A carte blanche from Nicolas Thirion, Professor of Law at the University of Liège; Lucien Kalenga, lawyer at the Brussels bar and Fernand Schmitz, lawyer at the Brussels bar
On January 7, 2022, Mr. Di Rupo declared ” take note “Of the decision of the Court of Appeal of Liège relating to” Covid Safe Ticket “. The extension of this measure is currently being voted on by MPs across the country.
This is not a simple formality. In particular, our parliamentarians should take into account the lessons provided to them by the Liège Court of Appeal, whose decision was presented a little quickly as a simple validation of the Covid Safe Ticket.
The decision of the Liège court deserves careful reading since the motivation expressed therein creates very narrow and precise guidelines which must be respected.
What should we remember from this judgment?
First, the Court recalls that the judge has the power to examine whether the administrative authority or the legislator acted in a normally prudent and diligent manner, particularly when they infringe the subjective rights of citizens. The attention of Ladies and Gentlemen Members of Parliament is drawn to this motivation, which is liable to engage the responsibility of the State and the Regions. This may be sanctioned, under certain conditions, even by way of judicial summary.
It follows that, contrary to what the Walloon Region had asserted through the press, the Namur summary judge, by concluding that the Walloon decree was apparently opposed to European law, had therefore in no way violated the law by not referring the case to the Constitutional Court.
This is to be welcomed because this analysis by the Namur summary judge, relayed by the Liège Court of Appeal, guarantees a real effective remedy to citizens against possible mistakes by public authorities in times of a pandemic.
The judgment also notes, prima facie, an indisputable fault of the Walloon Region which refrained from seeking the opinion of the Data Protection Authority, which constitutes a clear violation of European law and of the GDPR regulation. One can, moreover, wonder about the reasons for which the Walloon Region had in the first place abstained from doing so… Anyway, the decision underlines in a very relevant way that this absence of consultation is of all the more problematic as the Authority’s previous opinions were particularly nuanced, even critical, with regard to the Covid Safe Ticket.
In other words, it emerges from the judgment of the Court that it is unacceptable to deliberately evade the opinion of an authority, a fortiori if one senses that this opinion could be unfavorable.
Second lesson: the Walloon Region cannot hide behind any federal loyalty in order to avoid any fault on its part. Once the authorities have taken the side of decentralized management of the crisis, each entity must assume its responsibilities when making the choice, or not, of adopting a measure. The very questionable habit which consists, on the part of the entities, of ” return the ball On the grounds that the decision was taken at another level cannot therefore be accepted.
Third lesson of the judgment: even if at the end of its in-depth analysis from the perspective of the proportionality criterion, the Court does not condemn prima facie no recourse to the Covid Safe Ticket, the judgment however clearly underlines that the Covid Safe Ticket is, in principle, formally, contrary to the European Convention on Human Rights and the Charter of Fundamental Rights in particular in this regard. that they guarantee the right to respect for private and family life, freedom of association, the prohibition of discrimination, the integrity of the person, the right to privacy and the protection of personal data, freedoms of assembly and association, the right to culture, the freedom to conduct business, the rights of children, those of the elderly. Establishing a real social control, it is therefore by no means a trivial measure such as the authorities insisted on presenting it.
Fourth, faced with a decree from the Walloon Region, which some have emphasized as being unclear and incomplete, the Court rightly points out that since it is not accompanied by implementing decrees, it should necessarily be self-sufficient. In other words, the judgment implicitly but definitely condemns the use of FAQs to determine the authorized or prohibited behaviors, especially when they are accompanied by criminal sanctions.
Fifth lesson: if the Covid Safe ticket can, according to the Court, appear as a proportionate restriction of freedom, it is only because of its temporary nature and the fact that the measure cannot be extended automatically without a real analysis of the scientific situation, it being understood that it is up to the authorities to demonstrate the usefulness and necessity of the measure. Between this decision and the decision recently pronounced by the Council of State on the closure of culture, it is clear that several judges now recall that measures cannot be taken at random, without real scientific justification.
In addition, it should be noted that the Court seems to condition the proportionality of the CST to the current epidemic situation, which is at its highest level, implying without too much ambiguity that, if it were better, the measure would no longer be justified.
The last “rule of good conduct” which emerges from the judgment of the Court appears particularly beneficial in view of the latest statements, to say the least astonishing, from the Federal Minister of Health. On the day of the decision, the latter considered that the French-style vaccination pass was perfectly defensible, a thesis rightly contested by many jurists attached to fundamental rights. No doubt he had not yet taken cognizance of the judgment, which nevertheless underlines two essential points: on the one hand, the question of strengthening health care cannot be perpetually avoided and there can be no question of perpetuating draconian measures due to the lack of personnel, equipment or resources within our hospitals. In other words, it is not up to citizens to compensate by restricting their freedoms and to eternal life the deficiencies of the State in this matter. Moreover, the Court suggests that the insufficiency of public action on this subject could engage the responsibility of the State. On the other hand, if the Covid Safe Ticket may seem prima facie constitute a proportionate measure, it is only because of the possibility for citizens to benefit from it via means other than vaccination, which implies that this must remain a free and informed choice. It therefore seems that if by any chance some were tempted by the possibility of transforming the Covid Safe Ticket into a vaccine-only pass, the decision of the Court of Appeal would be even more severe with regard to the authorities. Hopefully it will be read and heard!