BELGIAN CONSTITUTIONAL COURT OVERTURNS FLEMISH DECREE OF 18.12.2020

Carine Knapen

On 10 March 2021, 287 plaintiffs filed a petition before the Constitutional Court in suspension and annulment of the " corona " Decree of 18.12.2020 amending the Decree on preventive health policy of 2003. Before and after, a few more people filed a similar petition. All the petitions were merged by the court and treated together as one file.

Initially, things did not look good for the plaintiffs. Indeed, the claim to suspend the Decree was rejected by the Constitutional Court. Although not explicitly mentioned, it was clear that the Constitutional Court did not want to suspend the Decree because at that time the corona measures were still in full force. A suspension would have turned the country upside down.

Some have concluded from the refusal to suspend that the judges of the Constitutional Court were corrupt, playing along and maintaining the narrative ( which is now established to be a lie ). One cannot blame them for thinking that way. The Constitutional Court rejected just about all claims during the pandemic. So there was not much hope of a favorable outcome on the claim for annulment of the Decree, especially as the case dragged on and the Court did nothing to reach a decision.

The Constitutional Court took two years to deliver its reasoned judgment. On 16.02.2023, the judgement was delivered but only handed over by registered letter dated 08.03.2023.

Against all odds, the Constitutional Court annulled 11 articles of the Decree, which actually amounts to a complete annulment. Indeed, Articles 3 and 16 are of no substance.

What is at issue are Article 2 and Articles 7 to 15 as well as Article 47/1 of the Decree ( which is actually Article 4 ), which was likewise annulled. Furthermore, a number of sentences in the remaining text of the Decree were deleted by the Constitutional Court.

The measures have all been abolished some time ago, but this annulment is a great precedent. If a new pandemic occurs ( and it will ), the Flemish government can no longer use the rules contained in the annulled articles.

The judgment covers a total of 144 pages. Overview of the annulled articles :

article 2

Art. 2.An article 34/1 is added to Title III, Chapter X, of the Decree of 21 November 2003 on preventive health policy, amended by the Decrees of 16 June 2006 and 8 June 2018, which reads as follows: "

Art. 34/1. In the context of COVID-19, the following personal data of a person as mentioned in Article 47/1, § 1, first paragraph, § 2, first paragraph, and § 3, first paragraph, may be shared with the municipality, within the powers of the municipalities in accordance with Article 135, § 2, of the New Municipal Law of 24 June 1988, for the purpose of enforcing the measures mentioned in Article 47/1, by the mayor of the main residence or other appropriate place where that person goes into temporary seclusion: 1° the first and last name;2° the address of the place where such person goes into temporary seclusion;3° the term of the temporary seclusion.

The Flemish Government shall designate an entity to act as the processing controller for the transfer of the personal data as referred to in the first paragraph. The municipality as referred to in the first paragraph shall be the processing controller for the processing of the personal data shared in accordance with the first paragraph.

The personal data mentioned in the first paragraph shall be retained by the municipality no later than the end of the measure mentioned in art.47/1."

Article 4 ( which had introduced art.47/1 )

Art. 4.An article 47/1 shall be inserted in the same decree, reading as follows: "

Art. 47/1.§ 1. By way of derogation from Article 47, § 1, 1°, any person proven to be infected with COVID-19 or in respect of whom the doctor has a serious suspicion that he is infected with COVID-19 shall immediately go into temporary isolation, either at his main residence or at another appropriate place.

The Flemish Government shall determine the period of temporary isolation as referred to in the first paragraph on the basis of scientific insights into the infectivity of COVID-19. § In deviation from Article 47, § 1, 1°, any person who has been in a high-risk area shall go into temporary isolation immediately upon his/her arrival in the Dutch-speaking region, either at his/her main residence or at another suitable place.

The person, mentioned in the first paragraph, who returns from a high-risk area, is obliged to report immediately after his return to a COVID-19 test center, to a triage center or to his attending physician with the notification that he has returned from a high-risk area so that he can undergo a COVID-19 test.

The Flemish Government shall determine the period of temporary seclusion, mentioned in the first paragraph, on the basis of scientific insights about the incubation period of COVID-19. The period of temporary isolation shall expire if an investigation shows that the person does not constitute a danger to public health.

