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According to The Local (ES):

The reasoning of [Spanish] judges, both regional and national, is that having to prove Covid vaccination, testing or recovery status to enter a bar or visit a museum breaches fundamental rights without having enough of a positive impact on public health.

In the case of the Supreme Court’s latest decision, 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.

This clashes with the stance of judges in neighbouring France, where the top national court approved the government’s Covid health passports for locals and tourists to enter a variety of establishments, only tweaking the initial conditions. [...]

The special powers that come with a state of emergency may explain why in countries such as Germany and Italy, both of which have extended their state of alarm, authorities haven’t had to jump through too many legal loopholes for Covid pass legislation to be green-lighted.

But as things stand in Spain, judges have the final word on Covid restrictions, something for which two of the main associations representing them consider that the Spanish government has acted “irresponsibly” and not legislated correctly by just ‘passing the buck’ to them.

This is all rather confusing to me, not knowing much about the constitutional system in Spain. Would legislation not be subject to basically the same judicial review? And if it wouldn't be (or if the standard would be different for laws than for executive actions), is there no political will or working majority to pass such legislation?

(For example, the health pass in France was passed via legislation, and it was that legislation which was subject to legal challenges.)

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I'm in Germany, and don't know anything about the specialities of the Spanish or French constitutions, so please take this with a grain of salt. However, for the arguments I'm putting forward, differences in the constitution are mostly irrelevant.

I expect all 3 constitutions (ES, F, D) to require weighing the gained advantages against the disadvantages when limiting human or constitutional rights, though.

Would legislation not be subject to basically the same judicial review?

In a certain sense, I'd expect this to be the case, yes.

But the outcome of this process of determining the proportionality of measures that restrict human or constitutional rights can still differ substantially if there are substantial factual differences between the countries.

From what I've read (German context), the baseline for determining the "size" of the advantage is what can be achieved with weaker, less restrictive measures.

Looking at the ECDC vaccine tracker (has covid dashboard as well) or the relevant news tells me that Spain has an exceptionally high vaccination rate already (target groups such as 60+ yo have >95 %, inhabitants in long term care have 99 %, health care workers 90 % fully vaccinated), whereas France had both a low vaccination rate and very high proportion (I remember close to half, but that was early this year) in surveys saying they don't want to be vaccinated when they decided to make vaccination mandatory for the first professional groups and Macron was speaking of the question of mandatory vaccination for the whole population mid of July.

Given this difference, it may very well be that in Spain it is disproportionate to require everyone to reveal health data in a rather public way when there is hardly anyone left who refuses voluntary vaccination.

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  • I've read a story that Franco didn't dig vaccines much, so Spain was one of the last few European countries to have polio outbreaks... and as a result vaccine acceptance is higher in Spain.
    – Fizz
    Sep 15 at 6:29
  • @Fizz: I don't know about such historical reasons. But since you mention it, I thought it may also be that Spain after Franco has a constitution that puts very strict requirements on restrictions of constitutional/human/basic rights. However, I don't know about Spain and France in that respect, so I'have to leave this to someone more knowledgeable. Sep 15 at 7:34

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