Judgment No. 178 of 2023
Silvana SCIARRA, President Francesco VIGANÒ, Judge Rapporteur
The Italian provision which automatically and unconditionally prevents all thirdcountry nationals staying or residing in Italy from benefiting from the grounds for optional non-execution of a European arrest warrant (EAW), which are available to Italian and EU nationals, is unconstitutional. The Bologna Court of Appeal asked the Constitutional Court to rule on the constitutionality of said provision, which established, inter alia, that Italian courts may deny surrender “if an EAW has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is an Italian national or a national of another EU Member State who is legally and actually residing or staying in Italy, provided that the court of appeal directs that the sentence or detention order be executed in Italy in accordance with Italian law”. According to the referring Court of Appeal, the limitation of this ground for refusal to Italian and EU nationals was contrary to the right to private and family life (Articles 2 of the Italian Constitution and 8 ECHR) as well as the constitutional requirement of the rehabilitative purpose of criminal sentences (Article 27(3) of the Italian Constitution). By its Order No 217/2021, the Constitutional Court requested a preliminary ruling from the Court of Justice of the European Union (CJEU), asking two questions. The first was whether Article 4(6) of Framework Decision 2002/584, interpreted in the light of Article 1(3) of the Framework Decision and Article 7 of the European Charter of Human Rights, precludes legislation such as the Italian law, which – in an EAW procedure for executing a custodial sentence or detention order – absolutely and automatically prevents executing judicial authorities from refusing to surrender third-country nationals staying or residing in Italy, irrespective of their links with that country. The second was, if the answer to the first questions was affirmative, what criteria and conditions must be applied to establish that such links are so significant as to require the executing judicial authorities to refuse surrender. The Court of Justice answered these questions in its O.G. judgment of 6 June 2023. According to the Court of Justice, a provision like the one challenged in the main proceedings contrasts with the principle of equality before the law enshrined in Article 20 of the Charter and with Article 4(6) of the Framework Decision, read in conjunction with the Charter provision. Article 4(6) of the Framework Decision must therefore be interpreted as meaning that, “in order to assess whether it is appropriate to refuse to execute a European arrest warrant issued against a thirdcountry national who is staying or resident in the territory of the executing Member State, the executing judicial authority must make an overall assessment of all the specific elements that characterise that national’s situation which are capable of showing that there are, between that person and the executing Member State, connections demonstrating that he or she is sufficiently integrated into that State such that the execution in that Member State of the custodial sentence or detention order pronounced against that person in the issuing Member State will contribute to increasing the chances of social rehabilitation. Those elements include the family, linguistic, cultural, social or economic links that the third-country national has with the executing Member State as well as the nature, duration and conditions of his or her stay in that Member State”. In the light of this judgment, the Constitutional Court declared the challenged provision incompatible with Articles 11 and 117(1) of the Constitution, read in conjunction with Article 4(6) of Framework Decision 2002/584 as interpreted by the Court of Justice of the European Union. The provision was also held to be in contrast 2 with Article 27(3) of the Italian Constitution since it precluded any third-country national from serving their custodial sentence in Italy regardless of their degree of integration in Italy, thereby impairing their chances of social rehabilitation after serving the sentence. Accordingly, the Court held that the provision was unconstitutional to the extent that it did not allow Italian judicial authorities to refuse the surrender of thirdcountry nationals legally and actually residing or staying in Italy and sufficiently integrated into Italian society in accordance with the criteria set out by the CJEU in its O.G. judgment. Taking into account that a recent amendment of the Italian law on the EAW has restricted the benefit of this ground for refusal to Italian and EU nationals who have been legally and continuously resident in Italy for at least five years, and having considered that this limitation is compatible with EU law, the Court held that the same limitation should apply to third-country nationals.
