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Uncertainty, Administrative Decision-Making and Judicial Review: The Courts’ Perspectives

Published online by Cambridge University Press:  14 October 2021

Fabrizio CAFAGGI  and
Paola IAMICELI Open the ORCID record for Paola IAMICELI [Opens in a new window]
Fabrizio CAFAGGI
Affiliation:
Italian Council of State, Palazzo Spada, Piazza Capo di Ferro, 13, 00186 Rome, Italy; email: Fabrizio.Cafaggi@eui.eu.
Paola IAMICELI
Affiliation:
University of Trento, Faculty of Law, via Verdi 53 – I-38122, Trento, Italy; email: paola.iamiceli@unitn.it.
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Abstract

The role of courts has been rather significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to contribute to governing crisis management. Although differences exist across countries, depending on institutional varieties and political contexts, the analysis shows that, even in times of emergency, courts can provide the necessary balance to the power shift towards the executives. Both action and inaction affecting fundamental rights have been scrutinised, taking into account fundamental freedoms and the rule of law. Deference to political decision-making has varied across jurisdictions and across the multiple phases of the health crisis. Differences in the balancing have emerged compared to during ordinary times. Uncertainty has played a major role, calling for new strategies in regulatory, administrative and judicial decision-making and new balances between precaution and evidence-based approaches. The role of scientific evidence has been at the core of judicial review to ensure transparency and procedural accountability. Proportionality and reasonableness with multiple conceptual variants across countries have been used to scrutinise the legality of measures. Courts are likely to continue playing a significant but different role in the years to come, when liability issues and recovery measures will likely become the core of litigation.

Type
Articles
Information
European Journal of Risk Regulation , Volume 12 , Issue 4 , December 2021 , pp. 792 - 824
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

This article has been drafted by the University of Trento in cooperation with the World Health Organization aimed at the setting up of a database featuring global case law in the field of litigation raised by the COVID-19 pandemic, with special regard to challenges against governmental restrictive measures with an impact on individual and collective rights and freedoms. We are grateful to all of the members of the “COVID-19 Litigation” Network of Judges and Legal Scholars for their continuous support in the collection of judgments and for their contribution to comparative analyses and, among those members, to Mara Abbruzzese, Chiara Angiolini and Gianmatteo Sabatino for insightful discussions about some of the issues here examined. We are also grateful to an anonymous referee for useful comments and suggestions.

References

1 A Alemanno, “Taming COVID-19 by regulation: an opportunity for self-reflection” (2020) 11(2) European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.43> (last accessed 29 August 2021).

2 See M Ferraresi et al, “The ‘Great Lockdown’ and its determinants” (2020) 197 Economic Letters 109628, who identify the following factors: “for the same level of the severity of the pandemic (as measured by the number of cases identified) countries characterised by (i) low political stability; (ii) low level of development; (iii) low level of digitalisation; (iv) high degree of decentralisation; (v) closed-economy and (vi) being away from electoral years, have adopted less stringent measures”. On the effectiveness of the judicial review of governmental action, see, with special regard to the Czech context, J Petrov, “The COVID-19 emergency in the age of executive aggrandizement: what role for legislative and judicial checks?” (2020) 8 The Theory and Practice of Legislation 71.

3 Moving from the Commission Communication, Building a European Health Union, 11 November 2020, COM(2020)724 final, the role of the European Union in the fight against the pandemic has been deeply examined in the Special Issue 4, “Beyond COVID-19: Towards a European Health Union”; see A Alemanno, “Towards a European Health Union: time to level up” (2020) 11 European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.106> (last accessed 29 August 2021); A Alemanno, “The European response to COVID-19: from regulatory emulation to regulatory coordination?” (2020) 11 European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.43> (last accessed 29 August 2021); KP Purnhagen et al, “More competences than you knew? The web of health competence for European Union action in response to the COVID-19 outbreak” (2020) 11 European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.35> (last accessed 29 August 2021).

4 According to the Organisation for Economic Co-operation and Development (OECD), “Most administrations have introduced some form of shortened legislative procedures for putting in place the crisis responses. These have included utilising fast track or emergency legislation in which legislative measures can be rapidly implemented, which bypass the ordinary procedures for making regulations, in derogation of existing standards and rules, leaving significantly less time for scrutiny of the measures through RIA [Regulatory Impact Assessment], stakeholder consultation and parliamentary scrutiny” (OECD, Regulatory Quality and COVID-19: The Use of Regulatory Management Tools in a Time of Crisis, September 2020).

5 See French Constitutional Council judgment, 2021/824, 5 August 2021, paras 30 and 43.

6 See, eg, for Canada, Ontario Superior Court of Justice, 2020 ONSC 7665, 10 December 2020, Canadian Appliance Source LP v Ontario (Attorney General), where the Court rejected a store’s claim for reopening allowance based on a literal though functional interpretation of the statutory provisions aimed at allowing reopening depending on the public health status of a region. Indeed, as the Court observes, the Regulations had to address the public health crisis and the need for essential services.

7 The database is designed within a project by the University of Trento supported and partly financed by the WHO. It will be released in the autumn of 2021 and be accessible at <https://www.covid19litigation.org>. The database will present a selection of leading cases in the field of COVID-19-related litigation, mainly those adjudicated by Supreme Courts through a balancing of fundamental rights, as well as in the light of general principles, in different fields of interest (from education to healthcare, through immigration or commercial activities regulation, to name a few).

8 See Council of Europe, A Toolkit for Member States – Respecting Democracy, Rule of Law and Human Rights in the Framework of the COVID-19 Sanitary Crisis <https://www.coe.int/en/web/congress/covid-19-toolkits> (last accessed 29 August 2021).

9 See, in Belgium, Council of State Schoenaerts, judgment no 248.162, 20 August 2020; in Italy, Campania TAR, no 4127/2021; Calabria TAR, Catanzaro, Section I, 18 December 2020, no 2075; Piemonte TAR, Section I, 3 December 2020, no 580; Lazio TAR, Section III-quater, 4 January 2021, no 35.

10 CJEU Case C-616/17 Blaise, 1 October 2019.

11 ibid.

12 On the relationship between the precautionary principle and proportionality, see Italian Council of State, Sec. I, Advice no 850/2021 (see infra, note 17). See, in relation to the jurisprudence of the CJEU, joined Cases C-78/16 and C-79/16 Pesce et al, para 48, referring to, inter alia, judgment in Case C-101/12 Schaible, para 29 and the analysis of Klaus Meßerschmidt, “COVID-19 legislation in the light of the precautionary principle” (2020) 8 Theory and Practice of Legislation <https://doi.org/10.1080/20508840.2020.1783627> (last accessed 29 August 2021).

13 On the precautionary principle related to COVID-19 in the EU, see I Goldner Lang, “‘Laws of fear’ in the EU: the precautionary principle and public health restrictions to free movement of persons in the time of COVID-19” (2021) European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.120> (accessed 29 August 2021).

14 See, for example, outside of the current pandemic context, the Italian Constitutional Court in its judgment no 5/2018: “Faced with unsatisfactory vaccination coverage in the present and prone to criticality in the future, this Court believes that it is within the discretion – and the political responsibility – of the governing bodies to appreciate the urgency to intervene, in light of new data and epidemiological phenomena emerged in the meantime, even in the name of the precautionary principle that must govern an area which is so critical for public health as is that of prevention” (unofficial translation).

15 See, eg, Labour Court of Teruel, Section 1, Judgment no 60/2020, 3 June 2021, dictated in appeal No. 114/2020, in which the judge rejects the argument of the administrations presenting the current health crisis as a case of force majeure or catastrophic risk, concluding that the Administration should have acted in accordance with the precautionary principle, in accordance with the repeated announcements made by the WHO (more particularly, the need for a large number of personal protective equipment (PPE) masks for health workers should have been foreseen in order to protect them against the risk of contagion by COVID-19, which would result in the protection of the rest of the public). Cf. French Council of State, 13 November 2020, No. 248.918, for which the precautionary principle is addressed to public authorities in the exercise of their discretionary power; it implies a political choice on the level of acceptable risk, and it does not as such create a right of individuals or legal persons.

