Germany's high court gives the thumbs up
Were Germany's highest judges too easy on the government?
On Tuesday, the Verfassungsgericht - Germany’s supreme court - gave its first full ruling on the constitutionality of lockdowns - specifically on the Notbremse lockdown which was enacted in April of this year.
This ruling marks a key milestone in the pandemic. The Verfassungsgericht, located in the town of Karlsruhe, is a central organ of the German Rechtsstaat. It was established after the Second World War with the role of protecting citizens’ constitutionally enshrined freedoms against overweening governments.
If the Verfassungsgericht had decided that parts of the Notbremse law were unconstitutional, it would have blotted Angela Merkel’s copybook a week before she hands over the keys to the Chancellery. More significantly, it would have established clear red lines for any new lockdown this winter.
On the other hand, a ruling that gave the Notbremse the thumbs up would give the next government a free hand to impose curfews and other contested measures aimed at reducing contacts.
In today’s member’s newsletter I’m summarizing the ruling and looking at how constitutional experts and newspapers have reacted. Lastly, I’m evaluating what it means for pandemic policy this winter.
What does the ruling say?
The judges were unambiguous in their support of the government’s right impose curfews, school closures and strict rules on private contacts.
The rules “served constitutionally legitimate purposes” and were “suitable in the constitutional sense, as well as being necessary to achieve their purposes, nor were they disproportionate,” the top court found.
Why did the judges come to such a decisive conclusion?
Their reasoning can be broken down as follows:
The ruling indicates that the court views Article 2 of the Grundgesetz - “everyone has the right to life and physical integrity” - as being more important than other articles of the constitution. Throughout the ruling the duty to protect public health and reduce the strain on the healthcare system is referred to as the “primary goal” and a “supremely important concern.”
The judges concluded that there was no reason to doubt the government’s claim that Germany was facing an acute danger to public health at the time. It refers to the independent role of the Robert Koch Institute (RKI) for gathering and assessing data on the spread of the virus and its conclusion that the virus posed a “high risk” to public health. Furthermore, other scientists corroborated the view of the RKI. The ruling notes briefly that other assessment differed “in detail” on the assessments of risk, the future development of the pandemic, and the measures needed to contain it.”
The government was acting at a time of crisis with limited information about the effectiveness of its measures. But because it had to act to protect public health, using poorly understood measures was justifiable. Or, as they put it: “If, due to uncertainty of the scientific knowledge, the legislator’s ability to form a sufficiently clear picture is limited, it is sufficient if they are guided by an appropriate and justifiable assessment of the possibilities available to them.”
The government did not have milder measures that it could use that would plausibly have been just as effective. Or in legal speak: “it is not constitutionally objectionable that the legislature did not regard milder means to be equally effective to contact restrictions in achieving the purpose of the regulation.”
The government did not completely ignore the other constitutional rights such as freedom of association, personal development, and the right to care for one’s family. The fact that the Notbremse only kicked in over a incidence of infection above 100 meant that restrictions were only temporary. “Impairments of freedom are generally less severe the shorter the period of time for which they apply,” the judged reasoned.
What has the reaction been?
There has been general surprise at the full-throated vindication of the government.
“That the endorsement was so wide-ranging is certainly surprising,” writes Heinrich Wefing, political editor at Die Zeit, before noting that the ruling gives the government “a lot of leeway, enormous leeway in view of the most severe restrictions on fundamental rights since 1945.”
For Wefing though, this laissez faire approach by the judges is to be welcomed. “From now on, the eternal dithering, the half-baked and indecisive nature of Germany’s Covid policy can no longer be blamed on constitutional considerations,” he says, before imploring the next government to bring in a new round of restrictions.
The Frankfurter Allgemeine Zeitung (FAZ) also seems relieved that the ruling frees up the incoming government to pursue more restrictions.
“The government can breathe a sigh of relief,” the FAZ writes. “They will continue to have the full arsenal at their disposal to combat the pandemic: contact restrictions, curfews, school closures - they all remain possible.”
But the conservative daily argues that ruling comes with safeguards. “It is by no means a carte blanche… everyone needs to constantly ask themselves whether more mild solutions are now available.”
Not a bit of it, argues Volker Boehme-Neßler, a professor of law at Onsanbrück University.
The ruling “focuses one-sidedly on the dangers posed by the pandemic. It loses sight of the equally great dangers associated with drastic and long-lasting encroachments on fundamental rights. That is fatal,” he wrote in an article published by Die Zeit.
Boehme-Neßler says that the judges failed to duly consider the fact that some measures, such as school closures, were based on controversial claims about their effectiveness.
“Is Karlsruhe still the guardian of the constitution, especially in this serious crisis? Today’s decisions cast doubt on that,” he warns.
Ulf Poschardt, editor in chief of Die Welt newspaper, was also bitterly disappointed by the ruling.
Suspecting that its aim was to “provide cover fire for the government”, he reminds readers that the presiding judge is a former member of the Bundestag for Merkel’s CDU.
“Karlsruhe can’t just exist to support the government. Our constitution needs guardians. The court needs to be filled with the country’s very brightest minds. It shouldn’t be a place of political calculation,” he says.
What does this mean for the government?
As most commentators have noted, the ruling gives the in-coming government plenty of Spielraum to bring in tougher measures to tackle the fourth wave of infections, which is currently putting renewed strain on intensive care wards.
Within the constellation of the new “traffic light” coalition, it marks a defeat for the liberal Free Democrats (FDP), who were among the parties that brought a complaint against the Notbremse before the Verfassungsgericht.
The FDP said they were “disappointed” but would accept the decision.
The other parties in the coalition - the Greens and the SPD - are more amenable to lockdowns and have ramped up their rhetoric since the ruling was made.
It also acts as a rod to the back of conservative leaders in the Bundesländer who have been pushing for the ability to impose stricter contact rules. Bavarian leader Markus Söder bragged on Twitter that it was “confirmation on every point” of his and Merkel’s policies.
On Thursday, a new round of talks between the federal and state leadership will be held at which more draconian new measures are expected to be agreed.
It was particularly notable that Chancellor-to-be Olaf Scholz, who has until now been hesitant to commit to either of the factions on lockdowns, came out in support of mandatory vaccines just hours after the ruling was made. He seems to have interpreted the ruling as backing at-all-costs intervention to protect public health
A vote in the Bundestag on whether to enforce vaccine mandates now seems almost certain, with even the FDP saying they would support a free vote.
Also imminent are new closures of clubs and bars, while the unvaccinated are likely to be barred from almost all aspects of public life except supermarkets and other shops considered “essential.”