Order of 23 September 2025

R e a s o n s :

  A.

1

The complainants are doctors specialised in emergency and intensive care medicine. With their constitutional complaints, they directly challenge the newly introduced § 5c of the Protection Against Infection Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen, Infektionsschutzgesetz – IfSG). In this provision, the federal legislator stipulates the substantive criteria on which to base the decision of how to allocate life-sustaining intensive care resources in case of shortage caused − at least in part − by a communicable disease; the provision also regulates which allocation procedure is to be adhered to and which documenting and reporting obligations apply.

I.

2

Only a short time after the onset of the COVID-19 pandemic, the question of how to allocate intensive care resources in case of shortage, i.e. in so-called triage situations, became a matter of public debate. The aim of a triage system is to determine an order of medical priority to manage medical care when the influx of patients exceeds treatment resources. A dilemma defines triage situations which arise due to a shortage of intensive care resources: Any decision on allocating the available intensive care resources can regularly lead to a loss of human life. The available resources cannot be allocated in a way that benefits all patients.

3

A general distinction can be drawn between two types of triage situations: In ex ante-triage situations, fewer intensive care places are available than the number of emergency patients who require intensive care at the same time (by indication) and desire such treatment (actual or presumed patient’s will). It is therefore necessary to decide which new emergency patients receive an intensive care bed and which do not. In ex post triage situations, there are no free intensive care resources available and it must be decided whether a new emergency patient who requires and desires treatment is to receive an intensive care bed that was hitherto allocated to another patient requiring treatment.

4

By amending § 5c of the Protection Against Infection Act, the legislator introduced a procedure and a (positive) prioritisation criterion to be used in triage situations; the legislator also specified numerous criteria that may not be applied in such situations. This legislative amendment was a response to the Order of the Federal Constitutional Court of 16 December 2021 - 1 BvR 1541/20 - (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 160, 79 – Risks of disadvantaging faced by persons with disabilities in triage situations). In this Order, the First Senate established that the legislator violated Art. 3(3) second sentence of the Basic Law (Grundgesetz – GG) by omitting to put in place measures which would ensure that nobody was disadvantaged due to a disability when it came to allocating life-sustaining intensive care resources which are not available to all (cf. BVerfGE 160, 79 <119 para. 109>). The Court established that the legislator was obliged to immediately put in place adequate measures. The decision upheld a constitutional complaint lodged by nine individuals who suffer from a disability or a chronic disease and who feared that they would be denied intensive care treatment on account of their disability or pre-existing condition in case of triage situations during the COVID-19 pandemic.

II. 

5

1. Before the amended § 5c of the Protection Against Infection Act came into force, there had been no express statutory provisions which stipulated decision criteria or procedures for triage situations, whether arising from a pandemic-induced overload of the health system, major incidents or routine emergency care.

6

2. The amendment of § 5c of the Protection Against Infection Act had been preceded by a legislative process that saw intense involvement by the public (cf. among others Bundestag document, Bundestagsdrucksache – BTDrucks 20/3877; Bundesrat document, Bundesratsdrucksache – BRDrucks 410/22(B); BTDrucks 20/3953; BTDrucks 20/4359; Bundestag plenary minutes, Bundestagsplenarprotokoll – BT-Plenarprot. 20/60, pp. 6749 ff.; BTDrucks 20/4368; BT-Plenarprot. 20/66, pp. 7592 ff.). The substantive allocation criteria and the prohibition of ex post-triage had been particularly contentious matters.

7

The Federal Government justified its draft law by stating that the amendment was to avoid the risk of people with disabilities being disadvantaged in the allocation of life-sustaining intensive care resources when such resources are scarce due to a communicable disease (cf. BTDrucks 20/3877, p. 9). The Federal Government further submitted that equal access to medical care was to be guaranteed for all patients in need of intensive care treatment. Discriminatory treatment on grounds of disability was to be excluded. Another aim was to bring about legal certainty for doctors by regulating the allocation criteria and allocation procedure (cf. BTDrucks 20/3877, p. 10).

8

The Second Act Amending the Protection Against Infection Act (Zweites Gesetz zur Änderung des Infektionsschutzgesetzes) was promulgated on 13 December 2022 and entered into force on the following day, i.e. 14 December 2022.

9

3. The version adopted by the federal legislator reads as follows:

§ 5c of the Protection Against Infection Act − Procedure in case of a shortage of life-sustaining intensive care resources that is caused by a communicable disease

(1) ¹No one may be disadvantaged − especially not on grounds of disability, degree of frailty, age, ethnic origin, religion or belief, sex or sexual orientation − by a medical decision on the allocation of life-sustaining intensive care resources which cannot be provided to all due to a communicable disease (allocation decision). ²Within the meaning of the first sentence, there is a shortage of life-sustaining intensive care resources in a hospital if

1. the life-sustaining intensive care needs of the hospital’s patients exceed the life-sustaining intensive care resources available in that hospital, and

2. it is not possible to provide affected patients with alternative intensive care treatment, in particular because patients transfer is not feasible

a) for health reasons or

b) because the regional and supraregional intensive care resources are exhausted according to the information available to the hospital.

(2) ¹An allocation decision may be taken solely on the basis of the current and short term survival probability of the affected patients. ²When assessing the current and short term survival probability, comorbidities may only be taken into account insofar as their severity or combination significantly reduces the short term probability of surviving the current disease. ³Criteria not affecting the current and short term survival probability − in particular disability, age, remaining medium or long term life expectancy, degree of frailty, and quality of life − must not be taken into account in assessing the current and short term survival probability. ⁴Life-sustaining, intensive care resources that have already been allocated must be excluded from the allocation decision.

(3) ¹The allocation decision is to be taken unanimously by two doctors who

1. are specialised doctors,

2. practice in intensive care medicine,

3. have several years’ experience in intensive care medicine, and

4. have − independently from one another − examined the patients who are affected by the allocation decision.

²Where no consensus is reached, the patients affected by the allocation decision must be examined by an additional equally qualified doctor and the allocation decision must be taken by majority. ³Only one of the doctors participating in the allocation decision may be directly involved in the treatment of the patients affected by the allocation decision. ⁴If a patient with a disability or comorbidity is affected by the allocation decision, the assessment of an additional person whose specialist expertise can address the specific needs of that patient must be taken into account. ⁵The examination of the patients affected by the allocation decision, participation in the allocation decision itself and the involvement of an additional person within the meaning of the previous sentence may be conducted by means of teleconsultation.

(4) ¹The doctor who, at the time of the allocation decision, is responsible for the treatment of affected patients must document

1. the circumstances underlying the allocation decision as well as

2. which persons participated in the allocation decision from the outset or were additionally consulted and how these individuals voted or opined.

² §§ 630f to 630g of the Civil Code (Bürgerliches Gesetzbuch – BGB) apply accordingly.

(5-7) […]

10

4. The newly introduced § 5c of the Protection Against Infection Act prescribes how to allocate life-sustaining intensive care resources in case of shortage.

