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

Fabrizio CAFAGGI; Paola IAMICELI

doi:10.1017/err.2021.47

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

Published online by Cambridge University Press: 14 October 2021

Fabrizio CAFAGGI and

Paola IAMICELI

Show author details

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.

Article contents

Abstract
Health-protective measures to combat the pandemic: a conceptual framework
Restrictive measures to combat the pandemic: the principles
Balancing fundamental rights in times of crises
Evidence-based measures and claims in a world of uncertainty
Scientific evidence, balancing rights and governmental (in)action
The principle of proportionality in conditions of uncertainty
Linking uncertainty and trust in compliance monitoring
The scope of judicial review in times of pandemic
Concluding remarks
Footnotes

Rights & Permissions

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.

Information

Type: Articles
Information: European Journal of Risk Regulation , Volume 12 , Issue 4 , December 2021, pp. 792 - 824
DOI: https://doi.org/10.1017/err.2021.47 [Opens in a new window]
Copyright: © The Author(s), 2021. Published by Cambridge University Press

I. Health-protective measures to combat the pandemic: a conceptual framework

COVID-19 is not the first global sanitary crisis. Other viruses are currently causing severe losses, such as tuberculosis, SARS and HIV. However, the institutional implications of the COVID-19 crisis have been more significant.Footnote ¹ The crisis management of COVID-19 should not be seen as a single and unitary phenomenon. There have been various stages of the crisis dependent upon the evolution of scientific knowledge and governmental capabilities to operate in times of pandemic.

How does the current crisis differ from other current and past health and sanitary crises? What challenges does it pose and how are institutions responding? What is the role of courts in this crisis? More particularly, how do courts deal with uncertainty as a major determinant in both regulatory and administrative decision-making? This article offers some tentative answers from the perspectives of national courts exercising judicial review over governmental restrictive measures.

Within variations across legal traditions, protecting health is a constitutional duty of governments. Failure to protect health is a violation of a constitutional right. Governments have positive obligations to regulate and intervene to combat the pandemic. Positive obligations include both reactive and preventive measures. Symmetrically to these duties, there are rights to preventive measures, rights to access medical treatments, rights to access vaccination and rights to compensation for limitations due to by restrictive measures. Failure to act and inappropriate risk management by governments both can lead to health under-protection.

Prevention of the spread of a pandemic often includes the possibility that other fundamental rights will be limited or even temporarily suspended to protect health. The determinants of governmental measures and the different strategies adopted have been scrutinised by courts.^{Footnote 2} In this article, we examine governmental action and inaction and, within action, the adoption of both restrictive and laxer measures. Although intergovernmental and supranational institutions, such as the European Union (EU), play a role in the fight against the pandemic and the crisis stemming from it, this article does not examine the possible impact of such institutions’ actions (or inaction) upon fundamental rights.Footnote ³

How do governments decide to act or abstain from acting and how should they select the best and most effective measures to counter the pandemic? These decisions have to be made in conditions of uncertainty. Uncertainty relates to a lack of knowledge about the evolution of COVID-19 and about its effects. Uncertainty creates fear, and fear produces distrust. Uncertainty has characterised both administrative and judicial decision-making. The precautionary principle has usually informed decision-making under uncertainty. Executives,who have to decide under conditions of uncertainty, take contingency-based decisions that can be modified depending on the effects they produce or do not produce.Footnote ⁴ The role of the courts is to ensure that emergency measures last for as long they are necessary and effective.Footnote ⁵ This aspect not only implies that decisions are usually temporary and that a sequence of decisions with temporal limitations has to be scrutinised by courts; it also means that variables related to closures or openings of schools, firms or churches may be conditional on the level of contagion spread and on the effects of the governmental measure.Footnote ⁶ The short timeframe and contingent nature of administrative decisions require an innovative approach to judicial review. Judicial review has to be continuous, taking into account the evolution of administrative action and the interdependence of measures over time.

Governments are not the only actors involved in prevention and healthcare. Private – individual and collective – actors bear responsibility for the legal implications as well. The precautionary principle applies to both governments and private actors.

1. The methodological framework

This article is based on a dataset composed of 950 summaries of judicial decisions collected in 47 countries across every continent.Footnote ⁷ This dataset will be partly integrated into a database set up with the World Health Organization (WHO). The dataset is not meant to be comprehensive. Out of 950 judgments, 575 have been selected for publication in the database. Within that sample, 104 have been examined in this article.

The dataset will continue to increase over time with the selection of judgments related to COVID-19-related governmental measures.

The objective of this analysis is to evaluate the roles played by courts in monitoring and reviewing governmental measures with special reference to fundamental rights in the context of scientific uncertainty. It is not a comprehensive comparative analysis of the COVID-19 judgments issued by courts across the globe.

The selection of the judgments examined in this article has been made on the basis of the diversity of legal orders and on the content of the decisions. Priority has been given to the judgments that quashed the governmental decisions because they were in violation of constitutionally protected rights. The aim of the selection of the judgments considered in the article was to show the significance of courts in assessing the measures and the alignment or misalignment with national governments. The metric of significance is both quantitative and qualitative. A low number of judgments is more revealing of lower relevance than of compliance with the rule of law and fundamental rights. Qualitative significance is harder to measure, but clearly judgments quashing or modifying the measures suggest an active monitoring role of the courts and greater significance.

The analysis suggests that the role of courts has been significant in some areas, especially in democratic regimes where independent courts can oversee governmental measures. Courts have been less significant in countries where the independence of courts is not fully protected from the interference of political power. The analysis also suggests that, where governmental responsiveness to the sanitary crisis has been particularly critical, courts have tried to steer administrative action through judicial review and, depending on the applicable procedural rules, to mandate the adoption of specific actions and measures.

We have identified some themes that have been central in the judicial analysis. We have looked for the distinction between emergency and ordinary times and suggest, in the light of the case law, that the emergency has modified, often implicitly, how principles have been applied by courts. However, we have not found a radical difference between countries that have declared states of emergency and states that have operated with ordinary instruments without a formal declaration of a state of emergency.

The themes selected encompass the balance between conflicting constitutionally protected rights, the scientific evidence-based decisions of governments and the principle of proportionality. These are often interconnected, and courts have linked the balance of rights and responsibilities with the principle of proportionality and, to a more limited extent, to that of solidarity and fairness.

