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reThe renewed exit restrictions at Berchtesgadener Land in Bavaria are surprising entrepreneurs across Germany. Retailers, restaurant operators and hoteliers in particular fear that they will soon be forced to close their stores across the country again for weeks. “We are approaching this situation by leaps and bounds across Germany,” Bavarian Prime Minister Markus Söder (CSU) said at the beginning of the week.
But would the uniform measures for the whole of Germany and tens of thousands of companies be legal? No, says Ferdinand Kirchhof, vice president of the Federal Constitutional Court until 2018. “A regulation at the national level would not be possible in a competent and objective way,” he told WELT.
From his point of view, the obstacles are higher this time than the first, because “the risk of a second closure is considerably higher for the catering, retail and tourism industries,” he said, referring to the freedom of occupation established in the Article 12 of the Basic Law.
The renewed restrictions on social life should also be weighed against other constitutionally protected legal interests, for example, general freedom of action (article 2 of the Basic Law).
Proportionality is also crucial for regional closures
Kirchhof often considers that the arguments politicians hear for renewing restrictions are legally insufficient. “A general overload of the health system cannot give any justification. So you have to create new capabilities quickly, ”he said. Nor should the rules pursue an educational objective; they could only be aimed at combating the specific danger.
“Ultimately, the state should be required to address specific risks in industries, events or hotspots, declare the suitability of its concepts to contain the hazard, and show that its measures not only contribute marginally to containment,” Kirchhof said . In the case of the accommodation bans, it was precisely this test of concrete risks that the politically responsible could not achieve, which is why the courts in the previous week granted the bans in the individual federal states in rows.
This also applies in case of regional closures like in Berchtesgaden. “Only if the measures contain specific and relevant risks and are appropriate compared to other legal losses, there will be no constitutional problems in place,” Kirchhof said.
For the constitutional lawyer Klaus Gärditz, the new interventions must be well founded. “For constitutional justification, it depends on the further development of the number of infections and on very specific measures that cannot be justified in a general way, but are only rationally based on subject and branch,” said Gärditz, professor of public law at the University of Bonn and deputy judge. at the Constitutional Court of North Rhine-Westphalia.
Better to cancel celebrations than to close schools
In principle, protecting health systems allows for very comprehensive measures to combat pandemics, Gärditz said. This could also include the nationwide closure of schools, restaurants and stores that do not need supplies. “But all the measures that would have to be taken here on the basis of the Infection Protection Act must be proportionate, must be particularly necessary and must not be arbitrary,” Gärditz said.
Lawmakers and regulators have a wide margin of judgment when making an assessment of what is likely to be effective and what is not. This requires a differentiation based on the current state of science. Knowledge about the virus is much more accurate today than it was in spring, although it is still associated with great uncertainties.
For reasons of proportionality, he believes that measures that prohibit the expendable, such as celebrations and large events, take precedence over measures that would have serious social consequences, such as the closure of schools. The effectiveness of hygiene concepts must also be carefully checked.
Gertrude Lübbe-Wolff, who was a judge at the Federal Constitutional Court between 2002 and 2014 and is now a professor at Bielefeld University, also notes that the restrictions must be proportionate. “That requires a weighing, taking into account the available knowledge,” he told WELT.
Decisions are made without going through parliaments
The challenge is that, under conditions of uncertainty, there are risks that cannot be precisely quantified. Weigh-in results are not constitutionally specified in detail. From their point of view, there is room for political decisions, which are ultimately accountable to the voters.
Lübbe-Wolff welcomed the fact that the courts intervened so quickly last week with the accommodation ban, emphasizing the particular responsibility of the courts. “You should only intervene in urgent procedures where a comprehensive review cannot yet be carried out when it is obvious from the outset that a restriction cannot last,” Lübbe-Wolff said.
Former constitutional judge Ferdinand Kirchhoff added to the criticism that had been strong in recent days that the federal and state governments did not make decisions about parliaments. He also sees a problem in the fact that the state only reacts to developments through executive statutory ordinances. “That was correct in the first quick access, but now, in a democracy, parliament is asked to legitimize, carry out and limit these far-reaching and long-term violations of fundamental rights,” Kirchhof said.
This also applies to state parliaments. “I also have doubts that such ordinances can still be based on the Infection Protection Act.” The regulations there are intended for delimitable individual cases, not for comprehensive and permanent measures.
