The rule modifies some preventive measures for reasons of protection of public health and the sanctioning regime that have received observations of unconstitutionality
Madrid, March 16, 2021.- The Council of Ministers has agreed to request the Council of State an opinion on the possible unconstitutionality of several paragraphs of the Law of Galicia 8/2021, which modifies Law 8/2008, of autonomic health.
The regulation makes a series of modifications in preventive measures for reasons of protection of public health and the sanctioning regime that have received observations of unconstitutionality from the corresponding Ministerial Departments.
The request will be made to the Permanent Commission of the Council of State as a matter of urgency. It will have until March 23 to issue an opinion. The deadline for the filing of the appeal of unconstitutionality ends on May 26, 2021.
Organic Law Reserve
The challenge arises when considering that the autonomous rule introduces restrictions and limitations to the Fundamental Rights that according to article 81 of the Spanish Constitution are reserved to an Organic Law, which can therefore only be dictated by the state legislator.
In this sense, the autonomous norm regulates in detail the extraordinary mechanisms to protect public health in the face of health crises with respect to State legislation, emphasizing fundamental rights in a way that cannot be considered a mere development of the State Organic Law.
This is the case of article 5, which establishes among other preventive measures in the field of public health that the autonomous community may submit “to prophylactic measures of prevention of the disease, including vaccination or immunization”.
Also in its article 7, which adds preventive measures in the field of public health, the autonomous law violates the reservation of Organic Law.
Similarly, the provisions contained in paragraphs 12, 13, 14 and 15, which constitute the regime of infractions and sanctions associated with the conduct regulated in paragraphs 5 and following, would be unconstitutional.
Exceptional States
On the other hand, the rule may violate article 116 of the Constitution, which regulates exceptional states. Within the framework of the current state of alarm, the CCAA have delegated powers that cannot be used to approve this ordinary law as if they were powers corresponding to the “ordinary management” of its powers.
State competencies
It also calls for the exclusive competence of the State with regard to the bases and general coordination of health provided for in the Constitution.
Finally, with regard to the possibility of forcing citizens to get vaccinated that is included in the law, it is also understood that in addition to affecting the reservation of Organic Law and the competence of the State in health matters, it does not consider the Vaccination Strategy against COVID 19 in Spain, approved on January 28 by the Interterritorial Council of the National Health System and mandatory. The Strategy states that vaccination will be voluntary.