Constitutions and Contagion – European Constitutional Systems and the COVID-19 Pandemic Angelo Jr Golia Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Germany [email protected] Laura Hering Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Germany [email protected] Carolyn Moser Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Germany [email protected] Tom Sparks Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Germany [email protected]* Abstract 148 Keywords 149 I. Introduction 149 1. Aims 149 2. Methodology 151 3. General Overview 154 4. Main Findings 156 * Please direct correspondence to: <[email protected]>. The authors wish to thank Rabia Ferahkaya and in particular Lukas Märtin for their research assistance and editorial work, as well as Deirdre Curtin, Daniela Dobre, Jochen A. Frowein, Gábor Halmai, Ran Hirschl, Giuseppe Martinico, Michele Massa, Francesco Palermo, Mathias Siems, Mark Tushnet, and the anonymous reviewer for helpful comments and constructive criticism on previous drafts. The paper has also benefitted from discussion at research seminars held at the MPIL on 21 September 2020 and at the European University Institute on 27 November 2020. All remaining errors and omissions are our responsibility alone. This article has been updated to include developments until 31 October 2020. DOI 10.17104/0044-2348-2021-1-147 ZaöRV 81 (2021), 147-234 https://doi.org/10.17104/0044-2348-2021-1-147, am 29.09.2021, 01:48:49 Open Access - http://www.nomos-elibrary.de/agb 148 Golia/Hering/Moser/Sparks II. COVID-19 Impact: Timeline and Types of Measures Adopted 159 1. France 159 2. Italy 161 3. Germany 162 4. United Kingdom 163 III. The Quest for an Appropriate Legal Basis for Pandemic Management 164 1. Exceptional Circumstances Calling for Emergency Powers? 165 2. Nature, Limits, and Duration of Prerogatives Granted 174 3. Executive Governance and Legal Frameworks: Lessons from the Study Countries 181 IV. Parliamentarism Under Pressure: The Role of the Legislature under Pandemic Con- ditions 182 1. Measures to Preserve Parliaments 183 2. Changing Constitutional Balances 189 3. The Role of Parliaments in Times of Pandemic: Lessons from the Study Countries 198 V. Vertical Allocation of Power: The Role of Centralisation and De-Centralisation in the Fight Against the Pandemic 204 1. Organisational Systems of the Countries Under Scrutiny: a Brief Outline 204 2. Centralised vs. De-Centralised Management in the Fight Against the Pandemic 206 3. Vertical Allocation Power and Challenges for Pandemic Management 209 4. Vertical Division of Labour in Times of Pandemic: Lessons from the Study Coun- tries 214 VI. Role of Judiciaries: Between Protection of Rights and Arbitration of Institutonal Conflicts 215 1. Judicial Systems of the Countries Under Scrutiny: a Brief Outline 215 2. France and Germany: Proportionality, Reactive Rights Protection, and Timely Decisions 218 3. Italy: a Side-lined Constitutional Court and the Persistent Deference of Adminis- trative Courts 223 4. The UK: Judicial Review of Secondary Legislation 226 5. Judicial Systems and Rights Protection: Lessons from the Study Countries 230 VII. Final Remarks 233 Abstract The COVID-19 pandemic has posed an unprecedented challenge, with governments resorting to different legal strategies to respond to the health emergency. This article offers a cross-cuting comparative analysis of measures taken during the first six months of the pandemic (the “first wave”) in four European jurisdictions with significantly different constitutional settlements – namely France, Germany, Italy, and the United Kingdom. It explores the influence of specific constitutional features on the legal responses to the pandemic and how, in turn, these responses have the potential to reconfigure the institutional frameworks in place. The inquiry, which unfolds along the analytical categories of (i) legal basis, (ii) horizontal and (iii) vertical alloca- tion of power, and (iv) the role of the judiciary, shows that both constitu- ZaöRV 81 (2021) DOI 10.17104/0044-2348-2021-1-147 https://doi.org/10.17104/0044-2348-2021-1-147, am 29.09.2021, 01:48:49 Open Access - http://www.nomos-elibrary.de/agb Constitutions and Contagion 149 tional contexts and legal traditions play a significant role in pandemic times and are, moreover, likely to continue shaping post-pandemic governance patterns. Keywords comparative constitutional law – COVID-19 – coronavirus – state of emergency – parliamentary involvement – judicial review – contextual ap- proach – legal basis I. Introduction 1. Aims The measures adopted by most governments in the first half of 2020 to tackle the spread of the novel coronavirus greatly restricted