II. Restrictive measures to combat the pandemic: the principles

Prevention of a contagion’s spread entails several types of governmental and community action. Governmental actions may prescribe restrictions and may provide incentives to adopt precautionary measures and conduct. They have to comply with rule of law principles.^{Footnote 8}

Ex ante prevention occurs before a pandemic breaks out. In itinere prevention occurs when a pandemic is in place and the contagion must be limited and circumscribed. Prevention of contagion depends on both individual and collective behaviour. Individual choices to comply or not to comply bear consequences not only on those who make those choices, but also on the community. Hence, the selection of protective measures has to factor the high level of interdependence of compliance and lack of compliance with the measures. If the rate of non-compliance is high or even significant, it may undermine the positive consequences stemming from compliance. The efforts of those who comply may become valueless if the rate of non-compliance is high.

Restrictive measures may have two objectives: protecting individual health and preventing contagion, resulting in protecting collective health and freedom. The prevention of contagion protects the collective interest to reduce the spread of pandemic. Public health protection can be the justification for limiting freedoms and fundamental rights.

The precautionary principle is one of the normative foundations of the COVID-19 protective measures.^{Footnote 9} It requires competent authorities to adopt measures even though science has not fully clarified the extent and nature of the underlying risks, whose possible impact on human health is apparent. It does not suggest that restrictive measures should not be based on scientific evidence. On the contrary, it implies that a comprehensive assessment of the risk to health should be conducted based on the most reliable scientific data available and the most recent results of international research.^{Footnote 10} Yet, when the latter are inconclusive or insufficient and it proves to be impossible to determine with certainty the existence or extent of the alleged risk but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle may justify the adoption of restrictive measures.^{Footnote 11}

When determining the duration, the scope and the intensity of the measure, the precautionary principle is usually applied in combination with the principle of proportionality.^{Footnote 12} The precautionary principle has also been applied to evaluate governmental inaction.Footnote ¹³

The precautionary principle influences governmental measures restricting both individual and collective freedoms and vaccination but in different ways.^{Footnote 14} The features of the precautionary principle in times of pandemic differ from those in ordinary times, being different in terms of the type and level of uncertainty and the magnitude and pace of the risks at stake. This refers to hypothetical risks whose probability and magnitude are ex ante unknown.

Both the content of positive obligations and the structure of balancing change in favour of health protection, and the limitation of other rights may be permitted to the extent necessary to promote collective health protection.Footnote ¹⁵

The precautionary principle affects the balance between conflicting rights and the choice of the appropriate measure to reduce the risks and mitigate their consequences should they materialise.^{Footnote 16} It contributes to the definition of both risk assessment and risk management. The former concerns the “if” of the governmental measure, while the latter focuses on the “how”. Uncertainty can refer to both, but the judicial scrutiny may vary when examining the “if” question and the consequences of action and inaction.

It is important to underline that the precautionary principle is applied in a framework of scientific uncertainty and limited knowledge.Footnote ¹⁷ Both the scientists involved in policymaking and governments have taken measures in the context of uncertainty about both the characteristics of the virus and the expected effectiveness of the protective measures. Governments have operated under a trial-and-error framework and, in some instances, have gone back on choices made earlier on.^{Footnote 18} Judicial review has applied the precautionary principle in light of the evolution of scientific knowledge.

A second important principle, influencing both the adoption and the characteristics of the protective measures, is solidarity. As a value linked with fairness, this has contributed to guiding the global response to the pandemic, sometimes mirroring national or supranational constitutional traditions.Footnote ¹⁹ Solidarity is highly relevant when individual conduct is interdependent, as is the case in pandemics. Individual behaviour may affect others by spreading or reducing the risk of contagion.^{Footnote 20} With COVID-19 cases, the level of risk concerning the probability of becoming infected and the capacity to infect others may vary. This variation makes the impact of the restrictive measures more or less effective in relation to individuals, but its overall effectiveness is measured by the number of people complying with the measure. Solidarity may require that those who bear lower risks have to contribute more compared to those who bear higher risks. Their cost–benefit ratio may be lower, but the principle of solidarity imposes compliance even when the benefits might not outweigh the costs.

Solidarity is a constitutional principle that confers rights and imposes duties both on institutions and on private parties.^{Footnote 21} In the case of institutions, vertical solidarity is at stake; in the case of private parties, horizontal solidarity is relevant. Horizontal solidarity may be induced in different ways, including nudging or mandatory precautions, as recently endorsed by the European Court of Human Rights.^{Footnote 22} The scope of the duties imposed by protective measures based on solidarity and the limitations of freedoms affects the population with different levels of intensity. Even if the principle of solidarity is not explicitly recognised, courts have used equality and non-discrimination to evaluate the allocation of costs resulting from restrictive measures.

Duties and responsibilities related to restrictive measures have an impact on trust. Horizontal solidarity increases interpersonal trust, whereas vertical solidarity increases institutional trust.^{Footnote 23}

Hence, the government’s obligation of adopting measures and citizens’ duty of complying with measures imposed by governments might be based on the principle of solidarity or that of fairness. Citizens’ freedoms are limited in order to ensure the protection of collective health and, in particular, the health of vulnerable individuals.

In the context of COVID-19, solidarity and fairness contribute to regulating the distributional consequences concerning the risks and costs of the pandemic and the restrictive measures to combat the spread of the virus. When the sources of the risks of contagion are different for those who are likely to suffer the most if the contagion spreads, the distribution of costs and benefits may have a varying impact on different social groups. In the case of COVID-19, solidarity may impose costs on the younger generations to benefit more senior people. However, the distribution of costs may also have varying impacts on different economic categories. Among entrepreneurs there are those who have suffered and those who have benefitted from the crisis. Among the former, significant differences have emerged based on the choices made by national governments to bear the costs of the restrictive measures.

Hence, protecting collective health is based on the combination between the precautionary principle and the solidarity principle. They concern both the “if” and the “how” of restrictive measures. Failure to comply with preventive measures represents, at the same time, a violation of the precautionary principle and of the solidarity principle. Governments’ failure to adopt preventive measures may result in a violation of the precautionary and solidarity principles.

The choice of governmental instrument is informed by the proportionality principle in light of the principles of precaution and solidarity. Hard law is usually mandatory and binding. Soft law is usually voluntary. As we shall see, the voluntary nature of the choice by the addressees of the measure does not imply a lack of consequences.

