Constitutional and administrative law in the time of crisis

In the past few weeks we have seen a restriction of fundamental rights and freedoms unprecedented since times of war. Constitutional lawyers can also justify severe restrictions of private and commercials activities so as to protect against threats to public safety and health. But this only applies in principle. In the words of the German Federal Constitutional Court on an emergency appeal:

The interests asserted here are important. They are, however, not serious enough against the background of the strict standard to be applied here to consider it unreasonable to neglect them for the time being in order to ensure maximum protection of health and life, to which the State is obliged by the fundamental right to life and physical integrity in Art. 2 para 2 GG … Compared to the dangers to life and limb, the restrictions on personal freedom are less serious. In this respect, it must also be taken into account that the legal provisions under judicial review are limited in time from the outset, provide for numerous exceptions with regard to the curfew, and that particular weight must be given to individual concerns when punishing infringements in individual cases within the scope of discretion.

The German Federal Constitutional Court refers to the German legal situation in the context of summary proceedings. In this context, the threshold for judicial intervention is very high (the consequences of a legal act would have to be intolerable to the extent that, by way of exception, an existing regulation in summary proceedings would have to be suspended). It was, therefore, relatively clear that the urgent appeal would not be successful. The matter is more complex in case of a detailed examination (in the ordinary proceedings for the review of legal acts as to their constitutionality). Many fundamental rights are affected (right to liberty, freedom to conduct a business, the principle of equality, freedom of assembly and of association, etc.). On the other hand, there is the danger to life and limb, which a careful state must eliminate as quickly as possible.

In this situation of conflicting fundamental rights, it is –  let us put it simply - a matter of balancing interests and of proportionality. However, this balancing test naturally also depends on how serious the danger of the COVID-19 pandemic to life and limb is categorized. Not every occurrence of an infectious disease can justify such large scale state intervention. This is clear. Otherwise, e.g. in the event of an influenza pandemic, the state, the economy and social life would have to be shut down every year. So, we need the expert opinion of doctors, virologists, etc. Unsurprisingly, there is no unanimous expert opinion when it comes to assessing the dangers posed by the coronavirus, but the state can hardly be blamed either if it remains cautious. In retrospect, the precautionary principle was not bad either. And the Asian way, which may seem impressively effective, is also difficult to reconcile with our European principles of law. Moreover, we probably did not have the necessary testing capacity.

Even if one wanted to legally approve the big picture in principle, there remain serious caveats in connection with the legislative implementation (ordinances based on the Epidemic Act, COVID-19 laws including ordinances, decrees). A lawyer is under pressure to keep up to date with all these new developments and sometimes wonders.

• Can claims for compensation under the Epidemic Act (Section 32) be eliminated by a simple legal act (perhaps even retroactively) from one day to the next, only because closures/restrictions of premises are suddenly ordered on the basis of a newly created legal act (COVID-19 Measures Act)?
• Does the statutory authorisation of the Federal Minister to provide for bans on entry to 'certain places' encompass a ban on entering all public places throughout Austria? And how far reaching are the exceptions on the ban on entering public places? Even the Ministry of Social Affairs allows a return to the main or secondary residence under the title of "covering the necessary basic needs of daily life". Readjustments became necessary. The "Easter" decree had to be withdrawn.
• The obligation to wear masks in supermarkets is "only" based on an internal administrative decree of the Minister of Social Affairs (reference number: 2020-0.210.637). And food and hygiene requirements are handled differently depending on the size of the store. Very interesting.
• It is to be expected that those parts of the retail sector, which are currently still closed, will be gradually re-opened on the basis of internal administrative decrees as well. In times of crisis, however, they come last minute and are not binding on the "legal subject" themselves. They are addressed to the hierarchically lower public administration which is bound to instructions. It is quite surprising everything still works / will work by and large. Nevertheless, it is regrettable that on Thursday (9 April 2020, 16:00) the retail sector does not yet know under what conditions it will be allowed to open on Easter Tuesday (14 April 2020). Many questions remain (How is the 400m² sales area determined? Is it permitted to block off sales areas? What about retail parks where - unlike in shopping centres - there is no common entrance?).

Legal advice is not easy in these hectic times. But we are doing well.

Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.