I Dpcm, the decrees of the Prime Minister with which the Conte II government dictated the measures anti-Covid “They have not conferred on the President of the Council of Ministers a legislative function in violation of art. 76 and 77 of the Constitution, nor extraordinary powers from a state of war in violation of art. 78 of the Constitution ”, but only“ the task of giving execution to the primary norm ”contained in a precedent decree-law. The judges of the Constitutional Court in conclusion to the reasons for the sentence which on 23 September declared unfounded the first question of constitutionality raised by the justice of the peace of Frosinone. There was therefore no usurpation of the powers of Parliament by the former prime minister, as claimed several times by political opponents and by the former judge of the Council. Sabino Cassese: the Dpcm of 10 April 2020, at the center of the appeal, “was limited to to adapt all’trend of the pandemic as established in general by the primary source “, that is the decree-law 19 of 25 March 2020 converted into law by the Parliament on the following 22 May.
The question concerned one more from four hundred euros inflicted by the Carabinieri of Trevi in Lazio on a citizen who “yes moved on foot in the absence of proven work needs, of absolute urgency or health reasons “, in violation of the rules introduced by the Dpcm on the basis of the decree-law of 25 March. According to the Ciociarian justice of the peace, the lawyer Emilio Manganiello, this combination of rules would have “substantially delegate the legislative function regarding the containment of the pandemic (…) to the government authority for its exercise through mere administrative acts“- the Dpcm, in fact -” in contrast “with the undisputed principle of typicality of the sources-act of normative production”, and apart from the only hypothesis of constitutionally relevant emergency, that of the state of war “. In this way, he argued, it was “bypassed the cardinal principle referred to in Articles 76 and 77 of the Constitution, for which the legislative function is entrusted to Parliament, which can delegate it only with a law-delegation and in any case never to administrative acts “.
A reconstruction that the sentence signed by the extending judge Stefano Petitti bowl in full. The decree-law 19 of 2020, the decision recalls, had foreseen in a exhaustive list and mandatory (in paragraph 2 of article 1) what measures could have been adopted with Dpcm. “The primary source, therefore – write the judges of the Council – has typed the measures that can be adopted by the President of the Council of Ministers, thus precluding the Government authority from taking measures out of order“. In short, only to the tools provided strictly by the decree law – and only to those – the premier could appeal to intervene, which excludes a transfer of the legislative function to his hands. Furthermore, that list was accompanied by a criterion that guided “the exercise of discretion through the principles of adequacy e proportionality the risk actually present in specific parts of the national territory “. A provision “which is in itself completely incompatible with the attribution of legislative power and is much more consistent with the provision of a administrative authority, albeit generally effective. In essence – concludes the Court – the legislative decree 19 of 2020, far from giving rise to a conferment of legislative power to the President of the Council of Ministers in violation of articles 76 and 77 of the Constitution, is limited to authorize it to implement the typical measures envisaged “.
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