Headnotes

to the Order of the First Senate of 16 December 2021

- 1 BvR 1541/20 -

Risks of disadvantages for persons with disabilities in triage situations

1. Article 3(3) second sentence of the Basic Law results, for the state, in a prohibition of direct and indirect discrimination on the basis of disability, and a mandate to effectively protect persons with disabilities against disadvantaging on the basis of their disability, including by third parties.

2. In situations of particular vulnerability, the mandate of protection arising from Article 3(3) second sentence of the Basic Law may culminate in a specific duty to take protective action. This includes situations where persons are subject to targeted exclusion that must be regarded as an attack on human dignity, where disadvantaging on the basis of disability entails risks for high-ranking fundamental rights interests, or in situations of structural inequality.

1. In the case at hand, the mandate of fundamental rights protection culminates in a specific duty to take protective action because there is a risk that persons will be disadvantaged on the basis of disability in the allocation of scarce, life-sustaining medical resources in intensive care.

3. Even when Article 3(3) second sentence of the Basic Law imposes a specific duty on the legislator to take protective action, the legislator enjoys a margin of assessment and appreciation as well as leeway to design, as long as it sufficiently ensures that persons with disabilities are in fact protected against being disadvantaged on the basis of disability.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 1541/20 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Harbarth,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 16 December 2021:

1. The legislator has violated Art. 3(3) second sentence of the Basic Law (Grundgesetz ) by failing to take measures to ensure that no one is at risk of being disadvantaged on the basis of disability in the allocation of life-sustaining medical treatment if sufficient intensive care resources cannot be provided to all who need them.

2. The legislator is obliged to take effective measures as soon as possible.

3. […]

4. […]

R e a s o n s:

A.

The constitutional complaint seeks effective protection against the disadvantaging of persons with disabilities in the allocation of medical resources in intensive care in the event that the COVID-19 pandemic leads to shortages during which treatment cannot be provided to everyone in need – in other words, if triage situations arise.

The complaint was lodged with an application for preliminary injunction. By Order of the First Senate of 16 July 2020, the Third Chamber of the First Senate of the Federal Constitutional Court rejected this application. At the time, there was no ascertainable specific risk that hospitals would run out of sufficient intensive care capacities to treat everyone in need.

I.

1. Persons with disabilities are specifically at risk in the COVID-19 pandemic. Those who live in institutional settings or who rely on several third parties for daily assistance bear an increased risk of contracting COVID-19, and they bear a higher risk of developing severe symptoms or dying from the disease (cf. among others […]; for a general overview, cf. World Health Organization, World Report on Disability, 2011, p. 55 ff.; United Nations, Report of the Special Rapporteur on the rights of persons with disabilities, 2018, A 73/161, para. 22 ff.). Addressing the COVID-19 pandemic, the United Nations identified risks that under current treatment protocols, persons with disabilities might not have equal access to healthcare in the event of triage situations (United Nations Policy Brief: A Disability-Inclusive Response to COVID-19, May 2020, pp. 5 f., 11, citing Truog et al., The New England Journal of Medicine 2020, 382(21):1973; cf. also COVID-19 Disability Rights Monitor, Disability rights during the pandemic, 2020, p. 41 ff.). Therefore, 138 states, including Germany, issued a statement calling for an inclusive response to the pandemic, i.e. a response that does not disadvantage persons on the basis of disability (Joint Statement on the UN Secretary-General’s call for a disability-inclusive response to COVID-19 – Towards a better future for all, 18 May 2020). Similarly, the Committee on the Rights of Persons with Disabilities and the Special Envoy of the United Nations Secretary-General on Disability and Accessibility (Basharu/Reyes, Joint Statement: Persons with Disabilities and COVID-19 by the Chair of the United Nations Committee on the Rights of Persons with Disabilities, on behalf of the Committee on the Rights of Persons with Disabilities and the Special Envoy of the United Nations Secretary-General on Disability and Accessibility, 2020), as well as the World Health Organization in its considerations on disability during the COVID-19 pandemic (WHO, Disability considerations during the COVID-19 outbreak, WHO/2019- nCoV/Disability/2020.1, 2020) highlighted the specific vulnerability of persons with disabilities in terms of discrimination during the pandemic and called on the community of states to ensure protection in this regard.

[...]

2. During the COVID-19 pandemic, the issue of limited intensive care capacities in hospitals has gained considerable attention. The risk of triage in the allocation of intensive care resources has repeatedly sparked public debate. [...]

3. To prevent shortages in intensive care and thereby triage situations from the outset, the legislator has enacted and amended numerous statutes and ordinances. Yet so far, there is no legislation that governs decisions on allocating intensive care resources in the event that shortages actually occur.

There is also no triage protocol based on international consensus, nor are there – as was confirmed by the statements received in the present proceedings – any universally applicable or legally binding standards. Rather, standardised recommendations are relied on as decision-making guidelines. [...]

To date, practitioners widely refer to clinical and ethical recommendations on “Decisions on the allocation of intensive care resources in the context of the COVID-19 pandemic” that have been issued by the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Deusche Interdisziplinäre Vereinigung für Intensiv- und Notfallmedizin – DIVI), in consultation with seven other professional associations (first version 25 March 2020, second version 17 April 2020, preliminary third version 23 November 2021). […]

[…]

II.

