The ordinance of the mayor Carmine Lo Sapio remains in force who, to protect public health in the face of the worrying epidemiological situation recorded in Pompeii, had suspended teaching activities for all city schools of all levels.
In recent days, the appeal to the Regional Administrative Court to request the cancellation of the ordinance and the reopening of schools. Returning to the classroom for face-to-face lessons was not considered a decision that could be endorsed by the Regional Administrative Court which rejected the precautionary request, recognizing the validity of the choice of the first citizen even in the face of regional data that “show the Municipality of Pompeii among those be careful as they are subject to an increase in infections capable of having a particularly significant impact on the incidence of the disease at the regional level, which in itself seems to justify the provisional temporary restrictive measure “.
The TAR decree also reports that: “Considering that, in further support of the ordinance, the Municipality of Pompeii highlights the emergence of outbreak principles in the school environment, as reported by the competent health authorities”.
Below is the full text of the decree of the Fifth Section of the Campania Regional Administrative Court:
N. 00348/2021 REG.PROV.CAU.
N. 00736/2021 REG.RIC.
Campania Regional Administrative Court
pronounced the present
on the appeal of the general register number 736 of 2021, proposed by
-OMISSIS-, represented and defended by the lawyers Pasquale Salvo, Angelo Castelluccio, Michela Antolino, with digital address as per PEC from the Registers of Justice;
Municipality of Pompei, not constituted in court;
for the cancellation, after suspension of the effectiveness, of the municipal ordinance suspending the educational activities in the Municipality of Pompeii until February 28, 2021
Given the appeal and its annexes;
Given the application for single precautionary measures proposed by the applicants, pursuant to art. 56 cod. proc. amm .;
Considering that the appellants have challenged the Ordinance best indicated in the epigraph, asking for its suspension as a precautionary single measure, in the part in which it provides for the suspension of teaching activities in presence for all orders and grades of school until 28 February 2021;
Considering, preliminarily, that the validity of the Prime Ministerial Decree of 14 January 2021 does not exclude the persistent possibility, for the regional and local health authorities, to adopt more restrictive measures in the presence of supervening situations (or not considered in the said Prime Minister’s Decree), or by local specificities, justifications of the contingent and urgent power of order, in general provided for by art. 32 of Law 833/1978, and, in any case, by art. 3 of the legislative decree 25 March 2020, n. 19 and subsequent amendments, also referred to in the contested ordinance;
Considering that the contested Ordinance seems to be based on the updated investigation on the progress of the infection on a local scale (as obtained from the note of the regional crisis unit dated 9 February 2021, expressly referred to in the contested act, and, in particular, attached table 1, available on the regional and constituent website, due to its widespread diffusion in the region, a well-known fact that can be used in this judgment), which effectively highlights the increase, in absolute terms and as a percentage, of new infections for the Municipality Pompeii, much higher than that found in other municipalities of Campania and in any case the regional average, with specific regard to the data relating to the student population (in the disturbing percentage of 251%);
Considering that the precautionary principle obliges the competent Authorities to take appropriate measures in order to avert potential risks to public health, without having to wait for the actual existence and seriousness of such risks to be fully demonstrated and before more advanced and resolutive contrasting techniques (see, ex multis, State Council, section IV, 11 November 2014, no. 5525 and section V, 18 May 2015, no. 2495);
It is also recalled that the precautionary principle, whose legal features are identified along the indicated exegetical path based on the combination of risk analysis – necessary nature of the measures adopted, presupposes the existence of a specific risk at the outcome of an assessment. possible complete, conducted in the light of the available data that are more reliable and which must conclude with a judgment of strict necessity of the measure (ex multis, Cons. State, section V, no. 6250/2013; Cons. Giust. Amm. Sicily Section. Jurisdiction., N. 581/2015; Cons. State, section. IV, n. 1240/2018);
Considering that the aforementioned note of the regional crisis unit contains a forecasting model of “alert” on the basis of data referring to the spread of the virus in school age groups, referring to individual territorial contexts and highlighting, as far as is relevant here, strategic paths in the settings of pandemic interest graduated on the basis of the severity of the phenomenon, in order to avoid generalized restrictive measures, as such disproportionate to the purpose of protecting health;
Considering that – apart from the shareability, on a scientific level, of the results and strategies highlighted in the aforementioned note and the intrinsic provisional nature of its conclusions, intended to deal with the necessary continuous adaptations deriving from the development of knowledge and verification of the results – the aforementioned report of the Regional Crisis Unit undoubtedly constitutes, at present, an organic operational base for the decisions reserved to the Directors of the individual territorial contexts, in order to avoid, on the one hand, the exploitation of impromptu data, generic or without objective bases and, on the other hand, the discrepancy of behaviors that generate unequal treatment between the administrators;
Considering that the contested ordinance is based among other things in said data, which show the Municipality of Pompeii among those considered as subject to an increase in infections capable of having a particularly significant impact on the incidence of the disease at the regional level, which seems in itself justify the provisional temporary restrictive measure;
Considering that, in further support of the ordinance, the Municipality of Pompeii highlights the emergence of outbreak principles in the school environment, as reported by the competent health authorities;
Considering, from another point of view, that the temporary duration of the trade union measure, arranged until February 28, 2021, excludes the emergence of an “extremely serious and urgent” prejudice, a prerequisite for the granting of the invoked single-person protection, in the face of the detected need to protect health, increasingly in the presence of risks connected to the notorious emergence of new viral “variants”;
Furthermore, it was held that, in the meantime, school activities can be ensured with alternative methods to face-to-face teaching;
Considering, for all the foregoing, having to reject the precautionary request as proposed;
Considering having to set the hearing for the collegial discussion of the precautionary application as in the device;
Rejects the precautionary request.
The council chamber of 16 March 2021 is set for the collegial discussion.
This decree will be executed by the Administration and is deposited with the Secretariat of the Court which will notify the parties.
Considering that the conditions referred to in Article 52, paragraphs 1 and 2, of Legislative Decree 30 June 2003, no. 196, and Article 9, paragraph 1, of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, to protect the rights or dignity of the interested party, sends the Secretariat to proceed with the obscuring of generality as well as any other data suitable for identifying the applicants.
So decided in Naples on February 23, 2021.
The President Maria Abbruzzese
I hope you are in health and well.
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