Governments have privileged hard rules to restrict freedoms and protect health. Mandatory hard rules combined with administrative and, to a limited extent, criminal sanctions have been subject to judicial scrutiny through the lenses of proportionality and/or deterrence.Footnote ²⁴ Notable exceptions concern countries that have chosen a soft law approach and deployed recommendations not backed by sanctions.^{Footnote 25} The role of courts has been more limited in countries deploying soft law.

The choice between hard and soft instruments has been political rather than legal, but clearly legal principles have influenced the instruments and the type of sanctions to be used in the case of violation.

The precautionary principle is compatible with the use of hard and soft law, and it has to be applied in conformity with the principle of proportionality.

1. Vaccination: from soft and voluntary to hard and mandatory?

The alternatives of mandatory and voluntary vaccination present specific issues. Vaccination differs from the other protective measures because it is a medical treatment and impinges on self-determination. The freedom of people to choose vaccination is usually protected to a greater extent, given the degree of interference with individual choices, than choices related to other measures concerning freedoms to move and to meet, and even freedom of expression. The right to self-determination is protected to a greater extent than for other restrictive measures. However, vaccination is aimed not only at protecting the individual from the virus, but also at reducing contagion.Footnote ²⁶ The balance between the right to self-determination and the protection of the collective interest against the spread of contagion has been challenged before national courts. For example, the Brazilian Federal Supreme Court (Supremo Tribunal Federal) recognised that indirect measures may be implemented to promote vaccination (eg restrictions to the exercising of certain activities or to the frequency of visiting certain places), to the extent that such measures: (1) are based on scientific evidence and pertinent strategic analyses; (2) are accompanied by extensive information on the effectiveness, safety and contraindications of immunisers; (3) respect human dignity and the fundamental rights of people; (4) meet the criteria of reasonableness and proportionality; and (5) are to be distributed universally and free of charge.^{Footnote 27}

The approach to vaccination against COVID-19 has been soft in the first period. Very rarely has vaccination been obligatory – in some cases, only for specific categories such as physicians, nurses and other operators in the domain of health. More recently, the space for mandatory vaccination has increased due to the development of variants.Footnote ²⁸

Mandatory vaccination is applied for other diseases in order to avoid free-riding behaviour^{Footnote 29}; in these cases, too, courts have been asked to assess whether choices made by governments, within their margin of appreciation, are not manifestly inappropriate for the objective pursued.Footnote ³⁰ Where vaccination is voluntary, the impact of freedom of choice on the most vulnerable persons is of high concern. In this regard, courts have been asked to authorise nursing homes to vaccinate elderly persons who, lacking capacity, did not consent to vaccination or whose legal representatives opposed it.^{Footnote 31} In the light of the interests of vulnerable groups, the governmental choice to introduce mandatory vaccination may result from acknowledging the limits of an approach exclusively based on persuasion.Footnote ³²

Often individual choices may have multiple effects. Individual vaccination is a measure that at the same time protects individuals and the community from the spread of contagion. However, the effects might differ. The level of individual protection might be higher than the effect of contagion reduction. Similarly, the effects of restrictions may impact on certain groups (eg young people) more than on others. This is particularly relevant when restrictions distinguish between the vaccinated and non-vaccinated, in fact impacting more greatly on the latter, through limited access to certain activities. Such limitations shift onto individuals part of the social costs generated by their own self-determination. As has already been shown in some Israeli judgments, the role of courts will be pivotal in striking a balance between self-determination, public health and personal and economic freedoms: a challenging exercise, especially when these freedoms impact on essential needs or fundamental rights.Footnote ³³ That vaccines reduce contagion is clear. What remains unsettled is the extent and duration of immunity. The control of immunity and the definition of a vaccination scheme that can ensure continuous immunity are of a paramount importance. The consequences of the choice to vaccinate can impact on the exercise of fundamental freedoms and the principle of individual responsibility connected to self-determination.

III. Balancing fundamental rights in times of crises

Balancing different and potentially conflicting rights reflects a European perspective. Different balancing techniques are used in non-European jurisdictions, equally aimed at the assessment of reasonableness, proportionality and equality underlying the exercise of public powers in relation with conflicting interests.Footnote ³⁴ In some legal systems, such as in China, balancing rights is not the methodology adopted. The duty of the population is the focus.^{Footnote 35}

Hence, we have identified two different approaches: the right-based approach used in Europe and North and South America and the duty-based approach deployed, for example, in China.Footnote ³⁶

The restrictive measure can be legislative or administrative. Constitutional rules often require that, when constitutional rights are at stake, legislation is required, but legal systems vary and allow administrative authorities to limit rights within constitutional boundaries.

The content of a restrictive measure is the outcome of balancing different rights or duties. The constitutional nature of the rights limited by the restrictive measure bears consequences on the balancing techniques.^{Footnote 37} Within the balancing of constitutional rights, differences between economic and non-economic fundamental rights are considered by the courts. Balancing health and education or freedom of expression differs from balancing health and property or economic activity.

Does the pandemic affect the features of balancing constitutionally protected rights? Yes, it does. The level of precaution required by a state of emergency shifts the balance towards health protection: restrictions of rights and freedoms that would not be justified in ordinary times can be justified by the pandemic.^{Footnote 38}

The pandemic has posed challenging questions related to balancing of conflicting rights in times of emergency.

Protection of health concerns the prevention of the contagion and the management of the pandemic. How far can governments go in limiting or suspending other fundamental rights when adopting COVID-19-related measures?

A first relevant variable is whether the measure is adopted under a state of emergency law (eg among others, France) or whether the balancing occurs within the framework of ordinary laws (such as in Indonesia). In the former case, a state of emergency may be either based on constitutional norms (such as in Spain,^{Footnote 39} Portugal^{Footnote 40} and France,^{Footnote 41} to name a few) or, lacking a constitutional regime, on ordinary legislation on civil protection (such as in Italy^{Footnote 42}). Depending on the legal basis of the state of emergency declaration or on the lack of such a declaration, a different form of judicial oversight is carried out.^{Footnote 43} Even when they do not have a constitutional basis, state of emergency laws may enable different forms of balancing of constitutional rights from those taking place according to ordinary laws.Footnote ⁴⁴ The legal basis of restrictive measures has to be found in the state of emergency legislation, if approved.^{Footnote 45}

An explicit state of emergency declaration may have two sets of consequences: an institutional and a substantive one.

