Austria, Denmark, France, Germany, Greece and Italy are among the countries in Europe which have - to a greater or lesser extent - introduced covid health pass schemes to control access to the interior of hospitality, sporting and cultural venues.
But in Spain, the launch of a Digital Covid Certificate to verify that customers and visitors have been vaccinated, tested or recovered from Covid-19 hasn’t managed to take off.
Regional authorities in four Spanish regions - the Canary Islands, Andalusia, Cantabria and Galicia - have all seen how the introduction of such measures was pushed aside by local judges.
On Wednesday August 18th, Spain’s Supreme Court ruled against the matter of using Spain’s Digital Covid Certificate to access nightlife venues.
This suggests that there will be little point for any of Spain’s 17 regional governments to attempt to use Covid health passes in their territories for any purpose other than travel abroad, and if such measures were introduced, they would only be in force for a matter of days or weeks until a court shelved it.
The reasoning of judges, both regional and national, is that having to prove Covid vaccination, testing or recovery status to enter a bar or visit a museum breaches fundamental rights without having enough of a positive impact on public health.
In the case of the Supreme Court’s latest decision, 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 their verdict is that such a measure "restrictively affects basic elements of freedom of movement and the right of assembly," and that even “a technical report from the General Directorate of Public Health" of Andalusia is just an "opinion that does not allow us to understand the proportionality of said measure".
Photo: Cesar Manso/AFP
This clashes with the stance of judges in neighbouring France, where the top national court approved the government’s Covid health passports for locals and tourists to enter a variety of establishments, only tweaking the initial conditions.
In Italy, the national government has been able to require Covid health passes to access certain venues without the matter having to go to the constitutional court.
In Germany, restrictions vary between states but proof of Covid testing or vaccination is widely accepted for hospitality customers to be allowed inside establishments.
However, the EU’s three biggest economies have seen thousands of protesters take to the streets to slam the mandatory imposition of these QR Code documents.
In Austria and Norway, Covid health passes are also considered legal and haven’t been met with much resistance by the public.
Sweden on the other hand is among the EU countries where Covid health passes for venues haven’t been introduced, with the Scandinavian nation continuing with a more unregulated way of handling the pandemic and the matter of health passports is not even due to appear in court.
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But overall Spain stands out for being the country in Europe where the long arm of the law has managed to topple the Covid health pass most often.
The reason for this? Ever since Spain ended its state of alarm on May 9th there’s been a clear change of stance by the courts.
The state of alarm justified and protected emergency measures quickly rolled out by regional governments, which crucially didn’t require approval from local or national judges.
Ever since the loss of this legal protection, high courts in the Valencia region, the Balearics, Catalonia, the Canaries and almost all regions in Spain have scrapped everything from curfews to limits on social gatherings, all under the premise that it’s not constitutional to breach fundamental rights when there’s no longer a state of alarm.
The special powers that come with a state of emergency may explain why in countries such as Germany and Italy, both of which have extended their state of alarm, authorities haven’t had to jump through too many legal loopholes for Covid pass legislation to be green-lighted.
But as things stand in Spain, judges have the final word on Covid restrictions, something for which two of the main associations representing them consider that the Spanish government has acted “irresponsibly” and not legislated correctly by just ‘passing the buck’ to them.
For the time being, Covid passes, health passports, Covid Digital Certificates or however you prefer to call them, remain a useful document to prove Covid health status for the purpose of travel in the EU, but not for domestic day-to-day matters.
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