Unsuccessful constitutional complaints regarding curfews and contact restrictions in the Fourth Act to Protect the Population During an Epidemic Situation of National Significance (“federal pandemic emergency brake”)

Press Release No. 101/2021 of 30 November 2021

Order of 19 November 2021
1 BvR 781/21, 1 BvR 889/21, 1 BvR 860/21, 1 BvR 854/21, 1 BvR 820/21, 1 BvR 805/21, 1 BvR 798/21

In an order published today, the First Senate of the Federal Constitutional Court rejected constitutional complaints in several principal proceedings which challenged, among other things, the curfews and contact restrictions mandated to contain the COVID-19 pandemic inserted into § 28b(1) first sentence nos. 1 and 2 of the Protection Against Infection Act (Infektionsschutzgesetz – IfSG) by the Fourth Act to Protect the Population During an Epidemic Situation of National Significance (Viertes Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite) of 22 April 2021. The measures were limited to last a period of around two months, with non-compliance being subject to a fine. The curfews and contact restrictions were part of an overall protection strategy devised by the legislator to protect life and health and to maintain the proper functioning of the healthcare system as exceptionally significant interests of the common good. The measures did however seriously interfere with several fundamental rights. The Federal Constitutional Court reviewed these measures on the basis of the constitutional requirements generally applicable to all legislation that interferes with fundamental rights. It held the contact restrictions and even the curfews under review to be compatible with the Basic Law in the extremely dangerous situation of the pandemic; in particular, the measures were proportionate despite the severity of interference they caused. Regarding other restrictions taken with the Act, the constitutional complaint was not lodged in an admissible manner.

Facts of the case:

The Fourth Act to Protect the Population During an Epidemic Situation of National Significance of 22 April 2021, which came into effect on 23 April 2021, contained a range of pandemic containment measures that were inserted into the Act on the Prevention and Control of Infectious Diseases in Humans (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen), also known by its shorter title of the Protection Against Infection Act. The measures challenged here were linked to a seven-day incidence rate of 100 (§ 28b(1) IfSG). If the number of new SARS-CoV-2 infections per 100,000 inhabitants within seven days (seven-day incidence rate) were to exceed the threshold of 100 in a given city or district on three consecutive days, the measures specified in § 28b IfSG (the “Bundesnotbremse” or “federal pandemic emergency brake”) would apply in that locality with effect from the second day thereafter. Similarly, if the seven-day incidence rate in a city or district fell below 100 new infections per 100,000 inhabitants on five consecutive working days, the “emergency brake” ceased to apply in that locality with effect from the second day thereafter (§ 28b(2) IfSG). Pursuant to § 28b(10) first sentence IfSG, the challenged provisions were limited to apply no later than 30 June 2021.

§ 28b(1) first sentence no. 1 IfSG provided for contact restrictions. Private gatherings in public or private spaces were permitted only if they were attended only by members of one household plus one other person including any children under the age of 14 belonging to that person’s household. The provision exempted gatherings that took place exclusively with the participation of members of the same household, exclusively with the participation of spouses or partners, or exclusively in the exercise of a right of custody or contact with regard to minor children, or in the context of funerals or commemorative events for up to 30 persons.

In addition, § 28b(1) first sentence no. 2 IfSG provided for curfews. Persons were prohibited from venturing outside residential homes between 10 p.m. and 5 a.m.. The provision contained various exemptions as well. For instance, going outside between 10 p.m. and midnight for the purpose of physical outdoor exercise alone was exempt, as was going outside in order to avert a medical or veterinary emergency, to pursue one’s profession, to exercise rights of custody or contact with regard to minor children, or for similarly weighty purposes.

In addition, based on the authorisation granted in § 28c IfSG, the Federal Government adopted the Ordinance on Alleviations and Exemptions from Protective Measures to Prevent the Spread of COVID-19 (Verordnung zur Regelung von Erleichterungen und Ausnahmen von Schutzmaßnahmen zur Verhinderung der Verbreitung von COVID-19 – SchAusnahmV) on 8 May 2021 with the consent of the German Bundestag and the Bundesrat. The Ordinance set out exemptions for vaccinated and recovered persons from, in particular, the restrictions imposed on private meetings, the curfew and sports.

