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 claimant was the owner of a corporation which had stores located in several Austrian cities.
On March 2020, the competent Austrian Minister issued the Covid-19 Measures Regulation-96 published in the Federal Law Gazette II 96/2020, as amended by Federal Law Gazette II 151/2020 (COVID-19-Maßnahmenverordnung-96 BGBl II 96/2020, idF BGBl II 151/2020): this regulation provided, among other things, a prohibition on entering trade premises. The same regulation provided several exceptions to this general rule: for example, drugstores, petrol stations, banks, and veterinary services were not affected by the entry prohibition.
Theoretically speaking, the claimant's stores were included in the exceptions listed by the challenged rule. However, the claimant could not concretely take advantage of the exception because the challenged rule required that the customer area should be reduced to 400 square meters.
The claimant alleged an infringement of the freedom to conduct a business: without the challenged provision, all the claimant's stores could carry out their activities as usual. Furthermore, the claimant alleged an infringement on the integrity of property, to the principle of the equal application of law, and to the principle of legality because the challenged provision did not have a legal basis in law.
The Court upheld the claim.
Facts of the case
The claimant was the owner of a corporation, whose core business concerned the trade of several kind of goods and shoes in particular. The claimant owned stores located in several Austrian cities.
The claimant's stores were qualified as “other commercial establishments” and included in the exceptions to the entry ban provided by the rule. However, the challenged provision required that stores should reduce their customer area to 400 square meters: the claimant's stores were in part located in shopping centers, where this reduction was not possible or the reduction of the customer area was not possible for other factual reasons. Because of this practical matter, the claimant's stores could not take advantage of the exception to the entry ban provided by the rule in question.
The claimant considered the “400 square meters rule” to be unproportionate because the regulation also provided that 20 square meters in the customer area should be granted for every customer and the challenged regulation did not allow the distribution of pre-ordered goods. The claimant argued that these were less intrusive protective measures, which could achieve the same goal of counteracting the spread of Covid-19.
Because no other legal remedy was available the claimant took advantage of a constitutional procedure, which allowed individuals to submit an application for constitutional review.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court examined two preliminary questions concerning the admissibility of the claim because the challenged provision expired on April 2020 as well as the fulfillment of the requirement in order to apply for constitutional review.
According to the Court, the challenged provision was part of a regulatory system with which the legislature authorized the enactment of secondary legislation, the scope of which was to cope with the spread of Covid-19: administrative authorities could issue restrictions and prohibitions which limited constitutionally granted rights. Furthermore, this regulatory system required constant monitoring activity with the aim to further adapt measures: this determined a rapid succession of amendments affecting the rules.
Therefore, the claimant addressed their claim against a provision which was part of this regulatory system: the Court argued that the claimant’s legal interest consisted in obtaining clarifications whether the encroachment of the legal sphere had been constitutionally lawful. Accordingly, this interest in legal protection went beyond the period of time during which the challenged provisions were in force.
On the case’s merit, the Covid-19 Measures Law authorized the competent Minister to issue entry prohibitions, if necessary to reduce the spread of Covid-19. The Court recalled the various amendments introduced: originally the exceptions to the entry ban comprehended food stores or drug stores, while they were later extended to all stores, whose customer area did not exceed 400 square meters.
The Covid-19 Measures Law was a reaction to a crisis caused by the pandemic: several provisions were issued with the aim to protect the health system’s functionality. Furthermore, government measures were created under considerable time pressure and under conditions of uncertainty, because knowledge of the virus was obtained gradually.
The principle of legality binds administrative authorities, so a necessary and appropriate balancing process between individual rights and public interests should be carried out when enacting restrictive rules. The legislature can provide room to the administrative authorities in issuing secondary legislation, but the law must provide essential objectives. Accordingly, the administrative authority should record circumstances and the weighing of the contraposing interests in order to ensure legality.
According to the Court, the law on which the regulation was based provided rules concerning the scope of the entry bans and the duty to differentiate the type and extent of the bans. In the constitutional review process, the time of the enactment of the rules and the records on which the rules were based should also be considered. However, the Court noticed that it was not apparent which circumstances, with regard to the possible developments of the virus, guided the legislature in its decision regarding the 400 square meter limit or the different requirements for entering other commercial premises.
The Court pointed out discrepancies because there was no objective justification for further exceptions introduced in the challenged provision, therefore the 400 square meter condition did not in compliance. Furthermore the reason why market gardens, for example, had a comparable significance to activities of daily living as much as areas for the sale of emergency products was not clear to the Court.
Conclusions of the deciding body
The Court concluded that the legislature had completely failed to record the circumstances on which the challenged provision was based. These records allowed a review of the reasons which lead the legislature to consider the issued measures to be necessary. Furthermore, the Court pointed out that the challenged provisions infringed upon the Covid-19 Measure Law because it introduced a subjective distinction between commercial business premises whose interior customer area exceeded 400 m².
Fundamental Right(s) involved
- Freedom to conduct a business
- Right to property
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
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health v. freedom to conduct a business
- Health v. property
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the rule of law when it decided whether the claim was in compliance with the legal requirements in order to apply for a constitutional review. Furthermore, this principle was applied when the Court provided its reasoning concerning the link between the law and secondary legislation, which should be based on law.
The Court also underlined that secondary-legislation should be based on records, which would allow the Court to ascertain the reasons which lead to the adoption of specific measures.
Impact on Legislation/Policy
The quashed governmental measures were no longer in force.
Impact on national case law
Persisting admissibility of the individual application despite the expiry of the contested provision at the time of the decision of the CC: The applicant’s interest in legal protection extended beyond the period during which the contested provision was in force (as a kind of compensation for the lack of interim measures or a speedy trial).
On "type of measures challenged": Covid-19 Measures Regulation-96 issued on March 2020.