GUIDE: Fines for the over-50s

MAY 2023 UPDATE

Following the conversion into law of Law Decree 162/2022 (Law 199/2022), the new wording of Article 7 was approved, providing for the insertion of paragraph 1-bis:

“1-bis. From the date of entry into force of the law converting this decree until 30 June 2023, the activities and proceedings for the imposition of penalties provided for by Article 4-sexies, paragraphs 3, 4 and 6, of Law Decree no. 44 of 1 April 2021, converted, with amendments, by Law no. 76 of 28 May 2021, are suspended.”

Conversion Law no. 199 of 30 December 2022 entered into force on the day following its publication in the Official Gazette. Publication took place in Official Gazette no. 304 of 30.12.2022; therefore, the suspension has been operational since 31.12.2022.

Under subsequent Law Decree no. 51 of 10 May 2023, Art. 3, paragraph 6 (Official Gazette 108 of 10 May 2023) the deadline was extended to 30 June 2024, and under Art. 4 of Law Decree no. 215 of 30 December 2023 the deadline was further extended to 31 December 2024.

The suspension applies to all stages of the proceedings, including collection (enforcement); therefore, even those who have already received a fine can rest assured, as the Revenue Agency-Collection (Agenzia delle Entrate Riscossione) cannot recover the sum by enforcement until 31 December 2024. The new government majority has promised that the fines will in any event be abolished. We await developments. If they fail to keep their promises, an appeal template will be made available which recipients of the fines can use without needing to be assisted by a lawyer.

THE VACCINE MANDATE AND THE FINE

Law Decree 44/2021 of 1 April 2021 introduced a series of vaccination mandates applicable to various categories which, in the event of non-compliance, were penalised with the suspension of employment relationships and the prohibition from carrying out professional activities.

Under Law Decree no. 1/2022 of 7 January 2022 (converted by Law no. 18 of 4 March 2022), the government extended the mandate to everyone over the age of fifty who, in addition to also being excluded from the workplace if refusing the vaccination mandate, were penalised (as were members of the categories previously subject to the mandate) with the requirement to pay an administrative fine of 100 euros.

How does (did) the penalty procedure (the 100-euro fine) work?

We have discussed this previously; anyone interested can watch the video specifically dedicated to this subject.

The provision provides for a 100-euro fine for over-50s (and the other mandated categories) who were not vaccinated by 15 June 2022. It is a fine, meaning an administrative penalty. It is not of a criminal nature; it does not appear on one's criminal record or on any register.

The Ministry of Health checks who is vaccinated and who is not via the health card database. We therefore remind everyone to block access to their electronic health record (fascicolo sanitario elettronico). This is an additional defence that may be deployed, as unlawful access to the databases could be reported as a breach of privacy rights, even though the legislation provides that the Revenue Agency has the right to access the database. However, there are issues regarding the lawfulness of this access under European Union personal data protection legislation (GDPR).
The Ministry of Health, through the Revenue Agency-Collection, sends a notice to all those who appear unvaccinated, requesting them to inform their local health authority (ASL) and the Revenue Agency-Collection within ten days of the reasons for their non-vaccination.

It is not necessary to respond.

In the absence of a response, the procedure will proceed towards the issuance of a debit notice (avviso di addebito). A template response is available here.

This response is intended for those who wish to challenge the vaccination mandate on grounds of principle.

Anyone who has grounds for an exemption from the mandate may instead use the template available here.

The procedure requires the letter to be communicated to the Revenue Agency-Collection as well, using the portal https://www.agenziaentrateriscossione.gov.it/it/

This is obviously an unlawful request, as no one can be compelled to have an internet connection or know how to use a computer. Consequently, the letter can also be sent via certified electronic mail (PEC) or registered post, as indicated in the template. Furthermore, using the portal entails transferring data to the Revenue Agency-Collection that is neither useful nor appropriate. The public authority cannot refuse to consider communications properly sent by PEC or registered post.

Naturally, the threatening letters currently being delivered to citizens subject to the vaccination mandate constitute several potential criminal offences.

Anyone wishing to do so may lodge a formal complaint using the form available for download here.

Starting from the date on which the lists of unvaccinated individuals are transmitted by the Ministry of Health to the Revenue Agency-Collection, the latter has 270 days to serve a debit notice (analogous to a tax demand) imposing the prescribed 100-euro fine on those who have not complied with the vaccination mandate.

Some people have asked us why the fine is already visible in their tax drawer (cassetto fiscale).

The fine appears in the tax drawer because it is an enforceable instrument allowing tax collection, meaning the forced recovery of State debts. Following the entry into force of Law 199/2022, the suspension of debit notices was recorded in the tax drawer, and the Revenue Agency-Collection itself has clarified that no recovery action whatsoever will be pursued regarding the fines up to and including 30 June 2024.

The debit notice is a procedure that consolidates into a single document the functions previously performed by the tax roll (ruolo)—the schedule of debts to be collected—the payment order or tax demand (cartella esattoriale), which acts as the formal demand for payment, and the final payment notice (intimazione di pagamento), which authorises the collection agent to proceed with enforcement. The debit notice procedure allows the authorities to bypass all these steps and proceed directly to enforcement following service of the debit notice.

Service of the debit notice is required; its mere appearance in the tax drawer is not sufficient.
From this, it can be inferred that this is not a standard administrative penalty—which is only uploaded to the tax drawer after registration in the tax roll (which is not envisaged in this case)—but rather a special tax collection mechanism executed via the debit notice procedure, to be challenged before the Justice of the Peace (Giudice di Pace) by way of an opposition to enforcement pursuant to Article 615 of the Code of Civil Procedure. Following the entry into force of the so-called Cartabia reform, the procedure before the Justice of the Peace has changed. Indeed, proceedings are no longer initiated by a writ of summons (atto di citazione), but by an originating application (ricorso). The difference is that the application is first lodged with the court registry and subsequently served on the opposing party together with the judge’s decree fixing the hearing date.

There is no limitation period for challenging the debit notice.

Some have circulated the erroneous claim that there is a 30-day deadline: this misconception stems from confusing the opposition to a debit notice with the procedure for challenging administrative penalties under Law 689/1981. An appeal opposing an administrative penalty (OSA) does not apply because Article 4-sexies of Law Decree 44/2021 expressly derogates from Law 689/1981. Furthermore, even if the procedure for opposing administrative penalties were mistakenly deemed applicable, it should be noted that the debit notices specify no deadline for filing an appeal, merely indicating the jurisdiction of the Justice of the Peace and the standing of the Revenue Agency-Collection as the defendant against whom the claim must be brought. Under Article 3 of Law 241/1990 on administrative procedure, public authorities must always state the time limit for an appeal in their official acts.

If they fail to do so, an appeal may still be lodged even after any hypothetical deadline has passed, as established by the Constitutional Court in two judgments—no. 311 of 1994 and no. 86 of 1998—concerning precisely administrative penalties that omitted the warning regarding the time limit for appeal.

For now, it is premature (and also unnecessary) to worry about challenging the debit notices. We await developments, and if necessary, after 31 December 2024, we will make the required documents available.