Order of 9 June 2026
- 2 BvE 1/22 -
COVID-related access restrictions within the German Bundestag
In an order published today, the Second Senate of the Federal Constitutional Court rejected applications in Organstreit proceedings (dispute between constitutional organs) directed against access restrictions within the German Bundestag enacted in January 2022 due to the COVID-19 pandemic.
Under the challenged rules, access to the main floor of the plenary chamber, to the main floor in the committee meeting rooms and to events of the Bundestag was restricted to persons who provided proof that they had either been fully vaccinated against COVID-19 or had recovered from it and, in addition to either of these, had tested negative for COVID-19 or had received a booster vaccine (so called ‘2G plus rule’). Furthermore, members of Parliament who did not meet these criteria, but had tested negative could only attend plenary sittings and committee meetings from designated seats in the gallery. The ceremony on 27 January 2022 commemorating the victims of national socialism could only be attended provided the requirements under the 2G plus rule were met; members of the Bundestag could not attend this ceremony in the gallery.
The application in Organstreit proceedings challenging these access restrictions in the Bundestag was unsuccessful. While the rules for plenary sittings and committee meetings affected participation rights under Art. 38(1) second sentence of the Basic Law (Grundgesetz – GG), they were justified to ensure the proper functioning of the German Bundestag during the COVID-19 pandemic. The same applies to the commemorative ceremony held on 27 January 2022, which, for organisational and practical reasons, could only be conducted under these restrictions in view of the realities of the pandemic at the time.
By orders of 26 January 2022 (cf. Press Release No. 4/2022, in German only) and of 8 March 2022 (cf. here, in German only), the Senate dismissed the applications for preliminary injunction that were lodged together with the application in Organstreit proceedings.
Facts of the case:
Given the increased risk of infection posed by the Omicron variant of COVID-19, the President of the German Bundestag issued an amended general administrative order on 11 January 2022 to curb the spread of COVID-19 on the premises of the German Bundestag. Areas of the Bundestag where the ‘3G rule’ (requiring vaccination, recovery or a negative test) had previously applied were now subject to the stricter 2G plus rule. Access to the main floor of the plenary chamber, the main floor in the committee meeting rooms and to events of the Bundestag was restricted to persons who had been fully vaccinated against COVID-19 or had recovered from it and, in addition to either of these, had tested negative for COVID-19 or had received a booster vaccine. Members of the Bundestag who did not meet the criteria of full vaccination or recovery could still take part in plenary sittings and committee meetings but only from designated seats in the gallery, rather than the main floor, if they provided a negative test. They could also attend committee meetings via electronic communication channels. The general administrative order applied from 12 January to 13 February 2022. On 12 January 2022, the German Bundestag adopted the 2G plus rules set out in the general administrative order as part of its parliamentary rules, against the votes of the AfD parliamentary group.
By letter dated 19 January 2022, the President of the Bundestag invited the members of the Bundestag to a commemorative ceremony held in the plenary chamber on 27 January 2022, the Day of Remembrance for the Victims of National Socialism. In her letter, the President noted that attendance of the commemorative ceremony would be subject to the 2G plus rule. She also informed the members of the Bundestag that they could not take part in the event from the visitor galleries.
The applicants – three members of the Bundestag and the AfD parliamentary group in the Bundestag – assert that the 2G plus rule in general and the access restrictions for the commemorative ceremony on 27 January 2022 in particular violated their rights under Art. 38(1) second sentence of the Basic Law and the principle of effective opposition following from Art. 20(2) second sentence and Art. 20(3) of the Basic Law.
Key considerations of the Senate:
I. The application in Organstreit proceedings is admissible for the most part only with regard to one of the three members of the Bundestag – applicant no. 3. He states that he met neither the criterion of vaccination nor that of recovery from COVID-19. The other two members of the Bundestag met the requirements of the 2G plus rule or did not demonstrate that this was not the case. The parliamentary group did not set out how the 2G plus rule, which was directed at members of the Bundestag individually, could have affected the rights of a parliamentary group or the principle of effective opposition.
II. Insofar as the application in Organstreit proceedings is admissible, it is unfounded.
1. The general 2G plus rule did not violate the applicant’s rights.
a) The rule does affect his right under Art. 38(1) second sentence of the Basic Law.
However, he was not precluded from attending plenary sittings and could also exercise his right to speak, to file motions and to vote. The differences between the conditions for the applicant and those on the main floor (the applicant had no access to the water cooler on the main floor, no desks at his seat in the gallery, and no access to the discussions in the lobby on the main floor, for example with journalists) are not sufficiently relevant to find an impairment of rights. Insofar as there was initially no display in the gallery showing the speaking time to the precise second, the applicant did not set out any relevant disadvantages, such as speakers in the gallery being interrupted by the chair.
