Justice

A few weeks ago, we published a proposal, in the form of a Position Paper, for the creation of a Mixed Chamber at the Court of Justice as a means, in part, of addressing the issues highlighted by the May 5th Weiss decision of the German Constitutional Court. This Chamber, to be composed of sitting members of the Court of Justice of the EU alongside judges of constitutional courts of the Member States, would have jurisdiction to solve, in last instance, conflicts of competence between the Union and its Member States. The full details may be found here in the original Position Paper (republished on CERIDAP.eu). The proposal has stirred a lively debate and produced constructive comments and critiques from colleagues and friends from many quarters. We are honored by the attention received and the best way to acknowledge our critics is by providing reasoned replies to their comments. We received two kinds of remarks: Macro and Micro. The Macro critiques target the proposal’s convenience and its general defects in the broad sense. These are principled critiques that deserve also a principled reply. At the Micro level we received detailed inquiries into specific aspects of the proposal, questioning a particular point here or there. We will address most of them accordingly. We will end with a more elaborate description of some of the procedural aspects of our Proposal which consider several of the comments we have been receiving.

This paper analyses the decree n. 1135 of 8 June 2020, through which the Campania Regional Administrative Court, section V, has precautionary upheld the request to suspend the effectiveness of the ordinances n. 248 of 29 May 2020 and n. 249 of 04 June 2020 of the Mayor of Naples. The two ordinances determined, on the one hand, a derogating discipline regarding the opening hours of retail establishments, already subjected to regional regulation, and on the other hand, an extension in terms of concessions for the temporary occupation of public land, which, instead, are disciplined by the municipal regulation "Dehors".

The Constitutional Court reiterates the obligation for the Government to comply with the limits of the delegated law, declaring the unconstitutionality not only of the rule raised by the referring judge but also of those strictly consequential to that contested. The ruling investigates the nature of the damage to the image of the public administration as damage consequence and not related to the relevance of the fact for the media as constituted by the rule subject to constitutional.

By decision no. 2539 of 21 April 2020, the Council of State clarified that Article 84, paragraph 5, of Legislative Decree no. 18/2020 shall be understood as meaning that each of the parties has the right to request a postponement of the hearing to a date subsequent to the end of the emergency phase in order to discuss the dispute orally, when the Court deems that the requested postponement does not compromise the right of the other party to a reasonable duration of the trial and where the dispute is not so simple that it does not require any discussion, since it is possible, in the juridical deed procedure, with the necessary caution, to give priority to procedural economy requirements.

This paper analyzes the decree n. 634/2020, with which the President of the First Chamber of the Lombardy Regional Administrative Court provisionally suspended the part of the Lombardy regional Ordinance n. 528 in the part in which it authorizes retail trade operators to home delivery any kind of goods, because of its prejudicial effects to workers health.

With the decision no. 3066 of 23 April 2020, Tar Lazio rejected the request to suspend (precautionally) the effectiveness of the “Decreto interministeriale” of 7 April 2020, which established that, due to the Covid-19 emergency, Italian ports no longer represent a "Place of safety" under the SAR convention.

The President of the Third Section of the Council of State - by means of the decree no. 2028 of April 17th, 2020 - declared the inadmissibility of the precautionary appeal filed against decree no. 122/2020, according to which the President of the First Section of the Regional Administrative Court of Sardinia did not grant the suspension of the effects of two urgent ordinances issued by the Mayor of Pula (Cagliari) and which impose additional restrictions on the fundamental freedoms of individuals, going beyond those provided for at the national and regional level.

With the judgment of 15 April 2020, 1 BvR 828/20, the German Federal Constitutional Court ruled that the municipal administration of the town of Giessen must re-evaluate the request of authorization to hold a demonstration in a public place, presented by a German citizen and already rejected by the same administration, in light of the considerations on the exercise of administrative discretion carried out by the Court itself. According to the Constitutional Judge, in cases such as this, administrative discretion must in fact be exercised primarily in order to protect rights which, otherwise, an administrative provision could compress to the point of making it impossible to exercise.

With decree no. 31 issued on 10 April 2020, the President of the Regional Administrative Court for Friuli Venezia Giulia rejected the request for precautionary protection against the contingent and urgent order n.7 / PC issued by the President of the Region on 3 April 2020 with pandemic containment measures more stringent than national ones, including the closing of shops on Sunday.

During the Covid emergency, the importance of the collection of quality public data, their re-elaboration for information purposes and their timely dissemination emerged . This contribution analyzes the judicial actions promoted by Codacons in order to solicit the release of data, and so, in particular, the presidential decrees nos. 2299/2020 and 2346/2020 of the T.A.R. Lazio and n. 01841/2020 of the Council of State.