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Austria: Legal Response to Covid-19

Austria [at]

Prof. Dr. Karl Stöger

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 05 December 2021

General editors: Prof. Jeff King; Dr. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

Preferred Citation: K Stöger, ‘Austria: Legal Response to Covid-19’, in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). doi: 10.1093/law-occ19/e28.013.28

Except where the text indicates the contrary, the law is as it stood on: 30 June 2021

As of 30 June 2021, there were approximately 650,000 confirmed cases of Covid-19 in Austria. Around 10,700 people died either directly as a result of the virus itself or ‘with the virus’ from a potentially different cause of death. Hospital capacities were strained between autumn 2020 and early spring 2021, which resulted in medical checks and treatments being postponed, although deaths as a result of ICU triage were successfully avoided. Nevertheless, the health care system was largely able to cope with the challenges imposed through the Covid-19 pandemic.

The virus has unfolded in three waves so far which were met with full and partial lockdowns. The first (comparatively small) wave of Covid-19 cases started in early March 2020 with the first cases being registered on 25 February 2020. The first lockdown was imposed on 16 March 2020, lasting approximately one month. Relaxations of measures started on 13 April 2020, continuing throughout the summer. From September 2020, there was a resurgence in daily case numbers, resulting in new measures, with a partial lockdown from 3 November to 16 November 2020 and a second full lockdown from 17 November to 6 December 2020. After another partial lockdown, the third nationwide full lockdown lasted from 26 December 2020 to 7 February 2021. This second wave saw the largest number of daily infections.

As of 8 February 2021, a partial lockdown resumed. At the end of February, exit tests were imposed in parts of western Austria due to the Beta variant first identified in South Africa. As of late March, case numbers rose sharply again (‘third wave’), mostly due to the arrival of the Alpha variant. Although political reluctance at the state level was growing against federal measures, a risk of capacity overload in ICUs in eastern Austria was narrowly averted by creating additional capacity and going into full lockdowns in Burgenland, Lower Austria, and Vienna from the 1 April 2021 until 19 of April 2021 (Burgenland) or 2 May 2021 (Lower Austria, Vienna) respectively.

Due to the progress in vaccination, the situation started stabilising in May 2021. As of 19 May 2021, the ‘Covid-19 Opening Ordinance’ entered into force, bringing along wide-ranging openings of all areas of public life. From 1 July 2021 onwards, it was replaced by the ‘Second Covid-19-Opening Ordinance’ which brought still more relaxations, despite the arrival of the Delta variant.

I.  Constitutional Framework

1.  Austria is a federal, semi-presidential republic. It does not have a single constitutional instrument at the federal level; the main source of constitutional law is the Federal Constitutional Law of 1920,1 which has regularly been amended. The majority of fundamental rights are enshrined in two somewhat different instruments: the Basic Law of the General Rights of Nationals,2 dating back to the Habsburg monarchy, was transformed into a Federal Constitutional Statute in 1920, while the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),3 an international human rights treaty, was accorded constitutional status by the Federal Parliament in 1964.4 Furthermore, there are some specific federal constitutional statutes on individual fundamental rights, the most important in the given context being the Federal Law on Personal Liberty.5 Between these instruments, the most favorable clause (Art 53 ECHR) applies.

2.  The Federal Parliament is bicameral: The National Council (Nationalrat) has 183 members elected through a system of proportional representation, while the members of the second chamber, the Federal Council (Bundesrat), are nominated by the state legislative bodies. While all legislative proposals—including amendments to existing legislation—have to pass the National Council in the first place, the Federal Council also participates in the adoption of most federal legislation, with the exception of matters concerning the National Council and the federal budget;6 however, it can only veto them temporarily. Only if legislative or executive state powers are curtailed by federal constitutional legislation or the organization of the Federal Council is affected, may the Federal Council block federal (constitutional) legislation. At the sub-federal level, there are nine states (Bundesländer) with individual state constitutions and a single chamber- legislative body (Landtag), elected by popular proportional vote. State constitutional law must not contradict federal constitutional law, while federal and constitutional statutes have the same rank. However, due to a clear delimitation of legislative competencies, federal and state legislation should, in principle, not conflict with each other—which normally works well in practice.

3.  The Federal President is Head of State and is elected by universal suffrage. They appoint and dismiss the Federal Chancellor and, following the latter’s proposals, all other members (Federal Ministers) of the Federal Government. While the Federal Chancellor has some factual authority, they are still ‘primus inter pares’ as the Federal Government (Council of Ministers) makes decisions unanimously.7 Through a vote of no confidence backed by a simple majority of its members, the National Council can oblige the Federal President to dismiss the Federal Government or individual Ministers. By convention, elections to the National Council and the appointment of a new Federal Government are interconnected, with the Federal President traditionally inviting the leader of the party with the most seats to propose the members of a future Federal Government. As the Federal Government depends on the confidence of the Federal Chamber, the Federal Ministers traditionally are members of the parties with the largest number of seats in the Federal Council. This, in turn, results in a strong role of the executive (Federal Government) vis-à-vis the Federal Parliament. In the context of the Covid-19 pandemic, it is important to note that the parties forming the ruling coalition (Conservatives/Greens) in the Federal Government also controlled a majority of votes in the National Council, enabling them to pass laws without consent of the parliamentary opposition. In contrast to this, opposition parties had a slim majority in the second chamber (Federal Council), as its composition depends on the parties’ representation in the states’ legislative bodies. As a result, an announcement by the opposition to veto a bill in the Federal Council led to the abandonment of one legislative proposal by the Government in January 2021 (see Part III.A below) and to the vetoing of another bill in March 2021, postponing its entry into force until late May 2021.8

4.  At the state level, the legislative bodies (Landtage) are elected by universal suffrage, the electoral system being proportional. The state governments are elected by the Landtag, making the states fully parliamentary systems. The members of the state government are legally equal, however, from a political point of view, the Governor (Landeshauptmann) is the leading figure as they have the role of Head of ‘State’. This Governor’s role is further strengthened by their leading participation in the federal administration (see immediately below). Political parties at the federal and the state level are basically identical, however, they are organized in federal and state divisions. These ‘sub-parties’ partially focus on different questions than the federal organizations. As a result, potential conflicts not only arise between the federal and state governments, but also between the federal and the state divisions of political parties. This has indeed been of some importance during the Covid-19 pandemic in Austria.

5.  This constitutional framework was barely amended in reaction to the pandemic. However, for meetings of the Federal Government and of the Municipal Councils, an authorization was enacted to hold these as videoconferences if necessary.9 These amendments contain a sunset clause, which has been extended twice. No comparable amendment was voted for the Federal Parliament which continues to meet in presence.

6.  This report focusses on measures taken by the Federation and the states of Tyrol and Vienna. In Tyrol, a state strongly dependent on tourism, the first big outbreak took place, it was also heavily affected by virus variants in 2021, and its local (conservative) politicians reacted partially recalcitrant towards federal measures. Vienna, whose government is dominated by social democrats, is the biggest city in Austria (1.9 million inhabitants) and the most densely populated state of Austria, which makes social distancing particularly challenging.

7.  In Austria, the powers to legislate and to enforce legislation are divided between the Federation and the states according to subject matters. All powers not attributed to the Federation remain with the states, however, the most important powers are attributed to the Federation. This holds also true for the subject matter of ‘public health’,10 which is a federal power in legislation and enforcement and includes the control of infectious diseases and the law of the medical professions. Other subject matters, which proved important for the management of the pandemic and its effects are also federal (at least legislative) powers: labour law, social security law, organization of schooling—as opposed to organization of schools as institutions where powers are divided—, tertiary education, insolvency law, or administrative, civil and criminal procedure law as well as the majority of taxes. States are, amongst other tasks, competent for legislation and enforcement in matters of care homes for elderly and disabled persons, nursery schools, burial law, and municipal sanitation. Legislative powers concerning hospitals are divided between the Federation and the states, the latter being solely responsible for enforcement of legislation, while the Federation retains the power of sanitary supervision.11 However, medical pandemic management measures in all these institutions are based on the (federal) Infectious Diseases Act.12 In brief, the majority of relevant legislation in dealing with the Covid-19 pandemic has been federal.13

8.  In contrast to this, the states play a strong role in the enforcement of federal legislation. The Federation only operates a small number of federal administrative authorities throughout the country (direct federal administration; eg in fiscal administration). In most subject matters, the executive powers of the Federation are exercised by the Governor and the state authorities subordinate to their office (indirect federal administration; mittelbare Bundesverwaltung).14 Legally speaking, the Governor and the state authorities are bound by instructions of the competent members of the Federal Government when implementing federal legislation. From a political perspective, the Federal Government is dependent on cooperation from the Governor, the state government, and the state administration. ‘Public health’ is among the subject matters in which indirect federal administration applies. This means that the ‘chain of instruction’ runs from the Minister of Health via the Governor—or another member of the state government acting in their place—to the district administrative authorities acting as health authorities. Individual decisions on the ‘frontline’ are thereby taken by state authorities, which enjoy some margin of appreciation in the implementation of federal instructions. This became quite obvious during the pandemic in three situations:15 First, health authorities in different states had diverging approaches as whom to oblige to self-isolate after contact with an infected person (see further Part IV.A.7 below). Second, some governors had to be put under considerable political pressure by the Federal Government before accepting and implementing unpopular measures at the state level. Third, despite a federal vaccination plan, there have been some differences in the distribution of vaccines and number administered in the different states in 2021 (see Part IV.A.8 below).

9.  Municipalities and self-governing bodies (eg social security institutions) do not have any legislative power. However, their administrative powers are partially free from instructions by federal and state authorities, who only exert supervisory tasks. While both played an important role in fighting the pandemic, this happened within the legislative and broad administrative framework enacted by the Federation and the states.

II.  Applicable Legal Framework

A.  Constitutional and international law

10.  Federal constitutional law does not provide for the declaration of a state of emergency, however, it enables the Federal President—after a proposal by the Federal Government—and the state governments to issue provisional ordinances instead of legislation if federal or state parliaments are incapacitated.16 These ordinances, which are administrative acts by form, can amend or change legislation, but are only functioning as interim measures until the respective parliament can convene, which has to take place as soon as possible, the deadline at the federal level being eight days. As parliaments did not cease working at any point, these powers have never been used during the pandemic. There is no provision permitting the suspension of fundamental rights of domestic origin, eg those enshrined in the Basic Law of the General Rights of Nationals. It is disputed whether Article 15 ECHR, which allows for the suspension of fundamental rights enshrined in the ECHR, is applicable in Austria.17 However, as most fundamental rights can be limited by statute on grounds of public interest in accordance with the requirement of proportionality, the measures against Covid-19 were taken on grounds of the protection of public health without the need of formally suspending fundamental rights. So far, the Constitutional Court has not struck down any primary legislative measure (ie statutes of the Federal Parliament) enacted specifically in the fight against Covid-19 on grounds of violation of fundamental rights (see Part II.B below). However, the same does not hold true for administrative ordinances: a large number of these have been declared illegal and/or unconstitutional by the Court (see Part II.C below).

11.  Austria did not formally derogate from international treaties during the pandemic. It also attempted to act within the framework of European Union (EU) law: obviously, while border management measures were taken unilaterally, this was done under public health derogations provided for by EU law.18 Austria also continued to seek approval for State Aid measures under the (relaxed) relevant framework.19

12.  In several cases, the Austrian legislator explicitly referred to the declaration of a pandemic by the World Health Organization (WHO) in the explanations of legislation adopted over the course of the crisis, eg in the context of the enactment of a disposition in social security law on the topic of work accidents in the home office,20 or as a justification for an additional data transfer to the WHO under the International Health Regulations.21 Other provisions, while not directly referring to the WHO declaration, are materially linked to it: In several professional statutes of health care professions, additional responsibilities (eg testing and vaccinations) were created which are applicable ‘in the course of a pandemic’ only.22

B.  Statutory provisions

13.  Austria has a very strict ‘principle of legality’ enshrined in the Federal Constitution:23 Administrative (sovereign) action requires a statutory authorization. As a consequence, not only public health measures, but many other measures (eg housing, labour-related measures, social security, schools, and universities) require a statutory basis. These were mostly created by omnibus bills, 22 of which were explicitly named ‘Covid-19-statute’ between March and August 2020.24 These, however, were only the tip of the iceberg, during mid-March 2020 and end of June 2021, around 250 statutes (including amendments) were passed,25 most of which had some connection with Covid-19-related measures. The most important of these will be presented in this report. Three points are worth mentioning in this respect: (a) as the MPs of the governing parties hold the majority of seats in the National Council (first chamber), the Government had no problems passing legislation there. However, the opposition parties command a majority in the Federal Council (second chamber), which enables them to block legislation for eight weeks. Due to time constraints, this forced the Government to cooperate with the opposition parties in the passing of most bills; (b) to speed up the legislative procedure, the Government regularly refrained from presenting a government-sponsored bill to parliament, but very often introduced them through MPs, even though they were drafted by ministry officials—this regularly led to the omission of a public consultation on the draft bill which was criticised by the opposition; and (c) in some cases, the parliamentary procedure was sped up even more by MPs introducing a bill with minimum contents (‘carrier rocket’) which was profoundly amended in the competent parliamentary committee. Again, this was heavily criticised by the opposition and by experts for reducing the chance of any meaningful public consultation.26

14.  Within the vast amount of Covid-19-related legislation, by far the two most important statutes are the Infectious Diseases Act27 (Epidemiegesetz) and the Covid-19-Measures Act,28 which form the statutory basis of most administrative public health measures. The Infectious Diseases Act dates back to 1913,29 and was republished in 1950.30 This means it predates the Federal Constitutional Law, with some of its provisions being rather imprecise and not necessarily in conformity with a contemporary reading of human rights. While an amendment in 2016 tried to alleviate the problem by rephrasing the provisions on legal protection against individual isolation and quarantine orders,31 the Constitutional Court declared these provisions partially unconstitutional in 2021 for lack of clarity in a case brought before it by a person quarantined due to contact with a person infected with Covid-19 (see further Part II.B below).32

