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N. _____ / ____ REG.PROV.CAU.
N. 11506/2020 REG.RIC.
ITALIAN REPUBLIC
The Regional Administrative Court for Lazio
(Section One)
pronounced this
ORDER
on the appeal number of the general register 11506 of 2020, supplemented by reasons
added, proposed by
xxxx, on their own and as parents exercising parental authority
on the minor xxxxx, represented and defended by the lawyers Francesco Scifo e
Linda Corrias, with digital address as per PEC of the Registers of Justice;
versus
Presidency of the Council of Ministers, Ministry of Health, Ministry of the Interior,
Ministry of Education, in the person of their respective pro tempore legal representatives ,
represented and defended by the State Attorney General, where they are
domiciled by law in Rome, via dei Portoghesi, 12;
Autonomous Province of Bozen and Bolzano-Europe Multi-Comprehensive Institute 1, non
constituted in court;
and with the intervention of
ad adiuvandum :
xxxxxxxxx,
represented and defended by the lawyer Antonella Stefani, with digital address as per
PEC from the Registers of Justice;
International Coordination of Associations for the Protection of Minors (CIATDM)
ONLUS, represented and defended by Annalisa Del Col, Alessandra Barana
and Alessandra Devetag, with digital address as per PEC of the Registers of Justice
and elected domicile at the xxx studio in Pordenone, viale Martelli,
11;
xxxxx, represented and defended by the lawyer. Nino Filippo Moriggia, with
digital domicile as per PEC of the Registers of Justice;
xxxx, on their own and as
exercising power over the minor xxxxxxxx, represented and defended
by the lawyer Clara Provezza, with digital address as per PEC of the Registers of
Justice and elected domicile at his office in Milan, via Simone D'Orsenigo,
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6;
xxxxxxxx, represented and defended by Laura Mana e
Monica Seri, with digital address as per PEC from the Registers of Justice;
xxxxxx with 942 others (if od. O.) Intervening, represented and defended
by lawyers ti Nino Filippo Moriggia, Mauro Sandri and Maurizio Giordano, with
digital domicile as per PEC from the Registers of Justice;
for cancellation
after suspension of effectiveness,
as for the introductory appeal :
- of the decree of the President of the Council of Ministers of 3 December 2020, laying down
"Further implementing provisions of the decree-law of 25 March 2020, n. 19, converted,
with amendments, by law 22 May 2020, n. 35, bearing: «Urgent measures for
coping with the epidemiological emergency from COVID-19 "and the decree-law 16
May 2020, n. 33, converted, with amendments, by law 14 July 2020, n.
74, bearing: «Further urgent measures to deal with the epidemiological emergency
from COVID-19 ", as well as the decree-law 2 December 2020, n. 158, bearing:
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«Urgent provisions to deal with the health risks associated with the spread of
COVID-19 virus ", art. 1 paragraph 1 letter. b) and paragraph 9 lett. s), where it does not provide
the exemption or exemption circumstances for minors under the age of 12 as provided
from the international guidelines WHO and Unicef ";
as for the additional reasons :
- of the Decree of the President of the Council of Ministers of 14 January 2021
"Further implementing provisions of the decree-law of 25 March 2020, n. 19, converted,
with amendments, by law 22 May 2020, n. 35, bearing: «Urgent measures for
coping with the epidemiological emergency from COVID-19 "and the decree-law 16
May 2020, n. 33, converted, with amendments, by law 14 July 2020, n.
74, bearing: «Further urgent measures to deal with the epidemiological emergency
from COVID-19 ", as well as the decree-law 2 December 2020, n. 158, bearing:
«Urgent provisions to deal with the health risks associated with the spread of
COVID-19 virus ", art. 1 paragraph 1 letter. b) and paragraph 9 lett. s), where it does not provide
the exemption or exemption circumstances for minors under the age of 12 as provided
from the international guidelines WHO and Unicef;
- of the entire Prime Ministerial Decree as an act directly damaging to the applicants;
- of all the acts challenged with the introductory appeal, as presupposed acts.
