Berlin Curfews, compulsory masks, school and business closures: Since the corona virus reached Germany exactly two years ago, politicians have taken many measures to contain the pandemic. Fundamental rights were restricted in a way that was hardly thought possible.
Many of these interventions led to court cases. According to the constitutional lawyer Michael Brenner from the University of Jena, there are now around 800 decisions by administrative courts and higher administrative courts on the state corona measures. They tended to consider “the state measures to be mostly lawful and proportionate”.
The most important decision was that of the Federal Constitutional Court on the “federal emergency brake”, says Brenner. This would reveal important guidelines. “This is where the government’s mandate to protect people’s life and health and the stability of the health system on the one hand and the civil liberties on the other are weighed up,” he explains. The General Court gave priority to the first aspect.
The decision of the Administrative Court of Baden-Württemberg in Mannheim at the end of 2020, which considered the night curfew from 10 p.m. to 5 a.m. to be constitutional and proportionate, is also groundbreaking.
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The assessment of the Higher Administrative Court of North Rhine-Westphalia from April 2020 should also be mentioned, according to which the closure of retail stores due to Corona is lawful. Or the judgment of the Hessian Administrative Court in Kassel in the same period: the judges then declared it lawful to ban meetings in churches, mosques and other religious meeting places.
For constitutional lawyers Brenner, it is questionable whether all the decisions made two or a year and a half ago would be the same given the current state of knowledge. Uncertainty was particularly high at the beginning of the pandemic. “So it was reasonable at the time that the courts were cautious.”
Courts intervened
However, some corona measures were not understandable for many citizens “with common sense”, were not stringent or would have counteracted other measures: “The courts then intervened,” explains legal expert Brenner.
The former president of the Federal Constitutional Court, Hans-Jürgen Papier, refers to the Bavarian administrative court in Ansbach, which at the beginning of the pandemic declared the ban on sales of shops with more than 800 square meters to be unconstitutional. The North Rhine-Westphalian Higher Administrative Court also had to intervene to declare the lockdown imposed on the entire district to be no longer proportionate after the corona outbreak in the Tönnies meat factory.
According to law professor Hinnerk Wißmann from the Westfälische Wilhelms-Universität Münster, the case law of the Lüneburg Higher Administrative Court deserves “particular attention”.
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The court had made some major decisions on corona measures and most recently, for example, repealed the 2G rule for retail and open-air sports fields in Lower Saxony. “Other higher courts have drawn critical boundaries from time to time, and increasingly so,” explains Wißmann.
Eligibility was uncertain
For constitutional lawyers Brenner, there are two important insights from the Corona case law. First: “All courts had to decide, especially at the beginning of the pandemic, whether the measures are suitable for combating the pandemic, although nobody actually knew and could not have known whether they were actually suitable.”
The classic examination of fundamental rights is based on a multi-stage examination scheme: First, the purpose of the legal regulation is asked. Then whether the measure taken is suitable, necessary and reasonable to fulfill this purpose. The latter is the actual proportionality test.
Normally, the constitutional court quickly clarifies whether a measure is appropriate, says Brenner. In the case of Corona, however, there was a lot of uncertainty. If a curfew is imposed at night from 10 p.m., does that actually reduce the number of infections? If churches are not allowed to be visited, does that actually suppress the infection process? “The judges could only take a sort of bearing and use human judgment to decide, but they couldn’t know,” says Brenner.
“All-Purpose Weapon” still in effect
According to Brenner, the second finding is that the principle of proportionality, the “all-purpose weapon” of constitutional lawyers, has proven its worth. If a measure is perhaps still disproportionate today, this could change after a few weeks with a view to the further development of the pandemic. The same applies to the reverse case.
This shows how flexible constitutional law and its application is, says Brenner. “The judges don’t have to judge things statically, so to speak, embedded in concrete, but can use the principle of proportionality to judge facts in the course of time.”
This also means that regional courts could come to different conclusions in what is essentially the same situation. Combating the pandemic on Helgoland is different than in Hamburg, Frankfurt or Munich. The principle of proportionality creates an always appropriate judicial management of the pandemic – as before.
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