Covid in court
Tuesday 13 December 2022
Corinna Klostermann
PelsRijcken, The Hague
corinna.klostermann@pelsrijcken.nl
Introduction
The Covid-19 pandemic has held us in its grip for more than two years. Since the outbreak of the Covid-19 pandemic in the Netherlands, the state of the Netherlands (the State) has taken far-reaching measures to fight it, including closing schools, restaurants, bars and sports venues, as well as a curfew and a prohibition against events. As the virus developed, the measures were tightened and relaxed again on several occasions.1
The measures taken resulted in a large number of court cases being initiated against the State.2 Private citizens, businesses and interest organisations have applied to the court in preliminary relief proceedings for an order requiring the State to lift certain measures or to take more far-reaching measures. In doing so, interest groups made use of the instrument of the class action.3 Civil proceedings on the merits have also been filed or announced, including proceedings on the question of whether the State is required to pay loss compensation to the hospitality industry.
Until now, the court has found no cause – with the exception of the curfew, which decision was set aside by the Court of Appeal – to require the State to adjust the policy it has pursued.
This article provides a concise chronological overview of the court cases conducted and the conclusions that can be drawn from them.4 This overview is preceded by a brief discussion of the manner in which Covid-19 measures are determined in the Netherlands.
How measures are determined in the Netherlands
In its decision-making concerning Covid-19 measures, the government is advised by the medical and epidemiological experts in the Outbreak Management Team (the OMT).5 Then, the Administrative Coordination Meeting (Bestuurlijk Afstemmingsoverleg), with representatives of local, sectoral and national public sector bodies, advises the Minister on the political and administrative feasibility and desirability of the measures recommended by the OMT. Prior to the decision-making, the social and economic consequences and enforceability of the measures are also considered by weighing a wide range of social aspects.
The Covid-19 measures are a subject of continuous political debate. When new measures or the extension or relaxation of measures is announced, a majority of the Dutch House of Representatives may decide not to agree to these.6 This has not happened yet. However, the political debate has resulted in several minor adjustments, such as adjusting the time of the curfew.
Until 1 December 2020, Covid-19 measures were laid down in local emergency decrees. Effective from 1 December 2020, the measures are included in the Temporary Act Governing the Covid-19 Measures (Tijdelijke wet maatregelen Covid-19) and the Covid-19 (Temporary Measures) Act (Tijdelijke regeling maatregelen Covid-19).
The first wave
In the Netherlands, the first patient infected by the Covid-19 virus was discovered on 27 February 2020. On 11 March 2020, the World Health Organization (WHO) officially recognised the outbreak of the Covid-19 virus as a pandemic. One day later, the first proceedings were filed in the Netherlands by a foundation. This foundation sought an order for a complete lockdown. In the period between the summons and the hearing, the State took increasingly far-reaching measures to fight Covid-19 based on recommendations from the OMT: schools, the hospitality industry and sports venues were closed; all events and meetings were cancelled and most professions involving physical contact, such as hairdressers, were required to close their doors.
The preliminary relief judge denied the foundation's claims. The State has a large degree of discretion in such a crisis situation, according to the preliminary relief judge. Intervention by the court is only possible if the State has manifestly made incorrect choices and reasonably could not have arrived at the policy pursued. Relevant in this regard is that the State is entitled to place trust in advice from experts, as no other working method is really imaginable. Because the OMT had not recommended a complete lockdown and the claimants had not plausibly demonstrated why that advice might be incorrect, it had not been established that the State reasonably could not have opted for the policy it pursued.7
The same assessment framework also served as the point of departure in later proceedings concerning the lawfulness of the Covid-19 measures. The Court of Appeal also confirmed this assessment framework.8
Summer of relaxation
Early in May 2020, the government presented a ‘roadmap’ with an estimate of the times at which the various measures could be expected to be relaxed. Various business owners, including a chain of gyms and a group of funfair operators, saw cause in the roadmap to initiate preliminary relief proceedings. They applied to the court in an attempt to immediately reopen their businesses. During the proceedings, however, new recommendations from the OMT indicated that it might be possible to relax the measures sooner for these sectors, inspiring the business owners to withdraw their claims.
