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?

This is a question that many of the people who attended the Boardmasters’ Music Festival in the UK may now be asking themselves. To attend the event they needed to prove, with their NHS Pass, a recent negative test, full vaccination or Covid infection in the past 180 days — in other words, almost exactly the same conditions required by the EU’s Green Pass. The event’s organizers seem to have done everything by the book yet roughly one week after the festival, almost 5,000 Covid cases had been potentially linked to the event. The city where it was held, Newquay, became England’s “Covid capital”, registering up to 1,110 cases per 100,000 people in the week ending August 14 — nearly four times the average rate in the country. 

Fierce Public Opposition

The Spanish Supreme Court’s ruling refers only to Andalusia. But there is probably little point in any of Spain’s other 16 regional governments even trying to use Covid health passes in their territories for any purpose other than travel abroad. If such measures were introduced, they would probably only be in force for a brief period before a court shelved them.

It’s a very different story across the rest of the EU. Even as the evidence grows that the current crop of vaccines are not very effective at limiting the spread of the Delta variant and that so-called “breakthrough cases” are not nearly as rare as the term would suggest, most governments are accelerating and expanding their use of vaccine passports and mandates. Twenty-two out of 27 EU Member States already require hospitality green passes or similar health passports to enter restaurants, bars, museums, libraries and other public places.

In France those without a pass are banned from the outside terraces of cafes, bars and restaurants. They are not even allowed to enter hospitals, apart from for emergency procedures. By the end of August many private-sector workers who serve the public have to be vaccinated. The jab will also become mandatory for all French health workers by Sept. 15. The government insists the pass is necessary to encourage vaccination uptake and avoid a fourth national lockdown. But for many protesters the new legislation represents everything a constitutional republic like France should stand against: authoritarian control, discrimination, denial of access to basic freedoms and services, education and healthcare.

Opposition among the vaccine hesitant remains fierce. For a sixth straight Saturday, hundreds of thousands of people turned out in towns and cities across France to vent their fury at the government’s increasingly repressive vaccine laws. If anything, the demonstrations are likely to intensify in the coming weeks, as students — often a vital cog in French protest movements — return to university and vaccine-reluctant public workers begin to contemplate life without an income.

Large demonstrations have also taken place in Italy, Greece and Germany. In Latvia’s capital, Riga, 5,000 people took to the streets on Wednesday night to protest government plans to make vaccination mandatory for certain professions and allow employers to fire workers who refuse to get jabbed. It was reported to be the largest demonstration in Latvia since 2009.

A Kafkaesque Twist

In Spain, meanwhile, everything is rather quiet. There are few protests against the vaccine passports, since their impact on daily life has not been felt. Most people over the age of 30 are quite happy to get vaccinated — so much so that Spain, with 67% of its population fully vaccinated, places fourth on Oxford University’s Our World in Data’s ranking of the world’s most vaccinated countries. What’s more, Spain is yet to see its vaccine campaign stall, as has already happened in countries such as the US, Israel, Germany and France.

Given that Spanish residents are getting vaccinated in such large numbers, there’s arguably even less need to use vaccine passports domestically. Fernando García López, the president of the Research Ethics Committee at the Carlos III Health Institute in Madrid, argues that is better to “convince rather than coerce, something that can polarize,” adding that in Spain, “there is no major anti-vaccination group against which we need to fight, as is happening in other places.

But that hasn’t stopped the passports from already creating a Kafkaesque nightmare for thousands of Spanish residents. During the latest wave of the virus, the country’s primary care service became so swamped that doctors and nurses in many parts of the country began using the much faster (and much cheaper) antigen tests to check patients for infection. The only problem is that to qualify for the EU’s health certificate on the grounds of natural infection, you need to have had a positive PCR test; the results of antigen tests are not recognised.