11

a) § 5c(1) of the Protection Against Infection Act regulates allocation decisions in case there is a shortage of life-sustaining intensive care resources due to a communicable disease. If a communicable disease has contributed to a shortage, an allocation decision must consider all patients who require intensive care, irrespective of whether their need for treatment is caused by a communicable disease (this is explicitly stated in the explanatory memorandum, cf. BTDrucks 20/3877, p. 20; […]).

12

b) Pursuant to § 5c(2) first sentence of the Protection Against Infection Act, the ‘current and short term probability of survival’ of patients who compete for intensive care resources is the sole applicable ‘positive’ allocation criterion. In this respect, the explanatory memorandum provides that the determining factor is to be the prognosis of survival through intensive care treatment (cf. BTDrucks 20/3877, p. 21). The legislator specifies more closely on which criteria this prognosis is to be based and which criteria are explicitly not to be used as a basis (§ 5c(2) second and third sentence Protection Against Infection Act). Moreover, § 5c(1) first sentence of the Protection Against Infection Act makes clear that an allocation decision must not be discriminatory, especially not on the grounds of disability.

13

Pursuant to § 5c(2) fourth sentence of the Protection Against Infection Act, intensive care resources which have already been allocated to a patient must be excluded from further allocation decisions that may become necessary (prohibition of ex post-triage).

14

c) The allocation procedure is regulated under § 5c(3) of the Protection Against Infection Act. The legislator assigns the allocation decision to the doctors’ realm of responsibility. Under this provision, allocation decisions must be taken unanimously by two intensive care doctors who are practicing, have multiple years of experience and have examined the patients independently from one another (§ 5c(3) first sentence Protection Against Infection Act). In case of dissent, the law requires that a third specialised doctor be involved to bring about a majority decision (§ 5c(3) second sentence Protection Against Infection Act). Pursuant to § 5c(3) fourth sentence of the Protection Against Infection Act, the assessment of an additional person with specialist expertise must be taken into account if an allocation decision affects a patient with a disability or comorbidity (i.e. conditions additional to the underlying condition).

15

Pursuant to § 5c(4) of the Protection Against Infection Act, it is necessary to document the grounds for the allocation decision as well as who was involved in the decision and how they voted or opined.

III. 

16

1. The complainants in proceedings 1 BvR 2284/23 assert that § 5c of the Protection Against Infection Act directly violates their rights under Arts. 12(1), 4(1), 3(1) and 103(2) of the Basic Law.

17-23

[…]

24

2. The complainants in proceedings 1 BvR 2285/23 allege a violation of Art. 12(1) in conjunction with Art. 4(1) second alternative of the Basic Law. They contend that their freedom of occupation – reinforced by their freedom of conscience – was interfered with in a constitutionally unjustified manner.

25-26

[…]

27

3. Statements in respect of the constitutional complaints were submitted by the Federal Government – represented by the Federal Ministry of Health –, the Land Government of North Rhine-Westphalia and – as expert third parties within the meaning of § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) – the German Medical Association (Bundesärztekammer), the Federal Working Group of the Associations of the Elderly (Bundesarbeitsgemeinschaft der Seniorenorganisationen e.V.), the Federal Working Group for Self-Help for People with Disabilities and Chronic Illnesses and their Family Members (Bundesarbeitsgemeinschaft Selbsthilfe von Menschen mit Behinderung und chronischer Erkrankung und ihren Angehörigen e.V.), the Federal Association of the Working Groups of Emergency Doctors in Germany (Bundesvereinigung der Arbeitsgemeinschaften Notärzte Deutschlands e.V.), the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Deutsche Interdisziplinäre Vereinigung für Intensiv- und Notfallmedizin e.V.), the German Nursing Council (Deutscher Pflegerat e.V.), the German Association for Rehabilitation (Deutsche Vereinigung für Rehabilitation e.V.), the Advocacy Organization for Independent Living in Germany (Interessenvertretung Selbstbestimmt Leben in Deutschland e.V.) and the Marburg Federal Association of Doctors Employed in Germany including Civil Servant Doctors (Marburger Bund Verband der angestellten und beamteten Ärztinnen und Ärzte Deutschlands e.V. Bundesverband).

28

The Bundestag, the Bundesrat, the other Land governments, the German Ethics Council (Deutscher Ethikrat), the German Society for Disaster Medicine (Deutsche Gesellschaft für Katastrophenmedizin e.V.) and the German Hospital Federation (Deutsche Krankenhausgesellschaft e.V.) did not make use of their possibility to submit statements.

29

The German Institute for Human Rights (Deutsches Institut für Menschenrechte e.V.) and the complainants of the first proceedings on triage situations (BVerfGE 160, 79) have submitted statements on their own initiative.

30-44

[…]

B. 

45

The constitutional complaints are admissible insofar as they challenge a violation of Art. 12(1) of the Basic Law due to the substantive (positive) allocation criterion of ‘current and short term probability of survival’ under § 5c(2) first sentence of the Protection Against Infection Act, the negative criteria under § 5c(2) second and third sentence of the Protection Against Infection Act, the prohibition of disadvantaging persons with disability under § 5c(1) first sentence of the Protection Against Infection Act, the prohibition of ex post-triage under § 5c(2) fourth sentence of the Protection Against Infection Act as well as the obligation to reach a joint decision under § 5c(3) of the Protection Against Infection Act. For the rest, the constitutional complaints are inadmissible.

I. 

46

The complainants of both constitutional complaints have standing insofar as they claim that § 5c(1) through (3) of the Protection Against Infection Act violates their fundamental right under Art. 12(1) of the Basic Law. For the rest, the constitutional complaints do not satisfy the substantiation requirements.

47-64

[…]

II. 

65

The constitutional complaints meet the requirements of subsidiarity (§ 90(2) Federal Constitutional Court Act).

66-70

[…]

C. 

71

To the extent that the constitutional complaints are admissible, they are also well-founded. § 5c(1) through (3) of the Protection Against Infection Act interfere with the complainants’ occupational freedom under Art. 12(1) of the Basic Law (see I. below). The interference is not justified because the provisions at issue are formally unconstitutional as the Federation lacks the necessary legislative competence (see II. below).

I. 

72

1. The freedom of occupation under Art. 12(1) of the Basic Law affords protection in the case at hand.

73

a) Art. 12(1) of the Basic Law is a uniform fundamental right that protects the right to freely choose and practice an occupation (cf. BVerfGE 7, 377 <400 f.>; 161, 63 <89 para. 43> – Wind Farm Participatory Companies). Occupational freedom entails both an economic dimension and a dimension related to the free development of one’s personality (cf. BVerfGE 7, 377 <397>; 50, 290 <362>; 110, 226 <251>). Occupational freedom thus specifies those elements of the fundamental right to the free development of one’s personality that relate to individual performance and shaping and maintaining a livelihood. The aim of this guarantee is for professional activity to be as unregulated as possible (cf. BVerfGE 163, 107 <134 para. 73>; Federal Constitutional Court, Judgment of the First Senate of 23 September 2025 - 1 BvR 1796/23 -, para. 103 – Age limit for lawyers commissioned as notaries).

