JUDGMENT NO. 50

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA;

Judges: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has pronounced the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of the Law of the Autonomous Province of Bolzano No. 4 of May 8, 2020 (Measures for containing the spread of the SARS-COV-2 virus during the resumption of activities), initiated by the Ordinary Court of Bolzano, Second Civil Division, in the proceedings between M. B. and the Autonomous Province of Bolzano, by order of May 12, 2023, registered under no. 124 of the register of orders for 2023 and published in the Official Gazette of the Republic No. 39, first special series, of the year 2023.

Having regard to the instruments of constitution of M. B. and the Autonomous Province of Bolzano;

Having heard, at the public hearing of February 21, 2024, Judge Giovanni Pitruzzella, Rapporteur;

Having heard the lawyers Alessandro Fusillo for M. B. and Lukas Plancker for the Autonomous Province of Bolzano;

Deliberated in the council chamber of February 21, 2024.

Statement of Facts

1.– By order of May 12, 2023, registered under no. 124 of the register of orders for 2023, the Ordinary Court of Bolzano, Second Civil Division, raised, with reference to Article 117, second paragraph, letter q), of the Constitution, a question of constitutional legitimacy of the Law of the Autonomous Province of Bolzano No. 4 of May 8, 2020 (Measures for containing the spread of the SARS-COV-2 virus during the resumption of activities).

1.1.– The referring court states that:

– it was seized, by two separate appeals, by M. B., in his capacity as managing partner and legal representative of the company «Pizzeria B. S.a.s. di B. D. & Co.», and by the latter company, for the annulment of orders No. 69/SG/2022-001 and No. 69/SG/2022-002 of January 17, 2022, by which the Autonomous Province of Bolzano, on the one hand, ordered them to pay, jointly and severally, the pecuniary administrative penalty of €400.00 (plus €12.00, as expenses) and, on the other hand, ordered the suspension for ten days of the activity carried out by the offender (from January 19 to 28, 2022);

– the contested injunction orders were issued following the report of ascertainment by the Merano Company of the Finance Guard No. 000044 of November 26, 2021, by which the military had contested that M. B. had not requested clients to produce the so-called green pass, necessary for table service inside the premises;

– the penalties were imposed for violation of Articles 3 and 4 of Decree-Law No. 19 of March 25, 2020 (Urgent measures to deal with the epidemiological emergency from COVID-19), converted, with amendments, into Law No. 35 of May 22, 2020, of the Provincial Law of Bolzano No. 4 of 2020, as well as of the contingent and urgent order of the President of the Autonomous Province of Bolzano No. 28 of July 30, 2021 (Further urgent measures for the prevention and management of the epidemiological emergency from COVID-19);

– in both proceedings, the appellants contested the legitimacy of the contested injunction orders on the basis of the following grounds: a) nullity for failure to hear M. B., in violation of Article 7 of the Law of the Autonomous Province of Bolzano No. 9 of January 7, 1977 (Procedural rules for the application of administrative penalties), and for failure to translate the notice of the violation into German; b) lack of active standing of the Autonomous Province, «due to the jurisdiction of the Government Commissariat of Bolzano in relation to the imposition of penalties for violations of national provisions to combat the spread of the Covid-19 pandemic»; c) lack of passive standing of M. B., in relation «to the imposed suspension of activity as he is not the holder of the same»; d) nullity of the injunction orders «due to the threat of penalty» of the revocation of the license, not provided for by state law; e) «lack of appointment» of M. B. by the Ministry of Health as the person responsible for the processing of sensitive data for the purposes of controlling green passes; f) «prevalence of European standards and international law» over state provisions regarding mandatory vaccination and green certification; g) constitutional illegitimacy «of the declaration of a state of emergency by the Council of Ministers issued by provision» of January 31, 2020, for conflict with Articles 78 and 95 of the Constitution; h) constitutional illegitimacy «of green certification», for conflict with Article 13 of the Constitution; i) illegitimacy of the penalty because it concerns conduct committed in a state of necessity and therefore exculpated, pursuant to Article 4 of Law No. 698 of November 24, 1981 (Amendments to the criminal system); l) non-existence of a reiteration of violations «that may justify the suspension of activity»; m) absence of the requirements for the application of the penalty of suspension of activity for ten days, pursuant to Articles 9-bis and 13 of Decree-Law No. 52 of April 22, 2021 (Urgent measures for the gradual resumption of economic and social activities in compliance with the needs to contain the spread of the COVID-19 epidemic), converted, with amendments, into Law No. 87 of June 17, 2021;

