From the EU not much is to be expected in relation to preventing discriminatory and unnecessary measures taken by the national governments.

E.g.: the European Parliament gave a bad example by introducing the discriminatory covid-19 pass to enter the parliamentary buildings, even when the chance to get infected in these buildings is low [*1].

It is therefore not surprising that an Italian who filed complaints against the Italian government with the Committee of Petitions (PETI) of the European Parliament is receiving an inadequate answer from the European Commission (saying it has not the competence to intervene). The complaint is one of the subjects during the meeting of PETI of 1 December [*2] and is calling for the procedure provided for by Article 7 of the Treaty on European Union to be triggered against the Italian Republic.

In the notice regarding the petition the complaint is described as follows:

1. Summary of petition
The petitioner complains about the measures taken by the Italian Government to counter the spread of the COVID-19 virus, saying they restrict personal freedoms and rights guaranteed by the Italian Constitution and recognised in Article 2 of the Treaty on European Union (TEU). The petitioner points out that these measures were adopted through prime ministerial decrees as provided for in the civil defence code. However, the latter does not envisage health emergencies as a ground for declaring a state of emergency. Furthermore, the petitioner deplores an alleged lack of transparency by the Italian government, which would deny citizens access to the minutes of meetings of the technical-scientific committee set up at the prime minister’s office to offer the government guidelines on public health protection. Lastly, the petitioner criticises the constant scaremongering by the mass media, which could help create a state of anxiety and panic in the population. Fearing that the Italian Republic is drifting towards authoritarianism, contrary to the fundamental values of the European Union, the petitioner asks Parliament to consider whether the procedure provided for in Article 7 TEU to determine whether EU values are being complied with, should be triggered.

The notice contains the Commission reply:

3. Commission reply, received on 19 August 2021
Democracy, the rule of law and fundamental rights are founding values of the European project. Since the beginning of the COVID-19 pandemic, Member States’ governments took emergency measures to address the health crisis caused by the outbreak of the coronavirus.

The Commission has made clear from the outset that the response to this crisis must fully respect the fundamental principles and values as set out in the Treaties. Emergency measures must be limited to what is necessary, strictly proportionate, clearly restricted in time, and in line with constitutionally enshrined safeguards, as well as European and international standards. Moreover, governments must make sure that such measures are subject to regular scrutiny, fully respecting democratic checks and balances. Effective national checks and balances upholding respect for the rule of law are key to ensuring that any such restrictions on our rights are limited to what is necessary and proportionate, limited in time and subject to oversight by national parliaments and courts.

The Commission is closely monitoring the emergency measures taken by Member States, including Italy and their impact, in particular on the rule of law, on fundamental rights, and on European Union law.

As regards the rule of law in Italy, the Commission is monitoring developments concerning the Italian justice system in the context of the annual Rule of Law Report¹ and its follow-up. The report covers key developments in all the Member States as regards justice systems, anti-corruption frameworks, media pluralism, and other institutional issues relating to checks and balances. The 2021 Rule of Law Report, including the country chapter on the rule of law situation in Italy, was adopted on 20 July².

In particular, the country chapter on the rule of law situation in Italy provides information on the emergency regime in place in Italy in the context of the COVID-19 pandemic. It notes that the measures to tackle the COVID-19 pandemic were adopted under a state of health emergency declared by the Government in form of decree-laws, which are immediately effective and are then converted into law by Parliament. In addition, it notes that certain of the measures have been challenged before the administrative courts and the Constitutional Court.

With regard to the alleged violations of fundamental rights, as enshrined in the EU Charter of Fundamental Rights (the Charter)³, including the right to be informed, as enshrined in Article 11 of the Charter on freedom of expression, the Commission recalls that, under the Treaties on which the European Union is based⁴, the Commission has no general powers to intervene with the Member States in the area of fundamental rights. It can only do so if an issue of EU law is involved. According to its Article 51(1), the Charter applies to Member States only when they are implementing EU law.

Based on the information provided by the petitioner, it does not appear that the matter to which he refers is related to the implementation of EU law. In such cases, it is for Member States, including their judicial authorities, to ensure that fundamental rights are effectively respected and protected in accordance with their national legislation and Constitution as well as their international human rights obligations.

Finally, on the basis of the information provided by the petitioner, there are no grounds, which would justify the launching of a procedure under Article 7 (1) of the Treaty on European Union (TEU) as regards Italy.

Conclusion
It is up to the Member States to decide and implement the most effective and efficient measures to counter the effects of the COVID-19 pandemic, while ensuring respect of national law, Constitution as well as their international human rights obligations. As underlined again in the second annual Rule of Law Report published on 20 July 2021, the Commission continues to monitor the emergency measures taken in all Member States and the results of this monitoring are reflected in the 2021 Rule of Law Report where relevant.

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¹ https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism_en
² COM (2021) 700 final. See: https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism/2021-rule-law-report/2021-rule-law-report-communication-and-country-chapters_en
³ Charter of Fundamental Rights of the European Union, OJ C 326, 26.10.2012, p. 391–407.
⁴ Treaty on European Union and Treaty on the functioning of the European Union

In an earlier post on this blog I wrote on an order of the President of the General Court of 29 October in an Italian covid-19 certificate case.

[*1] Read this post. I still see newsletters of the European Parliament mentioning the covid-19 pass, so it is still in force.

[*2] Item 41, Petition 0893/2020 by S.B. (Italian) calling for the procedure provided for by Article 7 of the Treaty on European Union to be triggered against the Italian Republic.