JUDGMENT NO. 188
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of: President:
Augusto Antonio BARBERA
Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 4-ter, paragraphs 1, letter d), and 3, of Decree-Law No. 44 of 1 April 2021 (Urgent measures for containing the COVID-19 epidemic, concerning anti-SARS-CoV-2 vaccinations, justice and public competitions), converted, with amendments, into Law No. 76 of 28 May 2021, as inserted by Article 2, paragraph 1, of Decree-Law No. 172 of 26 November 2021 (Urgent measures for containing the COVID-19 epidemic and for the safe conduct of economic and social activities), converted, with amendments, into Law No. 3 of 21 January 2022, referred by the Regional Administrative Court for Lazio, fifth section, in the proceedings between D. P. and the Ministry of Justice, with order of 20 July 2022, registered at no. 35 of the 2024 orders register and published in the Official Gazette of the Republic No. 12, first special series, of the year 2024.
Having heard the Judge Rapporteur Filippo Patroni Griffi in the deliberation chamber on 15 October 2024;
Having deliberated in the deliberation chamber on 15 October 2024.
Facts
1.— By order of 20 July 2022, registered at no. 35 of the 2024 orders register, the Regional Administrative Court for Lazio, fifth section, raised, with reference to Articles 2, 3 and 32, second paragraph, of the Constitution, questions of constitutional legitimacy of Article 4-ter, paragraphs 1, letter d), and 3, of Decree-Law No. 44 of 1 April 2021 (Urgent measures for containing the COVID-19 epidemic, concerning anti-SARS-CoV-2 vaccinations, justice and public competitions), converted, with amendments, into Law No. 76 of 28 May 2021, as inserted by Article 2, paragraph 1, of Decree-Law No. 172 of 26 November 2021 (Urgent measures for containing the COVID-19 epidemic and for the safe conduct of economic and social activities), converted, with amendments, into Law No. 3 of 21 January 2022, insofar as it provides for Penitentiary Police personnel, as a result of failure to comply with the anti-SARS-CoV-2 vaccination obligation, suspension from service and loss of remuneration, and in any case the non-payment of a maintenance allowance.
1.1.— The referring judge explains that he was seized of the appeal brought by D. P., assistant chief coordinator of the Penitentiary Police serving at the Inter-district Office of External Penal Execution (UIEPE) of Cagliari, for the annulment of the immediate suspension order, prot. no. 01/2022 of 7 January 2022, of the Department for Juvenile Justice and Communities - Inter-district Office of External Penal Execution for Sardinia, issued following failure to comply with the COVID-19 vaccination obligation. The appellant, having stated that he works in an office occupied by three employees duly distanced from each other (one of whom is absent), argued that the suspension from service established by the norm for the professional category to which he belongs (Penitentiary Police) constitutes a clear disparity of treatment compared to other professional categories, given that the duties he actually performs in his capacity as assistant chief of the Penitentiary Police are partly comparable to those performed also by subjects belonging to different professions for which, however, under the same conditions, the vaccination obligation was not imposed. The impugned order, insofar as the suspension from service entails the non-payment of remuneration and any other form of compensation or emolument however designated, including those of a providential nature, would also entail a clear disparity of treatment compared to other cases of suspension of a public employee from service, in which the serviceman charged with a crime from which the loss of rank may result or subjected to arrest or any other precautionary measure is still guaranteed the payment of half of the fixed and continuous allowances.
In the proceedings before the TAR, the Ministry of Justice intervened, requesting the rejection of the appeal, given that the Administration acted in accordance with the provisions of the law on the matter. Furthermore, the professional and trade union association (ANIEF) and V. M., a marshal of the Guardia di Finanza serving under the Provincial Command of Reggio Emilia, recipient of a similar suspension order for failure to comply with the vaccination obligation, allegedly holding an interest, pursuant to Article 28 of Annex 1 (code of administrative procedure) to Legislative Decree No. 104 of 2 July 2010 (Implementation of Article 44 of Law No. 69 of 18 June 2009, delegating the government to reorganize the administrative procedure) to support the reasons of the main appellant, both insisting on the acceptance of the appeal subject to referral to this Court of the question of constitutional legitimacy of Article 4-ter of Decree-Law No. 44 of 2021, as converted.
The TAR states that it accepted the precautionary application, with an order of 25 February 2022, ordering that the appellant be paid a maintenance allowance equal to half of his salary.
1.2.— As regards relevance, it is highlighted that the impugned suspension order was issued pursuant to Article 4-ter, paragraph 3, of Decree-Law No. 44 of 2021, as converted, which, in expressly referring to remuneration and any other compensation or emolument however designated, would seem to express an all-encompassing concept, not susceptible to different interpretation, capable of excluding even the recognition of a maintenance allowance, even though the latter is not compensatory but assistance-based. This conclusion would also be supported by the special nature of the provision, which derogates from any other general provision laid down by law or collective bargaining.
