Fears of 'legal chaos' if state of alarm is lifted on May 9

The Spanish government continues to intend to not extend the state of alarm beyond May 9, when it is set to come to an end – but this could potentially entail some legal confusion.

Certain exceptional Covid-curbing measures that are in force in territories like Catalonia, such as the curfew or border closures, are only able to be implemented because the state of alarm legally enables regional governments to enforce them.

But what would happen if, for instance, the Catalan cabinet thought that any of these major mobility restrictions should continue beyond May 9?

Catalonia's interior minister, Miquel Sàmper, was clear when asked about the issue last Wednesday: a judge would have to rule on the matter beforehand.

"If we believe the curfew has to remain in place, this decision would have to be greenlighted by the Catalan high court because it restricts a fundamental right," he said, emphasizing that the cabinet has not yet discussed whether it would be appropriate. 

If this filter were passed, Catalonia would directly rule on any of the approved restrictions as it is currently doing.

Insufficient means of fighting the fourth wave?

Some regional governments within Spain have expressed fears of potential legal clashes and Covid-19 restrictions being blocked by judges, thereby hindering their ability to counter the fourth wave of the pandemic.

Anticipating this potential legal disarray, cabinets such as that of the Basque Country have requested either an extension of the state of alarm or to be provided with an equivalent mechanism to implement required measures.

Yet, on Thursday, Spain's justice minister Juan Carlos Campo rejected the "legal chaos" after May 9 scenario because, in his opinion, the ordinary legal framework will be enough for whatever the appropriate measures may be.

In an interview with Catalunya Ràdio on Thursday, he stated that he is not concerned about courts possibly having to greenlight regulations because until now "only very few" judicial decisions overruled regional authorities' Covid-19 policies.

Spain's vice president Carmen Calvo agreed with him, arguing that "in 99% of cases," magistrates have backed the restrictions.

Coordination meeting decisions will be "mandatory"

Pedro Sánchez's second-in-command explained in an interview with Canal Sur TV that if Spain and the regional health authorities decided to close one region's borders in one of the weekly coordination meetings, judges would have to support the measure.

"If the Interterritorial Council decides that a region is particularly affected, it can adopt what is called 'coordinated action,' which the Third Chamber of the Supreme Court has already said is mandatory."

According to her, ordinary health regulations permit "almost" everything except for home confinement orders.

Last week, the Catalan executive's spokesperson, Meritxell Budó, called on Madrid to not make a decision on the end of the state of alarm yet.

"I guess Spain will make the decision depending on how epidemiological indicators progress," she said. "The decision has to be made according to what the health authorities require."