From an institutional standpoint, the declarations of states of emergency have empowered governments with rule-making power, shifting the constitutional balance between legislative and executive powers.^{Footnote 46} Often a similar centralising effect has taken place in federal states where coordination among states, regions or provinces conferred additional power to the central government.^{Footnote 47} These shifts had a serious impact on the sources of the law system and the separation of power.

Did the explicit declarations of a state of emergency through legislation also have an impact on the substance of constitutional rights? In particular, did they allow for the striking of a different balance from that which governments could have struck without an explicit declaration? The case law suggests that the adoption of restrictive measures and the limitation of constitutional rights to protect health is considered lawful when the governmental rule-making power is grounded in a state of emergency.^{Footnote 48}

When balancing is deployed, how is the structure of balancing defined, and does it differ from the balancing techniques usually deployed in ordinary times?

Health protection in times of pandemic is generally given priority, but the priority over economic interests is usually stronger than the priority over the protection of non-economic interests with constitutional relevance, such as education, freedom of movement and freedom of expression. The latter may even gain further relevance if one observes that certain freedoms (eg of movement) are instrumental to the enjoyment of other fundamental rights (eg to private and family life).^{Footnote 49}

Closure of shops and restaurants is dealt with differently from closure of churches and schools. Certainly, the same protection for businesses must be granted to schools and churches.Footnote ⁵⁰ As we shall see, an important dimension is related to indemnification.Footnote ⁵¹ When the limitation of the economic interest can be compensated via governmental indemnification, the balancing between health protection and economic activities might take such indemnification into account and prioritise rights that may not be indemnified over rights whose limitations may be indemnified.^{Footnote 52}

A special case is the protection of jobs and labour regulations in relation to health protection.

The restrictive measure is usually complemented by exceptions that protect individual or collective rights. The exceptions identify those right-holders who are not bound by the restrictions (exemptions). For example, health reasons such as the necessity to undertake therapies are exceptions to the restriction of movement introduced by restrictive measures. The necessity to help relatives with disabilities may also be a ground for exception to restrictions to freedom of movement. Disability has been considered a ground for keeping schools open, given the difficulties for parents of disabled children to provide education at home.Footnote ⁵³ Restrictions have been challenged on equality and non-discrimination grounds before courts.

Balancing may encompass general limitations with derogations and exclusions for categories of individuals or activities whose fundamental rights cannot be limited.

A second distinction concerns not the “if” but the content (“how”) of governmental measures. Once scientific evidence exists to justify the adoption of a precautionary measure restricting fundamental rights in order to protect health, how should the balancing between rights be struck? In other words, what is the relationship between the level of scientific knowledge and the balancing of fundamental rights?

It is useful to distinguish between substantive and procedural balancing. Whether rights are or should be balanced differently depending on the level of scientific knowledge and the degree of uncertainty is a difficult question. In theory, the answer is that the level of scientific knowledge should not affect balancing and uncertainty should impact on the balanced rights. This, in practice, is not the case. If the effect of a restrictive measure is not ex ante certain but it imposes certain costs on a part of the population, such as on economic activities, should that measure be taken? Governments have taken restrictive measures whose outcomes in terms of contagion reduction were uncertain, and courts have upheld them while making reference to the precautionary principle. Courts have been more demanding and less willing to uphold measures when more scientific knowledge has become available. They did not evaluate the merits but decided to quash or not to quash the measures on the basis of insufficient scientific grounds.^{Footnote 54} Hence, courts have asked for more accurate scientific bases of governmental restrictive measures as scientific knowledge related to the impacts of those measures became available. Thus, the degree of scientific knowledge has affected how balancing was structured and the decisions taken by the executives.

IV. Evidence-based measures and claims in a world of uncertainty

Governmental measures limiting fundamental rights must be grounded in solid scientific evidence. This is true both for restrictive and for laxer measures. Scientific knowledge develops incrementally.^{Footnote 55} Hence, the quality of evidence varies over time. In the case of COVID-19, the development of medical knowledge has been more rapid than for other similar pandemics and has been characterised by an unprecedented degree of sharing and coordination between national actors at the global level, as also acknowledged by courts.^{Footnote 56}

Evidence as grounds of governmental measures concerns not only scientific knowledge about the pandemic, but also its consequences for society and the economy.

Courts have required action or inaction to be evidence-based.^{Footnote 57} Usually, while risk assessment is carried out by scientific committees, risk management is carried out by governmental bodies. Differences might arise between scientists and policymakers. The final responsibility rests on the political body, but divergent routes must be explained. The need for scientific grounds does not necessarily impose strict scrutiny where reasonably sound evidence exists.Footnote ⁵⁸

A measure is usually judicially scrutinised in relation to both its actual and potential future effectiveness. The combination of past and future effects of governmental measures differs. The concrete effects might occur after the measure has expired (eg the rate of contagion may decrease two or three weeks after the restrictive measure has been adopted).Footnote ⁵⁹ The evaluation is made at the time of the judgment and might also include the impact of the measure. The judgment issued after the expiry may take into account not only the prospective but also the retrospective effects when evaluating the proportionality of the challenged measure. The short duration of the measure enables courts to engage in hindsight evaluation and to scrutinise the effects of the measure ex post, after it has expired.Footnote ⁶⁰ The hindsight perspective might be particularly relevant when deciding compensatory claims rather than injunctive relief, where foresight plays a more important role.Footnote ⁶¹

Evidence of the risk to health plays a role when making the claim justiciable. Two alternatives can illustrate the content of the burden of proof: under one test a risk exists if it can be proven; under the alternative test a risk exists if it cannot be excluded. Usually, the first is deployed; only claims based on actual infringements and certain harms may be brought. Potential and uncertain harm cannot be the basis for valid claims. However, in a world of scientific uncertainty, such as that regarding COVID-19, even claims based on potential harms may be considered, especially if the harm, once it materialises, is irreparable.

The allocation of the burden of proof is usually on the claimant, but uncertainty may shift the burden. The burden of proof to provide evidence of scientific foundations in COVID-19 cases is upon the administration.Footnote ⁶² The claimant has to prove the existence of fundamental rights’ violations and the inadequacy or insufficiency of scientific evidence; the administration has to prove that the adopted measure was based on adequate and sufficient scientific evidence and that no violation of fundamental rights occurred.Footnote ⁶³ There has been a path in the case law related to the scientific evidence to be provided as a valid ground for governmental choices. Initially, mere reference to scientific advice was sufficient to ground the legitimacy of the restrictive measure.Footnote ⁶⁴ Subsequently, many courts have broadened the burden and required proof of more solid evidence.Footnote ⁶⁵ Hence, the evolution of scientific uncertainty has determined the reallocation of the burden of proof and of its content.

