VerfGH Saarland - VerfGH Lv 15/20

VerfGH Saarland - VerfGH Lv 15/20
Court:	VerfGH Saarland (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(a) GDPR Article 6(1)(c) GDPR Article 6(1)(d) GDPR Article 6(1)(e) GDPR Article 6(3) GDPR Art. 2 § 3 CP-VO (Verordnung zur Änderung infektionsrechtlicher Verordnungen zur Bekämpfung der Corona-Pandemie vom 8. August 2020) § 32 IfSG in conjunction with § 28 IfSG (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen)
Decided:	28.08.2020
Published:
Parties:
National Case Number/Name:	VerfGH Lv 15/20
European Case Law Identifier:
Appeal from:	OVG Saarland (Germany) OVG 2 B 175/20
Appeal to:
Original Language(s):	German
Original Source:	Verfassungsgerichtshof des Saarlandes (in German)
Initial Contributor:	n/a

The Constitutional Court of the Saarland holds that the obligation to guarantee contact tracing by means of collection of personal data by private individuals is interfering with the fundamental right to data protection . There is no defintion of a reason, type, scope and use of the personal information to be collected. The government decree is unconstitutional, it needs a parliamentary law.

English Summary

Facts

In the Saarland, Art. 2 § 3 CP-VO regulated contact tracing. This tracing serves to interrupt chains of infection. The aim is to find out who may have had close contact with an infected person so that he/she can be placed in (self-)quarantine and tested in order to avoid infecting other people unintentionally.

Those responsible for catering, cultural facilities and events, indoor playgrounds, church services and funerals, sports and other related events according to Art. 2 § 6 CP-VO, hotels and other accommodation providers as well as prostitution businesses are obliged to do to keep the information:

- First name and surname,

- Place of residence

- Accessibility and

- the arrival time of one representative of each household present

They must be handed over to the health authorities on request. It is also provided that these data are to be deleted within one month.

Dispute

The standard does not lay down any requirements for the organisation of the collection of contact data. In the field of gastronomy, in particular, this often leads to the fact that subsequent guests can recognise and remember who has visited the company before them and how they can be reached via telephone number, e-mail address or postal address. This is a significant interference in the right to data protection. By recording, storing and possibly also passing on address and contact data, citizens - holders of fundamental rights - could be indirectly deterred from attending certain events or places. Indeed, the idea can be frightening if it is precisely documented and, if necessary, the state is informed from when to when one has visited which restaurant, political, religious or cultural event.

Holding

According to the Constitutional Court of the Saarland, such a far-reaching, serious interference with the fundamental right to data protection cannot be decided by government decree. A parliamentary law is also necessary, because it is not (any longer) a short-term emergency situation, but a regulation which in all probability should apply for longer.

Furthermore, the Court held that data processing arising in the context of contact tracing could not be based on the legal basis of consent, Article 6 (1) (a) GDPR. In particular, Article 6 (1) (c) (legal obligation of the controller and Article 6 (1) (e) GDPR (public interest) do not themselves constitute a legal basis for data processing, but require it. This is already apparent from the wording of Article 6 (3) GDPR.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Lv 15/20 OF THE CONSTITUTIONAL COURT OF JUSTICE OF THE SAARLANDESB E S C H L U S S IN THE NAME OF THE PEOPLE In the constitutional complaint proceedings brought by Mr M. C., Verfassungsbeschwerdeführer (appellant), interested parties: Ministerium für Soziales, Gesundheit, Frauen und Familie (Ministry of Social Affairs, Health, Women and Family), represented by Ms Monika Bachmann, Minister, Franz-Josef-Röder-Strasse 23, 66119 Saar-Brücken, Germany, represented by M. C., Rechtsanwalt, with an address for service in Luxembourg at the office of Carlos M., lawyer, concerning the order of the Oberverwaltungsgericht des Saarlandes (Higher Administrative Court of Saarland) of 13 December 2003 in Case T-149/02 05.2020 - 2 B 175/20 - the Constitutional Court of Saarland, assisted by the President of the Constitutional Court, Prof. Dr Roland Rixecker, the Vice-President of the Constitutional Court, Prof. Dr Rudolf Wendt, the Constitutional Judge, Prof. Dr Roberto Bartone 
2of Constitutional Judge Thomas Caspar of Constitutional Judge Stefan Crauser of Constitutional Judge Daniela Flasche of Constitutional Judge Michaela Müller of Constitutional Judge RenateTrenz on 28 August 2020: Article 2 § 3 of the Ordinance of 21 August 2020 amending Ordinances on infection control measures to combat the corona pandemic (Official Gazette 2020 p. 768) is incompatible with Article 2 sentence 2 of the Constitution of Saarland.  The provision - and a provision which repeats the provision of Art. 2 § 3 of the Ordinance on Combating the Corona Pandemic of 21 August 2020 (Official Gazette 2020 p. 768) in the same wording or in the same spirit - shall apply with the following proviso until a new regulation is passed by the Saarland state parliament - provided that the federal legislator does not in the meantime pass a regulation on data collection for contact tracing purposes - at the latest until 30 August 2020 (Official Gazette 2020 p. 768). Personal data collected on the basis of these provisions are to be surrendered to the health authorities by the authorities collecting the data - unless there is imminent danger - exclusively on the basis of a court decision for the purpose of preventing the spread of the infection - unless surrender should be permissible on the basis of federal law - upon justified request. The person concerned shall be informed of the request for surrender. He must be granted a prior hearing.  
3 In cases of surrender in the event of imminent danger, the person concerned must be informed immediately afterwards. Otherwise, the constitutional complaint is dismissed. The Saarland shall reimburse the complainant one quarter of his expenses. The value of the object is set at € 20,000. This decision is to be published in the Official Journal of the Saarland. 

grounds: 