1. In their constitutional complaint, the complainants assert that the legislator failed to take measures to ensure that they are effectively protected against discrimination on the basis of disability in the event that triage situations arise in the course of the pandemic. […]

[…]

2. The complainants claim […] that the legislator has violated the prohibition of disadvantaging on the basis of disability laid down in Art. 3(3) second sentence of the Basic Law (Grundgesetz – GG), as well as the requirements derived from Art. 25 of the United Nations Convention of the Rights of Persons with Disabilities (CRPD). They argue that the legislator has not taken any action to ensure that they are effectively protected against disadvantages in the event that triage situations arise in the course of the pandemic. According to the complainants, this legislative inaction could also amount to a violation of their human dignity (Art. 1(1) GG) and of their fundamental rights to life and health (Art. 2(2) GG).

Complainants nos. 1 to 8 claim that their physical impairments, and the fact that they have to rely on assistance and support, leaves them particularly vulnerable when it comes to the risks arising from the COVID-19 pandemic. They fear that because of their disabilities they will have worse or no prospects of receiving treatment if there are shortages in life-sustaining intensive care resources. Their specific impairments would be regarded as comorbidities or indications of frailty from a medical point of view, most notably in the clinical and ethical recommendations issued by professional medical associations. Statistically, this would diminish the prospects of medical treatment, which is typically relied on as the decisive factor for resource allocation in intensive care. The complainants assert that there is no constitutional justification for the resulting disadvantages and that their right to protection against discrimination arising from Art. 3(3) second sentence GG is therefore violated.

The complainants argue that it is for the legislator to enact a legal framework governing decision-making in triage situations. While the Federal Government and the governments of the Länder have taken measures to prevent shortages in medical care from the outset, it seems uncertain whether shortages can indeed be prevented. The complainants submit that the law as it stands does not provide a legal basis for allocation decisions and provides no protection against discrimination. According to the complainants, only legislative proceedings in Parliament would allow affected persons to exert influence, and only formal legislation could sufficiently ensure that allocation decisions in triage situations are based on criteria that allow for an objective review, that there is no disadvantaging of persons with disabilities, and that there is a possibility of legal recourse as a last resort.

III.

The parties that have to be notified of the constitutional complaint proceedings and expert third parties were sent written questions. The Bundestag , the Bundesrat , the Federal Chancellery, the Federal Ministry of Justice and Consumer Protection, the Federal Ministry of Health and all Land governments were given the opportunity to submit statements. As expert third parties, the opportunity to submit statements was also given to the German Ethics Council (Deutscher Ethikrat ), the German Medical Association (Bundesärztekammer ), the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Deusche Interdisziplinäre Vereinigung für Intensiv- und Notfallmedizin e.V. – DIVI), the German Institute for Human Rights (Deutsches Institut für Menschenrechte – DIMR), the Bochum Centre for Disability Studies (Bochumer Zentrum für Disability Studies – BODYS), the German Disability Council (Deutscher Behindertenrat ), the association Netzwerk Artikel 3 – Verein für Menschenrechte und Gleichstellung Behinderter e.V. , the Federal Caritas Association of Health and Social Care and Mental Health Services for People with Disabilities (Bundesverband Caritas Behindertenhilfe und Psychiatrie e.V. – CBP) and the Federal Association of Protestant Disability Aid (Bundesverband evangelische Behindertenhilfe e.V. – BeB). Since the German Disability Council declared that, as per its general policy, the organisation does not submit expert statements, the following organisations were invited to submit statements as additional third party experts: Bundesarbeitsgemeinschaft Selbsthilfe von Menschen mit Behinderung, chronischer Erkrankung und ihrer Angehörigen e.V. (BAG Selbsthilfe ), Forum chronisch kranker und behinderter Menschen im Paritätischen Gesamtverband e.V ., Interessenvertretung Selbstbestimmt Leben in Deutschland e.V. (ISL), Sozialverband Deutschland e.V. (SoVD) and Sozialverband VdK Deutschland e.V.

[…]

B.

The constitutional complaint of complainants nos. 1 to 8 is admissible. They challenge legislative inaction, which is permissible in constitutional complaint proceedings (see I. below). They have met the particular prerequisites for establishing standing in such cases (see II. below). Their complaint also satisfies the principle of subsidiarity, given that the complainants could not reasonably be expected to first seek regular recourse to the ordinary courts (see III. below).

I.

The complainants seek effective legal protection against being disadvantaged on the basis of their disability, in view of the risk that they might be denied life-sustaining treatment if shortages in intensive care resources arise in the course of the COVID-19 pandemic. They therefore challenge legislative inaction. This challenge is permissible in constitutional complaint proceedings if a corresponding duty to take action on the part of the legislator can be derived from the Basic Law (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 129, 124 <176>; 139, 321 <346 para. 82> with further references). In the present case, the prohibition of discrimination on the basis of disability under Art. 3(3) second sentence GG provides a constitutional basis for potentially establishing a duty to act. Based thereon, the legislator may also be obliged to take action against risks of discrimination by third parties. […]

II.

Complainants nos. 1 to 8 have standing as they sufficiently demonstrate and substantiate a realistic possibility that their fundamental rights could be violated, because the law as it stands does not sufficiently protect them from being discriminated against in the allocation of life-sustaining intensive care resources in the course of the pandemic. It seems possible that the challenged inaction violates the state’s constitutional mandate of protection arising from Art. 3(3) second sentence GG (see para. 96 f. below).