The extent and intensity of the scope of judicial review reflect the evolution of scientific knowledge and the degree of uncertainty in decision-making.^{Footnote 66} Whether the state of scientific knowledge is limited or more consolidated, whether it is homogeneous or conflicting, it affects the grounds for governmental measures and, consequently, the scope of judicial review.Footnote ⁶⁷

The issue of scientific evidence is not limited to the relationship between scientific expertise and governments; it also extends to the relationship between regulators and doctors. Whether physicians are allowed to prescribe drugs on an experimental basis and what kinds of liability they may incur are open issues. Litigation has occurred over the decisions made by drug regulators in relation to their therapies.^{Footnote 68} In this domain, litigation is also likely to occur in relation to vaccines and their effects.

V. Scientific evidence, balancing rights and governmental (in)action

A distinction related to the role of scientific evidence should be made between governmental action and inaction. What kind of scientific evidence must exist to oblige the adoption of a restrictive measure by governments? Does uncertainty justify governmental inaction more than action? Is the level of scientific knowledge that motivates governmental action higher than that which justifies inaction? In theory, the answer is no.Footnote ⁶⁹ There should be no difference between the level of scientific knowledge and the alternative between action and inaction. In practice, courts have rarely reviewed inaction on the basis of scientific uncertainty, probably being moved by the inertia bias driven by scientific uncertainty.Footnote ⁷⁰ From another perspective, however, it is worth mentioning that in several cases courts have also refrained from a strict evidence-based scrutiny on the full effectiveness of adopted measures when action was at stake and annulment or suspension was sought.Footnote ⁷¹ Although not expressly recalled, the principle of precaution might play a role in this latter regard.

A potential rough measure of the distinction between action and inaction is the ratio between the number of cases brought against governmental action and those brought against governmental inaction. The number of cases related to governmental measures (action) is much higher than that for failure to adopt them (inaction).^{Footnote 72} Legal hurdles concerning the enforceability of a right to enact a governmental measure versus the right to quash an existing one can obviously affect the relationship between the level of scientific knowledge and the action/inaction alternative.^{Footnote 73} Whereas in some jurisdictions the possibility of seeking administrative action through judicial injunction is either non-existent or limited to well-defined areas of law, other jurisdictions allow these claims and permit the judge to order the administration to act.^{Footnote 74} Therein courts have played an important role, especially where governments have been more reluctant to take action, such as in South America,^{Footnote 75} IndiaFootnote ⁷⁶ and some African countries.^{Footnote 77} Similar patterns may be observed in other world regions, such as Oceania and Europe^{Footnote 78}. In some cases, the level of (dis)trust towards government has discouraged courts from ordering measures whose enactment could lead to a high risk of abuse or corruption.^{Footnote 79} Even more critical have been claims aimed at ordering governments to take a different action from that adopted.^{Footnote 80}

In conclusion, taking a restrictive measure with a high level of uncertainty may be scrutinised differently from not taking an action with the same level of uncertainty. As a result, high levels of scientific uncertainty may more likely lead to governmental inaction than to action.

VI. The principle of proportionality in conditions of uncertainty

The balancing between rights is often carried out on the basis of the principle of proportionality or some functional equivalents.^{Footnote 81} Both the principle of precaution and the principle of solidarity have to be applied in light of proportionality.^{Footnote 82} The principle of proportionality has been a cornerstone of judicial review across legal systems embedded in very different legal traditions.^{Footnote 83}

Proportionality concerns the choice between action and inaction, and, once action is chosen, proportionality applies to the measure’s choice. Proportionality permits the evaluation of the restrictive measure on the basis of its necessity, adequacy and suitability for the purpose. Although a more specific comparative legal analysis would be necessary to highlight the different approaches taken by courts within different legal families, comparable criteria are applied by courts when the principle of proportionality is not mentioned.^{Footnote 84}

The test of proportionality usually requires three steps: the necessity, the adequacy and the strict proportionality of the restrictive measure. These three dimensions have been adapted to the specificity of the pandemic and to the uncertainty characterising the decision-making relating to the pandemic.

Necessity is usually featured as the lack of alternative less intrusive measures. In the case of the pandemic, there exists a correlation between the state of emergency and the necessity to adopt preventive measures.^{Footnote 85} The necessity requirement is partially covered by the general legislation that has declared the state of emergency, but an analysis concerning the necessity of the specific measure requires investigating the objectives of the measure in light of the emergency.Footnote ⁸⁶ Hence, the metric of necessity in relation to the proportionality principle concerning COVID-19 restrictive measures should be different from the ordinary metric due to the magnitude of the health alert, the need to provide a quick response and the high level of uncertainty.Footnote ⁸⁷

From the perspective of some legal traditions, the necessity requirement also refers to the choice of the measure, comparing alternative options that can achieve the same or similar outcomes.^{Footnote 88} The administration is usually bound to show that alternative measures were identified and that the choice fell to the least restrictive measures. However, during the emergency, courts have usually not asked for the identification of alternative measures and have been satisfied by the requirements of mere necessity and adequacy.^{Footnote 89} In some cases, courts have looked at alternative means to exercise rights and freedoms limited by the contested measure in order to ascertain its proportionality or reasonableness.^{Footnote 90}

Adequacy requires a functional correlation between the restriction and its expected effects: whether that measure is likely to produce the expected effects. Alternatively, the test evaluates the correlation between the instrument (the measure) and its expected objectives (including outputs and outcomes). But what are the expected effects of a COVID-19 restrictive measure? What is the metric for measuring the relevant effects? With high scientific uncertainty, the adequacy metric differs from the evaluation based on the customary probabilistic evaluation of administrative measures that is usually deployed.

What specifically should adequacy require us to consider? The reduction of contagion rather than saved lives should be the metric deployed to evaluate the proportionality of a measure.^{Footnote 91} However, clearly the correlation between the rate of contagion measured in terms of the effective reproduction number (Rt) and the number of deaths must be taken into account. Whereas scientific analysis makes predictions regarding the impact of measures in relation to the contagion, very rarely so far has such an analysis become the subject of judicial review.

Three aspects of proportionality may be further highlighted.