74

The scope of protection of Art. 12(1) of the Basic Law also encompasses the choice and practice of the medical profession (cf. BVerfGE 103, 172 <183 f.>). Doctors’ freedom of occupation also encompasses therapeutic freedom (cf. BVerfGE 102, 26 <35>; 106, 275 <304>; cf. also Federal Constitutional Court, Orders of the Second Chamber of the First Senate of 18 March 1997 - 1 BvR 420/97 -, para. 27 and of 10 April 2000 - 1 BvR 422/00 -, para. 14). In working in accordance with the rules of the art, doctors have the fundamental freedom to treat their patients in an individual manner. This ensures that doctors are free from material instructions on how to exercise their medical skill and judgment and that they have discretion on whether and how to perform curative treatment as long as they remain within the scope of therapeutic responsibility ([...]). The scope of protection encompasses both the medical diagnosis and the according treatment ([...]). Doctors may exercise due and conscientious discretion to, on a case-by-case basis, select the treatment method which serves their patients best ([...]).

75

Statutory prohibitions cannot preclude the protection afforded by the freedom of occupation from applying. An activity which generally exhibits the hallmarks of a profession is not precluded from the fundamental freedom of occupation merely because ordinary law prohibits the commercial exercise of this activity. Rather, the scope of protection under Art. 12(1) of the Basic Law may only be considered limited – in the sense of a priori only encompassing permitted activities (cf. BVerfGE 7, 377 <397>) – in respect of activities which must be considered prohibited by their very nature, i.e. activities which due to their harmfulness to the community and society as a whole simply cannot enjoy protection under the fundamental freedom of occupation (cf. BVerfGE 115, 276 <300 f.>; 153, 182 <300 f. paras. 311 ff.>).

76

b) The complainants are natural persons with German citizenship and may thus invoke Art. 12(1) of the Basic Law.

77

Being practicing doctors, the complainants are afforded protection under Art. 12(1) of the Basic Law. Their therapeutic freedom is affected by § 5c(1) through (3) of the Protection Against Infection Act. The substantive and formal rules on triage decisions set out in § 5c(1) through (3) of the Protection Against Infection Act affect the complainants’ freedom to, at their discretion, select and carry out the necessary and indicated treatment following diagnosis.

78

2. The provisions under § 5c(1) through (3) of the Protection Against Infection Act interfere with the scope of protection of the freedom of occupational practice.

79

a) The protection afforded by Art. 12(1) of the Basic Law only applies to legal provisions or acts of public authority that either directly concern occupational activity or, where this is not the case, change the framework in which the practice of the occupation occurs and, as a result of their design, are so closely related to the practice of an occupation that they objectively have a regulatory effect (objektiv berufsregelnde Tendenz) (cf. BVerfGE113, 29 <48>; 155, 238 <277 para. 96 f.> – Offshore Wind Energy Act; 163, 107 <134 para. 73>). It follows that if a legal provision or its application, under certain circumstances, has incidental effects on the practice of an occupation, this does not suffice to constitute an interference.

80

b) The provisions under § 5c(1) through (3) of the Protection Against Infection Act constitute specific interferences with occupational activity. The complainants are restricted in their therapeutic freedom and thus impaired in their freedom of occupational practice.

81

To begin with, this finding of interference applies to: the statutory rule under § 5c(2) first sentence of the Protection Against Infection Act stipulating that the ‘current and short term probability of survival’ be the substantive allocation criterion; the negative criteria supplementing this rule under § 5c(2) second and third sentences of the Protection Against Infection Act and the prohibition of disadvantaging persons with disability under § 5c(1) first sentence of the Protection Against Infection Act. These provisions restrict the complainants in their medical decision on whether to conduct treatment.

82

In specific situations, the prohibition of ex post-triage under § 5c(2) fourth sentence of the Protection Against Infection Act also hinders the complainants from taking the medical decision that they consider correct. Under this provision, the complainants are not permitted to prioritise a new patient who requires intensive care and has a higher survival probability over a patient with a lower survival probability who is already being treated. In such cases, the treating doctors are precluded from taking insights into account that they gained from ongoing treatment.

83

Finally, the obligation under § 5c(3) of the Protection Against Infection Act to coordinate a decision in line with the ‘four eyes’ or ‘six eyes’ principle – involving a third person with specialist expertise if a patient with a disability or comorbidity is affected by the allocation decision (‘consultation requirement’) – interferes with the complainants’ freedom of occupational practice by subjecting individual medical decisions to a collegiate decision making process.

II.

84

These interferences are not justified under constitutional law. Lawful interferences with Art. 12(1) of the Basic Law require a statutory basis and must respect the principle of proportionality (cf. BVerfGE 141, 82 <98 para. 47> on the prohibition of partnerships between lawyers and doctors or pharmacists; 145, 20 <67 para. 121>; 161, 1 <61 para. 148> – Lodging Tax; 163, 107 <136 para. 77>; established case-law). To be constitutionally justified, the challenged provisions must be compatible with the Basic Law in formal and substantive terms (cf. BVerfGE 163, 107 <136 para. 77>). In the present case, even mere formal compatibility is excluded, given that the Federation has no legislative competence for the challenged provisions under § 5c of the Protection Against Infection Act. The competence clause relied upon by the legislator, i.e. Art. 74(1) no. 19 of the Basic Law (cf. BTDrucks 20/3877, p. 11), is not applicable here, nor are other provisions which confer legislative powers to the Federation (including in particular Art. 74(1) no. 7 of the Basic Law).

85

1. a) Under Art. 70(1) of the Basic Law, the Länder have the right to legislate unless the Basic Law confers legislative powers to the Federation. As stated in Art. 70(2) of the Basic Law, the Federation is, first and foremost, afforded legislative powers in the provisions on exclusive legislative competence (Arts. 71, 73 and 105(1) of the Basic Law) and in the provisions on concurrent legislative competence (Arts. 72, 74 and 105(2) of the Basic Law). When the regulatory object of a law relates to different subject matters which, in part, fall within the legislative competence of the Federation and, in part, within the competence of the Länder, the regulatory object must be allocated to one of these two spheres of competence (cf. BVerfGE163, 1 <13 f. para. 22> – Wind turbines in woodland areas, with further references). Under the systematic approach of the constitutional order of competences, the area of legislative competence of the Länder is delimited by the scope of the Federation’s competence (cf. BVerfGE157, 223 <254 para. 82>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 26).

86

The interpretation of competence clauses in the Basic Law is based on the general rules of constitutional interpretation, according to which interpretation relies mainly on the wording, systematic structure, spirit and purpose and legislative history of the constitutional provision in question (cf. BVerfGE 163, 1 <14 para. 24>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 27). In this regard, state practice and the development of the relevant subject matter of the competence have particular significance. The legislative history is less relevant when the subject matter of the competence concerns factual circumstances, but has greater weight when the subject matter of the competence clause normatively addresses an existing area of law. In the latter case, the traditional and conventional understanding of that area of law takes on greater significance (cf. BVerfGE 3, 407 <414 f.>; 106, 62 <105>; 109, 190 <213>; 134, 33 <55 para. 55>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 27).

