Law 2/2021 of 19 March on Urgent Measures for Prevention, Containment and Coordination to Address the Health Crisis Caused by COVID-19

OFFICIAL STATE BULLETIN No. 76 Tuesday, March 30, 2021 Sec. I. Page 35952 I. GENERAL PROVISIONS HEAD OF STATE 4908 Law 2/2021, of March 29, on urgent measures for prevention, containment and coordination to address the health crisis occasioned by COVID-19.

FELIPE VI KING OF SPAIN

To all who see and understand this. Know: That the General Courts have approved and I come to sanction the following law:

PREAMBLE I Since the World Health Organization declared the international emergency situation occasioned by the COVID-19 epidemic outbreak as an international pandemic on March 11, 2020, the Council of Ministers, meeting in extraordinary session on Thursday, March 12, adopted the first urgent measures to address the spread of the pandemic, in particular Royal Decree-Law 7/2020, of March 12, by which urgent measures are adopted to respond to the economic impact of COVID-19.

From that moment on, the legal articulation of the response to the pandemic has been structured around two constitutional instruments, on the one hand the declaration of the state of alarm, and the measures adopted under it, and on the other hand the adoption of successive royal decree-laws, fundamentally aimed at alleviating the consequences and negative effects that the pandemic and the containment measures adopted to contain it are having in the socioeconomic sphere.

In this sense, unlike other countries in our vicinity, our constitutional order provides, in Article 116 of the Spanish Constitution, for the declaration of the state of alarm under certain circumstances regulated in Organic Law 4/1981, of June 1, on states of alarm, exception and siege. By virtue of the authorization granted to the Government by said organic law and the factual situations provided for in its fourth paragraph, subsection b) ("sanitary crises, such as epidemics and serious contamination situations") and d) ("situations of shortage of basic necessities"), the Government approved Royal Decree 463/2020, of March 14, declaring the state of alarm for the management of the health crisis situation occasioned by COVID-19.

According to its own preamble, the measures provided for in this provision fall within the Government's decided action to protect the health and safety of citizens, contain the progression of the disease and strengthen the public health system.

This rule included, in addition to measures limiting freedom of movement, which as the law provides was conditioned on compliance with certain requirements, a variety of containment measures in different areas, from the educational and training sphere, to the commercial activity sphere, cultural facilities, recreational establishments and activities, hospitality and catering activities, or places of worship and civil and religious ceremonies.

However, since the World Health Organization's classification as an international pandemic and the subsequent declaration of the state of alarm, the public health emergency occasioned by COVID-19 evolved, both nationally and worldwide, with enormous speed.

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OFFICIAL STATE BULLETIN No. 76 Tuesday, March 30, 2021 Sec. I. Page 35953 This is an unprecedented health crisis of extraordinary scope and severity, both due to the extraordinary risk of contagion and the high number of citizens affected, with the consequent pressure on health services, as well as the high social and economic cost derived from the extraordinary containment and distancing measures adopted by various States.

This evolution has required the adoption of successive additional measures to address the pandemic. However, Article 6 of the aforementioned Organic Law 4/1981, of June 1, establishes that the duration and effects of the state of alarm may not exceed fifteen days, and that it may only be extended with the express authorization of the Congress of Deputies, which in this case may establish the scope and conditions valid during the extension.

Therefore, given the rapid and devastating evolution of the pandemic, in order to guarantee the effective management of said health emergency, contain the spread of the disease and preserve and guarantee the response of the National Health System, the Government has requested authorization from the Congress of Deputies to extend the state of alarm up to six times, as well as the validity of the measures contained therein.

The Plenary of the Congress of Deputies, in the sessions held on March 25, April 9, April 22, May 6, May 20 and June 3, 2020, agreed to grant the aforementioned authorizations to extend the state of alarm successively until 00:00 hours on June 21, 2020.

Since the adoption of Royal Decree 463/2020, of March 14, this rule and the measures contained therein, as well as those established in the successive royal decrees extending the state of alarm, have constituted the basic regulatory framework of the regulations adopted to address the emergency provoked by the pandemic.

