Tuesday, November 30th, 2021
Expert on “emergency braking” judgment
Karlsruhe puts the traffic light under pressure to act
From Frauke Niemeyer
A reason for hesitation and hesitation in the pandemic policy is no longer applicable today: The Federal Constitutional Court has approved the measures of the federal emergency brake, which paves the way for drastic restrictions in the fourth wave.
It is a comprehensive “Go!” for drastic measures, which the Federal Constitutional Court published today. In their verdict, the highest judges in Karlsruhe approve the curfews, contact restrictions and school closings, which largely restricted life in Germany as a “federal emergency brake” last spring in order to slow down what was then the third wave of pandemics.
The judgment is not only important in retrospect, but is even to be understood as a request from the highest court to act courageously in the struggle with the ongoing fourth corona wave. “The way the judgment is laid out, one can say for practically everything that is being discussed in terms of restrictions for this winter as well: These restrictions would also be serious encroachments on fundamental rights, but in conformity with the constitution, because the risk has not diminished since spring,” says Constitutional lawyer Joachim Wieland in conversation with ntv.de.
Politicians intervene on the one hand in fundamental rights, but on the other hand, according to Wieland, they also have protective obligations for the population as a whole and for the health system, which is also explicitly stated in the judgment. From the point of view of the expert, it indicates “that protection obligations currently predominate. From a legal point of view, this is an indication that politicians are obliged to act.”
Plenty of room for maneuver for politics
From the constitutional expert’s point of view, the federal government should not fear that it would violate the Basic Law with a general lockdown that would not distinguish between vaccinated and unvaccinated people. “The court decided this judgment against the background of the current discussion. If it had concerns about uniform measures, it could have given a hint in advance, for example that in the future a distinction would have to be made between measures for vaccinated and unvaccinated people.” However, such a reference is missing, which confirms Wieland’s interpretation that the court gives the legislature scope for action on this point as well.
The Karlsruhe ruling says that the legislature must inform itself about restrictions on fundamental rights before making a decision, ie “take into account the various scientific opinions, but then it has a margin of appreciation as to how great it sees the dangers and which measures it considers sensible”.
In this pandemic situation, politicians have a wide scope for action, “and the Federal Constitutional Court will not intervene lightly, this can be clearly seen from this decision”.
According to Wieland’s expectation, the court will only intervene if the legislature fails to recognize the fundamental rights concerned. “But if politics acts as it has done so far, then it needn’t fear the Constitutional Court.”
This means that politicians – still in office or in the future in government – do not have a reason for not taking drastic measures such as a general lockdown: the reference to the fact that such a drastic procedure may not be constitutional. So far, the FDP in particular had argued as part of the coming traffic light government. The Karlsruhe judges opened the door wide to the government and legislators. As of today, they are under pressure if the situation calls for them to take the step.