By order of August 15, 2024, the Constitutional Court of the Free State of Saxony ruled that the regulations on wearing a mouth and nose covering in Section 3, Section 9 Paragraph 2 Sentences 1, 2 and 4, Section 10 Paragraph 2 No. 2 Letter a of the Ordinance of the Saxon State Ministry for Social Affairs and Social Cohesion to protect against the coronavirus SARS-CoV-2 and COVID-19 (Saxon Corona Protection Ordinance – SächsCoronaSchVO) of October 30, 2020 (SächsGVBl. p. 557) are compatible with the Constitution of the Free State of Saxony. With regard to all other provisions of the ordinance, the application is already inadmissible due to a lack of sufficient justification by the applicants, so that a substantive review could not be carried out.
The regulation contained, among other things, contact restrictions and distance requirements, visiting and entry regulations for health and social care facilities, the obligation to wear a mouth and nose covering (not a so-called FFP-2 mask) in general and at meetings, regulations on the closure of facilities and services as well as the associated provisions on administrative offenses.
The applicants, 38 members of the Alternative for Germany (AfD) parliamentary group in the 7th Saxon State Parliament, brought an action by way of abstract judicial review (cf. Press release from 3 November 2020) argues that the Saxon Corona Protection Ordinance of 30 October 2020 is unconstitutional and void.
The Constitutional Court has deemed the application admissible and manifestly unfounded with regard to the general regulations on wearing a mouth and nose covering (Section 3 of the Ordinance), including at assemblies (Section 9 of the Ordinance) and the requirements for an administrative offence in the event of violations of this (Section 10 Paragraph 2 No. 2 Letter a of the Ordinance).
The regulations of the Saxon Corona Protection Ordinance on wearing a mouth and nose covering were compatible with the Saxon Constitution.
There was a sufficient legal basis for the regulations examined in the
§§ 32 sentence 1 in conjunction with § 28 paragraph 1 sentences 1, 2 of the Act on the Prevention and Control of Infectious Diseases in Humans (Infection Protection Act – IfSG).
This legal basis, which the Constitutional Court could only examine to a limited extent for obvious violations based on the standard of the Basic Law, did not obviously contradict the parliamentary reservation and the requirement of clarity, nor was it obviously disproportionate. The interference with fundamental rights resulting from a mouth and nose covering was not so serious that it resulted in the need for a parliamentary regulation with regard to the exercise of general freedom of action and personal rights. The federal legislature has adequately complied with the obligation, which also arises from the requirement of clarity, to adapt the authorization basis to further developments with the new version of Section 28 IfSG, which came into force on November 18, 2020, and with the introduction of Section 28a IfSG.
The regulation was issued properly without any formal deficiencies and was in line with the federal legal basis for authorization. The regulatory authority did not base its risk forecast on obviously incorrect considerations; in particular, it must be taken into account that during the period under review the number of people infected with the corona virus doubled approximately every seven days and the number of intensive care patients doubled approximately every ten days. It is therefore not objectionable if, in order to avoid an acute national health emergency, it was considered necessary to halt the spread of infection by significantly reducing contacts in the population as a whole and to reduce the number of new infections to a traceable level.
Wearing a mouth and nose covering was included in the authorization to issue the regulation. This was a form of the possibility provided for in Section 28 Paragraph 1 Sentence 1 Clause 2 of the Infection Protection Act to oblige people to enter specific locations or public places only under certain conditions. The extent of the measures was within the framework set by the authorization norms, and the wide range of addressees of the regulation also enabled infection protection measures to be taken against “non-disturbers” under infection protection law and thus the general public.
The obligation to wear a mouth and nose covering has not resulted in any violation of fundamental rights.
There is no reliable evidence that wearing a mouth and nose covering is likely to pose a health risk (Article 16, Paragraph 1 of the Saxon Constitution – SächsVerf – Right to Physical Integrity). The results of an expert opinion from 2004 presented by the applicants are outdated and cannot be applied to the pandemic situation caused by the corona virus.
Both the obligation to wear a mouth and nose covering and the fines for enforcement encroach on the scope of protection of general freedom of action and general personal rights (Article 15 of the Saxon Constitution), but they were justified. The regulatory authority observed the principle of proportionality; in particular, there was a risk of the entire health care system collapsing due to an unchecked increase in the number of people infected with COVID-19. In contrast, the imposed obligation to wear a mouth and nose covering is a relatively minor impairment that was mitigated by the provision of exceptions. In individual cases, conflicting health reasons already made the obligation to wear a mask unnecessary under Section 3 (2) of the Saxon Corona Protection Ordinance. As an embodiment of the principle of proportionality, the exceptions provided for did not violate the principle of equality under Article 18 of the Saxon Constitution.
There was no need for an oral hearing because the decision on the obviously unfounded and inadmissible application was taken by unanimous resolution.
(c) Constitutional Court of the Free State of Saxony – Vf. 197-II-20