Given the appeal, the additional reasons and related annexes;
Given the act of appearance in court of the Presidency of the Council of Ministers
with the Ministry of Health, the Ministry of the Interior and the Ministry of Education;
Given the request for suspension of the execution of the contested provision,
presented incidentally by the appellant;
Given the intervention documents;
Given the art. 55 cod. proc. amm .;
Having seen all the acts of the case;
Withholding its jurisdiction and competence;
Speaker, in the council chamber on 10 February 2021, Dr. Laura
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Marzano in remote connection via videoconference, pursuant to art. 4 DL
28/2020, converted into law, with amendments, by art. 1 L. 25 June 2020, n.
70, to which art. 25 DL 137/2020, as specified in the minutes;
Given that:
- that the applicants state that their youngest daughter is attending school
of the obligation and is forced to use the mask continuously at school without
exceptions, with the aggravating circumstance that the PPE is also imposed during the hours of
physical education without exception;
- that they, in remembering that this tax derives from art. 1 paragraph 1 letter. b) and
paragraph 9 letter. s) of the Prime Ministerial Decree of November 3, 2020 which has been exactly replicated
in the subsequent Prime Ministerial Decree of December 3, 2020 and January 14, 2021, subject to
appeal, believe that these measures, as regards the imposition of use
masks to children during school hours, are affected by numerous
vices, including that of abnormalities, affecting inviolable rights
going beyond the power attributed to the President of the Council of Ministers;
- that, in particular, as regards the measure in question, they complain about the defect of
motivation and preliminary investigation, as no evaluation of the
actual local and regional epidemiological situation nor resulting reasons
specifications for which the bezel cannot be removed under
static nature, when it is possible to guarantee the spacing between the counters, such as
recommended by WHO and UNICEF, as well as by the Technical Committee itself
Scientific (CTS);
- which, therefore, they argue that the disputed provision of the Prime Ministerial Decree would be
illogical, without motivation, technically implausible and, also, a harbinger of
potential damage to the psycho-physical health of children, recalling some studies
scientists evaluating the possibility of hypoxia caused by prolonged use of
masks;
- that, from this last point of view, they point out that their youngest daughter, although not
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having specific pathologies, he has revealed and evident problems of defect
oxygenation for prolonged use of PPE during the whole lesson time, such as
documented by medical certification;
- that, moreover, they denounce the lack of preliminary investigation and motivation also in
order to the balancing of constitutionally guaranteed values, possibly placed
at the basis of the contested measure;
- that, with additional reasons, the applicants, in challenging the measure of identical content
replicated in the Prime Ministerial Decree of 14 January 2021, they ascribe the same vices;
- that the administration has appeared in court supporting the legitimacy of the
measures challenged on the basis of the principles of precaution, proportionality and
adequacy according to the epidemiological context in place as well as dwelling
on the issue of the constitutional legitimacy of the emergency legislation issued for
contain the risks deriving from the spread of the Covid-19 contagion, in particular
analyzing the nature of extra- ordinances of necessity and urgency of the DPCM,
affirming compliance with the absolute law and jurisdiction reserve,
discussing the issue of the limit to fundamental rights based on
balancing with other rights and freedoms recognized by the Constitution;
- that, as regards the specific issue of the use of masks in the school environment,
the state defense recalls the note from the Ministry of Health - General Management
of the Prevention of 29 December 2020, filed in compliance with the ordinance
investigation issued in another dispute but also paid in deeds in the present
judgment, which would have ruled out that the use of masks during the hours
scholastic may cause harm to the physical and mental health of minors
between 6 and 11 years;
- that the intimate administrations maintain that the contested provision would be
in line with the indications provided on the subject by the CTS in minutes no. 104 of 31 August
2020, in which the technical recommendations for the use of the
