A global health crisis, broadcasted almost instantly, arguably ensures that most citizens accept health recommendations responsibly, and no coercive measures are needed for them to take precautions. In fact, the first decisions made by the Spanish health authorities with respect to COVID-19 were passed through documents with no regulatory value. However, the rapid spread of the epidemic forced these authorities to increasingly restrict various fundamental rights and freedoms. Three major legal issues arose then: firstly, whether the ordinary provisions of the health legislation were sufficient to deal with this crisis or emergency powers should be triggered; secondly, whether the central government should have powers devolved to better manage the crisis; and, thirdly, under which conditions and to what extent the government may restrict constitutional rights by virtue of these emergency powers.
Regional health measures
In Spain, health services lie within the responsibility of regions (Comunidades Autónomas). Although the
central government can pass basic regulations with minimum common standards and
coordinate the health system, it only has executive powers over transborder health issues (e.g.
airport entrance control).
The first measures to fight COVID-19 were adopted on the 9th
of March 2020 by the Interterritorial Council of the National Health System,
which the Ministry of Health and regions are part of. Such measures were
limited to areas where community transmission was significant (region of Madrid,
the city of Vitoria and the small town of Labastida). In these areas, school
activities were suspended and social distancing was established in the
educational and work environment.
Between the 8th and 13th of March, all regions took
executive measures, as they were increasingly affected by the expansion of
COVID-19. Large social gatherings and face-to-face educational activities were
suspended. Sanitary recommendations on hygiene and social distancing were issued.
In some cases, more invasive measures, such as forced medical controls,
quarantines, requisition of sanitary supplies, takeover of private hospitals
and regulations on the working conditions of health and emergency personnel,
were also taken.
Under Spanish law, restrictions on constitutional
rights need to be proportionate and provided for by parliamentary law.
Moreover, when it comes to restrictions on the so-called fundamental rights (as
freedom of movement), this law must be a state organic act (ley orgánica). Both central and regional
law contain several provisions that meet those constitutional requirements and
enable to take the abovementioned measures without great difficulty, including
those interfering with the exercise of fundamental rights. Regional governments
adopted them pursuant Organic Law 3/1986, of 14
April, on Special Measures in Public Health. This legislative act gives health authorities a
very broad power with that regard, as it allows them to take any measure
“deemed necessary in the event of a transmissible risk” (art. 3).
In addition, other central State laws (Act 14/1986, of 25 April, on
General Health, Act 17/2015, of July 9, on
the National Civil Protection System, Act 33/2011, of 4 October, on
allow health authorities to impose, for instance: personal obligations on
retired and trainee health workers; requisitions of goods; duties on the
population to collaborate with the police, etc. Regional health and emergency
laws also contain similar provisions.
In short, current Spanish health law already gives
broad extraordinary powers to the relevant (state and regional) authorities,
which could be used to deal with pandemics like COVID-19.
Insofar as these actions provided for by the “old
health law” might have an impact on fundamental rights, a judicial
authorization or approval is required. Article 8.6 of the
Contentious-Administrative Jurisdiction Law requires such a judicial intervention when
„the measures that the health authorities consider urgent and necessary
for public health and that involve the deprivation or restriction of liberty or
another fundamental right“.
Canarias, Murcia and Catalonia, for instance, asked for it when
establishing quarantines (just for a hotel in Canarias and for municipalities with approximately 70.000
inhabitants in Catalonia, and 376.000 in Murcia).
Emergency Central Powers
The growing spread of the epidemic provoked a legal and political debate on whether (i) those measures needed the activation of the emergency powers associated with the declaration of the state of alarm or the state of exception pursuant article 116 of the Spanish Constitution (ruled by Ley Orgánica 4/1981, de 1 de junio, de alarma, sitio y excepción), and on whether (ii) health authorities have the power to impose such restrictions on fundamental rights.
Both issues became particularly controversial
after four regions (La Rioja, Catalonia, Extremadura and Murcia) confined entire
populations to stop several uncontrolled outbreaks, which obviously implied a
severe restriction on the fundamental right of freedom of movement. All of
these regions invoked their necessity powers provided for in the aforementioned
health and emergency legal provisions.
