1.  Spain is a decentralized parliamentary constitutional monarchy, with the Spanish Constitution of 1978 as the supreme norm of its legal order.¹ The Spanish Parliament (Cortes Generales) is bicameral. It is made up of the Congress of Deputies, elected by universal suffrage, and the Senate, elected partly by universal suffrage and partly by the legislative chambers of the regions, whose official name is Autonomous Communities (Comunidades Autónomas) (‘ACs’). The Congress of Deputies prevails over the Senate in nearly all areas of policy and legislation, except for some very specific issues related to the functioning of the ACs and their budgeting.

2.  According to the Constitution, the Monarch appoints as the President of the Spanish Government the person who can command the confidence of the Congress after a general election. Cabinet Ministers are appointed and dismissed by the Monarch on the proposal of the President. Traditionally, Parliament was composed mainly of two political groups, resulting in relatively wide majorities for electing the Government—with an important role for nationalist parties, especially during the 1990s—which therefore used to enjoy a dominant position in both the executive and the legislative branch. The 2008 financial crisis fostered the rise of new political parties and increased fragmentation in Parliament. After the general election of November 2019 and over the course of the Covid-19 pandemic, the Government was made up of a coalition between two (left-wing) political parties, which, however, did not jointly attain majority in the Congress, since they had obtained the confidence of the Chamber with the support of other minoritarian political groups.

3.  Below the Constitution, an Act of Parliament is the highest form of law, subject to the primacy of European Union (EU) law, of which Spain has been a Member State since 1986. Exceptionally, the Government can also pass Acts, which are different from governmental and administrative regulations, ranking above these and having the same legal value as Acts of Parliament. International agreements ratified by Spain are subordinate to the Constitution and they rank hierarchically as Acts of Parliament. Law-making is divided between Acts of Parliament, Acts of Government—which require either a previous delegation of legislative powers by the Parliament or an occurrence of extraordinary and urgent need—and regulations issued by the executive. Therefore, the executive has the power to pass two different kinds of legal rules: Acts and regulations. Acts (either parliamentary or governmental) are subject to the exclusive review of the Spanish Constitutional Court (SCC), which is not part of the judiciary but a differentiated constitutional body. Governmental and administrative regulations rank below Acts and they are amenable to judicial review—typically, of the so-called ‘contentious-administrative courts’ (Jurisdicción Contencioso-Administrativa). The Monarch has no relevant prerogative powers, but mostly formal ones, such as the sanction and promulgation of State legislation. The executive has no consistent practice of issuing ‘guidance’ or soft law measures to the public, but normally uses them only for internal organizational purposes.

4.  As a quasi-federal State, Spain has a unique model of decentralization known as ‘Autonomic State’ (Estado Autonómico). It is composed of 17 ACs, plus two autonomous cities: Ceuta and Melilla. Each AC has its own legislature, executive, and electoral arrangements, which reflect those at the State level. The judiciary is not decentralized. The structure of executive powers and sources of law resemble those of the State too. In this report, the ACs of Madrid and Castilla-La Mancha will be used as exemplars, since they are representative of the regional diversity in Spain: these two ACs differ substantially in terms of territorial structure and scope, population density, economic and political strength within the State as a whole, and political alignment with the Spanish Government in the period under consideration. Below ACs, local authorities (provinces and municipalities) also enjoy political and administrative autonomy, although at a lower level—they lack a legislature and can issue only regulations (but not Acts).

5.  Health legislation and enforcement are, to a large extent, transferred to the ACs. The State retains basic legislative competence in this field—enabling it to set a minimum level of rules for the whole country—as well as the responsibility for certain strategic areas and the overall coordination of the health system. Local authorities have very limited health competences, generally consisting of the delegated competence to manage the health care centres belonging to their respective ACs.² Criminal legislation is reserved to the Spanish Parliament, while legislation on administrative penalties can be enacted by both the State and the ACs within their respective fields of substantive competence. There are police forces at the State, regional, and local level.

6.  Emergency powers are reserved for the Spanish Government and/or the Spanish Parliament, depending on the type of emergency (see Part II.A below).

7.  The response to the pandemic has not changed the basic constitutional structure of the State, but it has caused tensions in various areas explored below.

8.  Article 116 of the Constitution enshrines a formal constitutional procedure for declaring a state of emergency, distinguishing among three types of them: a state of alarm, for catastrophes and other crises such as epidemics; a state of exception, for severe and extraordinary alterations of public order; and a state of siege, for attacks against Spanish sovereignty. This provision is further elaborated in the Organic Law on the states of alarm, exception, and siege.³ The power to declare a state of alarm, which is the least restrictive of the three states of emergency, vests solely in the Spanish Government. It enables the Spanish Government to temporarily and partially centralize competences which are otherwise assigned to the ACs, as well as to adopt extraordinary restrictive measures to fight the crisis at hand. The declaration, which takes the form of a royal decree of the Spanish Government, can have a maximum duration of 15 days and must specify the territorial area to which it applies—the State as a whole, or only a part thereof. Congress shall be informed of the declaration and must meet immediately for this purpose. Congress’s powers are exclusive when it comes to the authorization of an extension of a state of alarm beyond the period of the initial declaration, during which it can also set the effects and scope of the declaration, such that its powers are not restricted to simply casting a yes or no vote. Despite being adopted by the Government as royal decrees (which are normally governmental regulations), royal decrees declaring—and, where appropriate, extending—a state of alarm are considered to have the nature of an Act of Government; therefore, they cannot be scrutinized by the judiciary, but only by the SCC.⁴ However, all measures adopted by the Government under a state of alarm, either in the form of regulations or as single-case decisions, are subject to review by the judiciary .⁵

9.  During the first wave of the pandemic, the Spanish Government declared a nationwide state of alarm for a total period of three months, from 14 March until 21 June 2020. It declared it for an initial period of 15 days,⁶ and subsequently extended it every fortnight, six times, with the approval of the Congress.⁷ Under this state of alarm, the Spanish Government temporarily took over the exercise of certain health-related competences from the ACs in order to quarantine citizens nationwide and to adopt other restrictive measures based on public health concerns (see Part IV below). Any matter of regional competence not expressly exercised by the State remained under the regulatory competences of the ACs.

10.  During the second wave of the pandemic, from September 2020 onwards, the need for a new state of alarm started to be discussed. In view of the worrying situation in the AC of Madrid, on 9 October 2020 the Spanish Government declared a state of alarm in nine municipalities of Madrid,⁸ against the will of the Government of this AC. The state of alarm lasted for 15 days and no extension was requested from Congress. In contrast to the approach of Madrid, in late October 2020 some ACs, including Castilla-La Mancha, officially requested the Spanish Government to declare a new nationwide state of alarm.⁹ This was declared on 25 October 2020.¹⁰ Unlike the first nationwide state of alarm, the second one enabled the ACs to adapt the application of the concrete extraordinary measures to their territories. The declaration was made for an initial period of 15 days, and on 29 October 2020 the Congress authorized its extension for a further period of six months, until 9 May 2021.¹¹ There was a debate as to whether the constitutional principle of proportionality allowed for such a prolonged extension of a state of alarm.¹² Only one precedent existed in which an extension for longer than 15 days was approved: in 2010—when the only declaration of a state of alarm prior to the Covid-19 pandemic took place in order to address the disruptions caused by a strike of air traffic controllers—an extension of 27 days was approved by Congress¹³ and ruled constitutional by the SCC.¹⁴ Following the expiration of the second nationwide state of alarm on 9 May 2021, no further use of this constitutional instrument has been made by the Spanish Government. On 27 October 2021, the SCC ruled (in a decision including three dissenting opinions) that two aspects of the second nationwide state of alarm had been unconstitutional, namely (i) its ‘decentralised’ design, whereby the Presidents of the ACs could set restrictive measures necessary to stop the spread of the virus as delegates of the President of the Spanish Government; and (ii) the six-month extension of the declaration, because it was considered that Congress abdicated its oversight function regarding the need for a state of alarm for an excessively long period of time.¹⁵

11.  A state of alarm cannot be invoked to justify the suspension of fundamental rights, because such a suspension can only take place under a state of exception or a state of siege.¹⁶ There has been discussion of whether lockdowns and other restrictive measures adopted under the states of alarm so far amounted to mere restrictions of the rights to freedom of movement and residence,¹⁷ assembly and demonstration,¹⁸ and religion,¹⁹ or rather to unconstitutional suspensions thereof.²⁰ In July 2021, when reviewing the constitutionality of the first nationwide state of alarm, the SCC ruled (in a decision adopted by a six to five vote, which includes five dissenting opinions) that the general lockdown imposed on the population between 14 March and 21 June 2020 was actually a ‘suspension’ of the freedoms of movement and residence and therefore was unconstitutional, while the restrictive measures on other fundamental rights were considered as mere ‘restrictions’ and thus in line with the Constitution.²¹ In October 2021, the SCC upheld the constitutionality of the restrictions of fundamental rights imposed by the second nationwide state of alarm,²² because, by contrast to the first one (which involved a general lockdown), the second state of alarm implied only night-time curfews and therefore there was not an unconstitutional suspension, but a proportionated restriction of the fundamental right to the freedom of movement.

12.  EU law was very relevant to the Spanish response to the pandemic, mainly through coordination and support measures, in accordance with the limited public health competences of the EU (see Part IV below).²³ Moreover, the European Convention on Human Rights (ECHR), directly incorporated into Spanish law according to a monist approach, remained applicable to any public executive action, subject to the control of the judiciary.

13.  There was no decision to derogate from the ECHR or any other international human rights convention. There was, however, temporary derogation from 17 March–11 April 2020 from the Schengen internal border controls-free area, with the consequent reintroduction of border checks on persons.²⁴

14.  There was a strong tendency to directly quote standards developed by the World Health Organization (WHO), as well as by the EU, in the legal instruments or official guidance promulgated to address Covid-19, including in the declarations of a state of alarm. Such mentions were used mainly to justify the adoption of restrictive measures by all three levels of Spanish administration. In March 2020 alone, the State adopted nine health measures invoking international and EU standards.²⁵

15.  During the Covid-19 crisis, three pieces of pre-existing state-wide legislation were relied upon as main instruments to adopt extraordinary public health measures. These were the Public Health Special Measures Act (Organic Law 3/1986),²⁶ Article 26 of the General Healthcare Act (Law 14/1986),²⁷ and Article 54 of the General Public Health Act (Law 33/2011).²⁸ These provisions, which are very broad and generic, authorize health authorities to take ‘any necessary measure’ to combat health emergencies, subject to the principle of proportionality. For example, Article 26 of Law 14/1986 states that ‘(i)n the event that an imminent and extraordinary health risk exists or is reasonably suspected, the health authorities shall take the preventive measures they deem appropriate, such as the seizure or immobilization of products, the suspension of the exercise of activities, the closure of companies or their facilities, the intervention of material and personal means and any other measures considered to be justified in terms of health. The duration of these measures, which shall be fixed for each case, without prejudice to the successive extensions agreed by reasoned resolutions, shall not exceed that required by the situation of imminent and extraordinary risk which justified them’. These measures are subject to the scrutiny of ordinary (contentious-administrative) courts. More precisely, the role of the judiciary in this regard is not only to scrutinize the measures after their adoption, but also to preauthorize them in case they consist of binding provisions and include restrictions of fundamental rights.²⁹ There was a robust scholarly and political discussion³⁰ as to whether public health legislation empowers the public administration to adopt only single-case decisions,³¹ or also general measures addressed to a wide number of people, either with or without regulatory nature.³² Similarly, there was a discussion as to whether judicial pre-authorization is required only for single-case decisions,³³ or also for general measures restricting fundamental rights.³⁴ In any case, it must be noted that this regime of judicial pre-authorization is applicable to extraordinary measures adopted on the basis of the health legislation described above, but not to extraordinary measures adopted on the basis of a state of alarm.³⁵

16.  No new general law was introduced providing emergency powers to respond to Covid-19. However, the general framework described above underwent two relevant amendments, neither of which was subject to any sunset clause. The first one was introduced through Law 3/2020, an ordinary Act of Parliament which modified several provisions of the Act on Contentious-Administrative Courts.³⁶ This amendment clarified that extraordinary public health measures adopted on the basis of health legislation could be either single-case decisions with individual addressees or general measures, and that they will be subject to judicial authorization in both cases. Moreover, this amendment stated that single-judge courts only have jurisdiction to authorize single-case measures, while general measures must be authorized by higher (collegiate) courts, namely the High Courts of Justice of the ACs (Tribunales Superiores de Justicia) and by the National High Court (Audiencia Nacional) for regional and state measures respectively. In June 2022, the SCC ruled—in a decision adopted by a seven to four vote—that the exigence that extraordinary health measures with a general addressee be ratified by the judiciary was contrary to the principle of separation of powers and therefore declared it unconstitutional and void.³⁷ The second amendment was introduced through Royal Decree-Law 8/2021, adopted just before the end of the second state of alarm (9 May 2021), which further modified the Act on Contentious-Administrative Courts.³⁸ This amendment introduced the possibility of a cassation appeal to the Supreme Court in cases concerning the ex ante judicial authorization of special health measures adopted on the basis of health legislation, with the aim of centralizing decision-making in the highest judicial body in order to avoid contradictory decisions.³⁹ At the time of writing, one constitutional appeal was pending before the SCC in respect of this amendment.⁴⁰

17.  Apart from Law 3/2020, as of 31 December 2022 only one further Act of Parliament had been passed to provide assistance in managing the pandemic: Law 2/2021,⁴¹ which regulated a set of prevention, containment, and coordination measures to deal with the Covid-19 health crisis. Three other Acts of Parliament were passed in connection with the pandemic,⁴² but their focus did not lie on health issues but on the social and economic consequences of the crisis, as will be explained in Parts V and VI below.