surgical mask at school and that the Ministry of Education published on
its institutional website a note dated 9 November 2020, addressed to executives
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scholastics in order to dispel some interpretative doubts on the use of masks, in
to which “the opinion expressed by the CTS in minutes no. 124 relating to
session of 8 November 2020;
- that moreover the CTS, in the minutes n. 143 of 8 January 2021, he would have made his own
the notice expressed by the Ministry of Health in the note prot. n. 42458 of 29
December 2020 and recalls that the CTS had already expressed itself in the minutes no. 124 of
meeting of 8 November 2020, clarifying the scope of art. 1 paragraph 9, lett. s), of
DPCM November 3, 2020 and recalling the minutes no. 104 of 31 August 2020 of
same CTS;
- that, in any case, the state defense supports the unquestionability of the assessments
technical-scientific administration of the Administration for which manifest error has not been proven
and that they remain within the sphere of opinion within the community
scientific as, dealing with technical discretion, the trade union
jurisdictional should be limited to the examination of "extrinsic" reasonableness and of
absence of obvious illogicality of the motivation of the measures adopted on the basis
the opinions of the bodies (such as the CTS) institutionally responsible for this;
- that the interveners, all parents of children under 12, as well as an ONLUS
which has as its corporate purpose the protection and promotion of children's rights,
in adhering to the complaints contained in the additional grounds, they formulated grievances
of similar tenor with which, in a nutshell, they censor the DPCM of 14
January 2021, in the part of interest, for lack of preliminary investigation and motivation, for
unreasonableness and lack of proportionality where the obligation to wear the
masks was imposed on children between the ages of 6 and 11, in
absence of scientific studies demonstrating its usefulness and absolute necessity
generalized obligation, even where schoolchildren are seated at the desk and between the desks
there is the prescribed distance, contrary to the indications of the CTS itself;
- that all parts report the danger of prolonged use of the mask
can have negative consequences for the physical and mental health of children,
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recalling, in this regard, scientific studies which would not exclude this risk;
Detected:
- that, although there are no precautionary requirements relating to the contested acts
with the introductory appeal, which have lost effectiveness, the examination of the same yes
imposes for reasons of logical and legal antecedence as well as for compensation purposes
announced by the applicants;
- that the contested measure was imposed, for the first time, with the DPCM of 3
November 2020, which recalls minutes nos. 122 and 123 of the sessions of the CTS,
respectively, of 31 October and 3 November 2020;
- that the first (no. 123) did not concern the measures relating to teaching in
"Presence" and, in the second (n. 124) the CTS, called to express an opinion on the
draft of the adoption of the DPCM, he limited himself to evaluating “congruous the general layout
of the Prime Minister's Decree relating to the adoption of further measures aimed at containing the
contagion from the Sars virus - coV-2 commensurate with the current epidemiological phase "without
nothing to indicate on the specific point of the use of masks at school;
- that in the minutes no. 124 of 8 November 2020, subsequent to the aforementioned date
DPCM, in answering some questions posed by various Ministries, the CTS after having
reported the text of the contested provision found that “the same Prime Ministerial Decree
does not indicate any exceptions related to distancing for the school context "
adding that “also in consideration of the trend of the contingency
epidemiological, the CTS considers it desirable and appropriate to confirm the measure
adopted in coherence with the scalability of the measures envisaged by the “Measures of
prevention and recommendations for school students of all levels
for the resumption of the school year 2020-2021 "approved in the session of the CTS of
31/08/2020 ";
- that in the aforementioned report no. 104, dedicated exclusively to the theme of
imminent reopening of all schools, we read: “ The restart of activities
schools, therefore, must continue to take evolution into account
of the epidemiological trend, also providing for modularity and scalability
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preventive actions including the one in question [NDR the use of the mask].