And that means there are now thousands of people in Spain who are in limbo. They have all had a recent Covid infection, which means they should have natural immunity. And that means they should qualify for the EU’s Green Pass. But because Spain’s health authorities used the wrong test on them (presumably by mistake), they don’t. According to the EU these people never had Covid. Unless Brussels makes an exception for them, which is looking pretty unlikely, they will now have more difficulty travelling to other parts of Europe.

It’s just one example of how arbitrary life can become in the “new normality” taking shape around us. As governments exert greater power and authority over our lives, all it takes is a simple administrative mistake for members of the public to suddenly find themselves unable to enter other European countries or even access public places and basic services in their home town. And as we’ve repeatedly seen since this pandemic began, governments and public authorities are prone to making mistakes pretty regularly.

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  1. PlutoniumKun

    I wonder if this is a north-south thing with disease, as most northern European countries will have laws on their books relating to TB, which are often far more restrictive than the vaccine passport. TB was always far more of a scourge in the damper northern climes. These laws are so long established they are probably judicial proof.

    Here in Ireland there wasn’t much opposition to the passports for entry to restaurants and bars, mostly I suspect because when they were proposed everyone assumed they wouldn’t work. To pretty much everyones surprise, the system is working remarkably efficiently and smoothly for the most part. A Japanese friend who had Covid and recieved her pass by email the morning after her test remarked that it was almost a Japanese level of efficiency. So far anyway.

    As a means of getting people vaccinated, it certainly helps. A friend who is absolutely terrified of jabs surprised me by saying she got her first one. When I asked why she just said plaintively ‘I can’t sit outside when all my friends are inside the pub’.

    The problem of course is that it provides a false sense of security. I was walking past my favourite local Italian restaurant which has just reopened. Its a small, very low ceilinged unit with just front windows which don’t open. Everyone was crammed together around small tables. Much as their food is amazing, I won’t be going in there, but given its popularity, I’m certainly a minority. It is encouraging however to see a lot of bars and restaurants have opted for wide open windows and doors with front canopies to allow better air circulation. Whether this will last into an Irish wet and windy autumn, I don’t really know.

    1. GM

      Vaccine passports are epidemiological stupidity with a vaccine that reduces transmission by 50%.

      Currently everyone should be considered potentially contagious

      All that vaccine passports do is give that false sense of security, and may actually help spread it more rather than reduce the spread

      Right now in the US and Europe there should not be a single restaurant, theater, school, or anything of the sort open, period.

      1. Sawdust

        The point of a vaccine passport is not to suppress the virus. The point of a vaccine passport is to suppress populism.

        1. TimH

          The point of a vaccine passport is to force people to get vaccinated.

          Similarly, the 2023 requirement to have a REAL ID to fly within the US is similar nonsense to force people to get driver licences with unecessary detail in them as defacto IDs.

          1. Expat2uruguay

            My understanding is that the real ID it’s being enforced by requiring it for domestic travel. Perhaps there are other situations where it is required, I don’t know. This year I was able to renew my drivers license in California without converting it to a real ID. This is appropriate since I can’t show an address in California because I live in Uruguay. But I will be able to fly domestically using my passport. So this may be a way around having to get a real ID even if you live in the u.s.

            1. TimH

              When you renew a US passport you can pay a bit more and get the passport card too, easy to keep in your wallet for flights.

              However, don’t lose it because on the next renewal you’ll have to do a new application as opposed to a simple renewal, which is a PITA.

          2. d w

            no the point of the vaccine passport is protect others. and failing to do that can be catastrophic for all, as those who dont want to get ‘the jab’ make it so that those who have, are in harms way, (the highest protection rate of the vaccines is over 95% effective), since with the newer iterations of the virus are much much more contagious. and since the some folks dont want to catch it, they will withdrawal from any place that doesnt require it. which of course means that the economy will suffer from that. and trying to force them into having to be in public for any purpose, will meet the same opposition (if not more) than those who dont want the vaccine. course i wonder how mothers will deal with their choices that end in death?