18.  The prominence of executive rule-making powers in dealing with the pandemic is overwhelming and reveals alterations in the use of the system of sources of law, both at the State and at the regional level, even though such system remained formally untouched over the health crisis.⁴³ Out of the 232 Covid-19-related norms adopted at the State level by 31 December 2022, seven were Acts of Parliament and 225 had been approved by the executive at the State level, mostly by the Government or its Ministries.⁴⁴ The vast majority of these 225 governmental norms (up to 177) were regulations ranking below parliamentary (and governmental) Acts. However, a significant number of Covid-19-related norms (a total of 48) were passed as Acts of Government, namely as royal decree-laws (decretosleyes), which have the same rank of Acts of Parliament and can be adopted in situations of ‘extraordinary and urgent need’ (Article 86 Constitution).⁴⁵ Under Articles 82–84 of the Constitution, the Spanish Government can also adopt another type of Act, the so-called ‘legislative decrees’ (decretos legislativos), which are a delegated form of legislation based on parliamentary authorization and which rank as any Act of Parliament. However, this mechanism, designed either to recast previous laws or to establish rules on highly technical matters following the political directives of parliament, was not used to fight the pandemic.

19.  Royal decree-laws produce effects from enactment but must subsequently be ratified by the Congress within 30 days to become permanent. Ratification usually takes place because ordinarily the Government enjoys the support of the majority of Members of Parliament (MPs). Regulations, on the contrary, do not need ratification by Congress, as they rank below Acts (either parliamentary or governmental); however, both Congress and the Senate can pose questions and interpellations regarding governmental regulations, which are therefore subject to a soft form of parliamentary review. Regulations adopted to fight the pandemic were not generally subjected to sunset clauses, with the exception of those adopted on the basis of a state of alarm—which were applicable as long as the declaration remained in force.⁴⁶ In some cases, however, royal decree-laws and regulations adopted to fight the crisis expressly set out that some of their provisions would cease to have effect after a specific date.⁴⁷

20.  In addition to parliamentary review, norms approved by the Government are subject to review by courts. As norms having the rank of Acts, royal decree-laws, which cannot regulate certain issues (such as fundamental rights), are subject to the scrutiny only of the SCC (and not of the judiciary as a whole), which is broadly considered to be very deferential concerning the justification of the ‘extraordinary urgent need’ to use this exceptional legislative instrument.⁴⁸ Regulations in turn are subject to judicial review by the judiciary, and more specifically by contentious-administrative courts.

21.  The ACs have the power to pass regulations and Acts (including Acts of Government: decree-laws and legislative decrees) in accordance with their Statutes of Autonomy (Estatutos de Autonomía).⁴⁹ In all ACs the executive played a predominant role in responding to the pandemic. The Statutes of Autonomy of Madrid⁵⁰ and Castilla-La Mancha⁵¹ empower the regional government to pass regulations and legislative decrees, but not to enact decree-laws. As of 31 December 2022, more than 70 Covid-19-related regulations had been adopted in Madrid and more than 410 in Castilla-La Mancha. Regional parliaments in turn passed only two Covid-19-related Acts in Castilla-La Mancha,⁵² and not even one in Madrid.

22.  In addition to the power to make regulations, the public administration in Spain has direction-giving powers, which allow public authorities to issue instructions (instrucciones) and service orders (órdenes de servicio) to their hierarchically subordinate bodies.⁵³ These are flexible measures that can be adopted without conducting any administrative procedure and they have legal effects only within the administration itself. However, they must be officially published whenever ‘deemed appropriate by reason of their addressees or their potential effects’,⁵⁴ which reveals that they can have some legal effects vis-à-vis third parties. This fact, which blurs the distinction between directions and regulations, has been the subject of long-standing criticism in Spain.⁵⁵ Broadly considered as a form of soft law, directions are known to have been issued in a relatively small number of cases by Spanish authorities during the Covid-19 crisis.⁵⁶ By the end of 2021, only three measures had been subject to official publication at the State level, seven in Castilla-La Mancha, and three in Madrid. Some of these directions are discussed further in Part IV.A below.

23.  In addition to the aforementioned directions, national and regional authorities made extensive use of other non-binding advice and guidance measures to fight the crisis. More than 200 guidance measures were adopted by the national State and by the ACs between early March and late July 2020 alone. Most of them concern measures to prevent the transmission of the virus, as well as for the treatment and pharmacological care of Covid-19 patients.⁵⁷

24.  Guidance measures were mostly used for prescriptive (rather than merely interpretative) purposes, aiming to guide and influence the conduct of either civil servants and other public employees providing essential public services or citizens and businesses in general. The constitutional distribution of competences was respected in the enactment of these measures, which therefore were not generally used by the authorities that authored them to overcome their lack of competence to adopt binding rules. The frequent use of guidance is explained by the fact that their adoption is not contingent on any procedural rules, as opposed to the highly formalized administrative procedures for the enactment of hard law measures.⁵⁸ Moreover, soft law proved to be effective in enhancing the implementation of certain principles governing the relations between the different levels of territorial administration, such as the principles of cooperation and coordination.⁵⁹

25.  At the beginning of the pandemic, there was a substantial degree of confusion as to what the legal rules in force were and whether certain measures constituted (hard) law or non-legally binding guidances.⁶⁰ There are several reasons for this. Firstly, guidance was presented in a variety of forms—from posters and audio-visual elements, to detailed written guides—that were frequently amended and in many cases were included in specific chapters or provisions of binding regulations, and subject to frequent updates. Secondly, most soft law measures were not subject to official publication in official journals, but only published on the websites of the administrations that created them. They were also not accessible through a dedicated and unified web page, neither at the State or regional level. Thirdly, many of these measures were no longer available online after a certain period, making it difficult to identify and quantify them accurately. Lastly, non-binding guidance sometimes reproduced (at least partially) the content of hard rules in force, or could be found in informative documents that reproduced or explained the content of binding provisions, without clearly distinguishing between them.⁶¹ These elements were problematic from the standpoint of the constitutional principles of legal certainty,⁶² and transparency of administrative actions as an implicit requirement in the principle of democracy.⁶³

26.  Even though no comprehensive empirical assessment on compliance rates has been published thus far, the coronavirus-related guidance seems to have been moderately effective in steering the conduct of the public amid the pandemic. Furthermore, research into judicial decisions delivered between March and August 2020 shows that courts indirectly enforced public health guidance by using it as an interpretative parameter of hard law rules.⁶⁴

27.  This section focuses on the Spanish Parliament (mostly, but not only, on the Congress of Deputies, which has the more relevant powers to supervise the executive) as no relevant particularities arise from the way in which Parliaments of the ACs supervised the executive of ACs. As stated above, the Congress of Deputies has the exclusive power to extend states of alarm beyond their maximum initial period of 15 days (at the iniative of the Government) and to set the content and scope of such extensions.⁶⁵ As regards royal decree-laws, Congress decides whether they should be confirmed through a yes or no vote which does not allow for amendments. However, if it confirms a royal decree-law, it can decide to process it as a draft bill under the urgent legislative procedure, where amendments are possible.⁶⁶ On the other hand, public health regulations, directions, and guidance are not subject to a formal procedure of confirmation/rejection by Parliament. However, both the Congress of Deputies and the Senate control all actions of Government in weekly control sessions,⁶⁷ mainly through questions and interpellations,⁶⁸ requests for information,⁶⁹ and parliamentary commissions of investigation.⁷⁰

28.  The legislature can, at any time, terminate the executive’s rule-making powers if they stem from a prior Act of Parliament empowering the executive to pass regulations that develop or implement legislative provisions in certain areas of law, by means of a new Act of Parliament (adopted on the initiative of any group of MPs) withdrawing such rulemaking powers. Such empowerments are necessary for the executive to enact regulations in areas constitutionally subject to a statutory reservation (reserva de ley). Statutory reservations are constitutional clauses according to which certain subject-matters must be regulated primarily by an Act of Parliament, which can nonetheless authorize the Government to issue regulations that implement rules in that area.⁷¹ Even in matters not subject to a statutory reservation, Parliament can at any time decide to pass an Act that regulates a given area of law and that repeals pre-existing executive rule-making in that area, making that subject-matter inaccessible to regulations as a consequence of the principle of hierarchy: ⁷² here, executive rulemaking powers still exist, but they are constrained by the fact that the relevant subject-matter is now regulated by an Act and therefore cannot be changed through a regulation.⁷³ The legislature cannot terminate executive rule-making powers stemming directly from Article 97 of the Constitution, which says that the Government has the power to enact regulations, and which covers regulations in any area of law not subject to a statutory reservation. Parliament cannot terminate the Government’s power to pass royal decree-laws made under Article 86 of the Constitution and decrees declaring a state of alarm under Article 116 of the Constitution . As these powers are granted and limited by the Constitution itself, their exercise does not require any kind of legislative pre-authorization or renewal, and they cannot be extended by the executive.

29.  Parliament was engaged in the regular scrutiny of the exercise of executive powers in respect of the Covid-19 crisis. As mentioned above, all required extensions of states of alarm were approved by the Congress of Deputies. Likewise, Congress confirmed all but one of the 49 Covid-19-related royal decree-laws adopted by Government up to the date of 31 December 2022. In accordance with the legal framework outlined, no other regulations were subject to formal parliamentary approval before or after taking effect, although regulations and all other governmental measures were subject to parliamentary scrutiny as explained below.

30.  As will be explained in Part III.B below, all measures of the Government have been subject to parliamentary scrutiny during the Covid-19 crisis.⁷⁴ Such scrutiny took place chiefly through questions to and interpellations of Government members in plenary sessions in Congress and Senate. There was also control through parliamentary committees in place in each Chamber of Parliament for each government department, which held hearings with the participation of the corresponding Ministers (most prominently the Minister of Health) and reported to the plenary regularly. Moreover, a special Parliamentary Committee for the Social and Economic Reconstruction was created in the Congress of Deputies on 7 May 2020 in order to assess the consequences of the crisis and to try to reach a consensus on the legislative and governmental action necessary to overcome it.⁷⁵ The Final Report of the Committee was approved by the Plenary of Congress on 29 July 2020, thereby expressing its political commitment to undertaking a series of strategic actions in the following months and years in the areas of health preparedness and resilience, and of economic investment and recovery.⁷⁶

31.  Both Chambers of Parliament are entitled to pass resolutions expressing their position in respect of governmental actions.⁷⁷ Moreover, the Congress of Deputies may challenge Government policy and thereby withdraw parliamentary confidence from it by passing a motion of censure (moción de censura) by an absolute majority of its members, which involves a significant political control whenever there is a minority Government.⁷⁸ On 22 October 2020, a motion of censure was voted in Congress on the initiative of the right-wing party Vox, but it was defeated by a vote of 52 to 298.⁷⁹

32.  Ordinary periods of sessions of the Parliament are held between February and June and between September and December. Extraordinary plenary sessions can be called in January, July, and August. This calendar was not significantly modified during the pandemic; overall, both Chambers of Parliament were able to meet and to perform their functions,⁸⁰ but during the first months of the crisis their work did suffer certain serious disruptions. Neither the Constitution nor the Rules of Procedure of Congress of Deputies and of the Senate provided for adapting the functioning of Parliament in response to either a pandemic or a state of alarm. At the beginning of the pandemic, there were certain alterations to the normal operation of the Chambers, but they were decided by their respective Bureaus (Mesas de las Cámaras) following the adoption of ad-hoc cross-party agreements by each Chamber’s Board of Spokespersons (Junta de Portavoces).⁸¹

33.  On 12 March 2020, as the first cases of contagion among MPs were confirmed, the Bureaus of Congress and Senate decided to suspend the sessions of all parliamentary bodies for a period of 15 days, except for a scheduled appearance of the Minister of Health before the Congress’ Committee for Health and for plenary sessions devoted to validation of royal decree-laws and extensions of the state of alarm.⁸² On 19 March 2020, the Bureau of Congress also suspended all deadlines for parliamentary initiatives as of the date of declaration of the first nationwide state of alarm (14 March), but without setting an ending date to this measure nor linking its finalization to the finalization of the state of alarm.⁸³ This suspension of deadlines was lifted from 13 April 2020 in Congress,⁸⁴ and from 15 April 2020 in Senate. This moment marked the resumption of the ordinary function of control of both Chambers over governmental action through questions, interpellations, and appearances of Government members before the plenary and before parliamentary committees. It must be noted that, although other parliamentary functions were not carried out between 14 March and 13 April 2020, the Minister of Health appeared before parliamentary committees throughout the period of disruption, and that parliamentary hearings put on hold at the beginning of the pandemic were subsequently scheduled and conducted. Both Chambers also set out internal rules to enable the remote working of their administrative staff and the processing of parliamentary initiatives by electronic means. In October 2021, the SCC ruled that the suspension of parliamentary deadlines in Congress between 14 March and 13 April prevented it from fully exercising its function of control over Government and therefore amounted to an unconstitutional suspension of the Deputies’ fundamental right to political participation under Article 23(1) of the Constitution.⁸⁵

34.  After the initial period of disruption, parliamentary committees began to meet and to conduct their business without significant alterations. Upon resumption, temporary arrangements were implemented for hybrid proceedings by the Bureaus of the Chambers, which entailed a flexible interpretation of the Rules of Procedure of Congress of Deputies and Senate in order to allow MPs to vote by telematic procedure at their request. Plenary sessions continued to be in-person, but with the attendance of a reduced number of MPs (of up to 50% of the size of their respective political groups) agreed between the political parties. The passage of legislation was not suspended despite constraints on the number of persons permitted to attend plenary sessions in person. The conduct of plenary sessions by fully remote means was rejected by the Bureaus of Congress and Senate. This was based on Article 79(1) of the Constitution, which requires that the Chambers must meet with a majority of their members present in order to adopt decisions. The SCC has stressed that this provision, which is also enshrined in the Rules of Procedure of both Chambers, requires as a general rule that MPs attend in person.⁸⁶ In spite of this, several proposals for the amendment of the Rules of Procedure of Congress and of the Senate were submitted, calling for the possibility of online functioning of the Chambers in extremely exceptional circumstances. Most of these proposals were either withdrawn by their authors or rejected by the plenary, while the rest of them lapsed without having being discussed in the respective Chamber.

