JUDGMENT NO. 158
YEAR 2025
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
is composed of:
President: Giovanni AMOROSO;
Judges: 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, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following
JUDGMENT
in the constitutional legitimacy review proceeding concerning Article 1, paragraphs 12, 15, 36, and 37, of the Law of the Province of Bolzano of May 8, 2020, no. 4 (Measures for containing the spread of the SARS-COV-2 virus in the phase of resuming activities), as well as Annex A to the same provincial law, point II.D, number 8), brought by the Ordinary Court of Bolzano, First Civil Section, in the proceeding between D. B., in their capacity as general partner and legal representative of Ristorante Pizzeria B. sas di D. B. & co., and the Autonomous Province of Bolzano, with an order dated February 5, 2025, registered under no. 40 of the register of orders 2025 and published in the Official Gazette of the Republic no. 11, special series one, of the year 2025.
Having reviewed the statements of appearance of D. B., in their capacity as general partner and legal representative of Ristorante Pizzeria B. sas di D. B. & co., and of the Autonomous Province of Bolzano;
having heard Judge Rapporteur Giovanni Pitruzzella in the public hearing of September 23, 2025;
having heard the lawyers Andrea Lippi for D. B. and Alfonso Celotto for the Autonomous Province of Bolzano;
deliberated in the council chamber of September 23, 2025.
Facts Considered
1.– With an order dated February 5, 2025, registered under no. 40 of the register of orders 2025, the Ordinary Court of Bolzano, First Civil Section, raised questions of constitutional legitimacy regarding Article 1, paragraphs 12, 15, 36, and 37, of the Law of the Province of Bolzano of May 8, 2020, no. 4 (Measures for containing the spread of the SARS-COV-2 virus in the phase of resuming activities), as well as Annex A to the same provincial law, point II.D, number 8).
The challenged provisions – by establishing "the obligation incumbent on the owners and managers of catering services to use surgical masks by service personnel and all other collaborators in enclosed spaces, in the presence of other persons, irrespective of interpersonal distance," and by penalizing the violation of this obligation – are deemed to be in conflict with Article 117, second paragraph, letter q), of the Constitution.
1.1.– The referring court sets out the factual background as follows:
– D. B. filed an objection against the order by which the Autonomous Province of Bolzano ordered them, in their capacity as general partner and legal representative of Ristorante Pizzeria B. sas di D. B. & co., to pay the administrative fine of EUR 400.00, as well as the suspension of the exercised activity for ten days, because, inside the pizzeria premises and in the presence of other persons, neither the owner nor their employees were using "the surgical mask […] P.L. 4/2020, Annex A.II.D.8";
– the opponent was charged with violating Articles 3 and 4 of Decree-Law no. 19 of March 25, 2020 (Urgent measures to address the epidemiological emergency from COVID-19), converted, with amendments, into Law no. 35 of May 22, 2020, Provincial Law Bolzano no. 4 of 2020, and the Orders of the President of the Autonomous Province of Bolzano of July 30, 2021, no. 28, October 9, 2021, no. 32, and November 22, 2021, no. 34, all captioned "Further urgent measures for the prevention and management of the COVID-19 epidemiological emergency";
– the challenged act reports, in particular, a "very serious" situation, "also considering the repetition of the conduct": inside the opponent's premises, indeed, several violations of the pandemic containment measures by both customers and the owner and their collaborators had already been ascertained in recent months, to the point that the same establishment had gained "media resonance" and had become a meeting point for people who, by not respecting "the hygiene rules for the prevention of virus spread, contribute to creating situations of danger for public health and for other patrons";
– the opponent challenged the legitimacy of the injunction based on fourteen grounds of appeal;
– the Autonomous Province of Bolzano appeared, contesting the appellant's claims "in fact and in law" and concluding for the rejection of the adverse claim;
– the proceeding was suspended, pending the decision on the question of constitutional legitimacy of Provincial Law no. 4 of 2020, raised by the same Court of Bolzano, with an order of May 12, 2023, with reference to Article 117, second paragraph, letter q), of the Constitution;
– following the delivery of Judgment no. 50 of 2024 – which declared the constitutional illegitimacy of Article 1, paragraphs 36 and 37, of Provincial Law no. 4 of 2020, insofar as it penalized the violation of the obligation incumbent on the owners and managers of catering and food and beverage services to require customers to present the green certification provided for by state legislation – the proceeding was resumed with an appeal on June 18, 2024.