            1. Skip Intro

              You recite the standard disinformation as if you never visited us before. Welcome.
              You seem to claim that the vaccine will prevent one from getting or transmitting covid. This is false. You cite 95%, as if that meant protection from infection, rather than reduction in hospitalization. It does not. Vaccine passports would make some sense, if the vaccine prevented one from getting or transmitting the virus. Since the ‘vaccines’ don’t actually provide immunity, the passports are without public health purpose, and to the extent that they encourage riskier behavior, will actually increase the spread of the virus.

            2. DoctorKB

              You’re not up to date with the latest data. A Mayo clinic study published recently found that Pfizer was only 42% effective at preventing infection with Delta. And studies in Vietnam and at Oxford University have demonstrated a higher viral load in vaccinated people with breakthrough infection.

      2. PlutoniumKun

        I’ve been trying to read the tealeaves of the Irish health authorities as to whether they believe passports are an answer, of if they are holding the line on maintaining what are probably the strictest rules in Europe on public openings.

        To give some background – probably after consulting EU colleagues, the Irish science advisory body actually quite shocked the government by announcing that passports would be an acceptable way to allow openings of bars and restaurants. The government had pretty much resigned itself to a much slower opening. But current guidelines are pretty strict (no standing at the bar, masked when moving within the building, etc). But of course, it is very hard to stop slippage on this, as there was over the weekend when there was a major sports event on.

        I think they recognise the difficulties, but recommended passports as a sort of cmopromise towards maintaining full closure and allowing some leaway to all those businesses that are suffering badly. I’ve no idea if this is the right call, but maintaining the very strict shut down was becoming politically unsustainable when our neighbour (Ireland of course shares a land border with the UK) was insisting on a full opening.

        1. d w

          it seems like the virus only gives you 2 choices , one to surrender to it (do nothing see hospitals full with ICU beds for any thing else…and while not all of those die. there will be a lot of those who do, just based on the number of infected), or you try to fight it, whether by mandating mask mandates, vaccines, etc. while nothing is ever 100% perfect, that just doesnt exist any where, these at least try to slow down the infection rates

          1. Societal Illusions

            it seems my earlier post failed to pass moderation or encountered some other error. without links this time…

            limiting to 2 options makes no sense to me. there is a third at least which is early multi-pronged repurposed drugs and natural supplements being used to significantly reduce hospitalizations and this deaths.

            i’m amazed at the misinformation and suppression regarding this topic. there are too many physicians reporting great outcomes for it to be blather.

            1. Yves Smith

              The problem that we’ve discussed with Covid and encountered with other pathologies is that old drugs are often off patent, so there is no money to do the very expensive research to prove rigorously that they work. Look at the row over ivermectin. Tons of “observational” studies that on the whole produce positive results, but pooh poohed by the medical establishment because the studies are underpowered.

        2. Brian Beijer

          Whatever efficacy passports provide now (which I doubt there is any), they are merely a short-term solution. If you had 2 Phizer doses, does your passport only last 6 months? Because it should. Moderna, maybe 8 months? Astra-Zeneca 60ish% for who knows how long? Will they even require renewal of these based on time frame or based on percentage of “immunity”? Which begs the question, what do the authorities deem to be immunity with these vaccines? Immunity from spreading the disease? 0% Immunity from getting sick Unknown. Immunity from hospitalization and death? Well that % seems to depend on which vaccine you were given and which variant of the virus you’ve been infected with. What if your 3rd jab was a different vaccine than the first two? Which time-line would they go by? Have any authorities even thought about all these variables?

          I said that the passports are a short term solution, but I’m certain they’ll be with us for the rest of my lifetime or until the collapse of society… whichever comes first. I just don’t see how they will be able to justify their efficacy to the public after a year, when everyone is on their 3rd or 4th booster.

  2. Basil Pesto

    I was saying last year that this crisis would throw up some interesting jurisprudence (in Europe in particular, which I know a bit more about) and it looks like that is beginning to develop in earnest.