15.  Another problem with the Infectious Diseases Act was its focus on regional measures taken by district authorities, acting as health authorities, lacking explicit legal bases for the enactment of state or nationwide ordinances on mobility restrictions. When it became clear in early March 2020 that a national lockdown was imminent, the Government introduced—through MPs—the Covid-19-Measures Bill on 14 March, which was rushed through the parliamentary committees at high speed. It was passed by the National and the Federal Council—with the support of the opposition parties—on 15 March and published in the Federal Gazette the same day, entering into force on the following day. In the motivation of the bill, it was clearly spelled out that the Infectious Diseases Act was regarded ‘as insufficient and too much focused on local measures to form the basis for the measures required to prevent the further spreading of Covid-19.’33 Furthermore, the Covid-19-Measures Act follows a very different concept of compensation for damage caused by health measures as compared to the Infectious Diseases Act: the latter grants individuals a right to be compensated based on their prospective financial losses (eg closure of business premises),34 while the former excludes a legal entitlement to compensation.35 The rationale behind this concept is not to deprive individuals of compensation, but to make sure that the amount of compensation can be adapted to the financial capacities of the state. The Covid-19-Measures Act was accompanied by the Covid-19-Fund Act,36 which created a special fund with the Federal Minister of Finance (worth up to EUR 28 billion) which, amongst other tasks, provides several State Aid schemes with the financial means to compensate for losses due to public health measures. The Constitutional Court ruled that this ‘alternative’ compensation scheme was in conformity with the Federal Constitution provided aids are distributed in accordance with the principle of equal treatment.37 The Covid-19-Measures Act has a sunset clause, initially citing 31 December 2020, later amended to 30 June 2021, with a (constitutionally admissible) option by the Federal Government to postpone this date to 31 December 2021, if it proves indispensable due to the epidemiological situation.38 However, this option was not used. In late June 2021, the Federal Parliament itself amended the Act,39 extending its validity until 31 December 2021, instead of leaving this decision to the Federal Government. On this sunset clause, see also Part III.A. below.

16.  Before the enactment of the Covid-19-Measures Act, all public health measures had to be taken on the basis of the Infectious Diseases Act. This is particularly the case for the first set of measures taken at district level, especially in the State of Tyrol (for details see Part IV.A below). Since the entry into force of the Covid-19-Measures Act, public health measures are either based on this Act, the Infectious Diseases Act, or on both. The Infectious Diseases Act forms the statutory basis of the following measures:

  • •  Test/vaccination/recovery certificates (s 4c);

  • •  (Obligatory) testing in case of presumed infection (s 5);

  • •  (Voluntary) screenings for Covid-19 (s 5a);

  • •  Obligatory registration of visitors of certain premises, eg restaurants (s 5c);

  • •  Individual quarantine orders (s 7);

  • •  Restrictions on gatherings of people (s 15),40 applicable until 27 May 2021. From 28 May 2021 onwards, a specific provision in the Covid-19-Measures Act on restrictions on gatherings to prevent the spread of Covid-19 entered into force;41

  • •  Exit and entry restrictions for epidemic areas, including obligatory exit tests (s 24);

  • •  Border management (s 25);

  • •  Police assistance for public health authorities (s 28a);

  • •  Administrative fines for violation of the Infectious Diseases Act and administrative acts implementing this statute (ss 39, 40).

The Covid-19-Measures Act forms the statutory basis of the following measures (the numbering of its paragraphs changed several times):

  • •  Stay-at-home ordinances (‘full lockdowns’);

  • •  Restrictions of and conditions for access to private or public spaces;

  • •  Restrictions of and conditions for access to shops, restaurants, and hotels;

  • •  Restrictions of and conditions for access to workplaces;

  • •  Restrictions of and conditions for access to healthcare institutions (hospitals, nursing homes, etc);

  • •  Restrictions on gatherings of people to prevent the spread of Covid-19; applicable from 28 May 2021 onwards42;

  • •  Police assistance to public health authorities;

  • •  Administrative fines for violations of the Covid-19 Act and administrative acts implementing this statute.

17.  It was generally acknowledged that the co-existence of two specific Acts did not contribute to legal clarity. However, as a consolidating amendment to the Infectious Diseases Act had been neglected for years, this deficiency could not be made up during the pandemic, making the enactment of the Covid-19-Measures Act a pragmatic solution in this specific situation (a reasoning which was also accepted by the Constitutional Court, see the table below in this section). It this context, it has been argued that the enactment of a new, modern Infectious Diseases Act should be of utmost priority at the end of the pandemic.43

18.  As the Covid-19-Measures Act was enacted within an extremely short time, its first version had a limitation which soon proved problematic: The Act did not permit for stay-at-home orders, only for restrictions of access to ‘specific public and private spaces’ (the initial wording of s 2). However, the Federal Minister of Health used it as the legal basis for the first nationwide lockdown ordinance,44 which restricted access to all ‘publicly accessible places’. As a consequence, in July 2020 the Constitutional Court declared that this ordinance had been illegal because of a contradiction to the Covid-19-Measures Act (for details see Part IV.A.1 below).45 In this judgment, the Court also made clear that a nationwide lockdown could be decreed in conformity with the Federal Constitution if a proper legal base were enacted. This ‘suggestion’ by the Court was taken up by the Minister of Health who duly proposed an amendment bill to Parliament which was voted by the Federal Parliament in September 2020.46 This was the most important amendment to the Act in 2020, though it was followed by a series of other amendments, especially in 2021. The following table provides an overview of the amendments to the Covid-19-Measures Act until the end of June 2021:

Date of Publication (Fed Gazette)

Comments

15.03.2020 (Fed Gaz I 2020/12)

Covid-19-Measures Act, Original Version

21.03.2020 (Fed Gaz I 2020/16)

First Amendment

04.04.2020 (Fed Gaz I 2020/23)

Second Amendment

25.09.2020 (Fed Gaz I 2020/104)

Third, substantial Amendment as a consequence of Const. Court decisions, explicit statutory basis for ‘stay-at-home’ ordinances

22.12.2020 (Fed Gaz I 2020/138)

Fourth Amendment

20.01.2021 (Fed Gaz I 2021/23)

Fifth Amendment; negative test results as entry requirements

26.02.2021 (Fed Gaz I 2021/33)

Sixth Amendment

14.05.2021 (Fed Gaz I 2021/82)

Seventh Amendment; introduction of ‘3G’ requirement: tested/vaccinated/recovered as entry requirements

27.05.2021 (Fed Gaz I 2021/90)

Eighth Amendment; 3G requirement extended; this amendment had been blocked by the opposition in the Federal Council (second chamber of Parliament) for about two months due to political dispute

28.05.2021 (Fed Gaz I 2021/100)

Ninth Amendment

28.06.2021 (Fed Gaz I 2021/105)

Tenth Amendment, validity extended until 31 December 2021 (from 30 June 2020)

19.  The Infectious Diseases Act was also regularly amended during the pandemic.47

20.  So far, the Constitutional Court has not declared unconstitutional any of the amendments to the two aforementioned Acts voted since the beginning of the pandemic. In particular, it also accepted the argument that the enactment of the Covid-19-Measures Act was necessary due to the limited range of the Infectious Diseases Act.48 In contrast to this, a considerable number of administrative ordinances based on the two Acts were declared illegal by the Court (see Part II.C below). However, the provision of the Infectious Diseases Act on legal remedies against individual quarantine orders, which was amended in 2016 well before the pandemic,49 was declared unconstitutional in March 2021.50 The Court found the provision, which provided for an appeal to a civil court—in deviation from the standard rule that administrative acts can be appealed against with an administrative court—to be insufficiently clear as to the extent of the jurisdiction transferred to the civil court—in other words, it was not clear whether any competence remained with the administrative court or not—and therefore declared it unconstitutional due to a violation of the constitutional requirement to determine the jurisdiction of a court in a precise way.51 Apart from this, the statutory basis of the Covid-19 measures remained ‘unscathed’ to date.

21.  As the Federation is competent to legislate in matters of public health, state legislation was perceived as less significant in dealing with the crisis.52 However, states’ legislatures also enacted several laws (including omnibus laws) to provide for necessary adaptions (eg matters of administrative procedure or administrative courts, social benefits, changes to local and state voting law or municipal organizational law).53

C.  Executive rule-making powers

22.  Executive rule making through ordinances (general administrative acts addressed to the public) was of utmost importance during the pandemic, confirming the key role of the executive during a crisis. Still, according to Article 18(2) of the Federal Constitution, ordinances require a statutory basis which was readily provided by Parliament due to the majority held by Government. However, as from September 2020, the Federal Minister required, by an amendment of relevant legislation, the Federal Minister of Health to seek explicit consent by the central parliamentary committee before issuing certain public health ordinances, including stay-at-home ordinances (for details, see Part III.A below). Furthermore, for some ordinances, a sunset clause was required by public health legislation (see Part III.A below). Still, the role of the Government—formally the Federal Minister of Health; factually, ordinances were issued after consultation with the other Ministers—was very dominant.

23.  As mentioned above, state authorities—namely the district authorities, supervised by the Governor or another member of the state government—act as public health authorities in the name of the Federation, being bound by instructions by the Federal Minister of Health. Accordingly, ordinances can be issued by the Federal Minister, the Governor and the district authorities, regularly depending on whom legislation has granted the corresponding power. Since there were some uncertainties in this regard, the Infectious Diseases Act was amended twice to make clear that ordinances on Covid-19 can be issued by the Federal Minister, the Governor, or the district authority.54 A similar provision was included in the Covid-19-Measures Act.55 The Federal Minister had the power to issue not only nationwide ordinances, but also to enact specific provisions for individual states or (several) administrative districts. The governors and the district authorities were competent to decree stricter measures or regional measures if no nationwide measures were in place. On this basis, all states took additional measures to combat the spreading of Covid-19.56 Among these measures, an ordinance by the Governor of Vienna from late June 2021 stands out insofar as it, in the light of rising numbers of people infected with the Delta variant, opposed several nationwide relaxations of measures—in particular concerning masks and testing—and introduced stricter measures for Vienna.57

24.  The Constitutional Court proved to be the most effective remedy against an ‘unchained’ executive. It declared void (due to illegality, ie contradiction to the statutory basis) a considerable number of ordinances issued during the pandemic.58 While the Constitutional Court only annulled a limited number of the ordinances challenged before it, it made very clear by doing so that even in a time of crisis, the Governments and the administration must remain strictly within the constitutional framework, which led to increased diligence in the drafting of the following decrees. In general, two main arguments can be distinguished in its judgments:

  • •  The ‘stay-at-home’ ordinance of the ‘first wave’ (March/April 2020) lacked a due legal basis as the Covid-19-Measures Act permitted the limitation of access to ‘certain (public) premises’,59 not access to (public) premises in general. For this reason, it was declared illegal by the Court.60 While this did not have much of a direct impact—the ordinance was already out of force and fines due to trespassing were only cancelled if an appeal was still pending at the time of the Constitutional Court’s decision—the Federal legislator reacted swiftly by enacting an amendment providing for a statutory basis of ‘stay-at-home’ ordinances in September 2020.61 This proved important during the winter of 2020/2021 when more ‘stay-at-home’ ordinances had to be decreed.

  • •  The Court required that the administration give precise reasons in the preparatory files of the ordinance—which is not public, though access must be granted upon request—on why the respective measure was indispensable on public health grounds. While the Court had required the administration to give reasons for an ordinance before, it had only done so in limited contexts, eg ordinances decreeing a speed-limit in the interest of traffic safety. Without a doubt, this revised approach towards the administration’s duty to give reasons for the necessity of an ordinance stressed the importance of the principle of legality. Both the Infectious Diseases Act and in particular the Covid-19-Measures Act only allow for public health measures if these are necessary to combat an infectious disease. The Constitutional Court made sure that this requirement was well heeded by the administration. After the first decisions by the Constitutional Court had been published in late July 2021, the preparatory files of the ordinances became much more extensive than before, giving more reasons for the necessity of the decreed measures, including references to Covid-19 case numbers and other scientific evidence. It remains to be seen whether this will be regarded as sufficient by the Constitutional Court since more cases are currently pending. At least in one case, the Court has so far confirmed that the documentation of a (local) ordinance was sufficient if numbers on the development of cases and the resulting necessity of measures were given.62

25.  Most public health ordinances during the pandemic were based on four statutory bases:

  • •  The Covid-19-Measures Act (see Part II.B above);

  • •  Section 15 of the Infectious Diseases Act allowing for restrictions of public gatherings. Due to some uncertainties concerning the scope of this provision (see Part IV.A below), it was replaced by a more detailed provision on gatherings (limited to Covid-19) in the Covid-19-Measures Act in May 2021;63

  • •  Section 24 of the Infectious Diseases Act allows for ordinances regulating entry and departure from ‘epidemic areas’, thus forming the basis for mandatory exit tests;

  • •  Section 25 of the Infectious Diseases Act provides the legal bases for border management ordinances.