1. Constitutional complaints seeking a declaration that the legislator has violated its duty of protection must satisfy a specific burden of substantiation.

a) Firstly, the complainants must demonstrate that fundamental rights entail a mandate of protection as the basis of their challenge.

b) Secondly, the complainants must demonstrate that this mandate of protection may actually have been violated. The legislator is afforded wide leeway in fulfilling its mandate (cf. BVerfGE 77, 170 <214 f.>; 79, 174 <202>; 88, 203 <262>; 106, 166 <177>; 121, 317 <356>; 156, 224 <239 para. 42>; Federal Constitutional Court, Order of the First Senate of 8 June 2021 - 1 BvR 2771/18 -, para. 48 ff.). Therefore, the Federal Constitutional Court will only find a violation of such a mandate of protection if no protective measures have been taken at all, or if the adopted provisions and measures prove to be manifestly unsuitable or completely inadequate for achieving the required aim of protection, or if the provisions and measures fall significantly short of that aim (regarding Art. 2(2) first sentence GG, cf. Federal Constitutional Court, Order of the First Senate of 24 March 2021 - 1 BvR 2656/18 inter alia -, para. 152 with further references; regarding Art. 2(1) in conjunction with Art. 1(1) GG, cf. Federal Constitutional Court, Order of the First Senate of 8 June 2021 - 1 BvR 2771/8 -, para. 50; established case-law). Thus, a possible violation of fundamental rights can only be derived from the complainants’ submissions if they go beyond general assertions and the selective highlighting of inadequacies in the law as it stands. Rather, complainants must address the entire legislative context, which requires – depending on the specific case – that relevant provisions of the legislative framework challenged by the complainants are at least outlined and that reasons are given as to why the legislative design must be considered lacking (cf. BVerfG, Order of the First Senate of 8 June 2021 - 1 BvR 2771/18 -, para. 51). In the present case, the complainants must therefore at least address the relevant factual circumstances and available data pertaining to them, as well as relevant statutory provisions and rules pertaining to protection against disadvantaging, and they must explain why the law as it stands is insufficient to satisfy the constitutional requirement of effective protection against disadvantaging on the basis of disability under Art. 3(3) second sentence GG.

c) Constitutional complaint proceedings do not provide general recourse to raise constitutional concerns. Therefore, a constitutional complaint is only admissible as a remedy in cases where someone is individually, directly and presently affected by a possible violation of fundamental rights. As for the challenge at issue here, i.e. that the legislator violated Art. 3(3) second sentence GG by failing to take sufficient measures of protection, the constitutional complainant is only admissible if the complainants demonstrate in a comprehensible manner how and to what extent they are personally and directly at risk of being disadvantaged on the basis of disability, and what consequences could result therefrom. The mere possibility that the complainants’ rights might be affected at some point in the future is not sufficient (cf. BVerfGE 114, 258 <277>; 140, 42 <58 para. 59>; Federal Constitutional Court, Orders of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 86; - 1 BvR 971/21 inter alia -, para. 32).

2. The constitutional complaint of complainants nos. 1 to 8 satisfies these substantiation requirements.

a) […]

b) [...]

c) […]

aa) The complainants have sufficiently demonstrated that their fundamental rights are presently affected. They have established reliable indications suggesting that, at the time their constitutional complaint was lodged, there were already specific risks that the demand of patients needing life-sustaining treatment might exceed the resources available in intensive care. [...] Here, it must be taken into account that in the context of a pandemic, it is notoriously difficult to predict transmission dynamics and the prevalence of severe cases, which makes it equally difficult to assess the situation in intensive care. [...] At the time the constitutional complaint was lodged, there had already been real and not just theoretical (cf. inter alia BVerfGE 114, 258 <277>) risks that shortages in intensive care resources could arise and that this could lead to persons being disadvantaged on the basis of disability in the allocation of such resources.

At present, as the Court renders its decision, these risks persist. […]

bb) Complainants nos. 1 to 8 have also sufficiently asserted and substantiated that they are individually and directly affected by the specific risks of disadvantaging on the basis of disability in the event that shortages in intensive care resources arise in the course of the pandemic. In this respect, it is not necessary for the complainants to show that they have already been disadvantaged or that such disadvantaging is inevitable. […] For their challenge to be admissible, it is sufficient that the complainants demonstrate, in a comprehensible manner, that real risks of such disadvantaging exist.

[...] It is ascertainable that the complainants are more vulnerable to such risks than persons without disabilities, both regarding the risk of infection to the extent that the complainants in their daily lives have to rely on significant assistance provided in close physical proximity, and regarding the risk of developing severe and life-threatening symptoms to the extent that the complainants have pre-existing conditions linked to a higher likelihood of severe illness. […]

[…]

III.

The constitutional complaint satisfies the principle of subsidiarity derived from § 90(2) BVerfGG.

[…]

C.

The constitutional complaint lodged by complainants nos. 1 to 8 is well-founded.

Based on their complaint, the review conducted by the Court was limited to deciding whether the Basic Law imposes a duty on the legislator to take effective measures to ensure that no person is disadvantaged on the basis of disability in the event of pandemic-related shortages in intensive care resources, i.e. in triage situations. To date, the legislator has taken no such measures. This legislative inaction violates the duty to take action arising from the mandate of fundamental rights protection under Art. 3(3) second sentence GG.

I.

Art. 3(3) second sentence GG imposes on the state a mandate to effectively protect persons with disabilities against disadvantaging on the basis of their disability (see 1. below). In certain situations, this mandate of protection gives rise to a specific duty to take action (see 2. below). At the same time, the legislator is afforded broad leeway in designing the framework of protection, which limits the scope of judicial review as to whether the legislator has violated a constitutional duty of protection (see 3. below). These standards of German constitutional law give effect to international law, in particular the UN Convention on the Rights of Persons with Disabilities, which, according to Art. 1(2) GG, must be taken into account in the interpretation of the Basic Law (see 4. below).