1.2.– In reconstructing the relevant legal framework, the referring court observes that the aforementioned paragraphs 36 and 37 of Article 1 of Provincial Law no. 4 of 2020 stipulated, respectively, that "[t]he failure to comply with the measures referred to in this law shall be penalized as provided for by Article 4 of Decree-Law no. 19 of March 25, 2020," and that "[t]he suspension of activities referred to in paragraph 19 shall be ordered, for ten days, by the President of the Province. This suspension shall also be ordered in the event of violation of the measures referred to in Annex A."
For its part, Article 4 of Decree-Law no. 19 of 2020, as converted, established, in paragraph 1, the pecuniary sanction from EUR 400.00 to EUR 1,000.00 for the failure to comply with the containment measures provided for by Article 1, paragraph 2, of the same Decree-Law; and, in paragraph 2, the accessory administrative sanction of closure of the establishment or activity for five to thirty days in the cases referred to in Article 1, paragraph 2, letters i), m), p), u), v), z), and aa), which included measures to limit or suspend the provision of drinks and food to the public, as well as consumption on-site of food and drinks, including bars and restaurants (letter v).
In turn, Article 1, paragraph 19, of Provincial Law no. 4 of 2020, referenced by the first line of paragraph 37 of the same article, provided as follows: "[F]rom the entry into force of this law, all industrial, artisanal, and commercial production activities carried out throughout the provincial territory are reopened, provided that it is possible to ensure compliance with the safety measures referred to in paragraph 12 and that the enterprises comply, in addition to the content of the territorial protocols, with the national protocols attached to this law."
Paragraph 12 of Article 1, referenced by the aforementioned paragraph 19, then established that "[a]ll economic activities must ensure an adequate ratio between surface area and persons, in order to guarantee compliance with safety interpersonal distances, and it must also be ensured that entries occur in a staggered manner. The measures referred to in Annex A shall apply until the cessation of the state of emergency declared at the national level."
Pursuant to the subsequent paragraph 15, the safety measures referred to in paragraph 12 (which, as just reported, also mentions those in Annex A) were also imposed on food and beverage services.
Annex A, referenced by both paragraph 12 and paragraph 37 of Article 1, for its part, established the rules and containment measures for the "resumption of activities" phase.
As far as is relevant here, the measure in number 8) of point II.D of the aforementioned Annex provided that "[s]ervice personnel must use surgical masks. All other collaborators must wear a surgical mask in enclosed spaces, in the presence of other persons, regardless of interpersonal distance."
Finally, the contingent and urgent Order no. 28 of 2021, "in force ratione temporis in the case at hand," also expressly referenced Provincial Law no. 4 of 2020, imposing, concerning catering activities, compliance with the safety measures set forth in Annex A.
1.3.– Having thus reconstructed the relevant legal framework, the referring court affirms, on the "point of relevance," that the enjoined party was charged with non-compliance with the obligation to use surgical masks by service personnel and all other collaborators, in enclosed spaces, in the presence of other persons, and regardless of interpersonal distance, an obligation established by Article 1, paragraphs 12 and 15, of Provincial Law no. 4 of 2020 and Annex A thereto.
The potential declaration of constitutional illegitimacy of the aforementioned provisions of the cited provincial law, read in conjunction with Article 1, paragraphs 36 and 37, of the same law, would result in the illegitimacy of the injunction order due to the lack of a legal basis, in violation of Article 1 of Law no. 689 of November 24, 1981 (Amendments to the Criminal System), a violation which the judge must verify even beyond the grounds raised in the appeal.
1.4.– On the merits, the questions are deemed well-founded, in light of what was established in the aforementioned Judgment no. 50 of 2024 of this Court and the constant constitutional jurisprudence on international prophylaxis.
Already with Judgment no. 37 of 2021, it was clarified that, 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 order the need for a unitary, national discipline, capable of preserving the equality of persons in the exercise of the fundamental right to health and simultaneously protecting the interest of the community."
The referring judge further observes that, at the date of promulgation of Provincial Law no. 4 of 2020, Decree-Law no. 19 of 2020 was in force, which constitutes "the normative framework within which" various Decrees of the President of the Council of Ministers were adopted.