16 See Italian Council of State, Section I, 13 May 2021, no 850: “If it is true, as reiterated by the recent case law formed on the subject of restrictive measures to counter the COVID-19 pandemic … that the precautionary principle cannot be invoked beyond all limits, but must be reconciled with the proportionality, as recalled both, in matters within the competence of the European Union, by the Court of Justice (see CJEU, Sec. I, 9 June 2016, in Case C-78/2016 Pesce) and by the case law of the Constitutional Court in the ‘Ilva di Taranto’ case (Constitutional Court, judgment no 85/2013, on the balancing between values of the environment and health on the one hand and freedom of economic initiative and the right to work on the other), it is equally true that the test of proportionality and strict necessity of the limiting measures must be compared to the level of risk – and therefore to the proportional level of protection deemed necessary – caused by the extraordinary virulence and diffusivity of the pandemic” (unofficial translation).

17 See K Meßerschmidt, “COVID-19 legislation in the light of the precautionary principle” (2020) 8(3) Theory and Practice of Legislation 267, stating that the emphasis of modern legislation usually is on means–ends rationality, and the precautionary principle justifies measures to prevent damage in some cases even though the causal link cannot be clearly established on the basis of available scientific evidence. For a general analysis of the relationship between uncertainty and administrative decision-making in the field of environmental law, see RB Stewart, “Environmental regulatory decision making under uncertainty”, in T Swanson (ed.), An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional Design (Research in Law and Economics) (Bingley, Emerald Group Publishing Limited 2002) p 71.

18 For example, in Germany, Chancellor Merkel took the decision to back off from a severe lockdown during Easter 2021 following a disagreement with scientists about its effects.

19 At the international level, solidarity has been acknowledged as a key component of the global responsiveness to the pandemic (see WHO, Covid-19 Strategic Preparedness and Response Plan <https://apps.who.int/iris/handle/10665/340073> (last accessed 12 August 2021)). From a constitutional perspective, it is part of the EU infrastructure reflected in the Charter of Fundamental Rights of the EU (see Chapter IV on Solidarity, including Art 35 on Healthcare); see also Art 3, Brazilian Constitution (“The fundamental objectives of the Federative Republic of Brazil are: I – to build a free, just and solidary society”, emphasis added).

20 See Vavřička and Others v the Czech Republic App no 47621/13 (ECHR 8 April 2021) in relation to vaccination: “279. While childhood vaccination, being a fundamental aspect of contemporary public health policy, does not in itself raise sensitive moral or ethical issues, the Court accepts that making vaccination a matter of legal duty can be regarded as so doing, as attested by the examples of constitutional case law set out above (at paragraphs 95–127). It notes in this regard that the recent change of policy in Germany was preceded by an extensive societal and parliamentary debate on the issue. The Court considers, however, that this acknowledged sensitivity is not limited to the perspective of those disagreeing with the vaccination duty. As submitted by the respondent Government, it should also be seen as encompassing the value of social solidarity, the purpose of the duty being to protect the health of all members of society, particularly those who are especially vulnerable with respect to certain diseases and on whose behalf the remainder of the population is asked to assume a minimum risk in the form of vaccination (see in this respect Resolution 1845(2011) of the Parliamentary Assembly of the Council of Europe, set out at paragraph 143 above)”.

21 See, eg, the Italian Constitutional Court 22 June 1990, n. 207, Id. 23 june1994, n. 258, Id. 18 April 1996, n. 118 and more recently Id. 5/2018.

22 Vavřička and Others v the Czech Republic App no 47621/13 (ECHR 8 April 2021): “The Court considers that it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination. In the view of the Court, it was validly and legitimately open to the Czech legislature to make this choice, which is fully consistent with the rationale of protecting the health of the population” (emphasis added).

23 See P Popelier et al, “Health crisis measures and standards for fair decision-making: a normative and empirical-based account of the interplay between science, politics and courts” (2021) European Journal of Risk Regulation <https://doi.org/10.1017/err.2021.7> (last accessed 29 August 2021).

24 This type of case law is relatively common in China (Wugang People’s Court (Hunan Province), 18 September 2020, First Instance Decision (Administrative) no 127; Yanbian Intermediate People’s Court, Jilin, L.X. v Police officer of Police Department in Wangqing, Yanbian, Jilin, 29 September 2020) and Russia (Tuimazinsky Interdistrict Court of the Republic of Bashkortostan, Case UID 03RS0 no 29, 5-448/2020; Trans-Baikal Regional Court, Supreme Court of the Russian Federation, Case No 7-12-168/2020; Supreme Court of the Karachay-Cherkess Republic, 29 June 2020; Kemerovo Regional Court, 29 June 2020; Supreme Court of the Republic of Mordovia, 29 June 2020; Russia, Trans-Baikal Regional Court, 29 June 2020). See, however, in other world regions, for New Zealand, District Court at Auckland, New Zealand Police v H. Auckland, [2020] NZDC 17361, 27 August 2020, the Court gave the Defendant 14 days’ imprisonment for infringements of pandemic-related restrictions, taking into account the COVID-19 situation. The Court considered the imprisonment appropriate in terms of deterrence and in terms of the overall circumstances.

25 See, for an overview of COVID-19 and soft law, M Eliantonio et al, “ COVID-19 and soft law: is soft law pandemic-proof?” (2021) European Journal of Risk Regulation <https://doi.org/10.1017/err.2021.1> (last accessed 29 August 2021).

26 See WHO, supra, note 19.

27 Federal Supreme Court – Supremo Tribunal Federal, 17 December 2020, Direct Action of Unconstitutionality no 6.586 – Federal District, ADI 6.586/DF.

28 See, eg, the US measures related to federal employees: “Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel” <www.whitehouse.gov> (last accessed 29 August 2021).

29 Vavřička and Others v the Czech Republic App no 47621/13 (ECHR 8 April 2021): “214. If vaccination were merely voluntary, it was clear that some would seek to benefit from the effect of herd immunity without exposure to the residual risk associated with vaccination. If such behaviour were to become widespread, it would inevitably cause a decrease in vaccination coverage and ultimately the reappearance of pathologies that were thought to be in decline”.

30 See, eg, with regard to vaccination against poliomyelitis and other diseases, French Constitutional Council, 20 March 2015, 2015/458; see also Italian Const. Court, 18 January 2018, no 5, cit.

31 See Court of Protection, United Kingdom (England and Wales), E (Vaccine) [2021] EWCOP 7 (20 January 2021). See also, for Spain, Court of 1st Instance No. 17 of Seville, Resolution No 47/2021 of 15 January 2021; Court of 1st Instance No. 6 of Santiago de Compostela, Resolutions 55/2021 of 19 January 2021 and 60/2021 of 20 January 2021.

32 So for the Italian Constitutional Court, no 5/2018, cit.: “the choice of the state legislature cannot be censured on the level of reasonableness for having unduly and disproportionately sacrificed the free individual self-determination in view of the protection of other constitutional goods involved. … The legislature, in fact, intervening in a situation where the instrument of persuasion appeared to be lacking in terms of effectiveness, has made mandatory ten vaccinations” (unofficial translation, emphasis added).

33 See, for Israel, Labor Court (DC TA) 42405-02-21 Avishay v. Cochav Yair-Zur Igal Local Council, Nevo Legal Database (21 March 2021) (Isr.); Labor Court (DC TA) 50749-02-21 Chen v. Netanya, Nevo Legal Database (2 May 2021) (Isr.); Labor Court (DC Hi) 33232-03-21 Fikstein v, Shufersal, Nevo Legal Database (26 March 2021) (Isr.), where the Court ruled in favour of the employer’s power to limit workers’ access to the workplace in case of non-vaccinated persons not being willing to undergo regular testing.

