Germany is struck heavily by the fourth wave of the pandemic. In some regions, infection numbers have exceeded the previously unimaginable margin of 1,000 confirmed infections among 100,000 inhabitants within the last week. Politics, stuck in an interim period between the old and the new Federal Government not yet in office after the September 2021 elections, struggles to find appropriate responses, still shying away from another nationwide lockdown. In this situation, the First Senate of the Federal Constitutional Court in Karlsruhe promulgated its long-awaited decisions in the principal proceedings concerning the ‘Federal Emergency Brake’ (‘Bundesnotbremse’) on 30 November 2021, finally approving its constitutionality. The ‘Federal Emergency Brake’, a federal law enacted by the Bundestag in April 2021, imposed some of the most restrictive measures during the Covid-19 pandemic, especially strict restrictions on private gatherings, a curfew during the night, and the (physical) closure of schools, all depending on local infection numbers. The political background of the ‘Federal Emergency Brake’ as well as the procedural constraints for the Court’s summary proceedings have already been reported in this blog.

As the statute automatically ceased to be in force at the end of June 2021, the Court’s two orders in the principal proceedings look back on the first half of 2021. Nevertheless, the Court, deciding more than fast (within only half a year) not without reason, was well aware of the fact that its decisions were awaited as fundamental legal guardrails for the forthcoming political course. Politically, the situation is complicated by the fact that the parliamentary group of the liberal party (FDP) was not just one of the complainants against the ‘Federal Emergency Brake’, but is also part of the new (though formally not yet elected) Federal Government, even through the person of the future Federal Minister of Justice.

The Court’s Decisions

The Court has separated the claimants’ legal allegations into two opinions. The first (‘Bundesnotbremse I’) concerns the restrictions on private gatherings and the night-time curfew. The second order (‘Bundesnotbremse II’) deals with the closure of schools. As it lies within the Court’s discretion to join and separate pending proceedings, this separation can be read as a political signal of the high legal importance the Court assigns to the physical attendance in schools. The greatest legal novelty of the Court’s decisions also rests here: for the first time, the Court explicitly acknowledges a constitutional right of young persons against the State to support and promote their development by providing school education (‘right to school education’). This right follows from the right to the free development of one’s personality (Article 2[1] Basic Law) in conjunction with the State’s supervision over the entire school system (Article 7[1] Basic Law). The right to school education consists of two dimensions: on the one hand, it provides a certain minimum standard of the educational system and a non-discriminatory access to (public) schools (positive dimension). On the other hand, the right has a negative dimension, giving children and adolescents standing against legal measures for cases in which school education is, though not structurally changed, selectively restricted by the State. The mandatory closure of schools according to the ‘Federal Emergency Brake’ interfered with the latter right, the negative dimension.

The core of both opinions of the First Senate is the application of the principle of proportionality to the ‘Federal Emergency Brake’. According to this principle, as established by the Court’s case law over the last six decades, the Court must assess the legitimacy of an interference with fundamental rights in four steps: the interference must pursue a legitimate purpose, it must be suitable for achieving this aim (effectiveness), it must be necessary (which means that less intrusive but equally effective means are not discernible), and it must meet the requirement of ‘appropriateness’. Lifesaving and health protection, as well as securing the health system’s functioning, are legitimate purposes according to the Court. The last step, the requirement of ‘appropriateness’, is a question deeply soaked with normative assumptions. In essence, the Court must determine whether the interests of the community can outweigh the freedoms of the individual. In its two orders, the First Senate dedicates pages to this trade-off, coming to the conclusion that the measures of the ‘Federal Emergency Brake’, though establishing extensive interferences with everybody’s fundamental rights, were still appropriate.

Empirical Uncertainties and the Margin of Appreciation

Although empirical arguments are also central at this last stage, it is mainly the second (effectiveness) and the third (necessity) step of the proportionality test which raise factual questions. Here, the Court must assess the effect of the measures on the dissemination of the virus (in comparison to their omission and to other possible approaches). One main objection against the curfew was its alleged ineffectiveness: its effect - in terms of contact reduction - were low, because it only covered a narrow timespan of the night, when most people stay at home anyways. This leads to the main problem the courts' review face with regards to the pandemic: under normal circumstances, when highly complex empirical questions are crucial for the legal assessment, the perspective of courts profits from the lapse of time between the enactment of an objected measure and the courts' decision. This temporal distance sometimes allows courts to gain more comprehensive and more reliable information than was available when the measure was adopted. Courts can be smarter because they rule later. If courts decide, however, without much delay, as it is the case in summary proceedings and as the Federal Constitutional Court now did in the principal proceedings against the ‘Federal Emergency Brake’, they can hardly purport to have better information than the legislator or the executive.

It is, of course, a different legal matter whether compulsory means already out of force are rendered unconstitutional by later empirical findings that were unavailable when the measure was originally adopted. Factual uncertainties must generally not establish a burden for the bearers of fundamental rights in the case of extensive interferences with those rights. However, so the Court highlights in both of its decisions, the legislature meets the respective constitutional requirements if it seeks guidance in a ‘reasonable and tenable assessment of the information available.’ So, the Court acknowledges a rather vast margin of appreciation for the legislator, activated by the underlying empirical uncertainties. In a democracy, Parliament is responsible for ‘deciding on conflicts between high and highest interests despite an uncertain situation.’ The Court highlights this argument by citing parallel decisions by other constitutional courts (from France, Austria, and the Czech Republic). The First Senate still carefully assesses statements made by numerous experts in the proceedings. It does however not come across information rendering the original findings of the legislator implausible.

And What Follows?

The Federal Constitutional Court’s First Senate did not strike down the ‘Federal Emergency Brake’, although the direct effects of such a decision would have been small since the statute had run out anyway. The first and central political signal of the Court’s decisions rests in the considerable margin of appreciation for parliamentary interferences with fundamental rights in times of crisis. Many, as already indicated, even members of the future Federal Government, would have welcomed stricter boundaries for the State’s action.

However, there are also important hints in the other direction. Deciding within six months in principal proceedings shows that the Court is willing to rapidly and nevertheless carefully exercise its tasks of constraining the political players. Moreover, the Court points out that vaccination played almost no role for the ‘Federal Emergency Brake’ because the German campaign was still at the beginning in early summer 2021. By contrast, about 80 % of adults in Germany have been vaccinated by now and vaccination is available for everyone, which might change the Court’s considerations. The explicit acknowledgement of a right to school education arguably sets up stricter limits for the closure of schools in comparison to measures related to other public facilities. In its order concerning private gatherings and the curfew, the Court ends with a paragraph that can be read as a political summary already oriented at distinguishing its ruling from possible future cases: ‘comprehensive curfews,’ the Court states, ‘may only be considered in situations of extreme danger.’