FACE MASKS AND SWAB TESTS – CIRCULAR AND FORMAL NOTICE

By ministerial order of 28 April 2023, published in the Official Gazette, General Series, No. 100 of 29 April 2023 and available at this link, the Minister of Health Schillaci regulated the obligations concerning the use of personal protective equipment (face masks) and undergoing PCR swab tests for the detection of the SARS-CoV-2 virus. The order entered into force on 1 May and its initial validity until 31 December 2023 was extended until 30 June 2024 by an order of the Ministry of Health dated 27 December 2023, published in the Official Gazette, General Series, No. 302 of 29 December 2023. The order has now expired and has not been renewed by the Ministry of Health.

On 1 July 2024, the Ministry of Health issued a circular available at this link in which it "recommends that the Medical Directors of the aforementioned facilities, as the authorities responsible for hygiene and health functions, assess the advisability of mandating the use of respiratory protective equipment within their specific settings, taking into account the spread of airborne viruses, the characteristics of the premises, as well as the types of patients, workers or visitors who attend them, in accordance with the level of risk of infection and/or transmission (for instance, in the presence of respiratory symptoms or taking seasonality into account) and the potential for developing severe illness in the event of exposure."

What legal force does a circular have?

It is worth clarifying at the outset that circulars do not feature among the sources of law, which comprise the Constitution, primary statutes and acts having the force of primary legislation (legislative decrees and decree-laws), regulations, and customs (Article 1 of the Preliminary Provisions to the Civil Code). To these domestic sources of law are added EU treaties and European Union regulations, which apply directly within national legal systems and take precedence over domestic provisions in the event of conflict. The sources of law exist within a hierarchical pyramid, in the sense that an inferior rule of law cannot conflict with a superior one.
Circulars are internal administrative measures of the public administration that bind neither citizens nor the courts, nor even the public administration itself, which may depart from the content of a circular where it conflicts with the law. This is confirmed by the fact that circulars cannot be challenged before the administrative courts. Consequently, anyone seeking to impose the wearing of face masks by relying on the circular of 1 July 2024 will be committing an unlawful act, since a circular is not a source of rights or obligations.

Let us now examine the text of the ministerial circular, which is distinguished by its particular ambiguity.
It should be noted at the outset that medical, pharmacological, or healthcare treatments cannot be imposed except by virtue of a primary statute, as provided for by Article 32 of the Constitution. Therefore, neither the Minister of Health nor any administrative authority may compel citizens to use a medical device such as a surgical mask, unless provided for by primary legislation. Indeed, throughout the Covid-19 emergency period, a series of legislative measures were adopted precisely for the purpose of mandating mask-wearing. These statutes have all expired and are no longer in force ...

Continue reading on the website. Here you can download the text of the formal notice to be served.