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Federal COVID measures were legal: German court

November 30, 2021

The German government's "emergency brake" measures have been deemed constitutional by a top court. The restrictions, imposed automatically if infection rates passed certain levels, included school closures and curfews.

Empty square at the Brandenburg Gate
The 'emergency brake' required regions to put curfews in place above a certain infection rateImage: Maja Hitij/Getty Images

Restrictions imposed by the German government on the populations of individual federal states to curb the spread of the coronavirus were fundamentally in line with the constitution, the Federal Constitutional Court ruled on Tuesday.

The so-called emergency brake, which was in force in Germany from April to the end of June, obliged states or districts to put in place curfews and other restrictive measures if the seven-day incidence rate per 100,000 people rose above 100 on three consecutive days. The measures included school closures if the rate surpassed 165 on three consecutive days.

The court handed down two rulings on Tuesday, one regarding curfews and contact restrictions, the other regarding school closures. Both rulings dismissed complaints against the measures that had been lodged with the court.

Several of the complaints were made by parliamentarians from the business-friendly Free Democrats (FDP), one of the three parties in the incoming coalition government. FDP leader Christian Lindner was among the complainants.

What did the court say?

In its ruling, the court said the restrictions on the number of people allowed to meet up and the curfews from 10 p.m. to 5 a.m. were proportionate to the situation.

It said the ban on in-person school attendance did not violate the right to schooling enshrined in the German constitution, with schools implementing online lessons when school closures were ordered. It also cited the fact that the closures were temporary in nature as being conducive to their compatibility with the constitution.  

While conceding that the measures did infringe on some fundamental rights, they were in line with the constitution "amid the extremely dangerous situation of the pandemic," the court said.

The rulings give a framework defining how much scope the national government has with regard to future measures taken to combat the pandemic.

Acting Chancellor Angela Merkel and her designated successor, Olaf Scholz, have said they will hold an online meeting with state premiers on Tuesday afternoon to discuss anti-COVID strategies in light of the court's decisions.

Acting Interior Minister Horst Seehofer welcomed the rulings by the court.

"The federal emergency brake entailed grave restrictions, but it enabled us to reduce infection numbers," he wrote onTwitter, adding: "I am sure that this will also be the aim of the future German government. The federal government and states must do all that is necessary to save lives."

Top FDP politician Marco Buschmann, who has been designated as the new justice minister, however, expressed disappointment at the rulings, particularly regarding curfews. But he said his party believed in the rule of law and respected the court's decision.

Why was the 'emergency brake' controversial?

The "emergency brake" agreed by the federal government in April proved controversial, as under the current version of the Infection Protection Act, Germany's 16 states usually enjoy a considerable degree of autonomy with regard to enacting and enforcing pandemic protection measures.

The Constitutional Court is to hand down a ruling at a later date on some 100 individual complaints regarding restrictions on the retail sector, cultural events and hotel industry, among other things.

The "emergency brake" was put in place as the country fought a third wave of the pandemic. There have been calls from some state premiers for the brake to be reimposed as a fourth wave rages in the country but so far nothing has been decided as the new coalition government prepares to take power.

tj/wmr (dpa, Reuters)