On the basis of § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the Senate invited numerous research and expert organisations from various fields to submit statements on a list of factual questions as expert third parties.

Key considerations of the Senate:

Insofar as the constitutional complaints were lodged in an admissible manner, they are unsuccessful on the merits. The contact restrictions mandated under §28b(1) first sentence no. 1 IfSG with their related fines and the curfews under § 28b(1) first sentence no. 2 IfSG with the corresponding administrative offence did not violate the fundamental rights of the complainants.

I. The contact restrictions mandated by § 28b(1) first sentence no. 1 IfSG interfered with the right to family life and the freedom to shape one’s marriage, arising from Art. 6(1) of the Basic Law (Grundgesetz –GG), and with the right to the free development of one’s personality (Art. 2(1) GG). However, these interferences both formally and substantively met constitutional requirements and were therefore justified under constitutional law.

1. The fundamental right to marriage and family under Art. 6(1) GG guarantees the right to meet with one’s relatives or one’s spouse in the manner and frequency of one’s own choosing, and to cultivate family relationships. The right to family life protects the actual community of parents living with and bringing up children, irrespective of whether they are married to each other or not; this right also covers specific family ties such as those that may exist between adult family members and between close relatives, in the same generation or over several. In addition, the fundamental right to the free development of one’s personality (Art. 2(1) GG) protects close family-like ties even outside the scope of protection afforded to marriage and the family. In its manifestation as a general right of personality, it also guarantees that meetings with other people are not entirely prevented and that the individual is not forced into loneliness; being able to meet other people at all is a foundational element of personality development. In its manifestation as a comprehensive general freedom of action, the fundamental right to the free development of one’s personality also protects the freedom to meet any other person of one’s choosing. The contact restrictions mandated in § 28b(1) first sentence no. 1 IfSG interfered with these fundamental rights.

2. These interferences with fundamental rights were formally constitutional. Measures to tackle communicable diseases fall within the Federation’s concurrent legislative powers pursuant to Art. 74(1) no. 19 GG.

3. The contact restrictions also did not violate the constitutional guarantee of individual legal protection afforded to the persons concerned, although they were designed as a self-executing statutory provision that required no administrative implementation in individual cases. Nor did their design disregard the limits on the legislator’s discretion regarding its choice of action resulting from the principle of the separation of powers or from individual fundamental rights, nor did it violate the requirement of general applicability (Allgemeinheitsgebot) arising from Art. 19(1) first sentence GG. Furthermore, the contact restrictions and the corresponding administrative offence were sufficiently specific.

4. The contact restrictions were also proportionate. They served constitutionally legitimate purposes, which the legislator pursued in order to also fulfil its duties of protection arising from fundamental rights. They were, according to constitutional standards, suitable and necessary to achieve these purposes and they were not disproportionate to them.

a) When statutory provisions result in interference with fundamental rights, such interference may only be justified if the legislator is pursuing constitutionally legitimate purposes. Whether this is the case is subject to review by the Federal Constitutional Court. For statutes that the legislator adopts with the aim of tackling situations that it assumes to endanger either the general public or the legally protected interests of individuals, the review conducted by the Federal Constitutional Court will include an examination of whether the respective assumption made by the legislator is based on sufficiently authoritative foundations. Thus, both the legislator’s assessment of the existence of such danger and the reliability of the foundations from which this assessment was or could be derived are subject to review by the Court. However, the Constitution also gives the legislator a certain leeway with regard to both questions, which limits judicial review. In such cases, the Court must review whether the legislator’s assessment and prognosis of the dangers to the individual or the general public are based on sufficiently reliable foundations. Depending on the nature of the subject matter in question, the significance of the affected legal interests, and the legislator’s possibilities to draw sufficiently reliable conclusions, the Court’s review can range from a mere review of evident errors to a review of reasonableness and even to a more comprehensive substantive review.  If the interferences with fundamental rights are serious, it is not, in principle, permissible for uncertainties in the assessment of facts to be unilaterally interpreted to the detriment of fundamental rights holders. However, the state’s duty of protection can be guided by “urgent needs for constitutional protection” – as is the case here. Where scientific knowledge is tentative and the legislator’s possibilities to draw sufficiently reliable conclusions are therefore limited, it is enough for the legislator to proceed on the basis of a context-appropriate and tenable assessment of the available information and evidence. This leeway is based on the legislator’s responsibility to decide on conflicts between high-ranking and highest-ranking interests despite uncertainties – a responsibility that the legislator, with its unique form of democratic legitimation, is accorded by the Basic Law.

