One of the Government’s most significant concerns over the summer was guaranteeing a safe return to schools, balancing the need to protect public health with the urgency of resuming day-to-day life. A similar consideration was made for transport and workers in both the public and the private sector. The main question was whether to extend compulsory vaccination (already introduced for practitioners and healthcare workers, see here and here) to school staff and other workers or use the newly introduced instrument, the Green Covid-19 Certificate, as a way to get people to take the vaccine. We must recall that the Green Covid-19 Certificate has been necessary to access restaurants, bars, gyms, and other services/facilities since the beginning of August 2021. The Prime Minister’s strategy seems to point to a progressive extension of its use as a route to compulsory vaccination for everyone. Indeed, the scope of the Covid-19 Certificate has gradually been broadened, encompassing school/university staff, university students, and, finally, workers in both the public and private sectors.
Schools and Universities
In light of the current situation, which requires the continuation of exceptional and urgent arrangements to face circumstances that may prejudice the entire community, on 6 August 2021, the executive issued Statutory Decree No 111/2021. It enforced the Green Covid-19 Certificate requirement on all school/university staff, university students, and access to some transport.
The statutory decree provides that in the academic year 2021-2022, nursery, primary, and secondary schools will resume entirely in presence. The same applies to universities, where classes and exams will have to take place 'primarily' on-site, leaving each academic institution to decide how to organise its teaching. Regional presidents and mayors will still be able to waive this generic provision for limited and specific territories or single sites if two concurrent conditions attain: if such sites are in a red or orange zone and if there is an extraordinary situation. Moreover, regional presidents and mayors must take advice from the competent health authorities and observe the principles of adequacy and proportionality. Nevertheless, all students with disabilities and special educational needs will receive in-presence teaching to ensure inclusive education.
As the executive highlights in the decree, education must protect the school and academic community’s social, psychological, and emotional sphere as a core and essential service. To balance this end with the need to protect public health, the Government established that between 1 September 2021 and 31 December 2021 (expiry of the state of emergency), all school and university staff and students would be required to hold the Green Covid-19 Certificate. This provision does not apply to individuals who are exempt from the vaccination campaign. The requirement was further extended (by Statutory Decree No 122/2021, issued on 10 September 2021) to any external person who must enter the school/university (suppliers or outside workers).
Anyone who fails to exhibit said document will not enter the school and university premises. The staff’s inability to present the Certificate will result in an unexcused absence, leading to the employee’s suspension without pay or compensation after the fifth absence. The statutory decree makes €358 million available for 2021 to cover the expenses to substitute awol staff.
Heads of schools, principals, and university administrators/heads of departments must check compliance by following the guidelines indicated by a PM decree. This PM decree was issued only on 10 September 2021, three days before schools’ reopening. The Ministry for Education also sent an explanatory note to all headmasters, illustrating how the national platform to check the Green Covid-19 Certificate works. Through this platform, school authorities will verify in real-time whether staff members have an active certificate. Universities will check their students by random inspection, according to procedures established by each university; this implies that each university in the country will have potentially different arrangements and, ultimately, disparate treatments.
Statutory Decree No 111/2021 also provides that between 1 September 2021 and 31 December 2021, access to specific transport is allowed only to people who hold the Green Covid-19 Certificate. It applies to:
- National flights
- Ships and ferries travelling across regions, except for the ones crossing the Messina Channel
- High-speed and long-distance trains
- Coaches travelling across regions
- Rental coaches
Each transport company must verify that passengers hold the Certificate under the provisions in the PM decree.
The Certificate is not necessary for local public transport.
Creating safe work environments
After weeks of debate, the executive decided to issue Statutory Decree No 127/2021, which extends the Covid-19 certificate requirement to all workers from 15 October until 31 December 2021, both in the public and private sectors. This regulation makes Italy the first country in the world to enforce such conditions for working environments.
For what concerns workers in the public sector, the provisions apply to anyone who works in the public administration, including independent agencies, the Bank of Italy, and constitutional bodies (Parliament, Constitutional Court, etc), which, in accordance with their spheres of autonomy, will adjust their domestic legal orders in conformity with the requirements laid out. The decree also specifies that the condition is enforced on individuals who hold an elected office or institutional role. External subjects and trainees are also required to show the Certificate upon entering these premises. Any employee who fails to exhibit said Certificate will be considered unjustifiedly absent and with no pay until they obtain the document. This provision does not apply to individuals who hold an elected office, revealing due regard for the prerogatives of people's representatives.
Interestingly, whereas the requirement is enforced on the judicial branch, including judges, the decree provides that the certificate requirement does not apply to lawyers, counsellors, witnesses, and parties involved in judicial proceedings to ensure that such proceedings are entirely carried out. The aim of this provision is most probably to safeguard the right to a fair trial and defence. Still, it raises serious concerns about the principle of equality enshrined in Article 3 of the Italian Constitution (see infra).
The road ahead
The Prime Minister, Mario Draghi, was adamant about the Government’s intentions: to extend the Green Covid-19 Certificate as much as possible before ultimately enforcing mandatory vaccination on the entire population. Nevertheless, some issues and questions, both political and constitutional, still linger.
The Government is carrying out this particular agenda despite its parliamentary majority expressing contrasting views. Indeed, Lega – the party led by Mr Matteo Salvini – is playing double-dipping, ultimately acting as a member both of the governing coalition and the opposition. This situation became apparent as a group of backbenchers belonging to the Lega parliamentary group voted for an amendment to withdraw the whole Certificate requirement tabled by the opposition. The amendment did not pass. Still, the Health and Social Affairs Select Committee debate illustrates Lega’s ambiguous political position on mandatory vaccinations and the Green Covid-19 Certificate. Mr Matteo Salvini justified his party’s stance and loyalty to the Government by saying that Mr Mario Draghi was aware of Lega’s position beforehand.
