Germany, Federal Constitutional Court, 18 October 2022, BVerfG 1 BvN 1/21
Case overview
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Further areas addressed
- Procedural law
- Freedom of movement of people
- Healthcare management (Covid related, excluding vaccination)
- Use of protection devices
- Multilevel government and allocation of powers
Outcome of the decision
Link to the full text of the decision
General Summary
The First Senate of the Federal Constitutional Court declared the referral made by the Thuringian Constitutional Court concerning the Thuringian Ordinance on Special Containment Measures to Combat Covid-19 (Thüringer SARS-CoV-2-Sondereindämmungsmaßnahmenverordnung) of October 31, 2020 to be inadmissible. The ordinance was based on an expansive blanket clause in federal legislation – § 28(1) of the Protection Against Infection Act (Infektionsschutzgesetz – IfSG) and introduced wide contact restrictions and fines. The ordinance was issued at a time when, given the serious curtailment of fundamental freedoms in the context of the pandemic, an increasingly intense debate was underway both within expert circles and among the general public. The contentious issue was whether it was compatible with the requirement of a parliamentary decision (Parlamentsvorbehalt) to allow the executive to issue statutory instruments determining which measures should be imposed to combat the pandemic, rather than the parliamentary legislature making such decisions itself. The Thuringian Constitutional Court based its decision on a divergent interpretation of the Basic Law from two judgments pronounced by the Constitutional Court of Saxony-Anhalt on March 26, 2021 (LVG 25/20 and LVG 4/21) and thereby suspended the proceedings to obtain a decision from the Federal Constitutional Court on several questions referred for constitutional review pursuant to Art. 100(3) GG. The Court declared the referral inadmissible in part because the contrast with the decision of the court of Saxony-Anhalt was readily apparent and in part because the question posed by the court of Thuringia concerned the application of the law to the specific case rather than an abstract point of law and in this case Art. 100 (3) GG was not applicable.
Facts of the case
The Thuringian Ordinance on Special Containment Measures to Combat Covid-19 (Thüringer SARS-CoV-2-Sondereindämmungsmaßnahmenverordnung) of October 31, 2020 entered into force at the beginning of November 2020 and expired on November 30, 2020. The legal basis of the Thuringian Covid-19 Containment Ordinance was provided by § 32, first sentence IfSG in conjunction with § 28, § 29, § 30(1) second sentence and § 31 IfSG, each in the version applicable at the time. These provisions, which were not specifically geared towards the Covid-19 pandemic, authorised the Länder governments – under certain conditions – to issue statutory instruments imposing mandates and prohibitions aimed at curbing the spread of communicable diseases. The ordinance was not issued on the basis of § 28a IfSG – which specified the special protective measures that could be taken in order to prevent the spread of Covid-19 – because £ 28a was only inserted into the IfSG with effect starting on November 19, 2020, i.e. after the Thuringian Covid-19 Containment Ordinance. The AfD (right party) parliamentary group in the Thuringian Landtag (state parliament) challenged the ordinance before the Thuringian Constitutional Court by submitting an application for abstract judicial review. The Thuringian Constitutional Court based its decision on a divergent interpretation of the Basic Law from two judgments pronounced by the Constitutional Court of Saxony-Anhalt on March 26, 2021 (LVG 25/20 and LVG 4/21) and thereby suspended the proceedings to obtain a decision from the Federal Constitutional Court on several questions referred for constitutional review pursuant to Art. 100(3) GG. The Thuringian Constitutional Court asked the Federal Constitutional Court: - to determine whether, in order to avert dangers in a situation beset with uncertainties, it was permissible – for an interim period – to issue statutory instruments that imposed mandates and prohibitions that amounted to severe interference with fundamental rights where such statutory instruments were issued by executive authorities on the basis of a legislative blanket clause, thereby deviating from the essential matters doctrine (Wesentlichkeitstheorie) and the requirement of a parliamentary decision; - what abstract criteria should be used in order to assess the duration of such an interim period; - whether, in cases where law-making powers are delegated to the executive, provisions setting out administrative fines were subject to a stricter standard of specificity according to Art. 103(2) GG than the standard that is applicable to the underlying mandates and prohibitions under Art. 80(1) GG - which standard must be applied when reviewing violations of the rule-of-law principle under Land constitutional law
Type of measure challenged
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Individual / collective enforcement
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Reasoning of the deciding body
The referral was found to be inadmissible. Pursuant to Art. 100(3) GG, the constitutional court of a Land must obtain a decision from the Federal Constitutional Court if, on an abstract point of law concerning the interpretation of the Basic Law, it intends to deviate on that question from a decision of the Federal Constitutional Court or the constitutional court of another Land.
