Pending proceedings concerning the Fourth Civil Protection Act (‘federal pandemic emergency brake’)

Press Release No. 78/2021 of 20 August 2021

By 31 July 2021, the Federal Constitutional Court registered 301 proceedings challenging the Fourth Civil Protection Act (Viertes Bevölkerungsschutzgesetz), which had entered into force on 23 April 2021 and [amended the Infection Protection Act (Infektionsschutzgesetz – IfSG), introducing a framework on nationwide measures to combat the COVID-19 pandemic] known as ‘federal pandemic emergency brake’ (‘Bundesnotbremse’). These proceedings, some of which have already been concluded, comprise 281 constitutional complaints (200 of which were lodged together with an application for preliminary injunction) and 20 stand-alone applications for preliminary injunction. In addition, the Court’s General Register recorded 151 submissions not registered as formal proceedings.

The constitutional complaints and applications for preliminary injunction are in part directed against individual provisions of the Infection Protection Act [that were introduced or amended by the Fourth Civil Protection Act], in particular against § 28b(1) first sentence no. 2 IfSG (curfews), § 28b(1) first sentence no. 1 IfSG (contact restrictions), § 28b(1) first sentence no. 3 IfSG (restrictions imposed on leisure facilities), § 28b(1) first sentence no. 10 IfSG (tourist accommodation) or § 28b(3) IfSG (school closures and mandatory testing in schools). In other cases, the complainants and applicants simultaneously challenge several provisions or § 28b IfSG in its entirety. Some of the constitutional complaints and applications were lodged jointly by more than one person. The total number of complainants and applicants is 8,572 (as of 31 July 2021).

With its Order of 5 May 2021, the First Senate of the Federal Constitutional Court rejected five applications for preliminary injunction lodged in constitutional complaint proceedings (cf. Press Release No. 33/2021 of 5 May 2021 [available in English]). By 31 July 2021, different Chambers of the Court issued orders not admitting for decision 139 constitutional complaints, while three constitutional complaint proceedings were concluded on other procedural grounds. Moreover, the Chambers rejected 19 stand-alone applications for preliminary injunction, while in one case the proceedings were concluded on other procedural grounds (regarding Chamber decisions cf. Press Release No. 42/2021 of 20 May 2021 and Press Release No. 47/2021 of 2 June 2021 [both available in German]).

The First Senate of the Federal Constitutional Court intends to decide selected cases concerning the ‘federal pandemic emergency brake’ by October/November 2021. According to the Senate’s preliminary assessment, conducting an oral hearing, which would delay its decision, will not be necessary. In preparation of its decision, the Senate has asked experts from various fields (including infectiology, epidemiology, virology, aerosol research, intensive care medicine, paediatrics as well as education and pedagogical and educational development research) to submit statements.