Judgment No. 177 of 2023
Silvana SCIARRA, President Francesco VIGANÒ, Judge Rapporteur
In this judgment, the Constitutional Court held, in accordance with the E.D.L. judgment by the Court of Justice of the European Union, that the execution of a European arrest warrant (EAW) should never expose the requested person to a serious health risk, since this would amount to a violation of their right not to be subjected to inhuman or degrading treatment, enshrined in Article 4 of the Charter of Fundamental Rights of the European Union. Should there be substantial grounds to believe that such a risk exists, the executing Italian judicial authority must postpone the surrender. It must also ask the issuing judicial authority to provide all information pertaining to the conditions under which it intends to prosecute or detain that person, including the possibility of adapting them to their state of health in order to prevent such a risk from materialising. If, in the light of the information received, it appears that such a risk cannot be ruled out within a reasonable period of time, the Italian judicial authority must refuse to execute the EAW. The case originated from a referral order filed by the Milan Court of Appeal, which had asked the Constitutional Court to rule on the compatibility of the Italian provision on the grounds for refusal of an EAW with various constitutional provisions, in particular with Articles 2 and 32, protecting the right to health. The referring court complained that the challenged provisions did not allow the executing authority to deny the surrender of a requested person when there are substantial grounds to believe that they could be exposed to a serious risk for their health, or even life, in the requesting State. In its Order No 216/2021, the Constitutional Court noted, firstly, that Articles 3, 4 and 4a of Framework Decision 2002/584 themselves did not include among the grounds for mandatory or optional non-execution of an EAW the scenario of a serious threat to the health of the person concerned due to potentially indefinite chronic illnesses that might arise from surrender. Secondly, it determined that the prospect of a temporary postponement of surrender, as prescribed by Italian law in accordance with Article 23 of Framework Decision 2002/584, could not be deemed an appropriate remedy under such circumstances. Therefore, the Constitutional Court submitted a request for a preliminary ruling to the Court of Justice, asking whether Article 1(3) of Framework Decision 2002/584, examined in the light of Articles 3, 4 and 35 of the Charter, “must be interpreted as meaning that, where it considers that the surrender of a person suffering from a serious chronic and potentially irreversible disease may expose that person to the risk of suffering serious harm to his or her health, the executing judicial authority must request that the issuing judicial authority provide information [allowing] the existence of such a risk to be ruled out, and must deny surrender of the person in question if it does not obtain assurances to that effect within a reasonable period of time”. The Court of Justice responded with its E.D.L. judgment on 18 April 2023 in the aforementioned terms. In the light of this decision, the Constitutional Court refrained from declaring the challenged provisions unconstitutional since they can now be interpreted in conformity with the fundamental rights in question.
Judgment No. 110 of 2023
Silvana SCIARRA, President Francesco VIGANÒ, Author of the Judgment
Radically obscure laws violate the principle of reasonableness enshrined in Article 3 of the Constitution.
Following an application by the national government, the Constitutional Court declared a regional legislative provision on buildings unconstitutional on the ground of its unintelligibility. In particular, the Court stressed that the provision was full of vague and unclear terms, lacked any reference to other laws – which made a systemic interpretation of it impossible – and included an initialism (“V. A.”) that the Region itself explained in two different ways.
The Court noted that the case law of other constitutional courts, like the French Conseil constitutionnel and the German Bundesverfassungsgericht, has constantly held that radically obscure laws are unconstitutional.
For the first time in its history, the Italian Constitutional Court came to the same conclusion. Having recalled several previous judgments requiring a minimum level of normative clarity and precision in criminal law and in closely related matters, the Court stated that also beyond these domains citizens have a natural expectation that the law will define ex ante and clearly the extent of their rights, so that they can make their choices on a reliable basis. By contrast, radically obscure laws do not give any guidance to administrative authorities as to their application, nor do they set any binding framework for the subsequent judicial review of administrative acts. Therefore, such laws infringe the principles of legality and separation of powers and pave the way for their arbitrary application, in violation of the principle of equal treatment.
Judgment No. 15 of 2023
Silvana SCIARRA, President Stefano PETITTI, Judge Rapporteur
In this case the Constitutional Court heard numerous referral orders
concerning provisions on COVID vaccination in relation to the workplace,
providing inter alia that workers in certain sectors who refused to be vaccinated
could be suspended without pay or any other compensation, whereas those who
could not be vaccinated due to medical reasons could be assigned to alternative
duties without any reduction in pay. The referral orders were joined as they all
concerned the legislation applicable to mandatory vaccination, and the resulting
implications for employment relationships in the event of the failure to comply
with that obligation by, inter alia, workers employed in hospitals, care homes and
The Court started by recalling its three-part test when considering the
constitutionality of any mandatory healthcare treatment: the treatment must
pursue a public health goal; the treatment must not cause adverse effects, save
those that are low in severity and/or ephemeral; and arrangements have been
made to provide “fair compensation” if any harm is caused to a person receiving
compulsory medical treatment. The Court held that it was unreasonable to require
with regard to head one of the test – as had been argued by one of the referring
courts – that there must be a guarantee of 100% vaccine efficacy.
Overall, it fell to the Court to assess whether the legislation on mandatory
vaccination was consistent with medical and scientific knowledge at the time of its
enactment. As regards this assessment, the Court has the power to review whether
the legislation was reasonable and proportionate in view of the underlying
The Court held that, in the face of the highly contagious respiratory virus,
spreading throughout the world, which could be contracted by any person, it was
not unreasonable to impose vaccination on certain categories of workers, and that
there was a reasonable causal link between vaccination and the reduction of virus
in circulation. Moreover, the requirement of vaccination was not rendered
unreasonable by the potential alternative option of requiring frequent testing, as
this would have done nothing to prevent serious illness amongst unvaccinated
workers, thereby impairing the proper operation of medical and care facilities, and
also creating an additional cost burden for the national health service.
The measure was also not disproportionate as the sacrifice of the worker’s
own rights did not have the nature or effect of a sanction, did not go any further
than was necessary in order to achieve the public goals of reducing the circulation
of the virus, was constantly adjusted in line with changes in the healthcare
situation and was also appropriate and necessary for the respective purpose.