In deviation from the first paragraph, the Flemish Government may grant an exemption from temporary isolation or from the obligation to report to a COVID-19 testing center, triage center, or attending physician, as referred to in the second paragraph, to: 1° a person who has only been in a high-risk area for a limited period of time;2° a person in whom the risk of infection due to his behaviour in a high-risk area is estimated to be low;3° a person who has been in a high-risk area for essential reasons. The Flemish Government shall determine the detailed rules of such derogation, determine what is meant by limited duration and determine the manner in which the risk of contamination is estimated, and shall lay down the essential reasons for which the temporary seclusion as referred to in the first paragraph or the obligation to report to a COVID-19 test center, a triage center, or the attending physician as referred to in the second paragraph do not apply.

In this paragraph, high-risk area means an area designated by the competent federal department as having a very high risk of COVID-19 infection. § 3. Notwithstanding Article 47, § 1, 1°, any person, other than the per- sons mentioned in paragraphs 1 and 2, who has an increased risk of COVID-19, shall immediately go into temporary isolation if he has been informed that he has an increased risk of COVID-19, either at his main residence or at another appropriate place.

The person, mentioned in the first paragraph, shall be obliged to report to a COVID-19 testing center, to a triage center or to his attending physician immediately after being informed that he has an increased risk of COVID- 19, so that he can undergo a COVID-19 test.

The Flemish Government shall determine the period of temporary seclusion, mentioned in the first paragraph, based on scientific insights about the incubation period of COVID-19. The period of temporary isolation shall expire if an investigation shows that the person does not constitute a danger to public health.

The Flemish Government shall determine in more detail how the person, as referred to in the first paragraph, shall be informed of the fact that he has an increased risk of COVID-19.

The increased risk of COVID-19 as referred to in the first paragraph shall be determined by the Flemish Government on the basis of guidelines issued by the competent federal department.".

article 7 :

Art. 7. In the heading of the Decree of 29 May 2020 organizing the duty to report and contact investigation in the context of COVID-19, the following amendments shall be made: 1° the words "the duty to report and" shall be deleted;2° between the word "the" and the word "contact investigation", the word "central" shall be inserted;3° between the word "contact investigation" and the word "in", the phrase "by an alliance of external partners, the local contact investigation by local administrations or care councils and until organization of the COVID-19 teams" shall be inserted.

Article 8 :

Art. 8.In Article 2 of the same decree, the following amendments are made: 1° item 3° is replaced by what follows: "3° cooperation agreement of 25 August 2020: The cooperation agreement of 25 August 2020 between the Federal State, the Flemish Community, the Walloon Region, the German-speaking Community and the Common Community Commission, concerning the joint processing of data by Sciensano and contact centers, health inspections and mobile teams designated by the competent federated entities or by the competent agencies in the context of a contact investigation of persons (presumably) infected with the coronavirus COVID-19 on the basis of a database at Sciensano;"; 2° a point 4° is added, reading as follows: "4° care degree: a care degree as mentioned in Article 9 of the Decree of 26 April 2019 on the organization of primary care, regional care platforms and support for primary care providers.".

Article 9 :

Art. 9. In Article 3 of the same Decree, the following amendments shall be made: 1° in the first paragraph, the word "central" shall be inserted between the word "a" and the word "contact center";2° in the first paragraph, the phrase ", provided that personal data shall only be processed for the following purposes: 1° contacting the person infected with COVID-19 or suspected to be infected with COVID-19, in order to find out with which persons that person has had contact during the period going back at least 48 hours before the onset of symptoms and a maximum of 14 days before the consultation or taking of a test for COVID-19; 2° contact the reference doctor or the administrative manager of collectivities with a fragile population with whom the person infected with COVID-19 or suspected to be infected with COVID-19 had contact during the period mentioned in point 1° ; 3° make individual contact with the persons with whom the person infected with COVID-19 or suspected to be infected with COVID-19 has had contact in the course of the period mentioned in point 1°, in order to provide them with adapted recommendations based on information they provide, and to monitor compliance with those recommendations; 4° to provide the details of persons with whom the person infected with COVID-19 or suspected of being infected with COVID-19 has had contact to the Sciensano database, established by Royal Decree no. 18 of 4 May 2020." lifted; 3° the following sentence is added to the first paragraph: "Personal data shall be processed in accordance with the cooperation agreement of 25 August 2020."; 4° in the third and fourth paragraphs, the word "central" is inserted between the word "it" and the word "contact center" each time; 5° a sixth paragraph is added, reading as follows: "The Flemish Government shall determine what technical and organizational measures the partnership of external partners shall take to protect the processing of personal data by the central contact center referred to in the first paragraph.".