34 As an example, the US case law in times of pandemic has largely relied on the Jacobson v. Massachusetts decision, which requires a regulation instituted during a public health crisis to substantially relate to preserving public health and not plainly or palpably invade rights secured by fundamental law. See, among several, U.S. District Court for the District of Connecticut, Amato v. Elicker, 460 F.Supp.3d 202 (D. Conn. 2020), 19 May 2020; U.S. Dist. Ct., N.D. NY, Bill & Ted’s Riviera, Inc. & Partition Street Project, LLC v Cuomo, 494 F.Supp.3d 238 (2020), 13 October 2020; U.S. District Court for the Southern District of Florida, 7020 Entertainment, LLC v. Miami-Dade County, Civil Action No. 20-25138-Civ-Scola, 2021 WL 516282 (S.D. Fla. Feb. 11, 2021), 11 February 2021, where the Court determined that it needed to conclude whether the contested measure (curfew) served a substantial government interest – namely, protecting public health – and was narrowly tailored, which the court found that it was given that “imagined alternatives would not fully serve [Defendant’s] needs” and the curfew allowed for other forms of speech.

35 See, eg, for China, Wugang People’s Court (Hunan Province), 18 September 2020, First Instance Decision (Administrative) no 127, where the question concerned the lack of a legal basis for the sanction imposed to the infringer and consisting in the cessation of business activities; Yanbian Intermediate People’s Court, Jilin, China, L.X. v. Police officer of Police Department in Wangqing, Yanbian, Jilin, 29 September 2020.

36 Interestingly, soft law has contributed to reinforcing the effectiveness of measures and therefore the “duty dimension” of the Chinese fight against COVID-19, despite raising some concerns in terms of legality and legitimacy. See X Cheng, “Soft law in the prevention and control of the COVID-19 pandemic in China: between legality concerns and limited participatory possibilities” (2021) 12 European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.111> (last accessed 29 August 2021).

37 See, for Germany, Thuringian High Administrative Court, Order of 29 April 2020-3 EN 254/20: “The rule of law is not only intended to ensure that government and administration are regulated and limited in the law and that the courts can carry out effective judicial control, but also to enable those concerned to adapt to possible incriminating measures. The legislator is obliged to lay down its regulations in the same way as is possible according to the nature of the life-related content to be arranged with regard to the purpose of the standard. The requirements for the determination of legal regulations also depend on the intensity of the interventions of fundamental rights arising from the regulation or on the basis of the regulation. It is sufficient if, by means of the interpretation of the relevant provision, it is possible to determine, by means of the accepted rules of interpretation, whether the actual conditions for the legal consequence set out in the law are met (BVerfG, decision of 7 March 2017-1 BvR 1314/12 – juris Rdn. 125 m. w. N.; Decision of the Senate of 23 March 2018-3 EO 640/17 – juris paragraph 28)”.

38 See, for example, for Brazil, Supreme Federal Court, ADI 6363 MC-REF, 17 April 2020, where, based on the state of calamity and emergency, the Court justified the measures adopted by the Government providing for cuts in the hours and wages of employees out of ordinary rules, requesting, for such changes, an agreement between employers and employees. Without any purpose of direct comparison (given the clear specificities in respect of both legal systems and issues involved), see also, outside of the pandemic context, Italian Const. Court, decision no 85/2013 in the field of measures against the environmental disaster caused by a large steel company, where the Court excludes that the right to health shall be given absolute priority over other rights, including those related to the maintenance of employment levels: “the effective scope of the regulatory intervention carried out by decree law n. 207 of 2012, through the censored provision, in relation to the crisis of industrial plants of national strategic interest, is aimed at making environmental and health protection compatible with the maintenance of employment levels, also in the presence of judicial seizure of the plants. We cannot agree, with the assumption of the referring judge for preliminary investigations, according to which the adjective ‘fundamental’, contained in art. 32 of the Constitution, would reveal the ‘pre-eminent character’ of the right to health with respect to all human rights. … The Italian Constitution, like the other contemporary democratic and pluralist Constitutions, requires a continuous and reciprocal balance between fundamental principles and rights, without any claim to absoluteness for any of them” (unofficial translation).

39 Art 116 of the Spanish Constitution.

40 Art 19 of the Portuguese Constitution.

41 In fact, although the French Constitution grants the President the full power to address national emergencies in cases of serious and immediate threat to the institutions of the Republic, the state of emergency has been created by Statute no 2020-290 of 23 March 2020. See E Chambas and T Perroud, “France: legal response to Covid-19” (The Oxford Compendium of National Legal Responses to Covid-19) <https://oxcon.ouplaw.com/view/10.1093/law-occ19/law-occ19-e9#law-occ19-e9-note-12> (last accessed 30 August 2021).

42 In Italy, the state of emergency was first declared by Deliberation of the Council of Ministers (31 January 2020), based on Art 12, Civil Protection Code. See S Civitarese Matteucci et al, “Italy: legal response to Covid-19” (Oxford Compendium of National Legal Responses to Covid-19) <https://oxcon.ouplaw.com/view/10.1093/law-occ19/law-occ19-e11> (last accessed 30 August 2021).

43 See France, Council of State, decision no. 451085, 14 April 2021. For Spain, Supreme Court (Administrative Section) Resolution 2478/2020, 4 May 2020, appeal No. 99/2020, where the Court dismissed the claim challenging Royal Decree 463/2020, of 14 March, which declared the state of alarm in Spain, considering that, since the Decree was equivalent to an Act passed by Parliament, it should be appealed before the Constitutional Court. For a substantive discussion of the role of states of emergency in relation to fundamental rights limitations, see Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no. 719/2021 of 24 may JUR\2021\157658, and Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no. 788/2021. “la restricción de derechos fundamentales en el marco de la lucha contra la pandemia del Covid-19 no exige siempre y necesariamente la cobertura del estado de alarma”. On the distinct relevance of the constitutional legal basis, as distinct from ordinary legislation, see also, for South Africa, High Court of South Africa, Gauteng Division, 22939/2020, 6 July 2020; see infra, note 46.

44 For a comparison within the same state (Spain) between balancing under a state of emergency and balancing under ordinary law, see Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no. 788/2021.

45 See, eg, for Colombia, Constitutional Court, Case C-155/20, 28 May 2020, in which the Court concluded that the Government had resorted to the exceptional powers assigned by the state of alarm (emergency) without exhausting the ordinary powers already provided by legislation, thereby infringing the rule of law and the principle of legal certainty.

46 See, eg, for South Africa, Freedom Front Plus v President of the Republic of South Africa and Others, High Court of South Africa, Gauteng Division, 22939/2020, 6 July 2020, where the Court upheld the Government’s decision to declare the national state of disaster within the Disaster Management Act as distinct from the state of emergency foreseen by the Constitution and rejected the claim based on constitutional norms calling for parliamentary oversight in case of a state of emergency. Indeed, unlike the state of emergency, the national state of disaster does not require a derogation from the Bill of Rights and therefore does not require special provisions for oversight by Parliament. The shift of power to the executive in times of pandemic is widely discussed: see The Oxford Compendium of National Legal Responses to Covid-19 <https://oxcon.ouplaw.com/page/919> (accessed 30 august 2021); T Ginsburg and M Versteeg, “The bound executive: emergency powers during the pandemic” (26 July 2020) Virginia Public Law and Legal Theory Research Paper No. 2020-52, U of Chicago, Public Law Working Paper No. 747 <http://dx.doi.org/10.2139/ssrn.3608974> (last accessed 30 August 2021).

47 The case of Germany is rather peculiar in this regard, since a Federal Law on the “Emergency Brake” was approved only in April 2021, whereas until then the sixteen Länder were able to adopt local measures without too stringent restrictions at the Federal level. On the need for coordination within the different policies adopted in the UK, see J Sargeant, Institute for Government, “Co-ordination and divergence. Devolution and Coronavirus” (2020) <https://www.instituteforgovernment.org.uk/sites/default/files/publications/coordination-divergence-devolution-coronavirus.pdf> (last accessed 30 August 2021).