26.  Besides ordinances addressed to the public, administrative authorities regularly issued binding general instructions (Erlässe) to subordinate authorities,64 for example on contact tracing and prioritization criteria for vaccinations—which were, however, based on a ‘recommendation’ by the National Vaccination Board, an independent advisory body.65 While comparable instructions are well established within the Austrian administration, they, in principle, cannot be challenged by individuals due to their intra-administrative character. This is why their use is often seen as critical by constitutional lawyers as they often have a considerable factual ‘external’ effect as administrative authorities are internally bound by them. The Constitutional Court has regularly declared void such instruments if it regarded them as ‘hidden’ ordinances—in a material understanding of their content. One prominent example for this problematic use of general instructions occurred around Easter 2020: the Federal Minister of Health issued an instruction to subordinate administrative authorities requesting them to prevent gatherings over Easter which went partially beyond existing ordinances. After a public outcry that this would directly affect civil rights, this instruction was duly withdrawn.66

D.  Guidance

27.  ‘Soft law’ (depending on the definition) did play some role in fighting the pandemic. Press conferences by Members of the Government—regularly including the Federal Chancellor and the Minister of Health—covering newly decreed public health measures cannot directly be regard as soft law, though they certainly had an impact on the population during the beginning of the pandemic and the first lockdown. However, the Federal Government was often criticised for presenting the legal measures as stricter than they were according to the letter of the law and the ordinances in force.67 After the ordinances which formed the basis of the first lockdown were partially declared illegal by the Constitutional Court, this had negative consequences for the perception of the Government’s trustworthiness. However, on its webpage, the Federal Ministry of Health regularly issued ‘FAQ’ sheets on the different public health ordinances in place which were addressed to the general public in a commonly understandable language. Another set of ‘information to professionals’ was also presented on the Ministry’s webpage, containing, amongst other things, ‘state of the art’ information for doctors, hospitals, or nursing home operators on dealing with Covid-19 challenges.68 This information can indeed be of relevance when assessing the professional standard of care. Among other ‘soft law’ instruments worth mentioning, one can count ‘guidelines on applications’ for state aids which were either issued by the Federal Minister of Finance,69 or by the bodies commissioned by the Federation to allocate these (amongst others, the Chambers of Commerce or the state-owned Covid-19 Financing Agency [Limited]). As most of these state aids were granted on the basis of private law, these guidelines/FAQ did not have binding character. It should be stressed that such instruments already were in wider use before the pandemic. The main problem of these instruments is their online publication for a limited period of time only which results in the necessity to ‘trace’ their history through internet archive pages.

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

28.  During the pandemic, parliaments—in which the respective government parties hold majorities throughout Austria—did not assign themselves additional supervisory powers, with one major exception. As the opposition increasingly criticised the de facto weakening of Parliament during the crisis, a compromise was agreed upon in September 2020:70 any ordinance by the Federal Minister of Health which is based on the Covid-19-Measures Act and contains a ban on entering certain indoor or outdoor premises or decrees a stay-at-home order—for all or only part of the day—requires the consent of the Main Committee of the National Council, in which all political parties are represented proportionally, according to their number of MPs. Without this consent, the respective provision cannot enter into force—unless in case of emergency, when retrospective consent can be given within four days.71 As the government parties command a majority in this committee, it never blocked any of the measures presented to it, however, the opposition MPs did not always give their consent. Nevertheless, this supervisory power stands out insofar as parliamentary consent to administrative decrees is a rare exception in the Austrian constitutional order.72 Furthermore, the Covid-19-Measures Act contains a sunset clause which could have been extended from end of June 2021 to 31 December 2021 by ordinance of the Federal Government which, however, would have required the consent of the Main Committee. In the end, the Federal Parliament itself extended the validity of the Act by amendment (see Part II.B above).

29.  The Federal Parliament also curtailed the power of the Federal Minister of Health by a provision in the Covid-19 Act which limits the validity of an ordinance decreeing a stay-at-home order or which provides for limitations on gatherings in private domiciles to 10 days, while ordinances banning the entering of certain public or private premises are limited to a duration of four weeks (‘sunset clauses’).73 Accordingly, the Federal Minister regularly had to report to the National Council his plans to extend the validity of ‘lockdown measures’ in advance, as this extension required renewed consent by the Main Committee. Additionally, another provision was enacted by Parliament which requires the Federal Minister of Finance to report on the processing of Covid-19-related State Aids to the National Council on a regular basis.74

30.  Apart from these specific provisions, the federal and, to a lesser extent, state parliaments—in particular opposition MPs—resorted to the standard devices of parliamentary control, namely the right to ask members of Government oral or written questions,75 the right to pass resolutions,76 and the right to demand a vote of no confidence—there were several attempts throughout the pandemic which were not backed by a majority of MPs.77 Accordingly, Government measures, in particular ordinances by the Federal Minister of Health, were widely discussed at the parliamentary level. As the independent role of the state administrations during the pandemic was limited—in most cases, they acted on instructions by the Federal administration—discussions in the state parliaments were more restrained. At the federal level, there was no parliamentary Committee of Inquiry dedicated to the Government’s Covid-19-related powers, as the opposition MPs had already successfully initiated such a committee investigating the breakdown of the Federal Government in 2019. As opposition MPs can only support one request for a Committee of Inquiry at the same time against the majority of MPs, the installation of a second Committee of Inquiry was not possible. However, the Auditing Committee of the National Council regularly requested detailed information on the Government’s procurement activities (eg concerning face masks) during the crisis.

31.  It is worth mentioning that during the parliamentary vote of the (delayed) federal budget law for 2020, the opposition MPs in the National Council strongly opposed a provision within the bill which would have given the Federal Minister of Finance the possibility for an overdraft of up to EUR 28 billion of the expenditures projected in the bill without giving any details on the purpose of this overdraft except ‘financial countering of the pandemic’. This was criticised as being incompatible with the constitutional requirement of a transparent (federal) budget.78 In the end, the Minister of Finance modified the bill by proposing an overdraft clause which gave some indication of the measures the additional money would be used for if required. This outcome was regarded a strong sign of parliamentary independence vis-à-vis the Federal Government.79

32.  Furthermore, as mentioned in Part I above, the opposition parties used their slim majority in the second chamber (Federal Council) twice to block government initiatives. In January 2021, the announcement of a probable veto led to the abandonment of a legislative proposal by the Government (see also Part IV.A below), and in March 2021, a bill was actually vetoed, postponing its entry into force until late May 2021.

B.  The functioning of the legislature where its ordinary business is disrupted

33.  Parliamentary work was neither disrupted on the federal nor the state level; this applied to plenary sessions as well as committee sessions. In most cases, MPs also took their seats on visitors’ galleries to achieve social distancing. To try to compensate for the resulting loss in seating capacity for visitors, livestreams and TV transmissions were used, which had already been available before the pandemic. Only during the first lockdown in spring 2020, following an agreement by the speakers of the different parties, the numbers of MPs present in the National Council during parliamentary sessions was reduced proportionally—only to an extent that all constitutional requirements on quora were met—but this solution was not perceived as practical as all parties agreed that the participation of all MPs was most desirable. As a consequence, measures were taken to enable the presence of all MPs, namely social distancing (including plastic-made partition walls) and a recommendation by the presidium of the National Council and of state parliaments to wear face masks. These measures continued during the pandemic. However, in the National Council the recommendation to wear face masks was regularly ignored by MPs of the right-wing Freedom Party, who justified this by referring to the independent mandate of MPs.80 As this caused some political turmoil, the presidium resorted to introducing a binding obligation to wear a mask in the House Rules which did not, however, carry any sanction in case of non-compliance.81 While there have been some cases of Covid-19 among federal and state MPs, quarantine for a larger number of MPs was avoided by the aforementioned precautionary measures.

C.  Role of and access to courts

34.  Matters of criminal and civil procedure as well as questions concerning the Constitutional Court fall within the legislative competence of the Federation, while administrative procedure and administrative courts are divided between federal and state legislation with the former dominating as it provides for a basic framework from which state legislators can deviate if required.82 In late March 2020, the Federal Parliament passed, as part of an omnibus bill, several statutes creating specific provisions for administrative and court procedures during the pandemic: one for civil and criminal proceedings,83 and another for administrative proceedings, for proceedings of the administrative courts, the (Supreme) Administrative Court, and the Constitutional Court,84 which were regularly amended in the following months. Most of these provisions were covered by sunset clauses (30 June 2021), however, their validity was partially extended by the Federal Parliament in June 2021.85 The rules are complex and detailed, the essential contents are the following:

  • •  In civil proceedings,86 most proceedings were stayed during the first lockdown until end of April 2020 unless a court decided otherwise. After this date, an amendment explicitly provided for the use of videoconferencing software in civil proceedings if the parties did not object to this—if a party objected, for which it did not have to give reasons, hearings had to take place at the court with precautionary measures. If unavoidable, teleconferences and phone calls were permitted to hear persons in exceptional cases. In proceedings concerning mental health and psychiatric conditions, in which hearings normally take place in hospitals or nursing homes, judges could unilaterally decide to use technical devices for hearings, as in these situations, patients and judges were particularly endangered from a medical perspective. While there was a partial standstill of courts during the first lockdown, proceedings continued under these provisions during the following lockdowns, and courts continued to be accessible in conformity with precautionary measures (eg face masks and social distancing). Under certain circumstances, deadlines for filing or legal remedies could be extended;

  • •  In criminal proceedings,87 it had in principle been possible since 2011 to decide on pretrial detention, and its extension, through videoconference hearings. This option was explicitly extended for events during a pandemic, a new option was created which also allowed for the main proceedings to be held via videoconferencing tools. Two amendments were judged negatively from a human rights perspective. First, the option to extend pretrial detention without a videoconference in exceptional cases, eg judges in home-office without a sufficient internet connection. This option was consequently abolished by end of May 2020. Second, the negative impact of videoconferencing, and limitations to visits in prisons, on the quality of communication between defendants and their lawyers.88 While deadlines, eg for filing or legal remedies, could also be extended, this was not the case for the maximum duration of pretrial detentions;

  • •  Similar provisions on the use of videoconferencing tools and the extension of deadlines were also created for administrative procedures and administrative court procedures.89 Similar to the civil courts, a factual standstill only occurred during the first lockdown though proceedings slowed down in general due to stay-at-home ordinances and home office arrangements;

  • •  The operation of the Constitutional Court was never disrupted.90 While its members organized changes to their workflow through collegiate decision-making, the Federal legislator nevertheless enacted a provision allowing for the use of videoconferences and telecommunication equipment for internal consultations. Oral hearings are generally rare before the Court, access to those that were held was limited by social distancing requirements, though parties and the press could attend. While the Court may only act if a dispute is brought before it by a third person, a state organ, or another court, this was regularly the case, resulting in several hundred ‘Covid-19 cases’ brought before it—in particular on the legality/constitutional conformity of legislation and ordinances, as such proceedings are the exclusive prerogative of the Constitutional Court.91 As mentioned in Part II.C above, the Court proved to be the most effective remedy against an ‘unchained’ executive.

35.  Apart from the first lockdown, which brought about the ‘factual’ standstill of most courts’ operations, the functioning of courts was severely affected by the pandemic, eg due to a lack of sufficient premises large enough for hearings under social distancing conditions, but neither legally nor factually interrupted. As law firms had already been obliged before the pandemic to communicate with most courts on the basis of digital interfaces (‘electronic legal communication’; Elektronischer Rechtsverkehr), access to justice remained possible, in particular for those who were advised by lawyers, including on the basis of free legal assistance where applicable, though personal contacts with lawyers were obviously more difficult. For digitally excluded persons, personal access to courts was made more difficult, eg by reduced opening hours or the need to seek an appointment in advance, but remained possible.92

D.  Elections

36.  The pandemic had a direct impact on one election to the state parliament and on three (statewide) elections to the municipal councils and the position of mayor.93 Furthermore, nationwide elections of student representatives were indirectly affected.

37.  In the State of Styria, elections to the municipal councils, which then elect the mayors, had to be postponed from mid-March 2020 to the end of June 2020, after the first full lockdown, by an ordinance of the state government,94 which could only be issued after the enactment of a specific statutory base in the Act on Local Elections by the state parliament.95

38.  A comparable postponement took place in the State of Vorarlberg, where the state government made use of an existing statutory basis for ‘extraordinary circumstances’ in the state’s constitution96 to postpone elections to the municipal councils and the post of mayor—a direct election by the people—to mid-September 2020,97 which also required statutory measures by the state parliament.98

39.  The local elections in Vienna, which count—due to its bifunctional role as city and state—as state parliament elections at the same time, were set on the latest possible date of the outgoing legislative period, but could take place under adherence to specific precautionary measures enacted by an ordinance of the Governor as (Federal) Health Authority.99

40.  A similar ordinance was issued for the election of the municipal councils and the mayors in the State of Carinthia,100 which allowed for the elections to take place on the planned date in late February of 2021.

41.  In all of these elections, while the percentage of postal ballots—which are permissible under Federal and state constitutional law—was comparatively high, turnout was in general lower than in comparable prior elections. While the pandemic doubtlessly played a part,101 the disappointment of voters of the Freedom Party after a scandal involving the former Vice-Chancellor, which led to a breakup of the Federal Government in mid-2019 and early parliamentary elections in autumn 2019, is also likely to have contributed to this outcome.102 The nationwide elections of the students representatives (Austrian National Union of Students) in late May 2021, immediately after the end of the last nationwide partial lockdown, saw a disastrous turnout of around 15%, down from 26% in 2019. As the universities had at that point offered online teaching for about three semesters and many students had been mostly absent from their premises during this period—and postal ballots were not fully available—the pandemic is likely to have had some effect here.

