He points out that “the increase in infections” justifies the measure and advocates a “relativization” of the formal deficiencies
MADRID, July 5th. (EUROPA PRESS) –
The Supreme Court (TS) has endorsed the capacity restrictions in the hotel industry imposed by the Aragon government as a “reasonable, necessary and proportionate” measure to contain the spread of the coronavirus during the second wave of the pandemic.
In a June 22 judgment collected by Europa Press, the disputed Administrative Chamber confirms the appeal of the Government of Aragon against the judgment of May 20, 2021 of the Aragonese Supreme Court (TSJ), which agreed with the Confederation of Hospitality and Tourism Entrepreneurs of Aragon (CETHA).
The reason for the disagreement was Order SAN/841/2020 of September 9 amending an earlier order. In particular, the point that imposed that “social gatherings must not exceed 50 people if they take place indoors or premises, and 100 people if they take place outdoors”.
The TSJ overturned this requirement on the grounds that it was “not a question of capacity, nor was it a restriction of business activity, but a restriction of the right of assembly” because of “the alleged health hazard”, without, in its opinion, being supported by the General law of public health protected.
For this reason, and noting that “the procedure for preparing the general decree was not carried out” due to the lack of some expert opinions, the TSJ agreed to reverse the aforementioned decree for “essentially legal reasons” without entering into a litigation assessment , “whether the measures are justified, appropriate and necessary”.
The Third Chamber admitted the appeal when it received a complaint about “contradictory decisions of different territorial chambers on the disputed issue related to the conflict between public health and the fundamental right to assembly” in situations of health crises such as the coronavirus -Pandemic.
A CONTEXT OF CRISIS
The judges find that the joint interpretation of the 1986 and 2011 Health Acts “provides sufficient legal protection for the competent health authority to take restrictive measures of fundamental rights and in particular to limit the number of persons participating in public and private establishments To meet”.
“It is not essential that any limitation of a fundamental right must be imposed solely by organic law, and in any case these rules, when interpreted together, include the adoption by the competent health authorities of measures limiting rights whenever appropriate, necessary and proportionate,” they clarify.
And in this case they consider the measure to be “appropriate, necessary and proportionate”, which leads them to “qualify the relevance of the alleged formal defects, since such requirements serve to ensure good regulation, i.e. they are basically of no value in themselves, but to the extent that they serve that purpose”.
In doing so, they emphasize that the reason why such a restriction was imposed “is in response to an undeniable fact: the increase in infections” in “successive waves”. “This notorious quality of the pandemic explains the urgency to make decisions,” something that “gains all its power when responding to the goal of preventing the spread of a disease like that caused by COVID-19,” they affirm.
In this regard, the Aragon government claimed that the evolution of the pandemic in July, August and the first days of September 2020 resulted in a “high risk” situation, “with a huge impact on the population”. It stated that there were 51 active outbreaks at the time and that the spread of the virus was affecting the efficiency of the healthcare system. He put the increase in infections linked to social gatherings at the end of August.
Likewise, the TS points out that “the examination of the administrative file shows that the proposal for an order is accompanied by the justification for the measures and the report of the Technical General Secretariat of the Health Department on the competence, regularity of the procedure followed, an explanation of the urgency and the factual content”, which leading him to conclude that “no debilitating deficiencies were encountered in the preparation of the order”.