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Abstract Council of State Appeal


Appeal to the Council of State submitted by Elena Cattaneo, Elisabetta Cerbai and Silvia Garagna to overturn order no. 3477/2009 of the Regional Administrative Court of Lazio

(summary of the appeal)


By order no. 3477/2009 of 15 July 2009, the Regional Administrative Court of Lazio dismissed the petition to suspend the “2008 call for bids for health research involving stem cell projects” which Professor Elena Cattaneo, Professor Elisabetta Cerbai and Professor Silvia Garagnahad submitted by means of petition no. 3751/2009. The Regional Administrative Court of Lazio held that the petitioners  were not entitled to challenge the call for bidsin question as they were neither “institutional recipients” nor “external institutions linked to the former by specific agreements” .
The Appeal to the Council of State no. 8702/2009
Professor Elena Cattaneo, Professor Elisabetta Cerbai and Professor Silvia Garagna have appealed to the Council of State against orderno.3477/2009 of the Regional Administrative Court of Lazio.
The Appellants state that they are entitled
to challenge the “2008 call for bids for healthresearch” as:
they are researchers
who have been working for years in stem cell research, and in particular human embryonic stem cell research, and are also Heads of research centers involved in such research;“institutional recipients” indicated in the call for bids as recipientsof requests for funding, are in actual fact merely formalcenters of funding, presenting themselvesas simple “host” bodies with the handling and useof funding being left to research units and, finally, to researchers who are the actual proponentsof the project;     hold important positions in universities and research instituteswhich undoubtedly come within those “external institutions” allowed to participate by the disputedcall for bids and which may engage in the realization of projects on the basis of agreements with the “institutional recipients”, on the sole condition that “the presence of at least one operative National Health Service unitis guaranteed”;   
as university professors
they are, per se, entitled to challenge administrative decisions which affect their personal statute and the exercise of their functions; they shall be allowed to freely exercise, first of all, the functions of scientific researchas well as their teaching functions (see, in case law, Council of State, Section VI, 8 April 2002 no. 1904; Section VI 3 June 1995 no. 533).
With regard to the objectionthat when the petition was submitted none of the Appellants was a participant in research projects which had been presented for funding and, therefore, had no interest in challenging the call for bids, they state that:
the call for bids
unequivocally excludes projects involving (even only in part) “the use of human embryonic stem cells” from assessmentfor the awarding of funding, precludingthe submission of research projects of this type, and thus immediately effecting the damage which determines an interest in making a petition;any case they drew upthe documentation required for submission of projects, making contact with “institutional recipients” willing to host theprojects, should the barring clause be removed.
Having presented these premises which confirm their entitlement to take legal action, the Appellants repeat therefore that the remit of the political-administrative authority is exclusively to organize the health service as a public administration
and it may not interfere in the technical-scientific substance of research itself, which is the preserve of researchers and scientists.
In particular, in relation to the reference to Law no.40 2004 as “the regulatory framework of reference”
in the appealed order, the Appellants stress that:
it is necessary to distinguish
between “manipulation” of the embryo, experimentation “on human embryos”, barred by Law no.40 2004, and research which uses “human embryonic stem cells”, fully lawful under Italian law, to the extent to which ituses materials which are already legally available at research institutes;
rationale can be drawn from Law no. 40/2004 for justifying the exclusion of projects which use “human embryonic stem cells” from those eligible for funding;
the reference made by the Regional Administrative Court of Lazio in the appealed order to Law no.40/2004 is absolutely irrelevant
to the issue in question.
The Appellants hold that the fact that research on embryonic stem cells is lawful and permitted in Italy is not, however, per se
an absolute guarantee that the constitutionally protected sphere of freedom of scientific research shall be safeguarded.
This freedom is, however, irredeemably compromised
when the real feasibility of any embryonic stem cell research project is precludedby means of financial conditioning.
The exclusion of embryonic stem cell research projects, regardless
of their scientific merits and worth, of their therapeutic possibilities and thus of any technical-scientific assessment, from the list of projects eligible for public funding violates, therefore, the freedom of scientific research, in thatin practice it makes such research completely impossible.  

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