Newsroom / News / Media / Info Magazine LGP NEWS 01/2020 / The virus in the rule of law:

The virus in the rule of law:

“Constitution matters”

The virus in the rule of law:

During a video conference, Philipp Freund talked to LGP’s two Senior Expert Counsels, Heinz Mayer and Manfred Matzka, and LGP’s founder, Gabriel Lansky, about the “constitutional” conformity of measures relating to Covid-19, legal reservations in the field of fundamental rights and the legal scope for interpreting ambiguously phrased regulations.


Philipp Freund: In the current crisis situation, politicians have to make an underlying trade-off between various fundamental rights, such as protecting people’s health and safeguarding their right to life on the one hand, and fundamental freedoms, such as the freedom of employment, freedom of assembly, the right to demonstrate, etc., on the other. Where should we draw the line here?

Heinz Mayer: The line is not something that we need to draw: it is something the constitution has drawn for us. Fundamental rights must be respected; if the legal reservation is invoked, the restriction imposed must be proportionate. This means that we need to choose the least invasive means that still leads to the goal, and this applies just as much in the current situation as it does otherwise. 

Manfred Matzka: The issue becomes more concrete when we consider the question of ‘What do the reservations cover?’. We do not only need to look at this from a material point of view, i.e. in terms of the intensity of intervention: we also need to examine it in terms of the requirements that fundamental rights reservations place on ‘legal technique’. Namely, how are reservations imposed on fundamental rights, such as through a law? How precise and clearly understandable is this law and what does it mean for enforcement orders? 

Gabriel Lansky: From the perspective of legal protection, I would like to add that it is incredibly important that those working with the new Covid legislative packages and regulations have constitutional acumen. Reading the laws and regulations is not enough: a good legal advisor must also have one eye to the constitution and ask themselves which aspects of the new laws and ordinances may be constitutionally questionable, and how to deal with them when providing legal advice. For example, this could include considering whether it might be possible to turn to the Constitutional Court. 

Mayer: I would like to pick up on something that Manfred said earlier, namely the question of the form that an encroachment on fundamental rights needs to take. Under the Human Rights Convention, this must be done in accordance with national law, so it does not necessarily have to be a formal law in itself. If a country’s law means that a generally accessible regulation issued by the administration is sufficient, then this is also sufficient as an intervention tool within the meaning of the Human Rights Convention. The only aspect to consider is that the national law must be sufficiently accessible and precise, and formulated in such a way that individuals can align their behaviour accordingly. 

Freund: You mention criteria of accessibility and precision: are they fulfilled in the current crisis measures taken by the Federal Government? 

Mayer: The law is accessible: it is announced, and that’s enough. The question of how precise general rules can be overall is always a contentious issue – and that’s no different in the current situation. There are rules that are easier to understand, and those that are more difficult to understand. The Covid Measures Regulation, for example, is easily comprehensible in some respects and rather unclear in others. 

If it states, for example, that entering a public space is forbidden, except for access for work-related purposes; or that it is compulsory to wear mechanical protective devices that offer good coverage of the mouth and nose; or that care must be taken to ensure that professional activities are carried out outside the workplace, preferably, then these are all regulations that are very flexible or can be interpreted very broadly.

In addition, some politicians make claims that do not arise from the regulations. For example, they claim that you are only allowed to move around outside briefly or that you are not allowed to take long bike rides. This is by no means what this regulation provides for. This means that politicians create ambiguity by making assertions that are not grounded in the legal material.

Matzka: Heinz is right. Under the Human Rights Convention, the term ‘law’ is to be understood materially, and can also mean a regulation, as a result. But what happens if one of these regulations does not comply with the underlying law? One example which has already been discussed in the public sphere on several occasions is the situation in which the law provides for traffic restrictions in certain public places, and a regulation then turns this into a general ban on entering public places with some defined exceptions. 

This raises the question of what happens if a regulation of this nature is not sufficiently covered by the law. The second example comes in the guide of the obligation to wear masks in groceries on the basis of food safety law. Is this really a suitable legal basis? If the regulation is not covered by it, it is likely also not suitable for use as an exception to the guarantees of fundamental rights. 

Mayer: Ultimately, this means that an intervention has not been made by a law within the meaning of the Human Rights Convention. 

Matzka: We have also experienced problems with regard to accessibility. What about those regulations which were valid for a short time and then disappeared, on the basis of the Epidemic Act? Today, it is impossible to find many of the regulations that were valid for three, four or five days – they were announced on websites and homepages and then simply deleted. If the individual in question can no longer find a regulation that was valid from 13 to 17 March, they only have very limited ways to take legal action against it. This naturally begs the question of what legal consequences this will have.

Lansky: I believe that the ability of the people in question to understand this ‘coronavirus law’ must be a measure of constitutional conformity. To do so would require aids which are unfortunately not available at present: within the normal law-making process, we would have committee reports, opinions from institutions entitled to give such perspectives, the views of the Constitutional Service, and there would also be initial comments on the law, which would also work through these opinions.

During the coronavirus pandemic, unfortunately, none of this is present, with laws currently being created via summary proceedings. This makes it much more complicated for the users of the law to deal with the new materials. In addition, there are the hugely unclear areas, as Heinz just described. This makes interpreting the law much more difficult. 

In other words: despite these shortcomings, we lawyers must create a certain degree of security for the users of the law, and this works better if you include the tools of a constitutional lawyer. This is also why we placed great emphasis on this kind of expertise in our legal advice even before the coronavirus hit.

Freund: What would your advice be to a company or a natural person who suspect they have been negatively affectedby an unconstitutional law or regulation? 

