Applications for a preliminary injunction against night curfews imposed by federal law rejected

Press Release No. 33/2021 of 05 May 2021

Order of 5 May 2021
1 BvR 781/21, 1 BvR 889/21, 1 BvR 854/21, 1 BvR 820/21, 1 BvR 805/21

In an order published today, the First Senate of the Federal Constitutional Court rejected applications for a preliminary injunction seeking the temporary suspension of the night curfew set out in § 28b(1) first sentence no. 2 of the Infection Protection Act (Infektionsschutzgesetz – IfSG). This does not mean that the curfew is compatible with the Basic Law. Such a conclusion cannot be reached by the Federal Constitutional Court in preliminary injunction proceedings. That assessment is reserved for the principal proceedings. In the proceedings 1 BvR 805/21, the constitutional complaint lodged by a complainant claiming COVID-19 natural immunity after having recovered from infection, has been severed. His constitutional complaint will be dealt with in separate proceedings.

Facts of the case:

A provision on night curfews has been inserted, among other things, into the Infection Protection Act by the Fourth Act to Protect the Population During an Epidemic Situation of National Scope. If the number of new SARS-CoV-2 infections per 100,000 inhabitants within seven days (seven-day incidence rate) published by the Robert Koch Institute exceeds the threshold of 100 in a town or district on three consecutive days, the measures specified in § 28b(1) IfSG apply there from the day after next. For example, pursuant to § 28b(1) first sentence no. 2 IfSG, persons must not be outside a dwelling or accommodation between 10 p.m. to 5 a.m.. The provision contains several exemptions. For example, leaving one’s home between 10 p.m. and midnight for the sole purpose of physical outdoor exercising is exempt, as is leaving one’s home in order to avert a medical or veterinary emergency, to exercise one’s profession, to exercise rights of custody or contact, or for similar weighty purposes.

The complainants essentially claim that the provision on curfews set out in § 28b(1) first sentence no. 2 IfSG, the violation of which is subject to a fine, significantly interferes with their fundamental rights and that these interferences are not justified under constitutional law. They seek the temporary suspension of this statutory provision. 

Key considerations of the Senate:

The applications for a preliminary injunction are unsuccessful.

I. When deciding on an application in preliminary injunction proceedings, the reasons submitted for the unconstitutionality of the challenged measures are not to be taken into account, unless the application made in the principal proceedings is inadmissible from the outset or manifestly unfounded. Where the outcome of the principal proceedings is open, the Federal Constitutional Court must weigh the consequences. Particularly strict standards apply where the suspension of a statute is sought given that such a suspension amounts to a considerable encroachment on the inherent powers of the legislator. The reasons in favour of a preliminary injunction must generally be of such weight that issuing the injunction becomes indispensable and in the particular case of a suspension, they must carry even greater significance.

II. It is true that the constitutional complaints, which form the basis of the applications for a preliminary injunction, are neither inadmissible nor manifestly unfounded. In particular, the complainants are not required to seek legal protection before the ordinary (non-constitutional) courts prior to lodging their constitutional complaints in order to satisfy subsidiarity requirements in the present case. That being said, the constitutional complaints are not manifestly well-founded either. In fact, the outcome of the principal proceedings is open.

1. The fact that the Bundesrat did not give its consent does not render the act manifestly unconstitutional in formal terms. Whether the Bundesrat’s consent is required for the adoption of the challenged act is by no means evident, and raises questions that need to be examined in greater detail.

2. The curfew set out in § 28b(1) first sentence no. 2 IfSG is not manifestly unconstitutional in substantive terms either. Taking into account the margin of appreciation of the democratic legislator, it is not clearly and unquestionably evident that the curfew is manifestly unsuitable, unnecessary or inappropriate.

a) In principle, the curfew serves a legitimate purpose. In order to meet its duty of protection arising from constitutional law, the legislator is pursuing the objective of protecting life and health as well as of safeguarding the proper functioning of the health care system, including the best possible medical care, as a common good of overriding importance. Effective measures for reducing contact between persons are aimed at achieving this objective.

b) The legislator considers restrictions on public spaces a means for curtailing private gatherings, even in private spaces, that have until recently taken place in the evening hours. The legislator expects the curfew to have the effect of reducing the number and the duration of private gatherings, which in any case is not manifestly implausible. In addition, enforcing compliance with the curfew interferes less with fundamental rights than enforcing compliance with the restrictions on private gatherings in private places as such. Whether the night curfew is suitable for achieving its aim is disputed among experts. Its lack of suitability is not obvious. The legislator has a prerogative of assessment when it comes to evaluating whether a statutory provision is suitable for achieving its aim. This prerogative encompasses both the assessment and evaluation of the actual circumstances and the potentially necessary prognosis and selection of the means to achieve the legislator’s aims. The legislator also has latitude when it comes to evaluating whether a provision is necessary. Other means, which would allow the effective enforcing of compliance with existing restrictions on social contacts and thus a reduction of the infection rate as effectively, but which would interfere less with fundamental rights, are not evident.