1. Art. 3(3) second sentence GG imposes on the state a mandate to effectively protect persons with disabilities against disadvantaging on the basis of their disability.

a) A ‘disability’ under Art. 3(3) second sentence GG is defined as a long-term impairment affecting a person’s ability to lead their life as an independent individual. This covers considerable long-term impairments, but not marginal limitations. By contrast, the cause of disability is irrelevant in this respect (BVerfGE 151, 1 <23 f. para. 54> with further references). Therefore, the protection afforded under this fundamental right extends to chronically ill persons whose impairments are similarly long-term and considerable ([...]; cf. also Art. 1 second sentence CRPD).

b) A ‘disadvantage’ because of a disability occurs when a human being is excluded, because of their disability, from opportunities of development and activity available to others, unless this is sufficiently compensated by measures of accommodation (cf. BVerfGE 96, 288 <302 f.>; 99, 341 <357>; 128, 138 <156>; 151, 1 <24 para. 55>).

c) Art. 3(3) second sentence GG protects, as a defensive right, against disadvantaging by the state (see aa below). Moreover, this fundamental right encompasses a mandate to support persons with disabilities (see bb below). It also contains a decision on objective constitutional values that must be observed in all areas of law (see cc below). Lastly, Art. 3(3) second sentence GG imposes a mandate of fundamental rights protection upon the legislator (see dd below), which, in certain situations, may culminate in a specific duty to take action (see 2. below).

aa) In its dimension as an individual defensive right against the state, Art. 3(3) second sentence GG prohibits direct and indirect discrimination (cf. BVerfGE 151, 1 <24 para. 55> with further references), and thus precludes unequal treatment with disadvantaging effects. This concerns not only legal provisions and other measures that exacerbate the situation of persons with disabilities, but also acts of public authority that exclude persons from opportunities of development and activity available to others, unless the exclusion is adequately compensated by measures of accommodation (cf. BVerfGE 96, 288 <303>). A legal disadvantaging on the basis of disability can only be justified if it is indispensable to address specific circumstances arising from a disability as such (cf. BVerfGE 99, 341 <357>; see also BVerfGE 151, 1 <25 para. 57>).

bb) In addition to the prohibition of disadvantaging, Art. 3(3) second sentence GG encompasses a mandate of support. It confers an individual claim to equal participation in accordance with the financial, staffing, factual and organisational resources available (cf. BVerfGE 151, 1 <24 f. para. 56> with further references).

cc) Moreover, the prohibition of disadvantaging on the basis of disability set out in Art. 3(3) second sentence GG constitutes a decision on objective constitutional values, which must be observed in all areas of law. This prohibition therefore permeates private law. Specifically, it is incumbent upon the ordinary civil courts to give effect to this prohibition when interpreting statutory blanket clauses or other legal provisions that are open to interpretation and require value judgments ([...]).

dd) As a decision on objective constitutional values, Art. 3(3) second sentence GG is binding on all state authority. It is not least the legislator on whom Art. 3(3) second sentence GG imposes a duty to take measures ensuring that persons with disabilities are protected against being disadvantaged. The aim of this fundamental right is to prevent and overcome legal and social barriers (cf. BVerfGE 96, 288 <302>; similarly Bundestag document, Bundestagsdrucksache – BTDrucks 12/8165, p. 28). In this respect, Art. 3(3) second sentence GG gives rise to a mandate of fundamental rights protection. This mandate could not be realised if the scope of Art. 3(3) second sentence GG were limited to situations for which the state bears direct and causal responsibility, given that the exclusion of persons with disabilities in society does not solely stem from state action. To prevent exclusion of persons with disabilities, Art. 3(3) second sentence GG thus also compels the legislator to provide protection against disadvantaging on the basis of disability by third parties ([...]).

2. In certain situations, the constitutional mandate of protection arising from Art. 3(3) second sentence of the Basic Law may culminate in a specific state duty to take protective action. This does not mean that Art. 3(3) second sentence GG imposes on the legislator a comprehensive duty to take action addressing the entire lived reality of persons with disabilities and their social environment. It must also be taken into account that private actors, unlike state actors, are not directly bound by fundamental rights guarantees that prohibit disadvantaging (Art. 1(3) GG). Yet the constitutional mandate of protection may culminate in a specific state duty to take protective action in certain situations where persons with disabilities are particularly vulnerable (cf. BVerfGE 142, 313 <338 para. 71>; Federal Constitutional Court, Order of the First Senate of 8 June 2021 - 1 BvR 2771/18 -, para. 35). This includes situations where persons are subject to targeted exclusion that must be regarded as an attack on human dignity (on the prohibition of disadvantaging rooted in the guarantee of human dignity, cf. BTDrucks 12/6323, p. 12; see also BVerfGE 144, 20 <207 f. para. 541>). A specific duty to take action may also arise on the grounds that disadvantaging on the basis of disability results in risks to high-ranking fundamental rights interests (cf. BVerfGE 49, 89 <142>; 88, 203 <252>). This is the case, in particular, if the protection of life is at stake (Art. 2(2) first sentence GG). Specific state duties to take action may also arise in situations where persons with disabilities face structural inequalities. By contrast, persons with disabilities are less vulnerable if they can ensure their own protection through reasonable measures available to them (cf. BVerfGE 142, 313 <338 f. para. 73>; Federal Constitutional Court, Order of the First Senate of 8 June 2021 - 1 BvR 2771/18 -, para. 40). Lastly, the extent to which protection is merited depends on the type, proximity and scope of existing disadvantages, or the risk thereof, in social reality.

3. Where a specific duty to protect arises, the Federal Constitutional Court may only find a violation of this duty if no protective measures were taken at all, or if the adopted rules and measures prove to be manifestly unsuitable or inherently inadequate for achieving the required aim of protection, or if the measures in question fall significantly short of the aim of protection (cf., on Art. 2(2) first sentence GG, BVerfGE 142, 313 <337 f. para. 70>).