– having constituted itself in both proceedings, the Autonomous Province of Bolzano contested «in fact and in law the numerous exceptions» raised by the appellants; the proceedings were joined and the parties were granted a period to take a position regarding the raised issue «of possible constitutional illegitimacy» of the Provincial Law of Bolzano No. 4 of 2020.

1.2.– Having stated the above as a matter of fact, the Court of Bolzano believes that a question of constitutional legitimacy of the aforementioned provincial law is "raised”, as the matter object of the provincial legislative intervention «falls under the exclusive legislative competence of the State by virtue of "international prophylaxis” […], which includes any measure aimed at combating an ongoing health pandemic, or at preventing it».

The provincial law in question would constitute «the normative framework by virtue of which» the aforementioned contingent and urgent order No. 28 of 2021 was issued, which, in point 7 (restaurant and hotel section), provides as follows: «the catering activities referred to in Chapter II.D of Annex A of Provincial Law No. 4 of May 8, 2020, carried out by any business, are permitted with consumption seated at the table, or at the counter, in compliance with the safety measures referred to in Annex A of the aforementioned provincial law. Consumption at the table indoors is permitted only upon presentation of the green certification referred to in point 33».

The latter – continues the Court of Bolzano – provides that «for the purposes of this order, green certification means the certification issued pursuant to Decree-Law No. 52 of April 22, 2021, converted into Law No. 87 of June 17, 2021, and the DPCM of June 17, 2021, proving one of the following circumstances: a) the state of having been vaccinated against SARS-CoV-2; b) recovery from SARS-CoV-2 infection; c) having taken a test for the detection of SARS-CoV-2 with a negative result. The exhibition of the aforementioned certifications is required by the operators of the activities for which they are provided».

Therefore, regarding relevance, according to the referring court, «the standard censored in this case is the legal basis on which» the two contested orders are based: in particular, the penalties would be based «primarily on the provisions» of the Provincial Law of Bolzano No. 4 of 2020 (and on the contingent and urgent order No. 28 of 2021), «with mere reference to the state legislation in relation to the pecuniary penalties» referred to in Article 4 of Decree Law No. 19 of 2020, as converted.

«Specifically» – continues the referring court – pursuant to Article 1, paragraph 36, of the Provincial Law of Bolzano No. 4 of 2020, «[t]he failure to comply with the measures referred to in this law shall be penalised in accordance with Article 4 of Decree-Law No. 19 of March 25, 2020», which would regulate pecuniary penalties, while the ancillary penalty of suspension of activity would be regulated by the subsequent paragraph 37 of the same Article 1, as well as by the decree of the President of the Province No. 25 of August 3, 2020 (Regulation concerning the discipline of ancillary administrative penalties for Covid-19).

The eventual «declaration of unconstitutionality of the standard» would therefore determine the immediate revocation of the contested penalty measures, «as they would therefore be without a normative basis and thus in violation of the principle of legality» referred to in Article 1 of Law No. 689 of 1981, «with the consequent right of the appellants to reclaim the sums possibly already paid and to act in order to propose a claim for damages arising from the illegitimate suspension of the activity ordered».

