Sentence No. 07451/2022 of the Lazio Regional Administrative Court, which considered the appeal lodged by Codacons, by which the contested order of the Ministry of Health of 28 April 2022 (henceforth only “OM”), published in Official Gazette No. 100 of 30 April 2022, “as well as (by) all presumed, connected and / or existing and / or predetermined and consequences, no matter how denominated, of unknown date and details”.
The appellant – having made a widespread premise about his legitimacy to act, which is mainly rooted in the purpose of protecting the environment and human health and safety under Art. 2 of the relevant statute as well as the good performance of essential public services and public administration – has derived its illegitimacy for a number of reasons, rejected by the Lazio Regional Administrative Court, and among these there is the question of the mask for investigations. We extrapolate as far as the very part of the articulated sentence that focuses on this problem is concerned.
The obligation to wear a mask applies until the end of the school year or until 31 August
As for the students’ obligation to wear a mask during the eighth and high school exams for the current school year 2022 – which currently seems to be the most current topic given the upcoming days for the completion of the implementation of didactic lessons in attendance the former easily. a) in para. 5 i art. 3 of Legislative Decree No. 52/2021 identifies, as the last period of the obligation in question, as previously noted, “the end of the school year 2021/2022”.
We could then ask ourselves whether the significance that the legislature intended to attach to the aforementioned expression, ie whether it is solely aimed at identifying the term for the didactic hours, which is set for the current school year between 4 and 16 June. 2022., or if, on the other hand, it is appropriate to also include the period following the completion of the aforementioned lessons and in which the examinations of the above-mentioned school examinations are held. In fact, the first exam for the high school diploma will take place on Wednesday, June 22nd; while for the eighth grade exam, the date is set by the individual departments, but the exams must in any case be completed by 30 June.
In this connection, it is believed that the use of masks for students, as required by the aforementioned regulatory provision under Art. 3, co. 5, let. a), in Legislative Decree No. 24/2022, is still mandatory for them until the end of the school year 2022, ie. 31 August 2022 – and thus also the eighth grade and high school exam – as the new school year formally starts again on 1 September and it is given that in any case for the students in question it can certainly not be determined the end of the relative school year for them before holding and completing the aforementioned exams.
Only a legislative measure can remove the obligation to mask in school
TAR therefore derives it in order to remove the aforementioned measure prior to the final deadline legally imposed by the State, thus allowing students to take the examinations in question without the obligation to wear masks, a specific legal decree will be necessary until an ineligibility of a ministerial order on public health to dispose of in a sense other than the provisions of a specific provision of legal rank, in the absence of a provision expressly permitting it; at present this rule seems to be missing. Specifically, the purpose of protecting public health is the obvious basis for and persecution of art. 3 of Legislative Decree No. 52/2021 by extending the obligation in question until the end of the current school year, would make any executive order on the subject in itself illogical in the sense that it mitigated or revoked the obligation in question with regard to the possibility, which is instead permitted in our executive order regarding. adoption of ministerial decrees aimed at ensuring greater and more immediate protection of public health. Concludes, therefore, argues that tHowever, the evaluation is, of course, left to the sole responsibility for the choice of legislative policy in the specific question.