Allows hospitality venues and nightclubs to ask for proof of vaccination

On September 14, 2021, the Contentious-Administrative Chamber (Fourth Division) of the Supreme Court handed down a final appeal judgment ratifying the Order of June 25, 2021, issued by the Galicia Regional Department of Health. The order set the requirement to show proof of vaccination to enter hospitality venues and restaurants in towns with high or very high levels of restrictions, and nightclubs in towns with moderate or moderate-high levels of restrictions. The documentation requested may be (i) a certificate of full vaccination, (ii) an active infection diagnostic test (PDIA) or antigen test, or (iii) a COVID-recovery certificate, valid between day 11 and day 180 after the first positive diagnostic test.

Background

Allowing vaccination documents to be requested to enter certain venues such as restaurants or nightclubs has been a hot topic of debate recently, both in Spain and across Europe, particularly because of its data protection repercussions, as it concerns health data, which is afforded special protection.

EU Member States have taken different approaches. In Spain, measures that amend or restrict the essence, core or substance of a fundamental right must be regulated in a special Spanish organic act (ley orgánica). However, an exception has been set up owing to the pandemic, enabling fundamental rights to be restricted without having to pass a ley orgánica, so long as this does not affect the essence, core or substance of the fundamental right in question and receives court approval. To be approved in court, the measures in question must be necessary, suitable and proportionate, thus meeting the triple rule of proportionality.

In this case, the order imposed the obligation on applicable hospitality venues, restaurants and nightclubs to ask all customers to show proof of vaccination as a condition of entry. During the court approval process, the Galicia Hight Court of Justice found that the measure was not proportionate as it excessively restricted people’s fundamental rights, particularly the fundamental rights to equality, privacy and data protection. It did not ratify the measure, finding it inapplicable.

However, the Galicia Regional Department of Health filed an appeal with the Supreme Court, on the grounds that it was a proportionate measure. The Supreme Court has issued a final decision on the ruling of the Galicia High Court of Justice, approving the order.

Legal grounds

The Supreme Court found that fundamental rights are affected, requiring the order to be approved, but the extent to which they are affected is minor. Although the Supreme Court examined a potential conflict between the fundamental rights to equality (article 14) and privacy (article 18.1 and 18.4), and the fundamental right to life (article 15) and the protection of health (article 43) in a pandemic context (such as COVID-19), it considered that the conflict exists only between the right to privacy the right to protection of health.

The judgment states that requiring the above documentation does not unequally affect the right to equality of those who are vaccinated and those who are not: access is also open to anyone with a PDIA (Active Infection Diagnostic Test) or antigen test, or COVID-recovery certificate, valid between day 11 and day 180 after the first positive diagnostic test.

Regarding the fundamental right to privacy and data protection, the judgment examined whether the measure taken in the order is necessary, suitable and proportionate.

Necessary
The judgment argues that the measure is necessary to keep hospitality venues open, and that the benefit the measure provides, i.e., a significant reduction in infection rates, is far higher than the sacrifice involved in having to show the documents to enter a venue.

Suitable
The judgment found that “leisure establishments, by their very nature, unlike other establishments open to the public, do not allow for the constant use of masks, as they need to be removed for eating and drinking. Likewise, it is difficult to ensure social distancing in these environments, where people tend to speak more loudly and even sing. This increases the probability of inhaling droplets and respiratory aerosols released into the air, which is the main route of SARS-Cov.2 transmission.”

Therefore, the court states that in this case, the characteristics of these venues make the measure suitable. Scientific reports quoted in the judgment support this as the only effective measure to open these venues to the public, offering the highest level of protection for public health.

Proportional
The judgment found the measure to be proportional since clients only have to flash a document, which is not crosschecked with the person’s identity.

Dissenting opinion

The single dissenting opinion found that the measure imposed by the order does severely, extensively and strongly affect the rights to equality and privacy.

Conclusion

The judgment is the first to allow special category data to be processed as a condition of entry to establishments. The particular circumstances of the case make it difficult to extrapolate to other more formal environments, such as the workplace. To approve rules allowing health data processing, it must be proven that the measure is proportionate, which requires detailed, case-specific analysis.