48 See. eg, for the USA, Friends of Danny DeVito v Wolf, 227 A.3d 872 (Pa. 2020), Supreme Court of Pennsylvania, 13 April 2020, where the Court upheld the Governor’s decision to declare the State of Pennsylvania a “disaster area” under the Emergency Code, having properly exercised its police powers for the protection of health and lives of the Pennsylvanian citizens, although viral illness is not in the specific list of applicable disasters provided by the law.

49 See, for Israel, Oren Shemesh v. Prime Minister, 17 March 2021, HCJ 1107/21.

50 See South Bay United Pentecostal Church, et al v Gavin Newsom, U.S. Supreme Court, 5 February 2021, 2021 WL 406258.

51 See, eg, for South Africa, High Court of South Africa (Gauteng Division Pretoria), 19 June 2020, 21424/2020, Democratic Alliance v President of the Republic of South Africa and Others (Economic Freedom Fighters Intervening) [2020] ZAGPPHC 237; [2020] 3 All SA 747 (GP) on the application of the non-discrimination principle to the allocation of funds for businesses suffering from pandemic-related restrictive measures.

52 See, eg, for Latvia, Constitutional Court, No. 2020-26-0106, 11 December 2020, concerning the prohibition of gambling, where, in assessing the lawfulness of the restrictive provision, the Court considered the existence of compensation and of mechanisms aimed at mitigating the consequences of the restrictions imposed in an emergency.

53 But also medical problems represent justified exemptions from the obligation to attend school in person. See, for Canada, Karounis v Procureur général du Québec, Cour Supérieure du Québec, 2020 QCCS 2817, 8 September 2020.

54 See, for Italy, Council of State, decree No 1031/2021, which decided not to quash the restrictive measure concerning school closures due to a lack of scientific evidence that leaving the schools open would not have had the negative results that the regional government claimed and put as the basis of the restrictive measure. See also, for Austria, Verfassungsgerichtshof Österreich, V 436/2020-15, 10 December 2020, upholding the measure on school opening and mask wearing, observing that there were no official data on infection rates in school districts and no scientific evidence for any negative health consequences of children wearing masks, but only evidence on how effective masks are at mitigating the spread of COVID-19.

55 See WHO, COVID-19 Research and Innovation Achievements (13 May 2021) <https://www.who.int/publications/m/item/covid-19-research-and-innovation-achievements> (last accessed 30 August 2021), providing a summary of global research initiatives and achievements in tackling COVID-19 agreed at the outset of the pandemic, measuring research progress on all the knowledge gaps and identifying key research and development achievements and the gaps that still exist.

56 See Italian Council of State, Sec. I, Advice no 850/2021: “It is also well known that the pandemic has led to a strong cooperation between States and international organizations, with a wide sharing of scientific and epidemiological data both at the European Union level and at the international level, with interventions and indications of supranational source under the World Health Organization. It is also well known that measures similar (if not identical) to those introduced in Italy and challenged here have been adopted in almost all countries, not only European, affected by the same pandemic” (unofficial translation).

57 See, eg, for Italy, Concil of State, section III, 1 April 2021, no 1776; for Slovenia, Const. Court of Slovenia, decision No. U-I-83/20, 27 August 2020, concerning the lawfulness of a Decree on the Temporary Prohibition of Movement outside Municipalities in Slovene Republic, assessed on the basis of the level of scientific knowledge at the time of its enactment. See also, well before the current pandemic, the decision of the Hungarian Constitutional Court of 20 June 2007, no. 39/2007, where the Court stated that the provision of mandatory vaccination for children did not violate the Constitution if the legislator demonstrated, relying on scientific knowledge, that the benefits of vaccination for both the individual and society outweighed any possible harm due to side effects.

58 See, eg, for South Africa, High Court of South Africa (Gauteng Division), 26 June 2020, 21688/2020, Fair-Trade Independent Tobacco Association v President of the Republic of South Africa and Another [2020] ZAGPPHC 246; 2020 (6) SA 513 (GP); 2021 (1) BCLR 68 (GP), where the Court pointed out that “in assessing the rationality of the regulations, a court is not required to determine whether the evidence put up by the state is so cogent and conclusive as to establish a substantive or direct link with a higher COVID-19 disease progression in smokers, when compared with non-smokers”; a sufficiently rational basis for the restrictive measure would be a valid ground.

59 The expiration of the measure has not precluded the admissibility of the complaint, although a difference has been made between a summary judgment and a decision on the merits. See, eg, in Italy, the Council of State, Advice no 850/2021, Para 3.2.

60 See, eg, High Court of South Africa (Western Cape High Court), 11 December 2020, 6118/2020, British American Tobacco South Africa (Pty) Ltd and Others v Minister of Co-operative Governance and Traditional Affairs and Others [2020] ZAWCHC 180, where the Court deemed unconstitutional a ban against tobacco sales despite it having been revoked before the proceedings as a way to prevent the same measure from being adopted in the future.

61 See, in Italy, Lazio TAR, no 9343/2021.

62 See, for Italy, Council of State, section III, 1 April 2021, no 1776.

63 See, eg, Italian Council of State, decree no 1006/2021, concluding that “the unjustified imposition of a device such as PPE on very young school-children implies the onus on the issuing authority to scientifically prove that its use has no harmful impact on the psycho-physical health of the recipients, except – once the Judge has ordered such a new assessment, with the ruling of the TAR and today’s decree – the occurrence of liability for delay, omission or otherwise harmful consequences produced in the event, which is strongly averted, a persistent lack of scientific investigation, which, however, the judge cannot replace in any case” (unofficial translation). This element is also linked to the lack of motivation of administrative decision-making. See, eg, for Austria, Constitutional Court, V411/2020, V395/2020 et al, V 396/2020 et al, 14 July 2020, where the Court held that the government had failed to specify, with regard to the possible developments of COVID-19, the circumstances required to justify the different conditions for entering trading establishments.

64 See, for Canada, Superior Court of Quebec, Entrepreneurs en action du Québec vs. Procureur général du Québec, 19 March 2021.

65 ibid.

66 See, eg, for Switzerland: Bundesgericht – Tribunal fédéral – Tribunale federale – Tribunal Fédéral, 1C_169/2020, 22 December 2020, regarding the cancellation and postponement of municipal elections for the period 2020–2024 (appeal under public law against the executive decree issued on 18 March 2020 by the State Council of the Canton of Ticino), where the Court held that the assessment of the proportionality and necessity of a measure generally requires objective expert knowledge; however, according to the Court, the assessment of proportionality at an early stage, when it is strictly necessary to slow down the spread of the infection, may differ from the assessment made at a later stage. See, for China, Tianjin Intermediate People’s Court, Final Decision no 166, 12 May 2020, where the dismantlement of a pigeon shed was considered an appropriate measure for the purpose of ensuring and protecting people’s right to health and right to life on account of the fact that during the first wave of the pandemic its nature and transmission chain were still unclear.

67 See, eg, French Council of State, decision no 449081, 5 February 2021, not considering it compulsory to vaccinate all prisoners as a priority, as the risk of developing a serious form of COVID-19 did not appear to be higher for prisoners than for the average population. More particularly, the Court also considered that, while the applicant invoked the particular risks of the virus spreading in prisons in view of the conditions of detention, there is no certainty, in the current state of scientific knowledge, as to the possible effectiveness of the vaccine against COVID-19 at reducing the risks of transmission of the disease. Of course, the current state of scientific knowledge may evolve over time, as specifically occurred with regards to the correlation between vaccination and risk of transmission. On these aspects, see also Petrov, “The COVID-19 emergency in the age of executive aggrandizement: what role for legislative and judicial checks?” (2020) 8 Theory and Practice of Legislation 71, 81: “In the initial phase of the pandemic, when the stakes are high, the information lacking and fast actions required, excessive judicial or legislative oversight could damage the effectiveness of emergency measures. Courts and legislators should thus focus on critical flaws that would significantly impair the legitimacy or feasibility of the emergency measures. … As the crisis unfolds and the executive has more information and resources available, more intensive review may be justifiable”.