87

b) The assignment of a specific provision to a competence clause is based on its direct subject matter as identified by way of interpretation, statutory purpose, effects, the entities to which it is addressed, as well as constitutional traditions. The relevant competence clause is determined first and foremost by the objective subject matter of the law to be examined. In this respect, it is the substantive content of a provision rather than the designation chosen by the legislator that is determinative. The effects of a law must be established based on the law’s legal consequences. The statutory purpose is to be determined by recognised methods of legal interpretation, i.e. based on the wording, systematic structure, contextual meaning, as well as the legislative materials and legislative history (cf. BVerfGE161, 63 <92 f. paras. 56 f.; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 28; established case-law). The legislator’s objective intent as expressed in the provision is determinative in this regard. By contrast, subjective assumptions held by organs involved in the legislative process or by any individual members of theses organs are not a determining factor (cf. BVerfGE161, 63 <92 f. paras. 56 f.>; 163, 1 <14 f. para. 25>; Federal Constitutional Court, Order of the First Senate of 25 June 2025 - 1 BvR 368/22 -, para. 28 with further references; established case-law). If individual provisions of a law are ‘interlocked’ with the overall focus of the law to such an extent that they appear to be a part of the same framework, they belong to the same area of competence as the law as a whole does. Conversely, if an individual provision largely concerns a separate subject matter and is not closely interlocked with the law as a whole, this individual provision must be separately assessed in terms of competence allocation (cf. BVerfGE 137, 108 <161 para. 123>; 161, 63 <93 para. 58>; established case-law).

88

c) For a law to be formally constitutional, it is not essential that the law is based on the competence clause that the legislative proceedings and possibly the explanatory memorandum referred to. The Basic Law, generally, does not prescribe which parts of legislative proceedings require justification, nor when or how such justification must be provided. What is decisive is that the legislator ultimately does not fail to satisfy constitutional requirements (cf. BVerfGE132, 134 <162 para. 70>). A law may thus also be based on a different competence clause than the one denoted in the legislative proceedings (cf. BVerfGE140, 65 <80 para. 33> – Childcare Allowance).

89

2. In terms of legislative competence, the challenged provisions under § 5c of the Protection Against Infection Act must thus be assessed in isolation from the Protection Against Infection Act as a whole (see (a) below). Contrary to the legislator’s view, § 5c of the Protection Against Infection Act does not fall under Art. 74(1) no. 19 of the Basic Law (see (b) below); nor do other competence clauses apply (see (c) below).

90

a) The provisions under § 5c of the Protection Against Infection Act must be separately assessed in terms of legislative competence (cf. BVerfGE 137, 108 <161 para. 123>; 161, 63 <93 para. 58>). The legislator inserted § 5c of the Protection Against Infection Act under Section Two of the Protection Against Infection Act (‘Managing and Securing Public Health under Special Circumstances’). The provisions stand in isolation and are not interlocked with other parts of the Protection Against Infection Act. The only substantive element that these provisions have in common with the other subject matters regulated under the Protection Against Infection Act is that a communicable disease must at least be one of the causes for the shortage in life-sustaining intensive care resources. Apart from that, the subject matter of § 5c of the Protection Against Infection Act is fully independent from the Act as such.

91

b) As regards § 5c (1) through (3) of the Protection Against Infection Act, the Federation cannot rely on its legislative competence to regulate measures against communicable diseases under Art. 74(1) no. 19 first alternative of the Basic Law. The provisions under § 5c (1) through (3) of the Protection Against Infection Act, as designed by the federal legislator, concern only the effects of pandemic situations and as such do not constitute measures to combat communicable diseases as they serve neither to prevent nor contain the spread of communicable diseases (see (aa) and (bb) below). Given that the rules on handling triage situations are not indispensable for preventing and controlling communicable diseases, the Federation may also not assert a competence based on a substantive link to the regulatory subject matter or an annexed competence (see (cc) below).

92

aa) (1) The concurrent legislative power under Art. 74(1) no. 19 first alternative of the Basic Law encompasses measures against human diseases which pose a danger to the public or are communicable. ‘Disease’ within the meaning of Art. 74(1) no. 19 of the Basic Law is a pathological condition which usually requires treatment. A communicable human disease is a disease which is caused by pathogens or toxic products and is directly or indirectly transmissible to humans. These criteria are met when infectious diseases can entail a certain severity (BVerfGE159, 223 <281 para. 124> with further references). ‘Measure’ within the meaning of Art. 74(1) no. 19 of the Basic Law encompasses measures to control diseases following outbreak and those to prevent an outbreak (cf. BVerfGE 159, 223 <281 para. 124>; 159, 355 <396 para. 84> – Federal pandemic emergency brake II <School closures>; 162, 378 <414 f. paras. 85 ff.> – Proof of vaccination <Measles>).

93

Art. 74(1) no. 19 first alternative of the Basic Law may also encompass indirect measures to prevent or control diseases. In terms of preventive measures, however, it has not yet been clarified under constitutional law how closely the intended measure needs to be linked to the trigger of the disease ([...]). At any rate, if a measure merely has a vague consequential effect, this does not suffice to rely on a federal legislative competence under Art. 74(1) no. 19 of the Basic Law ([...]).

94

(2) The wording of the provision itself suggests that it does not suffice for its applicability if legislation relates only to the consequences of a pandemic situation without serving the containment or prevention of a communicable disease as such. While the term ‘measure’ is generally open to interpretation, the options of interpretation are restricted in the case at hand, given that the term is conjoined with the wording ‘to combat diseases’. The provision’s wording hence does not include every measure that is connected to a disease which poses a danger to the public or is communicable. Rather, this wording requires that the measure, to a certain extent, is geared towards containing or preventing a disease. Contrary to what the Federal Government opined in its statement, the wording of Art. 74(1) no. 19 of the Basic Law does not authorise the federal legislator to put in place a functioning healthcare system that provides curative treatment to infected persons but does not contribute to containing the spread of communicable diseases ([...]). It is true that curative treatment may be understood as ‘measures against communicable diseases’ from which the individual infected people are suffering. However, the wording of Art. 74(1) no. 19 of the Basic Law refers to measures against communicable diseases which actually affect human beings (‘bei Menschen’), i.e. not diseases which merely spread by human transmission (von Menschen), and thus expresses that the legislative competence relates to those provisions that serve the containment of communicable diseases occurring within German territory.

