On 30 June 2022, the Constitutional Court allowed the challenge by several cultural workers against the government ban on entering cultural institution and held that the closing was unconstitutional, as discriminating against the lack of restrictions for religious institutions.

Under the 5th COVID-19 Emergency Measures Order, the Austrian government had banned vaccinated and unvaccinated people alike from entering cultural institutions between 22 November and 11 December 2021, without exceptions. However, gatherings of any kind for the common practice of religion were excluded from the Order’s scope.

On the one hand, the Court found that the ban did not infringe on the constitutionally protected freedom of art. Indeed, the measure was suitable to curb the spread of the delta variant – that was dominant at the time – and it was necessary and proportionate, especially due to the fact that the measure was limited to 20 days. On the other hand, the Court held that the measure was contrary to the principle of equality to the extent that religious in any form (regardless of the number of participants or whether they happened indoor or outdoor). The Court found no objective justification for such an unequal treatment between both types of institutions and declared the measure unconstitutional.

Reference: judgment V 312/2021-15.

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