68 See Italian Council of State, section III, no 7097/2020 on the use of hydroxychloroquine.

69 See JB Wiener, “Precaution”, in D Bodansky, J Brunnée and E Hey (eds), The Oxford Handbook of International Environmental Law (Oxford, Oxford University Press 2008); J Hammit, M Rogers, P Sand, JB Wiener, The Reality of Precaution, Comparing Risk Regulation in the United States and Europe (Chaltenham, Routledge 2011).

70 This is not to say that when inaction was challenged courts have not required governments to show scientific evidence that no action was the most effective and proportionate course of action. On the status quo bias, see W Samuelson and R Zeckhauser, “Status quo bias in decision making” (1988) 1 Journal of Risk and Uncertainty 7.

71 See, eg, for Kenya, High Court of Kenya, Nairobi, petition no. 120 of 2020 (COVID 025), 16 April 2020, Law Society of Kenya v Hillary Mutyambai Inspector General National Police Service & 4 others; Kenya National Commission on Human Rights & 3 others (Interested Parties) [2020] eKLR, where the Court confirmed the curfew despite the lack of evidence on its effects. See, for Italy, Council of State decree 1031/2021, cit., which decided not to quash the restrictive measure concerning school closures due to a lack of scientific evidence that leaving the schools open would not have had the negative results that the regional government claimed and put as the basis of the restrictive measure. See also, for Austria, Verfassungsgerichtshof Österreich, V 436/2020-15, 10.12.2020, upholding the measure on school opening and mask wearing, observing that there were no official data on infection rates in school districts and no scientific evidence for negative health consequences of children wearing masks, but only evidence on how effective masks are at mitigating the spread of COVID-19.

72 See WHO database, forthcoming.

73 ibid.

74 On these aspects, see also Ginsburg and Versteeg, supra, note 46. See, for an example of inaction reviewed by courts in India, High Court of Manipur, All Manipur School Student Transporter Association v. The State of Manipur and Ors., – WP (C) No. 459 of 2020, where the Court ordered the government to take action to ensure students’ transportation from home to school and back. For an example of a review of governmental action, see, eg, Kataas-taasang Hukuman ng Pilipinas Supreme Court of the Philippines, 1 September 2020, where the Court rejects the claim since “Mandamus is an appropriate remedy only where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment. The job of the Court is to say what the law is, not dictate how another branch of government should do its job”.

75 See, eg, for Brazil, Federal Supreme Court – Supremo Tribunal Federal, 17 December 2020, Direct Action of Unconstitutionality no 6.586; for Argentina, Suprema Corte de Justicia de la Nación, Lee Carlos y otro c/Provincia de Formosa s/Amparo Colectivo, 19 November 2020, in which the Argentinian Supreme Court ordered the Province of Formosa to grant access to its territory to all applicants within a maximum period of fifteen working days from the date of the judgment.

76 See, eg, Abhijeet Kumar Pandey vs Union of India and Ors – W.P. (C) 5101/2021, CM APPL. 15624/2021, 3 May 2021, in which the Delhi High Court directed the Chief Secretary, Government of the National Capital Territory of Delhi, to frame a scheme to register all migrant workers in Delhi under Section 10 of The Unorganised Workers’ Social Security Act, 2008, and to provide free medicines and medical facilities to the migrant workers.

77 See, eg, High Court of South Africa (Gauteng Division, Pretoria), 17 July 2020, no 22588/2020, Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306; [2020] 4 All SA 102 (GP); 2021 (1) SA 198 (GP), where the Court deemed unconstitutional the suspension of the nutrition programme by schools, which had to resume the programme and report about the programme’s implementation; High Court of Kenya, 3 August 2020, Petition 78,79,80,81/2020 (consolidated), Law Society of Kenya & 7 others v Cabinet Secretary for Health & 8 others, where the court issued an interdiction to compel the government to present to the Court a plan of action detailing the appropriate responses towards the management and control of the outbreak of COVID-19 in the country as a means to discharge its constitutional duty and protect the socioeconomic interests of the country. The Court applies Art 23, Const., on the right to an appropriate remedy as a means for identifying measures that would not otherwise be available under existing law. The decision is considered a remarkable change in Kenyan jurisprudence in the field of protection of the rights and freedoms enshrined within the Constitution of Kenya (2010); see the opposite view taken by the same court in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016], where the court capped the use of structural interdicts. For Kenya, see also High Court of Kenya at Siaya, 15 June 2020, Petition No 1 of 2020, Joan Akoth Ajuang & another v Michael Owuor Osodo the Chief Ukwala Location & 3 others; Law Society of Kenya & another [2020] eKLR (the Court has ordered the local government to properly bury a deceased man whose relatives had claimed a violation of human dignity in respect of the way the man was buried in the context of the pandemic). In other cases, Kenyan courts have been less prone to ensure the adoption of safety protection measures for vulnerable groups such as workers operating in the private security services (see The Employment & Labour Relations Court of Kenya, Petition 122 of 2020, 17 March 2021, Kenya National Private Security Workers Union &44 Others v The Cabinet Secretary Ministry of Health & & Others).

78 See, eg, Federal Court of Australia, BNL20 v Minister for Home Affairs [2020] FCA 1180, VID 239 2020, 10 August 2020, in which the Federal Court ordered the Minister for Home Affairs to urgently remove an elderly Pakistani man with multiple health conditions from a Melbourne immigration detention centre to guard against the serious risk of COVID-19 infection, at the same time observing that it was beyond the Court’s power to compel his release from detention altogether; and, in Europe: French Council of State, order no 439693, 28 March 2020: “It is true, on the one hand, that only some of the masks made available to doctors and nurses are currently FFP2 [filtering face piece] masks, although these are necessary to ensure satisfactory protection and must be changed at least every eight hours, and, on the other hand, that the supply of surgical masks is still quantitatively insufficient for them to be worn by the patients being treated. However, this situation should improve significantly over the coming days and weeks, given the measures mentioned in point 7. There is therefore, and in any case, no reason to pronounce the measures that the applicants are requesting and that could not be usefully taken to increase the volume of masks available in the short term, as some of these measures have already been implemented” (unofficial translation).

79 See, for Kenya, The Employment & Labour Relations Court of Kenya, Petition 122 of 2020, 17 March 2021, Kenya National Private Security Workers Union &44 Others v The Cabinet Secretary Ministry of Health & & Others, where the Court justified the dismissal of a claim seeking an injunction for individual protection equipment for workers in the private security sector.

80 These claims have been successful in some contexts (eg High Court of Malawi, 3 September 2020, 1/2020, Lilongwe District Registry, The State on application of Kathumba and others v President of Malawi and others [2020] MWHC 29, where the Court found that the lockdown was ordered without a legal basis and without sufficient concern for poor and vulnerable people, and it urged parliament to pass new legislation that would allow the regulations needed in a national health emergency such as the current pandemic), but not in others. See, eg, Kataas-taasang Hukuman ng Pilipinas Supreme Court of the Philippines, 1 September 2020, where the Court rejects the claim since “Mandamus is an appropriate remedy only where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment. The job of the Court is to say what the law is, not dictate how another branch of government should do its job”.

81 See, eg, Supreme Court of Victoria at Melbourne, Australia – Loielo v Giles [2020] VSC 722, where the Court referred to both proportionality and reasonableness, concluding that the Curfew Direction was reasonably necessary to protect public health and there were no less restrictive means available to reduce infection rates that were also proportionate to the circumstances.

82 On the relationship between the precautionary principle and proportionality, see Italian Council of State, sec. I, Advice no 850/2021.

