April 15, 2020


by Studio Valaguzza in Deepening

Consiglio di Stato, Sez. I, April 7, 2020, no. 735

With the recent decision, the Council of State has expressed a favorable opinion with respect to the extraordinary annulment of the acts of the local authorities by the Government to protect the unity of the system pursuant to Art. 138 TUEL and Art. 2, paragraph 3, letter p) of Law no. 400/1988, of the order of the Mayor of Messina no. 105 of April 5, 2020.
The order had imposed on anyone wishing to enter into Sicily through the Port of Messina, either on foot or on board of a means of transport, the duty to register online on the website set up by the Municipality of Messina at least forty-eight hours before departure, providing with a series of personal data and information. Following the registration, the applicant would had to wait for the release of the authorization to transit issued by the Municipality.
In accordance with the established administrative jurisprudence, Section I confirms the current validity of the institution of extraordinary annulment by the Government, also following Title V of the Constitution reform. The power given by Art. 138 TUEL, which could be exercised in relation to the State’s exclusive competence matters, is based on Art. 95 of the Constitution. Specifically, it entrusts the President of the Council with the preservation of the unity of the political and administrative policy within the framework of the unity and indivisibility of the Republic provided for by Art. 5 of the Constitution. Moreover, the Council of State highlights the importance of such institution that aims to ensure a balance between the central state and regional and local self-government, especially in a context characterized by a global health emergency situation that can only be effectively tackled by ensuring the legal system unity.
In addition, the Council of State took into account that the national legislation does not give the Mayor the power to issue rules that apply and have effect outside the municipal territory, even indirectly. Therefore, a measure taken by the Mayor that claims to be effective outside the municipality would be illegitimate.
The order conflicts with numerous constitutional provisions: it imposes obligations to do and not to do contrary to the provisions of Article 23 of the Constitution, and it provides for restrictions on personal freedom and freedom of movement guaranteed by Articles 13 and 16 of the Constitution. Besides, it violates the attribution to the State’s exclusive competence in matters of international prophylaxis as provided by Article 117, paragraph 2, letter q) of the Constitution.
The order is also illegitimate for violation of laws and regulations.
As for the rules of primary rank, the order conflicts with the rules on personal data protection provided for in Legislative Decree no. 196/2003, and directly violates specific and precise emergency provisions adopted at central level. More precisely, the Council of State considered that Mayor of Messina’s order violated Articles 2 and 3 of Legislative Decree no. 19/2020, which provide for a general discipline in relation to the scope of competence for possible vertical subsidiarity actions by the Government. In fact, these provisions provide that emergency measures must be adopted by Prime Ministerial Decree or by regional ordinances and they must have limited effectiveness until the government’s adoption of acts and only for specific situations of increased health risk. On the other hand, the Mayor’s implementable and urgent orders cannot deviate from the state measures, exceeding their limits, under any circumstances.
With regard to the violation of regulatory provisions, the Council of State points out that the order is in contrast with the provisions of the Prime Ministerial Decree of March 22, 2020, in so far as it allows the movement for proven working needs, of absolute urgency or for health reasons, as well as with Art. 2 of the decree of the Ministry of Health, adopted in accordance with the Ministry of Infrastructure no. 120 of March 17, 2020, which established specific provisions regarding the Strait of Messina crossing.
The Council of State concludes that there is a need for unitary crisis management in order to prevent regional or local interventions from nullifying the overall strategy, especially in cases where it is not only a question of granting aid or carrying out interventions, but also of restricting the freedoms guaranteed by the Constitution.
Therefore, in the light of Article 3 of Legislative Decree no. 19/2020, the Presidents of the Regions and the Mayors have autonomous competence only within the limits and subject to the following conditions:
i. the pending of the adoption of the Prime Ministerial Decrees referred to in Article 2, paragraph 1, of the above-mentioned Decree Law and with limited effect until that moment;
ii. in relation to specific situations of increased health risk occurring in their territory or in a part of it; such circumstances, in application of the ordinary rules on the justification of the administrative measure, must not only be stated but also demonstrated;
iii. exclusively within the scope of the activities they are responsible for; and
iv. without affecting productive activities and those of strategic importance for the national economy.