The short circuit of the emergency decree (by Becchi and Palma on the Riformista)
by Paolo Becchi and Giuseppe Palma in " Il Riformista " of 22 May 2021:
In recent days, the Council of Ministers has passed another decree-law, awaiting publication in the Official Gazette, which provides for a new phase for reopening. These are significant and long-awaited decisions, in the logic of that "calculated risk" that Draghi spoke of. But one point is worth dwelling on.
The Draghi government has accustomed us to the use of decree-laws, that is, acts having the force of law to be converted into law within sixty days, in discontinuity with his predecessor Conte who instead had accustomed us to the dpcm, mere administrative acts. A positive change of pace that also affects Parliament, albeit limited to the conversion phase. At the moment, as administrative acts of the government, practically only the orders of the Ministry of Health remain, which however with the new executive are less and less. So far so good.
But a new legal problem has arisen. Of the latest decrees-laws issued by the government on emergency matters, at the moment only that of April 1, 2021, will see the conversion into law by the end of this month, no. 44, on the vaccination obligation for medical-health personnel. The second, no. 52 of 22 April 2021, the one that provides for the first reopening and the "green certificate" for travel between Regions of different colors (which we have already talked about), is in the Chamber but the conversion process has not yet come into its own . The last decree-law will soon arrive in Parliament, the one passed just a few days ago, which on reopening provides provisions that are in contrast with those contained in the decree-law n. 52/2021 which has yet to begin the conversion process.
A nice headache. Let's try to get our hands on it. All the decree-laws are immediately effective, starting from the day following their publication, and then lose effect in place of their conversion laws, or if they are not converted into law by the Chambers within sixty days. If the decree-law no. 52 of 22 April was converted into law before that of 17 May (which is probable given the times), we would have a paradoxical situation: a conversion law of mid-June containing the rules of 22 April that would prevail over the rules of the decree-law of 17 May awaiting conversion (by mid-July). In practice we could find ourselves from 21 June with a curfew again at 10 pm despite a decree-law pending conversion providing for its repeal.
All this is the consequence of the abuse of the decree-laws, a short circuit of the emergency decree. This is why the government will probably run for cover with a collage to make your skin crawl. Draghi could in fact bring the decree-law of 17 May to Parliament for conversion into law, bringing the rules of decree-law n. 52 of 22 April limited only to the rules on the “green certificate”, leaving the rules on reopening in contrast with the most recent decree-law to lapse. In short, Parliament will not understand anything and will find a mosaic made up of pieces of two decrees with different content to be converted into law.
And here a constitutional problem opens up. The sentence of the Constitutional Court n. 22 of 2012 in fact established that " the simple introduction of a provision into the body of an objectively or teleologically unitary decree-law does not, for this reason alone, convey to it the urgency character of the other provisions, linked together by commonality of object or purpose. The inclusion of heterogeneous norms to the object or purpose of the decree breaks the unfailing logical-juridical link between the urgent legislative measure and the case that made it necessary ".
Are we really sure that there is homogeneity and commonality of object / purpose between the rules of the decree-law of April 22 to be included in the conversion phase in the decree-law of May 17, given that on reopening the second completely disavows the first? Are we really sure that there is homogeneity between the two decrees given that the rules on the "green certificate" are provided for by the first decree and completely absent in the second?
by Paolo Becchi and Giuseppe Palma
Officials of the legislative office to which our piece was shot by the Honorable Prof. Stefano Ceccanti have addressed us through him some observations to which we reply as follows :
In the piece it is incorrectly indicated that the DL 65/2021, that is the one adopted by the Council of Ministers on May 17, has not yet been published in the Journal, but we had posted the article on the morning of May 18 when it had not yet been officially published. Pardon.
That the DL n. 65/2021 (the last one) prevail over the DL n. 52/2021 for the criterion "lex posterior derogat priori" there is no doubt, but the conversion law of the DL 52/2021 arrives game-force before the conversion law of the DL 65/2021. And it is on this that we have put the theme:
we risk having the ordinary law of conversion of Legislative Decree 52/2021 (by 21/6) which obviously prevails for the criterion of the succession of laws over time on Legislative Decree 65/2021 of 18 May, whose conversion into law will take place by 17 July.
Last aspect: on the DL 52/2021 partially incorporated in the conversion law of the DL 65/2021 there are the doubts of the Constitutional Court (sentence cited in our article).
For heaven's sake, the government makes a nice maxi-amendment in the process of converting DL 52/2021 into law and puts into it the new rules of DL 65/2021 so as not to have conflicts between rules, so the problem is as good as solved. Especially if you put your trust on the maxi-amendment.
However, there remains the problem of the criteria outlined by the Court in its 2012 judgment, which seem very rigid to us.
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The article The short circuit of the emergency decree (by Becchi and Palma on the Riformista) comes from ScenariEconomici.it .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/il-corto-circuito-della-decretazione-durgenza-di-becchi-e-palma-sul-riformista/ on Sat, 22 May 2021 14:17:57 +0000.