a vast array of fundamental rights. From freedom of movement and assembly to religious rights, family rights, rights to privacy, free speech, and economic initiative, few domains were left untouched. What is more, many adopted measures were exceptional from at least two points of view: first, several governments resorted to novel or rarely-used legal instruments; secondly, these measures have (or have had) the potential to induce broader institutional change, including as regards constitutional arrangements. The legal responses to the pandemic varied significantly across countries, a fact which has prompted numerous analyses. Indeed, a vast scholarly produc- tion has arisen, entailing national reports, case analyses, and various summa- ries of the measures adopted in different countries.1 A new label of “Com- parative Covid Law” has even been coined to denote a self-standing field of 1 See, among many others, Richard Youngs, How the Coronavirus Tests European Democ- racy, 23 June 2020, Carnegie Europe, via <https://carnegieeurope.eu/>; A Human Rights and Rule of Law Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 27 Jurisdictions, Bonavero Report No. 7/2020 (30 October 2020), via <https:// www.law.ox. ac.uk/>; the Oxford COVID-19 Government Response Tracker (OxCGRT), created by the Blavatnik School of Government and the University of Oxford, via <https:// www.bsg.ox. ac.uk/>; the periodically updated Verfassungsblog Country reports via <https:// verfassungsblog.de/>; José M. Serna de la Garza, Covid-19 and Constitutional Law. Covid-19 et droit constitutionnel (Mexico City: Universidad Nacional Autónoma de México, Instituto de Investigaciones Jurídicas, Instituto Iberoamericano de Derecho Constitucional, International Association of Constitutional Law 2020), via <https://biblio.juridicas.unam.mx/>. DOI 10.17104/0044-2348-2021-1-147 ZaöRV 81 (2021) https://doi.org/10.17104/0044-2348-2021-1-147, am 29.09.2021, 01:48:49 Open Access - http://www.nomos-elibrary.de/agb 150 Golia/Hering/Moser/Sparks comparative legal studies dealing with the legal repercussions of the pan- demic.2 Further, several international bodies have compiled sets of principles or best-practice documents to protect fundamental rights amid the pan- demic.3 As yet, however, few contributions have conducted cross-cutting com- parative analyses of the impact of emergency measures on the structures and functioning of the systems involved.4 In particular, three interrelated ques- tions remain underexplored: 1) To what extent have constitutional features shaped the legal responses of governments to the pandemic? 2) Which constitu- tional features have impacted significantly on the responses to the pandemic, and how important were rule of law considerations in this context? 3) And which of these features are likely to produce long-lasting institutional effects?5 To respond to these questions we develop a comparative analysis of trends within four European constitutional systems, namely France, Germany, Italy, and the United Kingdom (UK). The primary goal of our analysis is to deepen the legal understanding6 of the relationship between states of emergency, on one hand, and the structures and functioning of some specific forms of (constitutional) government and State, on the other.7 Importantly, we pursue 2 See the scholarly portal “Comparative Covid Law” at <https://www.comparativecovid law.it/>; and the Research Group established by the International Association of Constitutional Law (IACL) on 17 September 2020, via <https://blog-iacl-aidc.org/>. 3 See among others the European Law Institute (ELI) Principles for the COVID-19 Crisis, 16 April 2020, via <https://www.europeanlawinstitute.eu/>; the multiple Reports of the Fun- damental Rights Agency (FRA) of the European Union, via <https://fra.europa.eu/>; and COVID-19 Guidance of the UN High Commissioner for Human Rights, via <https:// www.ohchr.org/>. 4 See e. g. Tom Ginsburg and Mila Versteeg, The Bound Executive: Emergency Powers During the Pandemic, Virginia Public Law and Legal Theory Research Paper No. 52 (2020); Magnus Lundgren, Mark Klamberg, Karin Sundström and Julia Dahlqvist, Emergency Powers in Response to COVID-19: Policy Diffusion, Democracy, and Preparedness, Faculty of Law, Stockholm University Research Paper No. 78; and Armin von Bogdandy, Jesús M. Casal and Mariela Morales-Antoniazzi, La resistencia del Estado democrático de Derecho en América Latina frente a la pandemia de COVID-19. Un enfoque desde el ius commune, MPIL Research Paper No. 35 (2020); all available via <https://papers.ssrn.com/>. 5 Giacomo Delledonne, ‘Crises, Emergencies and Constitutional Change’, forthcoming in: Xenophon Contiades and