Emergency Regulations Entailing a Special Case of Norm Collision Revisiting the Constitutional Review of Special Legal Order in the Wake of the COVID-19 Pandemic

• Published in: Juridical Tribune - Review of Comparative and International Law 2024-03, Vol.14 (1), p.5-26
• Main Authors: Kecső, Gabor, Szentgáli-Tóth, Boldizsár, Bor, Bettina
• Format: Article
• Language: English
• Subjects: Comparative Law; Constitutional Law; constitutional review; covid-19 pandemic; emergency; Health and medicine and law; hierarchy of law; Human Rights and Humanitarian Law; norm collision; Sociology of Law
• ISSN: 3008-637X; 3008-637X
• DOI: 10.62768/TBJ/2024/14/1/01

This contribution will interpret conflict between an emergency order and an ordinary law as a special case of norm collision and will revisit the constitutional review of such cases through this lens. First, the theoretical framework of emergencies will be taken into account, and then, based on the relevant constitutional case law of Austria, Germany, Hungary, Romania and Slovenia delivered during the recent public health emergency, a comparative analysis will investigate the most popular techniques to outline the scope of emergency regulation. Finally, based on this research, a three-step analysis will be proposed for constitutional courts to approach such issues by taking into account either the theoretical, the formal and the substantial aspects of the case. Apart from highlighting the role of constitutional review to establish the objective limits of emergency regulations, we also aim at giving additional weight on the formal and the theoretical prongs of the assessment of extraordinary state interferences, which have been consistently underestimated in our sense.