I. 1 In his constitutional complaint lodged on 5 June 2020 - and the associated application for a temporary injunction - the complainant, a lawyer, challenges an order of the Higher Administrative Court of the Saarland of 13 May 2020 - 2 B 175/20 - which rejected his application for suspension of the implementation of provisions of earlier orders of the Government of the Saarland to combat the Corona Pandemic. In the administrative court proceedings, the complainant first applied - before the administrative court - for an order that an action still to be brought by him against a general ruling of the Government of the Saarland to combat the corona pandemic of 18 March 2020 have suspensive effect. The Administrative Court of the Saarland interpreted this application as an application for suspension of the execution of various provisions of the Ordinance of the Government of the Saarland on Combating the Corona Pandemic of 30 March 2020 (Official Gazette 2020, 196), which supersedes this general ruling, and the 
4proceedings were referred to the Higher Administrative Court of the Saarland. The Higher Administrative Court of the Saarland interpreted the application - most recently after hearing the complainant - as a request for non-enforcement of provisions - § 2, § 3, § 3a, § 4, § 7 - of the Ordinance on Combating Corona Pandemic of 2 May 2020 (Official Gazette 2020, 284). This regulation regulated in its § 2 the obligation to wear a mouth and nose cover. It corresponded to the currently applicable § 2 of Art. 2 of the Ordinance on the Amendment of Ordinances on the Control of Corona Pandemic Infections of 21.08.2020 (Official Gazette p. 768) (CP-VO). Furthermore, it contained provisions on the restriction of contacts in public and private areas (§§ 3, 3a, 4) and on bans on operation and closures of facilities (§ 7), but not always a requirement to ensure contact tracing. In the proceedings before the Higher Administrative Court of the Saarland, the complainant complained of the infringement of his fundamental rights of general freedom of action, the right of personality, the integrity of his person and the freedom to call. The infringements of fundamental rights lack a constitutionally sound legal basis. The prohibitions of contact deprived him of the possibility of social interaction and distraction to a large extent. The obligation to wear a mouth-nose cover is harmful rather than beneficial; there is no evidence whatsoever of any effect in preventing the spread of the pandemic and protection against infection. Nor does the Saarland Government pursue a consistent concept of protection because it treats the coming together of large numbers of people in different situations differently without epidemiologically viable reasons. 2 The provisions of the Ordinance of 2 May 2020 (Official Gazette p. 284), the core of which was originally challenged by the complainant, are now contained - in parts amended - in Article 2 § 2 and § 6 of the Ordinance of 8 August 2020 (Official Gazette p. 738) and - in the meantime - of 21 August 2020 (Official Gazette p. 768) (CP-VO), amending Ordinances under infection law to combat the corona pandemic. 
5Art. 2 § 6 CP-VO regulates the prohibition of gatherings of more than 10 persons and quantitatively different contact restrictions for meetings, events and assemblies. Art. 2 § 2 CP-VO regulates the obligation to wear a covering for the mouth and nose. According to this provision, a mouth-nose covering "shall" be worn in public places; it must be worn when using public transport, at markets and in shops, when receiving body-related services and in health care facilities (Art. 2 § 2 para. 1, para. 2 CP-VO). Violations of the obligation by those in a position of responsibility are not subject to a fine. However, responsible operators of some of the facilities affected by the obligation may be sanctioned if they fail to enforce the obligation. Art. 2 § 3 CP-VO regulates contact tracing. According to this provision, those responsible for restaurants and other catering establishments, cultural facilities and events, indoor playgrounds, church services and funerals, sports and other events referred to in Art. 2 § 6 CP-VO, hotels and other accommodation providers as well as prostitution businesses are obliged to record the first name and surname, place of residence and accessibility as well as the time of arrival of a representative of each of the households present, to keep the information and to hand it over to the health authorities on request. It is also provided that these data will be deleted within one month.    (3) The Higher Administrative Court of the Saarland rejected the application for annulment of the provisions of the regulation on combating corona pan-demia. In support of its application, the Court stated that the decision was not "urgent" in order to avoid serious disadvantages or for other important reasons. The rules on the obligation to wear a mouth-nose cover are - for the time being - based on a sufficient 
6authorisation in §§ 28, 32 IfSG. These provisions of the IfSG also permit protective measures whose affected persons are "non-infectious", i.e. not infectious themselves. In view of the dynamics of the infection, the order to wear a mouth and nose cover is a suitable, necessary and proportionate accompanying measure to combat the pandemic and its possible effects on the burden on the health system and the health of everyone. In a situation characterised by uncertainties and constantly changing knowledge, the legislator should also be given scope to assess the chosen measure at the current stage of development. This also applies to the contact restrictions of - at that time - § 3 CP-VO. (4) The complainant objects to this in his constitutional complaint, with which he combines an application for a temporary injunction. First, he alleges infringement of his right to justice and of the fundamental right to an arbitrary decision.  Although the Higher Administrative Court indicates that it has doubts as to whether the challenged provisions do not require parliamentary authorisation, it ignores these concerns. The provisions of the IfSG do not permit action against "non-disturbers". Furthermore, the Higher Administrative Court had completely ignored its submissions - including its submissions of evidence - on the unsuitability and ineffectiveness, indeed harmfulness, of the obligation to wear a mouth and nose cover. In addition to his general freedom of action - as he stated in the grounds of his application to the Constitutional Court for the non-execution of Article 2 § 3 of the Regulation - the regulations on the restriction and follow-up of contact also affect his "right to informational self-determination". 
5. The party concerned considers the constitutional complaint to be inadmissible, but in any case unfounded. The complainant could reasonably be expected to seek redress for his fundamental rights complaint in the proceedings before the Higher Administrative Court on the substance of the case. For there the actual, above all virological and epidemiological bases of the course taken by the legislature could be clarified. Moreover, the constitutional complaint is also unfounded - for the correct reasons of the challenged decision. The obligation to wear a mouth-nose cover was - not least in view of the legislature's scope for assessment - constitutional. Authoritative scientists have confirmed its usefulness, as has the WHO, which has since abandoned its originally critical position. To the extent that the complainant contested the provisions on contact tracing, he had not lodged any constitutional complaint. Article 2(3) of the CP-VO finds a sufficient legal basis in Paragraph 32 of the IfSG in conjunction with Paragraph 32 of the CP-VO. § Paragraph 28 of the IfSG. The provision is a sufficient legal basis within the meaning of the DSGVO - in particular Paragraph 6(1)(c), (d) and (e) of the DSGVO - for the collection and processing of contact data. No parliamentary authorisation is required.  6 The Constitutional Court has given the Independent Data Protection Centre of the Saarland - State Commissioner for Data Protection and Freedom of Information - the opportunity to submit its comments. The Land Commissioner stated, with transmission of a discussion among the data protection commissioners of the Federal Government and the Länder In view of the urgency of the regulations, the data protection commissioners had limited themselves to calling for a data protection-friendly arrangement for the collection and transmission of personal information for contact tracing purposes. There was no uniform opinion of the data protection officers on the question of sufficient legal authorisation for the collection and processing of contact data. However, there would be 