Generally, the legislator has a broad margin of appreciation and assessment as well as leeway in terms of design in deciding how to fulfil a mandate of fundamental rights protection (cf. BVerfGE 96, 56 <64>; 121, 317 <356>; 133, 59 <76 para. 45>; 153, 182 <268 para. 224>). The scope of this latitude depends on various factors, including, in particular, the specific nature of the matter in question and the significance of the affected legal interests (cf. BVerfGE 76, 1 <51 f.>; 77, 170 <214 f.>; 88, 203 <262>; 153, 182 <268 para. 224>). Where fundamental rights give rise to a mandate of protection, the Basic Law does not generally prescribe what specific measures the legislator must take (cf. BVerfGE 125, 39 <78>). It is only in special circumstances that legislative latitude is restricted to one specific option as the only measure capable of giving effect to the state’s mandate of protection (cf. BVerfGE 56, 54 <73 ff.>; 77, 170 <214 f.>; 79, 174 <202>; 88, 203 <254 ff., 257>). Otherwise, the legislator is free to decide, within the limits of its latitude, whether to enact substantive legal provisions or procedural requirements to ensure the effective fundamental rights protection required under constitutional law (cf. BVerfGE 53, 30 <65 ff.>; 84, 34 <45 f.>; 113, 29 <57>; 147, 253 <311 para. 120>).

4. These constitutional standards are in line with international law obligations, which must be taken into account when interpreting the Basic Law.

a) In particular, the European Convention on Human Rights, as interpreted by the European Court of Human Rights (ECtHR), guides the interpretation of the Basic Law’s fundamental rights guarantees (cf. BVerfGE 74, 358 <370>; 82, 106 <114>; 111, 307 <317>; 151, 1 <28 para. 64>; established case-law). Art. 14 of the Convention prohibits discrimination based on ‘other status’. In this respect, the European Court of Human Rights recognises a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment, which is reflected in Recommendation 1592 (2003) towards full social inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003 (cf. ECtHR, Glor v. Switzerland, Judgment of 30 April 2009, no. 13444/04, § 53). Accordingly, public benefits schemes must not be discriminatory (cf. ECtHR <GC>, Stec and Others v. the United Kingdom, Judgment of 12 April 2006, nos. 65731/01 and 65900/01, § 53). In its case-law, the Court also recognises positive state obligations to adopt effective and clear protection against discrimination in employment (cf. ECtHR, Danilenkov and Others v. Russia, Judgment of 30 July 2009, no. 67336/01, § 136).

b) When interpreting the Basic Law, the Convention on the Rights of Persons with Disabilities must also be taken into account (cf. BVerfGE 128, 282 <306>; 142, 313 <345 para. 88>; 149, 293 <329 para. 90>; 151, 1 <26 ff. para. 61 ff.>). It addresses the right to equality and the protection against discrimination on the basis of disability, which are both enshrined in Art. 3(3) second sentence GG as well. The relevant guarantees of the Basic Law can readily be interpreted in accordance with the Convention, which, in terms of substantive protection, does not extend beyond the scope of protection of German fundamental rights.

According to Art. 1(1) CRPD, the purpose of the Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” Under Art. 25 CRPD, States Parties must, in particular, provide access to health services needed by persons with disabilities without discrimination of any kind (cf. UN Committee on the Rights of Persons with Disabilities, General Comment No. 6 on equality and non-discrimination, UN Doc. CRPD/C/GC/6 of 26 April 2018, para. 66). This guarantee is essentially equivalent to the prohibition of disadvantaging in Art. 3(3) second sentence GG (cf. Federal Social Court, Judgment of 15 October 2014 - B 12 KR 17/12 R -, para. 30 f., BSGE 117, 117 <125 f. para. 30 f.>; Federal Social Court, Judgment of 8 March 2016 - B 1 KR 26/15 R -, para. 24, with references to the case-law of the Federal Constitutional Court).

Under Art. 4(1) CRPD, States Parties must also undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, Art. 4(1) second sentence (e) CRPD requires that all appropriate measures be taken to eliminate discrimination on the basis of disability by any person, organisation or private enterprise.

According to Art. 10 CRPD, all necessary measures must be taken to ensure the effective and equal enjoyment of the inherent right to life by persons with disabilities. According to Art. 11 CRPD, this applies specifically in situations of risk, including situations of armed conflict, humanitarian emergencies and natural disasters; it is especially in these contexts that measures be taken to address the increased risk of discrimination against persons with disabilities (see UN Committee on the Rights of Persons with Disabilities, General Comment No. 6, UN Doc. CRPD/C/GC/6 of 26 April 2018, para. 43). These guarantees confirm that the prohibition of disadvantaging also applies in a pandemic.