Article 3, paragraph 1, of Decree-Law no. 19 of 2020, as converted, provided for the possibility for the Regions, "in relation to specific subsequent situations of worsening of the health risk occurring in their territory or in a part thereof," to "introduce measures further restrictive than those currently in force, among those in Article 1, paragraph 2, exclusively within the scope of their competencies and without affecting production activities and those of strategic relevance for the national economy"; this, however, only "[w]hile awaiting the adoption of Decrees of the President of the Council of Ministers referred to in Article 2, paragraph 1, and limited in effectiveness until that moment."
At the time of the promulgation of Provincial Law no. 4 of 2020 – the referring court continues – "the residual legislative and regulatory power vested in the Regions" by the aforementioned Article 3 of Decree-Law no. 19 of 2020, as converted, "must be considered exhausted," given the adoption of the aforementioned D.P.C.M.s, so that "there was no room for an intervention" by the Autonomous Province of Bolzano.
Finally, as already clarified in Judgment no. 50 of 2024, it is not even relevant that the provincial norm may have "limited itself to meticulously reproducing the provision of the state one," since the provincial legislator is precluded from intervening in matters of exclusive state competence even merely to reproduce or refer to state provisions.
2.– The Autonomous Province of Bolzano appeared in the proceedings, raising objections to the admissibility and merits of the questions.
2.1.– According to the Autonomous Province, they would be inadmissible, firstly, because they aim to introduce "a constitutional legitimacy review in limine […] moreover never initiated by the State." In so doing, the referring judge would be proposing, "on their own initiative, a proceeding concerning a conflict of attribution between powers, which can only be initiated by the State or the Regions regarding laws or acts having the force of law issued by the Regions […] but not […] certainly […] by a judicial authority."
The incidental review proceeding would be subject to different rules than those applicable to the conflict of attribution, and among these rules is that there must be "an identity between the party’s request and the referring Judge’s order," which "must refer to the Court the same issue that was raised by the party through a specific request."
In the present case, the opposing party did not raise the constitutional legitimacy questions later raised ex officio and doubtfully by the referring judge, so that they do not appear to be "strictly functional to the resolution of the case."
2.2.– The questions would be inadmissible, secondly, due to a lack of relevance.
The challenged order was issued for the violation of Articles 3 and 4 of Decree-Law no. 19 of 2020, as converted, as well as Provincial Law no. 4 of 2020 and Presidential Order no. 28 of 2021. The referring judge, therefore, for the determination of the dispute, could limit themselves to ascertaining the existence or not of the violation of state legislation, the provincial legislation "reproducing the obligations already imposed by the State" being irrelevant for the decision.
2.3.– Furthermore, the questions would be inadmissible due to a lack of reasoning regarding non-manifest unfoundedness, as the referring judge's arguments supporting the raised questions would not reach the minimum threshold of clarity and completeness necessary to allow for a review on the merits.
2.4.– The questions would also be inadmissible due to an incomplete reconstruction of the relevant legal framework.
The Court of Bolzano asserts that the challenged provincial provisions constitute the legal basis of the challenged injunction order, "without duly taking into account the fact" that it "was issued mainly also for the violation" of Articles 3 and 4 of Decree-Law no. 19 of 2020, as converted.
The referring judge would therefore err in not considering that the state provisions, also forming the basis of the injunction order, introduced a "containment measure, provided for at the time of the facts and not complied with by the enjoined party," "single and identical throughout the national territory."
The referring judge also errs in disregarding "the true normative source" of Presidential Order no. 28 of 2021, which would not be the challenged provincial law, but Article 52, second paragraph, of the Special Statute Decree no. 670 of August 31, 1972 (Approval of the consolidated text of the constitutional laws concerning the Special Statute for Trentino-Alto Adige), according to which the President of the Province "[a]dopts contingent and urgent measures concerning public safety and hygiene in the interest of the populations of two or more municipalities."
Under another aspect, the faculty to introduce restrictions to the national emergency legislation is expressly provided for by the state legislation itself.
In relation to the specific point of sanctions for the violation of pandemic emergency provisions, the state sanctions are provided for by Article 4 of Decree-Law no. 19 of 2020, as converted, while Provincial Law no. 4 of 2020 and Presidential Order no. 28 of 2021, as a "normative counterpart at the provincial level," would have "specified the application discipline of the aforementioned sanctions, without innovating or reforming the normative structure of state legislation."
