There is a judge in Padua. The vaccination obligation (by Leguleia) postponed to the CJEU

Today, the Court of Padua, acting as Labor Judge, referred the documents to the Court of Justice of the European Union, on the question of legitimacy by contrast with EU law, of the vaccination obligation enshrined in Article 4 , Legislative Decree 44/2021, in its pre-replacement formulation introduced by Legislative Decree 172/2021, under various profiles – including, in particular, the violation of the prohibition of discrimination enshrined in regulation 953/2021 and the principle of proportionality – as well as the persistence the validity of the marketing authorization of the current anticovid vaccines19, also in consideration – among others – of the availability of alternative treatments and the potential adverse effects of vaccination.
I report the textual conclusions of the provision:
"Having regard to art. 267 TFEU and art. 19, par. 3, lett. b, TEU,
submits a request for a preliminary ruling to the most excellent Court of Justice of the European Union, asking it to answer the following questions:
1. "Tell the Court of Justice whether the conditional authorizations of the Commission, issued on the favorable opinion of the EMA, relating to vaccines on the market today, can still be considered valid, pursuant to art. 4 of Reg. N. 507/2006, in light of the fact that, in several Member States (for example in Italy, AIFA approval of the treatment protocol with monoclonal and / or antiviral antibodies), effective and less dangerous alternative treatments to COVID SARS 2 have been approved for the health of the person, and this also in the light of articles 3 and 35 of the Charter of Nice ";
2. "Tell the Court of Justice if, in the case of healthcare workers for which the law of the Member State has imposed the compulsory vaccine, the vaccines approved by the Commission in a conditional form pursuant to and for the purposes of Regulation no. 507/2006, can be used for the purpose of compulsory vaccination even if the health workers in question have already been infected and therefore have already achieved natural immunization and can therefore request a derogation from the obligation ";
3. "Tell the Court of Justice if, in the case of healthcare workers for which the law of the Member State has imposed the compulsory vaccine, the vaccines approved by the Commission in a conditional form pursuant to and for the purposes of Regulation no. 507/2006, can be used for the purpose of mandatory vaccination without any proceduralization for precautionary purposes or if, in consideration of the conditionality of the authorization, the health professionals themselves can oppose the inoculation, at least as long as the appointed health authority has specifically excluded , and with reasonable certainty, on the one hand, that there are no contraindications to this effect, and on the other hand, that the resulting benefits are superior to those deriving from other drugs available today. The Court should clarify whether, in this case, the appointed health authorities must proceed in compliance with art. 41 of the Nice Charter ";
4. "Tell the Court of Justice whether, in the case of the vaccine authorized by the Commission in a conditional form, any non-submission to the same by the medical health personnel against whom the law of the State obliges the vaccine, may automatically entail the suspension from the workplace without pay or whether a gradual nature of the sanctions should be envisaged in compliance with the fundamental principle of proportionality ";
5. “Tell the Court of Justice whether, where national law allows forms of dépeçage, the verification of the possibility of using the worker in an alternative form, must take place in compliance with the cross-examination pursuant to and for the purposes of art. 41 of the Charter of Nice, with consequent right to compensation for damage in the event that this has not happened ";
6. “Tell the Court whether it is compatible with Regulation no. 953 of 2021 and the principles of proportionality and non-discrimination contained therein, the regulation of a Member State which mandatorily imposes the anti-Covid vaccine – conditionally authorized by the Commission – on all healthcare personnel, even if they come from another Member State and are present in Italy for the purpose of exercising the freedom to provide services and the freedom of establishment ";
7. “Tell the Court whether it is compatible with Regulation no. 953 of 2021 and the principles of proportionality and non-discrimination contained therein, the regulation of a Member State which mandatorily imposes the anti-Covid vaccine – conditionally authorized by the Commission – on all healthcare personnel, even if they come from another Member State and are present in Italy for the purpose of exercising the freedom to provide services and the freedom of establishment ".
The present judgment is suspended until the outcome of the present request for a preliminary ruling ".

A dutiful thanks to the colleagues Prof. Avv. Augusto Sinagra and Lorenzo Minisci, patrons of the case a quo.

Two considerations:
– for the opinions rooted in art. 4, legislative decree 44/2021, converted into law n. 76/2021, in the formulation prior to the changes introduced by Legislative Decree 172/2021, rooted cases must be suspended by the Judge, because the sentence of the Court of Justice has a preliminary effect;
– in the event that the Court of Justice were to declare the incompatibility of the national legislation on the aforementioned vaccination obligation with EU law, the Italian judges are obliged to set it aside;
– at this point, it is absolutely necessary to promote the causes of all categories required to vaccinate pursuant to art. 4, 4-bis and 4-ter of the legislative decree 44/2021, in its formulation introduced by the legislative decree 172/2021, because the reasons that led to the referral of the above issues, for health professionals, to the Court of Justice, apply to all the more reason for all the others obliged to vaccinate; and it is necessary to bring the question before the judges so that they refer the preliminary question also on the new rules to the Court of Justice;
– I believe, moreover, that – with reference to the question addressed – by the Court of Padua and – hoping that the questions that will be asked on the extension of the vaccination obligation to the other categories will also receive the same fate – the applicants will have a strong argument to ask for the provision (as a matter of urgency) for the suspension of the suspensive measure adopted against the defending obliged persons, given that – pending the preliminary question before the CJEU – this conclusion appears, a fortiori, to be imposed in the light of the precautionary principle.

And now the Word in Strasbourg

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The article There is a judge, in Padua. The vaccination obligation (of Leguleia) has been postponed to the CJEU 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/esiste-un-giudice-a-padova-rinviato-alla-cgue-lobbligo-vaccinale-di-leguleia/ on Wed, 08 Dec 2021 08:00:50 +0000.