35.  There were complaints by opposition parties regarding the allegedly disproportionate political constraints imposed on parliamentary scrutiny during the first months of the pandemic due to the refusal by the Bureaus of both Chambers to allow for fully telematic plenary sessions under the current legal framework. With the exception of the proposals for the amendment of procedural rules of the Congress of Deputies and of the Senate referred to above—which called for a flexible interpretation of the SCC’s case law insofar as this was issued in view of completely different circumstances—most of these complaints were made through political statements and mentioned no legal grounds on which full telematic functioning of the Parliament could be based. ⁸⁷

36.  Article 116 of the Spanish Constitution prohibits the declaration of a state of alarm from interrupting the functioning of any constitutional State authorities. Both the SCC and the Spanish judiciary (which is organized into four branches, namely civil, criminal, contentious-administrative, and social courts) continued their operations throughout the pandemic, although with certain disruptions during the first weeks. On 14 March 2020, Royal Decree 463/2020, which declared the first nationwide state of alarm, suspended all limitation periods provided for in procedural laws for all jurisdictional branches.⁸⁸ On the same day, the General Council of the Judiciary (Consejo General del Poder Judicial) suspended all scheduled legal proceedings and all procedural deadlines. However, this did not interrupt the delivery of judicial decisions on ongoing cases. The suspension of procedural deadlines and proceedings, which lasted until 4 May 2020, did not apply to certain proceedings, including habeas corpus proceedings, proceedings with detainees, protection orders, urgent prison surveillance proceedings, interim measures proceedings regarding violence against women or minors, proceedings for the authorization of administrative measures restricting fundamental rights, collective conflict proceedings in the area of labour law, or procedures for the protection of human rights, among others.⁸⁹ There is some discussion as to whether this disruption breached Article 116 of the Constitution.⁹⁰ The suspension of time limits and procedures provoked a significant slowdown in the functioning of justice and led to the adoption of several organizational and procedural amendments through Royal Decree-law 16/2020 of 28 April,⁹¹ later refined and replaced by Law 3/200 of 18 September, which introduced several temporary measures applicable until 20 June 2021 in respect of the functioning and use of technological tools in courts.⁹² This also included the creation of new judicial units for the processing of coronavirus-related cases and the suspension of the judicial recess in August 2020. These norms aimed at speeding-up the processing of cases that accumulated during the state of alarm and improving the efficiency of the judiciary ahead of the envisaged increase in litigation resulting from Covid-19 restrictive measures.

37.  Royal Decree-law 16/2020 of 28 April and Law 3/2020 of 18 September introduced a preference for telematic means in almost all judicial proceedings (including electronic submission of documents, electronic communications and notifications, and remote celebration of hearings), except for some criminal proceedings—namely in cases of serious crime, requests for provisional detention, or when a prison sentence of more than two years is requested. In these situations, the physical presence of the accused person was necessary.⁹³ Likewise, they established that all judicial rulings and notifications should be published electronically in the Single Judicial Edictal Board, managed by the Spanish Official Journal. On 27 May 2020, the General Council of the Judiciary published a Guide for the conduct of telematic court proceedings,⁹⁴ and on 19 June 2020 a similar Guide was issued by the Minister of Justice.⁹⁵

38.  To date, there is neither official assessment nor comprehensive research on whether and to what extent the introduction of remote proceedings was creating a digital divide between users who had digital skills and access to technology and those who did not.

39.  Taking legal action was not considered a risk to public health and, therefore, no barriers were created to access to justice. However, courts adapted their processes in response to the pandemic. In the interests of legal certainty, Royal Decree-law 16/2020 of 28 April laid down general rules for the calculation of time limits suspended under the state of alarm.⁹⁶ It opted for the resumption of their calculation and thus not taking into account the time which had elapsed before 14 March 2020. Likewise, it extended the deadlines for lodging appeals against judgments and other resolutions issued and notified during the suspension of deadlines and within 20 working days following the lifting of the suspension. Courtroom practice was also modified to accommodate Covid-19 disruption. Royal Decree-law 16/2020 of 28 April and Law 3/2020 of 18 September prohibited attendance of oral proceedings by members of the public until 20 June 2021, and they further introduced measures to ensure the safety of all those working in and attending courts.⁹⁷ Furthermore, during the pandemic the General Council of the Judiciary adopted several practice directions applicable in court proceedings to avoid contagion and safeguard the normal functioning of the justice system.⁹⁸

40.  The review of both the declaration of a state of alarm and of royal decree-laws is exercised by the SCC (not by the judiciary), which usually takes a deferential approach to the Government’s assessment (see Parts II.A and II.C above). This is so for royal decree-laws, while no established practice existed regarding states of alarm, in respect of which the SCC had ruled on the merits just once up to 2021.⁹⁹ In turn, the judiciary reviews any other executive action, including extraordinary health measures adopted on the basis of health legislation. Courts also have to authorize these health measures ex ante whenever they restrict fundamental rights (see Part II.B above). Ordinary (contentious-administrative) courts ordinarily conduct a much stricter control than the SCC. Review procedures before the SCC and before ordinary courts are contingent upon cases being initiated by parties—or, in the case of ex ante authorization of public health measures, upon request of the administrative authority intending to adopt such measures. Over the course of the pandemic, the SCC declared unconstitutional certain parts of the decree-laws declaring the two nationwide states of alarm, as explained in Part II.A above.¹⁰⁰ It further found unconstitutional certain parts of two royal decree-laws adopted in response to the pandemic, on the grounds that they touched upon issues which cannot be regulated through this kind of instrument according to Article 86 of the Constitution.¹⁰¹ As of 31 December 2022, one constitutional appeal was pending before the SCC in respect of another Covid-19 royal decree-law.¹⁰² Regulations and single-case administrative measures have been reviewed by the courts in a higher number of cases, some of which are detailed in Part IV below.

41.  There were six autonomic elections between March 2020 and December 2022. The pandemic provoked the postponement of the autonomic elections in Galicia and the Basque Country which had been initially scheduled for 5 April 2020 but took place on 12 July 2020.¹⁰³ By contrast, the autonomic elections of Cataluña, scheduled for 14 February 2021 (amidst the third wave of the pandemic) were not postponed. In January 2021 the President of the AC of Catalonia adopted a decree postponing the elections to 30 May 2021,¹⁰⁴ but the High Court of Justice of Catalonia annulled that decision on the grounds that, unlike the 2020 autonomic elections, the Catalan election was not affected by an unforeseeable circumstance or by a general lockdown.¹⁰⁵ In Madrid, the Autonomic President Ms Isabel Díaz Ayuso called early elections as a result of the break-up of her coalition with the political party ‘Ciudadanos’, which had been openly critical of the regional government's decision to prioritise the continuity of economic activity over the imposition of health restrictions, and which was planning to lodge a motion of censure against her.¹⁰⁶ The elections were held on 4 May 2021. In all of these autonomic elections, in-person voting at polling booths was permitted. The independent Spanish Electoral Commission (Junta Electoral Central) decided to extend the deadlines that ordinarily applied to postal voting.¹⁰⁷ In addition to these procedural adaptations, all of these elections were subjected to additional protective measures implemented by the health authorities of the respective ACs.¹⁰⁸ Infected persons and/or individuals in quarantine were reportedly prevented from in-person voting in Galicia and the Basque Country.¹⁰⁹ The autonomic elections in Castile and León (13 February 2022) and in Andalucía (19 June 2022) were neither postponed nor subject to relevant procedural adaptations due to the pandemic.

42.  Election turnout increased in Galicia and Madrid and decreased in the Basque Country compared to the previous autonomic elections in these ACs.¹¹⁰ In Galicia and the Basque Country, the turnout decreased in municipalities that experienced positive cases of Covid-19, but there is no evidence of change in the vote shares of the incumbent parties at the regional level.¹¹¹ In Catalonia, the Socialist Party put forward the hitherto Spanish Minister of Health, Mr Salvador Illa (replaced for this reason by a new Minister of Health, Ms Carolina Darias) as its main candidate in the Catalan elections. Mr Illa received the most votes of any candidate in the elections, although he did not achieve a sufficient majority to form a government. The press reported that the improvement in the Socialist Party’s election result by comparison with previous Catalan elections was connected to the candidate’s performance during his time as Minister, although no supporting research has been conducted in this regard.¹¹² In Madrid, President Díaz Ayuso from the conservative party ‘Partido Popular’ obtained an overwhelming majority of votes—her electoral campaign (under the motto ‘Communism or Freedom’) having been based predominantly on the opposition to the protective policy deployed by the left-wing Spanish Government against Covid-19. Both in Castilla-León and in Andalucía, right-wing parties—which were already in control of the respective regional government—increased their vote shares, but there is no evidence on whether and how this was connected to the Covid-19 crisis.

43.  Spanish law does not specifically require that scientific advice must be followed in health legislation or rule making. However, several provisions of the General Public Health Act mention that public health policy must be shaped in conformity with scientific criteria.¹¹³ Article 11 of Law 33/2011 provides that if committees or public bodies assessing actions or making recommendations concerning public health are created, both their composition and their relevant opinions and documents must be made public. Moreover, this provision requires that such committees should be transparent and impartial.

44.  There was a strong discussion at the national level concerning the alleged lack of transparency regarding the composition and operation of committees of experts advising the Government in the management of the crisis. On 21 March 2020, the Spanish Government announced the creation of a Covid-19 Scientific Committee led by the Director of the National Centre for Coordination of Health Emergencies, which would advise the Government in the management of the crisis.¹¹⁴ On 28 April 2020, as the epidemiological situation improved, the Government approved a National Plan for the Transition to a New Normal (Plan de Transición hacia una Nueva Normalidad), also known as the ‘De-escalation Plan’, mentioning that it had been drafted with the assistance of a ‘working group of experts’.¹¹⁵ From that moment onwards, a high degree of public confusion emerged as to how many committees were created and who sat on them as members. Opposition parties demanded that the membership should be identified and their preparatory reports must be published.¹¹⁶ The Spanish Ministry of Health refused to publish this information to ‘avoid pressure from society’.¹¹⁷ In late July 2020, the press reported that the Ministry of Health explained to the Spanish Transparency Council that ‘no formal group of experts’ assisted the Government in drafting the Plan for the Transition to the New Normal, but that the executive had merely consulted its own staff and in particular the National Centre for Coordination of Health Emergencies.¹¹⁸ On 30 November 2020, the Spanish Transparency Council ordered the Spanish Government to make public the identity of the concerned experts,¹¹⁹ and in subsequent resolutions it further ordered to make public the identity of other Covid-19-related groups of experts, as well as the content of their technical preparatory reports.¹²⁰ It has been pointed out that, overall, these facts point to an low level of institutionalization and transparency of scientific advice over the pandemic.¹²¹

45.  The Spanish scientific community has pointed to a low level of reliance on scientific advice as one of the reasons explaining the severe impact of the pandemic in Spain and has repeatedly urged the Spanish Government as well as regional governments to independently evaluate their Covid-19 response.¹²² In September 2021, the Spanish Ministry of Health and the ACs created a joint Experts Committee to evaluate the management of the health crisis in Spain.¹²³ By the end of 2022 the Committee had not yet produced any reports and and there was no estimate of when this would happen.

46.  Under Article 20(1) of the Spanish Constitution the right to freely communicate and receive accurate information is a fundamental right. There is some controversy as to whether this right was restricted disproportionately during the first nationwide state of alarm (March to June 2020) in respect of the press conferences of the Spanish Government.¹²⁴ Over this period, such press conferences were held with the remote attendance of journalists using online platforms, but questions had to be submitted in advance and were reportedly filtered by the Government.¹²⁵ On 6 April 2020, around 550 journalists from different Spanish media signed a protest letter entitled ‘The freedom to ask’, denouncing the policy and claiming that it had unjustifiably and disproportionately restricted the freedom of the press.¹²⁶ A new system was then introduced which allowed questions to be put to members of Government in live communication and without intermediaries. When the epidemiological situation improved, physical attendance by a limited number of journalists of these press conferences was allowed from 28 May 2020.¹²⁷ On 3 April 2020, the opposition party ‘Partido Popular’ launched an initiative in Congress to pass a resolution urging the Government to ensure that all media can put questions directly to members of Government during press conferences.¹²⁸ On 7 July 2020, the same party launched another initiative in Congress to pass a resolution calling on the Government to commission an independent report on potential restrictions imposed on press freedom through the system of press conferences implemented during the first weeks of the state of alarm.¹²⁹ Both initiatives lapsed without having being discussed in Congress.

47.  The general framework on transparency and access to public information is contained in the so-called Transparency Act, which is primarily enforced by the Spanish Transparency Council (Consejo de Transparencia y Buen Gobierno).¹³⁰ Even though it was neither suspended nor modified, compliance of public authorities with this framework was obstructed by disruptions arising during the pandemic. In particular, publication of information on the Spanish Transparency Website¹³¹ was considerably delayed and requests for public information were temporarily put on hold due to the suspension of administrative deadlines imposed by Royal Decree 463/2020 declaring the first nationwide state of alarm.¹³² On 27 April 2020, several Spanish associations promoting transparency issued a statement calling on the Government to safeguard the right of access to information amidst the suspension of administrative deadlines.¹³³ After expiration of the first state of alarm on 21 June 2020, the Transparency Council resumed processing requests for public information and returned to normal functioning, although reply to citizens’ requests was carried out preferably by telematic and telephone means. As of 31 December 2022, no appointment is required for in-person service, although it was necessary over the first months of the pandemic.

48.  The Spanish Ombudsman (Defensor del Pueblo) investigates and reports on maladministration in national, regional, and local government. There are regional Ombudsmen in some ACs with similar functions in respect of regional governments,¹³⁴ though there is no regional Ombudsman in Madrid, and in Castilla-La Mancha it existed between 2001 and 2011, when it was abolished because of the 2008 financial crisis.¹³⁵ The Spanish Ombudsman did not undertake any general investigations of pandemic-related policy, although executive actions in this field were included within its remit and gave rise to certain investigations and recommendations. It addressed several recommendations to the Government regarding restrictions of fundamental rights under the state of alarm,¹³⁶ as well as to the State and the ACs in respect of migrants,¹³⁷ facilities for the elderly and hospitals,¹³⁸ vaccination,¹³⁹ and other issues.¹⁴⁰ Some of these recommendations are referred to in Part V below. In September 2020, the Ombudsman dismissed several applications to bring a constitutional appeal before the SCC against Royal Decree 463/2020 of 14 March declaring the first nationwide state of alarm,¹⁴¹ and on 20 January 2021 it also dismissed a set of applications requesting that a constitutional appeal be brought against Royal Decree 926/2020 of 25 October declaring the second nationwide state of alarm.¹⁴² On 26 November 2020, the Spanish Ombudsman appeared before Congress to report on Covid-19-related complaints by citizens and the actions adopted by the institution to address them.¹⁴³ According to its 2020 Annual Report, both the number of citizens’ complaints received over that year (28,020) and applications to bring a constitutional appeal before the SCC (909) increased considerably by comparison to 2019 (20,215 and 135, respectively), and such an increase was directly linked to pandemic containment measures.¹⁴⁴

49.  No special independent reviewer of Covid-19 legislation or policy was appointed. As stated above, general and thematic scrutiny were carried out by standing parliamentary committees in the Congress of Deputies and in the Senate.