8Doubt whether § 32 IfSG in conjunction § 28 IfSG contains a constitutionally sufficient power to issue regulations because the content, purpose and extent of the power to legislate with regard to the collection of contact data cannot be inferred from these provisions. The current wording of Article 2(3) of the CP Regulation is also inadequate, since it does not contain sufficiently clear rules on the handling of the data, in particular as regards their retrieval by the health authorities. 7 The constitutional complaint procedure was suspended from its beginning until 26 July 2020 pursuant to Article 61 (4) of the Constitutional Act because the complainant had lodged a constitutional complaint with the Federal Constitutional Court and withdrawn it in a written statement of 26 July 2020 sent to the Federal Constitutional Court.  Subsequently, on 12 August 2020, he extended his constitutional complaint to a complaint of unconstitutionality of Article 2, section 2, subsection 2, nos. 1 to 4, section 3, subsection 1, nos. 1 to 7 and section 6 of the CP-VO (Ordinance of 24 July 2020, Official Journal 678). 8. Following the replacement of the Ordinance of 8 August 2020 by the Ordinance of 21 August 2020, the complainant stated that his constitutional complaint was now directed against the provisions of this currently applicable standard which are identical in content. II. A. The constitutional complaint is only partially admissible. 1 The constitutional review procedure is opened pursuant to § 9 no. 13 of the Constitutional Act. 2 The complainant may lodge a complaint as a holder of fundamental rights. 
3. the constitutional complaint is - directly - about the challenged decision of the Saarland Higher Administrative Court of 13 May 2020, which is an act of sovereign authority, on the refusal of interim legal protection through the non-execution of Article 2 § 2 Nos. 1 to 4, § 3 para. 1 Nos. 1 to 7 and § 6 of the Ordinance of 2 May 2020. At the same time, however, the complainant indirectly objects - as can be seen from a prudent interpretation of his action, taking into account the amendments to the Ordinances, including the change in the numerical designation of their individual provisions in the course of the proceedings conducted by the complainant - to the provisions of Article 2 of the Ordinance of 8 August 2020 amending Ordinances on infection control measures to combat the corona pandemic (Official Gazette p. 738), some of which are new and some of which are repetitive. 4 The complainant, who, according to the interpretation of his request for interim relief against the refusal to grant interim relief - namely the non-implementation of Article 2 § 2 Nos. 1 to 4, § 3 (1) Nos. 1 to 7 and § 6 of the Ordinance in the version of 2 May 2020 (Official Gazette p. 738) - is not in a position to rely on the provisions of Article 2 of the Ordinance. 2020 - as well as against the provisions of the applicable CP-VO itself, has plausibly claimed - unless his constitutional complaint is inadmissible for lack of sufficient grounds - that his fundamental rights guaranteed by the Constitution of the Saarland, namely general freedom of action (Article 2 sentence 1 of the Basic Constitutional Law), data protection (Article 2 sentence 2 of the Basic Constitutional Law) and his right of personality (Article 2 sentence 1 in conjunction with Article 1 sentence 1 of the Basic Constitutional Law) have been violated.  Such a violation cannot be ruled out If he claims that the Higher Administrative Court of the Saarland has violated his right to justice, the fundamental right to effective legal protection and the prohibition of arbitrariness, he is not entitled to file a complaint. The question whether the measures which he 
10 contested encroachments on fundamental rights required a parliamentary legal basis, the Higher Administrative Court was allowed to leave open the procedure for interim relief in view of the applicable standards of review. For the same reason, it did not have to pursue the complainant's submissions of evidence regarding the effect of a mouth-nose cover. 5) The legal remedy of interim relief has been exhausted.  6) The constitutional complaint does not conflict with the principle of subsidiarity either.  Contrary to the view of the parties involved, the constitutional complaint also extends to Article 2 § 3 of the CP Regulation in the currently applicable version of the provision. In his constitutional complaint, the complainant himself only attacked the provisions on contact restrictions. However, in his written statement of 11 August 2020, received on 12 August 2020, he extended his constitutional complaint to newly worded standards and raised further fundamental rights complaints. Moreover, the following applies: Completely irrespective of whether the fundamental rights complaint could be remedied by a decision of the Higher Administrative Court of the Saarland on the application for review of the standards - which the complainant has not yet filed, as far as can be seen - the complainant is affected by the refusal of interim relief himself - "day by day" so to speak - without this being affected by a subsequent decision on 
11 a request for review of a standard could be reversed. The - alleged - infringement of its fundamental rights is therefore already based on the rejection of interim relief under Section 47(6) VwGO. However, constitutional legal protection is in principle also denied if a complainant has not made the fundamental right he claims to have violated the subject of the examination in the specialised court proceedings. This applies to the "right to informational self-determination", to which he only referred in the constitutional court proceedings with regard to Article 2 § 3 CP-VO.  Initially, the regulations on contact restrictions and closures of businesses under the then regulations were already the subject of the proceedings before the Higher Administrative Court of the Saarland in their entirety from the point of view of the infringement of general freedom of action. Since the Higher Administrative Court of the Saarland, in the contested decision, left aside the complainant's complaint from the outset that the provisions of the various ordinances lacked a viable formal legal basis in interim legal protection proceedings - understandably and in accordance with the case-law of other Higher Administrative Courts - despite obviously considerable reservations, the complainant cannot reasonably be expected to seek interim legal protection under Paragraph 47(1) again solely on the grounds of the lack of parliamentary authorisation. 6 VwGO.  However, the Higher Administrative Court of the Saarland was unable to deal with the requirement of contact tracing in view of the legal situation existing at the time of its decision.  Even in this respect, however, the complainant cannot be expected to apply again for legal protection - at least for interim relief - in the first instance.  The requirements of substantive subsidiarity may be waived if the constitutional court decision of 
