Diana-Urania Galetta

Full Professor of Administrative Law at the University of Milan and Editor in Chief of CERIDAP

Semaforo

In light of the numerous restrictive measures adopted in Italy, as in many other countries, to contain the SARS-CoV-2 epidemic, the authors examine the terms with which the use of the “App Immuni” could be qualified as a legitimate condition for carrying out activities at risk of infection. Digital contact tracing could give greater effectiveness to the measures taken to contain the epidemic and, therefore, lead to a better calibration of the limitations to personal freedoms. In this perspective, the authors’ attention is focused on analyzing the functioning of the app Immuni, especially in view of protecting personal data and in light of the analysis of the relevant European standards, also analyzed through the prism of the principle of proportionality.

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From the point of view of European Union law, this the first time that the BVerfG concretizes its threat not to implement the decisions of the EU Court of Justice, which was already expressed in several of its previous judgments and, in particular, in its judgment on the Lisbon Treaty of 2009. The reasoning of the Karlsruhe judges reveals, however, gaps and errors. I will first refer to the most relevant legal errors (par. II). I will then briefly refer about the consequences of such violations of EU law (par. III).

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The judgment of 5 May 2020 of the Zweiter Senat of the Bundesverfassungsgericht, to the extent that it expresses the German constitutional judge's claim to assess the legality of the ECB's decisions on the basis of the principles of attribution and proportionality, is more than questionable in point of law. Furthermore, it is extremely dangerous: and not only because it implies that the Zweiter Senat ultimately refuses, on the basis of the democratic principle and the control of the Union's competences, the uniformity of application of EU law. But also because it appears as the glaring demonstration of a form of “cultural bullying” many complain about, and which emerges in a crystal clear way in the reasoning carried out on proportionality. This is an attitude which, in the contingency caused by the COVID-19 emergency, could have truly tragic consequences for the future of the European Union.

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