The first two questions referred for review had suitable subject matter but lacked sufficient grounds for referral. The Thuringian Constitutional Court made a determination on an abstract point of law by asserting that, in situations of unforeseeable danger, it is constitutionally permissible – during an interim period – for executive action to make use of a legislative blanket clause for the purposes of effectively averting danger to the public, even if measures are taken that would otherwise require a more detailed and specific legislative basis under the essential matters doctrine. Such a finding by the Thuringian Constitutional Court would not, however, deviate from any determination on a point of law contained in the Constitutional Court of Saxony-Anhalt’s aforementioned judgement. In fact, that judgement explicitly left this legal question unresolved on the grounds that the relevant interim period had already expired by the time the Land ordinance challenged in those proceedings had been issued. Therefore Art. 100(3) GG was not applicable and the referral was not admissible.
With regard to the referral’s second question, it is evident that the referring court’s reasoning deviated somewhat from the Constitutional Court of Saxony-Anhalt’s judgement. Unlike the referring court, the Constitutional Court of Saxony-Anhalt took the position that, even if the parliamentary legislature is granted an interim period during which a blanket clause may be used as the basis for pandemic-related containment measures that severely interfere with fundamental rights, any such interim period would certainly have expired by the autumn of 2020. However, the wording of the question submitted by the referring court suggested that the referral actually concerned the application of the law to the specific case rather than an abstract point of law.
Referrals of this kind are not covered by Art. 100(3) GG. The Thuringian Constitutional Court, as the referring court, did not demonstrate that the Constitutional Court of Saxony-Anhalt’s judgement contained any determinations – from which the referring court intended to deviate – on an abstract point of law regarding rule-of-law requirements against which the duration of an interim period would have to be assessed.
The referral was also inadmissible with respect to the question of whether legislative provisions authorising the executive to issue statutory instruments that set out administrative fines were subject to stricter standards under Art. 103(2) GG, in terms of specificity, than the standard of specificity required under Art. 80(1) GG for provisions authorising the issuance of the underlying mandates and prohibitions meant to be enforced by way of fines.
Such a question was irrelevant for deciding the case pending in Thuringia. According to the referring court, the specificity requirements of Art. 80(1) GG in relation to the necessary statutory basis for the challenged ordinance were only satisfied because the court assumed that the interim period – i.e. the time granted to the parliamentary legislature for enacting a statutory basis of greater specificity when dealing with situations involving unforeseeable danger – had not yet expired by the autumn of 2020. If the referring court chose not to recognise the validity of this interim period, it would have concluded not only that the provisions of the challenged ordinance imposing the administrative fines had violated Art. 103(2) GG but also that the underlying mandates and prohibitions set out in the ordinance, from which severe interference with fundamental rights arose, would in any case have been incompatible with Art. 80(1) GG due to the lack of a sufficiently specific statutory basis. It is thus irrelevant in this case whether the requirements placed by Art. 80(1) GG on a statutory basis authorising the issuance of an ordinance imposing intrusive mandates and prohibitions for the purposes of averting danger to the public are generally less strict than the requirements placed by Art. 103(2) GG on a statutory basis authorising the issuance of an ordinance imposing administrative fines for non-compliance.
The question was inadmissible even if understood as a request for constitutional review of whether, in order to avert dangers in a situation beset with uncertainties, it was permissible for the executive to issue an ordinance imposing mandates and prohibitions aimed at averting danger to the public on the basis of a legislative blanket clause for an interim period, and that the same might not apply if the ordinance subjected non-compliance to fines because stricter specificity standards arose from Art. 103(2) GG with regard to the latter. The reason for the question’s inadmissibility was that, in its judgement of March 26, 2021 (file reference LVG 4/21), the Constitutional Court of Saxony-Anhalt never explicitly rejected this legal view. In fact, the Constitutional Court of Saxony-Anhalt never actually dealt with this question because by the time the court reached its decision, the newly introduced § 28a IfSG had already gone into force.
Conclusions of the deciding body
The referral was inadmissible.
Implementation of the ruling
The referral was rejected.
General principle applied
- Rule of law
- Separation of powers and prevention of conflicts between constitutional judges