The foundation Viruswaarheid (Virus Truth) filed various proceedings against the State in the summer of 2020.9 In one of these cases, the foundation sought an order to withdraw all Covid-19 measures, including the measure of maintaining a distance of 1.5 metres. Again, the preliminary relief judge ruled that the State had acted with due care by requesting advice from the OMT and then weighing interests. The fact that the nature and seriousness of, and approach to, Covid-19 were subject to academic debate did not mean that the measures were unlawful. According to the court, ‘the State is to be admired for acknowledging that it is not 100 per cent certain that in the end, it will prove to have chosen the best approach’.
Adjudicating in this battle of experts is not up to the courts, either. The Covid-19 measures were not disproportionate in the opinion of the preliminary relief judge. The evaluation of the measures on a regular basis was also deemed relevant, while the court also ruled that the measures, which were laid down in emergency decrees at that time, had sufficient basis in the law.10
In other proceedings, the Virus Truth foundation sought inspection of the OMT's minutes.11 Unlike the OMT’s recommendations, the minutes of their meetings are not made public. The court denied this claim for inspection. The serious weight carried by the interest of confidential consultation and the freedom to consider meant that the State was not obliged to publish the OMT’s minutes, not even in a redacted form.12
The hospitality industry’s sector organisation also filed proceedings in the summer of 2020 regarding the application of the 1.5 metres measure in their sector. This claim was also denied by the preliminary relief judge, who referred to the known assessment framework. The preliminary relief judge was of the opinion that the State was not required to publish a roadmap with the scheduled relaxation of measures, as the future course of the virus is too uncertain.13
The second wave
The measures were tightened in the autumn of 2020. A partial lockdown took effect on 14 October 2020, as a result of which the hospitality industry was closed down. On 1 December 2020, the urgent advice to wear a mask was converted into an obligation. A total lockdown followed on 14 December 2020. Schools, non-essential shops and sports venues were temporarily closed. An obligatory polymerase chain reaction (PCR) test was implemented late in December 2020 for all travellers from a high-risk area arriving in the Netherlands. A nationwide curfew was implemented on 23 January 2021.
Hospitality business owners attempted to prevent the industry from being closed down as of 14 October 2020. The claims were denied, however, because the State’s policy did not prove to be manifestly incorrect. The preliminary relief judge ruled that the State is entitled to place trust in the OMT’s recommendations when the effectiveness of the measure cannot be exactly determined as yet, because which measures prove to be the most appropriate and effective at which time can only be determined after the fact.14
Proceedings were also conducted during the second wave in respect of wearing masks in secondary schools. Students were required to wear a mask outside of the classroom, but not inside the classrooms. The ‘Protect Everybody’ foundation was of the opinion that the State should also require masks to be worn inside classrooms when a distance of 1.5 metres could not be maintained. This foundation invoked the recommendations of the WHO. The preliminary relief judge ruled that the WHO’s recommendations were not of a mandatory nature, but that the State was nevertheless required to explain why it opted to deviate from those recommendations. In the opinion of the Preliminary Relief Judge, the State had sufficiently explained its choice.15 A short while later, the Wij Willen Gewoon Naar School (We Want To Go To School Normally) foundation sought the entire lifting of the obligation to wear masks in schools. That claim was also denied.16
The Virus Truth foundation filed proceedings together with a number of private citizens concerning the mandatory negative test when travelling by air to the Netherlands from a high-risk area. The preliminary relief judge ruled that initially, no provision had been made for a sufficiently proper legal basis.17 After the measure had been included in the Temporary Act Governing Covid-19 Measures by means of an emergency legislation process, the preliminary relief judge ruled that a sufficient legal basis had been created. The court also disregarded the claimants’ objections against the violation of their constitutional rights. The preliminary relief judge ruled that the restriction imposed could be justified based on the State’s positive obligation to serve the interests of public health.18 Later this was upheld by the Court of Appeal.19
The Virus Truth foundation also filed preliminary relief proceedings in January 2021 against the imposition of the curfew. These claims were awarded by the preliminary relief judge, who ruled that the requisite legal basis for the curfew measure was lacking. In addition, the preliminary relief judge was of the opinion for the time being that the State's substantiation of the need for the curfew measure was highly questionable.21 After an accelerated appeal, the decision of the preliminary relief judge was set aside by the Court of Appeal of The Hague. The Court of Appeal ruled that the requisite legal basis had in fact been provided. The need for the curfew measure was furthermore sufficiently substantiated by the OMT’s recommendation.22 According to the Court of Appeal, in considering the measures to be taken, in principle the State was entitled to place trust in the OMT’s recommendations, as it was not without cause that the OMT was ‘responsible for providing the best possible professional advice on the crisis measures to be taken’.23