95

(3) The systematic structure of the Basic Law as well as ordinary law likewise suggest that the competence clause only refers to provisions which serve to contain or prevent a pandemic, and that this competence clause cannot serve as a basis for legislation which concerns only the effects of pandemic situations. All competences enumerated under Art. 74(1) no. 19 of the Basic Law (measures to combat human and animal diseases which pose a danger to the public or are communicable, admission to the medical profession and to ancillary professions or occupations, as well as the law on pharmacies, medicines, medical products, drugs, narcotics and poisons) serve to protect the population against severe health risks (cf. BVerfGE106, 62 <108>). Apart from that, however, there are no commonalities between the competences which this provision enumerates and which are limited to specific areas ([...]).

96

Given that the competences under Art. 74(1) no. 19 of the Basic Law are closely linked to the practice of the medical profession (in principle, it has been traditionally understood that regulating this subject matter falls to the Länder, cf. BVerfGE 102, 26 <38>), the Federal Constitutional Court ruled that the Federation’s legislative competence in matters on the law of the medical profession is limited to questions of admission to the medical profession and does not extend to the practice of the medical profession as a whole (cf. BVerfGE 102, 26 <37>). The Federal Constitutional Court therefore declared that federal law provisions which aimed at authorising doctors to directly supply self-produced drugs to their patients exceeded the Federation’s legislative power (cf. BVerfGE 102, 26 <39>). By putting in place the Federalism Reform in 2006, the legislator amending the Basic Law reacted to this ruling and extended the Federation’s legislative competence to include the law on medicines as a whole. In terms of the law on the protection against infection, however, the Federation’s competence remained limited to specific elements.

97

In terms of how to delimit the ‘admission to the medical profession and to ancillary professions or occupations’ as provided for under Art. 74(1) no. 19, from the practice of the medical profession, the Federal Constitutional Court expressly stated that the federal legislator is prohibited from regulating the practice of the medical profession (BVerfGE 98, 265 <305>). The Länder have the sole legislative competence for rules on professional disciplinary tribunals (BVerfGE 4, 74 <83>; 17, 287 <292 f.>), specialised doctors (BVerfGE 33, 125 <155>), advertising prohibitions (BVerfGE 71, 162 <172>) and the protection of professional titles (BVerfGE 106, 62 <124 ff.>).

98

In line with traditional practice, ordinary law, too, defines the term ‘measure’ as referring to either measures to avert diseases or measures to control diseases, but not to rules that concern only the effects of pandemic situations. The Protection Against Infection Act thus regulates measures to avert communicable diseases under Section IV (§§ 16 ff. Protection Against Infection Act) and measures to control such diseases under Section V (§§ 24 ff. Protection Against Infection Act). A term that goes further still than ’averting’ is the term ‘prevention’ which the Protection Against Infection Act denotes as its legislative purpose (cf. § 1(1) Protection Against Infection Act). As understood by the legislator, the term means prevention of infections, with preventive measures having in common that they should generally unfold their effect at the pre-outbreak stage ([…]). The essence and limits of ‘disease control measures’ find their clear expression in the general clause on protective measures under § 28(1) first sentence of the Protection Against Infection Act – these measures are only permissible ‘to the extent that and as long as’ they are ‘necessary to inhibit the spread of communicable diseases’. § 28(1) third sentence of the Protection Against Infection Act explicitly states that it is not permissible to order curative treatment. Disease control measures under ordinary law thus focus on containing the spread of infectious diseases.

99

(4) Finally, the history of legislative competence in the area of healthcare law also argues in favour of the competence being limited to rules for the containment or control of a pandemic situation and thus not extending to rules that only pertain to its effects. It is evident that, while the Reich was originally afforded extensive competences in healthcare matters, these competences were gradually transferred to the Länder over time. Under § 61 of the Frankfurt Constitution (Paulskirchenverfassung) of 28 March 1849, the Reich was to be competent for ‘putting in place general administrative healthcare measures in the interest of the common good’. Art. 4 no. 15 of the Constitution of the German Reich of 16 April 1871 afforded the Reich the competence for enacting ‘executive administrative measures to combat communicable human diseases’ as well as ‘veterinary police measures’. The Weimar Constitution of 11 August 1919 introduced the concurrent legislation for the Reich in healthcare matters, veterinary medicine and plant protection against diseases and pests (Art. 7 no. 8 of the Weimar Constitution); the Weimar Constitution thus also afforded the Reich legislator broad competences in healthcare matters.

100

Art. 36 no. 17 of the draft of the Herrenchiemsee Constitutional Convention afforded legislative competences to the Federation on specific healthcare matters and provided for the federal legislator to have precedence with respect to ‘measures against human diseases and animal pests that pose a danger to the public’. This was intended to include not only measures to control but also measures to avert such diseases and pests ([...]). Apart from a few further exceptions, however, healthcare matters were expressly to remain within the legislative competence of the Länder ([...]).

101

There were controversies in the Parliamentary Council on whether the wording ‘protection of humans against communicable diseases and epidemics’ was to be preferred to the term ‘measure’ ([...]). In the end, it was agreed to stick to the original term ‘measure’ on grounds that the other wording could be interpreted as also referring to ‘preventive protection’ ([...]). The Main Committee ([...]) and Competence Committee ([...]) in the Parliamentary Council, moreover, expressly stressed that, apart from questions of admission to the medical profession, the law regulating the medical profession was to remain within the legislative competence of the Länder (cf. BVerfGE 102, 26 <38>).

102

In 1968, the Federal Government intended to broaden the Federation’s legislative competence under Art. 74(1) no. 19 of the Basic Law. The plan was for the Federation to be competent for ‘measures to avert and control human diseases as well as for measures to combat animal diseases which pose a danger to the public or are communicable, (...)’ (BTDrucks V/3515, p. 2). The explanatory memorandum, inter alia, argued that this was necessary to enable the Federation to put in place legislative measures on health protection, including preventive health care, at the supraregional level (cf. BTDrucks V/3515, p. 3). The Bundesrat rejected this amendment on the grounds that there was no substantive reason for such amendment (cf. BTDrucks V/3515, p. 10).

103

This historical context favours a restrictive interpretation of Art. 74(1) no. 19 first alternative of the Basic Law. The members of the Parliamentary Council primarily had in mind measures to control that resembled the Reich Act Against Epidemics (Reichsseuchengesetz); preventive measures were only mentioned insofar as they were rejected. The fact that the competence clause was not expanded shows that the legislator amending the Constitution intended for the Federation’s legislative competence to remain limited to specific elements.

104

bb) Based on the above considerations, the provisions under § 5c of the Protection Against Infection Act do not constitute measures within the meaning of Art. 74(1) no. 19 first alternative of the Basic Law. In view of their specific design, these rules do not constitute instruments to prevent or control communicable diseases. Rather, they concern only the effects of pandemic situations – their starting point is a shortage caused by a pandemic; they do not themselves serve to control the pandemic.