12dependent on no further factual and legal clarification and if it is of general significance or if the complainant were to suffer a serious and irreversible disadvantage, he would first be referred to the specialised courts (BVerfGE 79, 275, 279; 86, 14, 22; Lenz/Hansel, § 90 marginal no. 492). 
This is the case. The constitutionality of Article 2 § 3 CP-VO does not require any clarification of factual or legal circumstances determining its interpretation and application. Their examination may provide clarity in a large number of similar cases beyond the individual case - also in view of current discussions on the scope of access to contact data. 6 The constitutional complaint is inadmissible to the extent that it challenges the denial of urgent legal protection against Art. 2 § 6 CP-VO - and thus the constitutionality of this provision itself. In this respect, it lacks the necessary justification (§ 16.1 sentence 2 of the Constitutional Act). However, this does not result from the fact that the complainant refers primarily to fundamental rights of the Basic Law, which are not subject to review by the Constitutional Court (see, however, VerfGH Beschl. v. 10 January 2008 Lv 4/07). For it follows from a summary of his observations on the constitutional complaint and on the application for a temporary injunction that he essentially wishes to censure the infringement of fundamental rights of the constitution of the Saarland. The statement of grounds for a constitutional complaint which is directed against a judicial decision may not, however, be satisfied with a repetition of the content of the challenged judicial decisions and a general critique of it. Rather, it must deal with the constitutional assessment of the facts and demonstrate in a sufficiently substantiated manner that a violation of fundamental rights appears possible (BVerfG Order of 10 September 2019 1 BvR 1905/14 with further references). The simple assertion of a 
13 No infringement of fundamental rights. Rather, there is a need for a specific argumentative debate on the question of the reasons for which the fundamental rights requirements are to be infringed.  Art. 2 § 6 CP-VO contains, in addition to the general prohibition of "gatherings" of more than 10 persons without a fine, provisions on events, meetings and assemblies. They deviate considerably from § 3a of the regulation applicable from 2 May 2020, which the complainant made the original object of his request for urgent legal protection before the Higher Administrative Court. In this respect, the following applies to the procedure of abstract review of a statute: If the content of the statute changes during the procedure, the provision nevertheless remains subject to review by the constitutional court if the change is not substantial or if the applicant extends his request for review to the new version (BVerfGE 110, 33 (45) = NJW 2004, 2213; BVerfGE 6, 104 (110) = NJW 1957, 379; BeckOK-BVerfGG/Karpenstein, § 72 marginal no. 37; Hörnig/Wolf in HK-BVerfGG § 72 marginal 6). Nothing else can apply - albeit in compliance with the principle of subsidiarity - if the essential subject of a constitutional complaint is the validity of a norm. Otherwise, it would not be difficult for the legislator to continue to deprive the legal protection possibilities affected by the content of a legal provision of its substance by making even slight changes to a legal provision or, as in the present case, by timing the temporal validity of ordinances - as such, quite understandable and compatible with fundamental rights. However, this does not exempt a complainant from the need to give reasons relating to changed regulations. In view of the large number of different "meetings" of people covered by Article 2 § 6 of the CP Regulation, it is therefore not sufficient for the complainant to complain that the legislator's concept of protection is inconsistent. On the contrary, he should have put forward reasons for this which are related to the various fundamental rights affected by Article 2 § 6 of the CP Regulation - general freedom of action, freedom of belief and religion and freedom of assembly -, the intensity of the interference and 
14 the weight of the protection interest pursued in each case. This has not been done. Nor has the complainant provided any further details of a - not unimaginable - violation of the principle of equality, which could, for example, raise the question of why participation in funerals is more severely restricted than participation in a preceding funeral service. Insofar as the complainant deals with the obligation to follow up contacts at such meetings and events, his constitutional complaint is sufficiently well-founded, but refers to Art. 2 § 3 CP-VO.
7 The constitutional complaint has been lodged in due time - also to the extent that it now - under 12 August 2020 - complains of a violation of Art. 2 § 2, § 3 and § 6 CP-VO. However, a constitutional complaint against a judicial decision pursuant to § 56 (1) of the Constitutional Act must be lodged within a period of one month from the notification or announcement of the challenged decision. If the deadline for lodging the constitutional complaint was between 14 and 21 May from the date of notification or announcement of the challenged decision of the Higher Administrative Court - this deadline could also have expired for the complaints lodged on 12 August 2020 (cf. Lenz/Hansel, BVerfGG § 93 paras 11 to 13, loc. cit. BVerfGE 124, 235, 242). However, this is not the point. Since the constitutional dispute proceedings had been suspended by law (§ 61.4 of the Constitutional Act), the one-month period did not (re)begin until 26 July 2020. It is true that the Constitutional Act itself - just as little as the BVerfGG - does not regulate the legal effects of the suspension of the constitutional complaint procedure on the course of time limits.  Therefore, general principles of procedural law must be applied. They provide in § 249.1 of the Code of Civil Procedure that a statutory period of time shall once again run in full after the end of the suspension of the proceedings. 
15 The extension of the constitutional complaint to the complaints now being pursued is therefore within the prescribed period. B. 1. a. The order in § 2.2 of the CP-VO to wear a mouth and nose cover when using local public transport, in certain parts of public space and in medical treatment facilities affects the complainant's general freedom of action under Article 2 sentence 1 of the SVerf. Although the provision is not subject to a fine (Article 2 § 15 CP-VO), it contains an obligation under infection protection law, compliance with which can be enforced by regulatory means and which deprives the complainant of free and unencumbered participation in numerous goods and services. By requiring the covering of part of his face and - even if only minimal - changes to his voice, it also encroaches on the scope of protection of the right to privacy guaranteed by Article 2 sentence 1 in conjunction with Article 2 sentence 1 of the Basic Law. Art. 1 sentence 1 of the Basic Constitutional Law. b. The restrictions of fundamental rights in Article 2 § 2 CP-VO are based on a - to that extent - constitutional law. The legal basis of Art. 2 § 2 CP-VO is §§ 28, 32 IfSG. They allow the legislator to take the necessary protective measures in cases where a sick person, suspected or infected person or a person who has been eliminated - of a notifiable pathogen such as the Sars-CoV-2 virus - is identified, insofar and for as long as this is necessary to prevent the spread of transmissible diseases. Contrary to the opinion of the complainant, the Higher Administrative Court of the Saarland rightly assumed that the protective measures permitted by §§ 28, 32 IfSG should also be applicable against "non-disturbing persons", 
