Karlsruhe on the “Federal Emergency Brake”: What the Corona Decision means

The Federal Constitutional Court decided that measures of the “Federal Emergency Brake” were compatible with the Basic Law. But that is not a license for politics.

At the very beginning of the pandemic, the Federal Constitutional Court pointed out some limits to politics: For example, church services and the state should not simply ban demonstrations across the board, Karlsruhe decided in urgent decisions in spring 2020. Did the state intervene too much in the basic rights of citizens during the pandemic?

Today the court published decisions of principle on this for the first time. Exit and contact restrictions and school closings from the federal emergency brake were compatible with the Basic Law. A clear result. Nevertheless, the decisions are no carte blanche for politicians, because the court sees such tough measures only as a last resort to protect health in a particularly dangerous situation.

Decision on the “Federal Emergency Brake”

The decisions of the Federal Constitutional Court expressly refer to the regulations of the “Federal Emergency Brake” from spring 2021 and the threat situation at that time in the matter of Corona. If a certain incidence was exceeded in a county, certain measures automatically came into force. With a value of 100, for example, there were night exit restrictions.

With an incidence of 165 or more, schools in the district in question had to close. The measures took effect automatically, without the federal states having to issue their own regulations. The federal emergency brake came into force on April 23, 2021 and expired on June 30, 2021.

Contact restrictions

The judges first emphasized that contact restrictions in public and private areas have significantly encroached upon various basic human rights, such as the right to free personal development, basic family rights and freedom to organize marriage.

Nevertheless, the measures in the specific situation in spring 2021 are not unconstitutional. Because: The encroachments on fundamental rights served to protect the life and health of the population and to prevent the health system from being overloaded. In assessing this dangerous situation, the legislature relied on sound knowledge that was available to it at the time.

Politicians also have a certain leeway in a pandemic because much is still scientifically unclear. According to the state of scientific knowledge, the contact restrictions were also suitable and necessary to protect the life and health of the population. However, the court also emphasized the importance of the time limitation of the law. In addition, speak in favor of the legislature that he did not simply distribute the contact restrictions across the whole country at the same time, but kept to the incidence in the counties.

Exit restrictions

The nightly exit restrictions were particularly controversial in the spring. The state is going too far here, according to the critics. After all, it has been proven that you are less infected outdoors than indoors, stressed the plaintiffs.

Such comprehensive exit restrictions would only come into consideration in an “extremely dangerous situation”, emphasized the court today. So it’s stricter than the contact restrictions. Such a dangerous situation existed during the “Federal Emergency Brake”. The court also accepts the legislature’s argument that the exit restriction is primarily intended to prevent many people from meeting indoors. There were also numerous exceptions.

school closings

For the first time, the Federal Constitutional Court recognizes that children and young people have a right to school education vis-à-vis the state. The state seriously intervened in this right by prohibiting face-to-face teaching. The court particularly emphasized the serious consequences that were associated with this for children and young people: learning delays and deficits in personal development, for example.

Nevertheless, Karlsruhe also says here: As a last resort, the school closings in spring 2021 were still compatible with the Basic Law. Because: According to the scientific assessment, politicians can assume that children and young people can become infected with the virus and can also transmit the virus. Even if they rarely become seriously ill themselves, the legislature was allowed to close the schools in order to protect the health and life of the population and the health system from overload.

For the court, it is crucial, among other things, that the school closings only took effect from an incidence of 165, i.e. later than the other measures. The time limit also contributed to the fact that the school closings were “still” reasonable. In addition, the state has tried to offer largely distance learning. Karlsruhe also mentions several times in the decision that the vaccination campaign in spring 2021 was not yet as advanced.

The constitutional complaint against the school closings was brought forward by the parents’ initiative “School stays open”. Parents and students repeatedly pointed out the serious consequences for children and adolescents. At the same time, the risk that they pose is low. On the initiative side (schule-bleibt-offen.de) you can see all expert reports that the Federal Constitutional Court had obtained.

Consequences for politics

Politicians now know: Measures such as exit restrictions or school closings are not prohibited per se. What is important, however, is that the decisions relate to some measures taken by the federal emergency brake in spring 2021. If politicians want to resort to these measures again, they must carefully examine whether the situation today is really as dramatic as it was in spring. The situation in the intensive care units, for example, speaks for it. The incidence values ​​are also much higher than they were then. However, the vaccination route today is completely different from that in spring. That too has to play a role in the assessment.

Conclusion: In the event of extreme danger to people’s life and health and if the health system threatens to become overloaded, serious measures could be taken again in the future. However, they must always be limited in time and allow for exceptions. At the moment it would not be possible to rearrange exit restrictions and school closings because the current Infection Protection Act does not allow them. The legislature would have to change that again beforehand.

Incidentally, it does not follow from the Karlsruhe decisions that the state has to regulate corona measures nationwide. That is possible, as here with the federal emergency brake. However, it can also stick to the classic distribution of tasks: The federal government provides the legal basis, which the states implement. How uniform that is in the end is then up to you.