Belgium / Constitutional Court / 26/2023

Key facts of the case:

The SARS-CoV-2 virus outbreak in March 2020 triggered pandemic containment measures at various levels. The contested decrees and ordinance were implemented to complement existing measures aimed at controlling the COVID-19 pandemic. The Flemish Community and the Common Community Commission in Brussels (i.e. the body in charge of community competences of the Flemish-speaking and French-speaking Communities in the Brussels Region) took measures to prevent the spread of COVID-19, such as isolation, testing, and contact detection. The decree of 10 July 2020 extended the isolation scope, while the decree of 18 December 2020 introduced mandatory self-isolation and regulated the organisation of contact detection and data processing. The 17 July 2020 ordinance amended the communicable disease regime, with mandatory testing and quarantine for returning persons from "red zones" or with a high-risk profile. In January 2021, citizens filed an action for annulment in the Court against the Decree of the Flemish Community of 10 July 2020 and the Decree of 18 December 2020 on preventive health policy and COVID-19 notification obligation, arguing that the Decree violated Article 187 of the Constitution, read together with articles 10, 11, 12, 13, 14, 22 and 23 of the Constitution, Articles 3, 5, 6, 7, 8, 9 and 13 of the European Convention on Human Rights, Articles 7, 9, 15 and 17 of the International Covenant on Civil and Political Rights (ICCPR), and Articles 1, 3, 4, 6, 7, 8, 10 and 47 of the EU Charter. They also sought the suspension of the decree of 18 December 2020, but this was rejected in judgment No 88/2021 of 10 June 2021 because the applicants failed to show that they would be seriously and irreparably harmed by the immediate application of these provisions. In January and June 2021, additional actions to annul were filed by citizens and the non-profit organisation "Association de Promotion des Droits Humains et des Minorités" on similar grounds. The cases were merged..

Key legal question raised by the Court:

As the Court merged several cases on the same topic together, there is a variety of legal questions raised. First, a dispute revolves around the question of jurisdiction. Some contend that the authority to enact measures related to isolation, medical examination, testing and criminalisation should rest with the federal government, challenging the jurisdiction of the communities. Furthermore, there is a question raised regarding the procedural aspects of the Decree of 18 December 2022. It is argued that the lawmakers should have sought the opinion of the Federal Data Protection Authority beforehand, according to the GDPR. Next, a constitutional dimension is introduced, with several parties asserting that the challenged measures infringe Article 187 of the Constitution. This claim suggests that these measures, by potentially suspending certain constitutional provisions, run afoul of the constitutional framework. It is also claimed that the possibility of isolation and self-isolation for infected persons and those at high risk could be considered a "deprivation of liberty" under the European Convention on Human Rights, without adequate safeguards including appropriate judicial oversight. The claimants refer, in this context to equivalent protection provided by Article 9 of the International Treaty and Civil and Political Rights, Articles 6, 7 and 47 of the EU Charter on Fundamental Rights and Article 12 of the Belgian Constitution. The legality of the measures is also questioned on the grounds of vagueness in defining punishable behaviour. Specifically, terms like "increased risk," "high-risk area," and "red zone" are criticized for lacking precision, thereby potentially violating the legality principle in criminal cases. Lastly, the matter of data privacy is raised, asserting that the Flemish decree infringes upon the right to privacy. The concern centres around the sharing of medical data with various entities, including the central contact centre, field investigators, local contact centres, and COVID-19 teams, raising significant questions about data processing practices and the protection of individual privacy rights.

Outcome of the case:

Firstly, the Court noted that the disputed measures do fall within the competence of the communities, especially in the area of preventive health care. A second issue concerned the consultation of the federal Data Protection Authority. The Court found that although the Flemish Community has established a supervisory authority, because it had not been notified to the European Union as required by the GDPR, its opinion could not count as consultation under the GDPR. The Court upheld this plea. The Court then assessed the claim that the challenged measure violated the Constitution. This claim was rejected because, although the measures were intended to address an emergency, they did not amount to suspending the Constitution. On the legal question with regards to the obligation of isolation and self-isolation, the Court ruled that despite the intrusive nature of these measures, judicial remedies were available. The Court noted that the Flemish Community provided for an independent appeal court, and that appeals could be lodged with courts of appeal, including interlocutory proceedings. Consequently, there is no unlawful detention as in Article 5 of the ECHR. Finally, with regard to the principle of legality in criminal matters, the Court concluded that the concept of “increased risk” was clear, but found that the concepts of “high-risk area” and “red zone” had not been defined rightly, resulting in a violation of the principle of legality. Regarding data processing, the Court ruled that subject to the legal obligation of confidentiality, sharing medical personal data with different actors did not violate the right to respect for private life. The Court firstly annulled Articles 2 and 7 to 15 of the Decree of December 18, 2020 that relate to data processing. However, to avoid the legal uncertainty that would result from that annulment, it maintained the effects of those provisions until the entry into force of a regulation adopted after compliance with the requirements of the AVG and, at the latest, until 31 December 2023. The Court further annulled the provision of the same decree with respect to the term " high-risk area" and the words "any person who arrives in the territory of the bilingual region of Brussels-Capital, coming from a city, municipality, district, region or country which the federal public service Foreign Affairs designated as a red zone in the context of that pandemic" in the ordinance of 17 July 2020. Finally, the Court dismissed the reminder of the appeals.