E.  Scientific advice

42.  In August 2020, the ‘Corona Commission’ was established as an advisory board to the Federal Minister of Health. It was formalized at the statutory level by the amendment Fed Gaz I 2020/104 of the Covid-19-Measures Act: section 2 states that the Commission has to advise the Minister ‘on the evaluation of the epidemiological situation’, with its recommendations and their essential grounds to be published on the Ministry’s webpage.103 However, it is not a purely scientific body as it is composed of independent experts, experts from the Federal Civil Service, and representatives of the states. Its main task was the publication of weekly recommendations on the current epidemiological risk according to a ‘traffic light scheme’ down to the level of administrative districts. The Commission and the Ministry of Health were in turn advised by the ‘Covid Prognosis Consortium’, a group of experts from universities, academic spinoffs, and the public administration,104 whose main task was to provide modelling data on the progress of the pandemic. The Federal Government did not always follow recommendations by the Commission. The independent experts within these Commissions acted free from any legal or factual state influence, in particular members of the ‘Covid Prognosis Consortium’ did not refrain from criticising political decisions in public.105

43.  While the Corona Commission was set up during the pandemic, other scientific advisory bodies that predated the health crisis also played a role in advising the Federal Government. Starting in late 2020, the National Vaccination Committee, an independent expert advisory committee on vaccines with the Federal Minister of Health, issued recommendations on the prioritization of vaccinations and the use of Covid-19 vaccines for specific groups. These recommendations were widely respected during the nationwide vaccination campaign, even though some states partially deviated, especially during the later phase of the campaign. The Austrian Bioethics Commission, an independent advisory board to the Federal Chancellor, issued several recommendations on vaccinations,106 contact tracing apps,107 and on equal treatment for persons tested, vaccinated, or recovered.108 While the Commission’s recommendations on mandatory vaccination for healthcare personnel were not heeded, its recommendations on equal treatment from November 2020 and April 2021 left a visible trace in the relevant legal bases enacted in spring 2021. Another advisory board, the Supreme Medical Council,109 did not play an important role: its members should have been reappointed in late 2019 after the dismissal of the old Government; however, this was postponed until the formation of the new Government, which did not give the issue much priority after the beginning of the Covid-19 crisis.110 Eventually, the new members were appointed in early 2021.

44.  Informal—and, as a consequence, less transparent—advice was also sought by the Federal and the state governments: for example, the Federal Minister of Health Rudolf Anschober regularly sought the advice of a group of independent lawyers from universities and courts while drafting bills and ordinances between the summer of 2020 and his retirement in spring 2021 (the author of this report was among these advisors). State governments also regularly asked independent scientific experts to advise them.

45.  Generally speaking, scientific advice was more welcome during the pandemic than in the years before, at the same time, politicians did not heed all recommendations, sometimes stressing the need to balance the best options from a medical point of view and those still ‘bearable’ for the economy and the public.111 The Federal Chancellor made a widely criticised faux pas in spring 2020 when he called the critique of several legal scholars concerning the legality of the first set of ‘lockdown ordinances’ in spring 2020—which were later struck down by the Constitutional Court—‘legal subtleties’.112 After the Supreme Court’s decisions in July 2020, legal advice by experts and stakeholders was more readily accepted by the Federal Government.

F.  Freedom of the press and freedom of information

46.  Reporting on Covid-19 has not been directly constrained or obstructed. Nevertheless, two aspects were criticised.113 First, due to social distancing rules, media presence at press conferences by the Federal Government was limited to a small number of journalists, with priority given to the state broadcaster and the Austrian press agency—which is controlled by larger media companies. Accordingly, smaller media were at a disadvantage as they depended on ‘second-hand information’. Second, the Fourth Covid-19 Act114 (an omnibus bill) amended the Act on Press Subsidies115 and created a specific subsidy to counter the negative effects of the crisis on print media. The subsidy was granted according to circulation, thereby clearly favouring tabloid media over high-quality ones. This outcome has to be seen in the wider context that media were more dependent on subsidies and state-sponsored advertising revenues (eg government campaigns) due to a reduction of the income generated from print advertising during the pandemic, as many companies had to cut back on their advertising budget.

47.  Laws on access to state information were not suspended or modified, however, as government offices were partially inaccessible due to staff working at home, access to archives and other sources of information was more difficult during the pandemic, especially where information was not available electronically. In May 2021, Austria transmitted data on subsidies above EUR 100,000 granted in 2020 to the European State Aid Transparency Public Search Page.116

G.  Ombuds and oversight bodies

48.  The Federal Ombudsman Board accepts complaints against (primarily) administrative authorities at the federal and—if states request this—state level,117 and is also charged with preventive human rights monitoring of premises where people’s freedom of movement is restricted—under the Optional Protocol of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of Persons with Disabilities. In 2020, it received more than 1,200 Covid-19-related requests. The Ombudsman Board may issue recommendations to state authorities and annually reports to the National Council. In May 2020, it presented a specific Covid-19 report for the year 2020 to the National Council.118 The (Federal) Court of Auditors as well as comparable institutions at State level included economic Covid-19 measures in their auditing program for the years 2020 and 2021.119 In general, their role and importance in the Austrian political system was not very different from times before the pandemic.

IV.  Public Health Measures, Enforcement and Compliance

A.  Public health measures

49.  As the pandemic has unfolded in three waves so far, public health responses have also followed this pattern. The first wave was, among much scientific uncertainty, met with a full lockdown—a 24h stay-at-home order, and the closure of schools, restaurants, hotels, and most shops—between mid-March and April 2020, followed by relaxations of measures in mid-April. After a comparatively ‘quiet’ summer, during which some measures were nevertheless tightened in late July, new statutory bases for lockdown measures were voted in September. These were used to decree a partial lockdown (overnight stay-at-home orders) from 3 to 16 November 2020, followed by a second full lockdown until 6 December 2020. After another partial lockdown, the third nationwide full lockdown lasted from 26 December 2020 to 7 February 2021. From February until 19 May 2021, most parts of Austria were in partial lockdown—an overnight-stay-at-home order, with restaurants, bars, and hotels closed—while there was a regional (federally decreed) full lockdown in three eastern states—in the first half of April in Burgenland, and in Vienna and Lower Austria until 2 May—as well as ‘exit tests’ obligations in hotspots throughout the country. As of 19 May 2021, the ‘Covid-19 Opening Ordinance’ entered into force, leading to wide-ranging openings of all areas of public life. Modest relaxations of measures continued through June 2021, while fears of the Delta variant rose despite progress in the vaccination campaign—by 21 June 2021, 50% of the population had been vaccinated at least once. Nevertheless, in late June more relaxations were decreed to start from 1 July 2021.120

50.  At the Federal level, the most important public health measures were imposed in the form of ordinances by the Federal Minister of Health, which were (in most parts) based on the Covid-19-Measures Act (on this Act in general, see Part III.B above; on the general legal framework for (public health) ordinances, see Part II.C above; on parliamentary oversight of public health measures during the pandemic, see Part III.A above). During the first lockdown, there were essentially two ordinances: one on the closure of shops, service providers’ premises, and restaurants and bars,121 and another one decreeing a stay-at-home order.122 At the end of April 2020, these were consolidated into one ordinance.123 From this point on, most public health measures were included in one single ordinance which was regularly amended or replaced by a new one in case of significant new developments. As of November 2020, it was necessary to renew this ordinance on a regular basis as any stay-at-home order could only be decreed for 10 days and required the consent of the National Council’s Main Committee (for introduction and renewal, see above Part III.A). These ordinances from April 2020 to date can be found in the following table:

Ordinance

Federal Gazette

Covid-19-Easing Ordinance—Covid-19-LV, 30.04.2020 (end of lockdown; gradual relaxations, followed again by gradual tightening)

Fed Gaz II 2020/197 as amended by nrs. 2020/207, 2020/231, 2020/239, 2020/246, 2020/266, 2020/287, 2020/299, 2020/332, 2020/342, 2020/398, 2020/407

Covid-19-Measures Ordinance—Covid-19-MV, 18.09.2020 (gradual tightening of measures)

Fed Gaz II 2020/407 as amended by nrs. 2020/412, 2020/446, 2020/455, 2020/456

Covid-19-Protective Measures Ordinance—Covid-19-SchuMaV, 01.11.2020 (partial lockdown)

Fed Gaz II 2020/463 as amended by nrs. 2020/472, 2020/476

Covid-19-Emergency Measures Ordinance—Covid-19-NotMV, 15.11.2020 (full lockdown)

Fed Gaz II 2020/479 as amended by nrs. 2020/528

Second Covid-19-Protective Measures Ordinance—2. Covid-19-SchuMaV, 14.12.2020 (partial lockdown)

Fed Gaz II 2020/544

Third Covid-19-Protective Measures Ordinance—3. Covid-19-SchuMaV, 16.12.2020 (partial lockdown)

Fed Gaz II 2020/566 as amended by nr. 2020/598

Second Covid-19-Emergency Measures Ordinance—2. Covid-19-NotMV, 22.12.2020 (full lockdown)

Fed Gaz II 2020/598 as amended by nrs., 2021/2

Third Covid-19-Emergency Measures Ordinance—3. Covid-19-NotMV, 21.01.2021 (full lockdown)

Fed Gaz II 2021/27

Fourth Covid-19-Emergency Measures Ordinance—4. Covid-19-NotMV, 02.02.2021 (full lockdown)

Fed Gaz II 2021/49

Fourth Covid-19-Protective Measures Ordinance—4. Covid-19-SchuMaV, 05.02.2021 (partial lockdown; full lockdown in Eastern States in April 2021; relaxations in the Western state of Vorarlberg for restaurants, bars, and events as of mid-March 2021)

Fed Gaz II 2021/58 as amended by nrs. 2021/76, 2021/94, 2021/105, 2021/111 (relaxations in the Western state of Vorarlberg; serving as a ‘model region’), 2021/120, 2021/139 (full regional lockdown in the Eastern states), 2021/147, 2021/162

Covid-19-Virus Variants Ordinance (Tyrol)—Covid-19-VvV, 10.02.2021 (exit tests; exclusively for districts in North Tyrol in February)

Fed Gaz II 2021/63 (additional measures exclusively for districts in North Tyrol)

Covid-19-Opening Ordinance – Covid-19-ÖV, 10.05.2021 (end of lockdown)

Fed Gaz II 2021/214 as amended by nrs. 2021/223, 2021/242, 2021/247, 2021/256

Second Covid-19-Opening Ordinance—2. Covid-19-ÖV, 28.06.2021 (further relaxations from 1 July 2021 onwards)

Fed Gaz II 2021/278

51.  Three other ‘families’ of federal ordinances are also of major importance. First, ordinances on border management based on paragraph 25 of the Infectious Diseases Act. Starting in March 2020, they were initially decreed in reaction to novel developments such as arrivals from risk-prone areas,124 airborne arrivals,125 arrivals from Italy which extended to other neighboring countries,126 and later on a more systematic approach covering worldwide arrivals was taken,127 with additional ordinances banning any air travel from variant-hit areas South Africa, Brazil, the United Kingdom, and India.128 Second, the Minister of Education issued ordinances on teaching in schools.129 Third, a framework ordinance for Universities and Teacher Colleges.130

52.  At the state level, two distinct phases can be distinguished. During a short period in March 2020, the power to decree public health measures lay primarily with the district authorities, acting as federal health authorities. They could only enact regional measures within their jurisdiction. The first set of such measures, limiting the maximum number of participants of gatherings to 100 indoors or 500 outdoors was enacted throughout Austria around 10 March 2020 by all district authorities, following instructions given by the Federal Minister of Health to all Governors. An additional set of public health measures was decreed between 10–18 March in the state of Tyrol where the first significant outbreak occurred.131 On 15 May 2020, the Covid-19-Measures Act entered into force, explicitly granting the power to issue public health ordinances banning access to business premises and public places (‘lockdown’ powers) to the Federal Minister of Health, and, for regional measures, the Governors and district health authorities. This resulted in a statewide ordinance by the Governor of Tyrol which was partially based on the Covid-19-Measures Act and partially on the Infectious Diseases Act,132 and went beyond the scope of the national lockdown as it included additional travel restrictions within the state. Soon, concerns were voiced whether the Governor could base statewide measures on the Infectious Diseases Act as this Act only granted the power to decree ordinances to the district authorities. Due to these concerns, the Infectious Diseases Act was amended in April133 and again in September 2020,134 explicitly granting powers to issue nationwide and statewide public health ordinances related to Covid-19 to the Governor and the Federal Minister of Health respectively, including the option to differentiate between different parts of the federal territory. This decision proved wise when the Constitutional Court decided in December 2020 that the Governor had overstepped his powers in March as he had not been competent to issue statewide ordinances before the April amendment to the Infectious Diseases Act came into effect.135 Consequently, the legislative measures in March, April, and September of 2020 shifted the power to issue public health ordinances away from district authorities towards the state and the federal level. This was in conformity with the reasoning behind the enactment of the Covid-19-Measures Act, which was based on the assumption that the Infectious Diseases Act was ‘too much focused on local measures to form the basis for the measures required to prevent the further spreading of Covid-19’.136 As a result, from mid-March 2020 onwards and especially during the lockdowns of winter 2020/2021, a new pattern (‘second phase’) emerged: the Federal Minister issued nationwide ordinances, while additional statewide or regional measures were regularly decreed by the Governors or the district authorities (see Part II.C above, citing examples from the States of Tyrol and Vienna).137 There were two major exceptions to this approach: In February 2021, the Federal Minister for Health called for mandatory exit tests for all districts in Northern Tyrol due to the outbreak of the Beta variant while the Governor was reluctant to decree them. As a result, the Federal Minister of Health issued the relevant ordinance himself,138 based on section 43a of the Infectious Diseases Act which granted him the power to issue regionally differentiated public health ordinances. The same happened in April 2021 when the Minister decreed a full lockdown only for the three eastern States,139 while the rest of the country remained in partial lockdown. A new pattern emerged in late June 2021 when the Governor of Vienna (not the Federal Minister) decreed stricter measures while they were softened at federal level (see Part II.C above).140

