They fought several trading companies, including a “Graz company that operates at 49 locations in Austria and mainly deals in shoes”.
Of course, this was retrospective: the ordinance was only in force from April 14th to 30th. They fought several trading companies, including a “Graz company that operates at 49 locations in Austria and mainly deals in shoes”.
The fact that stores with less than 400 m2 were allowed to reopen after Easter, but larger stores were not yet, violated the principle of equality – especially because DIY superstores and garden centers with more than 400 m2 were allowed to open again in mid-April. In addition, the Minister of Health did not make it clear on the basis of which information he made this regulation. Corresponding documentation would be decisive for the assessment of the VfGH, it said in a broadcast.
It was constitutional, however, that the Covid 19 law enabled the Minister of Health to impose an ordinance on entry bans for trading companies in order to “curb personal contact between people”, the VfGH stated.
VfGH extended jurisprudence: Regulations out of force also examined
The Constitutional Court has decided on the Corona ordinances on exit restrictions and partial business opening, although these have no longer been in force since April 30. This represents a “further development of the case law”, as it was called on Wednesday in a broadcast.
The departure from the earlier practice is justified with the “legal interest of an applicant in a binding decision on the constitutionality of provisions”. This could namely “go beyond the relatively short period in which the provisions were in force”. The ordinance with the de facto exit ban was issued on March 15th and expired on April 30th.
The second regulation on the partial relaxation of the entry bans for business premises, which was subsequently repealed due to illegality, was even shorter in force: on April 14, shops with less than 400 m2 of sales area as well as DIY stores and garden centers were allowed to reopen, for other larger shops it was still valid until 30 April the ban on entry.
Kogler defends corona laws
(Greens) defended the corona laws despite objections from the Constitutional Court. The government lawyers had “implemented everything to the best of their knowledge and belief, everything had to be done in a short time,” he said on Wednesday on the sidelines of a press conference. The provisions of the Covid19 Measures Act had also been confirmed.
A lockdown a week later would have quadrupled the numbers, argued the Vice Chancellor again. The question of the provisions, such as the imposition of penalties by the executive branch, is currently being investigated. The division into categories, for example in shops, is still a possibility. “The goal is to find the most citizen-friendly solutions,” said Kogler.type my paper for me
Penalties not contested as an open question
After the ruling of the Constitutional Court (VfGH), according to which the regulation on the corona exit restrictions was essentially illegal, the question arises what happens to penalties that have not been challenged. Peter Bußjäger, university professor at the Institute for Public Law, Political Science and Administration in Innsbruck, stated on APA request that these are not automatically invalid.
It is about those people who have been punished and have not appealed. According to Bußjäger, according to the Administrative Penal Act, repayment is possible where there has been an obviously illegal penalty. But this is a can determination. In any case, the competent authorities would have to act with equal treatment, i.e. they could not repay in one case and not in another. Minister Rudolf Anschober (Greens) could ensure uniformity between the authorities with an instruction.
For Bußjäger, one of the still outstanding VfGH decisions is the question raised by the Vienna Regional Administrative Court as to whether the violation of the distance rule should be made a criminal offense. “The matter is relatively complicated, there are still open questions,” he said.
For a possible further lockdown, an amendment would not be absolutely necessary for him if only it were decreed differently. Nevertheless, he expects a change in the law in the autumn. Bußjäger does not see that the government had serious deficiencies in its approach. One could follow the VfGH, but many arguments from the government side were understandable.
The administrative lawyer Hans-Peter Lehofer described the VfGH decision on the exit restrictions via Twitter as “not a big surprise”. One can assume that a draft law will be on the table by autumn for the concrete and more precisely defined basis required for such a far-reaching requirement.
Anschober promises “citizen-friendly regulation”
In view of the VfGH ruling on Wednesday, Health Minister Anschober promised a “citizen-friendly regulation” for the penalties imposed for violating the exit restrictions during the corona lockdown. He was pleased in a press conference and a broadcast that the Covid-19 Measures Act was confirmed.
The repeal of its ordinances – including those on the gradual easing of trade – have no immediate effects. But they will “take full account of them in our future work,” he assured in a broadcast. In any case, the Constitutional Court had declared entry bans admissible in principle and recognized it as legitimate to restrict the right to personal freedom if it served important public interests.
He was also “happy” about the “clarifications” to his regulation – which was repealed by the Constitutional Court. Because you cannot rule out that you will find yourself again in a situation where such measures are necessary, said Anschober in the press conference. Now, together with the Constitutional Service, an analysis is being made of what effects the knowledge has on completed or ongoing criminal proceedings. At the press conference, Anschober emphasized that he cannot yet say what the “most citizen-friendly solution” for the penalties will look like.
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The Constitutional Court ruled that the ordinance on exit restrictions issued on the occasion of the corona pandemic was partially illegal.
He also does not allow the earlier opening of smaller shops. The VfGH considers the Covid-19 Act itself to be constitutional, as it announced on Wednesday.
Corona exit regulation and 400m2 regulation illegal
The Constitutional Court has decided on the Corona exit restriction and the business closings: The Covid-19 law is constitutional in these points, including the elimination of compensation for closed shops and business premises. But the ordinance on the exit ban was just as (partly) illegal as the one with the partial opening of business from April 14th.
