Workers precepted by Salvini, the TAR annuls the order for excess of power

The order of the Ministry of Transport and Infrastructures (MIT), with which the minister Matteo Salvini had played the preceptive card, reducing from 24 to 4 hours, the strike of local public transport on 15 December 2023 must be annulled for excess of power. The Tar Lazio sentences the MIT to pay the legal costs and upholds the appeal of the Unione Sindacale di Base.

The administrative judges explain, in fact, that, as a rule, it is up to the Guarantee Commission to notify the Council presidency of the 'well-founded danger of serious and imminent harm to the rights of the individual' in the event of a strike of an essential public service. While the Prime Minister, or the delegated ministry, can act 'on its own autonomous initiative only in cases of necessity and urgency'. Necessity and urgency that must be justified. A 'conditional' power of initiative 'precisely to limit 'political' interference in the right to strike as much as possible. In the absence, therefore, of a prior notification from the Commission, the minister can adopt the measure extraordinem, only by expressly clarifying what are the prerequisites that legitimise it. The initiative of the political authority is thus triggered for exceptional cases that the Guarantee Commission could not assess beforehand. In the specific case, the Authority adopted only a formal invitation to the trade unions, in order to avoid the objective rarefaction of the strike, "an invitation that was observed but - unlike in previous cases - it did not recommend anything, not even in the exercise of its atypical powers, to the same organisations, nor did it report to the Ministry on the adoption of the order of precepting".

Given that the contested order was 'adopted without prior notification by the Commission, it was indispensable to make clear the special reasons of necessity and urgency, relating to facts that had arisen in the aftermath of the abstention, such as to legitimise the minister's officious intervention. However," reads the judgement, "no adequate indication to that effect can be found in the contested measure, in which the ministry merely referred to facts and circumstances already known to the Commission and evidently not considered suitable to substantiate the invitation to take action.
The administrative judges clear the field of the misunderstanding that the political authority must be degraded "to a mere operational arm of the Commission, given that the former: (i) in the event of a report by the latter, can always abstain from adopting the order of precepting, where it does not share the assessment; (ii) remains the autonomous holder of the power of impulse, where it enucleates and explicit profiles of necessity and urgency, that is, profiles that are different - and in particular, supervening - with respect to those already assessable by the Commission, which actualise the indilazionabilità of the intervention".
For the Tar, the appeal's argument passes, as the measure is "affected by violation of the law and excess of power due to lack of assumptions, with reference to the impulse phase of the exercise of power". The MIT must pay the costs of the proceedings and the order is annulled.