16also against even those who are not ill, suspected or infected and those who are eliminated. The very wording of the law does not limit the powers of intervention to a potentially "dangerous" group of persons. The system of § 28 para. 1 IfSG shows (as do other provisions of the IfSG, such as § 33 IfSG) that the protective measures taken, for example at events or in institutions, necessarily include persons who are not themselves ill or suspected of being ill or infected. This is also in line with the purpose of the standards, which are intended to prevent the further spread of transmissible diseases to previously uninfected persons. Measures under infection protection law must therefore - even typically - cover "non-infected persons" (as Lindner convincingly states in Schmidt, Covid-19, § 16 marginal no. 60 with further details). Whether the power of § 32 IfSG to issue ordinances pursuant to Art. 80 para. 1 GG authorises all measures taken by the Saarland's legislature (and those of other federal states), or whether regulations which, over and above a temporary restriction of fundamental rights of a particular rank - such as freedom of belief and religion, freedom of assembly, freedom of movement, freedom of movement or freedom of occupation - allow fundamental rights to be encroached upon with weight for months on end, require a formal - parliamentary - statutory regulation, is open to question (cf. in this respect, the decisions of the Constitutional Court of Brandenburg 3 June 2020 VfGBbg 9/20eA BeckRS 2020, 11248 marginal no. 41; VGH Mannheim 5 June 2020 1 p. 1623/20 BeckRS 2020, 11786 marginal no. 35, playfully addressing the question). In this respect, the regulation is not permissibly challenged. In view of the principle of the rule of law and the requirement of democracy, the reservation of the law requires that the legislator has to take all essential decisions in fundamental normative areas itself and may not leave them to the action and decision-making power of the executive. The obligation to regulate by parliament does not only concern the question of whether a certain subject matter must be regulated by law at all, but also the extent to which these regulations must go into detail. This depends on the respective subject area and the nature of the subject matter concerned 
17(see only inter alia BVerfG, 27 November 1990 - 1 BvR 402/87 -, juris, recital 39; 24 September 2003 - 2 BvR 1436/02 -, juris, recital 67 et seq. N.). Laws which empower to issue statutory orders and statutes may also satisfy the requirements of the reservation of the right to legislate. However, the essential decisions must be taken by the parliamentary legislator itself (cf. Münster Higher Administrative Court on the nationwide operating ban on retail outlets CoVuR 2020, 423). The complainant - in so far as he challenges the obligation to wear a mouth-nose covering - objects to a comparatively minor restriction of his general freedom of action under fundamental rights and his right of personality, which is temporary in the course of the day and does not require any significant effort and which the Higher Administrative Court rightly described as "inconvenience". The encroachment on a fundamental right thus concerns a burden limited in time to a small fraction of a day in certain situations which do not even necessarily occur on an everyday basis. The material, form and price of an "everyday mask" can be determined by each person concerned. The same applies to the duration of the exposure. The fundamental right complaint is therefore not of such weight that its imposition would be so "essential" for the exercise of general freedom of action and personal rights that it would require detailed formal legal regulation. c. The Higher Administrative Court of the Saarland has stated unreservedly correctly and with a statement of reasons which carefully and accurately takes account of the constitutional requirements, that the encroachment on the fundamental right of general freedom of action and the right of personality associated with the "duty to wear a mask" is proportionate, since the regulation is limited in time, it does not extend to the private sphere and only imposes minor burdens on the wearer in a few short-term everyday situations.  
18aa. The obligation to wear a mouth-nose cover pursues a legitimate aim, namely the protection of third parties from the possible viral load of the obligated person when breathing out, sneezing or coughing, and the protection of society as a whole from the consequences of an expansion of the pandemic. Insofar as the complainant appears to have doubts as to whether Sars-Cov-2 is a serious threat to public health at all, which is not comparable to the annual waves of virus infection, the following applies: On the one hand, it is constitutionally completely irrelevant whether there are also other dangers which pose a lasting threat to public health and which lead to less burdensome state measures or have led to them in the past. Obligations of the state to protect against a certain health hazard do not cease to apply if at some point in time it was unable to comply with them in respect of other or even all health hazards for reasons of fact or law, or cannot comply with them all at present.  It is also subject to the fundamental prerogative of the state bodies responsible for this under the constitution - the parliament and the government - to decide which threat is of a special weight requiring special measures. Apart from this, however, it is obvious that, if one takes a reasonable view of global events, Sars-Cov-2 is not comparable with other viral campaigns due to the lack of instruments for prevention, alleviation or even cure. The commitment represents a fundamentally appropriate measure to achieve this goal. Although the complainant argues, citing sources whose scientific reliability has not been proven, that the wearing of a mouth and nose cover is unsuitable for reducing the risk of infection, it may even be detrimental to his own health. 
19 Insofar as scepticism about the order to wear a mouth-and-nose covering could be inferred from individual fundamentally valid voices - for example that of the virological advisor to the government of the Kingdom of Sweden, Tegnell (cf. various reports in the media of 9/10 August 2020), a closer look at the actual explanations is required: It goes without saying that wearing a mouth-nose-cover is not "the solution to the problem" (Tegnell), and that a false sense of security must be counteracted simply by wearing a mask. However, this also applies to hand hygiene, which the complainant himself declared to be important. The only decisive factor is whether such a measure can make a - possibly small - contribution to containing or preventing infectious devastation. In so far as the complainant claims that the material of the mouth-nose-coverings may itself contain harmful contents, that the mask itself is harmful if used improperly over a long period of time and that it is counterproductive if enriched with harmful substances, his arguments are not supported from the outset.  It is up to each person to procure suitable mouth-nose-coverings and use them properly. Art. 2 § 2 CP-VO does not prescribe any specific material for the mask; detailed instructions, accessible to everyone, explain correct use. In so far as specific health reasons urgently advise the complainant, from an ob-jective medical - to be certified - point of view, to refrain from even temporary wearing of a mouth-nose cover, he is in any case released from the obligation under Art. 2 § 2 CP-VO. Moreover, the - serious - scientific community is very largely of the opinion that although the wearing of a mouth-nose-cover does not prevent infections with corona viruses and direct self-protection has not been proven, it is nevertheless suitable for containing the spread of the pandemic, so that the institutions of the state and society, especially the health system, are able to cope with it.
