On 16 February 2023, the Constitutional Court mostly validated the constitutionality of the several health measures taken during the pandemic by different levels of government but declared a measure adopted by the Flemish Community unconstitutional.
In 2020, the Flemish Community and the Joint Community Commission (for the bilingual Brussels-Capital region) have indeed implemented several measures to combat the COVID-19 pandemic and the spread of the virus. The parties challenging the measures argued that the provisions concerning isolation, medical examinations, and testing, as well as the criminalisation of non-compliance, fell outside the communities’ competence and should have been subject to consultation with the Federal Data Protection Authority.
The Court rejected these arguments, finding that the measures were within the communities’ competence. The Court also rejected the argument that the measures constituted a suspension of the Constitution (prohibited under its Article 187), finding that they did not amount to a declaration of a state of emergency temporarily suspending the Constitution or any of its provisions. It also found that the Flemish Community had established an appropriate supervisory body for the data protection issues arising from the processing of health data for contact tracing.
However, the Court held that the supervisory body established by the Flemish Community had not been reported to the European Union, as required by the General Data Protection Regulation, and therefore could not be considered a competent supervisory authority. The Court thus ordered the Flemish Community to revise its legislation before 31 December 2023 to comply with its judgment.
The Court also analyzed whether the sanctions for not respecting isolation or self-isolation violated the principle of legality in criminal law. The applicants argued that the terms “increased risk”, “high-risk zone”, and “red zone” are vague and do not allow them to determine when their actions are punishable. The Court found the term “increased risk” to be sufficiently precise but found a violation of the principle of legality regarding the interpretation of “high-risk zone” and “red zone” since the designated areas are not published in an official text that is easily accessible to the public. The Court thus annulled these terms in the contested provision.
Reference: judgment n°26/2023; ECLI:BE:GHCC:2023:ARR.026.