This legislation, in accordance with what was stated by the Constitutional Court, on the only occasion it had the opportunity to rule previously on the declaration of the state of alarm, in its Judgment 83/2016, of April 28, 2016, "(i)t must be understood that it is configured in our legal system as a decision or provision with the rank or value of law. And, consequently, it is endowed with a normative value comparable, by its content and effects, to that of laws and assimilable norms whose application may be excepted, suspended or modified during the state of alarm", without the "conclusion being different regarding the rank or value of the decree by which the state of alarm is extended", in this case also with "the peculiarity that the extension decree constitutes an external formalization of the prior authorization of the Congress of Deputies".

The regulations by which additional measures have been adopted under the state of alarm find their legal basis in the authorizations contained in said provisions for this purpose in favor of the Ministers designated as delegated competent authorities to issue orders, resolutions, provisions and interpretative instructions that, in the specific sphere of their action, are necessary to guarantee the provision of all services, ordinary or extraordinary, in order to protect persons, goods and places, both generally and specifically for different areas.

Obviously, the necessary containment measures adopted have had a very relevant economic and social impact, as they have meant reducing economic and social activity temporarily, restricting mobility and paralyzing activity in numerous areas; with the consequent loss of income for workers and households, as well as for the different companies and sectors of the Spanish economy. Therefore, from the very beginning, economic and social measures have been adopted to guarantee the protection of families, workers and vulnerable groups; sustain the productive and social fabric; and mitigate the obvious harms generated by the health crisis through the adoption of a set of provisions articulated in different royal decree-laws aimed at mobilizing national resources for protection against these adverse effects, with special attention to the most vulnerable groups.

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OFFICIAL STATE BULLETIN No. 76 Tuesday, March 30, 2021 Sec. I. Page 35954 In any case, after the publication of the Communication "Common European Roadmap for Lifting COVID-19 Containment Measures", presented on April 15, 2020 by the President of the European Commission and the President of the European Council, the different Member States of the European Union began to plan the different phases that allow resuming economic and social activities, so that any repercussion on people's health is minimized and health systems are not overloaded, taking into account the guidelines of the World Health Organization.

In that context, in light of the main available indicators, the experience acquired at the national level, and best practices in other countries, by Agreement of the Council of Ministers of April 28, 2020, the Plan for the Transition towards a New Normality was approved, which conceives the lifting of containment measures in a gradual, asymmetric manner, coordinated with the autonomous communities and adaptable to necessary changes in orientation depending on the evolution of epidemiological data and the impact of the measures adopted.

The Plan, which was sent to the Congress of Deputies on April 29, 2020 in compliance with what is provided for in the sixth additional provision of Royal Decree 463/2020, of March 14, has the fundamental objective of achieving, maintaining as a fundamental reference the protection of public health, to gradually recover daily life and economic activity, minimizing the risk that the epidemic represents for the health of the population and avoiding that the capacities of the National Health System can be overwhelmed.

In application of said Plan, since the approval of Royal Decree 514/2020, of May 8, extending the state of alarm declared by Royal Decree 463/2020, of March 14, and in accordance with what is provided for in the authorization granted by the Congress of Deputies, the Minister of Health was enabled to agree, within the scope of his competence and on proposal, if applicable, of the autonomous communities and the cities of Ceuta and Melilla, the progression of the measures applicable in a certain territorial area, in view of the evolution of the health, epidemiological, social, economic and mobility indicators established in the Plan.

In turn, Article 4 of the aforementioned Royal Decree established that "(i)n the process of de-escalation of the measures adopted as a consequence of the health emergency caused by COVID-19, the Government may agree jointly with each Autonomous Community the modification, expansion or restriction of the units of action and the limitations regarding freedom of movement of persons, containment measures and measures to ensure goods, services, transports and supplies, in order to better adapt them to the evolution of the health emergency in each autonomous community".

By virtue thereof, and in application of the regulations issued on this matter by the Minister of Health, the different territories have been progressing phase by phase, in an asymmetric and gradual manner, with the consequent lifting and modulation of the different measures initially established in Royal Decree 463/2020, of March 14, up to the current moment.

