Limitations of the Freedom to Work and Free Economic Initiative in order to Prevent the Spread of the COVID-19 Communicable Disease

In Case No. U-I-155/20 (Decision dated 7 October 2021, Official Gazette RS, No. 178/21), upon a petition submitted by multiple economic entities of different legal forms, the Constitutional Court reviewed the provision of the Communicable Diseases Act that authorises the Government to prohibit or restrict trade in individual types of goods and products in order to prevent the introduction or spread of a communicable disease in the state. It also reviewed a government order that was adopted on the basis of the mentioned statutory provision in order to contain and manage the COVID-19 communicable disease, which temporarily prohibited the offering and sale of goods and services to consumers in the Republic of Slovenia.

The considered petition raised an important constitutional question as regards the constitutional conformity of the statutory provision and the challenged ordinance based on this provision, which was followed by numerous substantively comparable ordinances, because the mentioned provision of the Communicable Diseases Act allegedly does not contain criteria that are sufficiently precise to limit constitutionally guaranteed rights. Therefore, the Constitutional Court assessed the challenged regulations from the perspective of the freedom of work determined by Article 49 of the Constitution and free economic initiative determined by the first paragraph of Article 74 of the Constitution in conjunction with the second paragraph of Article 120 of the Constitution, which requires that the executive branch of power only perform its work on the basis and within the framework of laws.

The Constitutional Court drew attention to its hitherto case law, in accordance with which the executive branch of power must not regulate questions falling within the field of legislative decision-making. Whenever the legislature authorises the executive branch of power to adopt an implementing regulation, it must first by itself regulate the foundations of the content that is to be the subject of the implementing regulation, and determine the framework and guidelines for regulating the content in more detail by means of the implementing regulation. The Constitutional Court stressed that the requirement that the statutory basis be precise is particularly stringent where a restriction of human rights and fundamental freedoms is at issue. A general act that directly interferes with the rights of an indeterminate number of economic entities must be a law.

In the assessment of the Constitutional Court, it is in fact not inconsistent with the Constitution if the legislature exceptionally leaves the prescription of measures by which the freedom of work and free economic initiative are interfered with in order to prevent the spread of a certain communicable disease to the executive power. However, the law must determine appropriate safeguards against arbitrary limitations of human rights and fundamental freedoms. The Constitutional Court established that the challenged statutory regulation does not meet this constitutional requirement because the legislature granted the Government a margin of discretion that is significantly too wide. Given the lack of criteria for determining the admissible duration of measures, the duty to consult and cooperate with the expert community, and the appropriate informing of the public, the legislature left it to the Government to select, at its own discretion, the scope and duration of the measures by which business activities and the right to work of all individuals and legal entities on the territory of the Republic of Slovenia can (also very intensively) be interfered with. It only instructed the Government to assess whether the introduction or spread of a communicable disease could be prevented by other measures referred to in the Communicable Diseases Act. The Constitutional Court concluded that the legislature waived its exclusive constitutional power to decide on limitations of constitutionally guaranteed rights on a general and abstract level by taking into account the general principle of proportionality. Therefore, the Constitutional Court established that the challenged provision of the Communicable Diseases Act is inconsistent with Articles 49 and 74 of the Constitution. It also established that this Act does not even provide a basis for adopting measures in the field of providing or offering services, but only provides such as regards goods and products.