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A new BOE has been published today in respect of testing, the new rules will come into effect from the 23rd November, we expect to have further clarification in the following days, we have copied the BOE below or you can view the original by clicking the link below, as we said we will expect further details and will keep you updated.

PDF (BOE-A-2020-14049 – 12 pages – 480 KB )

BOE

Published in:

” BOE ” no. 298, of November 12, 2020, pages 98852 to 98863 (12 pages )

Section:

  1. General provisions

Department:

Ministry of Health

Reference:

BOE-A-2020-14049

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Text

ORIGINAL TEXT

Royal Decree Law 23/2020, of June 23, which approves measures in the field of energy and in other areas for economic reactivation, provides in its sixth additional provision that the Ministry of Health will determine the necessary sanitary controls to the that passengers arriving in Spain by air or sea must submit and the scope of said controls, being responsible for their execution. Said health checks may include taking the temperature, a documentary check and a visual check on the status of the passenger.

Since the beginning of the implementation of these health controls, through the Resolution of June 29, 2020, of the General Directorate of Public Health, Quality and Innovation, regarding the health controls to be carried out at the points of entry in Spain, subsequently replaced by the Resolution of July 24, 2020, of the General Directorate of Public Health, Quality and Innovation, regarding the health controls to be carried out at the points of entry into Spain, the epidemiological situation with respect to the COVID-19 pandemic. 19 has been changing, not only in our country but globally. At the present time, in Spain, as in most European countries, there is an upward trend in the number of cases. This increase has resulted in a significant increase in the cumulative incidence in fourteen days, up to well above 60 cases per 100,000 inhabitants, which marks the high-risk threshold according to the criteria of the European Center for Disease Prevention and Control. This situation once again puts stress on our health system, requiring the urgent adoption of control measures that avoid any negative impact on health care for pathologies other than COVID-19.

In the same way, the health surveillance and control mechanisms that countries have been implementing at points of entry have also evolved in order to control the importation of cases from passengers from countries at risk. In this sense, a significant disparity has been evidenced in the health control models implemented, which has meant that the Council of the European Union has adopted Recommendation (EU) 2020/1475, of October 13, 2020, on an approach coordinated restriction of free movement in response to the COVID-19 pandemic.

In this Recommendation, it is established that the restrictions on the free movement of people within the Union that are established to limit the spread of COVID-19 must be based on specific reasons of public interest and limited for reasons of protection of public health. Such limitations must be applied in compliance with the general principles of Union law, in particular proportionality and non-discrimination and respect for the free movement of persons within the territory of the EU.

For all these reasons, it is necessary to update the health controls to which all international passengers must currently undergo at the points of entry. In this way, temperature control and visual control are maintained in the same terms as up to now, and the scope of documentary control is expanded to include the requirement of a diagnostic test for active infection for SARSCoV-2 with a negative result. made in the seventy-two hours prior to arrival, to all passengers from countries / areas at risk. This measure is included among those contemplated in Recommendation (EU) 2020/1052 of the Council of the European Union, which also indicates that, whenever possible, in the strategies decided by the Member States,

To this end, in the Health Control Form that every passenger has to fill out before entering the country, through the internet address www.spth.gob.es or through the free application SPAIN TRAVEL HEALTH-SpTH, It will include a question about whether the traveler has an Active Infection Diagnostic Test for SARSCoV-2 with a negative result, in line with the form prepared by the International Civil Aviation Organization, based in turn on the Passenger Locator Card contemplated in the annex 9 on facilitation of the International Civil Aviation Convention.

For the designation of risk areas or countries that will be required to perform an Active Infection Diagnostic Test for SARS-CoV-2 with a negative result, in the case of European Union countries, the reference will be taken criteria contemplated in Recommendation (EU) 2020/1475. As far as third countries are concerned, the basic reference will be the cumulative incidence per one hundred thousand inhabitants in fourteen days, supplemented with the capacities implemented as contemplated in the International Health Regulations, based on the information provided by the European Center for the Disease Prevention and Control (ECDC).

As contemplated in article 52 of Law 33/2011, of October 4, General of Public Health, the health authority may request the support, assistance and collaboration of other administrative bodies, public officials or other institutions, and may even require , in case of strict and urgent need and for better compliance with current legislation, the assistance of the State Security Forces and Bodies or other agents of the authority that have entrusted security functions.

Royal Decree Law 23/2020, of June 23, establishes that travel agencies, tour operators and air or maritime transport companies and any other agent that sells tickets separately or as part of a combined trip must inform the passengers, at the beginning of the ticket sales process for Spain, the traveler is obliged to present the Health Control Form upon arrival, which will include the declaration of having a Diagnostic Test of Active Infection for SARSCoV- 2 with a negative result carried out in the seventy-two hours prior to arrival in those from countries / areas at risk.