1.3.– The question of constitutional legitimacy, moreover, would appear «well-founded», in light of what this Court stated in judgment No. 37 of 2021, according to which, in the face of «highly contagious diseases capable of spreading globally, "logical reasons, before legal ones” (judgment No. 5 of 2018) root in the constitutional system the need for a unitary discipline, of a national nature, suitable to preserve the equality of persons in the exercise of the fundamental right to health and to simultaneously protect the interest of the community (judgments No. 169 of 2017, No. 338 of 2003 and No. 282 of 2002)»; and this conclusion may «concern not only the quarantine measures and the further restrictions imposed on daily activities, as potential sources of the spread of contagion, but also the therapeutic approach; the criteria and methods of detecting contagion among the population; the methods of collecting and processing data; the supply of drugs and vaccines, as well as the plans for the administration of the latter, and so on».

The a quo judge adds that this Court has expressed itself in the same sense with the subsequent judgment No. 164 of 2022, deciding the conflict of attribution between entities raised by the Autonomous Province of Bolzano in relation to certain acts of the Guarantor for the protection of personal data concerning the processing provided by the same Province precisely in the matter of green certification for COVID-19.

In that ruling – continues the referring court – it was stated that the aforementioned green certification has «the purpose of limiting the spread of contagion, allowing interaction between people in public or public places only if the latter, being vaccinated, recovered, or tested with negative results for COVID-19, present themselves as vectors of the disease with a lower probability rate»; and that the discipline of the green pass is extraneous to the scope of competences put forward by the Autonomous Province of Bolzano as the basis of the conflict, having already been clarified, with judgment No. 37 of 2021, that "any measure aimed at combating an ongoing health pandemic, or at preventing it” should be referred to the exclusive state legislative competence in the matter of international prophylaxis, since there cannot be «any space for adaptation of the state legislation to the regional reality, which has not been previously established by state legislation».

The Court of Bolzano then observes that, pursuant to Article 3 of Decree-Law No. 19 of 2020, as converted, the regions, in relation to specific supervening situations of aggravation of the health risk that occurred in their territory or in a part thereof, could introduce further restrictive measures among those referred to in Article 1, paragraph 2, of the same decree-law exclusively within the scope of their competences «and without affecting productive activities and those of strategic relevance for the national economy»; this, however, only «pending the adoption of the decrees of the President of the Council of Ministers referred to in Article 2, paragraph 1, and with effectiveness limited until that moment».

According to the referring court, therefore, at the time of promulgation of Provincial Law No. 4 of 2020, the legislative and regulatory power «residual provided to the Regions» by the aforementioned Article 3 of Decree Law No. 19 of 2020, as converted, should be considered «exhausted», given the adoption of the aforementioned PCM decrees, «so there was no space for an intervention» by the Autonomous Province of Bolzano.

Finally, and «for the sake of completeness», it could not even be stated that the provincial «standard» has limited itself to reproducing the state one verbatim, since, in relation to the discipline of the ancillary penalty, the former would bear «a different editorial framework» compared to the latter: in fact, while Article 4, paragraph 2, of Decree-Law No. 19 of 2020, as converted, provides for the penalty of closure of the establishment or activity from five to thirty days, Article 1, paragraph 37, of the Provincial Law of Bolzano No. 4 of 2020 provides for the suspension of activity for ten days.

Hence, therefore, the impossibility of operating an interpretation in conformity with the Constitution.

2.− The Autonomous Province of Bolzano has constituted itself in court, objecting to the inadmissibility and lack of merit of the question.

2.1.− According to the Autonomous Province, it would be inadmissible, first of all, because, having as its object the entire Provincial Law of Bolzano No. 4 of 2020, it would introduce «a general judgment of constitutional legitimacy in the main way […] also never promoted by the State».

In this way, the referring court would propose, «on its own initiative, a judgment concerning a conflict of attribution between powers, which can only be proposed by the State or the Regions […], but certainly not […] in a completely generic and at least doubtful way by a judicial authority».