Reopening society
Late in February 2021, the government decided to relax a number of measures. Many schools reopened, shopping by appointment was permitted, and more room was given to practice sports outside in a group. Professions involving physical contact were also permitted to open their doors.24 However, many sectors remained closed. Non-essential shops and tanning studios found cause to seek complete reopening. The preliminary relief judge denied their claims, emphasising that under the current circumstances, the State could not relax too many Covid-19 measures at the same time. Choices had to be made, and the State was entitled to make those choices.25
On 13 April 2021, the government announced an opening plan in which measures would be relaxed one step at a time. The opening plan led to various proceedings similar to those conducted in the summer of 2020. For example, gym owners sought to open their doors earlier and under less stringent conditions than had been provided for in the opening plan. The claims were denied. The court once again referred to the State’s wide policy discretion and the OMT’s recommendations.26
Society had been largely reopened, under certain conditions, by the end of June 2021. However, the number of infections rose significantly early in July 2021. This gave the government cause to tighten the measures applicable to the hospitality industry and events. Events lasting more than one day were prohibited, and nightclubs were once again required to close their doors. In response, the hospitality and events sector filed various preliminary relief proceedings. The claims were denied, with reference to the OMT’s recommendations.27
The 1.5 metres measure was lifted on 25 September 2021, while a mandatory Covid certificate was implemented for the hospitality industry, events and other activities. Visitors over the age of 13 must provide a QR code showing either that they have been vaccinated or that have tested negative. In response, individual private citizens applied to the court for suspending use of the Covid certificate. These claims were denied by the preliminary relief judge, who ruled that a legal basis exists, that a legitimate purpose is being served with the Covid certificate and that the prohibition against discrimination is not being violated. Nor was there was any disproportionate violation of other constitutional and human rights or of the General Data Protection Regulation (GDPR), according to the preliminary relief judge.28
Omicron
Despite the vaccination campaign, infections increased rapidly in the autumn of 2021 due to the introduction of the more contagious Omicron variant. Given these developments, the State decided in December 2021 to institute a new lockdown. From January 2022, the measures were gradually relaxed again. No preliminary relief proceedings have been filed on the legality of this lockdown. However, the legality of this lockdown is currently still being litigated in various civil proceedings on the merits.
Conclusion
Private citizens, businesses and interest groups have turned to the courts on multiple occasions during the Covid-19 pandemic for an assessment of the Covid-19 measures. The case law clearly shows that the State has wide policy discretion to take Covid-19 measures. Based on the Dutch constitution and international conventions, the State is responsible for taking appropriate measures to promote public health and to prevent epidemic, endemic and other illnesses in so far as possible. The question of the measures to be taken and whether those measures are proportionate and optional is primarily a political choice. The courts will only intervene if the State has manifestly made wrong choices or if there is no proper legal basis for the measures.
The case law shows that the court places great store in the medical and epidemiological recommendations made by the OMT. In principle, the State may place trust in a recommendation made by the OMT. It is not without cause that this is deemed ‘the best possible professional advice on the measures to be taken’. The State is not required to comply with the OMT’s recommendations. However, if it deviates from those recommendations the State must be able to properly explain this. The same applies to a situation in which the State deviates from recommendations issued by the WHO. The case law also shows that there need not be academic certainty as to the effectiveness of the measures before measures may be taken. The court acknowledges that, in all likelihood, it will only be possible to determine which measures prove to be the most appropriate and effective after the fact.
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1. A timeline of the Covid-19 measures in the Netherlands can be found at www.rivm.nl/gedragsonderzoek/tijdlijn-maatregelen-covid (accessed 21 November 2022).
2. To date this concerns more than 30 cases. The author of this article has acted as a lawyer in various cases.
3. The legal basis for this is Article 3:305a of the Dutch Civil Code. For completeness, the author also mentions the proceedings on the mandatory PCR test result on entry for travellers from abroad. The court ruled that the legal basis for this obligation was lacking.20 This led to amendment of the relevant regulations. See: Preliminary Relief Judge of the District Court of The Hague, 31 December 2020, ECLI:NL:RBDHA:2020:13643, Preliminary Relief Judge of the District Court of The Hague, 8 January 2021, ECLI:NL:RBDHA:2021:63 and Preliminary Relief Judge of the District Court of The Hague, 28 January 2021, ECLI:NL:RBDHA:2021:600.
