An emergency measure which consists in the prevention or mitigation of the spread of novel coronavirus disease (Covid-19) has a legitimate aim. However, the regulation of the rights and obligations of individuals and the decision-making on which group of population will retain their rights, and which will bear the burdens associated with the restriction, must not be a mere expression of political will in a modern democratic state governed by the rule of law.
While public power may be exercised only in cases provided for by law, the state of freedom serves as the basic state of the individual. Although the state power is constitutionally empowered to interfere with this basic state of freedom, the nature of this interference must respect the wording and meaning of Article 2.3 of the Charter of Fundamental Rights and Freedoms.
Every emergency measure is a political decision, which must be founded on expert evidence, yet it is the Government who assumes the responsibility, rather than its expert advisers. Therefore, the Government is required to consider not only the specific expert evidence at its disposal, but also the overall context and impacts – both long and short term - of its measures on other areas of social life.
Effective review by the Constitutional Court is not possible without a proper explanation from the Government of the need to issue the emergency measure (including the evidence on which it was based) and appropriate substantiation of the extent to which restrictions on fundamental rights will be needed and clarification of the obligations imposed.
I. The Government Resolution of 28 January 2021 on adoption of some emergency measures introduced a blanket ban on retail sales and provision of services due to the Covid-19 pandemic. At the same time, the Government Resolution introduced numerous exemptions from this ban with the objective of allowing sales of essential goods and services. However, the Government failed to explain why some goods or services were deemed to be essential (including not only grocery stores, drugstores and pharmacies, but also flower shops, dry cleaners, haberdasheries, hardware stores, garden centres and gun shops) while other goods and services (such as shops selling winter clothes and footwear) were not.
The applicants, (a group of Senators) sought an annulment of the Government Resolution. They argued that the blanket ban on retail sales and provision of services – although with numerous exemptions – was arbitrary, disproportionate and inconsistent with fundamental right of individuals to engage in enterprise pursuant to Article 26 of the Charter. The applicants acknowledged that the Government Resolution pursued, or was meant to pursue, a legitimate aim, namely the prevention or at least mitigation of the spread of Covid-19, but the means to achieve this aim were, in their view, irrational, arbitrary and discriminatory. They asserted that the Government failed to explain which criteria, if any, were used to decide which goods and services were “essential” thus qualifying for exemption from the blanket ban and which were non-essential.
In terms of the relatively short “life span” of emergency measures adopted in response to Covid-19 pandemic, the Constitutional Court had previously held that if an emergency measure ceased to have effect in the course of the proceedings before the Constitutional Court, yet a similar or essentially the same norm was subsequently adopted in the form of a new emergency measure, applicants might amend the petition accordingly (i.e. seek annulment of the new emergency measure without having to file a new petition). This was the case in the present matter. This allowed the Constitutional Court to address the petition on merits, even though the applicants originally contested emergency measures, which had ceased to have effect long before the Constructional Court had a chance to decide the case on merits.
II. The Constitutional Court emphasised that it did not question the existence of a legitimate aim pursued by the emergency measure concerned. It noted that the Government had introduced the blanket ban on retail sales and provision of services – although with numerous exemptions – in order to prevent or at least mitigate the spread of SARS-Cov-2 virus and to prevent associated collapse of health care system and extensive damage to the health and lives of the population.
Despite the legitimate aim behind the Government resolution, the question remained as to whether the unequal treatment of the various groups of entrepreneurs it ushered in might be considered justifiable and proportionate. Since the Government Resolution touched upon constitutional interests (fundamental right of individuals to engage in enterprise pursuant to Article 26 of the Charter), the Constitutional Court had to analyse whether the aim pursued by the Government could be achieved by less restrictive means and whether the Government considered them properly before adopting the contested emergency measure. However, the Government was either unable or unwilling to provide any justification for the necessity and proportionality of the emergency measure (at least throughout the course of the proceedings before the Constitutional Court). In particular, it was unable or unwilling to provide any justification or explanation as to why the blanket ban on retail sales and provision of services was necessary, why some goods and services were deemed “essential,” and thus exempt from the blanket ban (although their classification as “essential” might be prima facie dubious), while others did not, and why less restrictive measures would not be able to achieve the desired effect.
The Constitutional Court acknowledged that the Government had to face issues associated with the pandemic crisis, which are extremely difficult to address through legal regulation. It also noted that public authorities (in the Czech Republic and abroad) lacked experience in resolving a crisis of a similar magnitude. The epidemic situation was dynamic and there was no consensus among experts on how to correctly asses the risks and manage the pandemic. Nonetheless, the Constitutional Court emphasised that even in the times of pandemic the fundamental rights of individuals cannot be dependent on whims of the Government. This is especially relevant in terms of the decision-making process whereby the Government decided which sections of the population would be forced to bear the burden of pandemic restrictions and which would remain essentially unaffected by them.
