The scheme of regulation, after the approval of the State-Regions Conference, was awaiting the opinion of the Council of State and was about to be issued so that, after 5 years, Law 24/2017 (Gelli Bianco law) on insurance and car insurance would finally have full implementation. The Council of State, however, found some flaws in the preliminary investigation and suspended its opinion; therefore the timeframe will be longer. Who knows whether this might be the opportunity to improve the regulation scheme...
In our newsletter of 18 March 2022 we anticipated the content of the Ministry of Economic Development (MISE) regulation scheme, implementing Law no. 24/2017 (LINK).
In the meeting of 7 June 2022, the Council of State suspended the "expression of the opinion" required by law for the issuance of the regulation, pending the fulfillment of some obligations identified in the reasons of the provision. According to the Council of State, the Ministry of Economic Development simply consulted the stakeholders, rather than acquire the notice of each of them (also because these were identified in the law) as it was obliged to do. The Council of State considers that greater in-depth study is needed (ergo perhaps also the revision of the draft regulation) and the integration of the explanatory report.
The Council of State reports that ANIA – National Association of Insurance Companies, had sent a note to the Advisory Section for Regulatory Acts of the Council, expressing some remarks on the methods consultations were carried out, and expressing some points of dissent, which can be summarized below:
1 – the introduction of a mechanism, not provided for by the provision of the law that regulates the matter (Article 3, paragraph 7, of law n. 24/2017) of the bonus-malus type that is considered difficult to apply due to the multiannual duration of health coverage and the duration of claims' settlement (this position had already been reported in 2019 by Ivass – the Italian private insurance supervisor);
2 – the exhaustive indication of the exceptions that can be enforced against the injured party, without reference to the exceptions provided for by the Civil Code and to the burden of training of health personnel for the purposes of the validity of insurance coverage (Article 38 bis of Legislative Decree no. 152/2021);
3 – the provision of limitations on the right of withdrawal by the insurer not provided for by the legal provision governing the matter (Article 5-bis of law n. 24/2017);
4 – the lack of clarity of the provisions on the reserves to be set aside in the case of similar self-insurance measures, in particular with regard to the possibility of the health facility to use the funds or not (in the absence of specific constraints).
Actually, there are several remarks that can be made on the MISE draft regulation. To name a few:
– if the regulatory scheme had the ambition to promote the development of the insurance market and competition between insurers to reduce the price of premiums (at the moment there is, essentially, a single player on the Italian market), the objective does not seem attainable because the regulation produces different asymmetries between the structures that opt for self-insurance and those that opt for insurance, to the advantage of the former;
– the insurance structure can execute an insurance policy or adopt the so-called "similar measures" (self-insurance) but there are no penalties in case of non-compliance, with the result that in case of violation, except for the adoption of unspecified administrative measures, the injured parties are not protected;
– the possibility of subrogation by insurers is very limited, which would have the effect of lowering the price of premiums by reducing the difference between indemnities paid and amounts recovered: subrogation is admitted only in the event of willful misconduct or gross negligence, within a limitation period, within a predetermined amount equal to three times the health professional's annual salary;
– the mechanism of non-attachment (impignorabilità ), applicable according to reference under Article 1, paragraphs 5 and 5 bis, of Legislative Decree no. 9/1993 does not seem well regulated, in the sense that the non-attachment seems absolute, even if the injured parties are asking for payment!
Some of the problems of this scheme of regulation originate from the Gelli Bianco law. Who knows if the Council of State's decision and the necessary, effective, comparison with stakeholders do not lead to a new scheme of regulation that is more suited to the objectives of the law? As for the Gelli Bianco law, after 5 years from its entry into force, it can be said that it would also deserve an analysis and a broad revision, given that none of its objectives have been achieved.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.