Likewise, said royal decree law establishes that the airport manager and the airlines will collaborate with the Ministry of Health for the implementation of sanitary control measures, a fundamental aspect when it comes to guaranteeing the proper implementation of the measure. In this sense, in application of the duty of collaboration provided for in section 4 of the Sixth Additional Provision of Royal Decree-Law 23/2020, airlines will check prior to boarding that passengers bound for Spain have the QR code generated at through the website www.spth.gob.es, or the Spain Travel Health-SpTH application. Passengers arriving in Spain by sea and those arriving by air who, exceptionally, would not have been able to electronically complete the Health Control Form, They may present it in paper format before boarding, as an alternative to the QR code. In this case, it must be accompanied by the document certifying the completion of the PDIA.

For the application of this resolution, Aena SME, SA and the Port Authorities will provide their collaboration as contemplated in the first and second additional provisions of Royal Decree-Law 21/2020, of June 9, on urgent prevention and containment measures. and coordination to face the health crisis caused by COVID-19.

From the competence point of view, it should be noted that, in accordance with the provisions of article 149.1.16 of the Spanish Constitution, the State has exclusive competence in matters of external health.

For its part, article 52.1 of Law 33/2011, of October 4, General Public Health, provides that, within the framework of their respective functions, the heads of the superior bodies and directive bodies with responsibilities in public health of the Ministry of Health with a rank equal to or higher than that of Director General, are considered a state health authority. Likewise, in accordance with the provisions of section 2 of the aforementioned article 52, the state health authority, in accordance with its powers, has powers to act in public or private activities to protect the health of the population.

By virtue of it and under the provisions of the sixth additional provision of Royal Decree-Law 23/2020, of June 23, and the provisions of article 52 of Law 33/2011, of October 4, I resolve:

First.

All passengers arriving in Spain by air or sea must undergo a health check before entering the country. These controls may include taking the temperature, a documentary control and a visual control of the passenger’s condition.

The provisions of the preceding paragraph shall apply to international passengers whose final destination is Spain and not to those international passengers in transit at a Spanish port or airport with a final destination to another country.

The health control prior to entry will be carried out at the first Spanish port or airport where the passenger arrives.

Second.

Passengers arriving in Spain by air or sea must undergo a temperature control, which will be carried out routinely in order to identify travelers with fever. A temperature equal to or greater than 37.5 ºC is established as the detection limit.

Taking the temperature should be done using non-contact thermometers or thermal imaging cameras. Personal data and images captured by thermal imaging cameras will not be stored, and the passenger’s privacy must be guaranteed at all times.

Shipping companies, under the supervision of Foreign Health, must take the temperature of passengers traveling internationally before their arrival at the Spanish port, following the provisions of this section.

Third.

With regard to documentary control, all passengers originating at any airport or port located outside of Spain must complete, before departure, a public health form called “Health Control Form”, through the website www .spth.gob.es, or the Spain Travel Health-SpTH application. Its content differs depending on whether the trip takes place by air or by sea and its models are attached as Annex I to this resolution.

When the traveler uses the sea route, while the computer system for this route is enabled, or when in exceptional cases it has not been possible to fill out the Health Control Form electronically, he must present the form upon arrival in Spain on paper, with a DIN A4, completed on both sides as shown for download at https://www.mscbs.gob.es/profesionales/saludPublica/sanidadExterior/ControlHS.htm

Fourth.

Every passenger from a country or risk zone listed in Annex II, who intends to enter Spain, must have a Diagnostic Test for Active Infection (hereinafter PDIA) for SARS-CoV-2 with a negative result, carried out in the seventy-two hours prior to arrival in Spain.

As part of the documentary control that is carried out at the entry points, the passenger may be requested, at any time, to accredit the result of the PDIA. The supporting document must be the original, will be written in Spanish and / or English and may be submitted in paper or electronic format. The document will contain, at least, the following information: traveler’s name, passport number or national identity document or letter (which must coincide with the one used in the Health Control Form), date of the test, identification and contact details of the center conducting the analysis, technique used and negative test result.

The PDIA for SARS-CoV-2 supported is PCR (COVID-19 RT-PCR). As long as its harmonized use is not accepted in the European Union, other diagnostic tests such as rapid antibody tests, rapid antigen detection tests or high performance serologies (ELISA, CLIA, ECLIA) will not be accepted.