Moreover, the incidental judgment would be subject to rules different from those proper to the conflict of attribution, and among these there would be the rule that «[t]here must be […] an identity between the party's request and the referring order of the Judge; i.e., the Judge must refer to the Court the same question that was raised by the party through a specific request».

In the present case, the opposing parties in the a quo proceeding would have limited themselves to generically contesting the constitutional illegitimacy «of the declaration of a state of emergency by the Council of Ministers issued by the provision of January 31, 2020», for conflict with Articles 78 and 95 of the Constitution, as well as «of green certification», for conflict with Article 13 of the Constitution.

2.2.− The question, then, would be inadmissible due to lack of motivation on the non-manifest groundlessness, since the arguments of the referring court would not reach the minimum threshold of clarity and completeness necessary to allow its scrutiny on the merits.

2.3.− Again, the question would be inadmissible due to an incomplete reconstruction of the normative framework of reference.

More specifically, the reasoning would be lacking because it «disregards the true normative source of the contingent and urgent order No. 28 of July 30, 2021» of the President of the Autonomous Province of Bolzano, «accused of presumed unconstitutionality, which is certainly not the censored provincial law», but Article 52, paragraph 2, of the Decree of the President of the Republic No. 670 of August 31, 1972 (Approval of the consolidated text of the constitutional laws concerning the special statute for Trentino-Alto Adige), «glaringly» ignored by the referring court and according to which the President of the Province «[a]dopts contingent and urgent measures in the matter of public safety and hygiene in the interest of the populations of two or more municipalities».

Again, the power of the Presidents of the regions and autonomous provinces to introduce restrictions to the national emergency discipline would be expressly provided for also by Article 1, paragraph 16, of Decree-Law No. 33 of May 16, 2020 (Further urgent measures to deal with the epidemiological emergency from COVID-19), converted, with amendments, into Law No. 74 of July 14, 2020, and, subsequently, by Article 1, paragraph 2, letter a), of Decree-Law No. 125 of October 7, 2020, containing «Urgent measures connected with the extension of the declaration of a state of epidemiological emergency from COVID-19, for the postponement of electoral consultations for the year 2020 and for the operational continuity of the COVID alert system, as well as for the implementation of Directive (EU) 2020/739 of June 3, 2020, and urgent provisions in the matter of tax collection», converted, with amendments, into Law No. 159 of November 27, 2020, according to which, should the epidemiological situation change, pending the adoption of the decrees of the President of the Council of Ministers, the regions could introduce further restrictive measures.

It should also be recalled, in this regard, that, «within the scope of the matter of "public establishments”», Article 20, paragraph 1, of the special statute attributes to the President of the Province the powers of public security, adding, moreover, that, for the purposes of the exercise of these attributions, the same uses the state police bodies or the local, urban and rural police.

It should finally be recalled, «for the record», that, by decree of the Head of the Civil Protection Department, the President of the Autonomous Province of Bolzano was appointed «implementing subject» pursuant to Article 1, paragraph 1, of the order of the same Head of the Department No. 630 of February 3, 2020 (First urgent civil protection interventions in relation to the emergency related to the health risk connected with the emergence of pathologies deriving from transmissible viral agents), «exercising by virtue of this assignment typical functions of a body of central government».

The referring court would have «totally ignored this essential regulatory framework, within which the dispute, which gave rise to the issuance of the referring order, should have been placed».

2.4.− In relation to the specific point of penalties for violation of emergency pandemic provisions, then, the state ones would be provided for by Article 4 of Decree-Law No. 19 of 2020, as converted, while Provincial Law of Bolzano No. 4 of 2020 and the decree of the President of the Province No. 25 of 2020, as a «pendant normative at the provincial level», would have limited themselves to specifying the «application discipline of the aforementioned penalties, without innovating or reforming the normative structure of the state legislation, without introducing a system of management of the epidemic parallel to that outlined by the state standards, and diverging from it, without providing for new or different punishable cases, not already previously provided for by state legislation».

