Austria, Constitutional Court, 14 July 2020, V363/2020
Case overview
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Link to the full text of the decision
General Summary
The case concerned an alleged infringement of the freedom of movement. The challenged provision was from Covid-19 Regula-tion-98 as published in Federal Gazette BGBl II 98/2020 and in the version, as published in BGBl II 108/2020 (=COVID-19-Maßnahmenverordnung-98 BGBl II 98/2020, idF BGBl II 108/2020), which prohibited people from entering public spaces and public transport. Moreover, the same regulation provided exceptions to this ban, so it was possible to leave home for the purpose of purchasing food or for work reasons.
The claimant was a university assistant at a private university in Vienna. Due to the spread of Covid-19, he worked from home, which was located outside Vienna. The claimant could leave his actual address but only for the reasons provided by the law.
This restriction on his freedom of movement impaired his work: indeed, among the contractual duties of the claimant was the writing of a dissertation. This duty could only partially be fulfilled because he did not have access to the university library, as well as, to the libraries of other law faculties.
The claimant alleged an infringement of the principle of legality because the provision in question was not based on the Covid-19 Measure Law. Furthermore, the claimant alleged an infringement of his freedom of movement and the freedom to choose a place of residence.
The Court partially upheld the claim because the challenged provision infringed upon the principle of legality.
Facts of the case
The applicant was a university assistant at a private university in Vienna with an apartment in the city. At the beginning of April 2020, the rectorate of the private university ordered the claimant to "work from home" due to the spread of the Coronavirus. For this reason, he stayed at his main residence, was located about 100 kilometers south-west of Vienna.
The claimant focused his claim on a provision, comprehended in the Covid-19 Measures Law, which banned people from entering public places. The consequence of the ban was that the claimant could not leave his main residence at his own discretion, but only in the presence of and within the framework of a justification provided for in the regulation in question.
Administrative penalties of up to EUR 3,600.00 were provided for in case of infringements (§3 para. 3 of the COVID-19 Measures Law).
At the time of the claim, the applicant could leave his house only for food purchases. Furthermore, the applicant could not leave his house because he could not take advantage of public transport: these could only be used in specific cases. In other words, the claimant could not return to his flat in Vienna.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court dealt with four issues: a preliminary issue and three alleged infringements on the freedom of movement (the key issue), the principle of legality, and whether an excess of legislative power occurred when the Minister enacted the challenged rules.
The preliminary issue concerned the admissibility of the claim because the challenged provision expired on April 2020 and therefore the fulfillment of the requirement in order to apply for a constitutional review.
According to the Court the challenged provision was part of a regulatory system with which the legislator authorized the enactment of secondary legislation, whose scope was to tackle the spread of Covid-19. The claimant’s legal interest consisted in obtaining clarification whether the encroachment of the legal sphere was constitutionally lawful. Accordingly, this interest in legal protection went beyond the period of time during which the challenged provisions were in force.
On the point of the infringement of the principle of legality, the Court recalled that the challenged provision was legally based on the Covid-19 Measures Law, according to which the competent Minister could impose entry bans for certain places, insofar it was necessary to prevent the spread of Covid-19. However, the Minister disregarded that entry bans could only be imposed for certain locations.
However, the law neither specified the degree of the spread of Covid-19 at which point entry bans may be imposed nor did it specify criteria for assessing the necessity of such measures. Finally, the Court argued that a marginal probability of occurrence is not sufficient to institute far-reaching restrictions. It is not constitutionally permissible to leave a complete prerogative about the assessment of the necessity for such intervention-intensive measures to secondary legislation.
On the alleged infringement of the freedom of movement, the Court recalled that freedom of movement granted everyone the right to go any place and stay in any place: it was an essential element of human self-determination.
However, freedom of movement was not guaranteed without restriction. Accordingly, restrictions on freedom of movement must be provided by law, which should pursue a legitimate public interest. Further, a restriction should be suitable, necessary, and proportionate in the narrower sense, in order to achieve this scope.
According to the Court, these requirements were met by the authorization of the ordinance by the Covid-19 Measures Law. The prohibitions on entry pursued the aim of preventing personal contacts between a large number of people associated with the use of such places. The Covid-19 Measures Law provided sufficient rules which limited the Minister’s ability to restrict freedom of movement: therefore, the Minister could impose entry bans.
On the last point, id est the excess of legislative power, the Court reasoned that the challenged rule did not merely prohibit entry to certain restricted places, but "understands the principle of a general ban on exit".
However, such a comprehensive prohibition was not covered by the Covid-19 Measures Act. The law did not provide a basis for the obligation to stay in a particular place, especially in one’s own home. The legislature may describe in concrete or abstract terms the places to which entrance was prohibited, in order to prevent the spread of Covid -19. However, it was forbidden to impose a ban on the basic principle.
Conclusions of the deciding body
The Court ascertained an infringement to the principle of legality. Thus, the Court argued that leaving the complete prerogative to assess the necessity of restrictions to secondary-legislation was inadmissible. The challenged provision was ascertained to be unconstitutional due to a violation of this requirement of certainty.
Furthermore, the Court provided an interpretation of the Covid-19-Measures Law and found its authorization to be in conformity with the Constitution but that it should be limited to entry bans and not utilized to advise people to remain in their homes.
Finally, the Court did not ascertain an infringement on the freedom of movement.
Implementation of the ruling
This decision is self-executing.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- No excess of legislative powers by Ministers
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of movement, Art. 2, Austrian Constitution
- Right to determine the residence, Art. 6, Austrian Constitution
- Principle of legality, Art. 18, Austrian Constitution
- Freedom of movement, Art. 2 para 1 Protocol No. 4, ECHR
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. Right to choose place of residence
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout the sentence the Court applied the rule of law: the questions directed to its attention concerned the correct implemen-tation of the principle of legality as the Minister exceed its regula-tory power. Furthermore, the Court also provided an interpretation of the Covid-19-Measures Law authorizations which were in conformity with the Constitution.
Judicial dialogue
Only reference to won case-law.
Impact on Legislation/Policy
Amendment to the COVID-19-Measures-Act providing a general ban on entering public areas by ordinance with certain exceptions provided by law.
Impact on national case law
The Constitutional Court held that the effectiveness of contested provisions of the ordinance and thus the legitimation of the complaint, notwithstanding the fact that the ordinance had already expired, was valid in the case of period-related regulations, as they continued to apply for the corresponding period. The complaint was admissible.
Other notes
On "type of measure challenged":
- Covid-19 Measures-Law providing a ban on entering specific places;
- Federal administrative ordinances providing a general ban on entry to public areas (with specific exceptions).
