The federal emergency brake decided in April 2021 with night curfews and contact restrictions as well as school closings were compatible with the Basic Law. The Federal Constitutional Court has now announced this decision. The Karlsruhe judges explained that exit and contact restrictions “in their entirety served the protection of life and health” and the maintenance of the health system. The Federal Constitutional Court dismissed complaints from pupils and parents against alternating lessons and school closings, but for the first time recognizes a “right of children and young people vis-à-vis the state to school education”.
The measures were decided in April 2021 to contain the corona pandemic and were valid up to and including June of this year. In May 2021, the First Senate rejected several urgent motions against the exit restrictions. Now, for the first time, the judges have decided on the main issue. The First Senate wants to judge about 100 other constitutional complaints at a later date, including the restrictions and closings in retail and the hotel industry and bans on cultural events in person.
The verdict was also expected by politicians. In view of the new Omikron variant and the force of the fourth corona wave, the call for tougher countermeasures has recently been getting louder. On this Tuesday at 1 p.m., the Executive Chancellor Angela Merkel (CDU) and her designated successor Olaf Scholz (SPD) want to talk to the prime ministers of the federal states about the crisis by telephone. They had hoped that the decision from Karlsruhe would provide specific guidelines for their room for maneuver.
In the newly revised law of the future traffic light coalition of the SPD, Greens and FDP, Paragraph 28b, formerly the emergency brake, now looks different and now contains, for example, the 3-G rule at work. In order to stop the rapidly spreading virus and to defuse the situation in the intensive care units, there are calls from several countries for a new federal emergency brake.
There are now several conceivable options for politics
There are basically several conceivable options on the table for how politicians want to act: It would be quick and easy for the Bundestag to re-establish the “epidemic situation of national importance” that only expired on November 25 – with a simple decision. This would give a legal basis for all previous crisis instruments in one fell swoop. This could be done in the next regular week of meetings from December 6th or earlier in a special meeting. The Union in particular had criticized the fact that the traffic light had let this legal basis expire.
Another option would be to expand the list of measures that the traffic light groups have reduced, regardless of the epidemic situation. For the time being, general closings of restaurants and shops or domestic travel restrictions in an entire state are excluded. This would require a legislative procedure in the Bundestag with the consent of the Bundesrat.
However, a conference of prime ministers with the federal government could also quickly set down further requirements. For example, new or lower thresholds for additional requirements and restrictions in the case of high numbers of infections or hospital loads would be conceivable.
The introduction of the emergency brake triggered a wave of lawsuits
With the emergency brake, which has now been found to be constitutional, the federal government wanted to ensure in the third corona wave that the same measures take effect everywhere as soon as the corona situation in a region worsens. It had to be drawn automatically since April 24, if the so-called seven-day incidence in a district or an urban district exceeded 100 on three consecutive days.
Nighttime curfews between 10 p.m. and 5 a.m. were planned. People from one household were only allowed to meet with one other person and their children up to the age of 14. Schools were required to switch to alternate teaching from the threshold value 100. With a few exceptions, face-to-face teaching was completely prohibited from a seven-day incidence of 165 or more. The introduction of the emergency brake triggered a wave of lawsuits in Karlsruhe. By the second half of August, the Constitutional Court had received more than 300 constitutional complaints and urgent motions.