Client Alert

‘Situation of Extreme Danger’: German Constitutional Court Deems ‘COVID-19 Emergency Brake’ Lawful

03 Dec 2021

The contact and curfew restrictions during the third Coronavirus wave in spring 2021 were consistent with Germany’s Constitution. The first reasoned decision of the Federal Constitutional Court on Coronavirus restrictions gives the legislator broad discretion, but not ‘carte blanche.’

In April 2021, the so-called ‘federal emergency brake’ went into force as a new provision of the Infection Protection Act (Infektionsschutzgesetz or IfSG): If the seven-day incidence density rate exceeded the number 100 in an administrative district, or an autonomous town or city, then two days later measures were applied there which significantly restricted fundamental rights, including, among other things, contact restrictions and a penalty-reinforced curfew of 10:00 p.m. The Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) has now rejected a large number of constitutional complaints lodged against these restrictions.

Decision of the BVerfG

The BVerfG (in the decision of the First Senate on November 19, 2021) viewed the contested curfew and contact restrictions as being permissible components of a protection concept of the legislator, which in its entirety served to protect life and health and the maintenance of an operational health system as the overriding important public concern. It said that despite the considerable restrictions on basic rights, the measures of the (then) section 28b of the IfSG had been permissible, and also that the extent of the restrictions had been proportional.

Background

After reaching the “incidence 100” level, private gatherings were allowed if they only included one household and one other person; remaining outside one’s own housing or accommodation between the hours of 10:00 p.m. and 5:00 a.m. the following day was prohibited. Violations of the regulations were punished by fines as administrative offences.

The contact restrictions infringed both the fundamental rights of families and the freedom of marriage granted by Article 6, paragraph 1 of the German Constitution (Grundgesetz or GG) as well as the right to free development of the individual (Article 2, paragraph 1 of the GG); the curfew restrictions curtailed the fundamental right to liberty granted by Article 2, paragraph 2, sentence 2 of the GG.

Fundamental rights to liberty and governmental duties to protect, which obligate the legislator to protect life and health, are weighed against each other. The precondition for infringing basic rights is always the proportionality of the measures; only if there are no milder means that are as effective as the ones in question can infringements of basic rights be justified according to the Constitution. The ruling states: “In accordance with this, in the situation of extreme danger of the pandemic, the contact restrictions and even the curfew restrictions under examination here were compatible with the Basic Law; in particular, they were proportional despite the severity of the infringement.”

Immunized persons

Immunized or recovered persons were not excepted from the restrictions. This was held to be justified by the court: “In the absence of sufficient protection through vaccination and because possibilities for medical treatment of those infected with COVID-19 were largely lacking, both life and health protection as well as the maintenance of an operating health system could be successfully attained only through limiting the number of infections.” The proportion of vaccinated individuals was, at the time of issuing the restrictions, still very low and the protective effect of the vaccination, viewed in respect to the entire population, was therefore uncertain. This situation is different today – the effectiveness of the vaccines is more thoroughly researched and the vaccination rate in Germany is at approximately 70% – and this assessment could have a different outcome today.

What the decision means

The restrictions examined in the decision ceased to be in force two months after their introduction. The ‘epidemic situation of national dimension,’ on the basis of which curfew and contact restrictions could be imposed, was not extended by the German Parliament (Bundestag). The rather broad confirmation of the BVerfG that the infringements of fundamental rights were in accordance with the Constitution due to a ‘situation of extreme danger,’ gives the government legal certainty and leeway for the pending infection protection measures, permission for which, however, should not be overestimated. Whether the immunization of the population achieved today is sufficient to deny the situation of extreme danger assumed by the Court, or enough to confront the situation with less restrictive measures (e.g., restrictions only for unvaccinated individuals), cannot be seen from the decision. Also, with regard to the currently discussed issue of compulsory vaccination, the BVerfG did not express an opinion in its decision.

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