Consequently, although suspension from service and remuneration may cease, through compliance with the vaccination obligation or in any case the cessation of the state of health emergency, the appellant would still have an interest in the removal of the effects of the impugned order and its consequences, so as to obtain the recovery of unpaid salaries for the period of suspension and in any case the payment of a maintenance allowance, as provided for by law in other cases of suspension from service.
1.3.— As regards non-manifest unfoundedness, the a quo judge observes the violation of Articles 2, 3 and 32, second paragraph, of the Constitution, considering the consequences that failure to comply with the vaccination obligation produces in the sphere of the unvaccinated employee "objectively unbalanced if considered within the necessary consideration of the other constitutional values involved, also considering the nature of the maintenance allowance, which is clearly assistance-based, in our legal system, generally granted in case of suspension from the employment relationship for disciplinary or precautionary reasons."
The provisions in question, in preventing unvaccinated Penitentiary Police personnel from performing their work, excluding any alternative solution and, finally, preventing them from enjoying a minimum subsistence to meet their primary needs of life, would violate the dignity of the person pursuant to Article 2 of the Constitution and would be disproportionate, in violation of Article 3 of the Constitution and Article 32, second paragraph, of the Constitution, as they would introduce "a sort of indirect coercion to comply with the obligation, placing the reluctant worker faced with the alternative of having to unwillingly undergo the vaccination he opposes, or suffer a state of prolonged indigence and significant compression of his usual standard of living."
The challenged provisions, in precluding the application of support measures, such as the maintenance allowance, would constitute a further violation of Article 3 of the Constitution, in terms of unreasonableness and disparity of treatment compared to other cases of worker suspension, disciplinary or precautionary, where the latter has committed (or is suspected of having committed) certain acts constituting a crime or in any case capable of also determining the imposition of disciplinary sanctions.
Reasons
1.— The TAR for Lazio, fifth section, raised, with reference to Articles 2, 3 and 32, second paragraph, of the Constitution, questions of constitutional legitimacy of Article 4-ter, paragraphs 1, letter d), and 3, of Decree-Law No. 44 of 2021, as converted, insofar as it provides for Penitentiary Police personnel, as a result of failure to comply with the anti-SARS-CoV-2 vaccination obligation, suspension from service and loss of remuneration, and in any case the non-payment of a maintenance allowance.
1.1.— The referring judge, while not contesting the legitimacy of the vaccination obligation, criticizes the consequences that failure to comply with the said obligation produces in the sphere of the worker.
In particular, the violation of Articles 2, 3, 32, second paragraph, of the Constitution is argued, as the challenged provisions, in preventing unvaccinated Penitentiary Police personnel from performing their work, prevent them from enjoying a minimum subsistence to meet their primary needs and those of their family unit, the worker not being able to rely on any form of economic support for a particularly significant period of time; in this way, an unreasonable balancing of constitutionally relevant interests would be achieved, with a consequent detriment to the value of the dignity of the person, and a sort of "indirect coercion" to comply with the vaccination obligation would be operated in fact, with consequent violation of the "individual's free determination in health matters."
The conflict with Article 3 of the Constitution would then be found also under the twofold aspect of violation of the principle of equality and unreasonableness, as the challenged provisions impose suspension from service with consequent loss of remuneration in the face of conduct not constituting a criminal or disciplinary offense and also preclude the application of those support measures that the legal system recognizes in cases of precautionary suspension of a worker involved in criminal and disciplinary proceedings for matters of objective gravity.
2.— The questions are unfounded.
3.— Under the rules laid down by the legislator to deal with the pandemic emergency, vaccination was an essential requirement for the exercise of the profession and for the performance of the work performed by the obliged subjects.
Consequently, as already observed by this Court, the suspension of the worker who had not complied with the vaccination obligation represented for the employer "the fulfillment of a named safety obligation, included in the contractual consideration" (Judgment No. 15 of 2023): this measure is, in fact, consistent with the safety obligation imposed on the employer by Article 2087 of the Civil Code and Article 18 of Legislative Decree No. 81 of 9 April 2008 (Implementation of Article 1 of Law No. 123 of 3 August 2007, concerning the protection of health and safety in the workplace). Similarly, on the side of the workers' position, the anti-SARS-CoV-2 vaccination fell within the range of health and safety care obligations prescribed by Article 20 of Legislative Decree No. 81 of 2008, as well as the prevention and control obligations established by Article 279 for workers engaged in particular activities.
The employer, therefore, was required to adopt the measures of suspension from service and remuneration of the worker from the moment of ascertainment of failure to comply with the vaccination obligation and until its fulfillment, or until the completion of the national vaccination plan or in any case until the end established by the law itself.
