Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
The case concerned the rules contained in the 6th COVID-19 protective measure ordinance in the version published in the Federal Law Gazette II 24/2022 (= 6. COVID-19 SchutzmaßnahmenV idf BGBl II 24/2022). According to this ordinance, customers were allowed to enter in shops only if they had recovered or had been vaccinated (= 2G rule): exceptions had been provided for chemist shops, drugstores, food retailers, and for services for persons with disabilities provided by the Länder. Further, the authorized Minister provided exceptions to the 2G rule for meetings and gatherings linked to burials, work-meetings if they could not be carried out through distance means, meetings of medical and psychosocial self-help groups. The ordinance was limited in time. It was in effect from the middle of December 2021 to the end of January 2022.
The Claimant was neither vaccinated nor recovered and therefore could only enter places with provided for basic needs. The Claimant alleged an infringement on her freedom of movement because she was prohibited to take part in social and cultural life. Further, she alleged an infringement on her family life because the restrictions also impacted her capacity of being the mother of a school-aged child since she was not allowed to accompany her son with his friends to indoor football matches of his club. Finally, the Claimant alleged an infringement on the principle of equal treatment by the law because the provided for a different treatment between recovered/vaccinated and non-vaccinated/non-recovered persons.
The Court rejected the claim.
Facts of the case
The challenged ordinance introduced a 2G rule regarding several areas of life therefore persons, who were neither recovered nor vaccinated were limited to activities related satisfying basic needs.
The Claimant was prevented to take part in social and cultural activities due to not being vaccinated nor recovered. Further, the Claimant was prevented from fully exercise her motherly activities. The Claimant could not go buy school supplies in stationery shops for her child nor accompany her son with his friends to indoor playgrounds nor indoor football matches of his club.
The Claimant challenged the ordinance by submitting an individual complaint to the Constitutional Court because no other remedies were available to her.
Type of measure challenged
- Federal government measure
- Federal ordinance
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
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.
Conclusions of the deciding body
The Court has summarized the factual circumstances at the time of the ordinance’s enactment. The Court has concluded that the legislature took appropriate measures, to counteract the spread of COVID-19 and the collapse of the healthcare system.
About the difference between recovered or vaccinated and non-recovered nor non-vaccinated the Court has not recognized an unequal treatment. The different treatment was based on the epidemiological danger posed by the latter group.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to private and family life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Principle of equal treatment, Art. 7, Austrian Constitution
- Principle of legality, Art. 18, Austrian Constitution
- Freedom of movement, Art. 5, European Convention on Human Rights
- Right to private and family life, Art. 8, European Convention on Human Rights
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. private life
General principle applied
- Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its findings the Court has applied the rule of law when examining procedural matters, such as whether the requirement for an individual constitutional complaint had been met. This principle was also applied when the Court analyzed whether the ordinance-issuer complied with the law provision on which its power had been based or if the ordinance-issuer did not comply with the principle of equal treatment.
When examining the merit of the alleged infringement, the Court has employed a word (= unerlässlich = essential), whose meaning has a stronger connotation than necessity. Unfortunately, the Court has not developed further this point. The Court has argued that severe infringement to the freedom of movement and private life could be justified only if the measure was indispensable. The Court has argued that a precautionary measure was indispensable when its scope was to avoid the collapse of the healthcare system.
The Court has referred to a sentence of the German Constitutional Court: German Constitutional Court 1 BvR 781/2021.