83 See, for Colombia: Colombia – Constitutional Court, 25 June 2020, no 201, in which the Court observed the aim of the proportionality test is to determine whether the decree under review is reasonable, based on an assessment of (1) the constitutionality of the purpose sought to be satisfied and the suitability of the measure to achieve the proposed objectives; (2) its necessity in the absence of other less harmful but equally suitable means; and (3) its proportionality in the strict sense. See also, for the Asian region, High Court of the Hong Kong Special Administrative Region (First Instance) – HCAL 952/2020 [2020] HKCFI 903 – 20 May 2020, on the quarantine imposed on travellers from South Africa; in this decision, the Court that the challenged whether measure serves a legitimate aim (protection of public health), is rationally connected to such aim, does not impose excessive restrictions to personal liberty (“no more than what is necessary”) and strikes a reasonable balance between the social benefit coming from application of the measure and the restriction to personal liberty.

84 See, eg, in US case law: United States District Court for the Central District of California, McDougall v. County of Ventura, No. 2:20-cv-02927-CBM-AS, 2020 WL 6532871 (C.D. Cal. 21 October 2020), where the Court refers to the standard applied in Jacobson v. Massachusetts (197 U.S. 11, 31 (1905)), in order to examine “(1) whether the County’s orders ‘ha[ve] no real or substantial relation’ to the County’s objective of preventing the spread of COVID-19; or (2) whether the County of Ventura’s orders affect ‘beyond all question, a plain, palpable invasion of rights secured by’ the Constitution”, and, based on this, it concludes that: “The stay well at home orders meet the first test under Jacobson. The stated objective of the stay well at home orders ‘is to ensure that the maximum number of persons stay in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the maximum extent possible. … The County elected to achieve this goal by deeming certain businesses, travel, and services ‘essential’ and restricting businesses, travel, and services that were not deemed essential. Because those limitations restrict in-person contact, they are substantially related to the objective of preventing the spread of COVID-19. … Under the second test of Jacobson, the stay well at home orders must not affect ‘beyond all question, a plain, palpable invasion of’ the Second Amendment” (at *6–7). “Here, the Court finds the stay well at home orders did not amount to a plain and palpable violation of the Second Amendment, as required by Jacobson. Unlike the total prohibition of handguns at issue in Heller, the stay well at home orders are temporary and do not violate the Second Amendment … [T]he effect of the stay well at home orders was to delay Plaintiffs’ ability to acquire and practice with firearms and ammunition and not to prohibit those activities. Thus, Plaintiffs have not demonstrated that the temporary closure of firearms retailers constitutes a plain and palpable violation of their Second Amendment right” (at *7–8).

85 See, eg, High Court of the Hong Kong Special Administrative Region – Court of First Instance, HCAL 2007/2020, 12 October 2020, where the Court notes that, considering the state of emergency in place and the necessity to ensure the health of society, the mask wearing requirement is reasonable and proportional, since it strikes a balance between the societal benefits and the restriction to individual liberty. It does not, moreover, require more than what is necessary to ensure the protection of public health.

86 See Spain, Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 788/2021.

87 In some cases, this deviation has been made clear in a court’s reasoning; see, eg, for Kenya, High Court of Kenya, Mombasa, petition no e009 of 2020, 17 December 2020, Margaret Kisingo Muga & 21 others v County Government of Mombasa & 2 others [2020] eKLR, where the Court applied the doctrine of necessity to justify the conversion of a clinic in a COVID-19 isolation centre as a situation that, under ordinary conditions, cannot be allowed on the basis of “normal constitutional requirements”.

88 This facet of the proportionality principle particularly reflects the German approach then inherited by European law. See FG Jacobs, “Recent developments in the principle of proportionality in European Community law”, in E Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Oxford, Hart Publishing, 1999) p 1. The same facet also appears in some non-European case law (see, eg, High Court of Zimbabwe, Harare, ZWHHC 334, 26 May 2020, Zimbabwe Chamber for informal Workers & 2 Others v Minister of Health and Child Care & 6 Others).

89 See, eg, for an examination of the application of proportionality by Belgian administrative courts, Popelier et al, supra, note 23. See also, along the lines described in the text, Vavřička and Others v the Czech Republic App no 47621/13 (ECHR 8 April 2021): “the Court must assess the proportionality of the interferences complained of, in light of the aim pursued. … [U]ltimately, the issue to be determined is not whether a different, less prescriptive policy might have been adopted, as has been done in some other European States. Rather, it is whether, in striking the particular balance that they did, the Czech authorities remained within their wide margin of appreciation in this area” (emphasis added).

90 Supreme Court of Pennsylvania, Friends of Danny DeVito v Wolf, 227 A.3d 872 (Pa. 2020), 13 April 2020, regarding the alternative means of communication mitigating the consequences of the limited right of assembly. See, for Spain, Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 788/2021; for Italy, Council of State, advice no 850/2021.

91 On the methodology for evaluating the expected effects, see M Manica et al, “Impact of tiered restrictions on human activities and the epidemiology of the second wave of COVID-19 in Italy” (2021) 12 Nature Communications 4570 <https://www.nature.com/articles/s41467-021-24832-z> (last accessed 29 August 2021).

92 See, for Germany, Federal Constitutional Court, 10 April 2020, 1 BvQ 28/20 on religious services; Federal Constitutional Court, 15 July 2020, 1 BvR 1630/20 on education.

93 Eliantonio et al, supra, note 25; PL Láncos et al, “Domestic soft law regulation during the COVID-19 lockdown in Hungary: a novel regulatory approach to a unique global challenge” (2021) European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.115> (last accessed 29 August 2021).

94 In Italy, the Council of State has been very deferential to the Administration. See Council of State decree no 1234/2021 on school closure (in the Umbria region); Council of State, decree no 1034/2021 on education and school closure (in the Campania region). But see also Italian Council of State decree no 1031/2021 on school closures (in the Abruzzo region), where it appears less deferential as to the application of proportionality and zoning.

95 See, eg, High Court of Zimbabwe, Zimbabwe Chamber for informal Workers & 2 Others v Minister of Health and Child Care & 6 Others, Harare, ZWHHC 334, 26 May 2020, where the restrictive measures have been deemed proportionate and since necessary in the interests of public safety, public order, public morality, public health and the general public interest.

96 On benefit assessment, see, eg, High Court of the Hong Kong Special Administrative Region (First Instance) – HCAL 952/2020 [2020] HKCFI 903, 20 May 2020, on the quarantine imposed on travellers from South Africa, where the Court reminds that the public authority explained the benefits of quarantine at a designated centre rather than at home in the specific circumstances of the case, particularly in light of the health safety measures implemented in such centres. On cost assessment, see, eg, High Court of the Hong Kong Special Administrative Region – Court of First Instance, HCAL 2007/2020, 12 October 2020, in which, in relation to the mask wearing requirement, the Court, after considering the specific situation described by the plaintiff (ie refugees who do not earn incomes to buy masks), concludes that such a situation does not constitute a reasonable ground to challenge the constitutionality of the measure concerned. A cost–benefit analysis does not imply that all effects produced by restrictive measures are easily monetised. See, eg, Higher Administrative Court of the Land of Nordrhein-Westfalen, 13 B 2046/20.NE, 7 January 2021, 13. Senat., where the Court observes that the possibility of avoiding quarantine by undergoing rapid testing (which is reliable only to an extent) did not frustrate the suitability of the measures, because it nevertheless could enable the identification of a considerable amount of infections. Furthermore, the burden on one’s freedom of movement represented by an isolation obligation could be avoided through a rapid test, which has almost no inconvenient consequences and costs between thirty and forty euros, a negligible amount of money when compared to the costs of travelling. On the cost–benefit analysis applied to COVID-19 measures, see OECD, Cost–Benefit Analysis of COVID 19 Related Measures, distinguishing between the output and the spending approach (available at <www.oecd.org>). See also: R Rowthorn et al, “A cost–benefit analysis of the COVID-19 disease” (2020) Oxford Review of Economic Policy <https://doi.org/10.1093/oxrep/graa030> (last accessed 29 August 2021).

