Unsuccessful applications for preliminary injunctions in relation to the COVID-19 pandemic 

Press Release No. 23/2020 of 08 April 2020

Order of 7 April 2020
1 BvR 755/20

I. In an order published today, the Third Chamber of the First Senate of the Federal Constitutional Court rejected the application for a preliminary injunction suspending the Bavarian Ordinance concerning Coronavirus-Related Measures of Infection Prevention and Temporary Restrictions on Leaving One’s Home. The applicant claimed that the prohibitions on meeting friends, visiting his parents, attending demonstrations and meeting new people were too extensive.

The application was not inadmissible under the principle of subsidiarity (Grundsatz der Subsidiarität) given that first seeking legal protection before the ordinary courts currently has no prospect of success, as the courts have already refused to grant preliminary injunctions in other proceedings. However, the application was unfounded. The Chamber had to take its decision on the basis of a weighing of consequences, in a summary examination of the case, taking the impact of the challenged provisions on all persons affected into account. In the present case, the disadvantages that would result from a temporary application of the challenged measures, if they were later found to be unconstitutional, are particularly weighty. However, they do not clearly outweigh the disadvantages that would arise if the measures were suspended, but later found to be constitutional. In the current situation, the danger posed to life and limb outweighs the restriction of personal freedom.

Certainly, the challenged measures amount to a considerable restriction of fundamental rights of persons located in Bavaria. They stipulate that direct physical contact and largely any type of personal encounter must be limited or completely refrained from, they prohibit the operation of establishments where people meet, and they ban leaving one’s own home without a specific reason. If the preliminary injunction sought were not granted and the constitutional complaint were subsequently successful, all of these restrictions involving social, cultural and economic consequences that are considerable and presumably irreversible in parts would have been ordered unlawfully, and any punishment of potential violations against them would be unlawful as well.

Yet if, by contrast, the preliminary injunction were granted, but the constitutional complaint were unsuccessful, presumably many people would act in a way that the challenged provisions aim to prevent, even though the restriction of such conduct would be compatible with the Constitution. Establishments whose economic existence is affected by the closures would reopen, individuals would leave their homes more often, and direct personal contact between individuals would frequently occur. Consequently, based on the information available to date, the danger of being infected with the virus, of many people falling ill, of health care institutions being overwhelmed with the treatment of serious cases and, in the worst case, the danger of people dying would increase considerably.

A valid legal provision can, in the course of preliminary injunction proceedings, only be suspended in exceptional cases; here, a strict standard must be applied. Pursuant to this standard, the consequences of the protective measures challenged in these proceedings are serious but not unreasonable (unzumutbar) to the extent required. It does not appear to be unacceptable to temporarily postpone activities in order to facilitate, to the largest possible extent, the protection of life and limb, to which the state is in principle also obliged by the Constitution. The dangers posed to life and limb outweigh the restrictions of personal freedom. In this respect, it must also be taken into account that the provisions only apply temporarily, that they provide for many exceptions to the restrictions on leaving one’s home, and that individual interests of particular weight must be accounted for when exercising discretion as to the punishment of violations in a given case.

II. The Federal Constitutional Court has already published several decisions on matters relating to the COVID-19 pandemic. On the grounds that the requirements of the principle of subsidiarity were not met or that the application did not meet the statutory requirement to provide sufficient reasons, the Second Chamber of the Second Senate did not grant preliminary injunctions with regard to the cancellation of several dates for hearings in criminal trials, because of an alleged danger of infection with the coronavirus (2 BvR 474/20, 2 BvR 483/20 and 2 BvR 571/20). The First Chamber of the First Senate rejected the application for a preliminary injunction against the prohibition of assembly on the basis of infection prevention law because the complainant did not seek preliminary legal protection before the ordinary courts (1 BvR 661/20); it rejected another such application because the recognised legal interest in bringing an action was not sufficiently substantiated (1 BvR 742/20). Furthermore, that Chamber did not admit for decision a constitutional complaint against the Ordinance for Containing the Spread of the Coronavirus of the Land Berlin, since it did not meet the requirements of the principle of subsidiarity (1 BvR 712/20). The Third Chamber of the First Senate did not admit for decision a constitutional complaint against a new rule that limits the grounds on which landlords can terminate rental contracts, which was introduced in the context of amended provisions on the COVID-19 pandemic, as the constitutional complaint did not meet the statutory requirement to provide sufficient reasons (1 BvR 714/20).