Article 10 :

Art. 10.Article 4 of the same decree is replaced by the following: "

Art. 4.The central contact center, mentioned in Article 3, first paragraph, is composed of: 1° call center employees;2° call center supervisors;3° field investigators;4° supervisors of field investigators. The Flemish Government shall determine the further rules for the organization of the central contact center.".

Article 11 :

Art. 11.Article 5 of the same decree shall be replaced by the following: "

Art. 5.§ 1. A database for field researchers shall be established at the central contact center mentioned in Article 3, first paragraph.

The personal data in the database, mentioned in the first paragraph, shall be processed for the following purposes: 1° the conduct of physical visits by the field researchers of the contact center within the framework of the purposes mentioned in Article 3, § 2, 1° and 2°, A, of the Cooperation Agreement of 25 August 2020;2° the progress monitoring of the physical visits, mentioned in point 1°, by the supervisors of field researchers. § 2. Personal data of: 1° persons in whom a COVID-19 test has shown that they are infected;2° persons in whom the doctor has a serious suspicion that they are infected with COVID-19, but in whom no COVID-19 test has been performed or prescribed, or in whom the COVID-19 test has shown that they were not infected 3° persons with whom the persons mentioned in 1° and 2° have been in contact during a period of fourteen days before and after the first signs of COVID-19 infection, whereby a certain margin of appreciation based on scientific insights may be taken into account;4° field researchers working at the central contact center. The following personal data shall be processed in the database referred to in paragraph 1, first paragraph, of the persons referred to in paragraph 1, points 1° to 3° : 1° the first and last name;2° the province of residence;3° the date of birth;4° the language;5° the contact details, including the address and telephone number;6° the script code from which it can be deduced whether the person is an index person, a person with whom the index person has had contact and who has a high risk of infection, or a person with whom the index person has had contact and who has a low risk of infection;7° the status of the physical visit. The personal data mentioned in the second paragraph, 1° to 6°, come from the database III mentioned in the Article 1, § 1, 8°, of the cooperation agreement of 25 August 2020.

The personal data mentioned in the second paragraph, 7°, is entered into the database by the field researcher.

The personal data mentioned in the second paragraph shall be kept in the database mentioned in paragraph 1, first paragraph, for a period not exceeding 10 days.

The following personal data shall be processed in the database, mentioned in paragraph 1, first paragraph, of the persons, mentioned in paragraph 1, 4° : 1° the identification number in the central contact center;2° the first name and surname;3° the contact details, including the postal code, telephone number and e-mail address;4° the region in which the field researcher conducts physical visits;5° the external partner for which the field researcher works;6° the name of the field researcher's supervisor.

The personal data as referred to in the sixth paragraph shall be kept in the database as referred to in Paragraph 1(1) until at most fourteen days after the expiry of the contract with the field researcher.

The Flemish Government may specify the personal data as referred to in the second and sixth paragraphs. § (3) For the purpose as referred to in Paragraph 1(2)(2°), the field researcher's supervisor shall have access to the personal data as referred to in Paragraph 2(2) and (6) to the extent that such data are necessary for the management of the field researchers under his supervision.

The field investigator shall, for the purpose mentioned in para- graph 2, second paragraph, 1°, have access to the personal data, mentioned in para- graph 2, second paragraph, of the persons from whom he is required to make a physical visit in accordance with his assignment."

