Fundamental Rights and Freedoms

As part of CERIDAP's "Book Forum" initiative, a study meeting to present the book "L’intervento pubblico di contrasto della povertà"(Editoriale Scientifica, Naples, 2021), written by Prof. Claudio Franchini, was held on 27th of January 2022. The contribution aims to review the interventions of the meeting.

In a recent judgement, the administrative court of Lazio has annulled the circular of the Ministry of Health concerning the domestic management of Covid-19 patients. It has in fact argued that the binding nature of the circular undermines the possibility of the physicians to freely select the most suitable therapy for the patient. The Council of State has a different opinion and, reforming the judgment of the TAR, has also ruled on the complex issue related to the relationship between the standardization of care and autonomy of the physicians. This contribution offers an overview on the rulings of the administrative courts on this topic and then focuses on a short analysis of the second instance judgment.

The essay singles out the problematic profiles of the decision by which the Consiglio di Giustizia amministrativa per la Regione siciliana ordered a preliminary investigation, before evaluating the existence of the non-manifest unfoundedness of the question of constitutional legitimacy raised by the appellant relating the Covid-19 vaccine mandates.

With Regulation (EU) 2021/953, a common framework for an EU Digital COVID certificate was established to facilitate free movement between member States during the current pandemic, guaranteeing minimum health safety conditions. The new mechanism testifies (among other things) to a process that has been underway for some years, in relation to which administrative cooperation, as an instrument for governing the single market and a driving force for European integration, can only be based on the use of new technologies, which now constitute an essential element.

This contribution aims to outline the changes in the perception of the risk of liability by the health workers through the critical analysis of the most recent regulatory interventions and jurisprudential guidelines. More specifically, and examining the structure of the offenses, the reflections concern the criminal liability of doctors, the civil liabilities of doctors and health facilities, the consequent fiscal liability.

The contribution analyses, in the context of the relationship between State and market, the so-called "golden power". Through an in-depth analysis both historical and of the regulatory framework, the author identifies its origins, its procedural, organizational and control modalities, as well as the prerequisites for its compatibility with the European legal system.

The contribution addresses the issue of access to justice, in the perspective of the sustainable development goal 16 of the United Nations. After a brief analysis of the territorial organization of Italian administrative justice, the author focuses on the innovations of the electronic administrative trial to assess to what extent it has facilitated access to justice. The contribution therefore evaluates what limits still exist in the electronic administrative trial in the perspective of reducing distances and, on the basis of these considerations, makes some proposals to mitigate the problem of excessive length of the trials.

This article examines the ruling by which the German Federal Constitutional Court declared on 24 March 2021 that certain provisions of the Climate Protection Act of 12 December 2019 (KSG) are unconstitutional. The national climate protection targets and the annual permissible emission volumes up to 2030 that the provision envisages were found to be incompatible with fundamental rights, as they lack sufficient requirements for further emission reductions from 2031 onwards. The ruling recognises that every freedom is potentially affected by these future emission reduction obligations because almost all areas of human life are still depending by the emission of greenhouse gases and are therefore threatened by drastic restrictions that could occur after 2030 according to the current regulation. The legislator should therefore have taken precautions to mitigate these high burdens in order to safeguard fundamental rights in an innovative ‘intertemporal’ perspective, and thus also adequately guarantee the rights of future generations.

The Council of state refused the appeal against the judgement of the T.A.R. Lazio, which denied a protective order for suspension of the mandatory use of so-called Green Pass, in order to exercise certain activities as introduced by the Decree of the President of the Council of Ministers of 17th June 2021. The decision stresses the importance of the vaccination as one of the UE measures for citizens’ health protection, as well as the evaluation of a real or a merely potential risk of security in processing of sensitive data, or in ensuring right to privacy and non-discrimination.

With the decision n. 261/2021 of the 10th September 2021, the Administrative court of Friuli Venezia Giulia has ruled on relevant aspects related to the compulsory vaccination for healthcare personnel established by art. 4 D.L. 44/2021. The court has clarified that it is incorrect to claim that the vaccines used in the current vaccine campaign are still on trial, since they have been authorized by the Commission with a conditional marketing authorization, after EMA recommendation.