Fighting COVID 19 – Legal Powers and Risks: Italy

For obvious reasons, Italy found itself at the forefront of the fight against COVID-19. The leading policies are:

• containing and slowing down the outbreak;
• boosting up the national healthcare system to assist COVID-19 patients;
• supporting enterprises and families against the economic effects of the situation and the ensuing measures.

Particularly in the current month of March 2020, Italian authorities have enacted, and gradually intensified and extended, a lockdown on mobility, assembly and economic activities, currently encompassing the entire national territory. Such measures, unprecedented in democratic countries, have met praise by the World Health Organization. From a legal point of view, a vast array of legal instruments has been employed, and some have been crafted for this very occasion (for a complete list, see the references below). We focus here on national initiatives, but also Regions and Municipalities have employed their emergency powers, occasionally creating problems in coordination, e.g.:

• article 35 of decree-law no. 9/2020 (see below) felt the need to forbid and declare void emergency orders by local mayors, if conflicting with national measures;
• the Minister of Health chose to employ his own powers to order extraordinary measures in agreement with the Presidents of the interested Regions;
• the national Government challenged, before an administrative court, the closing of schools ordered by a Region before positive cases had been identified in its territory.

The measures can be grouped in three stages, which began in different moments and are currently running in parallel.

Phase 1 – State of Emergency

In a first phase, the national system of civil protection was activated. The national Government declared a state of national emergency (31 January 2020) and the Head of the competent Department (acting under the direction of the President of the Council of ministers) was empowered to take extraordinary measures.

A clarification is necessary. The Italian legal system provides several emergency administrative powers: in extraordinary circumstances, some administrative authorities may issue orders prescribing any measure necessary to manage emergencies, notwithstanding specific provisions in force, but in accordance with general legal principles. Various legal provisions confer such powers to national authorities (such as civil protection authorities, or the Minister of Health), as well as Regional and municipal authorities (when a health response is urgently required at the territorial level). Not complying with these measures is a criminal offence, albeit carrying a rather lenient sentence (arrest for a maximum of three months or fine up to 206 euro, unless the violation corresponds to a more serious offence).

The Head of the Department of Civil Protection used these powers mostly to accelerate the procurement of resources. At a later stage, he went slightly further, e.g.:

• suspending the payment of bank loans in the first areas which were put on lockdown (order no. 642);
• giving clarifications on the scope and content of decrees subsequently adopted by the President of the Council of ministers (order no. 646);
• extending to the whole national territory some measures initially limited, in said decrees, to certain areas (order no. 648).

Phase 2 – Lockdown

A second phase began with decree-law 23 February 2020, no. 6, the first of its kind issued in this contingency.

A decree-law is a decree having force of law, adopted by the Government in case of necessity and urgency, issued by the President of the Republic and immediately introduced to Parliament to be transposed into law – which must happen within 60 days, or the decree loses effect from the beginning. This is the main tool provided by the Italian Constitution (article 77) to face emergencies.

Decree-law no. 6/2020 mandates «competent authorities» to enact all the containment and management measures proper and proportionate to the evolving epidemiological situation. This includes prohibition to leave or enter certain areas; suspension of work, meetings, events and teaching activities; closing of offices and shops (with exceptions for essential goods and services); limitations to public transport; quarantine «with active monitoring» (home assistance and monitoring by healthcare services) in case of close contacts with confirmed COVID-19 patients.

These measures may be adopted through decrees of the President of the Council of ministers (DPCMs), after hearing the competent Ministers and Presidents of Regions. Temporarily, until the issuing of the DPCMs, the measures may also be adopted through the emergency administrative powers by other legal provisions.

This was the legal basis of the lockdown, which was gradually enacted in a series of DPCMs. Presently, the most relevant are:

• DPCM 8 March 2020, which (for certain areas) set limitations to mobility, assembly and economic activities, and prohibited everyone from moving from their home, unless for reasons related to work, necessity or health care;
• DPCM 9 March 2020, which extended said limitations to the entire national territory;
• DPCM 11 March 2020, that ordered the closing of all shops (except those dealing in food and essentials), restaurants, bars etc., as well as non-essential production units, and also renewed the prescription to favor teleworking and holiday leaves.