Nevertheless, the applicant was affected by the rule providing that he could only attend plenary sittings from the gallery, and was not able to work under the same conditions as the members of the Bundestag who met the requirements of the 2G plus rule. Public debate in the plenary is a communicative process in the specific situation of the plenary which cannot be reduced to individual speeches. In terms of participation in these communicative processes in the plenary, it does play a role that members of the Bundestag sit together with the other members of their parliamentary group in a certain area of the plenary chamber, in line with parliamentary traditions.
b) However, the restriction is justified, because it was proportionate.
The allocation of seats in the gallery as a result of access restrictions to the main floor of the plenary chamber served to ensure the proper functioning of the Bundestag in light of the latest developments of the COVID-19 pandemic at the time. In January 2022, the rule was suitable to achieve this purpose. According to the scientific knowledge available at the time, it could be assumed that persons who had been vaccinated against COVID-19 or had recovered from it were less likely to be infected and, if they did become infected, were less likely to spread the virus and were infectious for a shorter period of time than persons who had not had any contact with the virus. Restricting access to a space or an event to persons who had been vaccinated against COVID-19 or had recovered from it was therefore considered suitable for reducing the risk of infection.
Whether alternative measures would have provided equivalent protection and should have been considered as less intrusive means does not just depend on the epidemiological risk assessment. The Bundestag is granted a prerogative to decide what combination of different measures to prevent infection constituted a less intrusive but equally effective means to ensure the proper functioning of the Bundestag in light of the consequences arising from such measures.
The 2G plus rule adopted by the respondents made it possible to dispense with physical distancing requirements for the majority of members of the Bundestag, thereby allowing the continued use of the available premises without major disruption. However, it made it necessary to allocate specific seats to a small proportion of members of the Bundestag. This was not without risk to the proper functioning of the Bundestag. Since most of the affected members of the Bundestag were part of one parliamentary group – applicant no. 1 –, the rule could be perceived as being directed against this parliamentary group and lead to conflicts in Parliament.
By contrast, if members of the Bundestag had not been separated under the 2G plus rule, this would either have resulted in a lower level of protection against infection for members who had been vaccinated against or had recovered from COVID-19, or have required the introduction of physical distancing rules. Such physical distancing rules would have impaired the proper functioning of the Bundestag due to the limited space available. Dispensing with physical distancing and instead accepting a greater risk of infection could also have affected the proper functioning of the Bundestag as it could have resulted in a greater number of absent members.
It cannot be conclusively determined whether, in light of these different consequences, the 2G plus rule or the 3G rule was the less intrusive means to ensure the proper functioning of the Bundestag; this therefore falls under the prerogative of assessment of the Bundestag.
Finally, the rules in place were also appropriate when taking into account the significance of equal participation in parliamentary decision-making. The 2G plus rule was initially set to apply for one month and was clearly limited to the specific context of the pandemic. Hence, there was no reason to consider that the rule created general division between members of the Bundestag. The possibility of drawing conclusions regarding the personal vaccination status of members of the Bundestag also does not render the 2G plus rule in the Bundestag unreasonable.
c) The same considerations justify the restrictions for committee meetings arising from the 2G plus rule.
2. The invitation to the commemorative ceremony on 27 January 2022, which was restricted to members who met the requirements of the 2G plus rule, also did not violate the applicant’s rights under Art. 38(1) second sentence of the Basic Law.
a) The restriction of the invitation to those who met the requirements of the 2G plus rule curtails the applicant’s right under Art. 38(1) second sentence of the Basic Law.
The right of members of the Bundestag to equal participation in the representation of the people not only covers debates and votes in the Bundestag, but also other events in which the Bundestag represents the population of the Federal Republic of Germany. This also includes the annual commemorative ceremony on 27 January, the Day of Remembrance for the Victims of National Socialism. The exclusion from this event affected the applicant’s participation right. However, it did not affect his ability to express his position on Holocaust remembrance. The commemorative ceremony was not intended to include speeches by individual members of the Bundestag or any direct political discussion.
b) The applicant’s exclusion is justified.
The access restrictions served to ensure that the commemorative ceremony on 27 January 2022 could be held at all. In line with its purpose, the ceremony was attended by many guests who required a particularly high level of protection against infection. Survivors of the Holocaust, in particular, were part of the group of especially vulnerable persons due to their advanced age. The gallery was reserved for guests, in particular Holocaust survivors, which meant that members of the Bundestag, including those who did not meet the requirements of the 2G plus rule, could not sit there. In light of the realities of the pandemic in January 2022, the commemorative ceremony could not have been held with the involvement of members of the Bundestag who did not meet the criteria of full vaccination or recovery; the only option to ensure the equal treatment of all members of the Bundestag would have been to cancel the event altogether. In this situation, the decision, following a balancing of interests, in favour of the ceremony and against the equal treatment of all members of the Bundestag was proportionate.