    Interestingly (I have a copy of Victor Ferreres Comella’s contextual analysis of the constitution of Spain in front of me – don’t ask), Spain has three States of Emergency outlined in its constitution: State of Alarm, State of Exception (I believe El Pais above translates this as State of Emergency), and State of Siege. State of Siege doesn’t apply. From reading about them you can see why the constitutional court’s decision cited above was so close (6-5). A state of exception allows the government more leeway for necessary suspension of rights, but there’s a lot of room for abuse as well (eg 10 day max arrest period). The El Pais article goes into more detail on this.

    It seems in this case that the Spanish constitutional court has pre-empted the European Court of Human Rights (see article 10.2 of the constitution) in respect to article 11 (freedom of assembly etc), article 14 (protection from discrimination) and article 15 (derogation in time of an emergency). It should be noted that article 14 is an ancillary right which the court can only apply in relation to other articles of the convention (in this case, likely article 10). Article 14 can also apply a discrimination test:

    50. Not all differences in treatment – or failure to treat differently persons in relevantly different situations – constitute discrimination, but only those devoid of “an objective and reasonable
    justification” (Molla Sali v. Greece [GC], 2018, § 135; Fabris v. France [GC], 2013, § 56; D.H. and
    Others v. the Czech Republic [GC], 2007, § 175; Hoogendijk v. the Netherlands (dec.), 2005).

    51. When deciding cases of discrimination, the Court will apply the following test:

    1. Has there been a difference in treatment of persons in analogous or relevantly similar
    situations – or a failure to treat differently persons in relevantly different situations?

    2. If so, is such difference – or absence of difference – objectively justified? In particular,
    a. Does it pursue a legitimate aim?
    b. Are the means employed reasonably proportionate to the aim pursued?

    It gets a bit tricky here, as rights courts are justifiably reluctant to second-guess expert technical advice, and decide on technical matters. But, as GM points out above, such discrimination of the unvaccinated in the face of a vaccine with limited effect could certainly be argued to not be reasonably proportionate. The understanding of the limited efficacy of these mRNA vaccines is becoming increasingly mainstream. On the other hand, if an application of the discrimination test on the basis of the mRNA vaccines failed, which it seems to me is increasingly quite likely, I think it would be a different matter if applied to sterilising vaccines.

    This CoE guide to article 15 (derogation in time of an emergency) is really interesting and well worth a read to those with an interest in the topic.

    But if none of the three states of emergency is in play in Spain at the time, then it becomes a very straightforward decision for Spain’s higher courts. So now it’s become a rather ironic paradox: the state of alarm was lifted because of, as I understand it, the short term efficacy of the vaccines in the first 6 or 7 months of this year (the pandemic is over, baby!), but precisely because it was lifted, there can be no argument for the derogation of rights for the unvaccinated, at least until such a time as one of the states of emergency is enacted again. But by that point, it will be clear that the vaccines aren’t sufficiently fit for purpose to justify those derogations. Does anyone know the Ladino for ‘schemozzle’?

    1. PlutoniumKun

      It is quite interesting that the Spanish judges are making a judgment apparently based on their own assessment of the science as well as purely legal matters. Normally, thats not a good thing (I’m currently working on clearing up the mess created by a judge doing just that), but if judges around Europe start setting this precedent, and demanding real scientific evidence for public health measures, thats puts the proverbial cat among the pigeons for European covid policy.

      1. d w

        that would seem to be the case

        reason to not travel to Spain any time soo. and to wonder if their reported infection rate goes down, because the government pushes it down (sort of like Florida did last year)

        1. Lluís

          So I understand that you infer that requiring scientific evidence is a bad thing. So bad that you would even refuse to travel to Spain.

          Too much for follow the science.. the raw truth is that science was abandoned long ago, unfortunately.