Article 12 :

Art. 12.Article 6 of the same decree shall be replaced by the following: "

Art. 6.Without prejudice to the application of Article 44 of the Decree of 21 November 2003, local administrations or care councils may, as a supplement to or as a substitute for the missions carried out by the central contact center, reported in Article 3, first paragraph, establish local contact centers charged with missions of tracing and counseling of persons with a confirmed or suspected diagnosis of COVID-19, or of persons who may have had a risk-bearing contact with a person infected with COVID-19 or suspected to be infected with COVID-19. Personal data will be processed by the local contact centers in accordance with the cooperation agreement of 25 August 2020.

The Flemish Government shall designate an entity to act as processing controller and enter into a processing agreement with the local administrations or healthcare councils mentioned in the first paragraph, in accordance with Article 28(3) of the General Data Protection Regulation.

The person commissioned by a local contact center mentioned in the first paragraph to carry out the assignments mentioned in the first paragraph shall be bound by professional secrecy in accordance with Article 458 of the Criminal Code.

The local contact centers, mentioned in the first paragraph, are co-supervised by the civil servants-physicians and officials of the administration, mentioned in Article 44, § 3, 2° and 3°, of the Decree of 21 November 2003. If local con- tact centers fail to comply with the obligations set out in this decree, the aforementioned officials and civil servants-doctors may give notice to the local administrations or care councils to fulfil all obligations on the basis of a remedial plan within a period determined by those officials and civil servants-doctors.

The local governments or care councils referred to in the first paragraph shall prepare a content report on the assignments granted to the local con- tact centers they have established. The Flemish Government may lay down more detailed rules on the content of the content report.

The Flemish Government shall determine what technical and organizational measures the local boards or care councils shall take to protect the processing of personal data by the local contact centers as referred to in the first paragraph.".

Article 13 :

Art. 13.An article 6/1 shall be inserted in the same decree, reading as follows: "

Art. 6/1.The local administrations or healthcare councils shall determine the composition of local contact centres as referred to in Article 6, first paragraph.

The Flemish Government shall determine the detailed rules for the organization of local contact centers.".

Article 14 :

Art. 14.In the same Decree, an Article 6/2 shall be inserted as follows: "

Art. 6/2.§ 1. COVID-19 teams may be established at care councils.

The COVID-19 teams, mentioned in the first paragraph, shall perform the following activities: 1° provide contact and environmental research support to the officials, mentioned in Articles 40 and 44, § 3, 3°, of the Decree of 21 November 2003, and to the civil servants-doctors, mentioned in Article 44, § 3, 2°, of the same Decree;2° at the request of the local administrations, provide advice on the measures to be taken to prevent a further spread of COVID-19;3° organize medical and psycho-social support for the persons infected or suspected of being infected with COVID-19. This activity is addressed to individual persons;4° organize an alignment of care providers' requests for help in case of scarcity of material, and in case of need for knowledge exchange and support;5° sensitise care providers in order to increase support for the contact investigation. For the purposes of this paragraph, the following definitions shall apply: 1° contact and environmental investigation: subjecting a person or his/her environment to a medical or environmental examination required to trace sources of infection, if that person is potentially infected following contact with an infected person or following contact with another source of infection and may transmit that infection through contact with others, whether or not in the exercise of an occupational activity;2° organizing medical and psycho-social support: informing about, referring to, and contacting the person concerned to enable such medical and psycho-social support. The Flemish Government may further specify the activities of the COVID-19 team as referred to in the second paragraph.

Each COVID-19 team consists of at least one medical expert. That medical expert shall be a doctor.

The Flemish Government may further specify the composition of the COVID-19 team and the role of the medical expert, and may lay down further rules for the organization of the COVID-19 team.

The members of the COVID-19 team who carry out the assignments mentioned in the second paragraph are bound by professional secrecy in accordance with Article 458 of the Criminal Code.

The members of the COVID-19 team are co-supervised by the civil servants-doctors and civil servants of the administration mentioned in Article 44, § 3, 2° and 3°, of the Decree of 21 November 2003. As part of the supervision, moments may be organized between the medical experts mentioned in the fourth paragraph and the civil servants-doctors and officials of the administration mentioned in Article 44, § 3, 2° and 3°, of the Decree of 21 November 2003. If COVID-19 teams fail to comply with the obligations mentioned in this decree, the aforementioned officials and civil servants-doctors may give notice to the care boards to comply with all the obligations on the basis of a remedial plan within a deadline determined by those officials and civil servants-doctors.