Furthermore, the Constitutional Court was mindful of the fact that any emergency measure was a political decision which had to be founded on expert evidence (even though it is the Government who assumes the responsibility for emergency measures, not its expert advisers). Therefore, the Government was required to consider not only the specific expert evidence at its disposal, but also to consider the overall context and impact of its measures on fundamental rights of different parts of the population, both in the short and long term. For this reason, it was essential for the Government to be able to provide rational justification of any such decision, its necessity and the reasons that led to its adoption. The Constitutional Court thus observed that if the Government is unable to provide adequate justification of its measures, they would not only lack legitimacy in the eyes of the public but would also fail the least restrictive means test.
The Constitutional Court also noticed that the Government had opted for a blanket ban on all retail sales and provision of services while providing for many exemptions which were reminiscent of a “telephone directory” (thirty-six altogether). In the Constitutional Court’s view, the key deficit of the Government Regulation lay in the fact that it was impossible to discern what kind of expert) evidence, if any, guided the decision-making process of the Government when adopting the contested emergency measures. Even in times when consensus among experts is lacking and the Government must adopt emergency measures based on imperfect information and expert evidence, it is never constitutionally acceptable for the Government to decide purely on its political instinct and to adopt any emergency measures it deems fit. On the contrary, even in times of pandemic and informational uncertainty, Government decisions must be based on expert recommendations and all available information about the disease and its spread.
The means whereby the Government prohibited and allowed the sale of goods and provisions of services in the contested Government Regulation is significant. The Constitutional Court stressed that it is not constitutionally acceptable to adopt a blanket ban on certain human activities which are protected by the Charter (e.g. retail sale and provision of services) and then re-enable certain – prima facie arbitrarily selected – activities affected by the prohibition in the form of exemptions from the blanket ban, with no justification. The requirement of a rational justification of a measure which interferes with fundamental rights of individuals and in effect treats comparable entities differently is an essential ingredient of the discrimination test, i.e. the assessment of whether the difference in treatment is justified and proportionate. Only under such circumstances may this difference in treatment be considered justifiable. In a modern democratic state governed by the rule of law, it is inconceivable that any law interfering with fundamental rights would lack any justification, let alone a reasonable and convincing one, and that the justification would remain obscure throughout its subsequent judicial review. Justification is required for any regulation resulting in an unequal interference with the fundamental rights of individuals to engage in enterprise within various types of enterprise in the field of retail and services. The Government had prohibited all retail sales and provision of services and then, arbitrarily and with no justification as to their necessity and significance for controlling the spread of SARS-Cov-2 virus, provided for numerous exemptions from this blanket ban. This resulted in unequal treatment of different kinds of entrepreneurs. The Constitutional Court therefore concluded that the Government Resolution violated the right of individuals to equal access to the right to engage in enterprise pursuant to Article 26.1 of the Charter in conjunction with Article 1 of the Charter.
Moreover, the Constitutional Court could not ignore the fact that the Government had enough time to consider and justify the contested emergency measure since, at the time of its adoption, the pandemic had been raging for almost a year. The Government should have been prepared to provide rational, scientifically supported justification for the emergency measures since it had enough time to gather all necessary expert evidence, assess the impact of various emergency measures on controlling the spread of SARS-CoV-2 virus and adjust its pandemic preparedness plan accordingly. From the perspective of the passage of time, higher demands now had to be placed on the justification of the interference with fundamental rights than was the case with the immediate response at the beginning of the pandemic in March 2020. Stricter scrutiny was now needed because the Government had substantially more information, practical experience and time to rethink and systematically justify the contested regulation, and because long-term and repeated interference with the fundamental right to engage in enterprise is significantly more invasive and “painful” than short-term and temporary restrictions.
The Constitutional Court acknowledged that legal regulations issued at the time of a declared emergency could not be subject to the same scrutiny as in times of “plain sailing” and therefore, for example, it is not always necessary to insist on a formalised explanatory memorandum. At the same time, however, the opposite extreme is not acceptable, i.e. a situation where the Government, in proceedings before the Constitutional Court when a specific emergency measure is already under review, is unable or unwilling to justify the need for the blanket ban or to explain why less robust interferences with the fundamental rights of individuals are insufficient, or the rationality of the individual exemptions. Although it is unambiguous from the nature of the case that some of these exemptions are necessary (e.g. the sale of food, medicine or fuel), several other exemptions require a convincing explanation to show that this does not amount to inadmissible arbitrariness by the Government (e.g. flower shops or gun shops). At the same time, this reasoning serves not only as a necessary basis for the review carried out by the Constitutional Court, but also for social acceptance and thus also the legitimacy of the emergency measures.
III. Vojtěch Šimíček served as the Justice Rapporteur in the case. Justices Jaroslav Fenyk, Josef Fiala and Vladimír Sládeček submitted a dissenting opinion.