questions and answers
Fourth wave
2G, lockdown, mandatory vaccination: legal experts explain which measures are legally tenable
With 2G, politics is trying to master the fourth corona wave. However, it is unclear which measures are still possible.
© Marcus Brandt / DPA
The corona virus is on the rise again in Germany. Now it’s up to politics. However, there are still no guard rails of last instance through the highest courts. Which measures are legally acceptable and which are not? An overview.
The dramatically increasing corona numbers are forcing politicians to act, again. And again there is the big question: which measure stands up to the courts and which does not? An overview of the current state of affairs from a legal point of view.
Why is there still so much uncertainty?
After almost two years of pandemic, there are now many court decisions. However, these are almost always urgent decisions in which the judges only check cursory: How bad would it be if we wrongly overturn the measure? And what does it mean for the plaintiff if it remains in force – possibly illegally – for a while longer? In this way, at the very beginning of the pandemic, the Federal Constitutional Court ensured that demonstrations were possible again and that church services could also take place subject to conditions. However, there is still no final decision on many important questions.
When can such decisions be expected?
The Bavarian Administrative Court started in October and declared the very extensive exit restrictions in Bavaria in the first corona wave in the main proceedings to be disproportionate. However, the decision is not yet legally binding, the state government has announced that it will appeal. At the moment everyone is waiting for the first big decision from Karlsruhe, which is in prospect by the end of November. It is about the so-called federal emergency brake, which enabled nationwide measures such as contact restrictions, night exit restrictions and school closings from the last days of April to the end of June 2021.
What can we expect from it?
The President of the Federal Constitutional Court, Stephan Harbarth, commented on this on Friday in the ZDF “heute journal”: It was about “a certain law at a certain point in time”. The court justified its decisions but “very, very detailed” and developed standards in order to give concrete form to the constitution. This would usually result in “indications for follow-up questions that will arise, for example for upcoming pandemics or for measures in the current pandemic for the coming months”.
And in the meantime?
Until then, politics must, so to speak, drive on sight. The law professor Anna Katharina Mangold from the University of Flensburg is of the opinion that “certain guard rails” can still be marked now. “The constitution in no way stands in the way of a moderate but also effective fight against pandemics,” she writes in an article for the “Verfassungsblog”.
Which constitutional requirements apply in general?
Interferences with fundamental rights are possible under certain conditions, but every measure – even in the exceptional situation of a pandemic – must be proportionate. That means: suitable, necessary and appropriate. An important question is always whether the same purpose can not be achieved with a “milder means”. In addition, the fundamental rights concerned must be weighed up against each other. With the Corona measures, on the one hand, there are freedoms. On the other hand, it is about the right to life and physical integrity. Here the state also has protection obligations.
Why is balancing so difficult, especially with Corona?
The constitutionality of a measure is not set in stone, but depends on the current situation and scientific knowledge. At first there was no vaccine, then there was. Then came the even more contagious Delta variant. It is now known that those who have been vaccinated can also infect others and sometimes become seriously ill themselves. And: What seemed completely disproportionate with the relaxed Corona situation no longer has to be today. Against this background, politicians also have a wide margin of appreciation.
Can unvaccinated people be subjected to stricter restrictions?
No one among legal experts seems to see a problem here. The other way around: When more and more people were vaccinated in the spring, the call quickly rose to give them more freedom. Only the little restrictive measures that would otherwise be difficult to control, for example the mask requirement on buses and trains, should continue to apply to everyone. The Basic Law does not even stipulate that everyone must always be treated equally. There has to be only one factual reason for different treatment.
When the going gets tough, would restrictions be possible for everyone?
Mangold, who wrote a constitutional complaint against the nightly exit restrictions under the federal emergency brake, currently considers “nationwide and contact-restricting measures against the entire population” to be permissible – “against vaccinated and unvaccinated people”. Because overcrowded intensive care units potentially threaten the health of all people. The lawyer Andrea Kießling from the Ruhr University Bochum, on the other hand, thinks it must be differentiated. “Simply arrange things across the board, which then apply unreservedly to everyone, that is no longer possible,” she said “Zeit Online”.
And a compulsory vaccination for all or certain professions?
Kießling has “no constitutional stomach ache”. Hinnerk Wißmann from the Westfälische Wilhelms-Universität Münster recommends in a current statement for the legislative procedure in the Bundestag that vaccination should be considered “before general lockdowns for schools or universities come into consideration”. He describes this as a “milder remedy”.
Do we still need the “epidemic situation of national scope”?
Their determination is a prerequisite for being able to order a large number of measures from the Infection Protection Act such as exit and travel restrictions. The desired traffic light coalition does not want to prolong the epidemic situation beyond November 25th, but allows the countries to part of the protective measures in another way. This is currently the subject of heated argument among lawyers. The Bielefeld law professor Franz C. Mayer says: “The fire brigade throws parts of their equipment into the fire in the middle of an operation.” Ferdinand Wollenschläger from the University of Augsburg considers it “legally not necessary” to reduce the catalog of possible protective measures in this way. Other experts think the timing is right.