Superior Court of Justice authorizes use of COVID Certificate/Passport in Comunidad Valenciana

Monday 29th November 2021 – ÁLVARO MONFORT with Mike Smith

The Superior Court of Justice of the Comunidad Valenciana (TSJCV) has authorized the requirement to show the COVID Certificate / COVID Passport to access hotel, restaurant and leisure establishments with a capacity of more than 50 people, music festivals and events and celebrations with more than 500 assistants, as well as to visit patients and interns in hospitals and residences, among other activities.

These provisions appear in the resolution of the Ministry of Health of November 25 and will be in force for 30 days after their publication in the Official Gazette of the Generalitat Valenciana (DOGV).

The Fourth Section of the Chamber of the TSJCV considers that these measures are “balanced” since “more benefits are extracted for the general interest (that is, the containment of the pandemic and the spread of the virus) than damages to other assets. or conflicting values ​​”and comply with the “constitutional judgment of proportionality”.

It points out that they are necessary since, to this day, “no others are known to achieve the purpose with equal efficiency and are essential to obtain the objective of reducing or minimizing the transmission of the virus”

To validate the request of the regional government, the Valencian magistrates have reviewed the recent jurisprudence of the Supreme Court regarding the requirement of the vaccination certificate, presentation of a negative diagnostic test (PCR or antigen test) or proof of having passed the disease to access certain establishments. After this analysis, they argue that these measures are ideal to reduce the risk of spreading the virus indoors in those places where, due to its characteristics and use, it is not possible for the continuous use of the mask, such as in the hospitality industry, or they suppose spaces of risk, such as in residences and health centres.

The resolution also refers to the scientific data collected in the epidemiological report provided by the Generalitat valenciana, in which it is found that the risk of infection is lower among vaccinated than among non-vaccinated and that, in case of infection (a possibility that the current vaccines still do not prevent) the transmission of COVID-19 is much lower among people who have received the full or adapted regimen if they have suffered from the disease.

The implementation of the measure to request the COVID certificate seeks to prevent much more restrictive measures from being implemented, such those imposed during Christmas 2020, which diminish some fundamental defined rights and represent a detriment to the economic activity of self-employed and both small and large companies. The TSJCV considers that this decision harmoniously fits health and economy in the current scenario of the pandemic and motivates the vaccination of those citizens who have not yet participated in the process.

“This type of measure supposes a tenuous limitation of certain fundamental rights that, when confronted with the powerful presence of other fundamental rights, such as life or health protection, provides an objective and reasonable justification for its adoption,” it states.

The TSJCV considers the implementation of the Covid Certificate / Passport in the entire Valenciana Community as justified based on the upward and generalized trend of the pandemic curve throughout the territory, the foreseeable movement of citizens in the coming festive period, and the recent appearance of new variants of the Sars-Cov-2.