Mall working ban of spring 2021 deemed unconstitutional in Latvia

The restrictions on the operation of major shopping malls under the conditions of the Covid-19 pandemic did not fully comply with the Constitution, the Constitutional Court (ST) decided on March 11.

Several commercial enterprises turned to the court regarding the provision in force from April 7 to June 1, 2021, which stipulated that the operation of shops in a mall with a total area dedicated to trade exceeding 7000 m2 is prohibited.

The compatibility of this rule with the first sentence of Section 91 of the Constitution, which states: “All human beings in Latvia shall be equal before the law and the courts”, was contested. Similarly, the conformity of the said rule with the third sentence of Section 105 of the Constitution, which states: “Property rights may be restricted only in accordance with law”.

The ST concluded that, in the context of the Covid-19 pandemic, the country does not have to wait, in accordance with the precautionary principle, until the actual damage has already been caused. In particular, in a unique and uncertain situation, the State has the right to take decisions based on a reasonable assumption and, secondly, on the protection of fundamental rights.

The rapid uncontrolled spread of Covid-19 infections is associated with significant threats to the general public, namely that uncontrolled Covid-19 spread could lead to overload in the health sector and threaten the continuity of healthcare and treatment services. Consequently, the legitimate objective of the restriction on fundamental rights is also protecting the welfare of society, concluded the ST.

But the operation of big mall stores was prohibited, whether or not a particular store can be provided with separate external access. On the other hand, stores in other sales sites, including shops located in separate spaces, could continue their activities in accordance with epidemiological safety requirements. Thus, there was differing treatment among traders. 

The ST found that the Cabinet did not consider the possibility of providing separate external access to certain stores of large commercial centers in the process of drawing up the legal framework. Accordingly, the ST concluded that the contested rule, insofar as it relates to the trader being banned from working, did not comply with the first and third sentences of Section 105 of the Constitution.

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