50.  Public health measures covered in this Part were enacted by the State and by the ACs. The role of each varied over the pandemic. During the first nationwide state of alarm, most health competences were temporarily assumed by the Spanish Government.¹⁴⁵ Upon termination of this period on 21 June 2020, the ACs played the most prominent role, adopting extraordinary health measures under the health legislation referred to in Part II.B above. Upon declaration of the second nationwide state of alarm, only some health competences were temporarily assumed by the Spanish Government, while the rest of them remained in the hands of ACs, but subject to the specific rules stated in Royal Decree 926/2020 of 25 October 2020.¹⁴⁶ This norm allowed ACs to adopt certain extraordinary health measures beyond the limits established by health legislation—most prominently, without the need for judicial authorization thereof. This ‘decentralised’ setting of the second state of alarm was declared unconstitutional by the SCC in October 2021,¹⁴⁷ as explained in Part II.A above. Following the end of the second nationwide state of alarm on 9 May 2021, the ordinary distribution and legal regime of health competences was restablished (see Parts I and II.A above).

51.  There was substantive variation in the timing and the content of regional measures, especially during the second and subsequent waves of the pandemic (from September 2020). The lack of effective coordination between the State and ACs led to the adoption of Royal Decree-law 21/2020 of 9 June 2020,¹⁴⁸ amending Article 65 of Law 16/2003 of 28 Mayon the Cohesion and Quality of the National Health System.¹⁴⁹ This meant the so-called ‘coordination measures’ could be used in the context of the pandemic. ‘Coordination measures’ are a mechanism of coordination between State and ACs which bind them both when adopting extraordinary measures covered by health legislation described in Part II.B above. They are adopted by the Spanish Minister for Health, but subject to the prior ‘consent’ of the National Health System’s Interterritorial Council, in which all ACs are represented, save for a case of urgency. Once adopted by the Minister, coordinated measures are implemented by ACs through regulatory and single-case measures. However, there was controversy as to whether ‘consent’ means ‘unanimity’ in the Interterritorial Council, with some ACs (those governed by the main opposition party at the national level, and in particular Madrid) refusing to comply with the ‘coordinated measures’ they had voted against.¹⁵⁰ Moreover, the interpretation of the scope of powers available for regional and local authorities under health legislation differed among ACs and also among courts, which led to a serious situation of legal uncertainty.¹⁵¹ These problems were tackled in two ways. Firstly, on 29 March 2021 the Spanish Parliament passed Law 2/2021,¹⁵² which (i) conferred certain explicit coordination powers on the Spanish Government; (ii) imposed on all citizens a general duty of care and protection against Covid-19; and (iii) set a minimum framework of preventive measures for the entire Spanish territory, which were to remain applicable until the Government declared, in a reasoned manner and in accordance with the available scientific evidence, the end of the Covid-19 health crisis (which happened beyond the period covered by this report, namely on 4 July 2023).¹⁵³ The most relevant of these measures will be described in the following paragraphs. Secondly, the new cassation appeal introduced through Royal Decree-law 8/2021 gave the Supreme Court the opportunity to partially unify the case law regarding the scope of powers available for regional and local authorities under health legislation, as will be explained below.¹⁵⁴

52.  Part IV.A below concentrates on the main rules applicable in Spain, which largely correspond to those adopted in Castilla-La Mancha. Each category draws attention to major variations between the measures adopted in these two jurisdictions and Madrid, where appropriate.

53.  An updated list of all public health regulations adopted by the State, as well as by the ACs, was available and updated daily at the website of the Spanish Official Journal over the pandemic.

54.  During the first state of alarm (14 March to 21 June 2020), a general stay-at-home order was imposed by the Spanish Government nationwide through Royal Decree 463/2020.¹⁵⁵ Persons could leave their home only if they had a ‘reasonable excuse’, such as the need to provide care or assistance, to travel for the purposes of work, or to access critical public services.¹⁵⁶ As mentioned in Part II.A above, this general lockdown was declared unconstitutional by the SCC in July 2021, because it was understood as a ‘suspension’ of the fundamental freedoms of movement and residence, a measure that cannot be adopted under a state of alarm.¹⁵⁷ However, the SCC considerably limited the consequences of this declaration of inconstitutionality by establishing that it would affect only administrative or criminal penalties imposed for the breach of the annulled provisions, but that it would not allow for a review of other measures implementing the annulled precepts, nor would it allow for a claim for damages on the part of the administration.This was decided by the SCC in order to safeguard legal certainty and in view of the fact that the declaration of inconstitutionality was not based on substantive grounds, but rather on formal ones—since it considered that the ‘suspension’ of fundamental rights inherent in the lockdown would have required the declaration of a state of exception, which requires ex ante authorization instead of ex post ratification by Congress, not of a state of alarm.¹⁵⁸

55.  As the epidemiological situation improved, this general lockdown was gradually relaxed in three phases of approximately 15 days each—the ‘De-escalation Plan’ referred to in Part III.E above.¹⁵⁹ Outdoor exercise for individuals and members of the same household was permitted from 4 May 2020 onwards. Deconfinement began on 4 May for smaller islands and on 11 May for mainland Spain, according to a flexible schedule adapted to local circumstances.

56.  Upon termination of the general lockdown on 21 June 2020, there was a gradual switch to localized lockdowns and other restrictive measures, which were highly variable. These measures were adopted by regional authorities based on health legislation described in Part II.B above. While some ACs, such as Castilla-La Mancha, enacted a high amount of protective measures of limited scope targeted at localized, nascent outbreaks, others, such as Madrid, were much less active in this regard. Moreover, the substance of these regional lockdowns was variable. In general, they were not ‘stay-at-home’ orders but rather a mixture of restrictions relating to gatherings, household mixing, business closures and limitations on the hours of operation for businesses. Some of these variations are discussed further below.

57.  During the second and subsequent waves of the pandemic, geographically limited lockdowns - preventing citizens from leaving a certain neighbourhood, city, or region - were occasionally imposed by regional authorities under health legislation (Part II.B above). However, in Madrid, which was the AC with the worst epidemiological situation during that period (especially in Autumn 2020), the regional Government explicitly refused to implement this kind of lockdown.¹⁶⁰ On 1 October 2020, the Spanish Minister of Health imposed its adoption for certain areas of Madrid through a ‘coordinated measure’, but judicial authorization of this geographically limited lockdown was denied by the High Court of Justice of Madrid, which considered that it lacked legal basis.¹⁶¹ In response to this, the Spanish Government introduced geographically limited lockdowns for some areas of Madrid through a state of alarm for this region that lasted 15 days despite the strong opposition of the regional Government of Madrid.¹⁶² Soon afterwards, a second nationwide state of alarm was declared by Royal Decree 926/2020 of 25 October.¹⁶³ It did not include a general stay-at-home order, only restrictions to free movement across ACs together with general home confinement at night.¹⁶⁴ Presidents of the ACs were empowered to order geographically limited lockdowns inside the regions without any prior administrative procedure and without judicial authorization.¹⁶⁵ In October 2021, the SCC ruled that these kinds of restrictions were in line with the Constitution, but that the empowerment of the Presidents to the ACs to adapt them to their territories was unconstitutional.¹⁶⁶ This second nationwide state of alarm did not contain any provisions on other forms of ‘lockdowns’, such as stay-at-home orders or home confinements at night, which nevertheless can be imposed by the competent regional authorities based on health legislation. Therefore, following the expiration of the second state of alarm in May 2021, the only restrictions on the mobility of individuals were those imposed exceptionally by the autonomous communities on the basis of health legislation.Within the context of the new ‘Covid-19based’ cassation appeal introduced through Royal Decree-law 8/2021, in May 2021 the Spanish Supreme Court (SSC) confirmed that health legislation is a sufficient legal basis for the adoption of tailored limitations of the freedom of movement understood as restrictions of movement between territories, subject to four cumulative requirements, namely that: (i) there is a serious transmissible disease that endangers the health and life of persons; (ii) the restrictive measure is essential to prevent transmission because there are no other effective means to achieve this goal; (iii) the personal and territorial scope of the restriction is determined on the basis of the number of sick persons and their location; and (iv) the restrictive measure has a clear temporal scope, fixed in view of what is necessary to prevent the spread of the disease.¹⁶⁷ However, the SSC has clarified that these kinds of restrictions are different from curfews and limitations on social gatherings, because the latter restrict ‘not only the freedom of movement’ but go beyond that, ‘affecting also the right to private and family life and the right of assembly’, and therefore they can be imposed only on the requirement that they withstand a particularly demanding proportionality test.¹⁶⁸

58.  Ever since 1 November 2020, the Spanish Government’s official position was that it would not return to another general (home) lockdown arrangement as was imposed in March 2020,¹⁶⁹ although in late 2020 some ACs, such as Castilla y León, advocated for such a measure and tried to advance its adoption in the whole country.¹⁷⁰ The case law of both the SCC and the SSC makes this all the more unlikely in the case of a future outbreak, since it is now clear that a general lockdown is not possible under either public health legislation or a state of alarm, but only under a state or exception or a state of siege.

59.  From 23 March 2020, entry into Spain was banned for third country nationals through several regulations approved by the Spanish Minister of the Interior, with some exceptions, such as for people resident in the EU or in countries within the Schengen area or Andorra and who were in transit to their place of residence, cross-border workers, or personnel engaged in the carriage of goods in the course of their work, including ships’ crew, and flight crew necessary for carrying out commercial air transport activities.¹⁷¹ These restrictions started to be lifted, particularly for EU residents, from 2 July 2020 onwards.¹⁷²

60.  Upon termination of the first nationwide state of alarm, which involved a general restriction on the free movement of persons within the national territory from 14 March to 21 June 2020,¹⁷³ no general restrictions existed on the free movement of persons within the national territory. However, this was subject to targeted exceptions imposed by regional authorities on the basis of health legislation, as previously mentioned (see Parts II.B and IV.A.1 above). By October 2020, additional restrictions to free movement inside Spain were introduced by the state of alarm declared for Madrid, and also by the second nationwide state of alarm declared for the whole country (see Part IV.A.1). Most of these restrictions were lifted on 9 May 2021, as the second nationwide state of alarm expired. The ACs which maintained restrictions of this kind on the basis of health legislation gradually lifted them shortly thereafter, as the vaccination process advanced and the epidemiological situation improved.

61.  Public gatherings were restricted by the general provisions under the successive states of alarm, as well as by the targeted measures adopted by the ACs under health legislation referred to in Part II.B above. The strictest restrictions took place under the first nationwide state of alarm, which implicitly prohibited gatherings of people from different households as a consequence of the general stay-at-home order contained therein. These restrictions were relaxed from 3 May and from 16 May 2020 to permit gatherings of up to 10 and 15 people from different households, respectively.¹⁷⁴ On 9 June, Royal Decree-law 21/2020—which remained in force until 31 March 2021—introduced a generic obligation to ‘avoid any crowding in all types of establishments open to the public’.¹⁷⁵

62.  Upon declaration of the second nationwide state of alarm on 25 October 2020, public and private gatherings were limited to a maximum of six people, unless they belonged to the same household or they were meeting for work or institutional purposes. Regional authorities could impose stricter rules and set the maximum number of people allowed to gather for religious purposes.¹⁷⁶ Upon termination of the second nationwide state of alarm, Law 2/2021 of 29 March, which remained applicable until the Council of Ministers declared the end of the Covid-19 health crisis on 5 July 2023,¹⁷⁷ introduced a generic obligation to avoid any crowding in any type of establishment open to the public. However, in late September 2020 the National Health System’s Interterritorial Council decided to increase the maximum capacity of people in large sports events, to 100 per cent for outdoor events (such as football matches) and to 80 per cent for indoor events (such as basketball matches), facemasks being compulsory in both scenarios and additionally the 1.5 metre interpersonal distance requirement applying to indoor events.¹⁷⁸ Most restrictions on capacity in restaurants, shops, and cultural events were lifted by the ACs in September/October 2021.¹⁷⁹

63.  Upon declaration of the first nationwide state of alarm on 14 March 2020, retail premises and establishments were ordered to close to the public with some exceptions for retail establishments selling food, beverages, basic necessities, pharmaceutical establishments, health facilities, veterinary centres or clinics, opticians and orthopaedic products, hygiene products, press and stationery, motor fuel, tobacco shops, technological and telecommunications equipment, pet food, internet commerce, telephone or mail order business, dry cleaning, laundry, and professional hairdressing at home. Mandatory closure applied also to museums, libraries, monuments, hotels, restaurants, sport and leisure facilities, as well as to parks, including playgrounds for children.¹⁸⁰ The SCC considered these restrictions compatible with the Constitution.¹⁸¹

64.  These restrictions were gradually eased in early May 2020, according to the phases established in the De-escalation Plan (see Part III.E above). On 4 May 2020, some local shops reopened on an appointment basis and restaurants and bars were allowed to reopen exclusively for takeaway meals. On 11 May, shops and food markets reopened with social distancing measures and restrictions on capacity. Restaurants and bars reopened their terraces at 30 per cent capacity, and hotels reopened without communal spaces. Public transport reopened with full service but reduced passenger capacity. In late May 2020, cinemas and theatres were allowed to reopen at 30 per cent capacity, and restaurants and bars could offer table service at 30 per cent capacity. In mid-June that year, large shopping centres also reopened with reduced capacity, and bars and nightclubs reopened at 30 per cent capacity.¹⁸²

65.  From 21 June 2020 onwards, these restrictions were removed and more targeted restrictive measures were imposed where necessary by regional authorities based on health legislation (Part II.B above). Moreover, all establishments open to the public were subject to an obligation to ensure physical distancing of 1.5 metres and prevent crowding (imposed by Royal Decree-law 21/2020 of 9 May, applicable until 31 March 2021,¹⁸³ and afterwards by Law 2/2021 of 29 March, applicable until 5 July 2023).¹⁸⁴ Additionally, under the 15-day state of alarm for Madrid and the second nationwide state of alarm declared on 25 October 2020, public and private premises (including religious premises) were subject to the gathering restrictions described in Part IV.A.3 above. As explained therein, most restrictions on the capacity of premises and facilities open to the public gradually disappeared in Autumn 2021 as the epidemiological situation improved.