      2. Basil Pesto

        I’m not entirely sure that’s what’s happened here – what I’m saying is that I don’t think the judges have to decide on the effectiveness of the vaccines at this point because at the moment, none of the states of emergency are in effect, so the question is now irrelevant. That may change in the future if a state of emergency is applied again in Spain, but then that’s where it becomes a bit of a tangle, because initiating a new state of energency will in itself be a tacit admission that the vaccines are not sufficiently effective, to the extent that derogation from rights (in the form of strict vaccine passports) would then become unacceptable. I hope that makes sense! (this whole calculus changes if new vaccines are developed and become the new basis of government policy – back to square one, basically)

        To your broader point though, I guess there comes a point (ideally) in applied science where scientific knowledge advances to a point where what was once new, developing information becomes common, or at least straightforwardly verifiable knowledge. At what point that becomes something that judges can’t ignore, I’m not sure. It’s possible that it depends on the skills of the lawyers involved as well. I should add that with regards to the human rights law I mentioned above, in one of those guides that I linked to, there was a provision that the government won’t necessarily be at fault if it acted in good faith in accordance with the knowledge available to it at the time. Then I guess it becomes a question of who’s informing them and what their predictive record is like. Maybe more governments should read NC?

        1. d w

          not so much that the vaccines arent as effective as we would like them to be (guessing the highest possible effectiveness is just south of 98%….we will never get to 100, and never had to date)

          the virus only allows for 2 choices, do nothing, and many will die, and many more will struggle with long term effects of the virus for possibly the rest of their lives, or do some thing, whether thats masks, vaccines, long term changes to how our economy operates, etc…

          choose one or the other.
          there are no others

          the virus doesnt care what we want, think, only what we do.

          1. Basil Pesto

            I’m sorry if I’m not getting something (it’s late here!) but I’m not really sure what this has to do with my posts. I’m making slightly technical points about European Human Rights law with respect to this particular example from Spain. I’m not really making a point about Covid per se.

    1. Nick Corbishley Post author

      I’m pretty sure you’re right. Once the vaccine passports came into effect in Europe, Spain broadened the vaccines that are eligible for entering its territory to include those that have been widely distributed in Latin America. It has also just lifted a mandatory 10-day quarantine on travellers coming from Brazil, Argentina, Bolivia and Colombia. But for the millions of Latin Americans who received one of the Chinese, Russian or Indian vaccines, including as part of the COVAX program, France, the Netherlands, Germany, Italy and a host of other EU countries are essentially out of bounds.

      1. R

        Travel is a mess.

        A colleague and spouse are expecting first baby this week. In-laws from Brazil can only reach London via two week sojourn in Switzerland because it is the only country which recognises their vaccine and is on UK green list….

        I am supposed to attend a 1 day mediation in Arctic Norway (two days flying to get there) with colleagues from Singapore but the Singapore rules (two week quarantine on reentry) make the trip unworkable. Local court considering Zoom request….

  3. David

    The French Constitutional Court ruled in favour of the government’s draft law earlier this month, with only a few quibbles. It’s required in lots of cases, but not necessarily always verified or enforced: for example, for long-distance high-speed trains, there are some checks, but for short distance commuter trains it’s acknowledged to be impossible. In effect, the real purpose is to encourage people to be vaccinated, by threatening them with the possibility of spot-checks and fines if they enter a place where they’re not supposed to be. In that, it has been pretty effective, and take-up of vaccines has increased significantly: it now stands at 72% of the population over 12 with two shots. So far, the number of new cases hasn’t climbed very much, and the latest R0 number is only barely above 1.

    There has been a lot of publicity about opposition to the vaccine pass, and I saw some of the protesters in a provincial French city last Saturday. There’s no common theme or common identity: most were middle class and white, often in families, and mainly protesting against being messed around by a government which is unpopular and is seen as high-handed in other respects. But the vast majority of French people are grumbling (as the always do) and getting on with life. On terraces, it’s a bit of a joke between the waiters and the customers, and nobody takes it that seriously.

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