Mandatory vaccination requirements and the green Covid-19 certificate: a fundamental rights perspective in Italy

Since the Covid-19 pandemic outbreak in March 2020, governments worldwide have resorted to various measures to manage and contain the spread of the virus. In Italy, for example, severe restrictions on freedom of movement were enforced from the very beginning, and they lasted until the vaccination campaign picked up in Spring 2021. At that point, the executive started to lift the most severe measures progressively, and, at the same time, it began to use other legal instruments. For instance, besides progressively enforcing a compulsory vaccination requirement for some categories of people only, the executive introduced a novelty in the Italian legal system: the Green Covid-19 Certificate (or ‘Green Pass’), which not only became a condition to access venues and make use of services, but it also became a condition for the enjoyment or exercise of fundamental rights, including the rights to education and work. The aim of this paper is to assess the Italian Government’s decisions through the lenses of liberal democratic constitutionalism, reflecting upon the balance that was struck between public health and individual fundamental rights. This kind of assessment is especially important in times of emergency, as they are typically defined by fast-tracked and temporary decisions which may, nevertheless, “inadvertently” become embedded in the constitutional legal order. Indeed, a critical analysis of the compulsory vaccination and Green Pass requirements will let us reflect upon their implications for fundamental rights and the form of government, ultimately reinforcing our view that even though the mandatory health requirements that were enforced throughout the emergency may be justified on public health grounds, under a liberal democratic constitution characterised by a parliamentary form of government, a transparent, informed, and participatory, deliberative process where Parliament may effectively oversee the law-making powers exercised by Government should be guaranteed.