(1) Proportionality may affect both the nature and the content of governmental measures.^{Footnote 92} Proportionality may influence the choice between hard and soft law. Soft law should be chosen if a soft law instrument can achieve the objectives as effectively as hard law. Hard law should be chosen only when it is clear that it is a better instrument or the only one capable of achieving the objective. The pandemic has had an impact on these considerations, leading some countries to explore the role of soft law to a greater extent than before.Footnote ⁹³ Once it became clear that the soft measure could not achieve the desired objective, then governments moved on to hard measures.

Proportionality affects the spatial and temporal scope of the restrictive measure. A generalised ban is disproportionate if the target population is limited to a town and the entire region or state is affected. The measure should target the specific administrative entity if the problem is circumscribed. Zoning using different colours has been an answer to the necessity of grading and tailoring these effects, particularly the limitations of fundamental rights. The scope of judicial review over such spatial impacts has been different across countries.^{Footnote 94}

(2) Proportionality depends on the nature and content of the balanced rights.Footnote ⁹⁵ The principle of proportionality may require a cost–benefit analysis between the risks of the contagion and the costs of the limitations caused by the restrictive measure.Footnote ⁹⁶ Developing such a metric in emergency situations could be quite challenging, but courts have made interesting attempts, primarily based on qualitative more than quantitative comparative analyses.^{Footnote 97} The benefits are the consequences related to the reduction in the contagion’s risks and the effectiveness of the restrictive measure in this regard.^{Footnote 98} Costs include those imposed on the different groups targeted by the restrictive measures; their assessment should take compensation or mitigation into account.Footnote ⁹⁹ Proportionality has to weigh up any measure that limits fundamental freedoms to protect collective health. The intensity of the measure should be linked to the principle of solidarity.

(3) Proportionality is connected to the state of scientific knowledge and the level of uncertainty.Footnote ¹⁰⁰ Some case law suggests that the proportionality evaluation of a restrictive measure should be influenced by the state of scientific knowledge.^{Footnote 101} What varies is not the intensity of proportionality but the quality of the analysis. As has been highlighted, both necessity and adequacy are influenced by uncertainty.

Scientific knowledge allows for predictions regarding the effects of measures.Footnote ¹⁰² Limited knowledge prevents accurate predictions. Broad and deep knowledge allows us to make better predictions on the causal relationship between the measure and its effects. How should different degrees of scientific knowledge influence the proportionality analysis? Such knowledge affects necessity and adequacy; scrutiny should be stricter when the available knowledge increases and the administration can decide on the basis of scientific evidence.^{Footnote 103}

Two preliminary conclusions can thus be drawn. Firstly, proportionality depends on the nature of the balancing and the content of the balanced rights. Secondly, proportionality should incorporate in the cost–benefit analysis the loss and the possibility of obtaining some kind of compensation or mitigation of the loss resulting from the limitation of constitutional rights. Whether or not a loss can be compensated will be a factor that determines the proportionality of the restrictive measure. When compensation is not available, mitigation should be a factor in the proportionality analysis.

VII. Linking uncertainty and trust in compliance monitoring

Monitoring is necessary for governments to decide whether and what measures should be adopted. Once protective governmental measures have been adopted, compliance has to be monitored to evaluate their effectiveness. The measures are designed with a high level of uncertainty, partly determined by a lack of knowledge on how the addressees will react. Uncertainty may determine distrust and increase non-compliance. A common denominator when examining compliance monitoring with COVID-19-related measures is trust. The necessity of involving the population makes trust an essential component of monitoring and a determinant of instrument choice. The primary goal of compliance is not to punish the violation of the measures but to persuade the addressees to comply.Footnote ¹⁰⁴

The pandemic has stimulated the use of innovative compliance instruments and the involvement of private actors.

Monitoring compliance with restrictive measures has triggered a variety of responses, leading to a mix between legal and technological responses and, within the former, a combination of hard and soft law. The use of contact tracing has been scrutinised by courts for violation of the right to privacy and data protection.Footnote ¹⁰⁵ In some countries, such as Israel, technology was used to monitor compliance with restrictive measures.Footnote ¹⁰⁶ In other countries, the use of technology to monitor contacts and detect contagion was voluntary (eg Italy). In Israel, the Supreme Court has declared contract tracing unconstitutional, stating that it can be used only in very limited contexts determined by the Supreme Court.^{Footnote 107}

Complementary monitoring strategies for governmental precautionary measures include: (1) the combination between hard and soft law compliance monitoring; (2) the use of community or societal monitoring in addition to state official monitoring; and (3) the combination between legal and technological instruments. Choices have varied across governments, and the roles of social norms and community responsiveness have determined changes of strategy over time.

Compliance by businesses and other organisations to ensure respect of the precautionary measures and compliance by individuals may require different technologies and the observance of different proportionality thresholds. The conventional administrative instruments for monitoring compliance have proven to be inadequate to say the least. The necessity for inducing compliance has pushed governments towards nudging and steering rather than sanctioning and punishing.Footnote ¹⁰⁸ Behavioural sciences can contribute to identifying the reasons underlying non-compliance and the best responses. The analysis of the responses contributes to our understanding of whether the effects of the measure might drive change or persistence in non-compliance.

Monitoring concerns people’s behaviour. It is aimed at limiting the spread of contagion and encouraging compliance with precautionary measures.Footnote ¹⁰⁹ The former is related to contact tracing and vaccination, while the latter concerns compliance with precautionary measures by businesses, employers, schools, churches and municipalities. Clearly, both hard and soft law measures require compliance monitoring, but the instruments and effects differ depending on whether hard or soft law is at stake. An example is represented by vaccine passports.Footnote ¹¹⁰

Limited resources have forced the deployment of a large amount of private and collective societal monitoring. Often businesses such as restaurants, as well as transport companies and suchlike, have been asked to collect data related to the conduct of individuals for the purpose of contact tracing. This delegation of monitoring compliance has been scrutinised by the courts primarily in relation to the means and scope of control. Empowering private actors to monitor compliance is subject to limitations related to the scope of delegation.

Private actors have been involved in the compliance monitoring of individuals with governmental measures and, more recently, in monitoring vaccination. The legality of such involvement has been challenged because failure to monitor has been accompanied by administrative sanctions.Footnote ¹¹¹

The introduction of new monitoring techniques has been under judicial scrutiny. As the French case law on drones suggests, the surveillance by public authorities is limited by the necessity to respect fundamental rights and the principle of proportionality.Footnote ¹¹² The collection and use of data concerning individuals and organisations interferes with the limits of fundamental rights.

