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New rulings of the Constitutional Court on COVID-19 measures of the Federal Government

07/22/2020 - Reading time: 2 minutes

Author

Clemens Gabriel

Attorney at Law

Neue Entscheidungen des VfGH über COVID-19-Maßnahmen der Bundesregierung

On 22 July 2020, the VfGH published new rulings on the COVID-19 package of measures of the Federal Government.The decisions were preceded by numerous complaints from companies and private individuals, some of which concerned measures that are no longer in force.  Despite this, the Constitutional Court dealt with this issue ex post, so to speak, and thus also set an example for possible future measures:

The COVID-19-Maßnahmengesetz (“COVID-19 Measures Act”) of March 2020 limits compensation claims for companies that were or are still are affected by the prohibition of entry. The Constitutional Court has ruled that the statute is not unconstitutional, as it does not violate the fundamental right to property integrity. The Constitutional Court has justified this with the accompanying comprehensive measures of the legislator, such as financial support or the possibility of short-time work. However, the Constitutional Court also stated in principle that the legislator has further legal policy leeway in combating the economic consequences of the COVID 19 pandemic, which in other words means that the current exceptional situation would justify special measures.

Also, the Constitutional Court considered the legal basis for issuing ordinances with regard to bans on the entry of commercial enterprises to be in line with the constitution.  According to § 1 COVID-19-Maßnahmengesetz, the competent Federal Minister may (also) prohibit by ordinance the entry of business premises or of certain business premises for the purpose of acquiring goods and services, insofar as this is necessary to prevent the spreading of COVID-19. On this statutory basis, ordinances on prohibitions of entry were issued, which initially exempted the entry of all retail premises which were not of system relevance and subsequently exempted from the prohibition of entry premises with below 400m2 customer area and home improvement and garden centres (even if the 400m2 customer area threshold is exceeded).

The decision of the Constitutional Court with regard to the abovementioned ordinance (concerning the differentiation at 400m2) shows that it considers the fundamental differentiation with regard to system relevance and the distinction between sales areas above and below 400m2 to be generally justified. However, this does not apply to the differentiation between home improvement and garden centres and other shops whose customer area exceeds 400m2. The Constitutional Court considered it incomprehensible why home improvement and garden centres should be of decisive importance for the performance of everyday life. On this basis it can be expected that liability claims will be brought against the Federal Minister of Social Affairs, Health, Care and Consumer Protection, which could have substantial economic dimensions.

The Constitutional Court also considered the legal basis for issuing prohibitions to enter public places in § 2 COVID-19-Maßnahmengesetz to be constitutional. However, the ordinance on the prohibition to enter public places based on this was partly illegal. According to the Constitutional Court, the statute does not provide a basis for issuing a such a general ban by ordinance or for providing for the general obligation to remain in one's own home. Thus, the Constitutional Court has rendered the legal basis for a large number of administrative sanctions invalid. A further lockdown, as last March, with a general ban on leaving the home on the basis of the current legal provisions by way of a regulation is also ruled out.

Author

Clemens Gabriel

Attorney at Law