New orders are still coming through often, at several levels. E.g.:

• on the night of 21 March 2020, the President of the Council of ministers announced a general stop to non-essential production activities. This decision should become effective on 23 March 2020. It has been negotiated with trade unions and associations, and will exclude, e.g., food, supermarkets, banking, insurance and postal services, as well as essential public services such as transports;
• on the same 21 March 2020, with effect from the following day, the President of Regione Lombardia anticipated the lockdown on non-essential economic activities, and prohibited public meetings of more than two persons (with an administrative sanction of 5.000 euro), as well as outside sports, access to parks and gardens, and travel to second homes;
• on 22 March 2020, a joint order by the Ministers for Health and for Home Affairs (as national authorities for health and public safety emergencies) prohibited everyone from traveling to another municipality, except for documented reasons of work, absolute necessity or health.

These measures impact on several civil liberties, including the right to travel, assemble, and celebrate collective religious rites; the guarantee against mandatory health treatments; the freedom of carrying out private economic enterprises. Limitations to these liberties may only be established by a law of the Parliament, or by equivalent acts by the Government (such as decree-laws). E.g., under article 16 of the Constitution, every citizen has the right to travel freely in any part of the country, «except for such general limitations as may be established by law for reasons of health or security» («salvo le limitazioni che la legge stabilisce in via generale per motivi di sanità o di sicurezza»). Also due to the somewhat sketchy provisions of decree-law no. 6/2020, there has been a certain (scholarly) debate whether they offer a sufficiently clear and precise basis for every measure subsequently enacted: particularly, the strict limitations on individual liberties set out in DPCMs.

In the meantime, decree-law no. 6/2020 has been converted into law no. 13/2020, and more decrees (nos. 9, 11 and 14/2020) have been adopted, respectively concerning support for families, workers and enterprises in the initial “red zones”; judicial activities; and further measures concerning personnel, resources and organization of the health care system.

Phase 3 – Cure Italy

A third phase began with decree-law 17 March 2020, no. 18 (a.k.a. “Cure Italy”): a massive (66-page, 127-article) package of support measures in favor of families, workers and enterprises.

It includes, e.g.: boosts for the strengthening of health service and for the hiring of health workers, as well as for several branches of the public administration, including police and military forces; the suspension of fiscal dates and social security contributions; tax credits and incentives for enterprises to face the emergency; extraordinary earning supplements and unemployment benefits (also for self-employed workers); smart working as the default model in public administrations, and as entitlement for certain private-sector workers; parental leaves and vouchers for baby-sitting services; tax deductions for donations; special funds and liquidity support for enterprises. For social insurance purposes, quarantine has been made equivalent to illness, and contagions on work to industrial accidents. Dismissals for reasons due to production, work organization and its functioning are blocked for 60 days, but enterprises may resort to the redundancy fund (Cassa integrazione guadagni, CIG), which relieves them from the cost of unused workforce while supporting workers’ income. A more detailed summary may be found in this alert by KPMG.

These measures will be funded through the State budget. To this aim, the decree-law authorizes public debt issues for 25 billion euro. These funds will be managed through a variety of schemes and institutions, including the national institute for social security (Istituto nazionale per la previdenza sociale, INPS).

Basically, Italy will borrow money from the market to finance an emergency budget package addressed at the current crisis, considered as an «unusual event» for the purposes of national and EU budget discipline. Overall, the decree-law aims at mobilizing (also considering pre-existing funds, leverages etc.) a total of 350 billion euro.

An extensive political debate is to be expected on the scope and value of these support measures, as soon as the Parliament initiates proceedings for the transposition of the decree-law into law. It is obvious – and it should also be clear from the examples above – that the epidemic and lockdown are having a severe economic impact, currently tackled with a wide range of social security, and generally speaking public, support measures, financed through the national budget and deficit spending. The situation is still very much in a state of flux. Nevertheless, until now, there are no news concerning legal challenges to the measures, or claims for damages due to their effects, or controversies concerning breaches of obligations due to the epidemic or lockdown. Indeed, the situation seems to be considered as force majeure, preventing parties to perform obligations due to causes well beyond their (and anyone’s) foresight and control.

