The separation of powers in the aftermath of the pandemic

The presentation discusses whether delegating regulatory powers to the executive in the context of fighting the COVID-19 pandemic in Germany reflects a constitutional crisis with regard to the seperation of powers? A first part will sketch the constitutional framework for delegating regulatory powers. Against this background, a second part will discuss the constitutionality of the delegation of regulatory powers for non-pharmaceutical interventions in § 28a of the Infection Protection Act (IPA). Finally, the relationship of Parliament and the executive will be considered from the reverse perspective and the question adressed whether the statutory “emergency brake“ (§ 28b IPA) amounts to too much parliamentary steering?

The presentation will explore how the pandemic has impacted the enforcement and the relationships among powers, especially among executive power and judicial power, in France. Indeed, the crisis has confirmed the importance of the executive power over the legislative one, and it stresses the need for an effective judicial review. Here, the analysis will focus on the case law adopted during the crisis by the administrative judge, mainly on the ground of interim relief action, questioning the capacity of the the judge to ensure the legality of the crisis management.

The presentation analyses the effects of the health crisis on the relations between the Italian Government and the Parliament - it focuses on the wide regulatory powers granted to the Government during the pandemic and explains why this was deemed compatible with the Italian legal system by the Constitutional Court. Then, the paper analyses the main decisions that the administrative judge has taken on administrative measures issued during the pandemic (e.g. school closures, vaccinations, COVID-19 Green Certificate, etc.), in order to identify some common trends. This will also allow the analysis of the outstanding role assumed during the pandemic by the administrative judge in safeguarding fundamental rights, by comparing it with the low involvement of the Constitutional court.

In this presentation we will examine how the relation between the executive and other branches of government has been altered in Spain because of the pandemic. First, it will describe the expansion of executive rulemaking powers both within and outside the declared state of alarm. Second, we will also explore how courts have carried out judicial review of executive decisions taken in the exercise of discretionary powers and under scientific uncertainty.