97 See, eg, Supreme Court of Pennsylvania, Friends of Danny DeVito v Wolf, 227 A.3d 872 (Pa. 2020), 13 April 2020: “While the private interest, the closure of the business, is important, the risk of erroneous temporary deprivation does not outweigh the value of additional or substitute safeguards which could not be provided within a realistic timeframe. The government interest in focusing on mitigation and suppression of the disaster outweighs the massive administrative burden of the additional procedural requirements demanded by Petitioners” (at 900).

98 The scientific literature on the effectiveness of the adopted measures is extremely rich. See, eg: JM Brauner et al, “Inferring the effectiveness of government interventions against COVID-19” (2021) 371(6531) Science <https://doi.org/10.1126/science.abd9338> (last accessed 29 August 2021); J Dehning et al, “Inferring change points in the spread of COVID-19 reveals the effectiveness of interventions” (2020) 369(6500) Science <https://doi.org/10.1126/science.abb9789> (last accessed 29 August 2021).

99 See, eg, for Latvia, Constitutional Court, No. 2020-26-0106, 11 December 2020, concerning the prohibition of gambling, where, in assessing the lawfulness of the restrictive provision, the Court considered the existence of compensation and of mechanisms aimed at mitigating the consequences of the restrictions imposed in an emergency; see for the USA, Supreme Court of Pennsylvania, Friends of Danny DeVito v Wolf, 227 A.3d 872 (Pa. 2020), 13 April 2020, regarding the alternative means of communication mitigating the consequences of the limited right of assembly; see, for Chile, Supreme Court Judgment Rol. No. 143.937-2020 of 10 December 2020, confirming Judgment no 13.915 of 23 November 2020 of the Court of Appeals of Concepción, where the Court applied reasonableness in combination with the principles of the rule of law and the situation of a state of emergency to conclude that it is not reasonable to request that a mitigating action (changing educational programmes) that is lawful in the context of the COVID-19 pandemic be declared illegal. A related issue is whether, since mitigation leaves part of the consequences of the restrictive measures on individuals, the latter may claim partial restitution from the institution providing the service (eg distance teaching instead of face-to-face teaching). A similar claim has been rejected by the Punjab – Haryana High Court, Independent Schools Association … vs State of Punjab and Ors, 30 June 2020, Writ Petition no. 7409/2020, in which the Court emphasised the role played by schools during the lockdown and the relevant expenses borne by them despite and due to the restrictions, then concluding that private schools may collect both admission and tuition fees, without, however, raising fees for the year 2020–2021.

100 See, eg, Vavřička and Others v the Czech Republic App no 47621/13 (ECHR 8 April 2021), referring to a Hungarian constitutional judgment of 20 June 2007 in case no. 39/2007: “The court found, inter alia, that the protection of children’s health justified compulsory vaccination at certain ages and accepted the legislature’s position, based on scientific knowledge, that the benefits of vaccination for both the individual and society outweighed any possible harm due to side-effects” (emphasis added). See also, for Switzerland: Bundesgericht – Tribunal fédéral – Tribunale federale – Tribunal Fédéral, 1C_169/2020, 22 December 2020; see, for China, Tianjin Intermediate People’s Court, Final Decision no 166, 12 May 2020, both cited above (see supra, note 66 and the corresponding text).

101 See, eg, Italian Council of State, decree no 1034/2021; Italian Council of State, decree no 1031/2021 (“the criterion of proportionality … requires that any restriction of constitutionally guaranteed rights be linked to certain assumptions, transparent and ostensible data, as well as periods strictly necessary for the protection of the protected good”); Italian Council of State, Advice, sec. I, 2021 (“The prevalence of the precautionary principle … is therefore reasonably motivated in relation to the present context of a health emergency, characterised by the circulation of a virus on the behaviour of which there are no certainties in the same scientific community, with the logical consequence that, not being known, nor predictable with certainty the risks induced by potentially dangerous work and commercial activities, the action of the public authorities can and must result in a prevention in advance of the consolidation of scientific knowledge, to protect the primary value of health”; unofficial translation).

102 For a review on the available methodologies for accessing epidemiological data sources and monitoring epidemic phenomena through a holistic approach to the epidemic, such as data science, epidemiology or systems-and-control theory, see T Alamoa et al, “Data-driven methods for present and future pandemics: monitoring, modelling and managing?” <https://arxiv.org/pdf/2102.13130.pdf> (last accessed 30 August 2021); N Haug et al, “Ranking the effectiveness of worldwide COVID-19 government interventions” (2020) 4 Nature Human Behaviour 1303 <https://doi.org/10.1038/s41562-020-01009-0> (last accessed 30 August 2021); Brauner et al, supra, note 100.

103 See Austrian Constitutional Court, 10 March 2021, V 573/2020.

104 See B van Rooj and D Sokol, “Compliance as the interaction between rules and behaviour” in B van Rooj and D Sokol (eds), The Cambridge Handbook of Compliance (Cambridge, Cambridge University Press 2021). See also Petrov, supra, note 2, 77, holding that “many of the measures necessary for fighting the pandemic are not enforceable in the standard top-down way of law enforcement, definitely not on the scale required”, and that “the key is voluntary compliance with emergency measures”.

105 See, eg, for India, Ananga Kumar Otta v. Union of India & Others, Writ Petition (PIL) No 12430 of 2020; Nagrik Upbhokta Margdarshak Manch v. State of M.P., Writ Petition No. 7596/2020 (PIL). On these issues, see C Angiolini, “Covid-19 and data protection. A case law survey of the ‘Covid-19 Litigation Project’”, Global Pandemic Network Journal (forthcoming).

106 See High Court of Justice, 2109/20 Ben Meir v. Prime Minister, 26 April 2020.

107 High Court of Justice, 2109/20 Ben Meir v. Prime Minister, 26 April 2020.

108 See H Dai et al, “Behavioral nudges increase COVID-19 vaccinations” (2021) Nature <https://doi.org/10.1038/s41586-021-03843-2> (last accessed 30 August 2021).

109 See WHO, Public Health Surveillance for COVID-19: Interim Guidance (16 December 2020) <https://apps.who.int/iris/handle/10665/337897> (last accessed 30 August 2021), stating the objectives of surveillance.

110 See, for the EU, Regulation (EU) 2021/953, 14 June 2021, on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic.

111 See the French Constitutional Council, 2021/824, Para 66.

112 See the French Council of State, 18 May 2020, nn. 440442, 440445, stating that drone surveillance might violate the principle of proportionality; and later Council 22 December 2020.

113 See the French Constitutional Council, no 2021/824.

114 See, for the EU, Art 11, Reg. (EU) 2021/953, cit., acknowledging Member States’ competence in this regard within the limitations posed by the freedom of movement to be balanced against public health under the principle of proportionality and taking into account scientific evidence, including epidemiological data published by the European Centre for Disease Control (ECDC). For an overview on some of the legal issues raised by the use of COVID-19 certificates, see the contributions published in European Journal of Risk Regulation (2021) Issue 2 <https://www.cambridge.org/core/journals/european-journal-of-risk-regulation/issue/7510508277688B5FAB3DD24E63E93A7A> (last accessed 30 August 2021).

115 See French Constitutional Council, decision no 2021/824, 5 August 2021.

116 ibid.

117 ibid, Para 44.

118 See Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Secction 4), judgment no 788/2021; Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 719/2021, 24 May 2021, JUR\2021\157658; Tribunal Superior de Justicia TSJ de Madrid (Sala de lo Contencioso-Administrativo, Section 8), Auto no 93/2021, 7 May 2021, JUR\2021\142006.

119 See Tribunal Superior de Justicia TSJ de Madrid (Sala de lo Contencioso-Administrativo), judgment no 594/2020, 28 August 2020; Tribunal Superior de Justicia TSJ de Madrid (Sala de lo Contencioso-Administrativo, Section 8), Auto no 93/2021, 7 May 2020, JUR\2021\142006.