105

(1) The provisions under § 5c of the Protection Against Infection Act are not of preventive character. Classic measures of prevention include informing and raising awareness among the public, measures of personal hygiene, building up and maintaining sufficient vaccination protection as well as specific preventive measures in community facilities and food safety measures. By contrast, § 5c of the Protection Against Infection Act contains rules on the practice of the medical profession, i.e. rules applying to situations in which doctors have to decide how to allocate life-sustaining intensive care resources that do not suffice for all patients in need of treatment. Neither do these rules contribute to stop the occurrence of communicable diseases, nor do they reduce the risk of infection; they only state how doctors are to prioritise patients when there is a shortage of intensive care resources. The provisions are thus geared towards handling a shortage of resources. They do not assist in preventing the cause of this scarcity, i.e. the pandemic as such.

106

(2) The rules under § 5c of the Protection Against Infection Act have also not been designed to control communicable diseases. Such an aim is neither discernible from the subject matter of the provision nor from its effects or the entities to which it is addressed.

107

(a) The effects of pandemic situations are the only subject matter of § 5c of the Protection Against Infection Act. The provision makes statutory prescriptions for allocating life-sustaining intensive care resources in case of shortage. § 5c of the Protection Against Infection Act thus focuses on regulating who may receive treatment. Whether the affected patients themselves suffer from an infectious disease is not a relevant criterion under this provision (cf. para. 11).

108

§ 5c of the Protection Against Infection Act does not provide how treatment is to be performed. The provision does not make prescriptions as to the treatment methods. A curative treatment of a communicable disease, however, can only be considered to contribute to controlling a disease within the meaning of Art. 74(1) no. 19 of the Basic Law if it contributes to containing the disease. For curative treatment to also serve disease control, such treatment would have to counteract the health risk that this infectious disease poses to the general public. The determining factor is thus not whether the medical measure serves to cure the infected person but whether the medical measure serves to counteract the spread of infection. In order to effectively contain infectious diseases, § 24 of the Protection Against Infection Act, for instance, explicitly prescribes that curative treatment must be performed by a doctor. In the interest of the general public, a correct treatment is to ensure that infected persons do not pose a risk of infection for third parties and to minimise the risk of infection of the person performing treatment ([...]). The provision at issue here, however, does not make prescriptions on how patients are to be treated ‘properly’, i.e. in a medically effective manner, and whether they must be isolated from other patients to eliminate further infection hazards. Nor is this a provision that establishes triage criteria in order to contribute to controlling a pandemic situation – irrespective of how such a provision would have to be assessed under constitutional law. Rather, the provision at issue here only concerns a normative decision to be made in an allocation conflict. While the presence of a communicable disease is just one factual requirement for the provision to be applicable, it is no longer even relevant for the allocation decision itself; rather, in case of a shortage of resources caused by a pandemic, the allocation decision is also to include patients who do not suffer from a contagious disease. This regulatory content also becomes evident when examining the provision’s systematic structure, given that the legislator decided to not place this provision in Section V of the Protection Against Infection Act titled ‘Control of Communicable Diseases’.

109

(b) The statutory purpose likewise supports this interpretation, as it does not suggest that the measures at issue serve to control pandemic situations.

110

(aa) § 5c(7) second sentence no. 1 of the Protection Against Infection Act and the explanatory memorandum explicitly mention the purposes of § 5c of the Protection Against Infection Act (cf. BTDrucks 20/3877, pp. 1 f. and 10), i.e. to avoid persons with disabilities being disadvantaged in allocation decisions, to sufficiently exclude the risk of discrimination also on grounds other than disability and to create legal certainty for doctors. None of these legislative purposes aims to contain communicable diseases that occur within German territory. Rather, even though the law specifically applies to cases of shortage caused by the pandemic, its express purpose is to resolve the triage dilemma as such, i.e. not only in respect of pandemic effects, in as non-discriminatory a manner as possible.

111

(bb) Nor would the optimised use of scarce resources − a purpose which the law does not expressly mention − serve to control a pandemic situation. § 5c(2) first sentence of the Basic Law may aim to provide the best possible protection of life by ‘saving the most’. In basing the allocation decision on the ‘current and short term probability of survival’, the aim is for the available intensive care resources to be used as efficiently as possible and for mortality to be as low as possible. It appears plausible that a higher survival probability correlates with shorter stays in intensive care and that applying this criterion thus enables more patients to receive intensive care ([...]).

112

This further aim, however, also does not serve to control pandemic situations within the meaning of Art. 74(1) no. 19 of the Basic Law, given that the optimisation approach is to be applied irrespective of whether a person requires treatment due to pandemic disease or another cause.

113

(c) The provisions under § 5c(1) through (3) of the Protection Against Infection Act also do not make an actual contribution to containing or even just slowing down the spread of communicable diseases.

114

By its very nature, a communicable disease entails that its local occurrence in one Land directly entails health risks for all people living in Germany, as there oftentimes is potential for the disease to spread rapidly. Conventional control measures prevent a supraregional spread or contribute to its containment. Accordingly, legislative provisions serve to combat a health risk if they prevent the spread of a disease or expedite its containment.

115

Based on these considerations, the challenged triage provisions are not geared against such a risk to health. They do not have an effect of controlling or containing pandemic situations, for instance by tackling a situation of shortage in the healthcare system and thereby, in turn, reducing health risks caused by the specific pandemic disease. Additionally, allocation decisions also involve those individuals who require intensive care treatment due to conditions other than the infectious disease.

116

§ 5c of the Protection Against Infection Act also does not unfold an indirect effect (cf. para. 93) which would noticeably contain infectious diseases. It cannot be excluded that the provisions under § 5c of the Protection Against Infection Act ease the burden on the healthcare system when triage decisions become necessary; this could strengthen the proper functioning of hospitals, which are the key treatment facilities for communicable diseases. Yet, a mere uncertain indirect effect in terms of easing the burden on the healthcare system does not suffice for a measure to meet the factual prerequisites to qualify as a measure of containment. There is an insufficient nexus between the intended measure and the trigger of the disease in this respect. § 5c of the Protection Against Infection Act is limited to the allocation of resources once a damage to health has already occurred which, in the specific case, need not even be linked to an infection.

117

cc) The Federation is also not conferred legislative powers based on a substantive link to the regulatory competences under Art. 74(1) no. 19 of the Basic Law.

118

(1) A competence based on a substantive link to other regulatory competences must be assumed to exist when a subject matter which falls within the Federation’s legislative competence cannot be regulated without having direct regulatory effects on another subject matter, i.e. when regulating the subject matter assigned to the Federation inevitably interferes with an area of competence which is generally assigned to the Länder (cf. BVerfGE3, 407 <421>; 98, 265 <299>; 109, 190 <215>; 110, 33 <48>; established case-law).

119

(2) These prerequisites are not met in the present case. The question of how to handle a shortage of treatment resources is a matter independent of Art. 74(1) no. 19 of the Basic Law (cf. also paras. 104 ff.); it is precisely because of this that (comprehensively) regulating the effects of a pandemic in terms of how to allocate scarce resources is not a necessary prerequisite for the Federation to make use of its legislative power on matters of protection against infection under Art. 74(1) no. 19 of the Basic Law.