In Art. 25 CRPD, the States Parties recognise a right of persons with disabilities to enjoy the highest attainable standard of health without discrimination on the basis of disability. According to Art. 25 third sentence (a) CRPD, persons with disabilities must be provided with the same range, quality and standard of healthcare and programmes as provided to other persons. Pursuant to Art. 25 third sentence (d) CRPD, States Parties must require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent by, inter alia, raising awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for public and private healthcare. Under Art. 25 third sentence (f) CRPD, States Parties must prevent any discriminatory denial of healthcare or health services (cf. UN Committee on the Rights of Persons with Disabilities, General Comment No. 6, UN Doc. CRPD/C/GC/6 of 26 April 2018, para. 66; cf. also UN Human Rights Committee, General Comment No. 36, UN Doc. CCPR/C/GC/36, 3 September 2019, paras. 24, 61).

c) The interpretation of the Basic Law must furthermore take into account the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (cf. BVerfGE 151, 1 <29 ff. para. 66 ff.> with further references; established case-law). Specifically, Art. 2(1) and (2) ICESCR oblige States Parties to take steps, to the maximum of available resources, to progressively achieve the full realization of the rights recognised in the Covenant without discrimination by all appropriate means, including, in particular, the adoption of legislative measures. These rights include the right to life (Art. 6 ICCPR) and the right to health (Art. 12 ICESCR). While the States Parties’ obligations to take positive action are subject to the limits of available resources, the prohibition of discrimination is immediately applicable and must be observed in any case (cf. UN Committee on Economic, Social and Cultural Rights – CESCR, General Comment No. 14, UN Doc. E/C.12/2000/4, 11 August 2000, para. 30; cf. also General Comment No. 5, UN Doc. E/1995/22, 9 December 1994, para. 34). Also, the CESCR stresses the need to ensure that not only the public health sector but also private providers of health services and facilities comply with the principle of non-discrimination in relation to persons with disabilities (ibid., para. 26). Similarly, the CESCR underlines the fact that vulnerable members of society, which includes persons with disabilities, must also be protected in times of severe constraints of resources (cf. CESCR, General Comment No. 3, UN Doc. E/1991/23, 14 December 1990, para. 12).

II.

Measured against these standards, the constitutional complaint is well-founded. Given the risk of persons being disadvantaged on the basis of disability in the allocation of scarce intensive care resources, the general mandate of fundamental rights protection under Art. 3(3) second sentence GG imposes a specific duty on the state to take measures protecting against such risks (see 1. below). Here, the legislator has yet to take sufficient measures ensuring effective protection of the complainants against disadvantaging (see 2. below). In deciding on the specific actions to fulfil its duty of protection under Art. 3(3) second sentence GG, the legislator is afforded a margin of appreciation and assessment as well as leeway in terms of design, and it is thus for the legislator to decide whether to lay down substantive requirements for decisions on the allocation of scarce intensive care resources or to take other precautions to ensure effective protection against disadvantaging (see 3. below).

1. a) Where persons are at risk of being disadvantaged on the basis of disability in triage situations concerning the allocation of intensive care resources, the mandate of protection under Art. 3(3) second sentence GG culminates in a specific duty of the state to take effective measures protecting against such risks. A legal system that seeks to ensure equal participation of persons with disabilities in society (cf. BVerfGE 151, 1 <23 f. para. 54>) cannot tolerate any disadvantaging on the basis of disability in situations that those affected cannot escape from, and that entail immediate risks to their life and health, thereby jeopardising legal interests recognised as exceptionally significant in Art. 2(2) first sentence GG (cf. BVerfGE 126, 112 <140>; established case-law). In such situations, it is beyond the control of the persons concerned to effectively guard themselves against such risks.

b) In the case at hand, there are sufficient indications that the complainants are at risk of being disadvantaged on the basis of disability in decisions allocating life-sustaining intensive care resources in the event of pandemic-related shortages, and thus in decisions on life and death. Based on an overall appraisal of the assessments and statements submitted by expert third parties and of the professional recommendations issued in practice, there is currently no effective protection of those who cannot protect themselves against the demonstrated risks.

aa) It must be noted that the German Medical Association already stressed that “the challenges faced by vulnerable and disadvantaged groups must be considered” in 2007, even if resource shortages in basic healthcare arise, and expressly underlined that Art. 3(2) and (3) GG prohibits unequal treatment on the basis of disability at all levels and stages ([...]). The “German Medical Association’s Guidelines on the Allocation of Medical Resources in the Event of Shortages and the Example of the SARS-Cov-2 Pandemic”, which were published in 2020, explicitly state that decision-making must not be based on rigid and generalised assumptions ([...]). However, in its statement in the present proceedings ([...]), the German Medical Association also submitted that the task of administering intensive care requires complex decisions that may involve ‘subjective elements’ entailing risks of discrimination.

Similarly, statements received from both professional bodies and welfare organisations confirm, in line with scientific studies, that there is a risk of persons being disadvantaged on the basis of disability in the event that shortages of medical resources should occur. The academic centre BODYS ([...]), whose statement was also forwarded to this Court by the Bundestag , asserted that persons with disabilities are at a particular risk in the context of the pandemic. This was confirmed in statements received from the Federal Association of Protestant Disability Aid ([...]) and from the Federal Caritas Association of Health and Social Care and Mental Health Services for People with Disabilities ([...]).

Furthermore, several expert third parties submitted that professionals often make erroneous assumptions when assessing the circumstances and quality of life of persons with disabilities ([...]). The Caritas association ([...]) stated that the work environment of hospital staff is typically characterised by considerable time constraints and economic pressure, and that there is typically no specific training regarding the needs of persons with disabilities. A meta study on research conducted up until 2020 concluded that there are indications for risks of discrimination affecting both access to out-patient healthcare and hospital treatment, and that further research is required in this regard ([...]). These risks of discrimination appear to result from a lack of professional expertise and from a lack of awareness on the part of medical and nursing staff regarding disability-specific concerns ([...]). Moreover, several expert third parties submitted that unconscious stereotyping occurs in medical decision-making to the detriment of persons with disabilities ([...]). It was submitted that the medical understanding of disability typically follows a deficit-based approach([...]), which to date is not addressed in training ([…])..

bb) The professional recommendations issued by DIVI for decision-making on the allocation of intensive care resources in the event of pandemic-related shortages are often cited as guidance in practice, but they do not eliminate existing risks of disadvantaging.