20tem, to protect others and thus indirectly also the wearer himself, thus helping to prevent the need for future restrictions on fundamental rights. This follows first of all from statements by the Robert Koch Institute as the national authority established by the legislator for the prevention of transmissible diseases and for the early detection and prevention of the further spread of infections (§ 4 para. 1 IfSchG). In a statement of 15 July (https://www.rki.de/SharedDocs/FAQ/NCOV2019/FAQ_Mund_Nasen_Schutz.html), it is stated: "The Robert Koch Institute (RKI) recommends the general wearing of a mouth-nail cover (MNB) in certain situations in public spaces as a further element in order to protect risk groups and to reduce the pressure of infection and thus the speed of spread of COVID-19 in the population. This recommendation is based on studies showing that a certain proportion of SARS-CoV-2 transmissions go unnoticed, i.e. at a time before the first signs of the disease appear.   A partial reduction of unnoticed transmission of infectious droplets by carrying MSNB could contribute to a further slowing down of the spread at population level.  This concerns transmission in public places where several people meet and stay for a longer period of time (e.g. workplace) or where the physical distance of at least 1.5 m cannot always be maintained (e.g. shopping situation, public transport). The wearing of MNBs in public spaces can be effective in reducing transmissions, especially if as many people as possible participate.  Wearing an MNB helps to protect other people from fine droplets and particles that are ejected, e.g. when speaking, coughing or sneezing (foreign protection). The first scientific evidence of this protection by MNBs has now become available". This corresponds to the second ad-hoc statement of the National Academy Leo-poldina of 03.04.2020 (available at www.leopoldina.org Publications), in which it is stated 
21"1.1.mouth-nose protection reduces the transmission of viruses, above all by re-inducing the droplet infection. 2 Since a large number of undetected patients move around in public places without symptoms, mouth-nose protection protects other people, thus reducing the spread of the infection and indirectly lowering the risk of self-infection. Mouth and nose protectors are also used for self-protection to a limited extent. A gradual relaxation of restrictions should therefore be accompanied by the widespread use of mouth-nose protection. This applies to the entire public space, including in businesses, educational institutions and in local and long-distance public transport...". This also corresponds to international scientific findings and recommendations. The centres of disease control and prevention of the United States Supreme Health Authority have pointed this out - with numerous other references to scientific publications and research results (https://www.cdc.gov/coronavirus/2019-ncov/prevent-get-ting-sick/cloth-face-cover-guidance.html - with numerous other references from the scientific literature under "recent studies"): In an editorial published today in the Journal of the American Medical Association (JAMA), CDC reviewed the latest science and affirms that cloth face coverings are a critical tool in the fight against COVID-19 that could reduce the spread of the disease, especially when used universally within communities. There is increasing evidence that cloth face coverings help prevent people who have COVID-19 from spreading the virus to others. "We are not defenseless against COVID-19," said CDC Director Dr. Robert R. Redfield. "Cloth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus - especially when used universally within a community setting. All Americans have a responsibility to protect themselves, their families, and their communities.    (https://www.cdc.gov/media/releases/2020/p0714-americans-to-wear-masks.html)  
22In view of these comments, the regulation affected by Art. 2 § 2 para. 2 CP-VO - the suitability of which is in any case subject to the government's prerogative of assessment, which can only be controlled to a limited extent by the courts - is a suitable measure to combat the spread of the pandemic and the consideration owed to each other in social coexistence. 
cc. The obligation to wear a mouth-nose cover is also a necessary means of combating the spread of the pandemic. An equally effective milder means is not evident - taking into account the government's prerogative of assessment in this respect. In view of the conflicting interests, the imposition of the duty is also appropriate. The fundamental right of appeal is low. The wearing of a mouth-nose cover is not suitable to decisively deter the person obliged from exercising fundamental freedoms. The obligation is strictly limited in time, requires little effort and can essentially be regarded as annoying and unpleasant, but does not lead to significant restrictions on freedom of movement and development. On the other hand, it contributes to averting significant threats to the life, health and freedom of all as well as the functioning of state and social institutions. 2 Insofar as the complainant objects, with still sufficient justification, to the obligation to guarantee contact tracing under Art. 2 § 3 CP-VO, the following applies: The norm is not compatible with Art. 2 sentence 2 of the constitution of the Saarland. 
23a. Admittedly, the provisions on contact restrictions, which also include those on contact tracing, do not lead, as the Higher Administrative Court has quite rightly recognised, to an (indirect) encroachment on physical and psychological integrity in the sense of health well-being and thus not to an encroachment on the fundamental right to physical integrity - not expressly guaranteed by the constitution of the Saarland but arising from Article 1, first and second sentences of the Basic Constitutional Law. For the constitution protects the physical - physical as well as psychological - integrity. It does not protect the general well-being in the sense of happiness, satisfaction and quality of life. However, the provision does affect the scope of protection of the fundamental right to data protection under Article 2 sentence 2 of the Basic Constitutional Law. The fundamental right guarantees the individual's right to decide for himself or herself whether, when, to what extent and to whom he or she discloses his or her personal data or permits their processing, because individual self-determination as a guarantee of the right to free development of the personality, which is also based on the guarantee of human dignity, presupposes that the individual has freedom of decision on the attribution of behaviour and events to his or her person, not only under the conditions of modern information processing. Anyone who is not able to oversee with sufficient certainty which information concerning him/her will become known in certain areas of his/her social environment and who is not able to assess the knowledge of possible communication partners to a certain extent, can be considerably inhibited in his/her freedom to plan or decide on the basis of his/her own self-determination. At the same time, the fundamental right is intended to counteract any intimidation effects (Constitutional Court, judgement of 21 January 2020 rev. 15/19 with further references; cf. above all BVerfGE 115, 320 (341 f.); BVerfGE 113, 29 (46); basic BVerfGE 65, 1 (42 f.)). The obligation to state name, address, availability (by telephone or other means), and the obligation to be available for the purpose of contact tracing 