120

dd) The Federation can also not rely on an annexed competence. In contrast to a competence based on a substantive link to other regulatory competences, an annexed competence does not expand the legislative competence in substantive terms but only with respect to steps of preparation and implementation (cf. e.g. BVerfGE8, 143 <149 f.>; 132, 1 <6 para. 17>). In the case at hand, the necessary link between the competence clause under Art. 74(1) no. 19 of the Basic Law and the provision at issue addressing the effects of a pandemic situation (cf. paras. 104 ff.) is missing.

121

c) Contrary to what has been submitted by the Federal Government, § 5c(1) through (3) of the Protection Against Infection Act further do not fall under the concurrent competence for public welfare under Art. 74(1) no. 7 of the Basic Law.

122

aa) The term ‘public welfare’ is not to be interpreted narrowly (cf. BVerfGE88, 203 <329> – Abortion II; 137, 108 <165 para. 135> on the interpretation of Art. 91e of the Basic Law; 140, 65 <78 para. 29>). Only if there is a special situation of potential need to which the legislator reacts can a regulatory object be a matter of public welfare (BVerfGE140, 65 <78 para. 29>). In this respect, it suffices for a law to aim to put an end to or alleviate a situation of need that entails specific burdens – such situation may even be defined by way of typification and need not necessarily be acute (cf. BVerfGE 140, 65 <78 f. para. 29>). Public welfare legislation also includes rules on organisational matters (cf. BVerfGE 106, 62 <133> – Care for the Elderly Act; 137, 108 <165 para. 135>). Public welfare is not limited to support measures in cases of economic emergency or acute need. Rather, it also encompasses preventive measures to compensate for emergencies and particular burdens as well as precautionary measure to prevent future need (cf. BVerfGE 106, 62 <134> with further references). Public welfare also encompasses new matters that may arise, provided that they share the core structural features of ‘classic welfare’ matters (cf. BVerfGE 106, 62 <133>; 108, 186 <214> on levies to finance trainees in geriatric care). For the rest, the public welfare competence clause is not confined to public sector benefits and duties but also includes third party duties (cf. BVerfGE 57, 139 <159>; 106, 62 <134>).

123

Such a broad understanding of the term ‘public welfare’ may entail demarcation issues, especially in healthcare matters. The decision of the constitutional legislator to limit the Federation’s legislative powers on healthcare matters to only certain elements (Art. 74(1) no. 19 and 19a of the Basic Law) must not be undermined by broadening the interpretation of legislative powers on public welfare matters (cf. BVerfGE 88, 203 <330>; 106, 62 <132>). A broad interpretation of the competence clause under Art. 74(1) no. 7 of the Basic Law would not only include support benefits of any kind to overcome financial losses caused by a pandemic but also comprehensive hospital planning measures to tackle the pandemic. This would mean that the Federal legislator could comprehensively legislate on matters of public healthcare, rendering any constitutional limitation of federal legislative powers on healthcare matters superfluous when it comes to addressing pandemic situations. The competence clause under Art. 74(1) no. 7 of the Basic Law thus in particular excludes laws that serve patient care, epidemic control or that in some other way primarily pertain to the health sector. From the outset, only narrowly defined healthcare elements may fall under matters of public welfare, e.g. benefits in case of need due to health issues or measures to compensate for a condition or disability. Art. 74(1) no. 7 of the Basic Law does not afford a general legislative competence to provide for public welfare in respect of healthcare matters; public welfare must not become a catchall in healthcare matters (cf. BVerfGE 88, 203 <330>; 106, 62 <132>; […]).

124

bb) Based on these considerations, the federal legislator cannot, with respect to § 5c(1) through (3) rely on the concurrent legislative competence clause for public welfare under Art. 74(1) no. 7 of the Basic Law. Art. 74(1) no. 7 of the Basic Law is subsidiary to Art. 74(1) nos. 19, 19a of the Basic Law, which constitute the more specific legislative competences.

125

The rules in § 5c of the Protection Against Infection Act do contain elements of welfare legislation insofar as they are intended to protect people with disabilities against discrimination. The fact that triage situations are not situations of economic emergency does not, as such, preclude them from constituting matters of ‘public welfare’. The fact that the provisions under § 5c of the Protection Against Infection Act are addressed to the treating doctors and do not directly impose obligations on the state likewise does not preclude these provisions from constituting ‘public welfare’ matters, given that the competence clause under Art. 74(1) no. 7 of the Basic Law also allows for duties being imposed on third parties. Nevertheless, as was the case in the Court’s decisions on the Care for the Elderly Act (BVerfGE 106, 62 <132>), Abortion II (BVerfGE 88, 203 <330>) and on the interpretation of Art. 91e of the Basic Law (BVerfGE 137, 108 <165 para. 136>), considerations under the systematic approach argue against the applicability of the competence clause in the case at hand.

126

§ 5c of the Protection Against Infection Act is a healthcare provision. It essentially is a health policy provision with a strong focus on legal questions of occupational practice. In this respect, § 5c of the Protection Against Infection Act differs from classic public welfare rules, such as the duty to employ severely disabled persons and the employer’s duty to otherwise pay a compensation levy − these are rules which the legislator may enact based on the competence clause for public welfare matters (cf. BVerfGE57, 139 <166 f.>). § 5c of the Protection Against Infection Act lacks a comparable focus on welfare matters. Although the provision does pursue aims that stem from anti-discrimination legislation, it determines the order in which medical treatment is to be provided in case of triage situations, thus constituting an allocation provision which primarily pertains to the professional conduct of doctors and procedural obligations under hospital law. The provision concerns the content of medical decisions and makes prescriptions in terms of hospital management and operation. Only if state measures to tackle a pandemic situation meet specific requirements may they fall under Art. 74(1) no. 19 of the Basic Law (cf. paras. 92-103) – this rule would be undermined if Art. 74(1) no. 19 of the Basic Law were to serve as a catchall competence.

127

d) The challenged provision does also not fall under the legislative competences for civil law or criminal law (Art. 74(1) no. 1 of the Basic Law).

128

aa) According to the legal views shaped by established German state practice and legislative tradition over the last 150 years, civil law encompasses the entirety of rules that are traditionally considered part of private law (cf. BVerfGE11, 192 <199>; 126, 331 <357>; 142, 268 <282 f. para. 54> – Liability of a person commissioning a service; 157, 223 <265 para. 111>). Civil law within the meaning of Art. 74(1) no. 1 of the Basic Law is not to be understood as being the opposite to public law, meaning that subject matters which nowadays would be considered part of public law may fall within the scope of application of Art. 74(1) no. 1 of the Basic Law, too (cf. BVerfGE11, 192 <199>; 157, 223 <265 para. 111>). The decisive factor is whether a provision regulates private law relationships, i.e. legal relationships between private parties and the rights and duties that arise therefrom – this also applies to private law provisions which are normatively linked to (specific) public law provisions and fall within the traditional scope of civil law, provided that private law remains their regulatory focus (cf. BVerfGE 42, 20 <31>; 142, 268 <282 f. para. 54>; 157, 223 <para. 111>).