As regards the consequence (suspension from work without pay), the Court
held that the constitutional right to work does not necessarily imply a right to
work where this would entail a risk for public health. Moreover, out of respect for
the right to self-determination of those who chose not to be vaccinated, the
legislation provided for a no-fault suspension only, and solely until the worker was
vaccinated or until the requirement was dispensed with, and not stipulate any
disciplinary measures. The difference in treatment between voluntarily
unvaccinated healthcare workers and workers in other sectors was justified by the
need to reduce as far as possible the risk of infection for the infirm people assisted
by the former workers. In addition, the difference in treatment between
voluntarily unvaccinated healthcare workers and healthcare workers who could
not be vaccinated on health grounds was justified on solidarity grounds.
The refusal to pay remuneration for the duration of suspension was justified
on the grounds that the inability to work resulted from an individual choice by the
worker, and not objective circumstances beyond the control of the worker. It was
unreasonable to impose the burden associated with the consequences of that choice
on the employer.
The Court thus rejected the questions as unfounded. A question referred by
an administrative court was ruled inadmissible on jurisdictional grounds, and
numerous interventions by parties affected by the legislation were ruled
Judgement No. 14 of 2023
Silvana SCIARRA, President Filippo PATRONI GRIFFI, Author of the Judgment
In this case, the Court considered various questions referred by the Council of Administrative Justice of Sicily Region concerning rules applicable in relation to vaccination against COVID-19. The referring court questioned the constitutionality of the requirement of mandatory vaccination for healthcare workers, as well as provisions requiring the suspension of the right to practise the medical profession in the event of non-compliance. It also objected that the legislation did not expressly dispense with the requirement to obtain signed, informed consent in situations involving compulsory medical treatment and mandatory vaccination. Citing the previous case law of the Constitutional Court, the referring court objected that the adverse effects caused by the vaccines were not “normal and tolerable”, and indeed were “higher by several orders of magnitude” than adverse events associated with previous vaccines. It also objected that no provision was made for pre-vaccination triage, which – by its assertion – would identify persons at risk of adverse reactions. The Court rejected the questions, holding that the risk of a serious adverse event does not in itself render unconstitutional the requirement of mandatory vaccination and that Article 32 of the Constitution requires that a balance be struck between the individual right to health and overall public health in accordance with the principle of solidarity. Moreover, in keeping with its existing case law, the Court reiterated that medical treatments – including mandatory vaccination – that may entail a risk of undesirable consequences, detrimental beyond normally tolerable limits, must be deemed to be lawful if their goal is to protect public health. The balance that the legislator must strike between individual health and public health is a discretionary one, although it must be based on scientific evidence. The Court may review whether the legislation is reasonable and proportionate and is consistent with the underlying scientific facts. After reviewing the scientific basis, the Court held in this case that the scientific authorities all attest that vaccines against SARS-CoV-2 are safe and effective. It also upheld the legislation as reasonable and proportionate, as it was necessary and appropriate to achieve legitimately pursued objectives, and that the consequences were nuanced as regards their duration and severity. Finally, the Court held that no issue of informed consent was raised in this case, as individuals were free to choose whether or not to comply with the requirement, although in the latter eventuality they would have to accept in a responsible manner the consequences provided for by law.
Judgment No. 8 of 2023
Silvana SCIARRA, President Emanuela NAVARRETTA, Judge Rapporteur
In this case, the Court considered referral orders from the Labour Division of the Ordinary Court of Lecce and the Labour Division of the Court of Cassation challenging a provision of the Civil Code dealing with cases of undue payment of social security benefits and wages. The referring courts alleged that the provision was unconstitutional since it failed to make undue public payments unrelated to pensions unrecoverable in cases in which they were received in good faith and the issuing institution created a legitimate reliance on the part of the recipient. Under the referring courts’ view, attempts to recover such payments amounted to disproportionate interference in the property rights of the recipients. The referring courts’ allegations rested on the Constitution in reference to supranational law, as interpreted by the European Court of Human Rights (ECtHR). The Constitutional Court held that the questions as to constitutionality were unfounded. The Court first identified the prerequisites that constitute legitimate expectation with regard to undue benefits payments, then turned to identify the mechanism put in place by the Italian system to protect such expectations and to determine whether it were suitable to avoid any conflict with the European Convention and the Italian Constitution. The Court found that the Italian system has a general clause that places due emphasis on the specific elements established by the ECtHR as the basis of legitimate expectation, and that there is a sufficiently protective structure in place to overcome any question as to a potential conflict with Article 117(1) of the Constitution. The existing protections were held to be sufficient to prevent disproportionate interventions, and, even where the debt was not extinguished, this does not necessarily mean that the remedy fails to meet the threshold of not-disproportionate interference. These remedies include the requirement that recovery of undue funds be allowed in instalments, time-limited, or limited to a partial recovering in view of the debtor’s circumstances and, in particular, their primary life needs. In light of all this, the Court held that the provision’s failure to make debts of this kind non-recoverable did not make the provision unconstitutional.