24Personal data is collected and processed at the time of visiting the named facilities and events. b. However, the regulation does not oblige the complainant - and other holders of fundamental rights - to do so themselves, and thus does not directly interfere with the fundamental right to data protection. However, the requirement that the persons responsible referred to in Art. 2 § 3 (1) CP-VO to "obligingly guarantee" contact tracing by collecting and storing personal data for a limited period of time may indirectly prevent holders of fundamental rights from visiting these facilities and events - above all restaurants, hotels, church services, sporting and cultural events. An encroachment relevant to fundamental rights must also be assumed if regulations are able to indirectly influence the behaviour of a person entitled to fundamental rights in such a way that he or she can be deterred from exercising the fundamental right, if the "influencing effect" of the regulation (Kloepfer, Verfassungsrecht, Volume II, § 51 marginal no. 27) is thus the functional equivalent of an imperative intervention (BVerfGE 116, 202/222 with further references; cf. general Jarass/Pieroth, GG, 16th ed. 2020, prev. before Article 1 marginal 27 et seq.) This applies to Art. 2 § 3 CP-VO. This provision affects the fundamental rights of general freedom of action (Art. 2 sentence 1 of the Basic Constitutional Law) and, above all, the protection of personal data (Art. 2 sentence 2 of the Basic Constitutional Law) in a way that amounts to a final encroachment. The legislator uses the responsible persons named in Art. 2 § 3 CP-VO as tools to meet the - legitimate - purpose of combating the pandemic by identifying possible infection chains and courses of infection and warning persons who may be affected. It wants to record - in an understandable and comprehensible manner - the personal contact data of visitors to facilities and events in order to warn them and to be able to take measures for their protection and the protection of third parties. Those responsible must collect and store the information of the persons concerned and hand it over to the health authorities on request if they want to 
25 avoid a fine (or even interference with commercial law). As a result, the persons concerned are in fact only able to refrain from visiting - for example - restaurants or church services or to disclose precisely this visit in relation to the person and time and not only to provide the name, address and (telephone or electronic) availability to the person responsible, but also to make this data available to the state. The collection of personal information has a considerable weight.  Irrespective of the purpose which can only be deduced by interpretation (the regulation does not explicitly state the reasons which may entitle the health authorities to demand surrender of the data), those entitled to fundamental rights are obliged not only to disclose their contact data in the area of visiting restaurants, but also to document when they attended - for example - which church services and which other events and meetings they attended at a certain time.  According to current practice, this not only means that those responsible and health authorities can have access to such data. The lack of a normative structure for the collection of contact data makes it much more possible - especially in the area of gastronomy - that subsequent guests can recognise and remember who has visited the company before them and how they can be reached via telephone number, e-mail or address. Art. 2 § 3 of the CP-VO, in its current open form, thus indirectly forces private third parties to disclose their own contact data and conduct, without the slightest indication of a purpose under infection protection law.  Art. 2 § 3 (3) CP-VO thus also contains a lower level of protection which the state must grant to affected persons vis-à-vis third parties if it has a 
26contact data collection. This obligation to "data protection" also includes normative precautions to keep the disclosure of personal information that may be required under infection protection law secret from the eyes of third parties. This also contributes to the weight of the indirect intervention. Furthermore, it is also important to note that the blanket reference in Art. 2 § 3 CP-VO to "events" under Art. 2 § 6 CP-VO is unclear and does not make it clear to those responsible or to those affected by fundamental rights whether contact tracing is also meant at meetings (which can also be included under the term "event" referred to in Art. 2 § 3 CP-VO) or when visiting legislative bodies or courts. According to Art. 2 § 6 CP-VO, the latter are excluded from the scope of this provision only to the extent that it concerns their "right to organise themselves". This, however, initially only means that their deliberations, negotiations and decisions are themselves covered by the regulatory area which is not accessible to the executive by regulation anyway.  A government is not entitled to regulate (even negatively) how a parliament organises itself by regulation.  It is at least unclear whether the "public" is also exempted from the regulation - i.e. whether there are no quantitative limits and no contact details are collected - which may be the starting point for the practice of the courts in particular. This in turn could lead to a situation where parliaments and courts would be obliged to collect contact details of the participating public. In this way, the public could - de facto - be affected by negotiations of statutory bodies or courts, and thus a central element of a transparent liberal democracy and a constitutional state. This may not be meant or intended, but the wording and possibly also the purpose of the provision do not exclude it.  Nothing else applies to the exception for certain political events, which is regulated in Art. 2 § 6 CP-VO. It is true that Art. 2 § 6 (6) sentence 2 CP-VO stipulates that 
27 the regulations of Art. 2 § 6 CP-VO exclude the "activity of parties and groups of voters". However, this does not change the fact that these are "events" within the meaning of Art. 2 § 3 CP-VO, which refers to Art. 2 § 6 CP-VO in a general sense. On the other hand, political and ideological events of a religious nature are conceivable which do not constitute an "activity" of a political party or group of voters. The obligation to provide data can therefore also result in citizens staying away from such events. This also underlines the functional equivalence of the provision to an imperative intervention, irrespective of why only political parties and groups of voters are excluded from the regime of Art. 2 § 3 and § 6 CP-VO in the political sphere. In any case, the provision also harbours the danger - even if this may certainly not be the intention - that profiles of the movements and personalities of holders of fundamental rights can be drawn up without procedural regulations being made at the same time to prevent abuse. The collection and tracing of contact data makes it possible, as difficult as it may be to find out where and when the persons concerned have been, if and how often they have visited restaurants and bars, if and how often they have attended church services and which social or political meetings they have attended.     There is therefore no question that Art. 2 § 3 CP-VO thus encroaches on the fundamental rights of citizens. c. The interference is not justified - on the basis of the current regulation. It lacks a viable legal basis. aa. Any encroachment on the fundamental right to protection of personal data requires a generally formal, parliamentary (cf. most recently VerfGH 21.01.2020 
28Lv 15/19 under B 3 c) Authorisation, which regulates the personal data to be collected as such, the reason and the specific purpose of the collection, the type and duration of the storage as well as its deletion in a clear and defined manner and observes the principle of proportionality (see most recently BVerfG 27.05.2020 1 BvR 1873/13 and others; BVerfGE 65, 1ff (44 ff., 151 ff.).  This alone is missing.