At the time of the facts (the violation allegedly being ascertained on November 26, 2021) – the Autonomous Province adds – the "Guidelines for the resumption of economic and social activities," adopted by the Minister of Health by order of May 29, 2021, were in force, which provided, among other things, in all food and beverage service establishments, for the obligation for personnel to use masks.
In turn, Article 1, paragraph 14, of Decree-Law no. 33 of May 16, 2020 (Further urgent measures to address the COVID-19 epidemiological emergency), converted, with amendments, into Law no. 74 of July 14, 2020, stipulated that "[e]conomic, production, and social activities must be carried out in compliance with the content of protocols or guidelines suitable for preventing or reducing the risk of contagion in the sector concerned or in analogous contexts, adopted by the Regions or the Conference of Regions and Autonomous Provinces in compliance with the principles contained in national protocols or guidelines. In the absence of regional ones, national protocols or guidelines shall apply. Restrictive measures on economic, production, and social activities may be adopted, in compliance with the principles of adequacy and proportionality, by provisions issued pursuant to Article 2 of Decree-Law no. 19 of 2020 or paragraph 16."
The challenged provisions of the provincial law were, therefore, according to the Autonomous Province, perfectly in line with state legislation and national guidelines.
Therefore, contrary to what the referring judge asserts, if the questions were upheld, the injunction order would "still stand by virtue of the reference" made to state legislation.
2.5.– The questions would be inadmissible, finally, due to the failure to attempt a constitutionally compliant interpretation.
The referring judge could well have, by virtue of the "general reference rule" in Article 1, paragraph 36, of Provincial Law no. 4 of 2020, according to which "[t]he failure to comply with the measures referred to in this law shall be penalized as provided for by Article 4 of Decree-Law no. 19 of March 25, 2020," as converted, "deemed the principle of legality respected with reference to state legislation," without needing to apply the challenged provincial legislation.
2.6.− On the merits, the questions would be manifestly unfounded, because Judgment no. 37 of 2021 of this Court referenced by the referring judge would not have "direct relevance to the thema decidendum of the present proceeding" concerning the application of administrative sanctions.
In the case of the cited Judgment no. 37 of 2021, in fact, the constitutional illegitimacy of the provisions of the Aosta Valley law challenged therein was declared "precisely because they substituted the regulatory sequence designed by the state legislator, imposing an autonomous and alternative one, which instead fell under the regional legislative provisions."
In the case of the Law of the Autonomous Province of Bolzano, concerning the application of administrative sanctions, there is no question of a "supposed opposition" between the two legislations.
It should also be recalled that Judgment no. 37 of 2021 itself expressly saved "contingent and urgent measures such as the one challenged in the order of referral, which are more stringent than the state provisions."
3.– D. B., the opposing party in the court below, appeared in the proceedings, supporting the admissibility and merits of the questions raised.
3.1.– According to the private party, the encroachment on the exclusive state legislative competence in matters of international prophylaxis is evident not only from Judgment no. 37 of 2021 cited by the referring judge, but also from further and constant constitutional jurisprudence, according to which the "measures to combat global health scourges, being part of an area of international cooperation and collaboration, with particular reference to the EU sphere, can only be adopted at the national level."
The Autonomous Province of Bolzano, therefore, could not adopt "a sanctioning framework different from the national one," nor was "a different reconstruction of the prohibited act by the administrative provisions in question admissible."
Considered in Law
l.– The Ordinary Court of Bolzano, First Civil Section, raised questions of constitutional legitimacy, with reference to Article 117, second paragraph, letter q), of the Constitution, concerning Article 1, paragraphs 12, 15, 36, and 37, of Provincial Law no. 4 of 2020, as well as Annex A to the same provincial law, point II.D, number 8).
The aforementioned provisions are challenged insofar as they impose the obligation to wear surgical masks for service personnel and collaborators of catering establishments (combined provisions of Article 1, paragraphs 12 and 15, and Annex A to the same provincial law, point II.D, number 8), and accompany it, in case of violation, with a pecuniary administrative sanction and the accessory sanction of suspension of the exercised activity (Article 1, paragraphs 36 and 37, respectively).
l.1.– The referring judge is called to rule on the objection to an injunction order by which the Autonomous Province of Bolzano imposed on D. B., in their capacity as general partner and legal representative of a catering establishment, the payment of the administrative fine of EUR 400.00, as well as the suspension of the exercised activity for ten days, for the service personnel's failure to wear the surgical mask inside the premises and in the presence of other persons.
l.2.– According to the referring judge, the questions are relevant because the challenged provincial provisions constitute the "legal basis" on which the challenged injunction order is founded.
