European Covid Green Pass

The Green Pass is constitutional. The Italian Council of State states that measures to control and reduce contagion listed in the Green Pass are conforming to the Italian Constitution.

With the judgment of 25 September 2023, the Council of State has dismissed the request to quash the ministerial decree imposing the plaintiff, devoid of the Green Pass certification, to abstain from working and to be not entitled to its salary for the time of the emergency, without loosing the job or being subject to any disciplinary measure.

The plaintiff, a fireman, had challenged the ministerial decree suspending him from the job on three main grounds:

  1. The infringement of Article 3 of the Italian Constitution for violation of the principle of equality for discriminating workers with and without green pass.
  2. The infringement of Articles 4 and 35 of the Italian Constitution for violation of the right to work.
  3. The infringement of the principle of legality since the decree was based on an administrative rather than a legislative act declaring the state of emergency.

The Council of State held that the administration did not violate the principle of equality between those with and those without the Green Pass since, according to the available scientific knowledge, the vaccinated, the healed from COVID, and those with negative swabs, were in a different conditions from those unvaccinated. According to the scientific evidence those three conditions, albeit with different degree, reduce the risk of contagion and protect collective health.

Referring to the case law of the Italian Constitutional Court (judgment 14/2023 and judgment 15/2023) the Council of State stated that when there is a potential conflict between the right to self-determination and the protection of collective health the principle of solidarity under Article 2 of the Italian Constitution affirms the priority of collective health.

In relation to the violation of the right to work the Council of State dismissed the claim stating that the lack of Green Pass determines the impossibility of the performance given that one of the three conditions (vaccine, healing, swab) has to be present. The impossibility to perform justifies the temporary suspension of the payment of salary without violating the Italian Constitution provisions on the right to work. The right to work is not protected unconditionally. When working can harm the worker himself and its co-workers or the customers limitations to the right to work are constitutionally permissible.

The Council of State also dismissed the claim that the decree was based on an administrative act declaring the state of emergency thereby violating the principle of legality. First the Council of State clarified that the foundation of the Green Pass requirement was based on legislation. The state of emergency decree simply determined the duration of the impossibility to work and to receive the salary. Secondly it stated that the state of emergency was constitutionally conforming since it was based on legislation conferring the power on the government to declare the state of emergency.

The Council of State dismissed the request to quash the decree and recognized the the constitutionality of the governmental power to introduce limitations at work through the Green Pass by the legislator.

Reference: Council of State, judgment n°1218/2023 of 25 September 2023.

Full text of the decision available at it