bb. the IfSG does not contain any such authorisation. The power to "take the necessary protective measures" resulting from § 28, § 32 IfSG alone is too vague - in any case for the general-abstract encroachment on the right to informational self-determination. Art. 2 § 3 CP-VO is - apart from the fact that the provision contains only rudimentary regulations on the purpose of data collection and the handling of data - only executive law. cc. An exception to the formal requirements for an encroachment on the fundamental right to data protection is not required because they have been developed on the basis of the risks of automated data processing. The development of digitisation does indeed show a particular risk potential of encroachment on the fundamental right to data protection. However, it does not exempt the parliamentary legislator from making sufficiently specific regulations for the procurement and use of personal information in cases of data collection in the "analogue" world. Art. 2 sentence 2 SVerf does not differentiate between automatically processed and non-automatically processed data. Moreover, it cannot be denied that information initially documented by hand can be digitised at any time - as the innovative development of an app for guest lists by a Saarland company (Saarbrücker Zeitung of 21 August 2020 A 7) shows - and can thus also be made accessible to the dangers of automated data processing without the data subject being aware of this or being able to counteract it.  
29dd. The requirement of a parliamentary legal basis is also not a dispensable mere formality. Whereas regulations such as those for combating the corona pandemic are drawn up, discussed and adopted essentially internally by the executive until they are published, and citizens are thus confronted with the completed and applicable regulation, a parliamentary law ensures that the pros and cons are debated before the public forum and is thus an essential element of representative democracy. Therefore, in an emergency situation, where short-term action by a government appears imperative, the regulation on the basis of a sufficiently specific authorisation may be a necessary and important instrument of governance. However, the longer the fundamental rights of citizens are encumbered, the more important it becomes to leave the regulation of their foundations and limits to the parliamentary legislator, who is in any case originally responsible. ee. The collection of data is not justified by the "consent" of those concerned. Even if one were to assume in each case that those concerned should formally agree to the provision of their contact details in the interest of the matter, such consent does not justify the collection of data because it could only be refused at the price of denying them the opportunity to participate in social, political and religious life. For this reason, the constitutional court has clearly denied the constitutionally not dissimilar question of whether the general prohibition of smoking in restaurants and bars is opposed to the fact that guests voluntarily visit "smoking restaurants and bars", with the justification - also in the case of dispute - that such a view would lead to the de facto exclusion of citizens from participation in social interaction. Contrary to the view of the parties involved, Art. 6 DSGVO does not constitute sufficient authorisation. 
30 That follows, first of all, simply from the fact that the regulation does not even mention Article 6 of the DSGVO as the legal basis for its adoption. However, under Article 104 SVerf, which corresponds to the second sentence of Article 80(1) of the Basic Law, the legal basis of a statutory regulation must be stated in the regulation itself as a precondition for its validity. This is already missing. Moreover, it would constitute a fundamental misunderstanding of Article 6 of the DSGVO if one were to regard it as an arbitrary power, independent of legal form, to collect data under the conditions specified therein. Article 6 of the DSGVO limits the power to collect data; it does not grant it.Article 6 DSGVO regulates the lawfulness of the processing of data. The first sentence of Article 6(1) lays down seven different conditions under which it is permitted. In addition to the existence of the consent of data subjects (lit. a), other important conditions in the event of a dispute are the fulfilment of a legal obligation to which the controller is subject (lit. c), the need to protect the vital interests of data subjects or third parties (lit. d) or the need to perform a task in the public interest (lit. e). However, these conditions of legality, mentioned by way of example, do not at the same time constitute the basis for intervention, but require a special norm under Union law or membership law which provides for or permits the collection of data as such - within the limits of Art. 6 DSGVO (cf. only Kühling/Bucher, DSGVO, Art. 6 marginal no. 78; BeckOK-DSGVO/Wolff/Brinck Art. 6 DSGVO marginal no. 14). This can be inferred first of all from Article 6(3) DSGVO itself, which, precisely with regard to the conditions of lawfulness in letters c and e of paragraph 1, refers to the sources which may determine the "legal basis" for the processing and provides further details on them. If the legal basis were Article 6(1), first sentence, (c) and (e) themselves, there would be no need for that provision or it would have to be formulated as an additional condition of lawfulness.  It follows - for example - further from recital 45 of the DSGVO. According to this recital, the processing of data for the performance of a task in the public interest is subject to the following conditions
31 It is in the interest of the data subject not only to ensure that these conditions are substantively met, but also that there is a legal basis in Union law or in the law of the Member States for processing - which must then comply with the limitations of Article 6 of the DSGVO. Even if recital 41 of the DSGVO points out that the Member States are free to regulate the specific form of legal bases for the collection of personal data, this shows first of all that such legal bases are needed as standards of authority for the collection of data itself. At the same time, recital 41 of the DSGVO makes it clear that the form of the authorisation - formal law or regulation - is determined by the constitutional law of the Member States (cf. inter alia Eh-mann/Selmayr, DSGVO Art. 6 para. 40). This also applies insofar as Article 6 (1) sentence 1 lit. d DSGVO and Recital 46 of the DSGVO declare the processing of personal data in cases of epidemic developments to be lawful. Nor can it be argued against all this that Art. 2 § 3 (3) 2nd paragraph of the CP-VO orders the deletion of the data "in accordance with the applicable basic data protection regulation". On the one hand, the provision refers exclusively to the deletion, but not to the collection and use of the data. On the other hand, the Basic Data Protection Regulation "applies" only to the fully or partially automated processing of personal data and to the non-automated processing of personal data which is stored or is to be stored in a file system. The contact details when visiting the facilities and events mentioned in Art. 2 § 6 CP-VO are - as far as is apparent and in the absence of any other legal order - currently provided in handwritten form and are collected and stored in this form. There is therefore no automated processing of data, nor is there any processing of data whose storage in a file system is intended (Art. 2 para. 1 DSGVO). The provision is therefore additionally suitable for trivialising and obscuring the intensity of the intervention.  
32gg. Whether the formal requirement of a parliamentary regulation of data processing also applies if data subjects are not themselves obliged to disclose their personal data for a temporary period in a situation of catastrophic proportions and, if necessary, cannot be forced to do so, but are instead given the choice, for a limited period of time, between participating in certain offers leading to the disclosure of their data or waiving this right to use the data, remains open. Regardless of the foreseeable time limitation of the guarantee of contact tracing by the regulations to combat the pandemic, it cannot be ignored that the intervention made possible by Art. 2 § 3 CP-VO has already been in place for a long time and, in view of the infection situation, would probably last for further months on the basis of a mere legal regulation. Thus, the indirect interference with the fundamental right to data protection is now in any case of such intensity that only a parliamentary law could justify it and its conditions and limits. hh. Finally, to the extent that it could be argued that the instrument of the regulation allows greater flexibility in the defence against risks in times of catastrophic events, which is necessary in view of the possibly rapidly changing infection situation, the Constitutional Court could not share this view. For even on the basis of a sufficiently clear and sufficiently specific legal authorisation to process personal data, the necessary flexibility of executive reactions could - with appropriate use of the instruments of constitutional law - easily be maintained, i.e. the necessary short-term reaction to new, stronger or lesser courses of infection could be permitted at any time. d. However, since Art. 2 § 3 CP-VO serves an unrestrictedly legitimate objective and the previous - nationwide - case law has repeatedly addressed the problem of sufficient legal authorisation, this is not the case in the 
33By leaving aside the decisions on applications for temporary non-execution of provisions of statutory law in the framework of decisions on applications for temporary non-execution, the Constitutional Court makes use of the possibility to allow the provision which is incompatible with the Constitution to remain in force temporarily, with procedural safeguards for fundamental rights, and to set the Landtag of the Saarland a reasonable period within which to remedy the situation.  The mere declaration of incompatibility, combined with an order for the temporary continuation of the unconstitutional provision, is permissible because the immediate invalidity of the challenged provision of Art. 2 § 3 CP-VO would in part deprive the protection of overriding goods of the public interest of its basis and a weighing against the fundamental rights concerned shows that the encroachment is acceptable for a transitional period; the legislature thus has the opportunity to make a statutory provision (cf. BVerfGE 109, 190 [235 et seq.]; also already BVerfGE 33, 1 [13]; 33, 303 [347 et seq.]; 40, 276 [283]; 41, 251 [266 et seq.]; 51, 268 [290 et seq.) The obligation laid down in Article 2 § 3 of the CPVO contributes to combating the spread of the pandemic and thus to averting significant threats to the life, health and freedom of all and to the functioning of state and social institutions. It therefore serves an overriding Community interest. It is the responsibility of the State to ensure this protection. Despite the lack of sufficient parliamentary authorisation, the balance with the fundamental right to data protection shows that the indirect interference with this fundamental right must be accepted by the persons concerned for a transitional period. The Federal Constitutional Court, too, had already developed such a declaration of incompatibility in its case law when it was not yet provided for in the BVerfGG (§ 31.2 sentences 2 and 3). 

The temporary acceptance of standards which are incompatible with the constitution per se also applies - in corresponding application of § 61 (1) sentence 2 Ver-fGHG - to regulations which were to be issued after the expiry of the regulation of 21 August 2020. signed: Prof. Dr. Rixecker Prof. Dr. Wendt Prof. Dr. Bartone Caspar Crauser Flasche Müller Trenz (Ernst) Inspector of the Judicial Office as clerk of the office