For its part, Royal Decree 537/2020, of May 22, extending the state of alarm declared by Royal Decree 463/2020, of March 14, established, in its Article 5, that "(t)he overcoming of all the phases provided for in the Plan for the De-escalation of Extraordinary Measures Adopted to Address the COVID-19 Pandemic, approved by the Council of Ministers in its meeting of April 28, 2020, will determine that the measures derived from the declaration of the state of alarm in the corresponding provinces, islands or territorial units remain without effect".

At the current moment, in which the entire national territory has reached at least phase II of the Plan, the current Royal Decree 555/2020, of June 5, extending the state of alarm declared by Royal Decree 463/2020, of March 14, by which the state of alarm is declared for the management of the health crisis situation occasioned by COVID-19, in addition to maintaining this last provision, provides that the authority

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OFFICIAL STATE BULLETIN No. 76 Tuesday, March 30, 2021 Sec. I. Page 35955 competent delegated for the adoption, suppression, modulation and execution of measures corresponding to phase III of the De-escalation Plan will be, in exercise of its competencies, exclusively the holder of the Presidency of the autonomous community, except for measures linked to freedom of movement that exceed the scope of the territorial unit determined for each autonomous community.

In addition, it is foreseen that it will be the autonomous communities that may decide, in accordance with health and epidemiological criteria, the overcoming of phase III in the different provinces, islands or territorial units of their community and that, consequently, the measures derived from the declaration of the state of alarm in their respective territories remain without effect.

In this state of the de-escalation process and within the framework of these provisions, during the validity of this last extension it is intended to conclude said process with the gradual lifting and definitive loss of effectiveness of the measures in all territories if, as is foreseeable, all of them overcome all the phases of the de-escalation process.

The final de-escalation process of containment measures has thus been synchronized with the maintenance of the state of alarm, so that the gradual and coordinated lifting of the same, as provided for in the Plan for the Transition towards a New Normality, would allow not compromising the achievement of the containment objectives of the pandemic established from the beginning of the health emergency situation occasioned by COVID-19. In this regard, the favorable evolution of the situation recorded already during the fifth extension must be highlighted.

In view of the different indicators and parameters examined in relation to the strategic capacities of health assistance, epidemiological surveillance, containment of contagion sources and collective protection, the favorable progress in the containment of the pandemic and transmission chains allows at the current moment that, once the validity of the last extension has expired, and all the phases of the de-escalation process have been overcome, the measures derived from the declaration of the state of alarm in the entire national territory remain without effect.

However, the current favorable evolution in the containment of the pandemic does not exempt public powers from their duty to "organize and protect public health through preventive measures and the necessary provisions and services" established in Article 43.2 of the Spanish Constitution to guarantee the right to health protection that this article recognizes in its first paragraph.

Therefore, although the effects of the pandemic have been notably controlled thanks to the containment measures adopted, its nature and unpredictable evolution, as well as "the current state of scientific research, whose advances are changing" and the "uncertainty so accentuated and difficult to calibrate from legal parameters" to which the Constitutional Court refers in its Order of April 30, 2020 (FJ 4), in relation to the forms of contagion and the spread of the virus, advise the adoption of a series of urgent measures of prevention, containment and coordination, which allow continuing to face and control the pandemic, once the validity of the state of alarm expires and the measures derived from its adoption decline.

In this sense, it is essential to distinguish between the expiration of the containment measures limiting freedom adopted during the validity of the state of alarm and its successive extensions to address the health emergency situation occasioned by COVID-19, and the health crisis proper, caused by the pandemic, which subsists, although notably attenuated in our country, and whose overcoming has not yet been officially declared either at the national or international level by the competent organizations and authorities.

Therefore, given the possible risks that could derive from the automatic loss of validity of said measures for the favorable evolution in achieving the pandemic containment objectives, due to the appearance of new epidemiological outbreaks and new unidentified transmission chains that could compromise the guarantee of physical integrity and the health of persons and place the available health resources again under enormous pressure

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OFFICIAL STATE BULLETIN No. 76 Tuesday, March 30, 2021 Sec. I. Page 35956 from the perspective of the constitutional duty of public powers to organize and protect public health through preventive measures, the adoption of said preventive measures is urgent and necessary, while the end of the health crisis situation is not officially declared.

