The Contentious-Administrative Chamber of the TSJA, based in Granada, has agreed through an order to deny judicial ratification of the measure included in the Order of August 5, consisting of limiting access to the interior of the recreational establishments and of hospitality with music to those people who can prove to be in possession of the COVID certificate or PCR accreditation or negative antigen test in the last 72 hours.

The Chamber understands that it is competent to analyze said judicial ratification, since the measure of introducing the covid passport to access the bars and discos may affect fundamental rights such as the right to personal privacy, "insofar as it implies the need to show data related to health, considered, in accordance with European regulations, as sensitive "; and with the principle of non-discrimination, "to the extent that it establishes a differentiated treatment for access to such premises, based on the possession or not of the aforementioned certificate."

The order recalls that it must decide - as stated by the Supreme Court - if the limitation of fundamental rights posed by the measures of the administrations are suitable, necessary and proportionate.

And it considers that the measure "is neither suitable nor proportionate for the achievement of the intended purpose, that is, the protection of life, health and physical integrity, insofar as far from avoiding contagions inside the premises leisure activities can make them possible, which is why it cannot be ratified by this

Living room".

In this sense, the Chamber understands that, in principle, the violation of the fundamental rights involved in the case "is not of great importance, since, on the one hand, the mere accreditation of being vaccinated or having suffered the disease does not seem to condition seriously the right to personal privacy ", and on the other," the sacrifice of the principle of equality for the discriminatory treatment that derives from the requirement of the COVID certificate when the entire population has not had access to the vaccine in part or in in its entirety, it affects a much lower percentage of people than can benefit from having the certificate ".

For this reason, the measure could be justified in the requirement of proportionality, but "casts serious doubts" on the fulfillment of the other two requirements. Thus, with regard to suitability, the court considers that "it is not an ideal measure to the required degree", since it establishes the compatibility of the requirement of the covid certificate with that of a PCR test or antigen test.

It understands that if people who have been vaccinated or have suffered from the disease, despite having developed immunity against the virus "may be potential transmitters of it, it is not possible to understand how the possible contagion of those who have accessed the protected premises will be avoided in the presentation of a justification for the performance of a PCR or an antigen test, which only proves that at the time of its performance they were not carriers of the active virus, but not that they had any immunization against it ".

And regarding the need for its implementation at this time, "neither do we believe that it appears justified to the degree that would be required."

Thus, they explain that "the level of demand for the justification of their need must be much higher than normal, which implies that it must be conclusively proven that the greatest number of infections of the so-called fifth wave has its origin, precisely in the loca. ..

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