For the very first time since the beginning of the Covid-19 pandemic, the Italian Constitutional court issued a judgment dealing with the pandemic response (decision no. 37/2021). It declared a regional law adopted by Valle d’Aosta (Regional Law no. 11/2020) unconstitutional, basing its decision primarily on the State’s exclusive competence over international preventive treatments.

The facts of the case

Regional law no. 11/2020 provided that the Valle d’Aosta Region was entitled to manage the Covid-19 emergency in its territory, de facto enabling the local government to set a range of measures that could differ from the ones adopted by the national State. The national Government lodged an action with the Constitutional court against this regional law, claiming that it violated Articles 25.2, 117.2 letters m, q, and h, 117.3, 118 and 120 of the Constitution, as well as the principle of loyal cooperation and Article 44 of constitutional law no. 4/1948 (Valle d’Aosta’s special statute).

Before turning to the question of constitutionality, the Court decided to suspend on a precautionary basis the effects of the regional law (Order no. 4/2021). It is the first time that the Court has decided to suspend a regional law challenged in a principaliter proceeding. In this case the Court argued there was the risk that had the law remained applicable until the issue was solved, it could have produced an:

irreparable damage to the public interest in a unitary management of the epidemic at a national level, as well as a serious and irreparable damage to people’s health.

The issue before the Constitutional court and its decision

The core issue pertains to the correct distribution of competences between the State and the Regions in the fight against the pandemic. We may briefly recall that the relationship between state and regional laws hinges on a criterion of competence: Parliament enjoys exclusive competence over an array of subjects mentioned in Article 117.2 of the Constitution, including international preventive treatments. Whereas, for the subjects listed in Article 117.3, including healthcare and civil contingencies, the State must limit itself to identifying the fundamental principles and establishing the essential levels of services; in this case, the legislative power is vested in the Regions.

In its reasoning, the Court lays out and construes the constitutional and legislative framework that underlies the distribution of competences. It underscores that the Regions are no strangers to the management of the health crisis, as most public services, including healthcare, are governed by the Regions themselves, who can exercise sizeable discretion in respect of this. This is further confirmed by the fact that the Government decided to manage the health crisis by laying out a common regulatory framework within which the concrete daily administration rests upon the Regions and local entities. Furthermore, Article 1 of statutory decree 33/2020 provides that in some circumstances, and following a formal agreement with the Minister for Healthcare, Regions may enact less (or more) restrictive measures that nonetheless comply with the criteria established by PM decrees. The rationale of this provision is to guarantee that as national laws adapt to the fast-evolving scenario, nothing and no one, especially unforeseen situations, are left outside the scope of protection. As the Constitutional court emphasised, however, this does not imply that Regions have political discretion as to how to manage the pandemic; rather, they merely have the power to adopt administrative acts (and not regional laws) to regulate situations that fall outside the ambit of national primary and secondary sources of law. The Court explicitly states that the Regions, including those with special forms of autonomy (as Valle d’Aosta does), cannot use regional legislation to interfere with the normative framework laid out by the competent state legislator. The constitutional design implicitly excludes that the regional legislator (in the same way as the state legislator with respect to regional laws) uses its legislative power to undermine the effects of statutory law in its regional territory, even if it considers that piece of state legislation unconstitutional (in that case, it is solely for the Constitutional court to solve the conflict).

More generally, the Court underlines that since Covid-19 is a pandemic that has spread globally, its management falls within the ambit of international preventive treatments. The latter is one of the subject-matters over which the State has exclusive competence (Article 117.2, letter q)), even if national legislation does indeed recognize that Regions play a significant role in health protection. It also asserts that despite its special autonomy status (Article 116.1 of the Constitution), the Region Valle d’Aosta may not encroach upon this very subject, as it is not included as an area over which it exercises forms of autonomy. Consequently, by adopting Regional law no. 11/2020, the Region Valle d’Aosta most certainly encroached upon a subject-matter that falls within the State’s exclusive competence and has thus acted in a manner that is unconstitutional.

Problems that still need solving

The importance of this decision lies in the fact that it is the first time that the Constitutional court has entered the debate concerning the pandemic's management, and it has done so by dealing with one of the key issues that are at the very heart of the way the Italian legal order decided to deal with the Covid-19 health emergency: the lack of loyal cooperation between the different levels of government. The principle of loyal cooperation is enshrined in Article 120.2 of the Constitution, and it has been argued that "it is precisely this constitutional principle that has been the most neglected during the pandemic, while the unprecedented emergency the country is facing would have required a much more genuine collaborative effort on the part of State and Regions".

Although the Court does not directly analyze whether Regional law no. 11/2020 conflicts with the principle of loyal cooperation, it does recall that statutory decree no. 19/2020 “stimulates a process of loyal cooperation with the regional system” by requiring that before PM decrees are adopted, the executive body must wait for the opinion expressed by the Conference of the Regions. It considers this as an appropriate solution that takes into account the leeway that Regions took up throughout the pandemic, as well as the State’s need to make use of local health authorities, but more generally, the regional healthcare system, in order to implement preventive treatment measures.

Finally, as the Court states in its decision,

in face of diseases that are highly contagious at a global level, even before legal arguments there are logical reasons why the action should be united, national in nature, and suitable to preserve the equality of people as they exercise their fundamental right to health, whilst also safeguarding the community’s collective interest.

This observation becomes especially relevant if we consider the national vaccination campaign that has been recently deployed. As the Constitutional court suggests in its decision, even if enacted at a local level and implemented by the Regions, vaccination programs will have to respect the national guidelines set out by state legislation to contrast the pandemic. In other words, the vaccination campaign's success also depends on the State’s and Regions’ ability to walk a common path.