66.  Educational centres at all levels, including universities, were temporarily closed by regional authorities following the Spanish Government recommendation of 12 March 2020.¹⁸⁵ On 14 March, closure was imposed on all educational premises by Article 9 Royal Decree 463/2020 declaring the state of alarm, although most of them continued to operate through telematic means.¹⁸⁶ The SCC considered this to be compatible with the Constitution.¹⁸⁷ Gradual reopening was allowed from 9 May 2020,¹⁸⁸ and increased from 5 June 2020.¹⁸⁹ From 9 June 2020 onwards, all educational centres were subject to general obligations regarding disinfection, mandatory physical distancing of 1.5 metres, and crowding prohibitions.¹⁹⁰ This applied until the Council of Ministers officially declared that the health crisis had come to an end on 5 July 2023.¹⁹¹ Full reopening of educational centres occurred from early September 2020, with social distancing rules in place.¹⁹² By the end of that month, all educational centres in Spain remained open and only one per cent of primary school classes throughout the country had been forced to temporarily quarantine due to the infection of some of the students.¹⁹³

67.  Until May 2020 there was no legally mandatory physical distancing requirement between members of the public, only official guidance in this regard. General rules imposing a minimum physical distance of two metres were implemented from 9 May onwards.¹⁹⁴ On 9 June 2020, Royal Decree-law 21/2020 (which remained applicable until 31 March 2020)¹⁹⁵ introduced a generic obligation to maintain a minimum physical distance of 1.5 metres in all types of establishments open to the public, including on public transport. Royal Decree-law 21/2020 did not contain any specific explanation for adopting the 1.5 metre rule instead of the preceding two metre rule, apart from referring in its preamble to the overall goal to ‘foster economic recovery’. This same obligation was later contained in Law 2/201, which reimained applicable until the official declaration of finalization of the health crisis on 5 July 2023.¹⁹⁶

68.  During the first weeks of the pandemic, no legal obligation existed regarding the use of facemasks. On 3 May 2020, face masks were ‘highly recommended’ on public transport and outside of the home.¹⁹⁷ Their use became mandatory for the entire Spanish territory from 21 June 2020 through Royal Decree-law 21/2020, which remained applicable until 31 March 2021.¹⁹⁸ This obligation applied to all persons over six years of age: (i) on streets, in open air spaces, and in any closed space for public use or that is open to the public, provided that it is not possible to maintain a physical safety distance of at least 1.5 metres; and (ii) in means of transport by air, sea, bus, or rail, as well as in complementary public and private transport vehicles of up to nine seats, including the driver, if the occupants of the passenger vehicles do not live in the same household. Until 21 June 2020, the minimum distance was two metres.¹⁹⁹ This obligation did not apply to people with certain respiratory conditions, in a situation of disability or dependence (ie. people who could not lead independent lives for reasons of illness, disability, or age), during the practice of individual sports, or the performance of activities incompatible with the use of the facemask.²⁰⁰ These same rules are were later contained in Law 2/2021, which further added the obligation to wear a facemask ‘at large outdoor events, when a distance of 1.5 metres [could not] be maintained between people, except for groups of cohabiting people’.²⁰¹ The obligation to wear a facemask contained in Article 6 of Law 2/2021 was subject to successive amendments to progressively reduce its intensity and scope of application,²⁰² so that in the last months of the pandemic it was applicable only to those in health and pharmaceutical facilities, or on public transport. It ceased to apply when the Spanish Government officially declared the end of the Covid-19 health crisis on 4 July 2023.²⁰³

69.  During the pandemic, Spanish authorities imposed isolation, testing, and quarantine on individuals and groups under health legislation, specifically under Organic Law 3/1986 of 14 April.²⁰⁴ Most of these measures were adopted by administrative health authorities of the ACs, ie. public health officials, as they had the most competence to enforce public health legislation. The adoption of any such measure needed to be authorized by the contentious administrative courts according to the criteria of necessity and proportionality, although in June 2022 the SCC ruled that requiring such judicial authorization for measures with a general addressee is unconstitutional (see Part II.B above).²⁰⁵ No general rules were passed at the State level on how the concepts of necessity and proportionality needed to be interpreted when adopting these restrictive measures. In some cases, courts refused to authorize them because they lacked legal basis or were found to be disproportionate.²⁰⁶

70.  From March 2020 onwards, non-binding surveillance protocols were approved by the Minister of Health and updated on a constant basis, providing guidance on the steps to be taken by public administrations, undertakings, and individuals in case of infection.²⁰⁷ In general, contacts of infected persons were not actively followed up or tested, but they were instructed to quarantine at home for 14 days, and if they developed symptoms during this period, they were required to self-isolate and contact health authorities. Binding rules for early detection, surveillance, and control were adopted on 25 September 2020 by a decision of the National Health System’s Interterritorial Council, in which all ACs as well as the Spanish Ministry of Health are represented.²⁰⁸ Specifically, these binding rules set out that asymptomatic individuals had to self-isolate for 10 days from the day they were tested, and they would be monitored according to the rules of each region. It was also established that symptomatic individuals who did not require hospitalization had to self-isolate at home for at least 10 days from the beginning of their symptoms, and after the symptoms disappeared for at least three more days. Once the quarantine period was over, infected persons would not need to be tested again in order to get back to normal life, except for health or social care workers. There was no obligation to report contacts, but health authorities could look for them. If identified, they needed to be informed that a person close to them had tested positive. Close contacts of confirmed cases had to be quarantined for 10 days from the date of their last contact with the infected person. If possible, they should have been tested 10 days after the contact, but regions could follow their own guidelines on this matter. In addition to these 10-day quarantine periods, these rules recommended maintaining close observance of potential symptoms for four more days. The combination of these two timeframes amounted to the 14-day standard incubation period for Covid-19. On 22 March 2022, the National Health System’s Interterritorial Council adopted a new strategy focused on vulnerable groups (people over 60 years old, immunocompromised patients, pregnant women, health care workers, and cases of severe infection) while in the general population, mild and asymptomatic confirmed cases, as well as their close contacts, ceased to be isolated.²⁰⁹

71.  Regarding testing, and as explained in Part IV.A.7 above, firstly non-binding and then (from 25 September 2020 onwards) binding protocols existed regarding who should be tested and how. No general obligation to be tested against Covid-19 existed, though such an obligation was imposed for certain individuals (close contacts of infected persons) and groups regarded at high risk of having being infected on a case-by-case basis through administrative measures adopted on the basis of health legislation.²¹⁰ Beyond this, Royal Decree-law 23/2020 of 23 June 2020 enabled the Government to impose a general obligation to be tested on travellers entering Spain by air or sea.²¹¹ These checks could include taking a temperature, a documentary check, and a visual check of the passenger’s condition. Moreover, from 1 July 2020 all passengers arriving in Spain by air or sea were requireed to submit a form declaring their health status before entering the country. This exigence applied until 9 May 2021.²¹² From 9 June 2021, any person aged 12 or more coming from any of the countries or territories considered of a ‘risk’ in accordance with the lists permantly updated by the Spanish Government, who wanted to enter into Spanish territory, had to present either a negative Covid-19 test result or the EU Vaccination Certificate (the so-called ‘EU Green Pass’).²¹³ There were limited exceptions to this requirement for cross-border workers and carriers. Massive testing campaigns, which were voluntary for their addressees, were launched by the different levels of administration since April 2020, and by early May 2020 Spain was ranked 17th among OECD countries for Covid-19 tests carried out.²¹⁴

72.  No rules were passed regarding medical procedures for treatment of Covid-19 patients, and only non-binding recommendations, protocols, and other soft law technical documents were adopted in respect of medical assistance to patients²¹⁵ and of Covid-19 testing procedures.²¹⁶ As noted in Part II.D above, the way in which these soft law instruments were used made it difficult to ascertain which recommendations were in place at any given place and time.

73.  In the area of vaccination, it must be noted that under Spanish legislation vaccines were voluntary for their addressees as a general rule, although in exceptional situations they could be made compulsory for certain persons or groups on the basis of health legislation and subject to prior judicial authorization,²¹⁷ in the terms explained in Part II.B above. This possibility was not used in respect of Covid-19, although in February 2021 the Parliament of the AC of Galicia amended the Health Law of this AC in order to strengthen the administrative penalties applicable to those refusing to comply with a vaccination order whenever such an order is imposed by the regional health authorities.²¹⁸ An unconstitutionality appeal against this regional law was brought before the SCC, which ordered the interim suspension of the challenged provisions,²¹⁹ although the appeal was finally withdrawn by the President of the Spanish Government because the AC of Galicia agreed to amend the contested rule.²²⁰ On 27 August 2020, the Interterritorial Council of the National Health System decided to anticipate the annual influenza vaccination campaign and to prioritise vaccination of groups particularly exposed to Covid-19, such as the elderly or healthcare professionals.²²¹ On 2 December 2020, the Spanish Ministry for Health published on its website a National Vaccination Strategy against Covid-19, including a ‘technical working document’ drafted by a group of experts and updated on a permanent basis ever since, which set priority groups for the administration of Covid-19 vaccines.²²² The legal nature of this document is doubtful. Some authors argue that, insofar as it was not subject to official publication in the official journal, it lacks normative nature and binding effects, and it is not amenable to challenge before courts.²²³ An opposing interpretation is that the Strategy has the legal nature of a ‘coordination measure’ of the Interterritorial Council of the National Health System (see Part IV above) and is therefore binding for the ACs and open to challenge before courts.²²⁴ On the basis of this Strategy, each AC adopted its own vaccination protocol through heterogeneous instruments (either binding legal norms or internal directions).²²⁵ Vaccine purchase was centralized at the national level and Spain joined the European Commission’s centralised purchase agreement with the relevant pharmaceutical companies. By 31 December 2022, a total share of 85.62 per cent of the whole population was fully vaccinated against Covid-19,²²⁶ ranking fourth globally and first at the European level.²²⁷ By 1 December 2021, up to eight ACs (Aragón, Murcia, Comunidad Valenciana, Navarra, Baleares, Galicia, País Vasco, and Cataluña) had put in place rules requesting possession of a valid Covid-19 vaccination certificate for accessing premises open to the public, such as restaurants, shops, or leisure centres. These measures were adopted on the basis of health legislation and therefore needed to be confirmed by the contentious-administrative courts,²²⁸ although such judicial ratification ceased to be required for measures with a general addressee (such as regulations on vaccination certificates) from June 2022 onwards as a consequence of the SCC’s case law, as explained in Part II.B above.²²⁹

74.  From 14 March 2020 onwards, contact tracing procedures were established through non-binding protocols approved by the Minister of Health and updated on a constant basis.²³⁰ On 27 March 2020, binding rules were passed through an Order of the Minister of Health regarding the utilization of anonymized and aggregated data derived from mobile operators for analyzing the population movements prior and during the lockdown, with a view to identifying hotspots and improving the management and coordination of health care resources.²³¹ From 9 June 2020 onwards, the surveillance protocols agreed in the National Health System’s Interterritorial Council were made mandatory all over the country.²³² These protocols are further explored in Part IV.A.7 above. On 11 May 2020, an Order of the Minister of Health imposed on all public and private health centres and health workers an obligation to report all confirmed and suspected cases of Covid-19 to the Ministry of Health.²³³ Later on, Royal Decree-law 21/2020 of 9 June imposed on all establishments, means of transport, or any other public or private entities in which health authorities identified the need for contact tracing, the obligation to provide health authorities with information concerning the identification and contact details of persons potentially infected by Covid-19.²³⁴ This obligation, which was later contained in Law 2/2021,²³⁵ applied until early July 2023, when the Spanish Government officially declared that the Covid-19 health crisis was over.²³⁶

75.  On 27 March 2020, the Secretary of Digitalization and Artificial Intelligence, a body of the Ministry of Economic Affairs, was ordered to develop a contact-tracing app to support the management of the pandemic.²³⁷ This app, called ‘Radar Covid’, enabled citizens to self-assess their health status, receive advice and recommendations, and trace their contacts through a system of anonymous identifiers. Download and use of the app was voluntary, but strongly recommended, as explained in its official website.²³⁸ Users who tested positive for Covid-19 could decide whether they consented to the regional health system notifying all their contacts—that is, those picked up by the app by virtue of spending at least 15 minutes within two metres of the infected person. The contact would receive a warning on their mobile phone about a potential infection and how to proceed. No user could be identified or located as the data were not registered anywhere. The app was available from 7 April 2020 to 9 October 2022 and covered the population living in those ACs that had not developed their own information and monitoring applications, such as Castilla-La Mancha.²³⁹ Contact-tracing procedures were updated at a regional level to guide decisions about those contacts identified by the app.

76.  On 27 August 2020, the Ministry of Defence made available to ACs up to 2,000 Armed Forces personnel to reinforce their contact tracing capabilities. These soldiers received special training in carrying out effective contact tracing, obtaining information to discriminate potential contacts of risk, calculating the quarantine time depending on the epidemiological survey, and providing support to traced individuals.²⁴⁰ On 1 October 2020, the Ministry of Defence announced that many ACs, including Madrid, had resorted to the Armed Forces personnel offered by the Spanish Government to reinforce their contact tracing capabilities.²⁴¹

77.  In Spain, residential centres for the elderly are under the responsibility of the ACs in accordance with their Statutes of Autonomy. They can provide their services either for free or upon payment from the users whenever they are indirectly managed by private companies by virtue of a public contract agreed with the AC. These centres were hit particularly hard by the virus, most prominently in 2020 and in the region of Madrid. There is no complete official data available on the number of deaths in these centres. In a report issued in late August 2020, the international non-governmental organization, ‘Doctors Without Borders’, estimated that the elderly who had died in these centres (27,359 persons between 6 April and 20 June 2020, according to an unpublished document of the Ministry of Health of 7 July 2020, which reportedly states that the available data was incomplete at that time)²⁴² represent 69 per cent of the total Covid-19 victims nationwide by that date.²⁴³ From 2 December 2020 onwards, a Weekly Report on the number of contagions and deaths in centres for the elderly was published by the Spanish Ministry of Social Rights.