Article 1, paragraph 36, of the Provincial Law of Bolzano No. 4 of 2020 – adds the Autonomous Province – refers to Article 4 of Decree-Law No. 19 of 2020, as converted, and it would be a reference that is not merely receptive or static, but dynamic, given that «any changes possibly made to the standards referred to» would necessarily also be reflected «on the referring standard».

The error in which the referring court incurred would then be evident, «when it a priori claims» that all the penalties «would originate primarily» from the provisions of the censored provincial law and the contingent and urgent order of the President of the Autonomous Province of Bolzano No. 28 of 2021, «without specifying that the intervention of the provincial legislator, as far as the sanctioning regime is concerned, has done nothing other than reproduce verbatim – albeit in the exercise [of] its constitutionally recognised instruments – what was already established by state legislation».

2.5.– The question would be inadmissible, finally, for failure to attempt an interpretation in conformity with the Constitution.

According to the referring court, the latter would not be possible due to the different editorial framework brought by the state and provincial provisions.

However, the a quo judge would have a different hermeneutic option left, by virtue of the «general reference standard» («not circumscribed solely to the application of pecuniary penalties») referred to in Article 1, paragraph 36, of the Provincial Law of Bolzano No. 4 of 2020, by virtue of which «[t]he failure to comply with the measures referred to in this law shall be punished in accordance with the provisions of Article 4 of Decree-Law No. 19 of March 25, 2020», a provision that would have rendered «not applicable the subsequent (at least implicitly conflicting or irreconcilable) paragraph 37, which contemplates a suspension period of ten days».

In any case, according to the Autonomous Province of Bolzano, even if it were considered «absolutely impossible or untraceable an adjusting interpretation», this could never lead to a declaration of constitutional illegitimacy of the entire provincial law, «but rather only» of its Article 1, paragraph 37, «in casu to be pronounced with a so-called "substitutive” decision in the part de qua that provides for the suspension of the activity for 10 days in contrast with the sanctioning interval» between five and thirty days contemplated by Article 4, paragraph 2, of Decree-Law No. 19 of 2020, as converted.

2.6.− On the merits, the question raised by the referring court would not be well-founded, because the judgment of this Court No. 37 of 2021 cited by it would not have «direct relevance to the thema decidendum of the present proceeding concerning the application of the contested administrative penalties».

In the case of the aforementioned judgment No. 37 of 2021, in fact, the constitutional illegitimacy of the provisions of the Valdostan law examined therein would have been declared «precisely because they replaced the regulatory sequence designed by the state legislator, imposing an autonomous and alternative one, which instead referred to the regional legislative provisions».

In the present case of the Law of the Autonomous Province of Bolzano, «concerning the application of administrative penalties», however, «a supposed opposition between the two legislations would not be in discussion, which if anything […] could have been the object of a main recourse of conflict of attribution, never proposed by the State».

On the other hand, «the punishable cases and the applicable penalties» would be identical, «with the exception of the (undoubtedly interpretatively surmountable) difference on the editorial framework», referred to in Article 1, paragraph 37, of the Provincial Law of Bolzano No. 4 of 2020.

3.− M. B., an appellant in one of the two proceedings joined in the a quo proceeding, has constituted itself in court, requesting the admissibility and well-foundedness of the question raised by the referring court.

3.1.− According to the private party, the invasion of the exclusive state legislative competence in the matter of international prophylaxis would be inferred not only from judgment No. 37 of 2021 cited by the referring court, but also from the constant constitutional jurisprudence, in light of which the «measures to combat global health scourges, falling within an area of international cooperation and collaboration, with particular reference to the European Union, can only be adopted at the national level», thus excluding the competence of regions and autonomous provinces.