Not only has the pandemic introduced restrictive measures in order to enhance the prevention and control of the pandemic; it has also introduced new forms of compliance monitoring using technologies that have to comply with the rights to privacy and data protection.

Monitoring compliance also reflects a combination of hard and soft law instruments. The importance of social norms has been highlighted when deploying soft law monitoring mechanisms to ensure collective compliance. Hence, within legal instruments a distinction between hard and soft law monitoring devices may be drawn.

Individual and collective compliance is a key factor for reducing contagion. Governments have used different combinations of recommendations and orders. Some countries choose command and control. Other countries choose only persuasion and soft law. Most countries choose a combination of both.

The use of technology as a means of control is partly dependent upon collective action. Technological control works if a large number of people use the technological devices.

It is very difficult, for instance, to monitor compliance with quarantine obligations, but control over people’s position through their phones and computers can contribute to locating them and to detecting violations.

In terms of enforcement, the role of administrative fines has so far been paramount, whereas civil liability has so far not been used but for the liability of public institutions where no adequate precautions were taken.

The key in order for fines to work is to fine both those who manage the activities and the individuals who take part in them. In the case of restaurants, a lack of compliance with rules concerning distancing and mask wearing will result in fines for both the restaurant and the customers. In this way, there is a mutual incentive for reciprocal monitoring.

It is likely that civil liability litigation will develop in the near future if individual and collective behaviours involving violating the rules cause contamination and the spreading of the pandemic.

1. Compliance with voluntary measures: vaccines

Vaccination is still voluntary for the most part, but the sanitary pass has become mandatory in many countries to enable individuals to engage in many activities.Footnote ¹¹³ If individuals want to engage in certain activities, then they must have a valid pass; for example, access to transportation, leisure and cultural events may be conditioned on a pass that shows vaccination or the absence of COVID-19.Footnote ¹¹⁴ It is important to point out that the choice of vaccination remains free, but the chooser has to bear the consequences of the choice.

In France, the law regulating mandatory access with the pass has been scrutinised by the Constitutional Council.Footnote ¹¹⁵ The French Council has highlighted the judges’ role in ensuring that the limitations associated with the pass are adequate, necessary and proportionate. The pass controls access to activities on the basis of vaccination or proof that the person is free of COVID-19. The French law tasks private actors to check the validity of these passes and sanctions failure to monitor by private actors. According to the French Council, charging private actors with the task of monitoring the possession of a valid pass does not constitute a disproportionate limitation of the freedom of enterprise.Footnote ¹¹⁶ Furthermore, it has clarified that the pass is not a surreptitious way to introduce mandatory vaccination.Footnote ¹¹⁷

VIII. The scope of judicial review in times of pandemic

Courts have played an important role in reviewing administrative measures and ensuring respect for fundamental rights. At times, they have aligned with governmental policies; at other times, they have annulled the measures, limiting fundamental freedoms to protect health. Effective judicial protection of fundamental, individual and collective rights has been at the core of judicial review by ordinary and constitutional courts.

In some jurisdictions, courts play not only the conventional role of ex post reviewers, but also that of ex ante monitors. However, the scope of such authorisation is limited to the potential violation of fundamental rights. At least in one jurisdiction – Spain – ex ante ratification has been deployed. With the ex ante ratification (automatic de-ratification), Spanish courts are tasked with verifying the legality and proportionality of the governmental measure limiting fundamental rights.^{Footnote 118} The governmental measure is subject to judicial ratification before becoming effective in order to verify the compatibility with fundamental rights according to the principle of proportionality and legality.^{Footnote 119} If legality is denied, the government can appeal before the Supreme Court.Footnote ¹²⁰ The ex ante ratification does not eliminate ex post control since only some aspects of legal conformity can be considered in the ex ante control.Footnote ¹²¹

The scope of judicial review is manifold:

(1) To ensure that the collective right to health is protected and action by the government is promptly and effectively taken.
(2) To ensure that the interests and the rights of those negatively affected by the measures are duly considered when restrictive measures of freedoms are adopted.
(3) To ensure that when governments refrain from acting, the protection of health is duly taken into account.

Different legal traditions over the scope of judicial review exist, going well beyond the traditional common/civil law distinction. Both in common law and in civil law, different approaches have developed. The differences between French and German courts highlight the broader scope of judicial review in Germany than in France. Similarly, within common law, the scope of judicial review between the UK and the USA differs quite significantly. Outside of Europe and North America, the role of courts has been more pronounced in Latin America and less in Asia, with the exception of India.Footnote ¹²²

It is not within the scope of this article to describe whether and how the pandemic has changed these approaches and, when changes have occurred, whether they have increased or decreased convergence among legal systems. However, it is important in the analysis of courts’ reviews to consider the different “attitudes” to scrutinising governmental measures.

The scope and intensity of judicial review in times of pandemic are different from in ordinary times.^{Footnote 123} The scrutiny has been at the same time deferential, if compared to ordinary times, and stricter, given the relevance of fundamental freedoms and rights limited by the protective measures.Footnote ¹²⁴

The quality and intensity of judicial review takes into account the emergency and the fact that governments act in a condition of urgency, often combined with uncertainty about scientific knowledge and sanitary crisis management.Footnote ¹²⁵ Clearly, the scope of review differs depending on whether there is a summary judgment or a final judgment.Footnote ¹²⁶ However, the pandemic has broadened the scope of review in urgent procedures.

The different context created by the emergency does not necessarily reduce the intensity of review by increasing the level of judicial deference. It simply changes the perspective of review and that of balancing, allowing for the limitation or suspension of rights to protect individual and collective health.^{Footnote 127} It is the quality, not the intensity of review that varies depending on the uncertainty and the evolution of scientific knowledge related to the pandemic.Footnote ¹²⁸ Courts have become more demanding as scientific knowledge increases and stabilises. The exercise of legislative and administrative discretion is correlated with the level of scientific knowledge. The short duration of governmental measures often imposes a different approach to judicial review. Courts are asked to engage in the continuous review of measures that succeed over time. Continuous judicial review does not increase legal uncertainty, but indirectly contributes to ensuring policy control rather than segmenting control over single acts.

The case law reveals that courts are willing to admit claims even when the challenged measure has expired but its effects continue.Footnote ¹²⁹ This is true not only when, for example, a temporary closure of business for part of the day becomes a total closure, but also when parties, forbidden from engaging in a certain activity, are allowed to engage in that activity only upon meeting certain conditions.

