Italy, Administrative Regional Tribunal of Lazio - Rome, 5 April 2022, No. 3910/2022
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Freedom to conduct a business
- Freedom of movement of people
- Healthcare management (Covid related, excluding vaccination)
- Health, right to information and freedom of expression
General Summary
With these three judgments, the Lazio Regional Administrative Tribunal decided on claims brought by business operators who filed complaints about administrative acts based on the legislation adopted by the Italian Government to deal with the spread of Covid-19. The administrative court was the competent authority to scrutinize administrative acts with general effects whereas the Constitutional court evaluates the constitutionality of legislation.
The applicants sought annulment of the decrees of the Presidency of the Council of Ministers that temporarily suspended or limited some economic activities and asked for compensation for damages suffered.
Facts of the case
In the first appeal, a company operating betting and gaming activity, challenged the government measures that temporarily suspended these activities as non-essential.
The second complaint was filed by a concessionaire (agent) of the Municipality of Milan that conducts theater activities and connected resorts. The appellant challenged two measures introduced by the emergency acts: the provision of social distancing measures and a maximum number of spectators for theatrical activity; and the provision of the obligation of 7 free square meters per person for swimming activities.
The last was a collective claim challenging the extraordinary measures of the Government, which provided for the closure of shopping centers on public holidays and the day before holidays.
All applicants requested annulment of the restrictive measures affecting their commercial activities and compensation for damages suffered.
The tribunal declared there was no longer any interest in the application for annulment, because the contested measures were temporally limited and no longer effective. However, it examined the compensation claims and, deeming the administrative acts legitimate, rejected the claims.
Type of measure challenged
Measures, actions, remedies claimed
- Annulment of an administrative decision.
- Interim relief.
- Government liability
- Damages
Individual / collective enforcement
Type of procedure
Reasoning of the deciding body
The court held the contested measures to be legitimate, stating that:
- in the period of increased infections, and in the absence of vaccines, particularly restrictive measures were introduced to limit people’s social life, which included the temporary suspension of activities considered to be non-essential;
- the emergency legislation was intended to reduce airborne infections by limiting social contact, it was based on an adequate investigation and was in compliance with the opinions of the Technical Scientific Committee;
- the argument according to which decisions were made in the absence of scientific data was not acceptable, because scientific knowledge was also given by the prolonged observation of phenomena and by the verification of the regularity of certain events; therefore it was logical and rational that frequenting crowded places can expose healthy people to a high risk of contagion;
- the new restrictive measures did not violate the legitimate trust of operators who adopted the safety measures provided, because the resurgence of the pandemic justified a tightening of rules; (Dec. 3910/2022)
- losses stemming from the suspension of some economic activities were offset by economic relief aimed at mitigating their negative consequences; (Dec. 3910/2022)
- government decrees achieved a fair balance between the opposing interests involved;
- adoption of selective measures referring only to certain types of activities did not lead to discrimination (a disparity of treatment), but complied with the principle of proportionality;
- the legitimacy of measures adopted determined the absence of negligent liability and compensable damage (unjust damage ‘danno ingiusto’ under Article 2043, It. civil code);
- the subjective element of liability must also be excluded, as the Government had no fault for the damage suffered by the applicant economic operators; in fact, the restrictive measures were adopted in a context of extreme uncertainty (Dec. 5411/2022) / the action of the Administration was inspired by the utmost caution, correctly balancing the protection of public health with the free exercise of economic activities (there was no intentional or negligent fact – “fatto doloso o colposo” under Article 2043, It. Civil code) (Dec. 3910/2022; 5724/2022);
- therefore the claims for compensation were necessarily rejected.
Conclusions of the deciding body
The Court declared moot the annulment claim. It held that there was no longer any interest in the application for annulment because the contested measures were temporally limited and were no longer effective. On the same issue see TAR Campania, II, 2021, November 17th, n. 7354 where the Court examined the legality of contested measures, although they were no longer effective, due to the possibility of a subsequent appeal for damages. In fact, according to the Italian administrative procedural code (Art. 34), only compensation interest allows scrutiny of the legality of a contested provision, once the claim for annulment has become moot. (Consiglio di Stato, III, 2021, April 15th, n. 3086 – Pres. Frattini – Est. Tulumello).
With regard to the question of liability, the Court held that the legitimacy of the measures determined the absence of fault of the administration; moreover, the Government made its decisions without malice or fault. Therefore, it rejected the claim for compensation.
The Tribunal rejected all claims.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of movement of people, goods and capital
- 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)
- Principle of substantial equality and proportionality (Art. 3 Italian Constitution)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
- Health v. freedom of association / public gathering
- Health v. private life
General principle applied
- Rule of law
- Equality
- Non-discrimination
- Proportionality
- Reasonableness
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The tribunal considered:
-The emergency and contingent situation of the spread of the virus and its serious effects on the health of the population;
- the strategy of reducing social contact as the primary measure to limit opportunities for contagion;
- the selective nature of the restrictive measures adopted, modulated according to both the phase of the pandemic, the spread of the virus in the area considered, and the type of activity or event;
- the type of activities temporarily suspended or restricted in relation to their "non-essential" character and to the different ways of using the activities and events;
- the temporary nature of the measures adopted by the Government; - the provision of economic incentives to restore damaged economic operators (Dec. 3910/2022);
- the consequent logic, reasonableness, and proportionality of the contested measures;
Based on these arguments, the Tribunal deemed that the government decrees achieved a fair balance of conflicting interests.
Judicial dialogue
The national Court did not refer to decisions of supranational Courts or national Courts of other States.
The Tribunal referred to judgments from the Italian Constitutional Court, which deemed the Government provisions implementing the provisions of the law, dealing with the pandemic emergency, and limiting personal freedoms (Constitutional Court, 2021, March 12, n. 37; Constitutional Court 2021, October 22, n. 198) to be compliant with the Constitution. The Court also referred to other judgments of Administrative Tribunals, which stated the legitimacy of Government Measures that dealt with the spread of Covid-19. (Dec. 5411/2022; 5724/2022)
Impact on Legislation/Policy
The Government measures were temporary and linked to the emergency phase of the spread of the virus. At the time of the decision they were no longer in effect.
Impact on national case law
The disputes related to special and limited – term legislation adopted by the Italian Government to contain the spread of the pandemic.
Other notes
On individual/collective:
The first two appeals are individual; the third one is a Collective Action