120 See Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 788/2021, where the government lodged the recurso de casación al amparo regulated by Art 87 ter de la Ley de la Jurisdicción Contencioso Administrativo, introduced by the Royal Law Decree no 8/2021.

121 On the relationship between ex ante and ex post control, see Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 788/2021.

122 Indian courts, both State and Federal, have played a significant role not only in the control of contagion, but also in relation to the distributional aspects of the pandemic often overlooked by other courts. On these issues, see G Sabatino, “Covid-19 and freedom to conduct a business. A case law survey of the ‘Covid-19 Litigation Project’”, Global Pandemic Network Journal (forthcoming).

123 See FP Griffi, “Il giudice amministrativo come giudice dell’emergenza” <www.conseil-etat.fr> (last accessed 30 August 2021); B Lasserre, “Le juge administratif, juge de l’urgence” <www.conseil-etat.fr> (last accessed 10 August 2021).

124 See, eg, the US experience, where the control over governmental police power has been rather deferential, making reference to Jacobson jurisprudence. Some European, Latin American and African countries, on the contrary, have taken a less deferential attitude and have pressed governments to engage in evidence-based decision-making using the principle of proportionality to choose among alternative measures. See Section III in the current paper.

125 See, for Spain, Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 719/2021, 24 May 2021, JUR\2021\157658.

126 The scope of urgency procedures and summary judgments has been broadened and the intensity of review, which is usually very limited, has been expanded in order to ensure effective judicial protection.

127 See Italian Council of State, section III, no 7097/2020.

128 See Tribunal Supremo TS (Sala de lo Contencioso-Administrativo, Section 4), judgment no 788/2021.

129 See, eg, High Court of South Africa (Western Cape High Court), 11 December 2020, 6118/2020, British American Tobacco South Africa (Pty) Ltd and Others v Minister of Co-operative Governance and Traditional Affairs and Others [2020] ZAWCHC 180 (see supra, note 60).

130 Compare, eg, in Italy the decisions of the Council of State concerning school closures in the first, the second and the third stages of the pandemic. See also, as cited above for Switzerland: Bundesgericht – Tribunal fédéral – Tribunale federale – Tribunal fédéral, 1C_169/2020, 22 December 2020, see supra, note 66.

131 See Italian Council of State no 7097/2020: “9. Without wishing to retrace the long evolutionary path that has led to the guarantee of a more intense and effective judicial protection, according to the consolidated jurisprudence of this Council … the judicial review of the technical assessments of the administration may nowadays be carried out not on the basis of a mere formal and extrinsic control of the logical process followed by the administrative authority, but on the basis of a direct verification of the reliability of the technical operations from the point of view of their consistency and correctness, as regards the technical criteria and the application procedure” (unofficial translation). See also, for Italy, First instance Abruzzo TAR, decree no 48/2021.

132 On the limits of judicial review, see Supreme Court of India, Small Scale Industrial Manufactures Association v. Union of India, 23 March 2021. See, in the USA, the limitations to judicial review linked with the doctrine established in Jacobson allowing for the Administration’s discretionary power to take measures in order to protect public health; see supra, notes 34 and 84.

133 See, in Italy, Council of State, no 7097/2020, as cited above (supra, note 131).

134 See note 72 and corresponding text.

135 See E Korkea-Aho and M Scheinin, “‘Could you, would you, should you?’ Regulating cross-border travel through COVID-19 soft law in Finland” (2021) 12 European Journal of Risk Regulation 26 <https://doi.org/10.1017/err.2020.112> (last accessed 30 August 2021), where the lack of judicial oversight is highlighted, although complaints are possible to the Chancellor of Justice and the Parliamentary Ombudsman, both of whome are in charge of reviewing the legality of actions by the Government and administrative authorities. See also H Wenander, “Sweden: non-binding rules against the pandemic – formalism, pragmatism and some legal realism” (2021) 12 European Journal of Risk Regulation 127 <https://doi.org/10.1017/err.2021.2> (last accessed 30 August 2021), emphasising that General Recommendations may not only summarise case law by the Supreme Administrative Court, but also be subject to judicial review by such a court to the extent that the decision has factual effects on individuals. Moreover, the use of General Recommendations may also be scrutinised by an administrative court after the appeal of a decision where the decision involves the use of non-binding rules (indirect review) since, generally, the review of the administrative court also covers matters of suitability and the administrative agency’s use of discretion (pp 137–38).

136 On the general concern inherent to the lack of judicial oversight on soft law, see Eliantonio et al, supra, note 25; FA Bella et al, “The role of COVID-19 soft law measures in Italy: much ado about nothing?” (2021) European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.116> (last accessed 30 August 2021); DU Fernández-Bermejo, “Soft law governance in times of coronavirus in Spain” (2021) European Journal of Risk Regulation <https://doi.org/10.1017/err.2020.117> (last accessed 30 August 2021).

137 See, for India, Supreme Court, 18 March 2021, Bharat Biotech International v Union of India, Special Leave to Appeal (C) No. 4327/2021 (for additional references, see infra, note 140; Supreme Court, In Re Distribution Essential Supplies and Services during Pandemic, SOU MOTO WP (C) no.3 of 2021; High Court of Madras, M. Murgantham v State of Tamil Nadu & Ors., W.P.No.34315 of 2021; for Brazil, the question of access to vaccines has been dealt with by judges in relation to claims aimed at overcoming the Federal Government’s inaction on vaccination campaign (see Federal Supreme Court, 17 December 2020, Direct Action of Unconstitutionality no 6.586 <http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADI6586vacinaobrigatoriedade.pdf> (last accessed 30 August 2021), on the shared competence of local municipalities and on unions’ right to import vaccines, A Richter, “Juiz autoriza mais entidades privadas a importar vacinas contra covid” (Agência Brasil, 30 March 2021) <https://agenciabrasil.ebc.com.br/justica/noticia/2021-03/juiz-autoriza-mais-entidades-privadas-importar-vacinas-contra-covid> (last accessed 30 August 2021); in Mexico, which was the first country to start a vaccination campaign in Latin America in late December 2020, see the case decided by a Federal judge in favour of a woman seeking for prioritisation in access to vaccine due to comorbidity and high risk in relation to COVID-19 (see MG Vargas, “Una mujer demandó para obtener vacuna contra COVID-19 y juez le dio la razón” (Infobae, 11 January 2021) <https://perma.cc/BDX5-KBBJ> (last accessed 30 August 2021). For a wider analysis, see S Fassiaux, “Covid-19 and vaccination. A case law survey of the ‘Covid-19 Litigation Project’”, Global Pandemic Network Journal (forthcoming).

138 See, eg, the Supreme Court of India, Shashank Deo Sudhi v. Union of India and Ors. Writ Petition No. 000912 of 2020 (D. No. 10816/2020) (I.A. Nos. 48265 and 48266/2020): “(i) Free testing for COVID-19 shall be available to persons eligible under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana as already implemented by the Government of India, and any other category of economically weaker sections of the society as notified by the Government for free testing for COVID-19”.

139 See, eg, in Germany: Administrative Court of Frankfurt am Main, 12 February 2021, no 5 L 219/21.F; Administrative Court of Gelsenkirchen, 18 February 2021, no 20 L 182/21; Administrative Court of Schleswig-Holstein, 17 February 2021, no 1 B 12/21.

140 For an examination of the application of proportionality by Belgian administrative courts, see Popelier et al, supra, note 23, distinguishing two phases: “In the first phase, the assumption is that the public expects the government to firmly respond to the crisis, no matter what, which leaves little room for judicial scrutiny of health crisis measures. In the second phase, when trust starts to wane, the assumption is made that the public expects the government to balance safety against fundamental rights and social needs”.

141 See Employment & Labour Relations Court of Kenya, Petition 122 of 2020, 17 March 2021, Kenya National Private Security Workers Union &44 Others v The Cabinet Secretary Ministry of Health & & Others.