Italy, Administrative Regional Tribunal (Piemonte, Campania, Emilia-Romagna, FVG), 8 January 2022, Lega Nazionale Professionisti Serie A C/ ASL
Case overview
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Deciding body (English)
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General Summary
The Administrative Regional Tribunals of Piemonte, Campania – detachment of Salerno –, of Emilia Romagna – detachment of Bologna – and of Friuli Venezia Giulia have ruled on the request of an urgent decree filed by the soccer Professional National League “Serie A” (from here on “Serie A” or the “League”).
The League had challenged the provisions with which the public health authorities – after the discovery of Covid cases in some of the Serie A’s teams – had adopted some precautionary measures that would have prohibited the teams from playing their Sunday matches.
Since an urgent provision was sought, in all four cases the decision was filed by the Presidents of the Administrative Tribunals serving as a single judge, before the final decision, that could have been taken by a panel of judges only after the round of matches of Serie A.
Three courts stayed the public authorities’ acts whereas one confirmed its validity with the consequence that three matches were played and one was not.
Facts of the case
The four examined cases concern four soccer matches of Serie A; in four teams where Covid cases were discovered in players and/or coaches. The local Public Health Authorities quarantined the persons that were Covid positive, and – at the same time – forbade even the asymptomatic persons to leave their residencies (in some cases a general ruling concerning all subjects, in other cases with a distinction between vaccinated and unvaccinated people: a 10-day quarantine for the asymptomatic unvaccinated subjects and for those that did not complete the vaccination cycle (2 doses); a 5-day quarantine for the players that completed the vaccination more than 120 days before or that had a valid green pass, if asymptomatic).
The League challenged the provisions before the locally competent Administrative Regional Tribunals, asking for annulment of the acts in the part that quarantined the asymptomatic persons since such measure would be in contrast to the national laws, that did not provide the obligation of quarantine in such cases. The League asked for a monocratic decree, an urgent judicial decision that is filed by the President of the Tribunal, before a hearing and without the participation of the Public Administration due to the exceptional urgency of the situation.
Type of measure challenged
Measures, actions, remedies claimed
Type of procedure
Conclusions of the deciding body
In three instances The Public Health Authorities’ provisions have been stayed by three Tribunals since were in contrast with the national legislation. The Courts have also recognized the danger of irremediable damages prospected by the League, which pointed out the impossibility to play all the cancelled games before the end of the championship. The Public Health Authorities’ can’t introduce stricter precautionary measures than those set by the legislator. On the other hand, the Administrative Regional Tribunal of Emilia Romagna – without examining in depth the legitimacy of the provision of the Local Public Health Authority – has rejected the claim deeming that the public health protection should prevail over the rights to play the games.
Reasoning of the deciding body
The Tribunals have ruled in different ways: three stayed the acts, one rejected the claim and affirmed the validity of the public authority act
- On the one hand, three Tribunals have upheld the request, finding a conflict between the measures imposed by the local public health authorities and the national legislation: in fact, Section 2 of Legislative Decree No. 229 of 2021 and the decision of the Ministry of Health December 30th, 2021, - in order to avoid the paralysis of economic activities – provide that, in case of relevant contacts with covid positive subjects, the quarantine does not apply to those who have completed the vaccination procedure in the last 120 days and to those who have received the vaccine booster. In these cases, the person has to wear protective masks (FFP2 type) until the tenth day after the contact and has to perform a Sars-CoV-2 antigenic/PCR test if any infection’s symptom emerges, or 5 days after the contact if no symptom emerges. The Courts have also taken into consideration the Decision of the Ministry of Health of June 18th, 2020, which – with reference to sports activities – provided that, in case of quarantine of an entire team due to the Covid positivity of one or more members, the entire group can be isolated in a “bubble”, which allows the team to train and to play the championship games after having performed a test the same day. The Courts have also taken into consideration the impossibility to replay all the annulled games before the conclusion of the Serie A championship; on the other hand, no concrete danger for the public health can arise if the duty to perform a test on the game’s day is respected (as provided by the Circular of the Ministry of Health of June 18th, 2020).
- The Administrative Regional Tribunal of Emilia Romagna has instead rejected the request, deeming prevailing the public health issues.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Freedom to conduct a business
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom of movement of persons
General principle applied
- Proportionality
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The current case deals with the relationship between the precautionary measures set by the legislator and the particular provision introduced by the Local Public Health Authorities. Moreover, the Judges have been asked to evaluate the legitimacy of the Public Health Authorities’ provisions and the right argued by the League to guarantee the regularity of the soccer championship. Most of the Judges have ruled that the local precautionary measures – even if set to protect public health – have to comply with the national rules. Since the Public Administrations had imposed stricter measures than the ones set by the legislator, the Judges have suspended the local provisions, taking into consideration the damage that the soccer teams could have suffered, since they could have not regularly played a championship game. On the other hand, the Administrative Regional Tribunal of Emilia Romagna deemed prevailing the public health issues on any other interests involved in the case.
Other notes
On the outcome of the decision:
- The Administrative Regional Tribunals of Piemonte, Campania - detachment of Salerno, and Friuli Venezia Giulia upheld the request.
- The Administrative Regional Tribunal of Emilia Romagna rejected the request.
