Green pass between EU regulation and Italian decree: all free tana?
The Green pass analyzed by Giuseppe Liturri
From 23 July the state of relations between domestic law and that of the EU may have undergone a shock of no small magnitude. The signature of the President Sergio Mattarella at the bottom of the law decree n. 105 which governs the so-called "green pass" is an open declaration of supremacy of national law with respect to the explicit provisions of EU regulation 953 of 14 June 2021.
Since that day, the words spoken by the Prime Minister Mario Draghi in his first press conference last March – "We must be practical, we try to stay together but this is about health, if European coordination works we must follow it, if it does not work you have to go on your own ”- have found a concrete and evident application.
Draghi decided to go on his own. By placing the limitations that will be operational from next 6 August for access to restaurants and other activities and services such as, among others, fairs and amusement parks, a solemn mockery was made of what was written, just a few weeks earlier, on the regulation that , as is known, it is immediately enforceable in Italy without the need for transposition, and it is a rule that prevails over domestic law.
With that decree, according to Draghi "you are guaranteed to find yourself with non-contagious people". Unfortunately for him, this statement turned out to be blatantly false – as well as other overly assertive and almost provocative claims – as a few hours later immunologist Anthony Fauci, chief medical adviser to the President of the United States, justified the recommendation to wear the masks in closed environments, precisely with the observation that even vaccinated people, albeit with a lower incidence, can be infected and infected. In short, the "guarantee" does not exist. There is only a lower probability, the estimate of which still lies in a very wide range, albeit clearly in favor of vaccinated, compared to the unvaccinated. And then it is not clear how justified and proportionate the limit introduced by decree 105 can be.
But the flaw of this decree, which is of greatest interest here, is the obvious contradiction with what the EU regulation in recital 36 reads: "It is necessary to avoid direct or indirect discrimination against people who are not vaccinated, for example for medical reasons, because they are not part of the target group for whom the Covid-19 vaccine is currently administered or permitted, such as children, or because they have not yet had the opportunity to be vaccinated or have chosen not to be vaccinated. "
Given that it took almost twenty days for the decisive final sentence "or they chose not to be vaccinated" which inexplicably (?) Had skipped in the Italian translation, but was present from the beginning, to land in the Official Journal of the EU on 5 July in the English one, the second paragraph articulates the prohibition of discrimination, specifying that "the possession of a vaccination certificate, or a vaccination certificate certifying the use of a specific anti Covid-19 vaccine, should not be a precondition for the exercise of the right of free movement or for the use of cross-border passenger transport services such as airlines, trains, buses, ferries or any other means of transport. Furthermore, this regulation cannot be interpreted as establishing a right or obligation to be vaccinated. "
But Draghi went straight like a train and Mattarella signed the decree without flinching.
Then a crack opens here that could become a chasm. Either the Commission, guardian of EU law, detects the violation of the regulation by decree 105 and opens a formal procedure that can go as far as the referral to the EU Court of Justice and the payment of fines, or we are facing the "free den everyone".
The government has applied – as claimed by authoritative jurists – the theory of "counter-limits" without even bothering the Constitutional Court. The latter had ruled, without ever giving concrete implementation to this position, that the supremacy of EU law should stop in the face of a conflict with the fundamental principles of our Constitution. Counter-limits because they are opposed to the limits to national sovereignty laid down in Article 11 of the Charter. Now the government "arms" itself with Articles 16 (limitation to freedom of movement for health reasons) and 32 of the Charter and proceeds swiftly like a bulldozer.
But then it is surprising that, faced with issues that do not even constitute such insuperable and conflicting counter-limits with respect to EU law, the government shields itself from the Constitution and goes straight on its way and in the face of much more evident violations of the counter-limits our country , our institutions have been silent and renounced all these years.
We refer to the loss of monetary sovereignty and the consequent compression of employment and income under the banner of deflationary economic policies that have cut public spending and depressed domestic consumption. We refer to Article 47 on the protection of savings, regardless of which we allowed our banking system to be devastated by the pro-cyclical rules on the banking union, starting with the infamous bail-in.
Since 23 July we have finally discovered that, when there is political will, we can say “no, thank you” in Brussels, even without the need to activate the counter-limits, which are the ultimate rationale for the defense of domestic law. Since there is no hierarchy in the fundamental rights of the Constitution, we expect coherent behavior to be held when it is time to discuss the reactivation of the Stability Pact and its reform. Will we still accept that absurd rules prevent us from respecting Article 1 of the Constitution?
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/green-pass-fra-regolamento-ue-e-decreto-italiano-tana-liberi-tutti/ on Sat, 07 Aug 2021 06:52:08 +0000.