Italy, Administrative Regional Tribunal of Campania – Naples, 7 July 2021, Centro Diagnostico G.B. Morgagni S.r.l. vs. Regione Campania
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Instance
Area
Further areas addressed
- Freedom to conduct a business
- Public health and access to healthcare (not Covid-related diseases)
Link to the full text of the decision
General Summary
The Appellant is a private diagnostic center who asked the Campania Region for authorization to perform swabs for the laboratory diagnosis of COVID-19.
On September 9, 2020, the Region issued the authorization to carry out tests, but it limited it to employees of private companies and only from October 7, 2020, extended it to the entire community.
The diagnostic center first challenged the silence of the administration relative to the application for authorization and after authorization was granted, it asked the judge to order the Region to pay compensation for the loss of earnings it achieved in the period between September 9, 2020 to October 7, 2020, due to an initial limitation of the availability of COVID-19 tests.
The Court of First Instance granted the appeal and awarded compensation for damages.
The Appellate Judge overturned the First Instance decision and denied compensation.
Facts of the case
The Appellant, a private diagnostic center accredited with the National health service, considered the initial restriction of the authorization for the execution of diagnostic tests imposed by the Campania Region to be illegitimate because contrasting with the ministerial directives, unreasonable, and lacking reasoning.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Type of procedure
Reasoning of the deciding body
The First Instance Judge considered illegitimate and quashed the initial decision of the Region to limit the subjects allowed to give molecular tests due to lack of suitable justification and to the contrast with national indications, aimed at extending contact tracing. The Court considered that the subsequent generalization of the authorization was a corrective measure that confirmed the unreasonableness of the previous limiting choice.
The Appellate Judge, on the other hand, held that the regional administrative decision was legitimate and reasonable, considering that ministerial directives emphasized the importance of contact tracing but did not impose binding organizational measures. At that time, the national regulatory framework was uncertain, and the situation was objectively very complex. This, according to the Supreme Administrative Court, justified the Region’s gradual approach.
Conclusions of the deciding body
The Council of State considered first that the choices of the Region fall within an area of discretionary evaluation. The Region took the initial decision to restrict the authorization at a time when there existed a lack of clear and binding directives at the national level and it corrected its initial address after only 28 days, therefore in a time reasonable and proportionate to the particularity and difficulties posed by the medical emergency.
Furthermore, the progressive expansion of the contact tracing action was reasonable, given the need for experimentation with the first measures. The gradual expansion of the contact tracing action to an ever-increasing audience of users in fact made it possible to test the feasibility and effectiveness of the measures taken.
In the absence of fault, the Region is therefore not required to pay any compensation for damages.
Implementation of the ruling
The appeal decision does not require any implementation.
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health (art. 32 Italian Constitution)
- Right to conduct a business (art. 41 Italian Constitution)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Proportionality
- Reasonableness
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Appellate Court held that, in the balancing of opposing interests, the temporary limitation of the authorization, and the loss of earnings for clinical centers, the administrative decision was reasonable and justified.
The Region’s choices, in fact, were justified by the need to ensure coordination of the analysis service and the related information flows, to manage any possible variable or contingency, to ensure the homogeneity of diagnostic techniques and, therefore, the best planning and allocation of resources and, ultimately, the full and most prompt satisfaction of the primary interest of protecting health.
Impact on Legislation/Policy
The dispute related to a special and limited-term legislation adopted to contain the spread of the pandemic.
