Deviation referral concerning Thuringian COVID-19 ordinance declared inadmissible

Deviation referral concerning Thuringian COVID-19 ordinance declared inadmissible

Press Release No. 93/2022 of 17 November 2022

Order of 19 October 2022
1 BvN 1/21

Deviation referral concerning COVID-19 ordinance

A referral made by the Thuringian Constitutional Court under Art. 100(3) of the Basic Law (Grundgesetz - GG) has been declared inadmissible by the First Senate of the Federal Constitutional Court in an order published today. The referral concerned the Thuringian Ordinance on Special Containment Measures to Combat COVID-19 (Thüringer SARS-CoV-2-Sondereindämmungsmaßnahmenverordnung) of 31 October 2020 (hereinafter 'Thuringian COVID-19 Containment Ordinance').

That ordinance, which was largely based on an expansive blanket clause in federal legislation - § 28(1) first sentence of the Protection Against Infection Act (Infektionsschutzgesetz - IfSG) - introduced far-reaching contact restrictions and, for the most part, made non-compliance punishable by fine. 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 having such decisions taken by the parliamentary legislator itself.

Facts of the case:

The Thuringian COVID-19 Containment Ordinance was issued for the purpose of combating the COVID-19 pandemic. It entered into force at the beginning of November 2020 and expired on 30 November 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 are not specifically geared towards the COVID-19 pandemic, authorise the Länder governments - under certain conditions - to issue statutory instruments imposing mandates and prohibitions aimed at curbing the spread of communicable diseases. § 28a IfSG - a provision specifying the special protective measures that can be taken in order to prevent the spread of COVID-19 - was only inserted into the Protection Against Infection Act with effect from 19 November 2020 and thereby did not enter into force until after the Thuringian COVID-19 Containment Ordinance had already been issued.

The AfD parliamentary group in the Thuringian Landtag (state parliament) challenged the ordinance before the Thuringian Constitutional Court by submitting an application for abstract judicial review on 10 November 2020.

In the proceedings to deal with that application, the Thuringian Constitutional Court intends to base its decision upon legal views which, in its opinion, deviate in their interpretation of the Basic Law from two judgments pronounced by the Constitutional Court of Saxony-Anhalt on 26 March 2021 (file references LVG 25/20 and LVG 4/21). For this reason, the Thuringian Constitutional Court suspended the proceedings by order of 19 May 2021 in order to obtain a decision from the Federal Constitutional Court on several questions referred for constitutional review pursuant to Art. 100(3) GG.

With the first two questions referred for constitutional review, the Thuringian Constitutional Court asks the Federal Constitutional Court to determine whether, in order to avert dangers in a situation beset with uncertainties, it is permissible - for an interim period - to issue statutory instruments that impose mandates and prohibitions that amount to severe fundamental rights interference where such statutory instruments are 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; the referring court also seeks clarification as to what abstract criteria should be used in order to assess the duration of such an interim period. The Thuringian Court referred two further questions on whether, in cases where law-making powers are delegated to the executive, provisions setting out administrative fines are subject to a stricter standard of specificity following from Art. 103(2) GG than the standard that is applicable to the underlying mandates and prohibitions under Art. 80(1) GG. The referring court also submitted a supplementary question concerning the standard to be applied when reviewing violations of the rule-of-law principle under Land constitutional law.

Key considerations of the Senate:

The referral is 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.

I. Accordingly, the first two questions referred for review have suitable subject matter. However, they lack sufficient grounds for referral. Sufficient grounds for referral are present if a Land constitutional court intends to deviate from decisions of the Federal Constitutional Court or other Land constitutional courts in its interpretation of the Basic Law.

The first two of the referred questions concern the judgment rendered by the Constitutional Court of Saxony-Anhalt on 26 March 2021 (file reference LVG 25/20). When comparing the abstract points of law upon which the referring court intends to rest its decision with those asserted by the Constitutional Court of Saxony-Anhalt, no deviating interpretation of the Basic Law can be ascertained on the basis of the referring court's own statements. The Thuringian Constitutional Court intends to make 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 then 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 judgment. In fact, that judgment had explicitly left this legal question unresolvedon the grounds thatthe relevant interim period had already expired by the time the Land ordinance challenged in those proceedings had been issued.

With regard to the referral's second question, some deviation of the referring court's reasoning from the Constitutional Court of Saxony-Anhalt's judgment is evident. Unlike the referring court, the Constitutional Court of Saxony-Anhalt takes the position that, even if the parliamentary legislator 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 definitely have expired by autumn 2020. Yet the wording of the question submitted by the referring court in this context suggests that the referral actually concerns 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, has not demonstrated that the Constitutional Court of Saxony-Anhalt's judgment contains any determinations - from which the referring court intends 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 measured.

II. The referral is also inadmissible in respect of its third question.

1. This notwithstanding, the referral's third question does have suitable subject matter. It concerns a question of interpretation in relation to the Basic Law, namely whether legislative provisions authorising the executive to issue statutory instruments that set out administrative fines are 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 that are meant to be enforced by way of fines.

2. Yet here too, sufficient grounds for referral are lacking because, in the referring court's own legal view, the third question - in the generality of its formulation - is irrelevant for deciding the case pending in Thuringia. According to the referring court, the specificity requirements arising from Art. 80(1) GG in relation to the necessary statutory basis for the challenged ordinance were only satisfied because the court assumes that the interim period - i.e. the time granted to the parliamentary legislator for enacting a statutory basis of greater specificity when dealing with situations involving unforeseeable danger - had not yet expired in autumn 2020. If the referring court had chosen 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 interferences with fundamental rights arise, 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 third question is inadmissible even if understood as requesting constitutional review of whether, in order to avert dangers in asituation beset with uncertainties,it might be 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, but that the same might not apply if the ordinance subjected non-compliance to fines because stricter specificity standards arise from Art. 103(2) GG with regard to the latter. The reason for the third question's inadmissibility is that, in its judgment of 26 March 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 that court had to reach a decision, the newly introduced § 28a IfSG had already entered into force.

III. The subject matter of the referral's fourth question is inadmissible because it merely concerns the constitutional standard addressed under the third question and its application to the specific individual case.

IV. The supplementary fifth question does not provide any separate grounds for referral and, due to the inadmissibility of the other referred questions, does not qualify for review by the Federal Constitutional Court.

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