Further profiles of illegitimacy of the Green Pass (by Mimmo Caruso)

In a recent article published on "Economic Scenarios" I examined some profiles of illegitimacy of the prohibitions introduced by the decree law 23.07.2021 n.105 in the light of national law and above all of the constitutional principles often exalted but duly ignored especially by those who affirm that "The Italian Constitution is the most beautiful in the world".

I would now like to deepen further aspects with reference to the compatibility of those prohibitions with the EU legal system not previously addressed for homogeneity of exposure but useful for understanding the macroscopic forcing carried out to introduce an instrument, the green pass, which increasingly appears to be an intolerable form of compulsion to induce citizens to adhere to the vaccination against Covid – 19 currently not mandatory which presupposes the provision of free (therefore not coerced) and informed consent as required, with reference to the right to the integrity of the person in the context of treatments health, from art. 3 of the Charter of Fundamental Rights of the European Union with a fully binding provision for the Member States of the Union by virtue of its assimilation to the Treaties.

In this perspective, it is useful to highlight that art. 3 of Legislative Decree no. 105/2021 prohibits entry to certain places to those who do not have the green pass while the following art. 4, making changes to art. 9, paragraph 9, DL 22.04.2021 n. 52 conv., Establishing the green certification Covid -19, states that "the provisions of paragraphs 1 to 8 continue to apply where compatible with the regulations (EU) 2021/953 and 2021/954 of the European Parliament and of the Council of June 14 2021 " with a pleonastic statement, if you like, both due to the fact that the EU regulations have mandatory scope in all their elements and are directly applicable in each of the Member States and because by virtue of the provisions of art. 117 of the Constitution, the legislative power of the State is exercised in compliance with the community order in application of the notorious, in other respects, external constraints of the European Union.

Paragraphs 1 to 8 of Legislative Decree no. 52/2021 govern various aspects of the green certification certifying the vaccination, the recovery from the virus and the carrying out of tests with negative results with provisions that must be compatible (this is the change made by art.4 of Legislative Decree no. 105 / 2021) with the EU regulations issued to regulate the issue, verification and acceptance of vaccination, test and recovery certificates in relation to Covid-19 to facilitate the free movement of people during the pandemic.

Well, regulation 2021/953 assumes decisive relevance where, in compliance with the principle of non-discrimination pursuant to art. 21 of the Charter of Fundamental Rights of the European Union states that "it is necessary to avoid direct or indirect discrimination against unvaccinated people " and that it " cannot be interpreted as establishing a right or an obligation to be vaccinated ".

In this sense, the contrast between the Community regulations and art. 3 of Legislative Decree no. 105/2021 given that, by allowing green pass holders to enter certain places and prohibiting non-holders, it discriminates against citizens on the basis of their personal beliefs and therefore on discretionary choices regarding whether or not to join certain voluntary health treatments on the card but which, in fact, are subject to an indirect obligation under penalty of exclusion from relevant areas of relationship life.

The distorted use of the green pass with respect to the purpose of guaranteeing free circulation within the EU which determines the lack of a valid legal basis for its adoption, the evident profiles of illegitimacy in relation to domestic and EU law, the observation of empirical data from which it emerges that even the holders of green certification can transmit the infection (there are many outbreaks that occurred during weddings) require significant changes to Legislative Decree no. 105/2021 by the Parliament during the conversion, otherwise it will be up to the Courts and the Constitutional Court to intervene in defense of the last shreds of the rule of law.

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The article Further profiles of illegitimacy of the Green Pass (by Mimmo Caruso) comes from ScenariEconomici.it .

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This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/ulteriori-profili-di-illegittimita-del-green-pass-di-mimmo-caruso/ on Mon, 02 Aug 2021 16:27:53 +0000.