Face masks: the DPCM is no longer in effect
30 April 2022 · Admin
Given the importance of the matter, this article anticipates the topic of a video coming next week.
Does the Prime Ministerial Decree (DPCM) of 2 March 2021 still apply?
The answer is no. Let us look at why.
Article 57 of the DPCM of 2 March 2021 provided:
“Art. 57. Final provisions
1. The provisions of this decree shall apply from the date of 6 March 2021, replacing those of the Decree of the President of the Council of Ministers of 14 January 2021, and shall remain in effect until 6 April 2021, with the exception of Article 7, which shall apply from the day following that of the publication of this decree in the Official Gazette of the Italian Republic.
2. The provisions set out in the orders of the Minister of Health of 9 January 2021 and 13 February 2021 laying down «Further urgent measures for the containment and management of the COVID-19 epidemiological emergency», cited in the recitals, shall continue to apply until the date of 6 April 2021, subject to any subsequent amendments.
3. The provisions of the orders of the Minister of Health of 27 February 2021, laying down further urgent measures for the containment and management of the COVID-19 epidemiological emergency, for the Regions of Abruzzo, Basilicata, Lombardy, Marche, Molise, Piedmont, the Autonomous Provinces of Trento and Bolzano, Tuscany, Sardinia, and Umbria, cited in the recitals, shall continue to apply until the adoption of the new orders pursuant to Article 1, paragraphs 16-bis et seq. of Decree-Law No. 33 of 16 May 2020, and in any event no later than 15 March 2021, without prejudice to any new classification.
4. The provisions of this decree shall apply to the special statute regions and the autonomous provinces of Trento and Bolzano compatibly with their respective statutes and the relevant implementing rules.”
Subsequently, the validity of the DPCM was extended several times.
First by Article 1 of Decree-Law 44/2021, which extended its validity until 30 April 2021. Then Article 1 of Decree-Law 52 ordered a further extension until 31 July 2021. Article 12, paragraph 2 of Decree-Law 105/2021 further deferred the expiry date of the DPCM in question until 31 December 2021. Lastly, Article 18, paragraph 1 of Decree-Law 221/2021 established as the final date for the validity of the DPCM of 2 March 2021 the entry into force of the law converting Decree-Law 221/2021 itself into law. The statute in question is Law No. 3 of 21 January 2022, which entered into force on the day following its publication in the Official Gazette, namely on 26 January 2022 (the law was published in Official Gazette No. 19 of 25 January 2022).
Therefore, from 19 February 2022, the DPCM of 2 March 2021, along with all its attached protocols, ceased to have effect.
However, the attentive reader of the Official Gazette will observe that Article 3 of Decree-Law 24/2022 granted the Minister of Health the power to adopt and update the guidelines and protocols aimed at regulating the safe operation of services and economic, production, and social activities. To do so, however, these protocols must be in force. Protocols are annexes to DPCMs and are expressly provided for by Article 1, letters h-bis), z), gg), and hh-bis) of Decree-Law 19/2020. Consequently, the power to adopt and update the protocols in question depends on the existence of a valid and effective DPCM, as provided for by Article 2 of Decree-Law 19/2020.
DPCMs can no longer be adopted because their validity and legal effect were linked by that very same Decree-Law 19/2020 to the state of emergency. Indeed, Article 1, paragraph 1 of Decree-Law 19/2020 stipulated: “In order to contain and counter the health risks arising from the spread of the COVID-19 virus, in specific parts of the national territory or, where necessary, across the entirety of it, one or more measures among those set out in paragraph 2 may be adopted in accordance with the provisions of this decree, for predetermined periods, each lasting no more than fifty days, repeatable and amendable, even multiple times, until 31 March 2022, the date of termination of the state of emergency, and with the possibility of modulating their application upwards or downwards according to the epidemiological trajectory of the aforementioned virus.”
In conclusion, Article 3 of Decree-Law 24/2022 conferred upon the Minister of Health a power that he cannot exercise, since the protocols he is supposed to adopt or amend would first need to be provided for by a DPCM in force; and even assuming that this power, through an implicit amendment of Article 2 of Decree-Law 19/2020, was conferred on the Minister of Health instead of the President of the Council of Ministers, it would still be a power that can no longer be exercised, the state of emergency having expired on 31 March 2022.
Furthermore, some companies have sought to rely on Article 29-bis of Decree-Law 23/2020, which refers, as regards workplace safety concerning Covid-19, to the protocol of 24 April 2020 signed between the government and social partners. Article 29-bis was inserted into Decree-Law No. 23/2020 by Conversion Law No. 40/2020 and refers to the protocols provided for by Decree-Law 19/2020 and annexed to the various successive DPCMs. As stated, the protocols in question have had no legal effect since 19 February 2022, the date on which Decree-Law 221/2021 was converted into law (by Law No. 11/2022, published in the Official Gazette on 18 February 2022). In fact, Article 18 of Decree-Law 221/2021 provides that the last DPCM (that of 2 March 2021) loses effect upon the entry into force of the law converting Decree-Law 221/2021 itself. Along with the DPCM, all attached protocols lose effect, as they were intended to govern the period of emergency. The state of emergency ended on 31 March 2022, which means an employer cannot invoke Article 29-bis of Decree-Law 23/2020 (Law 40/2020) or the protocols to which Article 29-bis refers.
In conclusion, any companies that invoke the various protocols adopted under Decree-Law 19/2020 in order to impose face masks, disinfectants, temperature checks, and other similar pointless trivialities in the workplace would be acting unlawfully and in violation of their employees’ rights.
The same applies to any ministerial circulars, orders, or similar measures that the various dictators populating the peninsula might think of adopting: they would all be unlawful; the imposition of a medical treatment can only take place by statute, and nobody may presume to impose a face mask on anyone. The path remains the same: resist and disobey.