Elderly care

On 27 April 2023, the Constitutional Court has rejected almost all challenges to the legislation related to the COVID Safe Ticket (a digital or paper certificate proving that the holder has been vaccinated, tested negative for COVID-19, or recovered from the virus), except for the regime in Flanders for vulnerable residential care.

The federal authority and various federated entities had agreed on rules regarding the use of the COVID Safe Ticket to access certain places or events during the COVID-19 pandemic. Fourteen challenges were filed against the legislation, but they were mostly rejected, except for the lack of clear criteria for the optional use of the COVID Safe Ticket in certain healthcare establishments in Flanders, which were lacking clarity and foreseeability for their visitors. The parties had argued that the legislation violated various rules, such as the distribution of competencies, the principle of equality, individual freedom, and data protection.

The Court found that the introduction of the CST was aimed at limiting the spread of COVID-19 and was not a disguised vaccine mandate. It concluded that the legislation was not discriminatory and was not disproportionate to its objectives. The Court also recognized that the mandatory use of the CST could infringe on individual rights, but it deemed it necessary to protect public health in the context of the pandemic. The Court rejected the claim that the legislation was discriminatory based on its application to certain sectors and age groups and its liability regime for adverse effects of vaccines.

Therefore, the Court rejected most claims, but annulled Article 3 of the Decree of the Flemish Community of 29 October 2021, as it did not provide clear criteria for the optional implementation of the CST in hospitals, residential care centers, rehabilitation hospitals and institutions for the disabled. The decree did not specify the situations in which these residential care facilities for vulnerable persons may apply the CST or the categories of persons to whom the CST is not applicable. This legislation is therefore insufficiently predictable for visitors to these facilities and is contrary to the right to respect for private and family life.

Reference: judgment n°68/2003 / ECLI:BE:GHCC:2023:ARR.068.

Full text of the decision available at www.const-court.be fr
News available at www.const-court.be fr