It would follow that, in case of a declaration of constitutional illegitimacy of the same provisions, the act imposing the sanction would have to be annulled for violation of the principle of legality under Article 1 of Law no. 689 of 1981.
As for the non-manifest unfoundedness, the provincial legislator would have encroached upon the exclusive state legislative competence in matters of international prophylaxis, which includes any measure aimed at combating a pandemic, as clarified by constitutional jurisprudence.
2.– The examination of the multiple exceptions of inadmissibility raised by the Autonomous Province of Bolzano is preliminary.
2.1.– With reference only to the provincial provisions imposing the pecuniary sanction for the violation of the aforementioned obligation to wear surgical masks by personnel and collaborators of catering services (Article 1, paragraph 36, of Provincial Law no. 4 of 2020, in conjunction with paragraphs 12 and 15 of the same article, and Annex A to the same provincial law, point II.D, number 8), the exception of lack of relevance is well-founded and prevailing.
With reference to these provisions, similar to what was noted in Judgment no. 97 of 2025, the referring judge's assumption that they constitute the sole legal basis for the challenged injunction order is not confirmed by the reading of the latter, produced in the proceedings by the Autonomous Province.
The challenged order, in fact – after acknowledging, in the preamble, that the factual prerequisite of ascertainment and charge was issued for the violation of both state provisions (Articles 3 and 4 of Decree-Law no. 19 of 2020, as converted) and provincial ones (Provincial Law no. 4 of 2020), as well as the Order of the President of the Autonomous Province of Bolzano of April 23, 2021, no. 20 (Further urgent measures for the prevention and management of the COVID-19 epidemiological emergency) – in the reasoning part concerning the imposition of the pecuniary sanction exclusively refers to Article 4 of Decree-Law no. 19 of 2020, as converted, i.e., the state provision that penalized the violation of obligations imposed during the pandemic.
It follows that the pecuniary sanction challenged before the ordinary judge was imposed based solely on state law. Since the referring judge is not required to apply the aforementioned provincial provisions, the related questions of constitutional legitimacy are therefore inadmissible.
2.2.– The same exception is, however, unfounded with reference to the provisions imposing the accessory sanction of activity suspension for the violation of the same obligation (Article 1, paragraph 37, of Provincial Law no. 4 of 2020, in conjunction with paragraphs 12 and 15 of the same article, and Annex A to the same provincial law, point II.D, number 8).
In relation to this sanction, in fact, the challenged order expressly mentions, in its reasoning part, in addition to Article 4 (paragraph 2) of Decree-Law no. 19 of 2020, also Article 1, paragraph 37, of Provincial Law no. 4 of 2020, "which provides for the suspension of industrial, artisanal, and commercial activities for 10 days for the contested violation" (thus, the challenged order).
As noted in Judgment no. 50 of 2024, "[t]his means that the referring judge, in the reasoning that will support their decision, can and must analyze the existence and constitutional legitimacy" of both state and provincial sanctioning norms.
This is sufficient to hold that the referring judge must apply the aforementioned provincial provisions in their logical-argumentative path (among many, Judgments no. 164 and no. 160 of 2023, no. 19 of 2022, no. 215, no. 157 and no. 59 of 2021, no. 254 of 2020).
2.3.– With reference to the same provisions, the other exceptions of inadmissibility must therefore also be examined.
2.4.– According to the Autonomous Province of Bolzano, the questions would be inadmissible, firstly, because with them the referring judge would have promoted, in reality, "a general constitutional legitimacy review in limine […] moreover never initiated by the State […]" or a "judgment concerning a conflict of attribution between powers": this would be inferred from the fact that the questions were formulated in a merely doubtful form, as well as ex officio for violation of a constitutional parameter not raised by the opposing party.
The exception is unfounded.
It is well known that to justify the activation of the constitutional referral it is by no means necessary for the judge to express a (subjective) certainty of the constitutional illegitimacy of the norm, but only a doubt as to its non-manifest unfoundedness.