Mayer: There are different ways to handle this: first of all, it is worth noting that these rules (as far as they concern commercial enterprises) can relatively quickly affect EU law, namely in cross-border situations. This may affect the freedom to provide services, workers’ freedom of movement and the free movement of goods. If European law is indeed affected, state liability for legislative injustice comes into play. This means that if state laws cause damage because they are contrary to European law, then there is a liability claim against the state, analogous to a liability claim against an official body. 

However, these liability claims against official bodies can be asserted as far as execution goes. The liability held by official bodies means that public law bodies are liable for the damage caused unlawfully and culpably by their executive bodies. That would be a way of defending yourself under the law of property. Then, of course, there are the public law options: an appeal to the courts of justice, i.e. to the administrative courts and then to the Supreme Administrative Court and the Constitutional Court. Finally, it is also possible to file individual petitions against unconstitutional laws, although the procedural requirements are somewhat complicated. 

All in all, there is a wide range of instruments available. Recently, there have been several calls, quite rightly so, for the introduction of a ‘summary procedure’, as in Germany. The Constitutional Court can grant interim legal protection if this is necessary for reasons of European Union law. For example, this means that it could provisionally suspend the entry into force of a regulation. This could certainly be expanded and, say, also make it possible for legal provisions to be temporarily suspended by the Constitutional Court. 

Matzka: There are relatively strict requirements for individual petitions for judicial review. In particular, the individual in question must demonstrate that their rights have been directly affected or infringed, without the intervention of a notice. I think this is a perfectly feasible way of doing things, because you have to stick to something, such as a regulation, and risk a heavy fine if you do not. 

Lansky: In my opinion, the practice of European law is not only an exciting instrument in the current situation from a pragmatic perspective: it could also be surprisingly successful in many cases. This is mainly because the core principles of the European Union, the four fundamental freedoms of free movement of goods, persons, services and capital and payments, are not at all in alignment with the ‘coronavirus rule of law’, which is largely incompatible with the four fundamental freedoms. 

Incidentally, I share Heinz and Manfred’s opinion that there are good reasons to accept reservations in the area of fundamental rights in times of crisis. However, European law has not yet carried out the process of implementation, meaning that Austrian law will have to be measured against existing European law in many areas. 

Mayer: It has to be said that even the fundamental freedoms have reservations, i.e. they allow for some interventions. For example, interventions in the movement of goods are permitted for reasons relating to public health. The question revolves around where to draw the line: can I completely shut off a country’s economy from the rest of Europe, or does that have to be proportionate too? 

Matzka: In this context, it is worthwhile taking a close look at the judiciary. There is extensive case law on the issue of balancing health and freedom of employment, say, which I think defines the boundaries quite well. 

Mayer: For example, mandatory labelling requirements are also permissible under certain conditions. 

Lansky: Providing legal advice during this period requires much more creative and complex questions to be asked than during business as usual. All these considerations that we’ve just discussed are correct, but they are simply not recognised in 90% of the legal advice given every day. Normally, for legal questions that arise in everyday life, you just need a simple grasp of the legal text, regulation or decree. At the moment, however, it might not even matter what the text in question says: it may still be wrong because it does not conform to the constitution or EU law, say. 

Freund: How can the dangers of this ‘coronavirus law’ be realistically and pragmatically countered without simultaneously depriving politicians of the opportunity to act effectively?

Matzka: Two points seem to me to be particularly urgent at the moment. Firstly, legislators must take the principle of encroaching as little as possible on fundamental rights seriously, and this cannot be stressed enough. This calls for tact and restraint, i.e. taking a step or two backwards.

Point two is a political demand: parliament’s involvement in the funding and compensation machinery, in particular, which will be crucial for many of the businesses affected by coronavirus. Leaving this to a GmbH company, by which I mean the COVID-19 Finanzierungsagentur des Bundes GmbH (‘COFAG’), is rather questionable. The strong involvement of a parliamentary committee would certainly be better for those concerned because it would lead to more space being given to the idea of equality and justice.

Mayer: After all, COFAG has funds amounting to about one third of all government expenditure, and that is something that must be borne in mind. 

Matzka: The question is, what right does the constitution give parliament to control and use large swathes of the budget? From a political point of view, parliament’s hefty monitoring powers when it comes to this committee of stakeholders are certainly of great advantage. 

Lansky: Let me recap: parliament must exercise its supervisory role more strongly. Incidentally, Heinz Fischer, among others, agrees with this. At the same time, parliament must act quickly. This means that we must find adequate ways to ensure that parliament is involved in these processes and does not renounce its rights and duties for democracy. 

Secondly, I also share the opinion held by the President of the Austrian Bar Association, Rupert Wolff, namely, that the instruments of the Constitutional Court must be expanded so that we can obtain preliminary findings on urgently needed issues in summary proceedings.

Thirdly, it must be possible to carry out rapid assessment procedures in the parliamentary process within tight deadlines. And it must also be possible, despite the urgency of the matter at hand, to fully involve the Constitutional Service of the Federal Chancellery and the Legislative Service of the Austrian National Council. These far-reaching encroachments on fundamental rights cannot be decided without using the instruments actually existing within Austria’s constitution. 

Mayer: And besides, ‘the constitution is something to care about!’. This should not be irrelevant, as the Chancellor thinks, and that must also be said at some point!

Lansky: It must be possible to combine the existential health-related requirements of a policy that attempts to protect people during the pandemic with respect for parliamentary democracy and the rule of law. This is feasible: you just have to want it and make a good effort to do so.

Authors:

Dr. Gabriel Lansky, Managing Partner at LANSKY, GANZGER + partner
Philipp Freund, M.A., B.A., Policy Advisor, Business Development, Westbalkan & SEE Desk at LANSKY, GANZGER + partner
em. o. Univ.-Prof. DDr. Heinz Mayer, Senior Expert Counsel at LANSKY, GANZGER + partner

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