In particular, the World Health Organization, in a recent document
of 21 August provides indications regarding the use of masks in the field
school, differentiating them by age groups: - Between 6 and 11 years: conditional use
the local epidemiological situation, paying attention, however, to the context
socio-cultural and factors such as the child's compliance in using the
mask and its impact on learning skills; - From 12 years onwards:
use the same forecasts of use as adults ";
- which, again in the same minutes, the CTS states: “ Stressing the importance
of the use of these masks, it is specified that: -In primary school,
to facilitate learning and relational development, the mask can be
removed in static conditions (ie children sitting at the counter) with respect for
distance of at least one meter and the absence of situations that foresee the possibility
aerosolization (eg singing) ";
- that, therefore, in the specific document in which the CTS expressed its opinion on the
theme of the use of masks at school, in advance of adoption
of administrative acts (minutes n.104 of 31 August 2020), this technical body-
scientific advice did not recommend to impose its use, indiscriminately, on children
aged between 6 and 11, stating vice versa that “ the mask can
be removed in a static condition (ie children sitting at the counter) with the
respect for the distance of at least one meter and the absence of situations that foresee
the possibility of aerosolization (eg singing) ";
- that, again in the minutes no. 104, the CTS specified that the restart of the activities
school will have to continue to take into account the evolution of the trend
epidemiological, also providing for a “ modularity and scalability of the actions of
prevention "including that of the use of masks, therefore excluding one
indiscriminate imposition of the use of masks but suggesting to modulate e
scale the measures in pejus or in melius in consideration of both evolution
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of the epidemiological trend and of the objective “respect for the distance of at least
one meter "between the benches;
- that, again, in the minutes under review the CTS reiterated “ that the distancing
physical (intended as a minimum distance of 1 meter between the pupils' mouth rhymes and, a
greater protection of teachers, of two meters in the interactive area of the chair
between the teacher himself and the desks) remains one of the points of primary importance
in the actions of prevention of epidemic containment and is to be understood in
school context, in general, both in static and moving conditions ";
- that, in the minutes no. 133 of 3 December 2020, referred to in the subsequent DPCM of
3 December 2020, the CTS assessed the general layout of the draft of
DPCM submitted to your attention, but did not express anything in order
the imposition of masks on children during school hours;
- that, finally, also in the minutes no. 144 of 12 January 2021, referred to in the Prime Minister's Decree
of 14 January 2021, the CTS did not make any observations on the measure in
speech, object of appeal;
Considered:
- that, on the basis of the reconstruction carried out so far, the Prime Ministerial Decree of 3 November
2020 seems to have deviated from the preventive and specific indications provided by the
CTS in the minutes n. 104 quoted, without however giving any reasons on the reasons for
different opinion and without adducing or recalling different preliminary evidence
notice, in cases deemed to prevail over the technical-scientific opinion of the CTS;
- that, in fact, the two minutes of the CTS (no.122 and no.123) referred to in the Prime Ministerial Decree of 3
November 2020 which, for the first time, imposed the unconditional use of the
mask for children under 12, express nothing on the specific point
object of complaint, so that there appears to be the alleged lack of motivation and of
investigation;
- that the same defect appears perpetuated in subsequent Prime Ministerial Decree, in the part in which
they reiterated the censored measure without providing for the possibility of removing the
mask “ in static conditions (ie children sitting at the counter) with respect
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of a distance of at least one meter and the absence of situations involving the
possibility of aerosolization (eg singing) ", as recommended by the CTS in the minutes no.
