Abstract

Many countries made extensive use of executive instruments to contain the Corona virus. This article will examine a tension in Corona-related lawmaking: on the one hand, there is the need for executive lawmaking for a quick and accurate crisis-response, while on the other hand, parliament should have general control of lawmaking, taking into account the reservation of a statutory provision, the principle of legal certainty, and the separation of powers. The study will be conducted from a comparative law perspective, looking at Germany and Italy. It will show that the use of executive legislative instruments in the pandemic in Germany and Italy has not only posed new problems for constitutional law, but has also made existing ones more visible and given rise to fundamental criticism, both by legal scholars and the courts. However, this did not lead to a paradigm shift in constitutional law, but, at best, triggered a development of the law, in particular the operationalisation and strengthening of constitutional principles such as the reservation of a statutory provision and the principle of legal certainty.

First, the article presents the executive instruments used to enact the Corona-containment measures in Italy and Germany: Germany, in particular, resorted to the instrument of legal decrees of the state governments provided for in Art. 80 of the Basic Law. Italy based its Corona-containment measures mainly on the instrument of d.P.C.M., which found their basis in legislative decrees, but, unlike legislative decrees, were not the instrument provided for by the Constitution for emergency situations. This raised considerable doubts as to whether the d.P.C.M. could be the basis of such significant restrictions of fundamental rights. In a second step, the focus is on the constitutional difficulties that accompanied the choice of Corona-containment measures in Germany and Italy, and how these were assessed by legal scholarship and jurisprudence. The use of an indeterminate general clause as a basis for executive lawmaking was perceived as particularly problematic in both Germany and Italy. This generated criticism because of alleged violations of the reservation of a statutory provision and the principle of legal certainty. In addition to constitutional difficulties of executive norm-setting bearing in mind the reservation of a statutory provision and the principle of legal certainty, a weakening of parliaments in the pandemic was also observed in both Germany and Italy. Thereafter, the article presents the solutions chosen in Germany and Italy to counter the almost exclusively executive norm-setting in the pandemic. Both Germany and Italy reacted to the massive criticism from academia and the courts by revising and concretising the legal basis of the executive measures. Italy also changed the instruments for combating the pandemic. Finally, the comparative law view is directed at the “vertical dimension” of the separation of powers. The executive containment of the Covid-19 pandemic in both Italy and Germany was decisively shaped by the vertical division of powers between the federal government or stato and the Länder or regioni. The article closes with a comparative legal conclusion.