Exceptionally, the non-completion of the PDIA at origin may be admitted, regardless of the passenger’s country of origin, to seafarers who arrive in Spain back from their campaign on board a ship or in transit to embark or disembark, having to justify their condition as a crew member and the impediments for carrying it out, without prejudice to the application of the provisions of the sixth section of this resolution.

Fifth.

The port and airport managers and the airlines and shipping companies will collaborate with the Ministry of Health for the implementation of the measures provided for in this resolution, in accordance with the provisions of the sixth additional provision of Royal Decree-Law 23/2020, of 23 of June, and in the first and second additional provisions of Royal Decree-Law 21/2020, of June 9, of urgent prevention, containment and coordination measures to face the health crisis caused by COVID-19.

Travel agencies, tour operators, air or maritime transport companies and any other agent that sells tickets in isolation or as part of a combined trip must inform passengers, at the beginning of the process of selling tickets to Spain, as well as in the process of issuing the boarding pass, the obligation to present the Sanitary Control Form at the destination airport or port. Likewise, if the country or area of origin of the trip is classified as risky, they must report the obligation to have a PDIA for SARS-CoV-2 with a negative result, carried out in the seventy-two hours prior to arrival.

In application of the duty of collaboration provided for in section 4 of the sixth additional provision of Royal Decree-Law 23/2020, of June 23, the airlines will check prior to boarding that passengers to Spain have the QR code generated at through the website www.spth.gob.es, or the Spain Travel Health-SpTH application. Passengers who exceptionally have not completed the Health Control Form electronically may present it in paper format before boarding, and must always be accompanied by the document accrediting the completion of the PDIA, if they come from a country or zone classified as risky. Is this case,

Sixth.

Upon arrival in Spain, when carrying out the documentary health control, passengers who, coming from a country or risk area of those listed in Annex II, do not adequately accredit the completion of a PDIA for SARS-CoV-2 with a result negative made in the seventy-two hours prior to arrival, they must submit to the realization of the PDIA established by the external health services.

Likewise, those passengers who, after carrying out the temperature, visual or documentary controls, are determined to be suspected of having COVID-19, must submit to the PDIA.

Alternatively, passengers may be required to carry out a COVID-19 RT-PCR test within 48 hours of arrival, the result of which must be communicated to the Foreign Health Services by the means indicated for this purpose.

Seventh.

Passengers with a temperature higher than 37.5 ºC and those on whom it is determined that there are suspicions that they could suffer from COVID-19 or another transmissible pathology after visual control or after analyzing the information contained in the Health Control Form, in In the event that it indicates the presence of symptoms or close contacts with COVID-19, they must undergo a health assessment, which will include an assessment of their clinical and epidemiological status.

If, after the health evaluation, the suspicion that the passenger suffers from a pathology that could pose a risk to public health is confirmed, if it is a close contact with COVID-19 or if a positive result is obtained after carrying out a PDIA for SARS-CoV-2, the health alert protocols established in coordination with the health authorities of the autonomous communities will be activated. For this, the health authority may request the collaboration of other administrative bodies, public official personnel or other institutions.

Eighth.

The list of countries or risk zones established in Annex II, as well as the criteria used for their definition, will be reviewed every fifteen days and their update will be published on the website of the Ministry of Health: https: //www.mscbs. gob.es/ and on the SpTH website: https://www.spth.gob.es.

The updating of the revisions of the list of countries or zones will be effective seven days after its publication, with the aim of allowing transport companies, travel agencies and tour operators to adjust the information measures for passengers.

Nineth.

In case of non-compliance with the provisions of this resolution, the regime contemplated in Title VI of Law 33/2011, of October 4, General of Public Health, will apply, referring to infractions and sanctions.

Tenth.

In any case, the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council, of April 27, 2016, regarding the protection of natural persons with regard to the processing of their personal data and the free circulation of these data and Organic Law 3/2018, of December 5, on Protection of Personal Data and Guarantee of Digital Rights.

Eleventh.

This resolution will take effect as of November 23 and until the Government declares the end of the health crisis situation caused by COVID-19, in accordance with the provisions of article 2.3 of Royal Decree-Law 21/2020 , of June 9, of urgent prevention, containment and coordination measures to face the health crisis caused by COVID-19.

This resolution renders without effect the Resolution of July 24, 2020, of the General Directorate of Public Health, Quality and Innovation, regarding the health controls to be carried out at the points of entry in Spain.

Twelfth.

This resolution, which does not put an end to administrative proceedings, may be appealed before the Secretary of State for Health, within a period of one month from the day following its publication in the “Official State Gazette” , in accordance with the provisions of articles 121 and 122 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations.

Madrid, November 11, 2020. – The General Director of Public Health, Pilar Aparicio Azcárraga.