Law Decree 105/2021 - Green Pass extension published in the Official Gazette

Law Decree 105/2021 - Green Pass extension published in the Official Gazette

Legislative Decree 105 has been published in the Official Journal which provides, in addition to the extension of the state of emergency until 31.12.2021, the expansion of activities subject to "Covid-19 green certifications" commonly called "greenpass" (1) .

The Law Decree provides for the modification of the activities where certification is required with respect to the provisions of the previous law 87 of 17 June 2021 (2) which converted into law the Legislative Decree 52. We therefore specify that the Green Pass was already in force as a result of a law (n.87 / 2021), what this decree provides (which must be confirmed or modified within 60 days by Parliament) is the extension of use to many of the activities so far freely accessible in the white and yellow zone.
As specified by article 3 paragraph 2 in fact "the provisions referred to in paragraph 1 also apply in the yellow, orange and red areas, where the services and activities referred to in paragraph 1 are permitted and under the conditions provided for the individual areas" , or in case of passage of an orange or red zone territory, the closures of some of the activities could be arranged, even for greenpass holders (for example fairs, events open to the public or swimming pools).

The decree currently regulates the following activities, in the white and yellow areas, which from 6 August will be accessible only to holders of the greenpass:

  • catering services carried out by any establishment for consumption at the table, indoors (therefore outdoor or indoor dining not at the table does not require greenpass)
  • shows open to the public, sporting events and competitions (refers to article 5 of law 87, therefore "shows open to the public in theaters, concert halls, cinemas, entertainment venues and live music and in other venues or spaces even outdoors ")
  • museums, other institutes and places of culture and exhibitions (refers to article 5-bis of law 87, therefore "the service of opening to the public of museums and other cultural institutes and places referred to in article 101 of the cultural and landscape heritage, as per legislative decree no. 22 of 2004 January 42)
  • swimming pools, swimming centers, gyms, team sports, wellness centers, also within accommodation facilities, referred to in article 6, limited to indoor activities; (NOTE: outdoor pools and outdoor team sports are therefore excluded from the certification request, but an indoor pool inside a hotel is subject to a greenpass)
  • festivals and fairs, conventions and congresses referred to in article 7 (or according to article 78 of law 82: fairs in presence, also in public areas, conventions and congresses)
  • spas, theme and amusement parks (e.g. Gardaland or similar)
  • cultural centers, social and recreational centers limited to indoor activities and with the exception of educational centers for children, including summer centers, and related catering activities;
  • gaming rooms, betting rooms, bingo halls and casinos,
  • public competitions.

We remind you that the green certification does not apply "to subjects excluded by age from the vaccination campaign and to exempt subjects on the basis of suitable medical certification issued according to the criteria defined in the circular of the Ministry of Health" (article 3 paragraph 3). This means that unlike what was incorrectly communicated, the minimum age is 12 years old but, if in the next few months the vaccination is authorized even to those over 6 years of age, the use of the greenpass would automatically extend to this range too. age without the need to change the law.

The burden of checking the certification is regulated by article 3 paragraph 4 or: The owners or managers of the services and activities referred to in paragraph 1 are required to verify that access to the aforementioned services and activities takes place in compliance with the requirements. The methods of checking the validity of the certifications are those provided by the Prime Ministerial Decree of last June 17 (3) which in article 13 provides:

  • Control of the QR code exclusively via mobile application called "C19 verification".
  • The verification is carried out by: public officials, personnel assigned to control services for entertainment and show activities, the owners of the accommodation facilities and public establishments as well as their delegates, the owner of the places and premises where events and activities take place , air, sea and land carriers as well as their delegates, managers of health and social health facilities as well as their delegates

NOTE: The verification C19 app only provides the validity / non-validity of the certificate and the general information (not the reason why the certification was issued) and as required by the DPCM "the holder of the green certification covid19 demonstrates at the request of the verifiers his personal identity by showing an identity document "(Article 13 paragraph 4)

Sanctions: The sanctions are provided for by article 13 of law 82 to which the new decree added "after two violations on different days, starting from the third violation, the accessory administrative sanction of the closure of the business or activity by one ten days "(art. 4 paragraph 1 point f). The sanctions (article 13 of law 87) refer to article 4 of law 35 of 22 May 2020 or "administrative sanction for the payment of a sum from € 400 to € 1.000".
Finally we want to point out two important points:

  1. in article 4 paragraph 1 point b the request for the greenpass in hospitals is extended: It is allowed to accompanying patients not affected by COVID-19, with the green COVID-19 certifications referred to in article 9, as well as to accompanying patients in possession of the recognition of disability with connotation of gravity pursuant to article 3, paragraph 3, of law no. 5, to remain in the waiting rooms of the emergency and acceptance departments and of the first aid departments as well as of the departments of hospital structures. The health management of the facility is required to take the necessary measures to prevent possible transmission of infection.
    Therefore from 6 August (unless you accompany people with law 104) you can accompany non-covid19 patients to the emergency room and to the departments of the structures only in possession of a greenpass. We specify that we are talking about who accompanies and not the patients of the hospital wards.
  2. It is reiterated that "the provisions of paragraphs 1 to 8 continue to apply where compatible with the regulations (EU) 2021/953 and 2021/954 of the European Parliament and of the Council of June 14, 2021". This means that according to the provisions of Regulation 953 (4) Article 36 "It is necessary to avoid direct or indirect discrimination against persons who are not vaccinated [...] because they have not yet had the opportunity to be vaccinated or have chosen not to be vaccinated. [...] Furthermore, this regulation cannot be interpreted as establishing a right or obligation to be vaccinated. "

The Government decree is therefore in clear violation of this European principle on which it is based, having extended the use of the greenpass to habitual activities (such as gyms for example) and therefore introducing a de facto obligation to be vaccinated in order to access it.

This step is also important to specify that the obligation falls on the users of the above services but NOT on the workers of these structures. It is therefore wrong to interpret that the workers of these activities will be subject to the use of the greenpass first of all because it is not explicit but also because the use of the greenpass can NOT constitute a vaccination obligation (defining it as impossible to undergo a swab every 48 hours for obvious reasons).

We also want to point out that the same article 953 speaks of "Therefore the possession of a vaccination certificate, or a vaccination certificate certifying the use of a specific anti COVID-19 vaccine, should not be a prerequisite for the 'exercise of the right of free movement or for the use of cross-border passenger transport services such as airlines, trains, buses, ferries or any other means of transport ", for which it will not be possible to request the greenpass, as feared by the newspapers, for the means of transport.

Here we have summarized the salient points of the decree, we reiterate the need to publicly express our opposition to this decree that marks a turning point in discrimination against those who freely choose not to get vaccinated.

Never a step back!

Staff C.Li.Va. Tuscany




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