Austria, Constitutional Court, 29 April 2022, V23/2022

The Court has begun its reasoning recalling the requirements, which should be met, to submit an individual complaint procedure: a direct infringement to the Claimant’s right by the challenged ordinance, a direct interference in the Claimant’s legal sphere by the challenged ordinance and the ordinance has been enforced without a court’s decision.

The Court has limited the examination of the challenged ordinance to those rules, which directly impacted on the Claimant’s legal sphere: the Claimant looked for an unlawfulness ascertainment of the whole ordinance but did not provide sufficient reason for every distinct protective measure. Though the challenged provision expired on January 2022, the Court has relied on its case law (V392/2020, V573/2020 and V593/2020), in order to decide the merits of the case. According to the case law of the Constitutional Court (VfGH 1.10.2020, V392/2020), the legal sphere of an applicant is affected by a regulation which has expired, insofar as the challenged provision applies to the conclusion of contracts during the period of its validity. The same must apply if contracts could not be concluded at all because of the contested provision. Furthermore, the short period of validity of the COVID-19 Measure, Ordinance-96 had to be considered; if the Constitutional Court were to deny the directness of the encroachment, the contested ordinance would not be reviewable. It would not be reasonable for the petitioning parties to raise the concerns with the Constitutional Court by other means.

An ordinance-issuer was authorized by law to exercise its discretion as long is complied with the law’s scope and provided records, facts and weighing procedures, which justified the adopted measures. These requirements should be determined by what was possible and reasonable in the specific situation. In this sense, the time of the ordinance’s adoption and the records, on which the ordinance was based, are a decisive element of the decision, according to the Court. The challenged ordinance contained a technical explanation, with included data, such as the number of new infections and the vaccination progress in the overall population. The Court has underlined that with this, the ordinance-issuer has complied with the prescribed law’s requirements.

The Court has recognized that the challenged rule severely impacted over the Claimant’s freedom of movement and private and family life. Such a measure was issued because it was indispensable to prevent the spread of COVID-19 and an imminent breakdown of the healthcare system. Further, the Court has noted that the challenged ordinance provided several exceptions.

On the equal treatment by law, the Court has recalled that this is a binding principle, so the legislature is prohibited from creating unobjective differences which cannot be justified by actual difference and to determine an unobjective equal treatment of unequal situation, which cannot be objectively justified.

The Court has argued that the COVID-19 Measure Law authorized the ordinance-issuer to introduce differences between persons, who pose a low epidemiological risk, such as vaccinated or recovered and those who are not recovered nor vaccinated. The same law authorized the ordinance-issuer to introduce further difference among low epidemiological risk persons, if this is based on scientific differences capable of reducing the spread of COVID-19.