The healthcare boards that establish a COVID-19 team shall prepare a content report on the assignments assigned to that COVID-19 team. The Flemish Government may determine further rules on the content of the content report. § 2. For the performance of the activities as referred to in Paragraph 1, second paragraph, the COVID-19 teams shall process the following personal data of persons in whom a COVID-19 test has shown that they are infected and of persons in whom the doctor has a serious suspicion that they are infected with COVID-19, but in whom no COVID-19 test has been performed or prescribed, or in whom the COVID-19 test has shown that they were not infected: 1° the identification details;2° the contact details;3° the gender;4° the age;5° the date on which the COVID-19 test was taken;6° the date of the first symptoms of disease;7° the collectivities, if any, with which the person has been in contact;8° the persons with whom they have been in contact during a period of 14 days before and after the first signs of COVID-19 infection, whereby a certain margin of appreciation based on scientific evidence may be taken into account 9° the relevant criteria for the estimation of a high or low risk of infection and the provision of advice;10° the health data necessary for the contact and environmental examination referred to in paragraph 1, second paragraph, 1°, and for the medical and psycho-social support referred to in paragraph 1, second paragraph, 3° ;11° data other than health data necessary for the contact and environmental examination referred to in paragraph 1, second paragraph, 1°, and for the medical and psycho-social support referred to in paragraph 1, second paragraph, 3°. To perform the activities referred to in Paragraph 1, second paragraph, the COVID-19 teams shall process the following personal data of the persons with whom the persons referred to in the first paragraph have been in contact: 1° the first and last name;2° the postal code; 3° the telephone number;4° the answer to the question whether those persons have symptoms of COVID-19;5° the language proficiency; 6° the fact whether or not those persons exercise a health care profession. The Flemish Government may further specify the personal data as referred to in the first and second paragraphs.

The personal data as referred to in the first paragraph, 1° up to and including 6°, and in the second paragraph, 1° up to and including 4°, shall, to the extent available, be submitted to the healthcare councils by an entity designated by the Flemish Government.

The personal data mentioned in the first paragraph, 7° to 11°, and the second paragraph, 5° and 6°, shall be collected by the COVID-19 team from the person concerned.

The COVID-19 teams shall only have access to the personal data, mentioned in the first and second paragraphs, of the persons whose main residence or other appropriate place where the person concerned stays in temporary seclusion is located in the working area of the care council where the COVID-19 team is established.

The COVID-19 team may, with the consent of the person concerned or his representative, share the data mentioned in the first paragraph with care providers as mentioned in Article 2, 14°, of the Decree of 26 April 2019 on the organization of primary care, regional care platforms and support for primary care providers, with a view to organizing medical and psycho-social support as mentioned in paragraph 1, second paragraph, 3°.

The Flemish Government shall designate an entity to act as processing controller for the data processed by the COVID-19 teams. That entity shall conclude a processing agreement in accordance with Article 28(3) of the General Data Protection Regulation with the care council in which a COVID-19 team has been established.

The personal data, mentioned in the first and second paragraphs, shall be kept by the COVID-19 team for a maximum period of thirty days, except for the personal data, mentioned in the first paragraph, of persons as mentioned in the first paragraph, in whom the medical and psycho-social support, mentioned in paragraph 1, second paragraph, lasts longer than thirty days. In the latter case, personal data shall be kept for up to three days after the end of such medical and psycho-social support.

The Flemish Government may determine what technical and organizational measures the care council shall take to protect the processing of personal data by the COVID-19 team.".

Article 15 :

Art. 15.An article 7/1 shall be inserted in the same decree, reading as follows: "

Art. 7/1.At the request of the Flemish Government, the entity designated to implement Articles 3, 6 and 6/2 shall evaluate the functioning of the local contact centres and the COVID-19 teams. In doing so, it shall check whether they meet the conditions of and pursuant to this decree, and shall pay particular attention to the effectiveness of those local initiatives and the way they handle the protection of the processing of personal data."

Flemish Minister-President Jan Jambom is not happy .....