Spain, Basque Country High Court, 5 May 2022, Judgement 209/2022
Case overview
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Link to the full text of the decision
General Summary
The Basque Country High Court of Justice had to decide whether reopening restrictions imposed on bars and restaurants infringed upon the freedom to conduct a business and the right to work. They were annulled since the regional Government did not justify their adequacy, necessity, and proportionality.
Facts of the case
Decree 44/2020 of December 10 provided for, inter alia, restrictions on the reopening of bars and restaurants depending on the incidence rate of Covid-19 in different areas of the region (Art. 9.1 of the annex). Two hotel associations and one enterprise appealed the provision before the Basque Country High Court arguing that it infringed upon the freedom to conduct a business and the right to work.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court considered that the measures adopted followed the criteria provided for in Plan Bizi Berri II (a contingency plan that established different scenarios regarding the Covid-19 incidence rate). Thus, the closure of bars and restaurants was justified in light of the health circumstances of that moment. In addition, the Court considered the adoption of restrictive measures to be perfectly justified concerning that specific sector (catering industry) and not others. Bars and restaurants were places in which most contagions took place and in which it was more difficult to track them. However, the Court highlighted that the opening restrictions on the catering industry in the Basque Country were neither justified nor proportional. The Government did not provide any concrete information about the adequacy of the restrictions imposed on that sector. There was only information about Covid outbreaks in homes which, nevertheless, did not have to be taken into account. It was subsequent to the decisions adopted by the regional Government. In addition, the information suggested that there was a high incidence rate of Covid-19 not only in bars and restaurants, but also in schools and work environments. Therefore there was no reason to impose restrictions only on the former.
Conclusions of the deciding body
The Court determined that the Basque Country Government did not make an analysis about the adequacy, necessity and proportionality of the opening restrictions imposed on bars and restaurants and declared those measures invalid as a result.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom to conduct a business, Art. 38, Spanish Constitution
- Right to work, Art. 35, Spanish Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom to conduct a business
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court drew upon the proportionality principle. Since proportionality requirements were not met in the Government’s decision, the measures imposed were invalid.