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

53.  An individual mobility restriction was decreed by ordinance of the Federal Minister of Health during the first lockdown from 16 March to 30 April 2020.141 People were only allowed to enter public space for five purposes: (1) if necessary to avert an immediate danger to life, health, or property; (2) to provide care and assistance to persons in need of support; (3) to cover basic needs of daily life, while keeping a distance of one metre from others; (4) for essential professional purposes if a distance of at least one metre is maintained between persons at the place of occupational activity; and (5) to enter a public space outdoors alone, in the company of persons living in the same household, or with pets if a distance of at least one metre from other persons is maintained. The last exception caused considerable legal uncertainty: while the Government and many scholars interpreted it as only allowing entering the public sphere for recreational purposes, but without any additional limitations, other scholars and some administrative courts regarded it as permissible to traverse the public space based on this exception, allowing for gatherings in private homes.142 Discussions were ended by a decision of the Constitutional Court in July 2020 which held that the whole mobility restriction in March and April had been illegal due to a lack of a statutory basis,143 as the Covid-19-Measures Act at that time only allowed a ban by ordinance of the entering of ‘certain public places’, but not the entire public space.144 In reaction to this judgment, the Act was amended in September 2020 when an explicit legal basis for ‘stay-at-home ordinances’, with some exceptions which an ordinance could not deviate from, was added.145 The new statutory provision resembled the text of the March 2020 ordinance, but allowed for limited visits of family members even if they did not require assistance and made clear that the general permission to enter public places allowed for ‘physical or mental recreation’ only, not for visiting other persons. In this context, it is important to note that in contrast to other European countries, Austrians were always allowed to enter public places for recreational purposes without limitations as to the time spent there and the distance of the space from their home—as individual transport could always be used for this purpose. After there had been no individual mobility restrictions between May and October 2020, the Federal Minister of Health used the new statutory provision to decree a night-time stay-at-home order—where people had to stay at their own homes between 8pm–6am—between 3 November and 16 November 2020, between 7 December and 23 December 2020, and between 8 February and 18 May 2021. A 24-hour stay-at-home-order was decreed between 17 November and 6 December 2020, and between 26 December 2020 and 7 February 2021. In eastern Austria, the spread of the Alpha variant was countered by another 24-hour stay-at-home ordinance—decreed by the Federal Minister of Health, not by the Governors—between 1 April and 19 April 2021 (Burgenland) and 2 May 2021 respectively (Lower Austria, Vienna). As of 19 May 2021, all stay-at-home obligations ceased to exist—they were also suspended on 24 and 25 December 2020, but not for the New Year. An overview of the relevant ordinances can be found in the table at Part IV.A above. The text of the ordinances followed a similar pattern as from November 2020, there were some variations as to the persons who could visit each other despite the stay-at-home order (family, partners, very close friends). While police patrolled public spaces and could demand an explanation for a person’s reasons for entering them, they were explicitly barred from entering private homes for the purpose of supervising compliance with the Covid-19 ordinances.146

2.  Restrictions on international and internal travel

54.  Austria never barred citizens nor foreigners, unless isolated or quarantined, from leaving the country, and, in accordance with constitutional147 and EU law requirements, never barred residents of Austria from entering the country—however, they were submitted to quarantine requirements if applicable. As to international travel, restrictions were decreed by means of ordinances under paragraph 25 of the Infectious Diseases Act (see Part IV.A above). Apart from landing bans for flights from specific countries, the main measure taken was to oblige persons wishing to enter the country to present a medical certificate or, at a later stage as they became more easily available, a negative PCR test. Persons who had a right of entry but could not present a test had to quarantine at their domicile for up to fourteen days, later reduced to ten days.148 In the last phase of the pandemic, vaccinated people were allowed to enter the country as well. In general—rules changed considerably over time—there were five different regimes for arrivals from two different types of countries, irrespective of the nationality of the traveller. Arrivals from European Economic Area (EEA) countries, Switzerland, the UK, and Western European microstates were, in accordance with EU policies, allowed to enter freely if this country was regarded ‘epidemiologically safe’ and if they had not visited any ‘epidemiologically unsafe’ countries 10 days prior to their arrival in Austria. Arrivals from epidemiologically unsafe countries within this group either had to present a negative PCR test or to quarantine for 10 days—in most cases, this quarantine could be ended prematurely through testing. Arrivals from other countries were only allowed to enter if they arrived from an epidemiologically safe country and had not visited any epidemiologically unsafe countries 10 days prior to their arrival. The list of safe non-European countries was very short, eg Australia. Arrivals from all other (eg unsafe) countries were banned unless the person had a right of residence or comparable status in Austria, eg Austrians, EEA citizens, and diplomats. Arrivals were, with the exceptions of persons with a right of residence, mostly banned if a state was declared a ‘virus variant region’. The ‘safety’ status of a country was decreed in an annex to the Entry Ordinance in force, which was updated on a regular basis. A comprehensive legal analysis of the border management regime during the first wave (March to May 2020) concluded that it was possibly in conformity with EU law and national constitutional law.149 An appraisal of the measures taken in autumn 2020 (by the same authors) was more critical.150

55.  Direct limitations of internal travel were the exception, however. In March/April 2020 and between November 2020 and May 2021, 24-hour and overnight stay-at-home requirements (see Part IV.B above) meant that travelling could only take place for professional or recreational (eg hiking and skiing) purposes and that overnight stays outside a person’s domicile were only allowed for professional and educational purposes for compelling reasons—hotels were accordingly closed except for professional travellers. Still, this regime was more relaxed than in many other European countries. Having said this, already from the beginning of the pandemic, ‘hotspots’ (municipalities or districts) were regularly ‘sealed off’ by ordinances at district and, after an amendment to the Infectious Diseases Act (see Part IV.A above), also state level.151 In the beginning, this meant that, in addition to a stay-at-home obligation, with the standard exceptions, leaving the municipality in question was only allowed for exceptional reasons (eg medical purposes). On three occasions, wider-ranging internal travel restrictions were decreed:

  • •  In March and April 2020, the Governor of Tyrol decreed,152 in addition to the nationwide stay-at-home order, travel restrictions between all municipalities of the state of Tyrol which was worst hit by the first wave. He also extended the federal stay-at-home order by banning entry to public spaces for recreational purposes. This ordinance was later declared illegal by the Constitutional Court for two reasons:153 first, until an amendment in early April, the Infectious Diseases Act reserved the power to issue travel restrictions to the district authorities; second, as with the federal stay-at-home order, there was, at this stage, no statutory basis for banning access to all public spaces, as the Covid-19-Measures Act’s wording only referred, until an amendment in September 2020, to ‘certain public spaces’ (see Part IV.B above).

  • •  In February 2021, Tyrol was hit by the Beta variant of the virus. In response, the Federal Minister decreed, based on a power that he had only received in September 2020 through an amendment to the Infectious Diseases Act, that any person leaving Tyrol—with the exception of the district of Lienz, ‘Eastern Tyrol’—had to present a negative test.154

  • •  In March 2021, the Federal Minister of Health instructed all district authorities to issue an exit test requirement for their districts if the incidence count surpassed 400 cases per 100,000 for 10 days in a row. In the following weeks, a number of districts throughout Austria met this condition, resulting in the issuance of ordinances by district authorities.155 Leaving the district without being able to present a negative PC test was punishable by administrative fine of up to EUR 1,450 (see Part IV.B.1. below).

3.  Limitations on public and private gatherings and events

56.  Limitations on gatherings were among the first measures taken at district level, though on the basis of a nationwide instruction by the Federal Minister of Health to all district authorities. The maximum number of participants of gatherings was limited to 100 indoors or 500 outdoors around 10 March 2020. During the first lockdown (16 March–30 April) gatherings were not permitted, however an exception for weddings and funerals for closest family members was decreed in early April.156 Restrictions were eased under a step-by-step approach was which lasted until September 2020. Through repeated amendments to the Covid-19 Easing Ordinance, gatherings were allowed again, starting with a maximum number of 10 persons in early May 2020157 and culminating in 5,000 persons indoors and 10,000 outdoors, though regularly only after approval by the competent district authority acting as federal health authority. However, organizers of larger gatherings had to allocate fixed seats to participants in order to enable contact tracing in case of infected participants. Without allocated seats, the maximum number of participants was capped at 200. Weddings, funerals, and gatherings in restaurants and bars were partially regulated by distinct provisions. By mid-September 2020, the Federal Minister of Health changed directions, capping the maximum number of participants: without allocated seats 50 indoors, 100 outdoors; with allocated seats 1,500 indoors, 3,000 outdoors.158 Through September and October, maximum numbers continued to be lowered, and for restaurants and bars stricter caps were decreed—as persons at the same table did not have to wear masks and interacted, these gatherings were perceived as particularly dangerous. From the beginning of November 2020 through May 2021, restaurants and bars were closed, except for delivery and take-away, and gatherings were essentially banned. There were only some limited exceptions to this rule which were adapted over the course of these months, during which night-time or 24-hour stay-at-home orders were permanently in force:

  • •  Meetings of parliamentary and municipal assemblies were always possible and indispensable professional meetings could go forward. For professional sports, some exceptions were also in place (visitors were not allowed).

  • •  Funerals were allowed to take place, however, the number of participants was capped at 50 and distancing requirements applied.

  • •  Assemblies under the freedom of assembly (eg demonstrations) had, as under normal circumstances, to be registered in advance and could only be banned on grounds of urgent public interest, including public health. Organizers had to respect distancing requirements and the obligation to wear face coverings. Especially in early 2021, several assemblies by opponents of the public health measures were banned due to fear of contagion as non-compliance with these rules was expected.159

  • •  During those periods in which only a night-time stay at home obligation was in force, six people from two households—later reduced to four households from two—plus children were allowed to gather. This was temporarily relaxed to 10 persons from not more than 10 households for the 24 and 25 December 2020.

  • •  In what some saw as an inconsistency and others as a necessary sign of respect for the freedom of domicile under Article 8 ECHR, which protects a persons’ home from disproportionate interference by the State, gatherings in private apartments were never regulated as the Covid-19-Measures Act explicitly exempted them at the statutory level.160 This meant such gatherings were allowed during the daytime whenever a 24-hour stay-at-home obligation was not in force.

Starting in May 2021, caps on the numbers of participants or visitors were gradually relaxed, not least in the context of the reopening of restaurants and bars.161 Caps were abolished as of 1 July 2021, however, duties to notify the authorities (of more than 100 participants) or to require approval (for more than 500 participants) remained in force.162

57.  Limitations on gatherings proved very controversial from a legal point of view. They were based on paragraph 15 of the Infectious Diseases Act which allows federal health authorities to issue ordinances on ‘events’. As the relevant ordinances, during some periods, also covered private meetings of not more than four persons (outside private domiciles), doubts were raised whether these could be indeed regarded as ‘events’.163 Only in May 2021, a new statutory provision in the Covid-19-Measures Act entered into force which explicitly allowed, for the first time, the decree of caps for ‘private gatherings’, including those in private homes, exclusively for the purpose of countering the spread of Covid-19.164

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sports facilities)

58.  As of 16 March 2020 (17 March for restaurants), most shops and services apart from those providing essential goods and services (eg supermarkets, petrol stations, banks, and post offices) were closed, while food delivery by restaurants was permitted.165 At the same time, a stay-at-home ordinance was decreed, which resulted, among other things, in a shutdown of sports facilities.166 Universities and schools switched to distance learning, while childcare in schools and nursery was offered for parents who could not look after their children for compelling reasons—there was much uncertainty as to who could claim this service. Places of religious worship suspended services.

59.  In mid-April 2020, shops (not services) were allowed to reopen and customers allowed to enter if their retail space did not surpass 400sqm. However, shops regarded as covering basic needs were allowed to remain open, even if their retail space was larger—which included DIY markets. This was later declared illegal by the Constitutional Court as the Federal Minister of Health could not convincingly justify this differentiation on public health grounds.167 In particular, the Constitutional Court was not convinced that DIY markets were fully comparable to food shops or drugstores.

60.  Shops and services reopened under social distancing requirements at the beginning of May 2020, while restaurants, bars—with the exception of nightclubs—, and hotels reopened in mid-May, as did cultural events. Schools reopened in May, though only half of the class was present during one day,168 while universities remained closed until autumn 2020, and religious services started again in May. Relaxations continued until the reintroduction of face coverings in most shops at the end of July 2020.

61.  In early November 2020, restaurants and bars (except delivery and take-away), hotels, and sports facilities had to close,169 while universities switched to distance learning. In mid-November, the second full lockdown saw the closure of most shops and services apart from those deemed essential, schools moved to distance learning,170 and religious services ceased.

62.  The following months saw changes between partial and full lockdowns, including regional ones. Generally speaking, shops and services were open during partial lockdowns and closed—with the exception of those deemed essential—during full ones, restaurants and bars and hotels remained closed until mid-May. Schools were generally closed during full lockdowns and open during partial lockdowns. In addition, schools were running at limited capacity most of the time while open—classes were divided and switched between in-person and distance-learning days. Universities remained in distance learning, with minor exceptions from May 2021. Though hotels were closed, ski resorts opened after Christmas for day guests.171 Religious services were under an informal agreement between the Government and religious communities,172 suspended or limited to a minimum of participants for most of the time, especially after clusters had developed in some free churches during the summer of 2020.

63.  Restaurants and bars, hotels, and sports facilities reopened from May 2021 onwards.173 An exception applied to the Western state of Vorarlberg, which served as a model region for the opening of restaurants, bars, and hotels under the ‘3G’ rule from mid-March 2021 onwards.174 The ‘3G’ rule requires customers to be tested, vaccinated, or recovered in order to access public premises in which they spend on average more than 15 minutes or are closely interacting with other persons (see Part IV.A.8 below). While this exception led to rising case numbers and regional public health measures (including exit tests) in parts of Vorarlberg, a large outbreak could be contained. Accordingly, the ‘3G’ rule was extended to all of Austria in May 2021.

