No urgent precautionary suspension - but also a preliminary hypothesis of "clear inadmissibility" of the appeal - of the decree law with which on 6 August it was established that all school and university staff must possess and will be required to exhibit the Covid green certification- 19. Same thing for the provision according to which failure to comply with this obligation will be considered unjustified absence and, starting from the fifth day of absence, the employment relationship will be suspended. The TAR of Lazio decided it with a monochromatic decree.
The judge, premising that "a regulatory act with the value and force of law adopted by the government is the subject of an appeal" and that it is expected to enter into force from next September 1, 2021 and until December 31, 2021 ", has considering that "the nature of the contested act, attributable to the category of primary legislative sources, determines the inadmissibility of the appeal, not allowing the legal system - by virtue of the principle of separation of powers - the direct challenge of acts having the force of law , and since the administrative process is aimed solely at challenging administrative acts, including general ones of a secondary nature ".
Furthermore, having assessed "the absence of contextual appeal of applicative acts that constitute concrete execution of the encumbered decree law, which alone could determine the admissibility of the appeal - limited to such acts - and possibly allow the incidental question of constitutional legitimacy to be raised in order to the disputed decree law which constitutes the legal basis, since the review of legislative acts is reserved for the Council in terms of compliance with the Constitution and the names interposed ", the TAR considered that" the obvious inadmissibility of the appeal determines the absence of the prerequisites of admissibility of the application aimed at granting single-person precautionary measures ".
In conclusion, the request for the urgent precautionary suspension of the decree was rejected, with the setting for the collective discussion of the dispute in the council chamber on 6 October next.