Should we challenge the anti Covid Dpcm? That’s what the court order actually says

3 ‘reading

In recent days, the different communication channels have given great prominence to an order for the transfer of a property issued on December 16, 2020 (No. 25283) by the Ordinary Court of Rome. The reason for the media relevance of the provision lies in the long criticism, contained in the relative motivation, of the emergency provisions and the relative constitutional and administrative legitimacy.

The initial question

To understand the problem, however, it is necessary to carry out a brief review of the case: as is often the case in these times, the driver of a commercial activity had invoked the existence of the health emergency situation to obtain a review of the rental relationship and try to stop a request to release the property for arrears. On this point, it must be assumed that the Court -in the final part of the sentence- illustrated the reasons that led it to order, instead, the release of the property, excluding the civil law instruments applicable to alterations of the synalagma contractual (such as the impossibility of execution in its various meanings or the excessive burden thereof) and also insisting on the importance of the compensatory mechanisms adopted by the legislator. Up to this point, therefore, we are faced with the usual arguments that have been debated in recent months regarding leasing, given the impossibility of finding a precise discipline in the Civil Code for the extraordinary circumstances that our company is going through.

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The role of the Dpcm

The part of the decision that, for its part, has aroused the greatest interest is the one in which the Court specified that the limitations to the full enjoyment of property would not have been reduced by the current pandemic (technically excluding that it could constitute a situation of absolute impossibility), but by the Dpcm adopted by the Government with the conclusion – preceded by extensive and detailed arguments – according to which the conducting company “could well have (and, in fact, should have) challenged this act, thus eliminating the consequences of root that were derived. The lapse of fact would have affected the entire Dpcm, since they are related provisions, in a close relationship that would have overwhelmed them in their entirety “.

Ordinance “limited” to the single case

In this sense, we do not want and cannot theoretically address the subject, subject to authoritarian debates, of the constitutional and administrative legitimacy of the limitations on everyone’s life that have been adopted due to the existing health emergency. On the other hand, it seems appropriate to clarify that the considerations made by the Court constitute an assessment carried out to judge only the behavior of the individual tenant without evidently this could explain a direct legal effect on the extraordinary measures of the Government that continue to be perfectly valid and binding today . Regarding the arguments put forward on the tenant’s diligence, some legal doubts about the possibility of criticizing the party for not having opposed and not having obtained the non-application of the provisions of the Dpcm also seem legitimate -although on first reading. The prediction of the result of any process constitutes, in fact, an operation that -in most cases- can be defined as almost impossible since it is about predicting the result of that extraordinarily difficult work on which the task of judging is based. (As Piero Calamandrei wrote, in each trial there are many points of fact and law to be resolved, and before reaching the final decision, the judge must often pronounce a series of preliminary and interlocutory decisions, in which the merits alternate with procedural issues and from this derives, in my opinion, the extreme difficulty of reproaching one of the parties for not having acted victoriously against the Dpcm (as well as the option of not facing the costs, times and risks of such judicial process).

The other pronunciations

The whole, then, becomes more complex due to the fact that the judicial decisions intervened by recognizing, on the other hand, the validity and effectiveness of the extraordinary measures of the Government (for example, by temporarily limiting the right to visit in family relationships; in the rejection of precautionary requests, various proposals before various administrative courts to obtain the reopening of some businesses or, even in the case of leases, sometimes reach conclusions contrary to those of the decision of the Court in question in reference to the partial impossibility of the service) and, rightly or wrongly, they demonstrate the all but certain character of such legal action.