Measured by this standard, the legislator pursued constitutionally legitimate purposes with the contact restrictions mandated in § 28b(1) first sentence no. 1 IfSG – both in terms of the individual restrictions and in light of the overall protection strategy with all measures taken. With the Fourth Act to Protect the Population During an Epidemic Situation of National Significance, the legislator was – according to the explanatory memorandum to the draft act – pursuing the objectives of protecting life and health. These objectives were to be achieved through effective measures for reducing contact between people. The paramount goals were to slow down the further spread of the virus and to interrupt its exponential growth in order to avoid overwhelming the healthcare system as a whole, to thereby ensure the provision of medical care nationwide. Protecting life and health and maintaining the proper functioning of the healthcare system are both exceptionally significant interests of the common good in their own right, and are thus constitutionally legitimate legislative objectives. Specifically, Art. 2(2) first sentence GG – which encompasses the protection of individuals against impairments to their physical integrity and health – can impose a duty of protection on the state, including a duty to take precautionary measures against health impairments.

The legislator’s assessment at the time when the Act was adopted – namely that there was a danger to life and health and a danger to the healthcare system – was based on authoritative factual knowledge. By assigning tasks to the Robert Koch Institute in accordance with § 4(1) IfSG, the legislator had in principle taken the necessary institutional steps to ensure that the information required for the assessment of measures to combat communicable diseases was collected and evaluated. One of the Robert Koch Institute’s tasks is to continuously update the findings on such diseases by analysing and publishing data on infection rates in Germany and by evaluating any relevant studies that appear worldwide, preparing them for the Federal Government and the general public. On this basis, at the time when the Fourth Act to Protect the Population During an Epidemic Situation of National Significance was adopted, the Robert Koch Institute assessed the overall risk to the health of the population in Germany as being very high due to the persistently high number of cases. In addition, the legislator made use of expert hearings in the competent committee of the Bundestag in order to address the underlying research findings. The assessments of the situation delivered by a number of research and expert organisations around the time when the challenged provisions entered into force and during the preceding period were similar to the ones made by the Robert Koch Institute. Furthermore, expert opinions on all the relevant issues were publicly available and widely discussed during the legislative process. There were differences of opinion in terms of how the danger was assessed, how the pandemic was expected to evolve and what steps should be taken to contain it. But at no point were reliable findings put forward suggesting that the danger to life and health from infection was minimal or non-existent or that there was only a minimal or non-existent danger of the healthcare system being overwhelmed.

b) The restrictions on contacts in private and public spaces mandated by § 28b(1) first sentence no. 1 IfSG were, according to constitutional standards, suitable for achieving the legislative objectives.

The suitability requirement is satisfied if there is a possibility of achieving the legislative objectives with the statutory provisions. When assessing whether a provision is suitable, the legislator has a certain leeway in terms of evaluating the factual situation, making any necessary prognoses and choosing the means by which the legislative aims are to be achieved. The extent of this leeway is not always the same, but depends on factors such as the possibilities to draw sufficiently reliable conclusions in the individual case. Again, if the interferences with fundamental rights are serious, it is not in principle permissible for uncertainties in the assessment of facts to be unilaterally interpreted to the detriment of fundamental rights holders. But if – as here – the interference takes place in order to protect important constitutional interests and if the legislator’s possibilities to draw sufficiently reliable conclusions are limited in view of factual uncertainties, the Federal Constitutional Court’s review is confined to assessing whether the legislator’s prognosis of suitability is tenable. This includes a review of whether the legislative prognosis is sufficiently reliable.