c) It can also not be ascertained that curfews are manifestly inappropriate. The proportionality of the challenged statutory curfew provision will have to be examined in detail in the principal proceedings.

d) The fact that its application is tied to a seven-day incidence rate per district or independent town does not render the curfew manifestly unsuitable either. Without clearly exceeding its prerogative of assessment, the legislator regards the seven-day incidence rate as a suitable indicator of the occurrence of infection. The legislator assumes that a high incidence rate involves the risk of an overburdened health care system and renders the containment of infections through contact tracing impossible. Given relevant experiences at earlier stages of the pandemic, this assumption is based on comprehensible reasons.

III. The necessary weighing of consequences that must be carried out in line with the strict requirements for the temporary suspension of a statute does not result in a favourable decision for the complainants.

1. If the preliminary injunction were not issued but the constitutional complaints proved to be well-founded in the principal proceedings, the disadvantages arising from the continued application of the curfew set out in § 28b(1) first sentence no. 2 IfSG are of considerable weight.

The night curfew has a serious impact on everyday life. The consequences of the curfew affect almost all areas of private, family and social relationships, as well as the organisation of working hours. It will be particularly challenging to justify under constitutional law that the challenged curfew is also imposed on persons who presumably have immunity against the SARS-CoV-2 coronavirus (§ 28c first sentence IfSG) if it proves to be the case that they do not significantly contribute to infection. These consequences are countered by some of the exemptions in the act, which mitigate the consequences of the continued applicability of the curfew. However, the restrictions on private life arising from the curfew regardless of the exemptions are extensive. The affected persons cannot compensate for the restrictions on the exercise of various freedoms directly or indirectly caused by the curfew outside the period covered by the restriction or after the end of the period of validity of the challenged provision. However, in an evaluation, it must also be taken into account that the curfew affects a time of the day in which, based on pre-pandemic behaviour patterns, activities outside of a dwelling or accommodation are quantitatively insignificant. It affects the period between 10 p.m. and 5 a.m. and allows for physical exercise in public until midnight. Furthermore, it must be considered that the applicability is tied to the threshold of a seven-day incidence rate of 100. If the measures for preventing infection are effective and the requirements of § 28b(2) first sentence IfSG are met, the curfew and other protective measures set out in § 28b(1) IfSG cease to apply. Furthermore, as the law currently stands, which is the legal situation relevant to the applications for a preliminary injunction, the period of validity is also limited until 30 June 2021 at the latest.

2. If § 28b(1) first sentence no. 2 IfSG were to be temporarily suspended by a preliminary injunction but the provision were later found to be constitutional, the curfew as a nationwide infection control measure would cease to apply, which could also cause disadvantages of considerable weight. An important means within the overall legislative concept for infection control measures would no longer be available. The curfew serves to ensure compliance with the existing general restrictions on social contacts and is aimed at fostering compliance with them. In view of the high number of registered new infections in absolute and relative terms, the virus variants that are currently considered dangerous and the severe disease progressions and the number of deaths, this is of considerable significance. Effective measures to curb the pandemic also appear to be necessary because the effect of high infection rates on the success of the vaccine currently being administered must be taken into account. According to the legislator’s assumptions, which are also comprehensible in this respect, if too many infected persons are in contact with persons who have not yet been fully vaccinated, this may contribute to the emergence of virus variants against which the existing and already administered vaccines are less effective. The discontinuation of a uniformly applicable and effective curfew as a means of ensuring compliance with existing contact restrictions is also of considerable significance in this respect. 

3. Despite the considerable burdens on all those affected by the curfew, the resulting disadvantages do not outweigh those of a suspension. It is true that it will not be possible to make up for the recreational activities that cannot be carried out during the curfew, and that it also will only be possible to counter the increased physical and psychological burdens caused by the infection control measures with considerable effort. If, however, the nationwide curfew were not available – before a decision is reached in the principal proceedings – as a means for ensuring and enforcing the restrictions on social contacts that are currently urgently needed, this might involve considerable risks of infection, even if these cannot be foreseen in detail with certainty. Given that the legislator has also reduced the impact of the adverse effects on freedom that are caused by the curfew by means of exemptions and that, as the law currently stands, the period of validity of the challenged provision is relatively limited, the disadvantages for the persons concerned do not outweigh the disadvantages for the effective protection against infection in case of suspension despite the considerable weight of the interference resulting from the curfew. Whether a preliminary injunction is needed in respect of persons who presumably have immunity has not been addressed in these proceedings. This would require further clarification.