The Green pass analyzed by Giuseppe Liturri
Since July 23, 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” and an open declaration of supremacy of national law with respect to the explicit provisions of EU regulation 953 of June 14, 2021.
Since that day, the words spoken by Prime Minister Mario Draghi in his first press conference of last March – “We must be practical, we try to stay together but here it is about health, if European coordination works we must follow it, if it does not work we must go on our own” – have found a concrete and evident application.
Draghi decided to go on his own. By placing the restrictions that will be operational from August 6 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, and 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 statements – since a few hours later the 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 the vaccinated, 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 is still in a very wide range, albeit clearly in favor of vaccinated, compared to unvaccinated.
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 incident “or they chose not to be vaccinated” to land in the Official Journal of the EU on July 5, which inexplicably (
) was skipped in the Italian translation, but was present from the beginning 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 Covid-19 vaccine, should not be a precondition for exercising 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 Community 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 all”.
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 on 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, thanks” to 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 a consistent behavior to be held when it comes to discussing the reactivation of the Stability Pact and its reform. We will still accept that absurd rules prevent us from respecting Article 1 of the Constitution

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