At this point, the central government declared the
state of alarm (Royal Decree 463/2020, of 14th
of March). Restrictions
on freedom of movement extended to the whole Spanish territory and to all types
of activities, with a limited number of exceptions (health and social workers,
food stores and food production, industry, construction, banking, media,
energy, water and electricity supplies). This Royal Decree ratified all the
previous regional measures insofar as they were compatible with it. The state of alarm has produced two main
additional consequences: (i) executive powers have been centralized on the
central government (namely on the President and four Ministers as delegated
authorities: Health, Defense, Mobility and Interior), so that regional
authorities need central approval to make some decisions; and (ii) the
government may take over private hospitals.
In the following days, the central government has
passed a large number of executive
order to implement those sanitary measures and to ensure the proper functioning
of certain services (transportation, essential supplies, centralization of
public purchases, reorganization of public services, suspension of
At the same time, regions may continue to take measures subject to central
approval as far as they do not collide with central decisions. In fact, there
is still some regional diversity in approaches and regulations (e.g. on social
distancing or prohibition of certain activities such as hairdressers, later
extended to the whole Spanish territory). The centralization of public
purchases of medical equipment has been criticized by many regions and even by
the media, as it has slowed down supply due to the lack of management
experience on the part of the Ministry of Health.
Likewise, there has been a clash between the
central government and some regions (Catalonia, Murcia) that have called for
more severe quarantines, involving the cessation of construction and all industrial
activities not linked to essential needs. At first, the government totally
rejected some of those additional precautionary measures (Murcia) or only approved very localized strict
as those existing in some Catalan municipalities prior to the state of alarm.
However, on the 28th of March,
after the Parliament had voted a 15-day extension of the state
of alarm and
ruled out tightening the confinement measures, the government unexpectedly
announced its decision to halt all “non-essential” economic activities (see Royal Decree-Law 10/2020, of
This measure raises relevant legal issues regarding the limits, extent and
parliamentary control of the exceptional powers that the state of alarm confers
to the government.
State of Alarm vs. State of Exception
Under Spanish law, the state of alarm allows the
government to “limit” freedom of movement, whereas the state of exception
enables it to “suspend” this and other fundamental rights in cases of serious
disturbances of public order. The distinction between “limitation” and
“suspension” is quite relevant, as the legal requirements to declare the former
state are less strict than those established for the latter one. The
declaration of state of alarm is subject to an ex post parliamentary control, whereas the declaration of state of exception
requires a previous authorization by the Parliament.
Some scholars have argued that the quarantines
imposed to deal with the COVID-19 crisis involve a suspension of that
constitutional right and, therefore, the state of exception would be required.
Rather than limiting freedom of movement, Royal Decree 463/2020 temporarily
deprives entire populations from this right.
Moreover, regional elections in Euskadi and Galicia were called off, without
an electoral legal provision to back it up, because of the state of alarm
affecting the right to elect and be elected.
The Judgment of the
Constitutional Court No 83/2016, of 28 April, on the state of alarm declared as a result of an
air traffic controllers strike, suggests that this state does not enable to
impose such general restrictions, but only “to limit the movement or permanence
of people or vehicles in certain places or to condition them to the fulfillment
of certain requirements”.
Summing up, this crisis shows how the emergency
legislation passed in 1981 is not well designed to manage health crises and, in
particular, major ones like that of COVID-19. Its provisions do not determine
with sufficient precision the scope and limits of both parliamentary control
and judicial review. They do not take into account that in 2020 Spain is a
decentralized state, where health matters lie within the jurisdiction of regions.
The centralization of emergency powers may produce poor results, as a
consequence of the lack of experience on the part of the Minister of Health in
the day-to-day management of health services. And the imposition of more and
more severe quarantines, which temporarily deprive entire populations from
their freedom of movement, despite the fact that the Parliament has not
approved these measures, raises serious doubts from the point of view of the
principle of democracy.
COVID-19 pandemic has already caused thousands of
deaths and huge economic losses in Spain. And this is just the beginning. Under
Spanish tort law, the State would have to compensate some of these
damages insofar as certain conditions were met, which does not seem obvious.
Firstly, there must be a causal link between the
State’s actions or omissions and the damages at issue, which is excluded in
cases of force majeure.