78.  Several measures were adopted to try to address this situation. On 19 March 2020, the Governments of the ACs were empowered to intervene in the management of all public or private residential centres for the elderly and other care homes, and to adopt all necessary measures for the provision of medical, nursing, and other health services in these centres.²⁴⁴ On 16 April 2020, an Order of the Minister of Health was adopted requiring all ACs to submit a form reporting the number of deaths that took place in residential centres for the elderly and other care homes.²⁴⁵ On 23 April 2020, the Spanish Ombudsman issued recommendations to all ACs on actions to improve the provision of care to persons in residences for the elderly.²⁴⁶ Measures adopted by the ACs to address the worrying situation in these centres varied in severity and scope.²⁴⁷ In Madrid, ordinary (administrative) courts granted interim measures in support of the residential homes for the elderly ordering the regional Government to immediately provide them with the necessary health personnel, as well as with the necessary means to develop diagnostic tests and to comply with the measures adopted by the Minister of Health.²⁴⁸ In June 2020, the press reported that officials from the regional Government of Madrid had issued internal protocols setting out criteria to exclude some residents of these centres from being transferred to hospitals at the peak of the pandemic.²⁴⁹ Several criminal investigations were opened on Covid-19-related deaths in residential centres for the elderly; most of them were discontinued, some were dismissed,²⁵⁰ and others are ongoing.²⁵¹ By 31 December 2022, several appeals for individual protection of fundamental rights had been lodged before the SCC by relatives of victims against judicial decisions to discontinue criminal proceedings against the residences of the AC of Madrid.²⁵²

79.  The authorities responsible for the enforcement of public health measures are primarily the State Security Forces and Corps (National Police and Civil Guard), as well as the Police of the ACs and of local entities. During the first nationwide state of alarm, Royal Decree 463/2020 placed them all under the direct orders of the Spanish Minister of the Interior ‘insofar as this is necessary for the protection of persons, goods and places’.²⁵³ The Spanish Government was also allowed to request the action of the Armed Forces, if necessary.²⁵⁴ All these agents of the authority were authorized to carry out checks on persons, goods, vehicles, premises, and establishments which were necessary to verify compliance with the general lockdown and other restrictive measures imposed under the state of alarm.²⁵⁵ A regulation setting out standards for police and security forces in the enforcement of the state of alarm was adopted by the Minister of the Interior on 15 March 2020.²⁵⁶ It is uncertain to what extent beyond its contribution to reinforce contact-tracing of the ACs (see Part IV.A.9 above) the military played a role in enforcing public health regulations. Upon termination of the first nationwide state of alarm on 21 June 2020, Security Forces and Corps remain competent to enforce public health regulations, but they respond to the body of the Spanish government from which they ordinarily depend—ie. the Delegated of the Spanish Government in each AC (Delegados del Gobierno) and no longer to the Minister of the Interior.

80.  Implementation of health regulations through administrative penalties was accomplished mainly by the national government under the first nationwide state of alarm, and mainly by the governments of the ACs from 21 June 2020 onwards. There was some confusion as to which level of Spanish administration was competent to impose administrative penalties under the first nationwide state of alarm, which prompted the publication of a legal opinion by the State General Legal Counsel (Abogacía General del Estado) which stated that enforcement through administrative penalties corresponded to those administrative authorities which have competence over the subject-matter to which the infringement referred—meaning that for offences related to public health the competence to impose administrative penalties rested with the ACs as a general rule.²⁵⁷ No clarification on this issue was provided through binding rules. In addition, the health measures were enforced through penalties imposed by criminal courts, although no official statistics exist in this regard. ²⁵⁸

81.  No specific legal framework existed for administrative and criminal penalties arising from non-compliance with Covid-19 health measures, with only minor exceptions explained in the table below. Under the states of alarm declared in Spain, applicable sanctions were expressly referred to the ordinary legal framework in place (see for example Article 20 of Royal Decree 463/2020), which however did not contain specific provisions applicable to situations of health emergency.²⁵⁹ This led the Spanish Minister of the Interior to issue directions to Security Forces and Corps on how to apply these rules to breaches of the health measures imposed under the state of alarm.²⁶⁰ There was a heated debate on whether using these general provisions (complemented by directions) to enforce the Covid-19 health regulations was consistent with legal certainty, legality, and other principles governing administrative and criminal sanctions under Article 25 of the Constitution.²⁶¹ This general framework, which applies also in the absence of a declaration of a state of alarm, is presented in Table 1 below.

82.  Table 1. Legal framework of sanctions applicable to infringements of Covid-19 health regulations in Spain

83.  As a reaction to this situation, over the pandemic most ACs passed specific rules typifying specific administrative infractions and penalties applicable to those breaching certain Covid-19 health measures. In Castilla-La Mancha, a coronavirus-tailored legal framework was introduced through Law 8/2020 of 16 October (see Table 2 below),²⁶² concerning very specific infringements of obligations related to the establishment of a strategic stockpile of health products. No rules of this kind were approved by the region of Madrid.

84.  There are no comprehensive statistics on sanctions imposed for violations of public health regulations. According to the press, more than 9,000 persons were detained and 1.2 million penalties were imposed in Spain for breaches of public health measures under the first nationwide state of alarm.²⁶³ There is no official data on the number of prosecutions under the general provisions contained in Tables 1 and 2 above.

85.  No comprehensive data is available regarding general compliance with the public health measures reported in Part IV.A above, although opinion surveys conducted by the Spanish Centre for Sociological Research (Centro de Investigaciones Sociológicas) might be useful in this regard. According to the October 2020 Barometer, more than 62 per cent of the population considered that more restrictive control and isolation measures should be adopted by the Government in view of the epidemiological situation; 27 per cent were staying at home on a voluntary basis, even when no home lockdown existed; almost 50 per cent found that Spaniards complied with health measures in a civic and solidary way; and almost 44 per cent of the population stated that they would not be willing to be vaccinated against Covid-19.²⁶⁴ One year later, the October 2021 Barometer showed that 45 per cent of the population were primarily concerned about the effects of the crisis on the economy and employment, while only 29 per cent were worried about its effects on health; almost 67 per cent thought that the level of restrictions was reasonable; more than 80 per cent considered that the worst part of the crisis was already over; more than 82 per cent of the people who contacted the health services due to Covid-19 symptons had been tested; and out of the 5 per cent of the people who had not been vaccinated, almost 30 per cent stated that they would be willing to receive the vaccine.²⁶⁵

86.  Labour law and social security fall within the competence of the central government,²⁶⁶ whilst the Autonomous Communities (ACs) enforce labour law and social security norms.²⁶⁷ In the measures described in this part of the Report, the focus is on State (national) level legislation. Nevertheless, some information is added on the regional measures and initiatives, as well as on the enforcing role of the ACs, where relevant.

87.  The pandemic-related economic crisis that hit Spain from March 2020 onwards necessitated the adoption of extraordinary measures that can be defined as ‘social’. These measures aimed at protecting the citizens, particularly the most vulnerable ones, from the negative economic and social consequences of the pandemic and the restrictions in the economic activity and other aspects of the ‘normal’ social life associated with it. Many were originally temporary, linked to the first nationwide state of alarm (March–June 2020) (see further Part II.A above).²⁶⁸ Later on, most of these measures were extended until different dates in 2022.²⁶⁹

88.  Most of these social measures focused on the protection of workers. Target groups were workers affected by the suspension of their employment, workers whose mobility had been restricted, workers who needed to take care of relatives affected by an illness and persons that, being unemployed, lacked access to the protection granted by the existing labour law mechanisms, or had exhausted their unemployment benefits during the pandemic. Aid packages were also extended to the self-employed, either in the form of an extension of existing benefits or through the creation of new ones specifically for them. Being fundamentally based on labour law and Social Security, most of them were adopted in the form of royal decree-laws and at the State level.

89.  Measures seeking to protect particularly vulnerable citizens regardless of their employment status were adopted.²⁷⁰ In this sense, the legislator developed the legal concept of ‘economic vulnerability’, which refers to different groups of persons in different norms. Persons fitting in this category according to the criteria established in the different norms benefitted from special protections in areas such as housing, basic supplies, and minimum income, as will be indicated below.

90.  In late March 2020, the Spanish Government introduced an extraordinary subsidy for domestic workers as well as an extraordinary subsidy for temporary workers not covered by the mechanism of suspension of contracts in the context of the pandemic (see ERTEs in Part V.B.1 below). The aim was to offer some protection to these groups, which were not covered by other measures.²⁷¹ These subsidies, approved by the Spanish Government through royal decree-law and subsequently ratified by the Congress (see Part II.C above) were designed to be in force until 21 June 2020, one month after the end of the first state of alarm.²⁷² In particular, the extraordinary subsidy for domestic workers was a new programme of great importance for this group, since in Spain they do not have access to unemployment benefits under regular labour laws.

91.  In late March 2020, a minimum income for vulnerable people (ingreso mínimo vital) was introduced by means of Royal Decree-law 20/2020 of 29 May,²⁷³ which guaranteed an income of at least 462 EUR (506.17 USD) per month for an adult living alone, increased by 139 EUR (152.29 USD) per each member of the household up to a maximum of 1015 EUR per month (1112.03 USD). This type of benefit did not exist before at national level, although several similar subsidies and aid packages existed in most ACs. In Castilla-La Mancha, already in 1995, Law 5/1995 of 23 March²⁷⁴ (later derogated by Law 14/2010 on social services)²⁷⁵ introduced a benefit, named ‘minimum solidary income’ (ingreso mínimo de solidaridad) for persons in a situation of need. In the AC of Madrid, the regional parliament had introduced a minimum income for integration (renta mínima de inserción) by late 2001.²⁷⁶ In 2021, the nationwide minimum income was awarded permanent character (ie not linked to the Covid-19 emergency) through Law 19/2021.²⁷⁷

92.  In late March 2020, Royal Decree-law 11/2020 introduced different concepts of ‘economically vulnerable’ groups by establishing a series of criteria to define the personal scope of different measures with social contents.²⁷⁸ Persons falling within these categories were awarded especial protection in areas such as housing, basic supplies (social prices in electricity, guarantees in the supply of energy, gas, electricity, etc), and moratoriums on mortgages and non-mortgage credit financing. Most of these measures were set to be in force until mid- or late 2022, as established in Royal Decree-law 2/2022.²⁷⁹

93.  In relation to housing policies, Article 5 of Royal Decree-law 11/2020 established the criteria to be considered ‘economically vulnerable’ to the effects of suspension of evictions when no alternative accommodation is available, extension of rental contracts, and deferral or partial cancellation of the rent when the lessee is a public entity or a big proprietor (gran tenedor), ie a natural or legal person who owns more than ten urban properties, excluding garages and storerooms, or a built-up area of more than 1,500sqm. In this context, the ‘economically vulnerable’ are persons in any of the following situations: unemployment, suspension of employment contract (ERTEs, see Part V.B.1 below), and reduced working time for care purposes or similar circumstances. In the latter case (reduced working time), this situation must lead to a loss of income resulting in an income inferior to the public indicator of income for multiple purposes (Indicador Público de Renta de Efectos Múltiples, IPREM) in the month before the eviction. The income threshold is modified in attention to the number of dependent children, the presence of disabled children, etc. In addition, a program of subsidies to support payment of the rent was also established (of up to 900 EUR per month (986.04 USD) and 100% of the rent for a maximum period of six months).

94.  On 4 May 2021, the Spanish Government decided to extend until 9 August 2021 some of the measures that would otherwise expire with the finalization of the second nationwide state of alarm on 9 May 2021.²⁸⁰ These extended measures included the extraordinary regime on rents and evictions described above. Later on, most of these measures were further extended through Royal Decree-law 21/2021, which established that they would remain in force until 28 February 2022,²⁸¹ and through Royal Decree-law 2/2022, that extended their application until 30 September 2022.²⁸²

95.  Over 2021, the coalition Government was negotiating a law on the right to housing. A preliminary project for a nationwide Housing Act (Ley de Vivienda) was finally presented by the Council of Ministers on 26 October 2021 and referred to the Parliament in February 2022.²⁸³ In connection with housing policies, and in the context of the Next Generation EU programme and the Spanish Recovery Plan, Royal Decree-law 19/2021 introduced urgent measures to incentivise the rehabilitation of houses and buildings.²⁸⁴ These measures, which included the provision of guarantees for rehabilitation works for tenants in socially and economically vulnerable situations as a result of the pandemic, was later maintained by Law 10/2022.²⁸⁵

96.  In order to protect the incomes of workers in a situation of isolation, illness, or restriction of movement due to Covid-19, the Spanish Government passed in 2020 new rules establishing that such workers were to be considered as workers that have suffered a work accident from a Social Security point of view.²⁸⁶ Those workers would therefore benefit from existing Social Security rules on working accidents, which grant access to social security protection in the case of a work accident.

97.  In relation to the self-employed, Royal Decree-law 11/2020 introduced more favourable conditions to access the benefits that self-employed individuals receive in case of termination of activity.²⁸⁷ Moreover, extraordinary benefits in case of termination of activity for the self-employed were introduced from mid-March 2020 onwards.²⁸⁸

98.  In mid-March 2020, the pre-existing rules relating to unemployment benefits for periods of employment suspension were modified.²⁸⁹ Under the new rules, workers suspended from employment due to the pandemic (see ERTEs in Part V.B.2 below) were granted access to (contributory) unemployment benefits, even when they did not meet the minimum contributory periods to qualify. Furthermore, it was foreseen that the period of time that they remain in unemployment under this mechanism would not affect their acquired rights, that is, workers in ERTEs would not ‘consume’ their rights to unemployment benefits.