3.2.− This being the case, according to the private party, the «European Union principles» would require this Court to disapply the provincial law in question, «to the extent that it imposed the possession of the green pass for access to catering establishments. Indeed, the provisions of the provincial law […] conflict with various provisions of European Union law, directly applicable in our legal system and mainly attributable» to the Charter of Fundamental Rights of the European Union as well as to the Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, ratified and made executive by Law No. 145 of March 28, 2001 (hereinafter: Oviedo Convention).

This would apply, in particular, to the principle of health self-determination referred to in Article 3 of the Charter of Fundamental Rights of the European Union – which would be directly applicable, the health and pharmaceutical matter falling within the competences of the European Union (Articles 4, paragraph 2, letter e, and 168, paragraph 4, of the Treaty on the Functioning of the European Union are cited) – and to Article 5 of the Oviedo Convention, «an integral part of European Union law».

As for the latter, then, «Articles 2 (prevalence of the individual interest over the collective one and of science) […]10 (right to privacy of private life), 11 (prohibition of discrimination on genetic grounds) and 26 (inviolability of the prohibition of discrimination on genetic grounds)» would also oppose the application of the provisions on the green pass, mandatory to access food and beverage establishments.

In relation to Articles 11 and 26 cited last, the private party states that the «unvaccinated have […] a genetic heritage different from those who have opted for inoculation since they have not developed, through vaccination, the cellular instructions for the synthesis of the spike protein and do not share the genetic modifications operated by vaccines […]. Consequently, the discrimination of the former by prohibiting access to workplaces and to study constitutes precisely the genetic discrimination prohibited by the Oviedo Convention and by the Universal Declaration on the Human Genome adopted by UNESCO on November 11, 1997».

3.3.− The provincial law in question would also violate the provisions of Regulation (EU) 2021/953 of the European Parliament and of the Council of June 14, 2021, on a framework for the issuance, verification and acceptance of interoperable vaccination, test and recovery certificates in relation to [the disease from] COVID-19 (EU digital COVID certificate) to facilitate the free movement of persons during the COVID-19 pandemic.

The European legislator would have been well aware of the possibility of abuse by the States and, in addition to expressly imposing respect for the Charter of Fundamental Rights of the European Union, would have been concerned, in recital no. 36, «to further clarify that direct or indirect discrimination of persons without a green pass (constituting proof of vaccination and/or a negative PCR swab) was to be considered prohibited even for persons who had chosen not to be vaccinated».

3.4.− By virtue of the considerations set out above, the private party has therefore concluded for the declaration of constitutional illegitimacy of Provincial Law of Bolzano No. 4 of 2020 and for the declaration, in any case, «of the inapplicability of the standards referred to in the aforementioned provincial law for conflict with the European Union standards better described in the preamble».

4.− By memorandum filed on January 31, 2024, the private party replied to the exceptions of inadmissibility raised by the Autonomous Province of Bolzano and insisted on the acceptance of the question of constitutional legitimacy raised by the Court of Bolzano.

Considerations of Law

l.− By order of May 12, 2023, registered under no. 124 of the register of orders for 2023, the Court of Bolzano, Second Civil Division, doubts, with reference to Article 117, second paragraph, letter q), of the Constitution, the constitutional legitimacy of the Provincial Law of Bolzano No. 4 of 2020, entitled «Measures for containing the spread of the SARS-COV-2 virus during the resumption of activities».

The provincial law in question consists of four articles – the first dedicated to the «[m]easures for the resumption of activities» and divided into thirty-seven paragraphs, the second to the establishment of an «[e]xpert commission», the third to the financial provisions and the fourth to its «[e]ntry into force» – and of five Annexes.

It, «in order to reconcile the protection of the freedoms and fundamental rights of persons with the need to combat and contain the spread of the SARS-COV-2 virus on the territory of the province of Bolzano», «regulates the gradual resumption of the freedom of movement of citizens, of economic activities and of social relations, compatibly with the measures to combat the spread of the virus» (Article 1, paragraph 1).