Austria, Constitutional Court, 1 October 2020, V405/2020
Case overview
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Deciding body (English)
Deciding body (Original)
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Type of Court (material scope)
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Type of Court (territorial scope)
Instance
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Link to the full text of the decision
General Summary
The competent Health Minister issued Covid-19 Regulations as published in the Federal Gazette BGBl II Nr 96/2020 as amended in BGBl II 162/2020 (= COVID-19- MaßnahmenV BGBl II Nr 96/2020 idF BGBl II 162/2020). The Covid-19 Regulation prohibited entering the customer area of business premises of trade and service enterprises, as well as, leisure and sports facilities for the purpose of purchasing goods or using services or leisure and sports facilities. The same law provided exceptions, so food retailers, drugstores, and veterinary services, among others could continue to carry out their operations.
The claimant was an owner of a restaurant whose business was affected by the Covid-19 Regulations. The claimant challenged the Covid-19 Regulations and alleged an infringement on his right to conduct a business and alleged an infringement to the principle of legality. Furthermore, the claimant alleged an infringement to his right to family and private life because of the economic disadvantages he suffered.
The Constitutional Court upheld the claim because it ascertained an infringement of the principle of legality.
Facts of the case
The claimant was a restaurant owner from which he drew his income to satisfy his needs and those of his family.
The Covid-19 Regulations issued by the competent Health Minister had an impact on the operations of his business: customers could not enter the restaurant’s premises. In case of an infringement of the prohibition, the claimant would be charged with an administrative offence, which was punished with a fine of up to Euro 30,000.00.
Furthermore, the claimant argued that the closure of his restaurant was not objectively justifiable in view of the exceptions to the general ban on entering all types of restaurants. The claimant pointed out an evident gap: a restaurant with a customer area of 100 square meters, which could accommodate a manageable and calculable number of guests, could not be entered. However, garden centers with a customer area of up to 20,000 square meters (Article 2(1)(22) of the Regulation) were exempted from this general prohibition.
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 began its reasoning with procedural preliminary issues: the challenge to the content of the Covid-19 regulations required a demonstration to what extent all the challenged provisions directly interfered with the legal sphere of the claimant at the time of the claim. In his submission, the claimant did not meet this condition.
However, the Court focused its attention on one of the claimant’s arguments: the far-reaching encroachments upon fundamental rights and the proportionality of the issued measures. In other words, the Court focused its attention on whether the legal requirements for issuing the regulation were met or whether the issuing authority did not properly examine whether the requirements had been met.
The Court recalled that as a general law, the Covid-19 Measures Law authorizes the competent Minister to prohibit by ordinance "the entry into business premises or only certain business premises" for the purpose of acquiring goods and services, insofar it was necessary to prevent the spread of Covid-19. The regulation can limit the number of premises that may be entered and the time at which they may be entered, and which types of businesses were exempted from the entry prohibition. In addition, the specific conditions under which business premises or places of work may be entered may also be regulated.
According to the Court, the Covid-19 Measures Law was a reaction of the legislature to a crisis caused by the coronavirus emergency: the scope of entry bans was to protect health and the functioning of the health infrastructure. The Court was aware of the time pressure and the condition of uncertainty under which the government’s measures were adopted with the aim of tackling the spread of Covid-19.
However, the Court recalled the main features of the principle of legality which ensures that a balancing process of fundamental rights should be carried out, in order to consider the essential interest of individuals as well as the public interests involved. In this case, the public interests were based on interests protected by fundamental rights which obliged the State to take action.
When a legislature leaves the administrative authority room to decide among a number of possible measures, which have a different impact and a different restriction intensity on fundamental rights, the administrative authority must exercise its decisions on the base of relevant circumstances, facts of the situation, and should balance the different interests involved. The administrative authority should also record these data, in order to ensure a review of the legality of the regulation.
According to the Court, there were no documents or information referring to the status or possible development scenarios of the disease and the envisaged measures. Furthermore, the Court did not find which circumstances guided the issuing authority in its decision to maintain the general entry prohibition in from the regulation records.
Conclusions of the deciding body
The Constitutional Court upheld the claim because the legislator completely failed to record the circumstances that determined its decision to issue the regulation: the absence of records made it impossible to understand the underlying reason for the measures made and the reason why they were necessary.
The Constitutional Court considered that it was not necessary to examine whether the challenged provision was unlawful or unconstitutional on other grounds.
Implementation of the ruling
This decision is self-executing.
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to good administration
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom to conduct a business
- Health v. legislative power (no excess of legislative powers by Ministers)
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout the sentence the Court applied the rule of law: at the beginning the Court focused its attention on a procedural matter and delimited the scope of its decision.
On the merit of the case, the Court applied the rule of law because it examined whether the Minister exceeded its power in issuing the challenged regulation.
Impact on Legislation/Policy
Obviously no impact (the Minister of Health passed the same bans in the second/third wave, perhaps providing more information if the ban is contested again).
Impact on national case law
The CC held that the effectiveness of the contested provisions of the ordinance, and thus the legitimation of the complaint notwithstanding the fact that the ordinance had already expired, were valid in the case of period-related regulations, as they continued to apply for the corresponding period; the complaints were admissible.
Other notes
On "type of measure challenged": Covid-19 Regulations as published in the Federal Gazette BGBl II Nr 96/2020 in the version as published in BGBl II 162/2020; Covid-19 Measure Law.