129

Criminal law within the meaning of Art. 74(1) no. 1 of the Basic Law encompasses all repressive or preventive state measures against criminal offences (including ex post-measures), i.e. state responses to the criminal offence which exclusively apply to the offenders and are objectively justified due to the criminal offence (cf. BVerfGE 109, 190 <212>; 134, 33 <55 f. para. 55>).

130

bb) The challenged provision is neither part of civil law nor of criminal law.

131

§ 5c of the Protection Against Infection Act is not a provision of civil law. The rules under § 5c(1) through (3) of the Protection Against Infection Act concern doctors’ general obligations in triage situations. The fact that § 5c(4) of the Protection Against Infection Act expressly refers to the civil law provisions under §§ 630f and 630g of the Civil Code shows that it is not a priori excluded for the legislator to give shape to the regulatory matters at hand based on already existing civil law provisions on the doctor-patient relationship. This is also evident from the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz – AGG), which builds on Art. 74(1) no. 1 of the Basic Law. The legislator did not opt to regulate triage situations under the General Act on Equal Treatment as proposed in legal scholarship ([...]). Rather, the rules under § 5c (1) through (3) of the Protection Against Infection Act establish a duty framework applicable to the medical profession as a whole. Moreover, the duties of doctors regulated under § 5c of the Protection Against Infection Act apply with respect to all patients who require scarce resources and who therefore must be considered in the allocation decision. This is why the explanatory memorandum highlights that the provisions are applicable regardless of the contractual patient-doctor relationship (cf. BTDrucks 20/3877, p. 21). In particular, the legislator intended to regulate how to allocate intensive care resources in the event of shortage due to exceptional circumstances independently of contractual relations under civil law by introducing general standards applicable to the way in which doctors exercise their occupational activities. Interpreting the provisions restrictively to limit their applicability to civil law relationships in order to retain their validity would likewise contradict the clear intention of the legislator.

132

Based on its legislative purpose, § 5c of the Protection Against Infection Act is also not a provision of criminal law within the meaning of the competence clause. A reference to questions of criminal liability does not follow from the wording of the provision as such. In systematic terms, the fact that the provision was placed in Section II of the Protection Against Infection Act also speaks against § 5c of the Protection Against Infection Act constituting a criminal law provision. In terms of purpose, § 5c of the Protection Against Infection Act serves to avoid risks of discrimination when there is a health system overload caused by communicable diseases – the provision thus has preventive character without having direct effects in terms of criminal liability. A potential, mere indirect effect on criminal liability under § 212 of the Criminal Code (Strafgesetzbuch – StGB) does not make § 5c of the Protection Against Infection Act a provision of criminal law.

133

e) Lastly, there is also no federal legislative competence based on inherent grounds.

134

aa) A non-codified federal legislative competence based on inherent grounds exists when the subject matter necessarily concerns the state as a whole (cf. BVerfGE3, 407 <427 f.>) − aspects of expediency or a supraregional character of the subject matter alone do not suffice for this criterion to be met (cf. BVerfGE3, 407 <421 f.>; 12, 205 <250 f.>; 26, 246 <257>). This non-codified rule is rooted in the nature of things, thus not requiring an express recognition in the Basic Law; this rule stipulates that certain subject matters can only be regulated by the Federation if, by their very nature, they cannot fall within the legislative competence of the Länder but are a priori matters of federal competence (cf. BVerfGE 12, 205 <251>; 26, 246 <257>). A federal legislative competence based on inherent grounds is thus limited to few exceptional cases (cf. BVerfGE 134, 33 <101 para. 161>).

135

bb) It follows that, with respect to § 5c (1) through (3) of the Protection Against Infection Act, the federal legislator cannot rely on a legislative competence based on inherent grounds. In pandemic situations, rules on allocation do not necessarily need to be uniform across the state as a whole. It is not ascertainable that only the Federation would be able to effectively handle the risks of discrimination occurring in triage situations – particularly not due to an inability of the Länder to act in this regard (cf. BVerfGE84, 133 <148>; 85, 360 <374>).

136

While a pandemic may require doctors to implement a triage system supraregionally and simultaneously, the necessary decisions can generally be taken at the local level and thus be based on differing legal provisions. Already at present, i.e. after the enactment of § 5c of the Protection Against Infection Act, there is a comparable situation at the borders with other EU member states, which does not inevitably entail unmanageable consequences.

137

Nor would it be a priori impossible for the Länder, where necessary, to themselves mutually coordinate their legislation in order to manage cases at Land borders. Even if an agreement amongst the Länder on a certain minimum regulation standard should be essential, prescriptions by the Federation would not be strictly necessary. In exercising their legislative competences, the Federation and the Länder are obliged to mutually give due and reasonable consideration to the overall interest of the Federation (cf. BVerfGE 32, 199 <218>; 43, 291 <348>; 139, 321 <353 para. 101>; 160, 1 <25 para. 71> – Ban on the handling of nuclear fuel in the ports of Bremen; established case-law). If the effects of a legal provision are not limited to the territory of a Land, the respective Land legislator must take into account the interests of the Federation and the other Länder (BVerfGE 4, 115 <140>; 6, 309 <361>); the Land legislator must also ensure that the provision does not result in unreasonable strains, especially at Land borders. If necessary, the Länder must mutually coordinate their respective provisions to that end (cf. BVerfGE 73, 118 <196 f.>).

138

The fact that, in a pandemic situation of national proportions, uniform federal legislation may be preferable to such coordination at Land level (cf. BVerfGE 106, 62 <150>; 138, 136 <178 para. 115>) does not suffice for legislative powers to be conferred based on inherent grounds. According to the way in which the Basic Law currently distributes legislative competences, the Länder bear the main responsibility for enacting allocation standards that take into account risks of discrimination where such provisions only deal with the consequences of pandemic situations; such provisions must allow for making decisions that are viable across multiple Länder.

D. 

139

§ 5c(1) through (3) of the Protection Against Infection Act are incompatible with Art. 12(1) of the Basic Law and therefore void. Given that the federal legislator was not competent for enacting the provision at issue, there is no sufficient reason for the Court to issue a mere declaration of incompatibility with the Constitution, which would deviate from the principle of declaring incompatible provisions void pursuant to § 95(3) first sentence in conjunction with § 78 first sentence of the Federal Constitutional Court Act (cf. BVerfGE 155, 310 <355 para. 103> – Municipal Education Package). The declaration of voidness must be extended to § 5c(4) through (7) of the Protection Against Infection Act, because these provisions are inextricably linked with and exclusively draw their justification from the statutorily defined allocation decision and the substantive criteria on which such decision is to be based (cf. BVerfGE 166, 196 <286 Rn. 238> − Prisoner remuneration II).

140

The decision on expenses is based on § 34a(2) of the Federal Constitutional Court Act.

141

The decision was taken with 6 : 2 votes.