Regarding the lack of correspondence between the questions raised and those raised by the opposing party, it is likewise well known that the question of constitutional legitimacy in the court below, if relevant for its resolution, can be the subject of both a party’s exception and an ex officio finding.
2.5.– Furthermore, according to the Autonomous Province, the questions would be inadmissible due to a lack of reasoning regarding non-manifest unfoundedness, the referring judge's arguments in support of the raised questions not reaching the minimum threshold of clarity and completeness necessary to allow for a review on the merits.
The exception is not founded.
The questions raised resolve into the alleged intrusion, by the provincial legislator, into the exclusive state legislative competence in matters of international prophylaxis, to which the discipline concerning the measures to combat the COVID-19 contagion and the related sanctioning facts are attributable.
This is a clear assertion, so the aspect of inadmissibility alleged is absent.
2.6.– The questions would then be inadmissible due to insufficient reconstruction of the relevant legal framework.
In particular, the referring judge: a) would not have considered that the state provisions "mainly" forming the basis of the injunction order introduced a "containment measure […] single and identical throughout the national territory" and accompanied it with the sanctioning apparatus referenced by the provincial order itself; b) would err in disregarding "the true normative source" of Presidential Order no. 28 of 2021, which would not be the challenged provincial law, but Article 52, paragraph 2, of the Special Statute, according to which the President of the Province "[a]dopts contingent and urgent measures concerning public safety and hygiene in the interest of the populations of two or more municipalities"; c) would not consider that the faculty 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 2020, as converted, and by Article 1, paragraph 2, letter a), of Decree-Law no. 125 of October 7, 2020, concerning "Urgent measures related to the extension of the declaration of the 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 regarding tax collection," converted, with amendments, into Law no. 159 of November 27, 2020.
This exception is also unfounded.
As for aspects b) and c), "the provisions invoked by the Autonomous Province do not contribute to forming the relevant legal framework for the determination of the questions" (Judgment no. 50 of 2024). This Court has, in fact, excluded that the statutory powers of the Autonomous Province of Bolzano are sufficient to establish its legitimacy to regulate the measures to combat the pandemic (Judgment no. 164 of 2022), "considering […] its competence in matters of health protection to be 'recessive' […]. In the previous Judgment no. 37 of 2021, it had already been clarified that not even Article 1, paragraph 16, of Decree-Law no. 33 of 2020, as converted (like the subsequent Article 1, paragraph 2, letter a, of Decree-Law no. 125 of 2020, as converted), allows Regions (and Autonomous Provinces) to exercise legislative powers in this matter, but exclusively administrative powers under the strictly defined conditions of the same provision" (Judgment no. 50 of 2024).
As for aspect a), the exception resolves not into the complaint of a failure to consider state provisions relevant to the decision, but into the attribution to the same of a different significance from that conferred by the referring judge: state provisions, essentially, justify the provincial ones merely reproducing their content.
Since this is a refutation of the reasons underlying the doubt of constitutional legitimacy, the exception pertains not to admissibility but to the merits.
Nor is it relevant, as also objected by the Autonomous Province, that the referring judge, in mentioning state legislation, limited themselves to referring to Article 4 of Decree-Law no. 19 of 2020, as converted, without dwelling on the other provisions that at the time of the facts imposed the obligation to wear a mask for personnel in catering services and supplemented the sanctioning framework (Article 1, paragraphs 14 and 15, and Article 2, paragraph 1, of Decree-Law no. 33 of 2020, as converted, as well as the Order of the Minister of Health of May 29, 2021, concerning "Guidelines for the resumption of economic and social activities," adopted pursuant to Article 12 of Decree-Law no. 65 of May 18, 2021, concerning "Urgent measures relating to the COVID-19 epidemiological emergency," as saved by Article 1, paragraph 3, of Law no. 87 of June 17, 2021, concerning "Conversion into law, with amendments, of Decree-Law no. 52 of April 22, 2021, concerning urgent measures for the gradual resumption of economic and social activities while respecting the needs of containment of the spread of the COVID-19 epidemic").
As stated in Judgment no. 50 of 2024, in fact, "[d]espite this reconstructive omission, the question cannot be deemed inadmissible, since the referring judge's doubt pertains to the alleged invasion of the exclusive state competence sphere in matters of international prophylaxis, and for the verification of the foundation of this doubt, the existence or not of a conflict between state and provincial legislation is not relevant. From this angle, that is, the normative framework strictly necessary and sufficient for the understanding of the raised questions is given by the challenged provincial provisions and the constitutional parameter that is deemed violated, regardless of how the exclusive competence was actually exercised by the State."
