Netherlands, District Court of The Hague, 6 October 2021 C-09-618078-KG ZA 21-892

Identification of the case

• Non-discrimination (art. 21 CFREU)

• Grondwet (Dutch Constitution)
• Article 6:162 Burgerlijk Wetboek (Definition of an unlawful act under the Dutch Civil Code)
• Wet Publieke Gezondheid (WPG); Chapter Va (Public Health Law)
• Tijdelijke Wet Maatregelen Covid-19 (TWM) (Temporary Act on Covid-19 Measures)
• Tijdelijke Wet Coronatoegangsbewijzen (Temporary Act on Covid Certificates)
• Tijdelijke Regeling Maatregelen Covid-19 (TRM) (Temporary Regulation for Covid-19 Measures)

• CFREU, art. 3, 5, 7, 8, 14, 15, 16, 21, 30, 45

Summary of the case

The TRM stipulates that several non-essential sectors are only accessible to the public in possession of a valid corona certificate and a valid identity document. Proof of vaccination, proof of recovery from the coronavirus infection and proof of a negative test can be regarded as a valid corona certificate. The plaintiffs argued that the legislator had only provided for a general legal framework – i.e. the WPG – for the covid measures to be taken by ministerial regulation and that the concrete implementation of those measures was therefore established entirely by ministerial regulation. The corona certificate, which entails restrictions on constitutional rights and freedoms, should be described in the law itself, according to the plaintiffs. They argued that the parliament must decide whether the corona ticket should be deemed necessary and proportionate. Furthermore, the plaintiffs claimed that the State is guilty of an unlawful government act with the introduction of the corona certificate. According to them, the state violates the prohibition of discrimination and disproportionately infringes various other human and fundamental rights, as laid down in the ECHR, the International Covenant on Civil and Political Rights, the European Social Charter, the UN Convention on the Rights of the Child, the General Data Protection Regulation, the EU Charter, the Universal Declaration of Human Rights and the Dutch Constitution. They stated that the corona certificate makes an unjustified distinction between vaccinated and unvaccinated and therefore violates Article 1 of the Dutch Constitution and various international treaty provisions.

• Civil judicial enforcement

The Covid measures, and more specifically the covid certificate were taken on the correct legal basis and there was no violation of human rights.

The court found that the regulation of the corona certificate is based on the WPG and the government has applied this law for the right purpose - combating the corona pandemic - so the legal basis is sufficient. The court ruled that the corona certificate is necessary on the basis of the serious threat within the meaning of Art. 58b paragraph 2 sub a WPG in view of the current epidemiological situation. The court ruled that there was no violation of the right to equal treatment, i.e. the prohibition of discrimination, as laid down in Article 1 of the Constitution, Article 14 ECHR, and Article 1 of the Twelfth Protocol to the ECHR. There is no prohibited discrimination between vaccinated, unvaccinated and recovered people by introducing the corona certification. The obligation to show a corona certification applies in principle for everyone aged 13 and older. The corona certificate required for that access can be obtained on the basis of a vaccination, recovery or test certificate. Everyone is completely free to choose which means of proof is used as a corona certificate. In light of the epidemiological situation and the wish of the State to drop the one-and-a-half-metre measure, testing before access can be justified because of the higher risk of infection and spread of unvaccinated people. The court noted in this regard that: (a) the use of corona tickets will not be continued for longer than is epidemiologically necessary; (b) the obligation applies to a limited number of locations in non-essential sectors; c) tests are not or hardly invasive because they are not conducted often; d) there are various exceptions to showing a corona admission ticket and e) Article 6.33 TRM provides for a regulation in the event that a person is unable to undergo a test due to a disability or an illness that is necessary to obtain the prescribed test result or becomes seriously disrupted as a result of such a test. Testing for access is therefore proportionate. In addition, unvaccinated people can obtain the required test certificate free of charge. The feeling of discrimination, stigmatization and marginalization experienced and explained in detail by the claimants did not in itself provide grounds for assuming that the introduction of the corona certificate constituted a form of prohibited discrimination. Finally, the claimants argued that various other fundamental and human rights are violated by the measure. The court ruled that a worrying level of risk in the corona pandemic must be assumed, whereby the state could reasonably decide that handling the corona certificate is an appropriate and therefore proportional measure which is in accordance with the law and served a legitimate aim. The measure is also in compliance with the principle of subsidiarity, since neither the OMT's advice nor other statements has shown that other, less far-reaching measures than the introduction of the corona certificate can be used that have the same intended effect and allows the State to release the one-and-a-half-metre measure.

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

The plaintiffs argued that their fundamental rights, as enshrined in, inter alia, Article 21 Charter were violated by the introduction of the corona certificate and, more specifically, the obligation to test for access to non-essential sectors.

Article 58ra and 58rd WPG: The corona certificate is based – as can also be read in the explanation of Temporary Regulation Measures Covid-19 – on Article 58ra WPG. The legal basis for requesting proof of identity when showing the corona certificate can be found in article 58rd paragraph 2 WPG.

The claimants stated that the corona certificate constituted an unjustified distinction between vaccinated and unvaccinated people, and thus violated Article 1 Dutch Constitution, and various international treaty provisions, including in particular Article 14 ECHR and Article 1 Twelfth Protocol ECHR, but also Article 2 CRC, Article 2 BUPO and Article 21 Charter.

• Proportionality

According to the claimants, the corona certificate constituted a discriminatory distinction between vaccinated and unvaccinated people, because there is no objective and reasonable justification for this distinction, there is no legitimate aim and the requirement of proportionality is not met. The court ruled that the measure is proportionate on the considerations described above.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• ECtHR 24 May 2016, Biao vs. Denmark, 38590/10

Invoking ECHR and EU law and assessing whether coronavirus measures are proportionate in the light of restrictions of human rights.

Conform interpretation of national policy with ECHR and EU law.

Additional notes on the decision