Greece, Council of State – 4th Department, 21 September 2021 ΣτΕ 1386/2021

Identification of the case

• Right to the integrity of the person (art. 3 CFREU)
• Right to liberty and security (art. 6 CFREU)
• Protection of personal data (art. 8 CFREU)

• Arts. 2, 4, 5, 9A, 22, 25 of the Greek Constitution
• Art. 2 of Law 4790/2021
• Art. 27 of Law 4792/2021
• Law 4624/2019
• Law 2619/1998

• Art. 16(1) TFEU
• Regulation (EU) 2016/679 [GDPR]

Summary of the case

The applicant, a public employee at the Ministry of National Defence, demanded the annulment of the No. Δ1α/Γ.Π.οικ.26390/24.4.2021, Common Ministerial Decision regarding the application of the obligatory COVID-19 diagnostics to government employees that worked with a physical presence at the workplace. More specifically, the measure included the weekly obligation of such employees to perform a self-test and to register its result on a specific database. If the employee failed to do so, they would not be able to be present at their work, which would also lead to a salary reduction due to their absence. The applicant claimed that her obligation to perform a self-test as well as the processing of her sensitive personal health data without her free consent breached a number of national and European legal provisions that establish her rights to personal freedom, to personal data protection, to work and to human dignity. Finally, she argued that the aforementioned testing obligation violated the principle of equality. Even though she went to her workplace daily, she was constantly refused to undertake her job, on the basis of an illegal criterion, while her colleagues, providing exactly the same services as her, were still working and getting paid.

• Administrative judicial enforcement

The Court rejected the request and imposed on the applicant the payment of the court costs of the Greek State.

The Court began its reasoning from the assumption that the State shall guarantee the respect of human rights with every restriction on such rights to be directly provided for by the Constitution or the law and under the reservation of the proportionality principle. Regarding the applicant’s arguments that this measure breached arts. 3, 6 and 8 of CFREU, the Court underlined that, based on art. 51 of the Charter, its provisions can only apply when the State implements EU laws. Thus, the State’s public health policy and, particularly, the strategy against COVID- 19, fell within the States’ competence and has not been regulated by the EU. It also recognised that the same rights are also protected by the Constitution and the Convention on Human Rights and Biomedicine. However, it argued that these provisions do not prohibit the limitation imposed on the applicant’s right not to be subjected to medical acts without their consent. Therefore, the obligation of testing before providing services involving physical presence was a lawful restriction of the aforementioned right, as it aimed to protect the collective right of public health as well as each one’s right to health protection from COVID-19. It was, thus, an effective and necessary measure, considering the epidemiological data of that date. Moreover, the applicant’s contest for the safety of self-tests as an illegal restriction to her rights to health and physical integrity was found to be groundless, as she was also offered the alternative of rapid tests or PCRs conducted by specialists for free. As far as personal data were concerned, the Court began its assumptions from the point that the protection of personal data is not an absolute right, but it is evaluated in relation to society, it being balanced with other fundamental rights and the proportionality principle. More specifically, the data can be processed even without a person’s consent when that is necessary for a public interest purpose, such as health reasons. In particular, the need to protect employees’ and citizens’ health serves as an adequate legal basis for (both simple and health) data processing. In any case, the relevant platform was functioning according to the GDPR and Law 4624/2019, while the data processing was also conducted in accordance with the aforementioned legal framework. Finally, the refusing to conform to the measure under investigation, i.e., presence in the workplace without a COVID-19 test declaration, was not considered to be a legal work provision, because it did not respect the current legal framework. As a result, her salary cut or its non-payment did not appear to be disproportionate, because it took place solely during the employee’s non-compliance period, not accompanied by disciplinary sanctions. Moreover, the removal from her workplace had a protective rather than a punitive character. In regards to the equality principle, the Court argued that it was not breached as it was imposed on all public employees working from the office without discrimination.

Role of the Charter and role of the general principles on enforcement

The Charter served as one of the legal bases of the applicant when determining her rights before the Court. More specifically, she recalled arts. 3, 6 and 8 CFREU. However, the Court found these articles inapplicable in her case, with the reasoning that health policy falls out of the scope of EU competences. In order to come to that conclusion, the Court recalled art. 51 CFREU, underlining that Greece was not implementing Union Law when determining its COVID-19 prevention policy. Nevertheless, even though the Court rejected the applicant’s arguments about her rights arising from the Charter, it used its art. 52 in order to support its argumentation about permissible restrictions of human rights when it comes to public interest circumstances.

• Proportionality

The principle of proportionality was used in the applicant’s arguments regarding the limitations imposed on her rights. More specifically, she stated that the obligatory character of the self-testing measure was disproportionate with regard to her right of not being subjected to medical practices and not having her personal data processed without her consent. On the other hand, the Court also examined the proportionality principle in order to conclude its reasoning. More specifically, it explicitly underlined the importance of the principle when establishing the restrictions of rights, in order for them to be harmonised with constitutional demands. By balancing the applicant’s rights and the State’s obligation to protect public health, notably during periods of a pandemic, it found the COVID-19 testing measure justifiable on grounds of proportionality on all the points raised by the applicant.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

Proportionality.

The Court referred to its own previous decisions in order to support some of its arguments, from the point that some of the issues under investigation had already been solved by the Court in previous cases.

The judicial dialogue will serve in supporting the Court’s argumentation and it might also be used in relevant future cases for the same reason. No other outcome is expected.

Additional notes on the decision

None. The Common Ministerial Decision remained in force.

Fundamental Rights involved: also arts. 51, 52 CFREU