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Democracy and fundamental rights
Art. 2, 6, 1

Curfews in the Corona Emergency Brake Act

We brought an action against the night curfews in the Corona Emergency Brake Act. The Federal Constitutional Court states that they can only be considered in an "extreme situation of danger".

We considered the so-called Corona Emergency Brake Act to be unconstitutional with regard to the night curfew. On April 24 2021, we therefore filed a constitutional complaint together with twelve individuals. Our case did not challenge the entire "emergency brake", but specifically targeted the curfew. In its decision of 30 November 2021, the Federal Constitutional Court rejected our constitutional complaint - but it also confirmed the necessity of high hurdles for curfews.

The legal representative was the constitutional lawyer Prof. Dr. Anna Katharina Mangold, who had already prepared a legal opinion (in German) on the admissibility of the curfews on our behalf. The twelve complainants were, among others, members of the German Bundestag and the Berlin House of Representatives and belonged to different parties: BÜNDNIS 90/Die Grünen, FDP, Die Linke and SPD. There were also other individuals who had been affected by the curfew in various ways in their private lives.

Federal Constitutional Court: Curfews were lawful

In its decision on contact restrictions and specifically on curfews of 30 November 2021, the Federal Constitutional Court emphasised at virtually every point of its analysis the wide latitude that the Bundestag had in assessing the situation and the measures to be taken. It therefore limited itself to a "justifiability review". This is not a new invention of the court, however, the hands-off examination has a much stronger effect in the case of the federal emergency brake than otherwise, since many things seem to be "justifiable" during a pandemic.

Hence the court merely examined, albeit meticulously, whether the Bundestag could rely on a scientific basis for all its decisions and deliberations. This is also the standard for the future: not all measures are lawful. Rather, affected fundamental rights positions must be carefully and in detail balanced with each other on the basis of scientific evidence. Such declarations by themselves already show the value of constitutional complaints, since they provide important future guidance to the legislature on how to act in accordance with fundamental rights.

Urgent application against the curfew

In order to achieve an interim suspension of the curfews, we filed an urgent application in addition to our constitutional complaint on 24 April 2021. In its decision of 5 May 2021, the Federal Constitutional Court refused to temporarily suspend the curfews enshrined in the Corona "Emergency Brake Act". At the time, the court left open whether the curfews in the Infection Protection Act are compatible with the Basic Law, but decided to allow the regulation to continue to apply for the time being within the framework of an impact assessment.

The file number of our case at the Federal Constitutional Court is 1 BvR 805/21.

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