5.  Physical distancing

64.  Physical distancing rules have been in force during most of the pandemic, but have never applied in private homes and between persons living in the same household and other very close contacts, eg personal care workers and customers. These rules were in principle also applicable at workplaces, and if the nature of activity did not allow physical distancing, employers had to find alternative methods to reduce the risk of infection. Where possible, employers and employees were required to make use of a home-office arrangement during full lockdowns. In schools, a safety distance outside of the classrooms was also decreed, while between pupils of the same class, closer contact was allowed. During the first lockdown, a minimum distance of one metre between persons was required when leaving home. From 1 May to 31 July 2020, a safety distance of one metre had to be kept between persons in public places (indoor and outdoor), with gradually introduced exceptions, in particular for groups visiting restaurants or playing sports. As of 1 August, the minimum distance in all public places was abolished, it remained applicable for public transport, events, and in restaurants. Rising case numbers led to the reintroduction of a one-metre minimum distance in all public places, indoor and outdoor, including public transport, on 25 October 2020. Amongst fears of easier transmission, the minimum distance was raised to two meters from 25 January 2021. From late May 2021 onwards, after the reopening of restaurants, bars, and hotels, exceptions from the minimum distance were gradually introduced—eg for groups of visitors in restaurants or for small gatherings of people in the public—and it was lowered again to one metre from 10 June onwards.175 For the common use of individual transport (private cars and taxis) and cable-cars, there had always been specific rules, eg a number of persons per row or reduced maximum capacity. On 1 October 2020, the Constitutional Court ruled on the legality of the distancing requirement between different visitor groups in restaurants which was applicable in summer 2020 and declared it illegal as the Federal Minister had not sufficiently demonstrated in the preparatory files of the ordinance—which are not public, though access must be granted to the courts if someone has sought recourse against measures based on this ordinance—why the respective measure was indispensable on public health grounds.176 As in comparable decisions (see Part II.C above), the Court did not indicate that the measure as such was not permissible, but rather that the Federal Minister would have been obliged to give reasons for the necessity of a distance requirement. Accordingly, physical distancing was not ceased, however, its necessity was better documented in the preparatory files of ordinances. Physical distancing requirements ceased from 1 July 2021.177

6.  Use of face coverings and personal protective equipment (PPE)

65.  As of the first lockdown, the use of face coverings was decreed in shops and public transport. After the end of the lockdown, this mandate was extended to all indoor public spaces, including restaurants and bars unless persons were seated at their own table, and schools, except in classrooms.178 In mid-June 2020, the mandate was restricted to public transport and health care settings, only to be expanded again in late July to include grocery stores and petrol stations. In September and October, the obligation to wear face coverings was gradually extended to most indoor activities, with the exception of private homes, including schools and workplaces; face shields were banned in November. In January and February 2021, FFP 2 masks were gradually introduced as the standard for face coverings, with the major exception of children under ten years for whom ‘normal’ face masks are sufficient. Outdoors, the obligation was limited to markets, however, at state level, the Governor of Vienna decreed the use of FFP 2 masks in certain heavily frequented spaces in April 2021;179 similar measures were taken in some municipalities in the Western state of Vorarlberg.180 These requirements were eased throughout May and June 2021, in particular outdoors and in schools. As from 1 July 2021, FFP 2 masks were again replaced with face coverings.181 The Constitutional Court declared two provisions on the obligation to wear face coverings (during May 2020) illegal in October182 and December183 2020 as the competent Federal Minister had not given sufficient explanation as to their necessity in the preparatory files of the respective ordinance (on this aspect, see Part II.C above).

7.  Isolation of infected individuals and quarantine of individuals suspected of infection184

66.  As to isolation and quarantine, no new legislation had to be passed. Under paragraph 7 of the Infectious Diseases Act,185 the District Authority acting as health authority, and being assisted by medical officers, can issue individual administrative orders obliging individuals to stay at home—or, if this is not possible, isolate or quarantine at a given location—unless symptoms have ceased or an infection can be ruled out. In practice, the Federal Minister of Health issued instructions to the Health Authorities on how to proceed in a uniform manner, including regarding testing.186 In principle, three categories of persons were defined: (1) infected persons had to isolate until recovery; (2) close contacts of infected persons (K1) had to quarantine for 10–14 days; while those with a limited contact with an infected person (K2) did normally not have to quarantine, but were subject to restrictions, eg being banned from using public transport, which could be shortened by a negative PCR test. Especially as to the latter group, there were sometimes differing approaches by different district authorities. Furthermore, with the advance of the vaccination campaign, even persons with close contacts could be classified ‘K2’ (subject to restrictions, but no quarantine) if they were (fully) vaccinated. As already described in Part II.B above, the provision on legal remedies against an isolation/quarantine order was successfully challenged before the Constitutional Court for lack of precision. Accordingly, while an appeal initially had to be lodged with the district civil court, under the current state of legislation appeals are lodged with the administrative courts.

8.  Testing, treatment, and vaccination

67.  While isolation is obligatory, mandatory treatment for Covid-19 is not allowed. Consent to treatment by third parties (parents etc) follows the standard provisions in medical law. The same applies to vaccinations: there is no legal basis for mandatory vaccination of the public. A specific provision in the Infectious Diseases Act which would allow mandatory vaccinations of medical staff was never made use of.187 However, several health care providers declared, especially in June 2021, that they would, in their role as employers, only hire new staff if these persons were vaccinated or willing to to be vaccinated, which is in principle permissible.188 In contrast to this, testing became increasingly mandatory as Covid-19 tests became more widely available. As lateral flow tests were cheaper and more widely available than PCR tests, they were, until the summer of 2021, treated as more or less equal to the more reliable PCR tests. Testing obligations were first established in institutions serving vulnerable customers: in care homes, homes for the elderly, and hospitals, obligatory testing for staff was introduced in late 2020. After the end of the third stay-at-home-ordinance in early February 2021, testing was introduced as a requirement for services with close contact between the provider and recipient (eg hairdressing) and in schools for pupils. For staff in contact with customers or pupils, a choice between a negative test and the obligation to wear a FFP 2 mask was possible. As to exit tests in parts of Austria, see Part IV.A.2 above. With the reopening of restaurants, bars, hotels, and events in May 2021, the Covid-19-Easening Ordinance introduced, on the basis of an amendment to the Covid-19-Measures Act,189 the ‘3G’ requirement to be tested, vaccinated, or recovered in order to access public premises in which customers spend on average more than 15 minutes or are closely interacting with other persons (eg restaurants, bars, and events), with the exception of most shops and workplaces. A nationwide infrastructure of free test stations—predominantly offering lateral flow tests, with the exception of Vienna where PCR gargle tests were easily available—including dedicated test stations, pharmacies, and doctors, had been established by then and its functionality had been assessed beforehand in the Western state of Vorarlberg where restaurants and events had already been open since mid-March 2021 under the 3G rule.190 In the last days of 2020, the vaccination campaign which had been organized by the States under the supervision of the Federal Minister of Health, began. Vaccinations are free and distributed according to a priority scheme which has not always been respected in practice.191 There were also marked differences in progress of the vaccination campaign in different states.192 Mandatory vaccination has so far been ruled out from a political viewpoint, though it would most probably be feasible legally if parliament decided to implement it,193 but the 3G rule nevertheless provides a strong incentive to get vaccinated. It should be mentioned that in January 2021, a legislative proposal which would have allowed tested persons (lateral flow or PCR) to be exempt from the stay-at-home order in force at that point—modelled after an approach chosen by the Slovak republic—was met with skepticism from a constitutional point of view.194 One argument presented was that if people could end the lockdown prematurely through a negative test, this could be an indication that a ‘full’ lockdown was no longer required at all which cast some doubts on the obligation for non-tested persons to stay at home. The proposal was finally abandoned.

9.  Contact tracing procedures

68.  If an infection is assumed or confirmed, participation in contact tracing efforts of the health authorities is mandatory;195 non-compliance is punishable (see Part IV.B below). Especially during the second wave in late autumn 2020, contact tracing efforts effectively broke down in most of the country. Use of electronic tracing apps was always voluntary as proposals to make it mandatory were met with scepticism, not least for reasons of data safety and reliability.196 However, at different stages of the pandemic, such as autumn 2020 and the reopening of restaurants and bars as of May 2021, customers were obliged to register before entering business premises in which they stayed longer than 15 minutes (eg restaurants, hotels, and theatres). These data are stored for 28 days and must be transmitted to public health authorities for contact tracing purposes only. A first attempt to introduce such registration by ordinance at state level in Vienna197 was retrospectively declared illegal by the Constitutional Court which ruled that the Infectious Diseases Act did not grant the power to health authorities to require business owners to collect and store the data of their customers for contact tracing purposes.198 Similar ordinances had also been decreed in other States.199 Already, before this ruling, the Federal Parliament amended the Infectious Diseases Act, creating a specific provision allowing for data collection by business owners.200 This provision formed the basis of an obligation decreed in paragraph 17 of the federal Covid-19 Opening Ordinance as of May 2021.201 It was proposed to be ceased in late July 2021, but has since been extended until the end of October due to rising case numbers.202

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors etc.

69.  Measures regarding long-term care facilities or homes for the elderly were in place throughout the pandemic. In the beginning, relevant ordinances were issued by Governors as Federal Health Authorities,203 later on, specific provisions for care facilities, homes for the elderly, and hospitals were included in the federal ordinances; however, particularly affected states continued to decree stricter rules by ordinance.204 Apart from this, facilities were obliged to take their own precautionary measures. In essence, there was a considerable limitation of visitors allowed; additionally, as the availability of Covid-19 tests rose, it became mandatory for visitors as well as newly arriving patients to get tested (lateral flow or PCR). Outside their own rooms, residents were subject to social distancing and face covering requirements and were regularly offered tests (lateral flow or PCR, depending on availability and costs). As from late 2020, staff had to undergo regular compulsory testing (lateral flow or PCR, with the former dominating due to a limited availability of PCR testing especially in the first half of 2021). Despite all these measures, the death toll was considerable, especially during 2020. After some uncertainties in this context, the Federal Ordinances explicitly allowed guardians access to residents in addition to other visitors. This is important as these persons are responsible for assisting residents if their freedom of movement is restricted. In this context, the Supreme Court held that restrictions of the freedom of a resident with dementia (quarantine in their own room) was permissible if an infection could not be ruled out and there was a danger to other residents.205 From a legal point of view, the infringement of rights of these vulnerable persons and the relationship between the Infectious Diseases Act and specific statutes for care homes was regularly discussed.206 Measures were relaxed throughout May and June,207 and even further in July,208 with the exception of Vienna whose Governor decreed stricter rules in late June.209

B.  Enforcement and compliance

1.  Enforcement

70.  The task of enforcing the public health measures ‘on the frontline’ during the pandemic lays primarily with the district authorities, acting as federal health authorities of first instance. In most states, their efforts were coordinated by the Governor, or another member of the state government, acting in the name of the Federation under instructions by the Federal Minister of Health. Doctors working as public health officers for these state authorities played a crucial role in contact tracing. The Infectious Diseases Act210 and the Covid-19-Measures Act211 obliged the Federal Police to assist the district authorities in enforcing the public health measures, eg by supervising compliance in public places or by checking on people in quarantine. Due to shortages in personnel, some states also made use of police forces for contact tracing tasks (eg interviews by phone), while others refrained from doing so; in some cases, telephones were also staffed with military personnel. On the borders, border controls—under the responsibility of the Federal Interior Minister—were performed by police with the assistance of the military. The Federal Interior Minister and federal police were also in charge of supervising—and, in case of disproportionate health risks, banning—public assemblies.

71.  Most infringements of public health measures are penalised by administrative fines. These range from up to EUR 500 (eg for not wearing a mask) to up to EUR 1,450 (eg for violation of stay-at-home ordinance and most infringements of the Infectious Diseases Act) for citizens and were substantially higher for businesses, eg up to EUR 3,600 if customers entered in violation of requirements like wearing a mask, and up to EUR 36,000 if shutdown business premises were accessed by customers.212 People who are not infected and do not cooperate in contact-tracing procedures may also be subject to an administrative fine. However, infected persons who intentionally or negligently (potentially) contribute to the spread of Covid-19—eg infected people leaving isolation or giving false information during contact-tracing—are liable of a criminal offence punishable with a prison sentence of up to three years (intentional)213 or up to one year or a fine of 720 daily rates (negligent).214 Indictments (against more than 100 people in 2020) and convictions (of more than 25 people in 2020) rose sharply during the first year of the pandemic.

2.  Compliance

72.  The overall impression—which was also widely reported in the media—was that compliance with the measures (and their acceptance)215 was very high during the first lockdown, which also saw a very sharp fall in individuals’ mobility. During the second and the third waves and their associated lockdowns, the reduction in mobility was still significant, but much lower than during the first wave.216 This was partially a result of lower compliance, but also due to the fact that during the first lockdown, uncertainty about the extent of the danger led to ‘over-compliance’ beyond the actual measures as far as the mobility reduction was concerned, while there was some ‘habituation’ during the following lockdowns. The Corona-Blog of the Austrian Corona Panel Project (ACPP) at the Vienna Center of Electoral Research217 (University of Vienna) provides some valuable insight into public opinion: it seems that the obligation to keep a physical distance from other persons in public spaces and the requirement to wear face masks were widely endorsed, while agreement with the closures of restaurants was lower. The closing of schools was a particularly sensitive topic.218 In spring of 2021, a fall in compliance was reported219 and also perceived as such by the public,220 though with marked regional differences: in the states of Eastern Austria that were severely affected at the time and went into regional lockdowns in April 2021, compliance was higher, which also seems to have had some effect on the number of infections.221 It is also interesting to note that only a small minority of the population (15%) supported the protests against Covid-19 measures, with an even smaller number willing to participate in person.222 The performance of the government, including its communication, was judged less favorably with the ongoing duration of the pandemic.223

Prof. Dr. Karl Stöger, MJur (Oxon), University of Vienna

For their most valuable assistance in reviewing lots of legal documents and editing countless hyperlinks, the author is indebted to Dominique Korbel, Danielle Noe, Elisabeth Paar, Patrizia Pompe, David Schneeberger, and Manja Seebacher.

Footnotes:

9  Amendment to the Federal Constitutional Law (1920) (21 March 2020) (Federal Government); Amendment to the Federal Constitutional Law (1920) (4 April 2020) (Municipal Councils).

