Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Industrial relations / Labor law
- Public health and access to healthcare (not Covid-related diseases)
- Healthcare management (Covid related, excluding vaccination)
- Right to health, right of continuity in healthcare
Outcome of the decision
With decree-law 44/2021, in force since April 1, 2021, the Italian Government has introduced the requirement for vaccination against COVID-19 for doctors and all healthcare personnel, to "maintain safe conditions in the providing of care and assistance".
The decree originally established that if the worker did not undergo vaccination, he/she could not carry out activities that involved interpersonal contact or the risk of spreading COVID-19. The employer, if possible, had to assign the unvaccinated employee other tasks or, if not possible, then suspended the employee from work without pay.
This provision was modified by decree-law of November 26, 2021, n. 172, which no longer limits the suspension only to activities that involve interpersonal contacts, but more broadly prohibits unvaccinated personnel from carrying out any activities related to the exercise of the medical profession.
The decision of the Administrative Regional Court of Lombardia - Milan referred to the constitutional court the question of the constitutional legitimacy of this last legislative modification.
The constitutional provisions that the referring court considered are the following:
- Principle of substantial equality and proportionality (art. 3 Italian Constitution)
- Right to health (art. 32 Italian Constitution)
- Right to work (art. 4 and art. 35 Italian Constitution)
- Right to a remuneration that ensures a free and dignified existence (Art. 36 Italian Constitution)
The issue was raised in the context of a trial brought by a psychologist who was suspended from enrollment in the professional register for non-compliance with the vaccination requirement.
Facts of the case
The Appellant, a registered psychologist who practices independently, was suspended from the register for non-compliance with the vaccination requirement. She complained about the illegitimacy of the modification of the legislative discipline of the vaccination requirement, highlighting that the profession of psychologist can be exercised with remote modalities that do not involve any risk of contagion.
Type of measure challenged
- National government measure
- Italian legislation on the vaccination requirement for health professions
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The referring administrative court raises doubts regarding the constitutional legitimacy of the legislation that provides for the suspension of all the activities of the healthcare profession, in violation of the principles of reasonableness and proportionality to the purposes that the rule wants to achieve.
The Court notes that the purpose of the epidemiological emergency regulation is to protect public health and maintain adequate safety conditions in the provision of care and assistance services until the complete implementation of the vaccination plan.
Within psychological medical treatments, many activities can be carried out remotely using common telematics and telephone tools, without any physical contact with the patients.
Therefore, the prevision of a general suspension from the profession may introduce a sanction for healthcare personnel that could be disproportionate, as it is not linked to evidence of greater guarantees for the protection of collective health, and it affects the right of care for patients who have started a psychological path.
The Court finds that the legislature, in the exercise of its discretion, can aggravate the effects of the violation of an obligation but must still identify specific reasons that are suitable to justify such measure according to the principle of proportionality.
Finally, the suspension of the professional provided by the challenged law may penalize disproportionately the working conditions in particular for self-employed workers, in violation of the principle of equality. The Court also raises the issue of potential discrimination between those who already operate as psychologists and those who apply to register in order to be allowed to exercise the profession.
Conclusions of the deciding body
The administrative court referred the question of constitutional legitimacy of the legislation to the Constitutional Court.
With a separate order it accepted the claim of emergency measures and suspended the contested provision in the part that does not provide the possibility of carrying out professional activities in ways that do not involve interpersonal contacts or in any case the risk of spreading of COVID-19.
Fundamental Right(s) involved
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to work
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Principle of substantial equality and proportionality, art. 3, Italian Constitution
- Right to health, art. 32, Italian Constitution
- Right to work, art. 4 and art. 35, Italian Constitution
- Right to a remuneration that ensures a free and dignified existence, art. 36, Italian Constitution
- Obligation of the employer to ensure the safety of the workplace, art. 2097, Italian civil code (Dir. UE 2020/739)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- State of emergency or necessity
- Logic, substantial equality
Balancing techniques and principles (proportionality, reasonableness, others)
The referring administrative court held that in balancing opposing interests, the suspension is reasonable only for activities that involve contact with patients and not for those activities that can be carried out at a distance.
The Court also underlines that the same legislation provides, for the health professionals employed by a public or private body, that the employers can assign them to different tasks to avoid the risk of spreading COVID-19, maintaining their salary. This provision demonstrates that it might be possible to organize the exercise of the profession in ways that do not involve the risk of spreading COVID-19. If this possibility is reasonable in the context of dependent work, it can be surely used in the context of self-employment, which allows more flexibility in the exercise of professional activity.
The national courts do not refer to decisions of supranational courts or national courts of other states.
Impact on national case law
The dispute related to a special and limited-term legislation adopted to contain the spread of COVID-19.
Instance: interim procedure; 1st instance; referral to the Constitutional Court.