.
According to the firm address of this Court, once established, as in this case, the existence of a case of incompatibility to elected office and his failure to remove within the law, is irrelevant at the time of the judicial decision that has failed may be less due to incompatibility, which has, however, explained that its effects do not tolerate late removal (see . numbers 3508/93, 1465/95, 3684/00).
Indeed, the commencement of the action, under Article 9 bis, paragraph 3 of Presidential Decree 570/1960, as supplemented by the law firm retained by the law 1147/1966 and 154/1981, defines and "crystallizes" the situation (although not most at the moment the action was brought election, although at the end of the tenth day following such commencement, to effetto dell'intervento correttivo, in sentenza 160/1997 della Corte costituzionale, e del successivo intervento adeguativo del legislatore, con il citato articolo 20 l. 265/1999); restando con ciò, di conseguenza, esclusa sia la possibilità che l'eletto adempia tardivamente all'obbligo di rimuovere la causa di incompatibilità, sia la possibilità di rilevanza di altre situazioni legittimanti che sopravvengono dopo la domanda giudiziale (cfr. pure 16205/00).
Né il principio così enunciato può tollerare deroga - come presupposto dalla Corte di appello - quando, e per il solo fatto, che la nuova situazione legittimante sia costituita, come nel caso che ne occupa, da una norma sopravvenuta di abrogazione of the former grounds of incompatibility, which resulted in the disqualification of an elected representative.
The reference is specifically Article 274 of Legislative Decree no. 267/2000, which has just repealed the law 154/1981 that extent.
But the rule can not be at issue in the trial in progress, as it usually occurred, in substance, that can not be made for the future, let alone could neutralize situations (as mentioned) have "crystallized" for revocation, in the absence of specific provision intertemporal, specifically to enable the application of the ius novum also in the running processes not yet defined by res judicata (as, in its time, for example, Article 12 l. 154/1981 with regard to innovative discipline introduced by the law).
7.5. Consumption remains the objection of unconstitutionality of the said Article 274 l. 267/2000, for excessive delegation, the demonstrated applicability of that rule in this case, which makes it unacceptable to irrelevance, the correlative question.
7.6. It remains also absorbed the remainder of the complaint in order to Gaetani settlement of costs in the trial court, having such expenses in any event be restated as a result of the novum iudicium consequent to acceptance of the first main reason for the appeal.
8. In conclusion, it should be accepted the first plea of \u200b\u200bthe main action, con assorbimento dei suoi mezzi residui, ed integralmente respinto il ricorso incidentale.
9. L'accoglimento del riferito motivo comporta la cassazione della sentenza impugnata e la decisione della causa nel merito con la conseguente declaratoria di decadenza dell'eletto sindaco per sussistenza e mancata rimozione della causa di incompatibilità sub articolo 8, comma 1, n. 2, l. 154/1981, applicabile ratione temporis alla fattispecie.
10. Sussistono giusti motivi per compensare tra le parti le spese dell'intero giudizio.
P.Q.M.
La Corte riunisce i giudizi; rigetta il ricorso incidentale ed accoglie il primo motivo del ricorso principale, con assorbimento dei suoi due mezzi residui; cassa la sentenza contested and, deciding the case on its merits, granting the application and declare the office as the elected mayor of the Municipality of Civitanova Marche.
compensation between the parties the costs of the entire trial.