On 9 September 2021, the Chamber of Deputies approved the bill converting Statutory Decree No 105/2021 into statute. The Senate, in turn, quickly passed it on 15 September 2021 after the first reading. Indeed, since the time to transpose a statutory decree into an Act of Parliament is only 60 days, Senators did not have the opportunity to review and debate the text in any significant way. This is yet another example of the asymmetries intrinsic to the legislative process that transposes statutory decrees into statutes, confirming Parliament’s drift towards a de facto mono-cameral structure (see Part III.A.33 of the Compendium). A similar scenario repeated itself during the conversion process of Statutory Decree No 111/2021: the bill was introduced at the Chamber of Deputies on 6 August 2021, the Chamber’s first reading was tabled only on 20 September and, during the general debate, the Government introduced a question of confidence, which was voted on 21 September. On 22 September 2021, the bill was approved and transmitted to the Senate, and on 23 September the Committee of Constitutional Affairs resentfully acknowledged that it was unable to carry out the bill's examination before the discussion took place in the plenary. On that same day, the bill was approved by the Upper Chamber, and the statutory decree was transposed into an Act of Parliament. As predicted, the Senate had no time at all to debate or review the bill.
The main question is why the Government has been gradually expanding the scope of application of the Green Covid-19 Certificate rather than introducing direct compulsory vaccination in the same way as it did for the NHS. The extent of basic human activities affected by the condition of proving one’s Covid-19 immunity status is such that, from a substantive point of view, one could speculate that what described above amounts to a de facto compulsory vaccination. The political reason behind this choice is opportunistic. To design a sanction for enforcing a formal obligation is far from easy. As observed, prison is unthinkable, and a fine could become the price 'to buy' a vaccine-free status for affluent unwilling persons. Moreover, whether a nudging approach towards vaccination – to what purportedly the Green Pass policy would be traceable – is more effective than a clear obligation is disputed.
Be that as it may, from a constitutional law perspective, various issues arise. The first and foremost regards how to frame the Green Certificate policy. The instrument was initially introduced with an EU regulation (Regulation (EU) 2021/953 - Green Digital Certificate) with the purpose of regulating and facilitating freedom of movement between the Member States. As mentioned above, the Italian Government then extended its scope of application and purposes by making the Certificate a requirement to access and make use of specific services and facilities. Several other European countries such as Spain, France, Ireland and Portugal have done the same. The Italian executive's last step was to extend the certificate requirement even further, encompassing schools, universities, transport and work environments, affecting most (if not all) of the population.
If one adopts the substantive approach we hinted at above, there should be little doubt that the Green Covid-19 Certificate belongs to the compulsory vaccination domain. As such, it should be assessed in light of Article 32 Constitution, which establishes that nobody can be obliged to undertake any medical treatment; only a statute (or equivalent act) can derogate such prohibition, provided it does not violate the limits deriving from the respect for the human person and provided it complies with the requirements and conditions laid out by the Constitutional Court (Decision 5/2018). This indirect reference in the constitutional clause to a human rights assessment evokes dignity, equality/non-discrimination, and proportionality issues. A document signed by many academics, some of whom are well-known pundits, has raised a dignitarian-like concern regarding the unfairness of imposing de facto mandatory vaccination yet presenting it as a voluntary individual choice. In this way, the State would be acting deviously. Some commentators claim that Article 32 is only compatible with a frank and explicit scheme of law that imposes any treatment based on public health reasons that is enacted through the Parliament. Moreover, the relevant legislative process should guarantee consistent participation of legislative committees, consultative bodies, and the public about the details of the scheme. Nevertheless, most commentators claim that the Green Covid-19 Certificate does not impose a mandatory medical treatment, as it leaves individuals the freedom not to get vaccinated and opt for PCR tests instead. As such, it would not be caught by Article 32 of the Constitution.
Another constitutional concern that some scholars have raised is that the Certificate divides society between first-class and second-class citizens, for only those who accept vaccination can fully exercise their constitutional rights. Although a division into two 'categories' is undeniable, it is debatable whether this distinction violates the principle of equality in its meaning of an obligation to treat like cases alike and unlike cases differently. In fact, some have countered that the Green Covid-19 Certificate embodies equality precisely by treating differently different situations. Furthermore, most of the criticisms aimed at the Certificate have an exclusively rights-oriented approach. They overlook the principle of solidarity enshrined in Article 2 of the Italian Constitution. As long as it guarantees inviolable human rights, the Republic requires persons to comply with political, economic, and social duties of solidarity.
A further contentious point is how the executive is exercising its discretionary decision-making powers. Let us refer to the right to defence mentioned above, in relation to the certificate requirement that doesn't apply to lawyers and counsellors. One wonders why the right to defense is treated differently than, say, the right to education, subject to the certificate requirement. Another question that comes to mind is if safety in schools and work environments are more critical than that of prisoners, who are entirely excluded from any of the provisions enacted so far?
It is paramount that we find a way to resume day-to-day life, still protecting public health and the NHS. Yet, a serious debate on compulsory vaccination – irrespective of passport certificates – established in primary legislation is desirable. In the longer term, the value of a transparent, informed, and participative legislative process to develop a general and universal Covid-19 vaccination scheme cannot be underestimated. It would leave less room for controversy and diminish the risk of treating like situations differently in the short term.TWEET