There were already some statutory clues to this effect. E.g., order no. 642 of the Head of Civil Protection (see above) states that (in the original “red zones”) the emergency is to be considered as a temporary cause of impossibility to fulfil obligations, not imputable to debtors (under article 1218 of the Civil code); therefore, the debtor is not liable for damages. Lately, similar provisions may be found in decree-law no. 18/2020: e.g., in article 56 (changes of terms for bank loans and credits). More generally, according to article 91, compliance with the emergency measures is always considered to exclude debtors’ liabilities, under articles 1218 and 1223 of the Civil code, also regarding forfeitures of rights and penalty clauses depending on non-compliance, or delayed compliance, of obligations.

Naturally, this emphasizes the importance of public support measures for a reasonable allocation and distribution of the economic risks and losses caused by the emergency. Some governance is needed, if they are not to simply rest wherever chance cast them, also to ensure an orderly economic recovery, as soon as possible. This will be the focus of the upcoming parliamentary debates on “Cure Italy”.

One last issue deserves to be mentioned in this blog, as it surely impacts on «matters constitutional». The measures adopted include the use of teleconference for meetings of public bodies, as well as for judicial proceedings. It remains to be seen how the Parliament will deal with epidemic risks, while ensuring its continued functioning in this very delicate phase, which already saw an unprecedented use of executive powers. Until now, gentlemen agreements have ensured the required quorum without all the members attending, but the possibility of remote votes has sparked legal and political controversies.

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References (Webpages dedicated to the Covid-19 emergency in Italy)

• Official Gazette of the Italian Republic (Gazzetta Ufficiale della Repubblica Italiana; official collection of the acts adopted by Government, Civil Protection, Ministries of Health and Economics and Finance)
• Parliamentary (Senate) proceedings on the “Cure Italy” decree (including a detailed dossier by the Research Service)
• Italian Government
• Ministry of Health
• Department of Civil Protection
• State Police (Polizia di Stato)
• Italian National Institute of Health (Istituto superior di sanità, ISS)
• Regione Emilia-Romagna
• Regione Lombardia
• Regione Veneto
• Epidemiological information by the ISS
• INPS (“Cure Italy” section)
• Biodiritto (Biolaw journal; collection of official acts, also from Ministries and Regions)
• Diritti regionali (Regional law journal; collection of official acts, also from Ministries, Regions and Municipalities)
• Legal debate:
  • Biodiritto
  • Diritti regionali
  • Federalismi.it (public law journal)

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Update, March 28th, 2020, 07:14

A new decree-law (25 March 2020, no. 19) provides a sort of consolidation of the lockdown measures. Most importantly, it:

• gives a wide coverage (having force of law) to the measures already adopted;
• tries to coordinate national and territorial emergency powers;
• shifts sanctions from criminal to administrative law.

The new decree-law recapitulates a long list of limitations and stipulates that – until 31 July 2020 – they may be established for 30 days, renewed and recalibrated, also differentiating among territories. The limitations may be imposed through DPCMs, or temporarily by the Minister of Health.

All the administrative orders and decrees, adopted until now by national authorities, are confirmed and validated, and their validity in time is regulated.

Presidents of Regions and Mayors are still allowed to enforce additional restrictions, but only:

• in case of specific territorial health emergencies;
• within their legal competences, and without impacting on economic activities of national relevance;
• with effect until corresponding measures are adopted at the national level.

Prefects may impose the carrying out of essential production and commercial activities.

Unless more severe criminal provisions apply, the default sanctions for violations (including those already committed) become:

• an administrative fine of 400-3.000 euro, increased by 1/3 if a vehicle has been employed;
• a 5-30 day closure for commercial and production activities.

If violations are repeated, the fine is doubled, and the closure applies at its maximum duration. The trespass of quarantine is still a criminal offence, with an increased sentence (3-18 month arrest, 500-5.000 euro fine).