Karlsruhe decides on the emergency brake – that could set a new pandemic policy

Karlsruhe decides on emergency brake: is there a lockdown coming? The Constitutional Court is setting the course for the Corona winter today

Shortly before the early federal-state round on Tuesday afternoon, the Federal Constitutional Court will decide on the constitutional complaints against the Corona emergency brake. It’s about the proportionality of curfews, schools and business closings – and for the traffic lights about the future corona policy.

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The Federal Constitutional Court published its first decisions on constitutional complaints against the federal corona emergency brake from the spring on Tuesday. This was announced by the highest German court in Karlsruhe on Friday on its website.

The proceedings concern exit and contact restrictions, as well as the school closings at the time. The future traffic light government also hopes that the two resolutions will provide guidance as to what is legally permissible in the fight against pandemics in the future and what is not. Only after the judgment does one know which measures are legally secure and therefore can also be applied in the future, so the argument of the traffic light groups.

Emergency brakes had to be pulled at incidence over 100 – more than 300 lawsuits

The emergency brake, which also affected many other areas of life, had to be pulled automatically across the country since April 24 if the so-called seven-day incidence exceeded 100 over several days. With a stable incidence value of 165, the emergency brake also stipulated that schools must be closed. Against the regulations, especially against the curfew, more than 300 lawsuits and urgent motions had been filed in Karlsruhe – by affected citizens, lawyers and 80 FDP members.

Urgent applications against the most controversial measures such as night exit restrictions were rejected by the constitutional judges in May. However, constitutional complaints are only examined extensively in the actual main proceedings. In order to be able to decide more quickly, the responsible First Senate under court president Stephan Harbarth had waived a hearing. However, statements were requested from experts from a wide variety of specialist areas. Written decisions of the court are always published in the mornings at 9.30 a.m.

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The judgment seems to be forward-looking – it has little effect on the past, except that the nullity of a law would, from a legal point of view, mean that it was never enacted. Consequences for plaintiffs do not seem to be expected. in the § 79 Abs. 2 The Federal Constitutional Court Act states: “Beyond the specific procedure, the nullity of a legal norm does not mean that all other decisions made on its basis become invalid.”

Are curfews and shop closings declared illegal?

Internally, it is expected that the Federal Constitutional Court will primarily declare the curfews to be inadmissible, as experts doubt their effectiveness and proportionality. But the Federal Constitutional Court could also question the proportionality of other measures such as general business closings.

In addition, it will also become important how the court decides on actual contact restrictions: It is not to be expected that it will raise fundamental objections, after all, reducing contacts is central to the pandemic. But that only one household plus one other person were allowed to meet could be clearly checked with a view to blended families and family visits in general. How much leeway will the court allow politics?

School closings and the effects on children and families will also be examined by the court. As part of the examination of the extent to which the waiver of face-to-face teaching was justified, the court dealt intensively with the effects on students. In addition, assessments were obtained from virologist Christian Drosten and the Robert Koch Institute. The court will also comment on other measures, for example that leisure facilities had to be closed or tourist overnight stays were prohibited – this ruling could therefore be particularly relevant for the current Corona winter.

What does the Karlsruhe ruling mean for the new traffic light law?

The future traffic light coalition members of the SPD, Greens and FDP have just completely revised the Infection Protection Act. With the change, the previous regulations on the federal emergency brake in Section 28b have also been replaced by new regulations. For example, curfews and the comprehensive precautionary closure of schools and daycare centers are no longer possible. It is true that the provisions of the court cannot be applied exactly to the new rules, as the now significantly higher vaccination rate forces different considerations.

In particular, the country leaders of the CDU and CSU are calling for stronger measures that are similar to the federal emergency brake in view of the high incidences and hospitalization rates. Thuringia’s Prime Minister Bodo Ramelow (Die Linke) told the editorial network Germany that he wanted to recommend at the Corona summit of the federal and state governments on Tuesday that “immediately prepare uniform measures analogous to the federal emergency brake”. However, the FDP in particular is currently ruling out extensive business closings.

The first two major decisions of the Federal Constitutional Court on the corona measures should therefore have a guiding character. Harbarth had said in mid-November in the ZDF “heute journal” that it was about “a certain law at a certain point in time”. However, the detailed justifications for the Karlsruhe decisions would usually result in “indications for follow-up questions that will arise, for example for upcoming pandemics or for measures in the current pandemic for the coming months”. The list of measures reduced by the traffic light groups, regardless of the epidemic situation, could therefore be expanded. This would require a legislative procedure in the Bundestag with the consent of the Bundesrat.

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al / with dpa

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