Court rules against Andalusia’s Covid pass for nightlife venues

The administrative chamber of the Andalusian High Court ruled on Friday against authorizing the regional government’s bid to require patrons to provide proof of being coronavirus-free in order to enter nightlife venues in the southern Spanish region.

Last Monday, the Andalusian government announced that anyone wishing to enter a nightlife venue, such as a nightclub, would have to present the EU Digital Covid Certificate or a negative coronavirus test result (either antigen or PCR). The EU certificate – which was launched in an effort to restart travel in the 27-member bloc – certifies that the bearer has been partially or fully vaccinated, that they have had and overcome Covid-19 or that they have tested negative for the virus.

The judges found that there was not enough proof that “the large number of cases in the fifth wave originated in nightlife venues”

The decision, which would not affect bars and restaurants open during the day, was set to go into effect on August 5, but on Tuesday the regional government backtracked and agreed to first ask the regional High Court for authorization, due to legal concerns over privacy issues and complaints from the nightlife business industry.

In the court document, the judges ruled that the measure could affect the right to privacy, given an individual would be required “to show data related to health, considered according to European regulation, to be sensitive.” The regional High Court also found that it affected the principle of non-discrimination as it “established different treatment for access to those venues, based on the possession or otherwise of the mentioned certificate,” in reference to the EU Digital Covid Certificate.

While the judges stated that requiring a patron to provide proof of being Covid-free did not “seriously” affect the right to privacy, given more than half of the population is fully vaccinated against Covid-19, they ruled that it was “not an appropriate measure” because it put proof of vaccination and proof of a negative coronavirus test on the same level – even though they imply different levels of protection.

A Covid-19 vaccine protects a person from developing a serious case of Covid-19, but not from contracting the virus. Likewise, it is also possible for an individual who has had the virus to be reinfected. According to the judges, given that people who have been vaccinated or have overcome the virus can still contract it, it is not clear how the regional government’s measure will “prevent transmission from those who have gone to the venue just with a PCR or antigen test, which only certifies that at the moment the test was taken they were not carrying the active virus, not that they have any immunity against it.”

The court also rejected the regional government’s claim that the measure was necessary, arguing that there was not enough proof that “the large number of cases in the fifth wave originated in nightlife venues” – an argument also raised by the nightlife business industry.

When the state of alarm ended on May 9, regional governments lost the legal authority to introduce coronavirus restrictions that curb fundamental rights, such as the nighttime curfew, without facing challenges in the courts.

Now, the regions – which are in charge of containing the pandemic in their territories – must seek authorization from the courts, but rulings often differ between different jurisdictions.

The same Friday that the Andalusian High Court ruled against the entry restrictions for nightlife venues, a lower court in the Andalusian city of Seville gave the green light for eight municipalities with high transmission rates to be confined. Galicia has also introduced similar restrictions on nightlife venues in the northern region without running into trouble with the courts.

English version by Melissa Kitson.