104, in the absence of a different and / or prevalent preliminary support;
- which, in order to cover a measure, which the applicants strongly believe
invasive and potentially harmful to the psycho-physical health of minors, it does not seem
the mere evaluation of the adequacy of the general system of the subsequent ones is sufficient
DPCM expressed by the CTS;
- that, more and more, the position of the CTS appears perplexed which, in the minutes no. 124 relative
at the session of 8 November 2020, “believes it desirable and appropriate to confirm the
measure adopted "but" in line with the scalability of the precautions "envisaged by the
“Prevention measures and recommendations for school students of all
order and grade for the resumption of the school year 2020-2021 ", approved in
session of the CTS n. 104 of 31 August 2020;
- which, indeed, since the aforementioned document expressly indicated the possibility of
remove the mask in a static condition and with the spacing, appears
intrinsically contradictory is the affirmation of hoping for the confirmation of one
measure that was placed in dystonia with the document “Prevention measures e
recommendations for school students of all levels for recovery
of the school year 2020-2021 ", continuing however to postpone and, substantially,
to confirm the full validity of this document;
- that, finally, the note from the Ministry of Health - General Direction of
Prevention of December 29, 2020, indicates only certain evidences
have been assumed as the technical-scientific basis of the imposition
of the contested measure, but limits itself to referring to various scientific literature in which
the issue of possible repercussions on the psycho-physical health of children is addressed
resulting from prolonged use of the mask, in which discomfort was detected
psychological use caused by this use and it was considered “that the perceived discomfort and the
negative attitudes associated with the use of masks during the pandemic
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COVID-19 can be at least partially explained by attempts to comply
three basic psychological needs (autonomy, relationship and understanding), rather than
with a real physiological discomfort ";
- that the CTS, in the minutes no. 143 of January 8, 2021, did not “own” the notice
expressed by the Ministry of Health in the note prot. n. 42458 of 29 December 2020,
as claimed by the tax defense, but limited itself to acquiring it and retransmitting it to
Litigation Service of the Department of Civil Protection for the follow-up of
competence, without providing any autonomous response to the inquiry request in
function for which this note was prepared;
- that, therefore, the validity of the argument appears to be confirmed overall
lack of preliminary investigation and motivation;
Valued:
- that the precautionary needs proposed by the applicants - without prejudice to the legitimate
exemption from the use of PPE "for people with pathologies or disabilities incompatible with
the use of the mask ", where certified, as required by art. 1, paragraph 9, lett. s)
of the contested measures - can find adequate protection in a remand
to the administration to re-evaluate the prescription under review, concerning
the obligation for minors between the ages of 6 and 11 to wear the
mask in the school environment, in light of the specific indications dictated by
CTS in the document “Prevention measures and recommendations for students
of schools of all levels for the resumption of the school year 2020-2021 ",
providing, if necessary, the possibility of removing the mask “ in condition of
static (ie children sitting at the desk) with respect for the distance of at least one
meter and the absence of situations that foresee the possibility of aerosolization (eg.
canto) "and also taking into account, possibly and in the light of scientific data, the
local epidemiological situation as suggested by the World Organization
of Health in the document of 21 August 2020 referred to by the CTS in the aforementioned
minutes no. 104;
- that the administration will have to provide for this on the occasion of the re-edition of
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power, in view of the expiry of the DPCM of 14 January 2021, which remains
effective also in the part subject to appeal and up to new decisions
of the administrative authority, in compliance with the precautionary principle;
Considered:
- that a public hearing on 14th must be set for the discussion of the merits
July 2021;
- that the expenses of this phase can be compensated in consideration
the absolute novelty of the issues dealt with;
Also noted:
- that access to the digital file requested by Ms
, the latter having to be
ousted, to the state, from the judgment, having deposited an irrational memorandum of
constitution;
PQM
The Regional Administrative Court for Lazio, Rome, Section One, accepts
the aforementioned precautionary request in accordance with the motivation, maintaining firm
the effectiveness of the contested provision.
Fixed, for the discussion of the merits, the public hearing of July 14, 2021.
It compensates all the parties for the expenses of this phase.
Authorizes Messrsxxxxx to access the file
digital. xxxxxx excluded from the judgment.
This ordinance will be executed by the Administration and is filed with the
court secretariat that will notify the parties.
Considering that the conditions referred to in article 52, paragraphs 1, 2 and 5, of the
legislative decree 30 June 2003, n. 196, and of article 6, paragraph 1, letter f),
of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016, sends the Secretariat to proceed, in case of reproduction in any
form, obscuring the personal details of the two minors and their respective subjects
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exercising parental authority, mentioned in the provision.
So decided in the council chamber of Rome on 10 February 2021, in
remote connection via videoconference, pursuant to art. 4 DL 28/2020,
converted into law, with amendments, by art. 1 L. 25 June 2020, n. 70, of which
refers to art. 25 DL 137/2020, with the intervention of the magistrates:
Antonino Savo Amodio, President
Laura Marzano, Director, Writer
Francesca Petrucciani, Director
THE EXTENDER
PRESIDENT
Laura Marzano
Antonino Savo Amodio
THE SECRETARY
In case of disclosure, omit the personal details and other identification data of the interested parties within the terms
indicated.