The Supreme Court alienates itself with the Superior Court of Justice of Andalusia (TSJA) and does not see justification for the obligation to present a COVID certificate, a PCR or a negative antigen test to enter nightlife venues in that autonomous community, as the Regional government.
The high court thus shares with the TSJA the lack of appropriate justification for the proposed measure, which was generally postulated for the entire Andalusian territory, applicable to the entire Andalusian population and municipalities regardless of the incidence rate, without being linked to its health situation and its evolution, and also indefinitely. Therefore, it agrees with the TSJA that the suitability and necessity of the measures had not been justified in this case.
The Supreme Court thus dismisses the appeal of the Junta de Andalucía against the order of the TSJA, of August 6, which denied the judicial ratification of the measure contained in the Order of August 5 of the Ministry of Health and Families consisting of allowing “access inside entertainment and hospitality establishments with music “only to people who can prove a digital COVID certificate from the European Union (EU) or a negative antigen or PCR test carried out in the last 72 hours.
The Junta de Andalucía filed an appeal against the aforementioned order alleging that “it violated articles 43 of the Constitution and 55.2 of the Statute of Autonomy for Andalusia.” The contested resolution “establishes a doctrine that can be seriously harmful to general interests”, since the Autonomous Community “could not adopt the sanitary measure of limitation of access to the interior of entertainment and music establishments.”
“A differentiated treatment”
For this, the Andalusian High Court based its decision on the fact that “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, “by establishing a differentiated treatment for access to such premises, based on the possession or not of the aforementioned certificate.”
The order indicated that the measure proposed by the Andalusian Government “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 the contagions inside the entertainment venues, can make them possible, which is why it cannot be ratified. ”
In this regard, the Public Prosecutor assures that the restrictive measure has become general, for the entire territory, “projecting for the whole of Andalusia, an extensive territory and in very different situations”, as recorded in the Supreme Court order, which adds that ” it is not a precisely essential measure to safeguard public health in a given space where a social condition of coexistence exists, but rather a preventive measure “.