Measured by these standards, the contact restrictions mandated by § 28b(1) first sentence no. 1 IfSG were a suitable means of directly protecting human life and health from the dangers of COVID-19 as well as of preventing the healthcare system from being overwhelmed which, had it occurred, would in turn have posed considerable risks to the life and health of COVID-19 patients and of patients requiring in-patient treatment or even intensive care for other reasons. The legislator’s assumptions regarding the suitability of the contact restrictions were based on sufficiently authoritative foundations. According to the statements submitted by expert third parties in these proceedings, it was and is a well-established fact that SARS-CoV-2 is transmitted via respiratory secretions. Based on their detailed findings, the expert third parties largely agreed that any restriction of contacts between people makes a significant contribution towards containing transmissions of the virus.

The legislative technique linking the applicability of contact restrictions to localities where the seven-day incidence rate exceeds a threshold of 100 is likewise based on authoritative foundations. The legislator was acting within its margin of appreciation both when deciding to link the measures to the incidence rate and when setting the actual threshold value.

c) As measures to protect life and health and to maintain the proper functioning of the healthcare system, the challenged contact restrictions were also necessary under constitutional law. The contact restrictions would have been unconstitutional if there had been other means available that would have been as clearly effective as the contact restrictions in their specific form while at the same time restricting the affected fundamental rights to a lesser extent. However, based on the information about the transmissibility of the virus and the possibilities for curbing its spread that was available at the time when the Act was adopted, it is not objectionable under constitutional law that the legislator did not consider other conceivable and less intrusive means to be as effective as the mandated contact restrictions in achieving the purpose of the provision. This applies both to protection conferred by vaccination and to measures affecting personal interaction apart from contact restrictions.

d) The contact restrictions were also proportionate in the strict sense. According to this standard of review, the purpose pursued by a measure and the probability of its achieving that purpose may not be disproportionate to the severity of the interference. It is the task of the legislator to strike a balance between, on the one hand, the extent and severity of the interference with fundamental rights, and on the other hand the provision’s importance for achieving legitimate aims. The prohibition of excessive measures (Übermaßverbot) requires that the more severely individual freedom is restricted, the more significant the pursued interests of the common good must be. Conversely, the need to take legislative action becomes more urgent, the greater the dangers and adverse effects are that could potentially arise if fundamental rights were to be freely enjoyed with no restriction whatsoever. Here, the legislator satisfied these requirements.

The legislator was pursuing exceptionally significant aims of the common good with the contact restrictions. In doing so, the legislator wanted to protect life and health, which it is obliged to do under Art. 2(2) first sentence GG. Given the factual situation at the time when the Act was adopted, it could rely on the assumption of a need to act with particular urgency in order to protect those interests. In the balancing process, the legislator then reached a constitutionally sound compromise for the limited period in question, reconciling the particularly significant interests of the common good pursued by the contact restrictions on the one hand, with the considerable impairments to fundamental rights on the other. The legislator did not one-sidedly give precedence to the protection of life and health, nor, on the other side, did it fail to give proper regard to the fundamental rights of the complainants. Rather, when designing the contact restrictions, it introduced several safeguards to limit the extent of interferences with the affected fundamental rights – Art. 6(1) GG and the right to the free development of one’s personality in particular – without jeopardising the protection of life and health. In particular, there were mechanisms in the Act itself for limiting any adverse impacts of relevance for fundamental rights. Both the limited duration of the Act and the legislative approach in § 28b IfSG – oriented towards changing circumstances in the ongoing pandemic situation and allowing for regional distinctions – had a limiting effect in this sense. The measures mandated by the Fourth Act to Protect the Population During an Epidemic Situation of National Significance came into effect on 23 April 2021 and expired on 30 June 2021 in accordance with § 28b(10) first sentence IfSG. Thus, the maximum conceivable duration of the measures – which was not reached anywhere in Germany – was approximately two months. Also, the impact of the measures was only felt in cities and districts where the seven-day incidence rate exceeded the threshold of 100 on three consecutive days, lasting only until the incidence rate dropped back below the threshold for a certain period of time. Here, it should be noted that impairments of freedom are in principle of lesser severity the shorter their duration.

II. The curfews mandated in § 28b(1) first sentence no. 2 IfSG interfered with various fundamental rights. Ultimately, these interferences were likewise justified under constitutional law.