Reviewing the scientific foundations of governmental measures has been a daunting challenge for national courts. We observe a less strict scrutiny when scientific knowledge is limited, whereas judicial scrutiny becomes less deferential when scientific knowledge increases and consolidates.^{Footnote 130} Uncertainty and divergences within the medical world must be considered by the administrations and by the courts when they exercise judicial review. Usually, the task of integrating divergent scientific opinions is attributed to scientific advisory bodies that support governmental decision-making. However, courts may have to decide about divergences when claimants provide scientific evidence that contrasts with that which was the foundation of the challenged administrative measure. In some countries, courts have scrutinised the level of convergence and divergence of scientific opinions and their reliability within wider scrutiny of coherence, rationality and logical reasoning regarding the motivation sustaining the administrative decision.^{Footnote 131}

Whereas courts have been careful to ensure separation of powers and not to override governmental and scientific decisions concerning restrictive measures, they have certainly closely scrutinised the limitations of fundamental freedoms by restrictive measures since the outset.Footnote ¹³²

Courts have scrutinised the choice to intervene and that of regulatory instruments. One distinction that has emerged, albeit with different levels of intensity among legal systems, is that between the judicial review of administrative action and inaction. Courts seem more willing to scrutinise action than inaction.^{Footnote 133} They examine administrative measures and evaluate their proportionality. When the administration does not act, courts have been less willing to order action and to define the suitable measure necessary to ensure effective judicial protection of the rights violated by inaction.Footnote ¹³⁴

Similarly, when the claim was to harden the measures, courts have been less willing to order governments’ more radical actions than when the claim sought to soften the existing measures.

Courts have played a less active role in the choice between hard and soft law instruments. The use of soft law and recommendations has been significant, but this is not the case for the subjects of reviews.Footnote ¹³⁵ Very limited litigation has emerged on the choice to use soft instead of hard law instruments or vice versa.Footnote ¹³⁶

Clearly, there is more space for limited judicial review concerning the “if” question (eg whether the administration should act) than the “how” question (which protective measure should be adopted to protect the fundamental right).

The distributional question concerning access to testing, treatment and vaccination has been dealt with mainly by countries with weak welfare systems.Footnote ¹³⁷ The collective nature of prevention has driven courts to stimulate governments to devise access policies favouring the most vulnerable and those with the least resources.Footnote ¹³⁸ In countries with stronger welfare systems, courts have been generally more deferential towards governments’ prioritisation schemes.Footnote ¹³⁹

A second non-legal factor influencing judicial review is the level of citizens’ trust in governmental expectations. Limited empirical and experimental evidence shows that there is an inverse relationship between the level of trust and the intensity of judicial review.^{Footnote 140} However, there are examples where the courts have tried to increase trust and certainty when governments did not manage to preserve institutional trust, as well as cases in which the courts have referred to the lack of trust as a ground for rejecting claims for injunction concerning measures whose enactment would have raised the risk of abuse or corruption.Footnote ¹⁴¹

IX. Concluding remarks

The role of courts has been quite significant in the COVID-19 pandemic, weakening the theory that the judiciary is not equipped to manage emergencies and contribute to govern sanitary crisis management. Not only have courts been the guardians and custodians of fundamental rights and the rule of law, but they have also contributed to governing uncertainty and adapted to the evolution of scientific knowledge by reducing arbitrariness and imposing evidence-based decision-making on national governments. Innovative use of the precautionary principle, connected to proportionality, has enabled courts to scrutinise past decisions and to steer future governmental behaviour.

The experience of COVID-19 has shown that even in times of emergency, when rapid and effective action is required, courts can adapt and provide the necessary balance to the power shift towards the executives. Creative interpretations of procedural rules have permitted continuous and effective oversight of governmental decisions.

Courts’ involvement has varied across countries. It has been much more intense in democratic regimes, where both the protection of fundamental rights and the oversight on the executive’s use of emergency powers have permitted control over compliance with the rule of law. This has been much less the case in non-democratic countries, where the concentration of decision-making power in the executives has not been balanced by judicial oversight.

The quality of judicial review has been influenced by the emergency, but its scope and intensity have not been reduced. The protection of fundamental rights and freedoms has been a primary objective of judicial oversight in democratic countries, and differences in the balancing have emerged compared to that of ordinary times. The necessity to protect collective health through preventive and reactive measures has justified the limitations of freedoms to a greater extent than is usually permitted under national constitutional traditions in ordinary times. Proportionality and reasonableness with multiple conceptual variants, partly associated with the different national legal traditions, have been used to scrutinise the legality of restrictive governmental measures.

Courts have been deferential to the increased role of science in providing guidance to decisions related to governmental measures. However, they have modified their reviews, including in the use of proportionality, as medical and scientific knowledge increased over time. They have required transparency and ensured procedural accountability of the process through which scientific committees and governments interacted to ensure that measures were evidence-based. Both action and inaction affecting fundamental rights have been scrutinised to ensure that governments took the necessary measures to combat the pandemic and to protect health. Courts have been responsive to the evolution of the crisis, and their reviews have usually reflected both the level of knowledge and the necessity to decide under uncertainty by national governments. More deference has characterised the choice of the regulatory instruments. Very limited litigation has so far addressed the choice between hard and soft law. More intense has been the scrutiny over compliance with the principle of legality, especially when fundamental rights were at stake.

The consequences of the crisis will survive the end of the pandemic, and courts are likely to continue to play a significant but different role in the years to come. The subject matter of litigation will change, and the issue of liability and the allocation of losses from the pandemic will eventually overtake the crisis management questions that have engaged the courts so far.

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.

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 Footnote 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 Footnote 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 Footnote 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://multimediafluids.uam.elogim.com/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 Footnote ibid.

117 Footnote 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.

ibid

Article contents

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

Abstract

Information

I. Health-protective measures to combat the pandemic: a conceptual framework

1. The methodological framework

II. Restrictive measures to combat the pandemic: the principles

1. Vaccination: from soft and voluntary to hard and mandatory?

III. Balancing fundamental rights in times of crises

IV. Evidence-based measures and claims in a world of uncertainty

V. Scientific evidence, balancing rights and governmental (in)action

VI. The principle of proportionality in conditions of uncertainty

VII. Linking uncertainty and trust in compliance monitoring

1. Compliance with voluntary measures: vaccines

VIII. The scope of judicial review in times of pandemic

IX. Concluding remarks

Footnotes

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