99.  In early November 2020, a new special unemployment benefit was introduced for persons who had exhausted their regular unemployment benefits between 14 March and 30 June 2020.²⁹⁰ It consisted of a subsidy in cash (of up to 80 per cent of the IPREM) that could be enjoyed for a maximum period of 90 days and that should be requested by 30 November 2020. Later on, Royal Decree-law 35/2020 opened up the possibility to submit new applications for this special unemployment benefit from 26 December 2020 until 26 January 2021.²⁹¹

100.  In late March 2020, the Spanish Government introduced a moratorium in the payment of social security obligations for self-employed persons through Royal Decree-law 11/2020.²⁹² Article 34 thereof authorized the General Treasury of the Social Security to grant a six months’ moratorium without interest to those self-employed persons complying with the criteria established by the Order of the Ministry of Inclusion, Social Security and Migrations of 24 April 2020.²⁹³ This measure was later modified and extended through Royal Decree-law 18/2021, which established decreasing percentages of exemptions in the payment of social security obligations of self-employed workers until 31 January 2022.²⁹⁴

101.  Tax and financial policies adopted to support employers are addressed in Part V.B.1 below.

102.  Since the outbreak of the pandemic, a high number of provisions on social security and labour law were successively adopted at national level.²⁹⁵ The declared goals were to avoid an increase in unemployment, to protect workers’ health, to protect the incomes of employees and of the self-employed, to help companies (especially SMEs) to overcome the crisis, and to safeguard as far as possible the productive potential of the economy.²⁹⁶

103.  Despite the systematic use of royal decree-laws (which are Acts of Government adopted under extraordinary urgent circumstances: see Part II.C above) to adopt these rules, the participation of the social partners in the making of these measures was very important. In fact, the abovementioned royal decree-laws transposed agreements between the Government and the Social Partners resulting from an ongoing process of social dialogue to deal with the social and economic impact of the pandemic. These are the so-called ‘Social Agreements in Defense of Employment’ (Acuerdos Sociales en Defensa del Empleo). By 31 December 2022, a total of six of such agreements had been signed (see Part V.B.6 below).

104.  At the beginning, the measures adopted had a temporary character linked to the first nationwide state of alarm (declared for the period from 14 March until 21 June 2020, see Part II.A above). This created some technical problems and, as the crisis lengthened in duration, the legislator decided to ‘decouple’ the labour law and social security measures and the state of alarm. A first Social Agreement in Defence of Employment between the Government and the Social Partners was signed on 11 May 2020 and later included in Royal Decree-law 18/2020.²⁹⁷ This agreement extended the main measures previously adopted by Royal Decree-laws 8/2020 and 9/2020 on suspension of employment contracts (ERTES) and prohibition of dismissals, respectively, during the first nationwide state of alarm.²⁹⁸ Since then, another five social agreements, incorporated into legal acts (again, in form of royal decree-laws), successively modified and extended the original measures.²⁹⁹ The sixth and last agreement that had been adopted by 31 December 2022, incorporated into Royal Decree-law 18/2021,³⁰⁰ extended once again the main labour law measures adopted until 28 February 2022.

105.  The measures that may be considered as forms of economic support for employers are heterogeneous and affect not only employers, but also self-employed persons. In this section, we limit ourselves to describing the most relevant among them.

106.  First, some extraordinary incentives granted to companies were linked to the Covid-19related use of the temporary suspension of employment contracts (Expedientes de Regulación Temporal de Empleo, ERTES) (see with more detail Part V.B.2 below), as established by Royal Decree-law 8/2020 (subsequently modified).³⁰¹ These advantages consisted of extraordinary exemptions from social security obligations, provided that companies making use of ERTES that were benefiting from these exemptions maintained their levels of employment for a given period of time.

107.  Second, Chapter III of Royal Decree-law 8/2020 of 17 March introduced several measures to guarantee the liquidity of companies and of the self-employed through access to credit via the Official Credit Institute (Instituto de Crédito Oficial, ICO). Equally, a state program of guarantees for companies and the self-employed to access credit for 100,000 million EUR was adopted.³⁰² Later on, the Agreement for Economic Recovery and Employment signed by the Government and the Social Partners on 3 July 2020³⁰³ and later incorporated into Royal Decree-law 25/2020,³⁰⁴ added another 50,000 million EUR towards boosting growth, reinforcing solvent companies in strategic sectors that may be experiencing financial problems, and reinforcing internal demand. In November 2020, Royal Decree-law 34/2020 extended the grace and maturity periods for publicly guaranteed loans.³⁰⁵ The last of these kind of measures for economic support, adopted on 12 March 2020, was a program of 7000 million EUR on direct economic aids for companies and self-employed (Línea Covid de ayudas directas), as well as other measures on restructuring of financial debt and recapitalisation of viable companies.³⁰⁶ The ACs implemented this aid package in accordance with the territorial allocation of funds approved by the State and the agreements signed with each AC.³⁰⁷

108.  Another line of action was the suspension of administrative deadlines for tax obligations and tax-related procedures, in an attempt to ease the fulfilment of tax duties (Royal Decree-law 8/2020, later modified and extended until 30 May 2020 by Royal Decree-law 15/2020).³⁰⁸

109.  Finally, the aforementioned Royal Decree-law 15/2020, and more clearly Royal Decree-law 35/2020,³⁰⁹ established mechanisms and rules to moderate the price of rentals of commercial premises when there was no voluntary agreement between the parties in contracts with big proprietors. These measures were later incorporated in Royal Decree-Law 21/2021 and applied until 28 February 2022.³¹⁰

110.  On their part, all the ACs approved aid packages to support employers and the self-employed. These measures are too numerous and detailed to be described here. They followed the same lines and applied similar measures to the nationwide ones described in the previous paragraphs, complementing the national measures.

111.  The two key measures of the Spanish strategy to protect employment levels and workers’ incomes were adopted through royal decree-laws already in March 2020.³¹¹ The first of such measures consisted of easing the access to the already existing mechanisms of ERTEs (foreseen in Article 47 of the Workers’ Statute).³¹² The second key measure was the prohibition of certain types of dismissal. The common goal of these (complementary) measures was to favour suspensions of employment over dismissals as the more desirable strategy to face the economic downturns created by the pandemic as well as the legal restrictions to the activity with origins in the limitations to commercial activities arising during the pandemic. In this sense, the legislator expressed a strong preference for internal flexibility over external adjustment, meaning that internal flexibility in the organisation of work, such as suspensions of the employment contracts, were preferred over adjustments via redundancies and dismissals.

112.  Focusing on worker protection in relation to ERTEs, the modifications in the already existing regulation of Article 47 of the Workers’ Statute made them more accessible, offering at the same time a higher level of protection.

113.  In order to make ERTEs more accessible, a new provision was introduced according to which companies that opted for a suspension of contracts due to the pandemic could do so under the force majeure cause,³¹³ as established in Article 47(3) of the Workers’ Statute. This made possible the initiation of ERTEs during the pandemic in many companies that otherwise could not have done so under the pre-existing rules. Under Article 47(3) of the Workers’ Statute, approval of the labour authority is necessary to initiate an ERTE. Later on, the possibility to initiate an ERTE in those companies that experienced limitations in their activity because of pandemic-related restrictions was adopted from 1 October 2020.³¹⁴

114.  At the same time, new advantages for workers experiencing ERTEs were introduced: workers affected by an ERTE were granted access to (contributive) unemployment benefits, even when they did not meet the minimum contributory periods to qualify (see Part V.A.2 above). Furthermore, it was established that the period of time that these workers remain in unemployment under this mechanism would not affect their acquired rights, that is, workers in ERTEs would not ‘consume’ their rights to unemployment benefits, which in Spain are limited on time and depend on the previous contributions of the workers. Rules were adopted to clarify that ERTEs also apply to all types of temporary contracts, including formative and replacement contracts.³¹⁵ During the time that these temporary contracts are suspended, the calculation of their maximum duration is also suspended. The described legal framework of ERTEs has been successively extended, with minor changes, since it was first adopted, and it stayed in force until 31 March 2022.³¹⁶

115.  The prohibition of some types of dismissal implied that, during the pandemic, dismissals based on economic, technical, organisational, or productive reasons were not possible in those companies that initiated ERTEs.³¹⁷ This measure also involved an obligation to keep employment levels for at least six months after the end of the ERTE. This means that in Spain, as in other countries, income support was offered to workers/employers on the condition of job retention and a freeze on redundancies/dismissals. Dismissals based on other grounds—for instance, dismissals based on the exercise of the disciplinary powers of the employer in response to employees’ offenses or misconducts—were still allowed, since they were not causally connected to the pandemic and its economic consequences. First adopted on 27 March 2020,³¹⁸ this prohibition was successively extended by several royal decree-laws,³¹⁹ and remained in force until 31 March 2022.³²⁰ There was a division of opinions of jurists concerning the legal validity of a dismissal done within the context of an ERTE, a debate prompted by the fact that the applicable legal rules did not explicitly foresee what was the legal value of a dismissal based on economic, technical, organisational, or productive reasons during the period of ERTE or within six months after the ERTE.³²¹ The majority opinion was that a dismissal contrary to the norm would be abusive (despido improcendente), whereas a minority held the opinion that these dismissals should be considered null and void (despido nulo). The case law was also divided.³²² Some courts declared the dismissals under the circumstances established in the norm abusive,³²³ while some others considered that such dismissals must be determined as null and void.³²⁴ The Spanish Supreme Court finally clarified that such dismissals should be considered abusive, and that they should be deemed as null and void if, in the specific case, there are circumstances justifying it, such as the violation of a fundamental right or the circumvention of the procedural rules on collective dismissal.³²⁵

116.  Other labour law and social security norms were adopted from March 2020.

117.  Royal Decree-law 8/2020 of 17 March 2020 aimed at increasing working time flexibility for care purposes. To do so, it introduced the so-called ‘Plan MECUIDA’, a right to adapt or reduce working time when a worker needed to take care of their partner or close family members for reasons of illness, age, or incapacity, or because of reasons related to the Covid-19 crisis.³²⁶ The reduction could reach up to 100% of the working time, with a proportional reduction in salary. In principle, the decision remained with the worker, who in this way had some control over their working time to adapt to the crisis and its care-related demands, although an agreement with the employer was needed. The norm established that the adaptation or reduction of the working time must be in any case reasonable and proportional. If there was no agreement with the employer, the employee could resort to the procedure provided for in Article 139 of Law 36/2011.³²⁷ This regime was successively extended by several royal decree-laws,³²⁸ and it remained in force until 30 June 2022.³²⁹

118.  In connection to health and safety in the context of the pandemic, in March 2020 a principle of preference for working remotely under the first nationwide state of alarm (from 14 March until 21 June 2020) (see Part II.A above) was introduced.³³⁰ Ideally, workers during the state of alarm should have been working remotely. In cases where this was not possible, it was necessary to adopt measures to protect the health and safety of workers. Only when remote working or protection was not possible, employers (in non-essential activities) could opt for suspension of the contracts (ERTEs).

119.  To clarify the legal framework of remote work, a new act on remote working was adopted, originating in a social partners’ agreement, firstly through an urgent Act of Government in September 2020 (Royal Decree-law 29/2020)³³¹ and later through an Act of Parliament in July 2021 (Law 10/2021) which was set for an indefinite period of application.³³² This was soon to be complemented with a norm regulating remote working in public administrations.³³³

120.  The VI Social Agreement in Defence of the Employment included, as a novelty, benefits (in the form of exemptions from Social Security contributions) to companies that provided formative and training actions in favour of workers in situations of ERTE with the aim of improving their professional competences and employability. This agreement was incorporated into Royal Decree-law 18/2021, Article 3 of which regulates this system of formative actions.³³⁴ In those companies under an ERTE and for those in a situation of limited activity under the terms of Article 2 of Royal Decree-law 18/2021, formative actions had to be developed (in order to benefit from the exemptions from Social Security contributions under Article 4 of Royal Decree-law 18/2021) for each individual worker affected by an ERTE between 1 November 2021 and 28 February 2022. These actions could develop through any of the modalities foreseen in professional training legislation.³³⁵ Royal Decree-law 18/2021 established a minimum number of hours of training that varied with the size of the company. The deadline to actually perform the formative action was 30 June 2022, and it was established that it should take place during working hours or in the periods when the working time was reduced or the contract suspended.

121.  The role of the Social Partners in the process of adoption of labour and social measures in the context of the Covid-19 pandemic was very important. As already mentioned, several of the measures adopted were directly the result of an agreement between the Social Partners and the Government. By 31 December 2022, a total of six social dialogue agreements at a cross-industry level (the so-called ‘Social Agreements in Defence of the Employment’) had been adopted, all of them transposed into legal norms. This can be understood as a strategic approach to the governance of the crisis based on ongoing social dialogue and democratic participation.³³⁶

122.  The social partners were also active in the elaboration of the aid packages and measures adopted at regional level. An illustrative example would be the ‘Plan of extraordinary measures for the protection of workers, companies, families, and especially vulnerable persons in the framework of the Covid-19 crisis’,³³⁷ adopted in the AC of Castilla y León on 25 March 2020 and later incorporated into Decree-Law 2/2020 of 16 April.³³⁸

123.  Nothing relevant to report.

124.  The pandemic and the measures adopted in response thereto had a considerable impact on fundamental rights and civil liberties. This happened in spite of the fact that fundamental rights enshrined in the Spanish Constitution cannot be suspended even in the case that a state of alarm is declared (Article 55(1) of the Constitution). As mentioned in Part II.A above, a legal discussion arose on whether lockdowns and other restrictive measures adopted under the Covid-19 pandemic states of alarm amounted to mere restrictions of certain fundamental rights or rather to unconstitutional suspensions thereof.³³⁹ This discussion resulted in two pronouncements of the Spanish Constitutional Court (SCC): (1) declaring the partial unconstitutionality of the first nationwide state of alarm insofar as it imposed a general lockdown and therefore ‘suspended’ the fundamental freedoms of movement and residence (Article 19 of the Constitution) and the freedom of assembly (Article 21 of the Constitution),³⁴⁰ and (2) declaring the unconstitutionality of the suspension of parliamentary activity during the first nationwide state of alarm, because it amounted to a ‘suspension’ of the deputies’ fundamental right to political participation (Article 23(3) of the Constitution).³⁴¹

125.  The fundamental rights most significantly affected by the containment measures adopted in Spain were the freedom of movement (Article 19 of the Constitution) and the right of assembly and association (Article of the 21 Constitution). These restrictive measures were criticised both on substantive grounds—some considered them to be disproportionate³⁴²—and on formal grounds—because they were imposed either through royal decree-laws,³⁴³ which according to Article 86 of the Constitution cannot regulate the general framework of fundamental rights (see Part II.C above), or through royal decrees declaring a state of alarm (see Part II.A above). However, the SCC ruled that these fundamental rights were not suspended and that their restriction was proportionate under the second nationwide state of alarm,³⁴⁴ in contrast to what happened under the first one,³⁴⁵ as just mentioned (see also Part II.A above).