10  Federal Constitutional Law (1920), art 10(1)(12).

11  For details, see Federal Constitutional Law (1920), arts 10–15.

13  For an example of the relationship between federal and state legislation in countering the pandemic, see F Reimann, ‘Die Gesundheitskrise und die Interpretation der bundesverfassungsgesetzlichen Kompetenzbestimmungen’ (2021) Zeitschrift für Verwaltung 113.

14  Federal Constitutional Law (1920), arts 102–103.

15  For a general critical appraisal of the role of federalism in the health care system during the pandemic, see MM Hofmarcher and C Singhuber, ‘Federalism in the Health service: Weaknesses of Covid-19 Crisis management’ (Föderalismus im Gesundheitswesen: Schwächen des Covid-19 Krisenmanagements) HS&I Policy Brief (June 2021).

16  Federal Constitutional Law (1920), arts 18(3)–(5), 87(3)–(4).

17  W Berka, C Binder, and B Kneihs, Grundrechte (2nd edn, Verlag Österreich 2019) 149–150.

18  For an analysis of these and other measures against the background of EU law, regarding the first wave see R Klaushofer, B Kneihs, R Palmstorfer, and H Winner, ‘Ausgewählte unions- und verfassungsrechtliche Fragen der österreichischen Maßnahmen zur Eindämmung der Ausbreitung des Covid-19-Virus’ (2020) Zeitschrift für Öffentliches Recht 649; regarding the second wave see R Klaushofer, B Kneihs, R Palmstorfer, and H Winner, ‘Unions- und verfassungsrechtliche Fragen der österreichischen Maßnahmen zur Eindämmung der Ausbreitung des Covid-19-Virus (II)’ (2021) Zeitschrift für Öffentliches Recht 654–661.

19  Eg European Commission, Compensation Scheme: Directive for fixed cost subsidies (SA 57291) (9 May 2020).

20  Third Covid-19 Act (4 April 2020), arts 45–46.

22  Eg Amendments to the Act on Doctors (1998) (21 March 2020), art 34.

24  Federal Ministry for Digital and Economic Affairs, ‘Federal Law Gazette from 2004 – List of Covid-19 Acts’ (accessed 8 September 2021).

25  Federal Ministry for Digital and Economic Affairs, ‘Federal Law Gazette from 2004 – List of passed statutes’ (accessed 8 September 2021).

26  Eg N Forgó, ‘Meaningless bills to set parliamentary processes in motion’ (Nichtssagende Gesetzesvorhaben, um parlamentarische Prozesse in Gang zu setzen) Der Standard (Online, 6 April 2021).

32  Decision G 380/2020 (10 March 2021) (Constitutional Court).

33  Parliament, ‘Motivation for the Covid-19-Measures Bill’ (14 March 2020), 10.

36  Covid-19 Fund Act (2020) (15 March 2020).

37  Decision G 202/2020 (14 July 2020) (Constitutional Court).

39  Amendment to the Covid-19-Measures Act (2020) (28 June 2021), s 13(1).

40  On the relation between this provision and state legislation, see F Reimann, ‘Die Gesundheitskrise und die Interpretation der bundesverfassungsgesetzlichen Kompetenzbestimmungen’ (2021) Zeitschrift für Verwaltung 113.

43  A Hiersche, K Holzinger, and B Eibl, Handbuch des Epidemierechts (Manz 2020) 159–161.

45  Decision V 363/2020 (14 July 2020) (Constitutional Court).

48  Decision V 363/2020 (14 July 2020) (Constitutional Court), [45]; this interpretation was, amongst others, questioned by C Kopetzki, ‘Verkehrsbeschränkungen gem § 24 EpG vs COVID-19-MaßnahmenG – eine Parallelaktion?’ (2020) Recht der Medizin 84.

50  Decision G 380/2020 (10 March 2021) (Constitutional Court).

51  Federal Constitutional Law (1920), art 83(2): ‘right to a lawful judge’.

52  Eg F Reimann, ‘Die Gesundheitskrise und die Interpretation der bundesverfassungsgesetzlichen Kompetenzbestimmungen’ (2021) Zeitschrift für Verwaltung 113.

55  Amendment to the Covid-19-Measures Act (2020) (25 September 2020), s 7.

56  Tyrol: Ordinance pursuant to [2] no 2 of the Covid-19-Measures Act (2020) (18 March 2020); Amendment to the Ordinance pursuant to [2] no 2 of the Covid-19-Measures Act (2020) (19 March 2020); Ordinance pursuant to [2] no 2 of the Covid-19-Measures Act (2020) (20 March 2020); Amendment to the Ordinance pursuant to [2] no 2 of the Covid-19-Measures Act (2020) (27 March 2020); Repeal of the Ordinance pursuant to [2] no 2 of the Covid-19-Measures Act (2020) (6 April 2020); Ordinance pursuant to [2] no 2 of the Covid-19-Measures Act (2020) (9 April 2020); Ordinance on additional measures to combat the spread of Covid-19 in Tyrol (16 October 2020); Amendment to the Ordinance on additional measures to combat the spread of Covid-19 in Tyrol (23 October 2020); Repeal of the Ordinance on additional measures to combat the spread of Covid-19 in Tyrol (2 November 2020); Ordinance on additional measures to combat the spread of Covid-19 in ski resorts in Tyrol (22 December 2020); Amendment to the Ordinance on additional measures to combat the spread of Covid-19 in ski resorts in Tyrol (14 January 2021); Ordinance on additional measures to combat the spread of Covid-19 in ski resorts in Tyrol (14 February 2021); Amendment to the Ordinance on additional measures to combat the spread of Covid-19 in ski resorts in Tyrol (15 February 2021); Repeal of the Ordinance on additional measures to combat the spread of Covid-19 in ski resorts in Tyrol (10 May 2021); Ordinance on additional measures to combat the spread of Covid-19 in Tyrol concerning care facilities and homes of the elderly (12 February 2021); Amendment to the Ordinance on additional measures to combat the spread of Covid-19 in Tyrol concerning care facilities and homes of the elderly (26 February 2021); Amendment to the Ordinance on additional measures to combat the spread of Covid-19 in Tyrol concerning care facilities and homes of the elderly (9 March 2021); Ordinance on additional measures to combat the spread of the Covid-19 variant B.1.1.7/E484K concerning the departure from Tyrol (29 March 2021); Amendment to the Ordinance on additional measures to combat the spread of the Covid-19 variant B.1.1.7/E484K concerning the departure from Tyrol (13 April 2021); Amendment to the Ordinance on additional measures to combat the spread of the Covid-19 variant B.1.1.7/E484K concerning the departure from Tyrol (19 April 2021); Amendment to the Ordinance on additional measures to combat the spread of the Covid-19 variant B.1.1.7/E484K concerning the departure from Tyrol (22 April 2021). Vienna: Ordinance to combat the spread of the Coronavirus in day-care facilities for children and in kindergartens (10 April 2020); Ordinance on containment of the spread of the Coronavirus in day-care facilities for children and kindergarten (24 April 2020); Ordinance on limitations for visitors in hospitals, residential and care accommodations and care stations (14 April 2020); Amendment to the Ordinance on limitations for visitors in hospitals, residential and care accommodations and care stations (29 April 2020); Amendment to the Ordinance on limitations for visitors in hospitals, residential and care accommodations and care stations (29 May 2020); Amendment to the Ordinance on limitations for visitors in hospitals, residential and care accommodations and care stations (26 June 2020); Amendment to the Ordinance on limitations for visitors in hospitals, residential and care accommodations and care stations (31 August 2020); Repeal of the Ordinance on limitations for visitors in hospitals, residential and care accommodations and care stations (23 November 2020); Ordinance on additional measures for visitations in hospitals with beds (19 March 2021); Repeal of the Ordinance on additional measures for visitations in hospitals (18 May 2021); Amendment to the Ordinance on the obligation to wear a face mask outdoor in much frequented public premises to combat the spread of Covid-19 (9 April 2021); Ordinance on additional measures for personnel in restaurants and bars (18 May 2021). For an overview (dated November 2020), see P Bußjäger and F Bundschuh-Rieseneder, ‘Der rechtliche Rahmen regional differenzierter COVID-19-Bekämpfung’ (2020) Zeitschrift für Gesundheitsrecht 120.

58  For an overview of the first set of decisions, see eg M Denk, ‘Kapitel 19: Erste Erkenntnisse des VfGH zur COVID-19 Gesetz- und Verordnungsgebung’ in R Resch (ed), Corona Handbuch (version 1.04) (Manz 2021); D Korbel, ‘Die VfGH-Rechtsprechung zu COVID-19 aus dem Jahr 2020 – ein Überblick‘ in G Baumgartner (ed), Öffentliches Recht. Jahrbuch 2021 (NWV 2021, in print); M Eller and D Wachter, ‘Die Rechtsprechung des VfGH zu den “Corona-Regelungen” der Bundesregierung. Eine Analyse ausgewählter Entscheidungen’ (2021) Österreichische Juristen-Zeitung 12.

59  Covid-19-Measures Act (2020), s 2; for the first version see Covid-19-Measures Act (2020) (15 March 2020).

60  Decision V 363/2020 (14 July 2020) (Constitutional Court); on the consequences for administrative fines for infringments of the stay-at-home order, see eg S Oswald, ‘Das Günstigkeitsprinzip und die Zeitraumbezogenheit von Verwaltungsstrafbestimmungen’ (2021) Zeitschrift für Verwaltung 80.

62  Decision V 583/2020 and ors (10 March 2021) (Constitutional Court).

64  Sozialministerium, ‘Coronavirus – Rechtliches’ (29 July 2021), see under ‘Erlässe’.

65  For details, see K Stöger, ‘Vaccinations in a federal State’, Lex-Atlas: Covid-19 Blog (31 May 2021).

66  For details, see D Bischof, ‘Oster-Erlass vom Tisch, Unklarheiten bleiben’ Wiener Zeitung (Online, 6 April 2020).

67  On the general framework of Government information policy during a pandemic, see P Bußjäger and J Egger, ‘Verfassungs- und verwaltungsrechtliche Grundlagen staatlicher Krisenkommunikation’ (2021) Österreichische Juristen-Zeitung 63.

68  Eg, Sozialministerium, ‘Coronavirus – Fachinformationen’ (13 July 2021).

70  Amendment to the Covid-19-Measures Act (2020) (25 September 2020), s 11.

71  Covid-19-Measures Act (2020), ss 11(1)–(2); as amended by Amendment to the Covid-19-Measures Act (2020) (25 September 2020), since amended.

72  For an appraisal of this role of parliament during the pandemic see M Vasek, Von den Genfer Protokollen zum Covid-19-Maßnahmengesetz (Jan Sramek Verlag 2021) 89–124.

73  Covid-19-Measures Act (2020), s 11(3); as amended by Amendment to the Covid-19-Measures Act (2020) (25 September 2020), since amended.

74  Covid-19-Fund Act (2020); as amended by Amendment to the Covid-19 Fund Act (2020) (15 March 2020), s 3(4), since amended.

79  K Stöger, ‘Verfassungsrechtliche Haushaltsgrundsätze und Budgetgesetzgebung’ (2020) Juristische Blätter 737.

81  Parliament Press Service, ‘General mask obligation for members of parliament’ (accessed 6 July 2021).

82  Federal Constitutional Law (1920), arts 11(2), 136.

83  First Covid-19 Justice Accompanying Act (2020) (as of 30 June 2021); for the first version see First Covid-19 Justice Accompanying Act (2020) (21 March 2020).

84  Covid-19 Administrative Law Accompanying Act (2020) (as of 30 June 2021); for the first version of this Act see Covid-19 Administrative Law Accompanying Act (2020) (21 March 2020).

86  T Garber and M Neumayr, ‘Kapitel 13: Zivilverfahren in der Krise: Covid-19 und die Auswirkungen auf zivilgerichtliche Verfahren’ in R Resch (ed), Corona Handbuch (Manz 2021).

87  A Birklbauer, ‘Kapitel 16: Strafrecht’ in R Resch (ed), Corona Handbuch (Manz 2021).

88  A Birklbauer, ‘Kapitel 16: Strafrecht’ in R Resch (ed), Corona Handbuch (Manz 2021), nos 52-52/1.

89  MK Greifeneder, ‘Kapitel 15: Auswirkungen der Corona-Gesetzgebung auf das verwaltungsbehördliche und verwaltungsgerichtliche Verfahren’ in R Resch (ed), Corona Handbuch (Manz 2021).

90  Constitutional Court, ‘Covid-19’ (accessed 6 July 2021).

93  See also the analysis by T Ehs, ‘Austria: Voter turnout during ‘extraordinary circumstances’’, Lex-Atlas: Covid-19 Blog (8 June 2021).

99  Covid-19 Municipal Election Ordinance (1 October 2020).

101  C Plescia, J Partheymüller and S Kritzinger, ‘Ansteckungsgefahr im Wahllokal? Die Neigung zur Nicht- und Briefwahl in der Coronakrise’, Corona-Blog (29 September 2020).

102  For a voter flow analysis of the Viennese elections, see SORA, ‘Wählerstromanalyse Wienwahl 2020 (GRW15-GRW20)’ (accessed 8 September 2021).

103  Corona-Ampel, ‘Empfehlungen der Corona-Kommission’ (updated 29 July 2021).

104  Sozialministerium, ‘COVID-Prognose-Konsortium’ (28 July 2021).

105  For a remark critical of a statement by the Federal Chancellor, who in August 2020 declared they could see the ‘light at the end of the tunnel’, by one of the leading members of the ‘Covid Prognosis Consortium’ see S Thurner, ‘Wir brauchen nur ein bisschen mehr Disziplin’, Complexity Science Hub Vienna (accessed 8 September 2021).