To this end, this Law responds with the establishment of a general duty of caution and protection that reinforces prevention behaviors in the entire population, and with the adoption of a series of urgent measures of prevention, containment and coordination, aimed at guaranteeing the right to life and health protection while the health crisis occasioned by COVID-19 persists, once the validity of the state of alarm and the extraordinary containment measures, including those limiting freedom of movement, established under it, have expired.

Additionally, the scope and severity of this health crisis have highlighted certain deficiencies in the regulation contained in our ordinary legislation, apart from the declaration of the state of alarm, to address health crises of this or similar nature. Therefore, it is also considered necessary to undertake a series of specific modifications to health legislation so that the articulation of an effective and coordinated response by health authorities against this type of crisis is guaranteed in the future.

The urgent nature of said modifications is justified, on the one hand, by the current persistence of the crisis situation derived from the pandemic officially declared as such, and on the other hand, by the nature and unpredictable evolution of the same, in the terms mentioned above, which advise the immediate modification of those provisions provided for in the legislation in force to address this type of situations, in order to guarantee greater effectiveness and coordination in the adoption of measures to face them, not only in the future, generally, but also, at the current moment, against the contingency that the appearance of eventual outbreaks of community transmission of COVID-19 would represent.

To this effect, said modifications will allow plans and strategies of action to be drawn up or activated to address health emergencies through the figure of "coordinated actions in public health". Likewise, it is intended to guarantee adequate coordination between health authorities and reinforce the functioning of the entire national health system, in the face of health crises.

II The Law is structured in seven chapters, 31 articles, seven additional provisions, one repealing provision, eight final provisions and an annex.

Chapter I, Articles 1 to 5, collects the general provisions, that is, the object and scope of application of the Royal Decree-Law, the competent bodies, as well as the measures that must be adopted to avoid the generation of risks of spread of the COVID-19 disease. Likewise, the adoption of plans and strategies of action to address health emergencies is foreseen, through coordinated actions in public health, for the development of the different activities contemplated in the following chapters.

Chapter II is integrated by Articles 6 to 16 and collects the maintenance of certain prevention and hygiene measures, such as the mandatory use of masks in public roads, outdoor spaces and closed spaces of public use or open to the public, as well as in transports. Likewise, in this regard, the possibility is contemplated that masks can be purchased individually in pharmacy offices, which facilitates their access to the population. This measure, together with the modification established in the consolidated text of the Law on guarantees and rational use of medicines and medical products, approved by Royal Legislative Decree 1/2015, of July 24, allows access to masks to be carried out under non-abusive economic conditions. Likewise, this chapter contemplates the adoption of certain prevention measures in the work environment, such as the organization of workstations or the organization of shifts to avoid overcrowding, as well as the maintenance of basic prevention and hygiene measures in commercial establishments, social residential centers, hotels and tourist accommodations or in hospitality and catering activities, among others. In the sports sphere, for its part, the competence of the Higher Sports Council is recognized to apply these measures in certain professional competitions, once the organizer, the Ministry of Health and the autonomous communities have been heard; and depending on the concurrent circumstances and the necessary protection of athletes and the public.

Chapter III, Articles 17 and 18, collects various provisions that enable the regulation of the offer of places and the volume of occupancy in passenger transport services by sea, rail and road, all of which are state competence. Transport operators with pre-assigned seat numbers must preserve, at the disposal of public health authorities, the contact information of passengers for a minimum of four weeks, in order to perform contact tracing. Likewise, the holder of the Directorate General of the Merchant Marine is enabled to order, on proposal of the Ministry of Health, the adoption of sanitary measures for the control of ships, including cruise ships, that carry out international trips and navigate through territorial sea waters in order to enter Spanish ports.

Chapter IV, Articles 19 to 21, contains measures relating to medicines, medical products and products necessary for health protection. Among other aspects, it should be noted, in the matter of medicines, the need to give continuity to the measures of information supply, supply and manufacture of those considered essential for the health management of COVID-19. Likewise, to protect public health, it must be guaranteed

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