Also read: “The epidemic law is only an emergency solution”
These ordinances by Health Minister Rudolf Anschober (Greens) have not been in force since the end of April. But the Constitutional Court has also expressly stated that the provisions on exit restrictions “are no longer applicable” – for example in ongoing administrative criminal proceedings.
Specifically examined and found to be illegal were those – admissibly challenged – parts of the Schober Ordinance that only allow entry into public spaces and the use of public transport for the four reasons of professional work, help, urgent errands, walks (alone or with household members). According to the Constitutional Court, the obligation to provide credible reasons for entering public spaces in exceptional cases during a police check went beyond the limits set by law.
The Court of Justice regards the fact that the Covid-19 Measures Act passed in March “undermined” the Epidemic Act and thus the claim for compensation for officially closed companies is constitutional. It does not violate the fundamental right to the integrity of property or the principle of equality, as several companies had argued in their applications.
However, the Constitutional Court retroactively repealed the ordinance that allowed certain shops to be reopened after Easter – mid-April. It is an objectively unjustified unequal treatment that shops with less than 400 m2 sales area and DIY superstores and garden centers are generally allowed to reopen, but the entry ban for all other larger shops continues to apply until April 30, the Constitutional Court agreed that the companies were right therefore turned to him.
With these decisions, made in an additional session the previous week and published on Wednesday, 19 of the 70 cases available to the VfGH – which had arrived by the beginning of the June session – have been settled.
VfGH: Provisions on the Corona Exit Ordinance no longer applicable
With the decision of the Constitutional Court that the ordinance on the corona exit restrictions – which were in effect until April 30th – was largely illegal, numerous fines will probably have to be repaid. Because these provisions may no longer be applied in ongoing administrative criminal proceedings.
The constitutional judges have no reservations about Par. 2 of the Covid 19 Act. This provides that entry into certain locations can be prohibited by ordinance “if this is necessary to prevent the spread of COVID-19” – and exceptions can be made under certain conditions or requirements.
With his ordinance issued on March 15 (and later extended), Health Minister Rudolf Anschober (Greens) declared entry to public places generally forbidden, with the four known exceptions (professional work, help, urgent errands, walks with household members).
According to the Constitutional Court, the regulation was based on “the principle of a general exit ban”. Such a “general ban with reservation of permission” is not covered by the Covid-19 law. Because this does not provide a basis for people “to be encouraged to stay in a certain place, especially in their home”. The minister was “prevented from ordering a …… exit ban par excellence through a general ban on entering public space outside one’s own home (in the broad sense of Art. 8 ECHR).”
In order to contain the coronavirus, only entry bans for precisely defined places or regionally limited areas (such as communities) would have been permitted. In special circumstances, an exit ban could be justified if it is proportionate. But for such a far-reaching restriction on freedom of movement, a concrete and more precisely defined basis in the law would be necessary, the constitutional judges determined.
The court dealt with the ordinance on the basis of an individual application by a university assistant at a Vienna university residing in Lower Austria. The Constitutional Court justified the fact that not the entire ordinance – as it applied for – but only four points (Par. 1, 2, 4 and 6) was repealed by the fact that the applicant was subject to the other entry bans (for health resorts and rehabilitation facilities as well as sports facilities ) was not directly affected personally. The request to repeal the entire regulation had to be “rejected as inadmissible”.
It is not known how many penalties were imposed on the basis of the parts of the regulation that have now been repealed. In a query response from July, Interior Minister Karl Nehammer (ÖVP) reported 35,000 reports between March 16 and June 17. Many of those affected have appealed – and the ongoing proceedings may no longer be applied to the repealed provisions.
Two state administrative courts, those in Vienna and Lower Austria, had already determined that penalties for violating the Corona exit restrictions were inadmissible – because they were not covered by law. The state of Lower Austria is therefore paying back all penalties imposed for private visits during the lockdown. The Vienna Administrative Court asked the Constitutional Court to declare the regulation unlawful. However, this motion was not yet on the agenda of this session of the Constitutional Court. The opposition has unanimously demanded an Austria-wide general amnesty for all those punished, the government has so far refused.
VfGH confirmed the cancellation of the compensation for corona closures
The shops, hotels and other business premises that have been closed since mid-March to combat corona are not entitled to full compensation. It is constitutional that this claim contained in the Epidemic Act is no longer applicable because there was a large package of measures and rescue packages, the Constitutional Court found. The only partial opening of the business after Easter was illegal.
The constitutional judges stated that the Corona Measures Act does not provide for a claim to compensation, neither against the fundamental right to the integrity of property nor against the principle of equality. An entry ban is a “significant interference” with the fundamental right of property. But this is not disproportionate because it is embedded in an extensive aid package to cushion the economic effects of the corona pandemic.
The “leveraging” of the epidemic law was heavily criticized by the opposition. Numerous companies have turned to the VfGH, including a wholesaler for household, office and toys, a goods trading company based in Vienna and a Viennese textile trading company. The applications of the Tyrolean hotels with regard to the compensation were partially dealt with in this session of the Constitutional Court.
From the point of view of the VfGH, the Epidemic Act and Covid-19 Act are not comparable: With the Epidemic Act 1950, the legislature only had the closure of individual companies in mind, but not the large-scale entry bans now being experienced.