111  Eg a press release by the Federal Chancellery (6 April 2020) in which the Vice Chancellor was cited declaring that the measures required a balancing of ‘health, social, socio-economic and economic policy measures’ see Bundeskanzleramt, Stufenplan für schrittweise Öffnung von Geschäften nach Ostern, aber Maßnahmen weiter befolgen (6 April 2020).

112  Cf T Ehs, Krisendemokratie (Mandelbaum 2020) 26–30.

113  See Reporters Without Borders, ‘World Press Freedom Index entry for Austria’ (2021).

114  Fourth Covid-19 Act (2020) (4 April 2020).

115  Act on Press Subsidies (2004); for the first version of this Act see Act on Press Subsidies (2004) (30 December 2003).

116  European Commission, ‘State Aid Transparency Public Search’ (accessed 8 September 2021).

117  Federal Constitutional Law (1920), arts 148a–j.

119  See the report of the Federal Court of Auditors, General report of the Federal Court of Auditors for 2020 (29 December 2020).

120  Second Covid-19-Opening Ordinance (28 June 2021).

123  Covid-19-Easing Ordinance (as of 20 September 2020); for the first version see Covid-19-Easing Ordinance (30 April 2020).

124  Ordinance on entries from risk-prone areas (6 March 2020); for the last version see Ordinance on entries from risk-prone areas (out of force).

127  Ordinance on entry into Austria in connection with the containment of SARS-CoV-2 (11 June 2020); for the last version see Ordinance on entry into Austria in connection with the containment of SARS-CoV-2 (out of force); replaced by Covid-19 Entry Ordinance (15 October 2020); for the last version see Covid-19 Entry Ordinance (30 June 2021); replaced by Covid-19-Entry Ordinance (as of 1 July 2021) (25 June 2021).

130  Covid-19 University and Higher Education Ordinance (22 April 2020); for a later, amended, version see Covid-19 University and Higher Education Ordinance (30 June 2021).

131  For an overview, see F Klebelsberg, ‘Verfassungsrechtliche Aspekte ausgewählter Tiroler Corona-Maßnahmen’ (2021) Austrian Law Journal 79; in detail, see Ordinance of the district authority of Landeck on restrictions of movement according to the Infectious Diseases Act 1950 for the municipalities in the Paznaun valley and municipality St. Anton am Arlberg (Tyrolean Messenger 2020/10b/128) (14 March 2020); Ordinance of the district authority of Imst on restrictions of movement for the municipality Sölden according to the Infectious Diseases Act 1950 (18 March 2020).

133  Infectious Diseases Act (1950); as amended by the Third Covid-19 Act (2020) (4 April 2020), s 43(4a).

135  Decision V 535/2020 (10 December 2020) (Constitutional Court).

136  Motivation of the Covid-19-Measures Bill (ErläutRV IA 396/A 27. GP), 10.

137  For an overview (dated November 2020), see P Bußjäger and F Bundschuh-Rieseneder, ‘Der rechtliche Rahmen regional differenzierter Covid-19-Bekämpfung’ (2020) Zeitschrift für Gesundheitsrecht 120.

138  Covid-19-Virus Variants Ordinance (10 February 2021).

142  For details, see W Heissenberger, ‘Rechtliche Maßnahmen zur Bewältigung von COVID-19’ (2020) Österreichische Juristen-Zeitung 440; comment on Decision LVwG-S-891/001-2020 (Administrative Court of Lower Austria), by C Kopetzki, ‘Corona-Ausgangsbeschränkungen – “Freunde besuchen”?’ (2020) Recht der Medizin 161.

143  As required by the Federal Constitutional Law (1920), art 18.

144  Decision V 363/2020 (14 July 2020) (Constitutional Court).

145  Covid-19-Measures Act (2020), s 5 (25 September 2020).

148  Eg Ordinance on the entry to Austria in the context of the containment of Covid-19 (as of 16 October 2020); for the first version see Ordinance on the entry to Austria in the context of the containment of Covid-19 (11 June 2020), repeatedly amended; Covid-19-Entry Ordinance (as of 30 June 2021); for the first version see Covid-19-Entry Ordinance (15 October 2020), repeatedly amended.

149  R Klaushofer, B Kneihs, R Palmstorfer et al, ‘Ausgewählte unions- und verfassungsrechtliche Fragen der österreichischen Maßnahmen zur Eindämmung der Ausbreitung des Covid-19-Virus’ (2020) Zeitschrift für Öffentliches Recht 649.

150  R Klaushofer, B Kneihs, R Palmstorfer and H Winner, ‘Unions- und verfassungsrechtliche Fragen der österreichischen Maßnahmen zur Eindämmung der Ausbreitung des Covid-19-Virus (II)’ (2021) Zeitschrift für Öffentliches Recht 654–661.

153  Decision V 535/2020 (10 December 2020) (Constitutional Court).

154  Covid-19 Virus Variants Ordinance (10 February 2021).

157  This cap was later declared illegal by the Constitutional Court as the Federal Minister of Health did not give precise reasons in the preparatory files of the ordinance on why the respective measure was indispensable on public health grounds, see Decision V 428/2020 (1 October 2020) (Constitutional Court).

159  See eg (including a legal analysis) D Bischof, ‘Aufgeheizte Demos als schmaler Grat für Rechtsstaat’ Wiener Zeitung (Online, 1 February 2021).

160  For a comment on what exactly constitutes a ‘private apartment’ in the context of the Covid-19-Measures Act, see R Klaushofer, B Kneihs, R Palmstorfer, and H Winner, ‘Unions- und verfassungsrechtliche Fragen der österreichischen Maßnahmen zur Eindämmung der Ausbreitung des Covid-19-Virus (II)’ (2021) Zeitschrift für Öffentliches Recht 669–671.

161  Covid-19-Opening Ordinance (as of 30 June 2021); for the first version of this ordinance see Covid-19-Opening Ordinance (10 May 2021), repeatedly amended (see table in Part IV.A above).

162  Second Covid-19 Opening Ordinance (28 June 2021).

163  R Feik, ‘Der Veranstaltungsbegriff und die „sechs Personen aus zwei Haushalten“-Ausnahmeregel des § 13 Covid-19-SchuMaV. Ein kritischer Blick auf eine spezifische Lockdown-Bestimmung’ (2021) Zeitschrift der Verwaltungsgerichtsbarkeit 14.

165  Ordinance on preliminary measures to prevent the spread of Covid-19 (as of 14 April 2020); for the first version of this ordinance see Ordinance on preliminary measures to prevent the spread of Covid-19 (15 March 2020), repeatedly amended. The closure of restaurants was later declared illegal by the Constitutional Court as the Federal Minister of Health did not give precise reasons in the preparatory files of the ordinance on why the respective measure was indispensable on public health grounds, see Decision V 405/2020 (1 October 2020) (Constitutional Court).

166  Ordinance pursuant to [2] no 1 of the Covid-19-Measures Act (2020) (as of 20 March 2020); for the first version see Ordinance pursuant to [2] no 1 of the Covid-19-Measures Act (2020) (15 March 2020), repeatedly amended.

167  Decision V 411/2020 (14 July 2020) (Constitutional Court).

168  This measure was declared illegal by the Constitutional Court as the Federal Minister of Education did not give precise reasons in the preparatory files of the ordinance on why the respective measure was indispensable on public health grounds, see Decision V 436/2020 (10 December 2020) (Constitutional Court).

169  Covid-19-Protective Measures Ordinance (1 November 2020).

170  The legality of this ordinance (covering 17 November to 6 December 2020) was confirmed by Decision V 574/2020 and ors (10 March 2021) (Constitutional Court).

171  However, in the state of Tyrol, where variants were in circulation, an entry test obligation was decreed, see Ordinance of the Governor of Tyrol on additional measures for ski-resorts (14 February 2021).

172  This was criticised by non-religious groups which did not regard the freedom of belief a sufficient justification for the exemption of religious services from (some) public health measures, see C Akinyosoye, ‘CoV: Kritik an Ausnahme für Gottesdienste’ ORF (Online, 2 November 2020).

173  Covid-19-Opening Ordinance (as of 30 June 2021); for the first version of the ordinance see Covid-19-Opening Ordinance (10 May 2021); amended by the Second Amendment to the Covid-19-Opening Ordinance (18 May 2021); amended by the Third Amendment to the Covid-19-Opening Ordinance (1 June 2021); Fourth Amendment to the Covid-19-Opening Ordinance (2 June 2021); Fifth Amendment to the Covid-19-Opening Ordinance (9 June 2021).

176  Decision G 272/2020 and ors (1 October 2020) (Constitutional Court).

177  Second Covid-19-Opening Ordinance (28 June 2021).

178  This measure was declared illegal by the Constitutional Court as the Federal Minister of Education did not give precise reasons in the preparatory files of the ordinance on why the respective measure was indispensable on public health grounds, see Decision V 436/2020 (10 December 2020) (Constitutional Court).

181  Second Covid-19-Opening Ordinance (28 June 2021), s 1(1).

182  Decision G 271/2020 and ors (1 October 2020) (Constitutional Court) (general requirement).

183  Decision V 436/2020 (10 December 2020) (Constitutional Court) (schools).

184  For an overview, see A Hiersche, K Holzinger, and B Eibl, Handbuch des Epidemierechts (Manz 2020) 110–117.

186  Federal Ministry of Health, Recommendation concerning health care of COVID-19 contact persons (12 November 2020); Federal Ministry of Health, Recommendation concerning children and juveniles suffering from COVID-19 (7 May 2021); Federal Ministry of Health, Recommendation concerning contact-tracing of infected persons (16 June 2021).

188  See Bundesministerium für Gesundheit und Frauen, Impfungen des Gesundheitspersonals: Rechtliche Aspekte (20 April 2017), published even before the Covid-19 outbreak.

191  K Stöger, ‘Vaccinations in a federal State’, Lex-Atlas: Covid-19 Blog (31 May 2021).

192  K Stöger, ‘Vaccinations in a federal State’, Lex-Atlas: Covid-19 Blog (31 May 2021).

193  K Stöger, ‘Vaccinations in a federal State’, Lex-Atlas: Covid-19 Blog (31 May 2021).

194  For an overview of some of the objections raised, see ‘Begutachtungs-Kritik am “Freitesten” vom Kanzleramt’ Salzburger Nachrichten (Online, 24 September 2021).

195  Infectious Diseases Act (2020), s5(1); third persons are also obliged to share information, see Infectious Diseases Act (1950), s 5(3).

196  Eg A Gamper, ‘Verpflichtende Corona-Trac(k)ing Apps: von der “demokratischen Zumutung” zum “Rand der Demokratie”’ (2020) Newsletter Menschenrechte 155.

198  Decision V 573/2020 (10 March 2021) (Constitutional Court).

201  Covid-19-Opening Ordinance (10 May 2021), s 17.

205  Decision 7 Ob 151/20m (23 September 2020) (Supreme Court).

206  Eg M Ganner, ‘Wie funktioniert die Überprüfung von Freiheitsbeschränkungen in Zeiten einer Epidemie (COVID-19)?’ (2020) Österreichische Zeitschrift für Pflegerecht 90; G Nebois-Zeman and S Jacquemar, ‘COVID-19 aus Sicht der Bewohnervertretung nach HeimAufG’ (2020) Österreichische Zeitschrift für Pflegerecht 180.

207  Covid-19-Opening Ordinance (as of 30 June 2021); for the first version of this ordinance see Covid-19-Opening Ordinance (10 May 2021), regularly amended (further relaxations of measures).

208  Second Covid-19-Opening Ordinance (28 June 2021).

211  Covid-19-Measures Act (2020), ss 9–10.

213  Criminal Code (1974), s 178; on details, see L Cohen, ‘Isolation, Quarantäne, Coronaparties – Anwendbarkeit der § 178 f StGB bei Missachtung von COVID-19-Verkehrsbeschränkungen’ (2020) Journal für Strafrecht 204.

214  Criminal Code (1974), s 179.

215  M Waibel, DW Schiestl, and F Kalleitner, ‘Waren die Maßnahmen ein Fehler? Die Mehrheit der österreichischen Bevölkerung sieht das nicht so’, Corona-Blog (8 June 2020).

216  For an overview for March 2020 to March 2021, see Invenium, ‘Rückblick: 1 Jahr Corona in Österreich’ (23 March 2021), Invenium is a spin-off of the Technical University of Graz which conducts mobility data analyses and shares them in cooperation with mobile phone operators.

217 Themenübersicht’, Corona-Blog (accessed 8 September 2021), the webpage also offers English summaries of the most important findings.

218  Survey conducted in summer 2020 by B Kittel and F Kalleitner, ‘Normkonformität in der Corona-Krise: Die Einhaltung des Mindestabstands und die Verwendung eines Mund-Nasen-Schutzes im Verlauf der Pandemie’, Corona-Blog (13 October 2020).

219  J Aichholzer, ‘Die Bereitschaft, sein Leben weiter der Pandemie anzupassen, schwindet’, Corona-Blog (11 May 2021).

220  J Aichholzer and F Kalleitner, ‘Die wahrgenommene Regeleinhaltung – ein Thermostat der Beschränkungen und Lockerungen?’, Corona-Blog (16 March 2021).

221  J Aichholzer, ‘Einhaltung und Befürwortung der Corona-Maßnahmen in den Bundesländern’, Corona-Blog (3 May 2021).

222  JM Eberl and NS Lebernegg, ‘Zum Rückhalt der Corona-Demonstrationen in der österreichischen Bevölkerung’, Corona-Blog (8 April 2021).

223  JM Eberl, NS Lebernegg, J Partheymüller, and HG Boomgaarden, ‘Selbstinszenierung und mangelnde Kritikfähigkeit: Wie die Regierungskommunikation zur Corona-Krise ankommt’, Corona-Blog (22 January 2021); and AL Brunetti, F Kalleitner, and C Plescia, ‘Vertrauen in die österreichische Bundesregierung und in das Gesundheitssystem während der COVID-19-Pandemie’, Corona-Blog (12 February 2021).