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Health The Supreme endorses that Galicia requires the Covid passport to access the hospitality industry
The covid certificate for leisure in Galicia has received the approval of the Supreme Court, in a ruling known this Tuesday, September 14.
The measure can be used in the areas that the Junta de Galicia determined as necessary in its order of August 2021.
However,
the Galician community is not going to use it
for the moment.
The limitations of use make the passport only viable in municipalities with high or maximum risk and currently in the region there is no municipality in this situation.
With the resolution of the Supreme Court, the autonomous communities and, especially, those that received a resounding no from justice (either outside the Supreme Court or the regional courts) have regained the hope of being able to count on this instrument to control the expansion of the SARS-CoV-2.
On the morning of this Wednesday,
the Secretary of Public Health of the Generalitat, Carmen Cabezas,
assured that the Supreme Court's decision on the 'Covid passport' "opens a door that will be carefully explored."
However, the procedure to demand this pass at leisure "is not going to be automatic," according to a group of lawyers. But not only that, but there are several jurists who
warn that with this sentence the autonomous governments will not avoid the need for judicial ratification when they decide to use the COVID certificate
. And this is so because the Supreme Court has made it clear in its resolution that the COVID certificate affects fundamental rights and, therefore, must have that judicial ratification in which the need to use the certificate is weighed according to the specific case.
A magistrate of the Supreme Court, who prefers not to give his name, explains that the use of the COVID certificate outside the Galician areas pointed out by the Government of Alberto Núñez Feijoó in August
"must be agreed by each autonomous community and, before applying it, request judicial authorization , because it limits fundamental rights "
. According to the magistrate, what the sentence does clarify is that the use of the COVID certificate "affects, limiting or restricting, fundamental rights, in particular privacy", but, from the Supreme Court,
"we have considered that it was done proportionally, that the measure is suitable and necessary ".
Along the same lines, Carmen González, professor of Civil Law and counselor responsible for training at the MBE Legal office, reasons that the Supreme Court's ruling is based "on a criterion of weighting between fundamental rights that requires an analysis of the necessarily changing circumstances of the incidence of the pandemic and of the state of Science,
which are criteria that must be taken into account by the health Administration to comply with the requirement of proportionality and appropriateness of the measure "
.
González explains that the approval of the covid certificate in the case of Galicia has had to do with "the different application of the measure depending on the areas by level of incidence
and the study of other alternatives by the Government of Galicia
.
"
Therefore, it concludes that "an automatic decision of an autonomous community to apply the certificate based on the decision of the Supreme Court,
would not comply with the principles of proportionality and suitability demanded and applied by the Supreme in this case."
What about data protection?
Drop down
The
Spanish Agency for Data Protection (AEPD) asked the governments of Galicia and the Canary Islands for information
on the use of the covid certificate, given the possibility that a use of this instrument could be considered that would violate the regulations on data protection. Well, the judgment of the Supreme Court also entered to assess to what extent the COVID certificate is a violation of this regulation, to decide in favor of the use of the certificate. At this point,
the experts consulted answer the question of whether it makes sense for the AEPD to carry out an investigation in this area,
when the Supreme Court has already ruled on the use of the covid certificate.
According to Carmen González,
the action of the AEPD
"makes sense, since the function of the AEPD not only controls actions of the Public Administrations, but also and fundamentally, the operation and
specific practices of private companies.
The AEPD cannot hold, against the TS, that a momentary exhibition violates the regulations on data protection, but it can and must control the deviant use that certain establishments can make of them once they have had access to them ( for example, demanding to deliver the documentation until departure or scan them for storage).
In short, it will exercise the sanctioning power in the terms provided by Title VII of the LOPD with respect to leisure companies that, on the occasion of the measures provided for in the Galician regulations (or others that may imitate it), violate the regulations in force in data protection matter ".
The consulted Supreme Court magistrate clarifies that "the AEPD may act but taking into account that in the case of the request of the Galician Board, it was expressly prevented,
that no data would be collected or processed".
Judicial ratification is necessary
In addition, the professor at the University of Castilla-La Mancha explains that the use of the COVID certificate in the cases that the regional governments determine "should be evaluated in the judicial process of authorization or judicial ratification of sanitary measures that limit or restrict fundamental rights,
referred to in the new text of article 10.8 of the Law of Contentious-Administrative Jurisdiction ".
Along the same lines, Antonio Alonso Timón, director of the CID-ICADE Center for Law Innovation, adds that the ruling creates jurisprudence and "determines the measures that, for the future, the autonomies may adopt in matters of restriction of fundamental rights in the fight against the pandemic. And more specifically on the requirement of the covid-19 passport ".
At this point, the experts clarify that the Supreme Court's ruling does not agree with the Junta de Galicia, in the sense that the Government of Nuñez Feijoó defended in
the Superior Court of Justice (TSJ) of Galicia that the measure did not affect Fundamental rights.
Well, as pointed out by the consulted magistrate, "the Supreme Court has said that the requirement of the covid-19 passport or the accreditation of having the complete guideline or a negative PCR or having passed the contagion some time ago as a condition to enter certain establishments is a measure that affects, limiting or restricting fundamental rights,
in particular, privacy ".
The judgment of the Supreme Court of Galicia
Ultimately, the member of the Supreme Court clarifies, "that was also accepted by the Supreme Court of Galicia [in the sentence that rejected the covid-19 certificate and which was appealed by the Government of Galicia], although not the Board [which did not accept that implication of fundamental rights],
but even so the judgment of the Supreme Court has been annulled
because, as anticipated by the Feijoó Government, the demands of those requirements were made in a proportional way, that the measure is suitable and necessary. "
Finally, Josefa Cantero, professor of Administrative Law and president of the Spanish Society of Public Health and Health Administration (Sespas), makes a practical reading of the ruling and argues that with this ruling
"the Supreme Court has given the possibility to the autonomous communities of that through an order,
which is a regulatory norm, they can demand the covid passport to limit two fundamental rights, the right to equality and the right to integrity ".
But, as his colleagues have pointed out, the measure must have "the appropriate justification and motivation."
In other words, the autonomous government in power must justify the need to implement covid-19 "through epidemiological reports and justify that the measure is suitable, proportional and absolutely necessary to be applied to certain establishments in certain parts of the territory.
A standard that would not serve was general and would affect the entire territory. "
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