Unfortunately, it is quite difficult to distinguish those additional damages
that would not have been produced, had the State taken due precautions, from
those that would have been caused anyway (unavoidable losses caused by force majeure).
Secondly, damages must be particular (individualizados), i.e. suffered by a
single or specific person or group of people. General losses (caused to the
general public, i.e. to a very large number of people) are not compensable, as
compensation would make the victims (i.e. taxpayers) worse off. Indeed, they
would then have to bear not only the costs of compensation, but also the costs
of related administrative and judicial proceedings.
Thirdly, it is usually said that State liability
is strict under Spanish law, but it is actually not. In fact, under the
case-law of Spanish courts, the State is liable only if it caused the accident
at issue negligently, by not taking due care. Subsequently, in order to be
compensated, victims will need to show, on the one hand, that Spanish
authorities could have reduced or mitigated the harmful effects of the pandemic
by taking some precautionary measures. On the other hand, they will also have
to prove that the Spanish government breached a duty of care, i.e. it was
obliged to take those measures, as their expected benefits exceed their costs
given the information available at the time when the decision to not take them
was made. However, it is arguably unclear whether, at that time, from an ex
ante point of view, the benefits of preventing the uncertain risk posed by
COVID-19 outweighed the extremely high costs of taking such drastic measures.
Compensation for Takings
Both the central government and the regions have
taken a number of measures severely restricting constitutional rights, such as
freedom of movement, freedom of enterprise, and the right to private property.
They have imposed lockdowns and quarantines, banned commercial, educational and
cultural activities, closed industrial facilities and retail premises,
requisitioned medical devices, taken over private hospitals, etc.
Some of these measures should be considered as
expropriations or regulatory takings and, therefore, compensated by virtue of
article 33.3 of the Spanish Constitution, whereas others ought to be deemed non
In order to distinguish between both types of
measures, Spanish courts tend to use, albeit not always consistently, the
“harmfulness” criterion. If the State prohibits or restricts the exercise of a
right on the grounds that it is harmful or too dangerous for society, such a
measure should be deemed a non-compensable regulation. Let us note that, in
such a scenario, compensation would encourage a socially undesirable activity.
If, by contrast, the exercise of the right at issue is not noxious nor excessively
dangerous given the circumstances, its restriction should be considered an
expropriation and, therefore, compensated. In this case, compensation
incentivizes a socially beneficial activity.
According to this criterion, the abovementioned quarantines,
lockdowns, closures and prohibitions would be non-compensable regulations,
whereas requisitions of medical devices and takeovers of private hospitals
would be regulatory takings.
State Aids and Economic Regulation
The central government and other public
authorities have announced that they will provide financial assistance aimed at
mitigating economic impact of the pandemic on households, professionals, firms
and the whole economy. On the one hand, specific aid will be granted to those
sectors on which the crisis has had a greater economic impact, such as the
tourism sector. On the other hand, it is provided for the suspension, deferment
or even reduction of some tax obligations and other payments for small and
medium enterprises, as well as for self-employed workers (see Royal Decree-Law 7/2020, in Spanish).
Moreover, the government has passed some
decree-laws that retroactively change the allocation of risks in several
markets in order to protect the weakest parties (e.g. tenants, mortgage
debtors, employees, energy consumers, etc.). For instance, in the rental
market, it is provided that some tenants who are in a particularly vulnerable
situation shall not be evicted over the next few years. Suppliers of
electricity, natural gas and water may not suspend supplies to “vulnerable
consumers”. In the mortgage market, debtors experiencing extraordinary
difficulties in meeting their payments are granted a moratorium, etc. (see Royal Decree-Law 8/2020, in Spanish).
The measures related to the labor market are particularly relevant and controversial. Broadly speaking, these measures seek to protect workers and prevent job destruction during and after the crisis. In order to do so, the Spanish Government has: made it more difficult and costly for firms to lay off their workers during the crisis; imposed a temporary paid leave on some companies, etc. (see Royal Decree-Laws 8/2020, 9/2020, and 10/2020, in Spanish). The costs of these measures are mostly borne by the State –through the social security system– and firms.
For further information, see “Coronavirus… y otros problemas”, El
Cronista del Estado Social y Democrático de Derecho, vol. 86-87, 2020.