(1) The DIVI recommendations are […] not legally binding but constitute guidelines issued by an expert group based on informal consensus. They are also not tantamount to ‘standard practice in medical care’ under the laws governing the medical profession, but merely serve as an indication thereof ([…]).

(2) According to the recommendations, the prospects of treatment ought to be the decisive factor in the allocation of scarce intensive care resources ([...]). These prospects of treatment are defined as the “likelihood that the patient will survive the acute medical episode if treated in intensive care” ([...]). Generally, the prospects of the patient surviving the acute medical episode is a permissible criterion for allocating scarce treatment resources. Such assessment does not rely on appraising the worth of a human life, but solely looks at the prospects of the intensive care necessary to treat the acute medical episode.

If, by contrast, allocation decisions were taken on the basis of the patient’s long-term odds of surviving, persons that actually or purportedly have a shorter life expectancy because of disability would regularly be denied treatment or be treated with lower priority. This risk is exacerbated by stereotypical perceptions of persons with disabilities based on which decision-makers may jump to ill-informed conclusions on the patient’s assumed shorter life expectancy. In that scenario, the (remaining) general life expectancy would be decisive, rather than the prospects of surviving the acute medical episode. Accordingly, the allocation decision would not focus on the patient’s survival but on maximising human lifespans as such.

(3) Relying on the criterion of the patient’s treatment prospects is not objectionable under constitutional law, provided this criterion is understood to refer to the prospects of surviving the acute medical episode. Nevertheless, it cannot be ruled out that the DIVI recommendations, in their current version, create or exacerbate risks of being disadvantaged for persons with disabilities. By now, the recommendations […] explicitly state that prioritisation decisions on the basis of pre-existing conditions or disability are impermissible. Yet there is still a risk insofar as the recommendations describe serious medical conditions in terms of comorbidities as well as ‘frailty’ as negative indications of poor treatment prospects in intensive care ([...]). Next, the recommendations expressly clarify that ‘comorbidities’ may only be factored into the allocation decision if “such comorbidities, due to their severity or the interaction of multiple comorbidities, result in significantly lower likelihood of the patient surviving intensive care treatment” ([...]). Again, this consideration as such is not objectionable under constitutional law. However, the risk [of an interpretation contrary to constitutional law] is not eliminated as the recommendations do not make it sufficiently clear that this criterion must be defined solely as the likelihood of surviving the acute medical episode in question. Therefore, it cannot be ruled out that the existence of a disability will be conflated with the existence of comorbidities or lead to stereotypical assumptions that the patient has worse prospects of recovery ([...]). Moreover, and unlike the meaning of ‘comorbidities’, the meaning of ‘frailty’ is not specified in the recommendations. They inter alia refer to a clinical frailty scale that does not take into account disability but was developed and appraised for other purposes ([...]). Again, the use of a scale is not per se objectionable as such a tool can aid swift decision-making in urgent cases and promote consistency and equal treatment of affected persons in allocation decisions. However, a scale-based appraisal of frailty bears an inherent risk of disadvantaging due to the fact that many persons with disabilities have to rely on assistance in their daily lives and might therefore be more readily attributed a higher level of frailty ([...]). Frailty might also be associated with a purported poorer quality of life attributed to persons with disabilities who rely on assistance, which could also result in disadvantages for them ([...]).

(4) Risks of disadvantaging on the basis of disability in triage situations are also indicated by the press release published by DIVI on 23 April 2020 [...]. On the one hand, it does clarify that the medical conditions referred to in the recommendations are not to be understood as criteria of exclusion, and that allocation decisions must be based on a case-by-case assessment of the individual prospects of successful treatment. Yet on the other hand, it also states that in addition to the severity of the acute medical episode, relevant comorbidities that imply a prognosis of shortened life expectancy are a significant factor. Again, this could lead to the assumption that it is not solely the prospect of surviving the acute episode but also the patient’s general life expectancy that determines the allocation of medical resources.

In another press release of 30 July 2020, DIVI explicitly clarifies that the criteria in the recommendations are “only relevant and decisive [...] if they adversely affect the patient’s prognosis – that is the likelihood of surviving THIS medical episode [...]”. They underline once again that the recommendations explicitly refer to the prospects of treatment, understood as the likelihood of the patient surviving the acute medical episode ([...]). Yet in its statement submitted in the present proceedings ([...]), DIVI itself warns that in hospital settings, the allocation of scarce resources will often be decided on an ad hoc basis without clearly established criteria, and the statement also describes how this gives rise to uncertainties. According to the press release, the “lack of legal certainty as to what criteria ought to be applied in deciding on the allocation of medical resources if pandemic-related shortages arise” places an “unbearable” burden on doctors. Similarly, the German Medical Association explained that these decision-making processes may involve ‘subjective elements’ entailing risks of discrimination ([...]). In light of this, there are no sufficient safeguards that effectively protect persons with disabilities against disability-related disadvantaging if triage situations arise.

c) Overall, there are thus reliable indications that establish specific risks of affected persons being disadvantaged on the basis of their disability in the allocation of scarce intensive care resources. The complainants cannot guard themselves against such risks, nor can they escape them.