126.  The freedom of information (Article 20 of the Constitution) was restricted under the first nationwide state of alarm (on 14 March 2020) through the implementation of a communication system whereby questions from the media to the Spanish Government were filtered and preselected (see Part III.F above). However, after the drafting of the so-called ‘Manifesto for the Freedom to Ask’ by a group of around 100 journalists,³⁴⁶ the Government replaced the system with a more participatory one, through videoconferences in which journalists were allowed to pose questions directly to the Government.³⁴⁷ There were additional indicators suggesting an erosion of the freedoms of expression and information throughout the crisis: the United States’ 2020 Country Report on Human Rights Practices in Spain,³⁴⁸ which included a chapter dedicated to human rights violations reported by Spanish national organizations, questioned the rhetoric of Government leaders against the press, referring explicitly to President Pedro Sánchez and (former) Vice President Pablo Iglesias.³⁴⁹

127.  Regarding transparency and the constitutional right of access to administrative files and records (Article 105 of the Constitution), concerns were raised on three accounts: (i) the suspension of administrative deadlines of procedures for access to information held by public authorities and the subsequent delays in handling access requests (see Part III.F above); (ii) the increase of pre-existing differences across ACs regarding access to administrative files and records, enabled by the fact that both the establishment of detailed rules and the implementation of transparency legislation fall mainly under ACs competence;³⁵⁰ and (iii) the increased use of emergency public procurement procedures, without any kind of ex ante transparency, for the purchase of medical supplies and medicines.³⁵¹

128.  Privacy is a fundamental right protected by Article 18(4) of the Spanish Constitution. However, both data protection legislation³⁵² and health legislation³⁵³ allow public authorities to impose certain restrictions on this right if necessary to fight a health emergency, subject to the requirements of proportionality and respect for the right’s core content. The Spanish Data Protection Agency (Agencia Española de Protección de Datos, AEPD) confirmed this approach during the Covid-19 pandemic, stating that within said limits ‘data protection concerns should not be used to hinder or limit the effectiveness of measures taken by public health authorities in the fight against the pandemic’.³⁵⁴ Concerns about privacy restrictions were mainly connected to the contact tracing procedures and apps referred to in Part IV.A.9 above. According to a survey published in May 2020, by that date: 79% of Spaniards were in favour of the use of technological solutions for self-diagnosis of Covi—19; 56% of the population thought that the Government was taking advantage of the crisis to invade privacy rights; and almost 58% were concerned about the use of personal data collected by the Government.³⁵⁵ As regards the app ‘Radar Covid’ (see Part IV.A.9 above), there were allegations of possible breaches of privacy because of technical and security flaws in its design.³⁵⁶ In June 2021, the AEPD initiated two sanctioning procedures concerning the functioning of the app, one against the Ministry of Economy and the other against the Ministry of Health (more specifically against the Secretary of State for Digitalization and Artificial Intelligence (‘SSDAI’), and the Directorate General for Public Health, respectively).³⁵⁷ Both procedures finished with the imposition of an administrative sanction consisting of a public reprimand of the responsible administrative body for breach of their obligations under data protection legislation.³⁵⁸ The fundamental right to privacy and data protection legislation apply also to the processing of data by private subjects, which is of particular relevance in the context of employment relationships. In September 2020, the AEPD confirmed that employees had the duty to inform their employers if they think they were close contacts of Covid-19 infected individuals.³⁵⁹ However, collection and use of data relating to Covid-19 antigens for the purpose of recruiting future employees was deemed illegal because: (i) there cannot be genuinely free prior informed consent of the data subject to that end, and (ii) the processing of such data is not strictly necessary for the performance of the employee’s duties.³⁶⁰

129.  In general terms, it was reported that lockdowns had a significant impact regarding gender-based violence by favouring controlling behaviours on victims, fostering family and social isolation, limiting physical mobility, and hindering access to care and support systems.³⁶¹ In Spain, the number of complaints of gender-based violence decreased in general terms during the nationwide lockdown of March–June 2020, which has been interpreted not as an indicator of a decrease in actual violence against women, but of difficulties in reporting incidents of violence arising from direct and continuous cohabitation with the perpetrator.³⁶²

130.  Both the national government and the Autonomous Communities adopted tailored measures in response to this trend. In late March 2020, the national government passed urgent measures to protect and assist victims of gender-based violence.³⁶³ This involved, inter alia: the declaration as ‘essential services’ of all information, counselling, care, and shelter services for victims; the launch of an awareness-raising campaign against gender violence; and the creation of a new WhatsApp instant messaging service for consultation and psychological assistance to victims of gender violence. Further measures involving an increase in funding and organizational resources devoted to protection and assistance to victims of gender-based violence were introduced through Law 1/2021,³⁶⁴ subsequently extended through Royal Decree-laws 8/2021, 16/2021, and 21/2021.³⁶⁵ In Castilla-La Mancha, from mid-March 2020 onwards, the Regional Government reinforced the personal and economic resources allocated to information, counselling, care, and shelter services for victims.³⁶⁶ In Madrid, telephone information and counselling services were stepped up, and new awareness-raising campaigns were launched.³⁶⁷

131.  The third United Nations (UN) Universal Periodic Review (UPR or ‘Review’) in respect of Spain was published in January 2020, right before the Covid-19 crisis.³⁶⁸ In view of this Review, the UN Human Rights Council adopted a decision including at least eighty-two recommendations about the need to adopt measures to stop situations of racism, racial discrimination, and xenophobia in Spain.³⁶⁹

132.  On 2 October 2020, the report’Racism and xenophobia during the state of alarm’, published by the NGO Rights International Spain, highlighted the absence of any significant impact of the recommendations of the Council for the Elimination of Racial or Ethnic Discrimination on the multiple forms of racial discrimination. Furthermore, the report evidenced the rise in racism during the crisis, as well as harassment and police brutality.³⁷⁰ The discrimination against people of Asian origins seems to have been particularly intense. This phenomenon was carried out mainly through hateful insults on social media, denial of services, and even physical violence.³⁷¹Along with national and regional public response measures, NGOs played a leading role in the fight against discrimination. An example of the this is the implementation by the NGO Accem of a program to assist victims of discrimination online, given the impossibility of executing its traditional face-to-face program over the first months of the pandemic.³⁷²

133.  Disabled people, in addition to facing a greater risk of contagion and subsequent development of more serious health conditions, were in a particularly disadvantaged situation due to the socioeconomic consequences of the health crisis. Specifically, and in accordance with a report published in June 2020 by the Representative Committee of People with Disabilities (Comité Español de Representantes de Personas con Discapacidad, CERMI), the Covid-19 crisis endangered the right to equal opportunities and nondiscrimination, the right to life and the right to health, and the education and work of disabled people.³⁷³

134.  One of the most obvious violations of equal opportunities and non-discrimination, as well as of the right to life and health of disabled people was the adoption by a private medical association—the Spanish Society of Intensive, Critical and Coronary Medicine Units (SEMICYUC)—of a set of discriminatory criteria to be taken into account for the medical treatment of people infected by Covid-19, such as the ‘social value of patients’, the ‘maximization of the common good’, and the ‘productive capacity’ of the patient. These criteria were included in the document ‘Ethical recommendations for decision-making in situations of exceptional crisis due to COVID-19 in intensive care units’.³⁷⁴ There is no record that these ‘ethical recommendations’ have been subject to any legal action before courts.

135.  The impact of the Covid-19 crisis on areas such as employment and social protection were particularly exacerbated for people with disabilities. Already faced with labour exclusion, they were more likely to lose their jobs, as well as to have greater difficulty rejoining the labour market and benefiting from remote work solutions.³⁷⁵

136.  In order to reverse this situation, the Spanish Government adopted a set of measures such as the extension of the validity period of disability certificates;³⁷⁶ the authorization for disabled people to be accompanied in activities that, under social distancing measures, should be carried out individually by the rest of the population;³⁷⁷ the authorization of interregional movements for the care of people with disabilities;³⁷⁸ the unconditional guarantee of access to therapy, rehabilitation, and early care services;³⁷⁹ the exemption from the obligation to wear a mask for people not able to remove it by themselves (see Part IV.A.6 above);³⁸⁰ or the establishment of the ‘MECUIDA’ plan, which allowed for the adaptation of the working schedule of employed persons with duties of care for people in a situation of disability (on this, see Part V.B.3 above).³⁸¹

137.  The response of the ACs echoed the national one. In Castilla-La Mancha, the regional government ordered the continuation of the administrative procedures for the recognition of disability and of the basic social services for people with disabilities amidst the generalised suspension of administrative deadlines imposed under the first nationwide state of alarm.³⁸² In Madrid, the regional government adopted a series of protocols aimed at people with disabilities, but its content was predominantly focused on measures to prevent contagion in residential centres, rather than on tackling the specific needs arising from the pandemic for this group.³⁸³

138.  Over 2020, residential centres for the elderly were conducive to Covid-19 outbreaks (see Part IV.A.10 above). The absence of transparency in the management of their activity, as well as frequent contagion between residents, led to criminal complaints for the crimes of reckless homicide, injuries and omission of the duty of assistance, prevarication, and degrading treatment in respect of centres under the responsibility of the AC of Madrid, where the situation was particularly serious. They were directed against both the directors of these centres and political leaders such as: the president of the AC of Madrid, the Regional Minister of Health, and the Regional Minister of Justice, Interior and Victims.³⁸⁴ Some of the cases were admitted but were ultimately dismissed.³⁸⁵ However, many of them were declared inadmissible at the outset.³⁸⁶

139.  One of the main measures to manage the situation was the intervention by the competent administration (those of the respective ACs) of residential centres, whether public or private (see Part IV.A.10 above). In addition, organizational and coordination measures were adopted. They referred to the mandatory provision of information,³⁸⁷ and to the interruption of activities such as the social tourism programme of the Spanish Institute for the Elderly and Social Services.³⁸⁸

140.  The Spanish Government adopted a set of measures specifically designed for children amidst the Covid-19 pandemic. These included: the exemption from the obligation to wear a facemask for children between 0–6 years of age;³⁸⁹ the priority deconfinement of minors under 14 from 26 April 2020;³⁹⁰ and measures in education, such as the suspension of in-person teaching from March 2020 and its substitution by online education until the 2021–2022 academic year; the establishment of a framework and guidelines for action for the third quarter of the 2019–2020 academic year and the beginning of the 2020–2021 academic year, in order to address the crisis caused by Covid-19;³⁹¹ and measures to ensure the basic right to food for children affected by the closure of schools.³⁹²

141.  In spite of this, some NGOs reported the worsening of living conditions of families at risk of poverty and social exclusion, the difficulties in caring for children due to the closure of schools, as well as an increase of domestic violence towards children.³⁹³

142.  The management of the health crisis in prisons, which falls under the competence of the State, was marked by two differentiated trends over time: (i) the adoption of restrictive measures, such as isolation in individual cells, suspension of all visits, exclusion from entry of volunteers from NGOs and collaborating entities, and cancellation of scheduled departures and exit permits;³⁹⁴ and (ii) following the initial weeks of the Covid-19 pandemic, the favouring of permits for temporary release from prison of sentenced persons (during weekends, daytime hours, etc),³⁹⁵ as well as the resumption (as of early May 2020) of the ordinary system of visits in prison by relatives, friends, and legal counsellors, inter alia, of the scheduled departures of inmates classified in the third degree (ie those allowed to leave prison during the day but obliged to return to it at night), and of educational, training, therapeutic, sports, cultural, and religious activities.³⁹⁶

143.  The right to seek refuge in a non-member state of the European Union appears to have been suspended in practice during the first months of the pandemic.³⁹⁷ The absence of safe and legal routes, the strict controls of European external borders and the worsening economic situation of the countries of origin highlighted the limitations of the immigration policy in exceptional situations.³⁹⁸ In Spain, these limitations led to the overcrowding of the Center for the Temporary Stay of Immigrants (CETI) in Melilla,³⁹⁹ the massive inflows of migrants in the Canary Islands, especially from November 2020,⁴⁰⁰ and the so-called ‘hot returns’ (devoluciones en caliente) of migrants, ie the immediate and forcible return of migrants at the border, without any prior identification or screening of their needs.⁴⁰¹

144.  In February 2020, the European Court of Human Rights ruled that Spain had not breached human rights by expulsing two sub-Saharan immigrants without a prior individualized assessment of their situation.⁴⁰² This ruling was the prelude to an SCC judgment in November 2020,⁴⁰³ which confirmed the constitutionality of the Citizens Security Act,⁴⁰⁴ which had introduced the possibility for automatic return of migrants in Ceuta and Melilla.

145.  In parallel to these developments, the Spanish Government issued several regulations and directions aimed at making the legal framework for regular migrants more flexible through measures such as: the extension of stay, residence, and work permits;⁴⁰⁵ the relaxing of the requirement for ‘sufficient means to meet the family’s needs’ in family reunification procedures⁴⁰⁶ and of certain requirements applicable to other immigration procedures;⁴⁰⁷ as well as the general favouring of the renewal of residence and/or work authorizations.⁴⁰⁸

146.  On the occasion of the International Day of Indigenous Peoples, on 9 August 2020, Spain reiterated its commitment to protecting the rights of indigenous peoples abroad, emphasizing their delicate situation due to the impact of the Covid-19 pandemic.⁴⁰⁹ In practice, this commitment led to the preparation of graphic materials and translations into Spanish of information related to the prevention and detection of Covid-19 symptoms. These actions were carried out mainly through international cooperation programs, such as for example the Paraguayan program ‘Between communities we take care of ourselves’, in which the Spanish Agency for International Development Cooperation (Agencia Española de Cooperación Internacional para el Desarrollo, AECID) participates.⁴¹⁰

Dolores Utrilla, Associate Professor, University of Castilla-La Mancha

Manuel Antonio García-Muñoz, Postdoctoral Researcher, University of Luxembourg

Teresa Pareja Sánchez, Research Assistant, University of Castilla-La Mancha