Germany, Federal Constitutional Court, 18 October 2022, BVerfG 1 BvN 1/21

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.