Spain’s Supreme Court Rules Against Using Vaccine Passports to Restrict Access to Public Spaces

It’s the first time a high court of a European Member State has challenged the use of vaccine passports domestically. 

Spain’s Supreme Court made waves last week by becoming the first judicial authority in Europe to rule against the use of covid passports to restrict access to public spaces — specifically hospitality businesses (bars, restaurants and nightclubs). It is not the first Spanish court to come out against vaccine passports but it is the most important. So far, only five of Spain’s 17 autonomous regions – the Canary Islands, Ceuta and Melilla, Andalusia, Cantabria and Galicia – have proposed using vaccine passports to restrict access to public spaces. And all have been rejected by local judges.

The EU’s Green Pass is a one-piece QR-code document that can be issued to a traveller in both paper and digital format. It is intended to prove that the holder has either received one of the four vaccines authorised by the European Medicine Agency (BioNTech-Pfizer’s, Moderna’s, AztraZeneca’s and Johnson &Johnson’s), has tested negative for Covid-19 in the last 48 hours or has been infected with Covid in the last six months and therefore has natural immunity. However, some countries such as France have chosen only to allow entry to travellers that are fully vaccinated.

Many government are also using the documents to limit access for unvaccinated citizens to public spaces and services with their own countries. But so far Spanish judges have challenged this trend, on the grounds that it would infringe on certain constitutionally recognised individual rights, such as the right to physical integrity and privacy, while also having limited impact on public health. The Supreme Courts of Andalusia and Ceuta and Melilla said the measures were also discriminatory. When the Supreme Court of Andalusia sided with local hospitality businesses in their appeal against the region’s proposed vaccine passport measures, the regional authority took the case to the national Supreme Court. And lost.

Economic considerations may have also played a part in the courts’ decision. Spain’s hospitality sector generates a huge amount of money and a huge number of jobs, especially during the peak tourist season (i.e., right now). The sector has already been through the grinder of last year’s three-month national lockdown as well as sporadic regional lockdowns. Even with the introduction of vaccine passports, overseas visitors continue to arrive in dribs and drabs. As was the case last year, it’s domestic demand that is keeping many businesses alive. And limiting that demand is likely to create even more economic pain. 

Constitutional Clashes

But this is not the first time that Spain’s government and regional authorities have clashed with the judiciary over the management of the public health crisis. Since Spain ended its state of alarm on May 9th, the high courts in the Valencia region, the Balearic islands, Catalonia, the Canary Islands and other parts of Spain have prevented regional authorities from applying a range of anti-Covid restrictions, including curfews and limits on social gatherings, on the grounds that it’s unconstitutional to breach fundamental rights when there’s no longer a state of alarm.

Then, on July 14, Spain’s top judicial body, the Constitutional Court, delivered another hammer blow, by ruling that Spain’s coronavirus state of alarm had been unconstitutional all along. The government, it said, should instead have called for a state of emergency – which requires prior parliamentary approval – to curtail fundamental rights for the nationwide lockdown.

In its August 18 ruling, against using the Digital Covid Certificate to grant or deny access to nightlife venues, the Supreme Court said there wasn’t enough “substantial justification” for the requirement of a health pass in bars and nightclubs across the entire region of Andalusia, seeing it more as a “preventative measure” rather than a necessary action. Instead, it said the measure “restrictively affects basic elements of freedom of movement and the right of assembly.”

Interestingly, the Supreme Court also said that using vaccine passports to control access to public spaces and services may not even help prevent infections. In fact, it may exacerbate them, given that recent research has shown that people who have been vaccinated or previously infected with Covid-19 can still catch and spread the virus. As such, implementing a vaccine passport system does not protect others from infection, including those who gain access to a public space by presenting a negative result of a PCR test. Such a document, the court said, “only proves that at the time of the test these people were not carrying the active virus”.

By now it is clear, as Yves laid out meticulously on Friday, that the vaccines are not what they were cracked up to be. Their efficacy fades quickly and is particularly depleted against the Delta variant. Research has also shown that the virus loads of the vaccinated and the unvaccinated are almost identical with regard to the Delta variant. As such, if a vaccinated person and an unvaccinated person have roughly the same capacity to carry, shed and transmit the virus, particularly in its Delta form, what difference does implementing a vaccination passport, certificate or ID actually make to the spread of the virus?

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