2. To date, the legislator has not taken any measures to effectively counter the risk that persons with disabilities will be disadvantaged on the basis of disability in the allocation of scarce intensive care resources. It is true that the legislator has repeatedly engaged with its mandate of protection. Specifically, legislative action has been taken to bring German domestic law in line with the Convention on the Rights of Persons with Disabilities, in particular by adopting the Act on Strengthening the Participation and Self-Determination of Persons with Disabilities (Bundesteilhabegesetz) [...]. In addition, the legislator, with the Act on Equal Opportunities for Persons with Disabilities [...] (Behindertengleichstellungsgesetz ) [...], has sought to promote accessibility. Nevertheless, the legal order to date does not set out sufficiently effective rules to protect against discrimination in healthcare, which are also required by Art. 25 CRPD, that could in turn protect individuals against disadvantaging on the basis of disability in pandemic-related triage situations. While the legislator considered persons with disabilities in the pandemic-related legislation on vaccination ([...]) and on testing ([...]), no legislative action has been taken to address the allocation of scarce intensive care resources.

Should the need for triage arise in the course of the pandemic, attending doctors will be confronted with a situation in which they have to take extreme decisions. They will have to decide who receives the available intensive care resources, and who does not. In such a situation, it may be especially demanding for the professionals in charge to ensure that persons with disabilities receive the treatment they need. This will only be the case if it is ensured that decisions are solely based on the patient’s short-term likelihood of surviving the acute medical episode.

[To date, this is not ensured by the law as it stands.] The general prohibition of disadvantaging under private law in § 1 of the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz – AGG) does not ensure effective protection; most notably, it is not even clearly stated in the law whether this clause is applicable in triage situations. Nor are there sufficient rules regarding protection against disadvantaging in public law. [...]. The [general non-discrimination clauses] in social law [...] also fail to afford sufficient protection. None of these statutory provisions provide protection against the risks of persons being disadvantaged in triage situations. [...] As the law currently stands, the legislator has enacted provisions that simply reiterate the prohibition of disadvantaging laid down in Art. 3(3) second sentence GG or merely state that the particular needs of persons with disabilities be taken into account. This is not sufficient to fulfil the specific duty to take protective action deriving from Art. 3(3) second sentence GG.

Moreover, the laws governing the medical profession do not currently ensure the required level of effective protection against disability-based discrimination. In this regard, it is not sufficient to merely refer to the oath laid down in the Declaration of Geneva, according to which considerations of disability must not come between the doctor’s duty and their patient, not even if it is incorporated into codes of professional practice adopted by medical associations (Ärztekammern ). This pledge is, by itself, overly vague. To ensure effective protection against the risk of discrimination in life-and-death decisions, it is also not sufficient that the 2018 Model Regulations on Continuing Medical Education issued by the German Medical Association list competences regarding “particular aspects of providing care to persons with disabilities” among the treatment-related training contents.

3. The legislator enjoys a margin of assessment and appreciation as well as leeway in terms of design to fulfil the specific duty of protection arising from Art. 3(3) second sentence GG in order to ensure effective protection of persons with disabilities in decisions on the allocation of scarce intensive care resources. The risk of being disadvantaged in the allocation of scarce intensive care resources results, according to the Court’s findings, from an overall appraisal of several, partly interrelated factors ([...]). Therefore, the legislator has several options to effectively counter these risks. Based on the facts established in the present constitutional complaint proceedings, it is not ascertainable that the duty of protection could only be fulfilled by one specific measure.

When exercising its margin of appreciation and assessment and leeway in terms of design, the legislator is guided, as well as limited, by the specific nature of the subject matter at issue and by the fundamental rights of all persons affected. In this context, the legislator will also have to take into account that the already strained capacities in healthcare personnel and resources must not be additionally burdened in a manner that would ultimately subvert the intended goal of strengthening effective protection of the life and health of patients with disabilities. Also, the legislator must adhere to its corresponding mandate to protect the life and health of other patients as well. Furthermore, the particularities of clinical healthcare, such as the medical need for swift decision-making, must be taken into account just like the fact that the final responsibility for medical evaluations in a given case rests with the attending doctors, based on their special medical expertise and clinical experience.

Within these parameters, it is for the legislator to decide whether to directly lay down in law substantive criteria for allocation decisions in case of shortages (regarding criteria determining access to state [education] services, cf. BVerfGE 134, 1 <15 f. para. 42>). The inviolability of human dignity does not per se preclude the legal definition of such criteria. Certainly, respect for human dignity prohibits any weighing of life against life (cf. BVerfGE 115, 118 <153 ff., 158>), but this does not categorically prevent the legislator from defining criteria compatible with constitutional requirements for decisions on how to allocate scarce resources necessary to save lives ([…]). The legislator may also choose to lay down procedural requirements (regarding decisions by state bodies, cf. BVerfGE 147, 253 <311 para. 120>). Moreover, the legislator may require allocation decisions to be taken by several persons (Mehraugenprinzip , “multi-eyes-principle”) ([...]) or be documented, if the legislator considers this an effective means to provide fundamental rights protection. Other measures that come to mind are the adoption of provisions on support to be provided on the ground. In addition, there is the option to specify requirements for basic and further training of medical and nursing staff, especially for those working in intensive care, intended to prevent disadvantages on the basis of disability in triage situations (cf. Art. 4(1) second sentence (i) CRPD, and para. 113 above). Ultimately, it is for the legislator to design a viable approach (cf. BVerfGE 142, 313 <342 para. 81> with further references).

4. It is not necessary for the Court to decide whether public hospital staff in charge of such allocation decisions, unlike decision-makers at private hospitals, are directly bound by Art. 3(2) second sentence GG, as in any case no stricter constitutional standards would apply.

D.

To implement the specific duty of protection, which derives from Art. 3(3) second sentence GG because of the significance accorded to the interests enshrined in Art. 2(2) first sentence GG, the legislator must, with sufficient measures, effectively prevent any disadvantaging on the basis of disability in the allocation of pandemic-related scarce intensive care resources. To fulfil this duty, the legislator must take effective precautions as soon as possible.

E.

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