Failure to undergo vaccination, determining, in the aforementioned terms, the supervening and temporary inability for the employee to perform his duties, entailed the lapse (albeit temporary) of the functional consideration of the contract.
In application of the general principle of consideration, the absence of work performance renders the provision on the non-payment of remuneration, as well as any other compensation or emolument (Judgment No. 15 of 2023) not inconsistent with the invoked parameters.
4.— Nor can different conclusions be reached with specific reference to the non-payment of the maintenance allowance.
As already clarified by this Court, the effect established by the challenged provisions, pursuant to which the worker who has not complied with the vaccination obligation is not entitled, during the suspension period, to "remuneration or other compensation or emolument, however designated," justifies "also the non-payment to the suspended worker of a maintenance allowance (in an amount not exceeding half the salary, as, for example, provided for civilian employees of the State by Article 82 of Presidential Decree No. 3 of 1957, and in other cases by collective bargaining), considering that the worker decides not to be vaccinated by a free choice, reviewable at any time" (Judgment No. 15 of 2023).
Nor can the cases – invoked by the referring judge in order to support the violation of Article 3 of the Constitution in terms of unjustified disparity of treatment – in which suspension from service has been ordered following subjection to criminal or disciplinary proceedings, pursuant to Article 82 of Presidential Decree No. 3 of 10 January 1957 (Consolidated text of the provisions concerning the statute of civilian employees of the State) or the collective agreement of the sector, as established by Article 59 of Legislative Decree No. 29 of 3 February 1993 (Rationalization of the organization of public administrations and revision of the rules on public employment, pursuant to Article 2 of Law No. 421 of 23 October 1992) and then by Article 55 of Legislative Decree No. 165 of 30 March 2001 (General rules on the organization of work in the employ of public administrations), be considered valid points of comparison.
In these cases, in fact, suspension is a provisional measure, without a sanctioning nature and ordered cautiously in the public interest, destined to be overtaken by the exhaustion of parallel proceedings; this makes the comparison made by the a quo judge inappropriate (Judgment No. 15 of 2023). As highlighted by this Court in the aforementioned judgment, "the legislator's choice to equate those specific periods of work inactivity to actual performance is justified there by the social need for temporary support of the worker for the time required to define the related judgments and to verify his actual responsibility, not yet ascertained." Unlike these cases, where "the recognition of the maintenance allowance is justified in light of the need to ensure the worker support when the temporary impossibility of performance is determined by a unilateral renunciation by the employer to make use of it and by acts or behaviors that require to be ascertained with a view to the continuation of the relationship," in this case "it is the worker who decides to unilaterally withdraw from the safety conditions that make his work performance, in the aforementioned terms, legitimately exercisable."
5.— These conclusions – this Court has clarified in the same judgment – are not affected even if adhering to the thesis of the assistance-based, and not remunerative, nature of the maintenance allowance, as in any case the allocation to the employer, in a solidarity key, of a provision of an assistance-based nature, exceeding the rights connected to the employment relationship, in favor of the worker who has not intended to be vaccinated and who is therefore only temporarily unfit to perform his work activity, cannot be considered a constitutionally obligatory solution.
6.— In light of the considerations made, the raised questions of constitutional legitimacy, with reference to Articles 2, 3 and 32, second paragraph, of the Constitution, of Article 4-ter, paragraphs 1, letter d), and 3, of Decree-Law No. 44 of 2021, as converted, insofar as it provides for Penitentiary Police personnel, as a result of failure to comply with the anti-SARS-CoV-2 vaccination obligation, suspension from service and loss of remuneration, and in any case does not contemplate the payment of a maintenance allowance, must therefore be declared unfounded.
For these reasons
THE CONSTITUTIONAL COURT
declares unfounded the questions of constitutional legitimacy of Article 4-ter, paragraphs 1, letter d), and 3, of Decree-Law No. 44 of 1 April 2021 (Urgent measures for containing the COVID-19 epidemic, concerning anti-SARS-CoV-2 vaccinations, justice and public competitions), converted, with amendments, into Law No. 76 of 28 May 2021, as inserted by Article 2, paragraph 1, of Decree-Law No. 172 of 26 November 2021 (Urgent measures for containing the COVID-19 epidemic and for the safe conduct of economic and social activities), converted, with amendments, into Law No. 3 of 21 January 2022, raised, with reference to Articles 2, 3 and 32, second paragraph, of the Constitution, by the Regional Administrative Court for Lazio, fifth section, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 15 October 2024.
Signed:
Augusto Antonio BARBERA, President
Filippo PATRONI GRIFFI, Rapporteur
Roberto MILANA, Registrar
Filed with the Registry on 28 November 2024