Vaccine mandate invalidated in Italy

In its Judgment No. 25 of February 20, 2023, the Constitutional Court of Italy has invalidated the vaccine mandate imposed on Italian military personnel. Partial Google translation:

In view of all that has been said up to now, paragraph 1 of the challenged provision establishes that military healthcare declares it essential for the soldier to submit to "specific" vaccination prophylaxis, to assign him to "particular and identified operational or service conditions", but it does not predetermine the vaccines that can be imposed on the military, i.e. the pathologies that it is intended to combat.

By doing so, the art. 206-bis, paragraph 1, of the Italian Civil Code military order does not fulfill the need for it to be "determined", as required by art. 32, second paragraph, of the Constitution, the health treatment to be imposed.

It is not lost on this Court that the legislator, exactly as the relative legal reserve prescribed by the constitutional provision in question allows, is allowed to modulate its regulatory intervention taking into account the existence of particular needs for flexibility connected to the specific context in which the vaccination obligation is introduced.

This aspect is particularly evident in the case of prophylaxis intended for military personnel. This personnel can in fact be employed in multiple operational scenarios, in Italy and abroad, therefore in destinations and contexts characterized, each, by its own, and moreover variable, epidemiological risk, to be evaluated also in the same way as the concrete methods of carrying out and duration of the mission, as well as the activities it requires.

In such a context, on the one hand, the constitutional requirement of "determination" of the treatment must be satisfied by the primary source, at least in the form of the list of vaccines to which the military can be compulsorily subjected, for the purposes indicated above.

On the other hand, the aforementioned need for flexibility calls for both the intervention of subordinate regulatory acts which, within the framework of the list established by law, specify - on the basis of criteria in turn provided for by legislation - the parameters to be observed for selecting the vaccines according to the different conditions of use; both the punctual intervention of the administration, which, on the basis of this regulatory framework, concretely establishes, from time to time, which prophylaxis to impose on the military. This within the scope of a discretion to be exercised on the basis of assessments subject to the review of technical-scientific reliability available to the jurisdictional authority (among the recent ones, Council of State, third section, sentence of 5 December 2022, n. 10648 and sixth section, sentence 5 December 2022, n. 10624).

The challenged provision does not escape the task of orienting military healthcare in the sense just indicated, since it specifies, in paragraph 1, that vaccination prophylaxis, according to specific protocols, must be functional for employing military personnel "in particular and identified operational conditions or of service, in order to guarantee the health of individuals and the community"; and, in paragraph 2, analytically specifies the content of the aforementioned protocols, with particular regard to the methods of administering the vaccines (while paragraph 3 expresses a guarantee content for the military as regards the verification of the health reasons that can prevent vaccination, meaning that the paragraph also maintains the outcome of today's proceedings).

However, as mentioned, it evades the essential task of providing clarity to the vaccination obligation it intends to introduce, failing to identify, at least, the list of vaccines that can be made mandatory in the light of the different employment conditions of military personnel.

For this, the art. 206-bis, paragraph 1, of the Italian Civil Code military order is constitutionally illegitimate in the part in which it authorizes military health to impose on military personnel the administration of specific vaccination prophylaxis, without these being previously identified in legislation.

Naturally, due to the physiological evolution of medical-scientific data and the variation of the epidemiological risk that characterizes the many contexts in which military personnel can be employed, it is naturally up to the legislator to update, when necessary, the catalog of vaccines potentially mandatory.

Until the legislator has provided the task of providing clarity to the health treatment imposed in the terms indicated here, it is therefore understood that, at the end of this ruling, paragraph 1 of art. 206-bis of the code military system cannot establish a vaccination obligation for the military.

This news account provides the background.