2.7.– According to the Autonomous Province of Bolzano, finally, the questions would be inadmissible due to the failure to attempt a constitutionally compliant interpretation.
The referring judge could well have, by virtue of the "general reference rule" in Article 1, paragraph 36, of Provincial Law no. 4 of 2020 (under which "[t]he failure to comply with the measures referred to in this law shall be penalized as provided for by Article 4 of Decree-Law no. 19 of March 25, 2020," as converted), "deemed the principle of legality respected with reference to state legislation," without needing to apply the challenged provincial legislation.
The exception, insofar as it aims to support the non-necessity of applying the provincial provisions, given the existence of analogous state ones, actually entails a lack of relevance of the questions.
Therefore, the considerations already set out in point 2.2., to which reference is made, apply.
3.– On the merits, the remaining questions (concerning Article 1, paragraph 37, of Provincial Law no. 4 of 2020, in conjunction with paragraphs 12 and 15 of the same article, and Annex A to the same provincial law, point II.D, number 8) are well-founded.
In fact, both the discipline of measures to combat the pandemic (among many, Judgments no. 50 of 2024 and no. 164 of 2022) and the discipline of related administrative sanctions (Judgment no. 50 of 2024) are attributable to the exclusive state legislative competence in matters of international prophylaxis, which does not constitute a separate matter but falls under the competence relating to the substantive matter to which it pertains (among many, Judgments no. 84 of 2019, no. 148 and no. 121 of 2018, no. 271 of 2012, no. 246 of 2009, no. 240 of 2007, no. 384 of 2005 and no. 12 of 2004).
Contrary to what the Autonomous Province of Bolzano argues, moreover, the mere conformity of the challenged sanctions to state legislation is irrelevant, since "the (regional and) provincial legislator is precluded from intruding into matters of exclusive competence of a non-transversal nature, even merely to reproduce (or refer to) state provisions (among many, Judgments no. 239 and no. 4 of 2022, no. 16 of 2021, no. 40 of 2017 and no. 98 of 2013)" (Judgment no. 50 of 2024), the applicability of which, generally, remains.
4.– In conclusion, the questions of constitutional legitimacy of Article 1, paragraph 36, of Provincial Law no. 4 of 2020, in conjunction with paragraphs 12 and 15 of the same article, and Annex A to the same provincial law, point II.D, number 8), raised with reference to Article 117, second paragraph, letter q), of the Constitution, by the Ordinary Court of Bolzano, First Civil Section, with the order indicated in the heading, are inadmissible.
Conversely, the constitutional illegitimacy of Article 1, paragraph 37, of Provincial Law no. 4 of 2020, in conjunction with paragraphs 12 and 15 of the same article and Annex A to the same provincial law, point II.D, number 8), is declared, insofar as it provided for the accessory sanction of activity suspension in the event of violation of the obligation for personnel and collaborators of catering services to wear surgical masks.
for these reasons
THE CONSTITUTIONAL COURT
1) declares the constitutional illegitimacy of Article 1, paragraph 37, of the Law of the Province of Bolzano of May 8, 2020, no. 4 (Measures for containing the spread of the SARS-COV-2 virus in the phase of resuming activities), in conjunction with paragraphs 12 and 15 of the same article and Annex A to the same provincial law, point II.D, number 8), insofar as it provided for the accessory sanction of activity suspension in the event of violation of the obligation for personnel and collaborators of catering services to wear surgical masks;
2) declares inadmissible the questions of constitutional legitimacy of Article 1, paragraph 36, of Provincial Law no. 4 of 2020, in conjunction with paragraphs 12 and 15 of the same article and Annex A to the same provincial law, point II.D, number 8), raised, with reference to Article 117, second paragraph, letter q), of the Constitution, by the Ordinary Court of Bolzano, First Civil Section, with the order indicated in the heading.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 23, 2025.
Signed:
Giovanni AMOROSO, President
Giovanni PITRUZZELLA, Rapporteur
Igor DI BERNARDINI, Registrar
Filed with the Registry on October 31, 2025
The anonymized version is textually consistent with the original