4. This is a summary of the main lines. Most but not all of the proceedings are discussed.
5. The OMT’s recommendations are continually published and can be found at www.rivm.nl/coronavirus-covid-19/omt (accessed 21 November 2022).
6. This is known as the preliminary and subsequent scrutiny procedure and is governed by Article 58c (2) and (3) of the Dutch Public Health Act (Wet publieke gezondheid).
7. Preliminary Relief Judge of the District Court of The Hague 3 April 2020, ECLI:NL:RBDHA:2020:3013.
8. See for example: The Hague Court of Appeal, 26 February 2021, ECLI:NL:GHDHA:2021:285.
9. The Virus Truth foundation also contested a decision by the Safety Region to prohibit a large demonstration in order to protect public health and avoid disturbances. See for example: Preliminary Relief Judge of the District Court of The Hague, 27 June 2020, ECLI:NL:RBDHA:2020:5865.
10. Preliminary Relief Judge of the District Court of The Hague, 24 July 2020, ECLI:NL:RBDHA:2020:6856.
11. The legal basis for a claim seeking inspection is Article 843a of the Dutch Code of Civil Procedure.
12. Preliminary Relief Judge of the District Court of Midden-Nederland, 9 September 2020, ECLI:NL:RBMNE:2020:3799
13. Preliminary Relief Judge of the District Court of The Hague, 21 August 2020, ECLI:NL:RBDHA:2020:8051 and ECLI:NL:RBDHA:2020:8776.
14. Preliminary Relief Judge of the District Court of The Hague, 20 October 2020, ECLI:NL:RBDHA:2020:10755.
15. Preliminary Relief Judge of the District Court of The Hague, 14 December 2020, ECLI:NL:RBDHA:2020:12689 and Preliminary Relief Judge of the District Court of The Hague, 15 January 2021, ECLI:NL:RBDHA:2021:268.
16. Preliminary Relief Judge of the District Court of The Hague, 11 February 2021, ECLI:NL:RBDHA:2021:982.
17. Preliminary Relief Judge of the District Court of The Hague, 31 December 2020, ECLI:NL:RBDHA:2020:13643. According to the Preliminary Relief Judge, Articles 7, 53 and 54 of the Public Health Act do not provide a proper legal basis for a mandatory negative PCR test for travellers returning to the Netherlands by air.
18. Preliminary Relief Judge of the District Court of The Hague, 28 January 2021, ECLI:NL:RBDHA:2021:600. Also see: Preliminary Relief Judge of the District Court of The Hague, 8 January 2021, ECLI:NL:RBDHA:2021:63.
19. The Hague Court of Appeal, 18 May 2021, ECLI:NL:GHDHA:2021:868.
20. Use had been made of a special act, the Civil Authority Special Powers Act (Wet buitengewone bevoegdheden burgerlijk gezag), for the implementation of the curfew. That act gives the government the possibility of imposing a curfew under extremely urgent and extraordinary circumstances without first having to complete the legislation process, in which the House of Representatives and the Senate are involved in advance.
21. Preliminary Relief Judge of the District Court of The Hague, 16 February 2021, ECLI:NL:RBDHA:2021:1100.
22. The Hague Court of Appeal, 26 February 2021, ECLI:NL:GHDHA:2021:285.
23. Ibid. Also see: The Hague Court of Appeal, 18 May 2021, ECLI:NL:GHDHA:2021:869.
24. This did not apply to the sex industry.
25. Preliminary Relief Judge of the District Court of The Hague, 12 March 2021, ECLI:NL:RBDHA:2021:2295 and Preliminary Relief Judge of the District Court of The Hague 7 April 2021, ECLI:NL:RBDHA:2020:3352.
26. Preliminary Relief Judge of the District Court of The Hague, 4, June 2021, ECLI:NL:RBDHA:2021:5666 and Preliminary Relief Judge of the District Court of The Hague, 4 June 2021, ECLI:NL:RBDHA:2020:5665.
27. See for example: Preliminary Relief Judge of the District Court of The Hague, 19 September 2021, ECLI:NL:RBDHA:2021:10092 and Preliminary Relief Judge of the District Court of The Hague, 1 October 2021, ECLI:NL:RBDHA:2021:10664.
28. Preliminary Relief Judge of the District Court of The Hague, 6 October 2021, ECLI:NL:RBDHA:2021:10863.