1. The curfews interfered with the fundamental right to liberty under Art. 2(2) second sentence GG in conjunction with Art. 104(1) GG. This right protects the actual physical freedom of movement – as provided for in the general legal order – against state interference. Yet from the outset, this fundamental right does not guarantee the freedom to go anywhere without restriction. In objective terms, the freedom of movement therefore depends on the possibility of actually and legally being able to make use of such freedom. As to the subjective side, the natural will to do so is sufficient. It should be noted here that Art. 2(2) second sentence GG in conjunction with Art. 104(1) GG affords protection not only against interferences caused by direct physical coercion, but that state measures involving coercion of an entirely psychological nature can also interfere with this fundamental right if their coercive effect is comparable in extent and impact to direct physical coercion. This was the case with the curfews challenged here.

2. The curfews also interfered with the right to family life and the freedom to shape one’s marriage arising from Art. 6(1) GG and with the right to the free development of one’s personality arising from Art. 2(1) GG. The curfews prohibited the complainants from freely arranging meetings with family members and partners, which extended beyond the contact restrictions in this regard.

3. Nonetheless, the curfew provision formally and substantively met constitutional requirements. The Federation had legislative competence for the curfews. The Act satisfied the requirements of legal clarity and specificity in legislation. Here as well, the choice of a self-executing provision was not objectionable under constitutional law. In particular, legislation that directly interferes with the freedom of movement without requiring any further implementation measures may satisfy Art. 2(2) third sentence and Art. 104(1) first sentence GG.

4. The challenged curfews were also proportionate in the specific situation. As part of an overall protection strategy, they served the constitutionally legitimate purpose of protecting life and health, they were, in the sense of constitutional law, suitable and necessary in order to pursue this purpose, and they were not disproportionate to that purpose.

The legislator’s assumption that it would be able to reduce the number of COVID-19 cases by means of the curfews mandated in § 28b(1) first sentence no. 2 IfSG is within the leeway it enjoys when assessing the suitability and necessity of a measure. The night-time curfews were intended to support the general contact restrictions under § 28b(1) first sentence no. 1 IfSG and the other protective measures of the overall protection strategy to fight the pandemic, especially in terms of ensuring compliance with the contact restrictions in indoor environments. This was based on the sufficiently authoritative assumption that, while transmission of and infection with the virus can be prevented indoors by protective measures such as physical distancing, mask-wearing, proper ventilation and general sanitary measures, this can only be enforced to a limited extent during the evening, at night and in private spaces. The fact that the legislator decided to reduce such interactions from the outset by means of comparatively easy-to-enforce curfews was not objectionable under constitutional law in view of the knowledge available at the time.

§ 28b(1) first sentence no. 2 IfSG also satisfied the requirement of proportionality in the strict sense. The legislator reached a constitutionally sound compromise for the period in question, reconciling the particularly significant interests of the common good pursued by the curfews, on the one hand, with the considerable impairments to fundamental rights caused by the curfews on the other. Within the framework of its protection strategy, the legislator did not one-sidedly give precedence to the interests of protecting life and health and of maintaining the proper functioning of the healthcare system. By setting out specific exemptions from the curfew restrictions in § 28b(1) first sentence no. 2 (a) to (g) IfSG, the legislator took particular account of conflicting interests protected by fundamental rights. This applied to the exercise of mandates and professions, including those of media representatives, who were allowed to work during night-time curfews. The legislator thereby recognised the fundamental rights under Art. 12(1) and Art. 5(1) second sentence GG. Also, the exemptions – for exercising custody and contact rights as well as for providing urgent care to persons in need of support and minors – served to mitigate the severity of interference with the fundamental rights under Art. 6(1) and (2) first sentence GG in particular. The combined effect of the exemptions specifically helped single parents, among others, in coping with the stress of their particular situation. The severity of interferences with fundamental rights was furthermore limited by the blanket-type exemption in § 28b(1) first sentence no. 2 (f) IfSG.

5. Overall, extensive curfews may only be considered as an option in situations involving extreme danger. In light of the findings regarding the effectiveness of the measures and the considerable danger to life and health – which were confirmed by expert third parties in these proceedings – the legislator’s decision to opt for the challenged measures under the specific circumstances of the pandemic was based on sound reasons and was compatible with the Basic Law.