An essential preoccupation of German politics - waiting for Karlsruhe.

The future traffic light coalition has also made it clear that it is looking forward to the decision of the Constitutional Court on the federal emergency brake.

The wait is over on Tuesday: the main decisions on major restrictions in the corona pandemic will be made.

Reinhard Muller

Responsible editor for "Zeitgeschehen" and FAZ Einspruch, responsible for "State and Law".

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In urgent proceedings, the Karlsruhe judges had upheld the restrictions after weighing up the consequences as usual in interim legal protection - but also gave clear indications as to how far one can go in the crisis.

For example, a chamber of the First Senate decided in April 2020 that a ban on religious services was an “extremely serious encroachment on freedom of belief” and required “ongoing strict testing of its proportionality based on the latest findings.” In the opinion of the judges, protection was in place Dangers to life and limb "currently, despite the extremely serious interference with the freedom of belief associated with it, priority over the protection of this fundamental right."

Update in the light of new developments

According to the assessment by the Robert Koch Institute, according to the Constitutional Court, in the early phase of the corona pandemic it is important to slow down the spread of the highly infectious viral disease by preventing contacts as far as possible in order to prevent the state health system from collapsing avoid numerous deaths. At the same time, the chamber made it clear that the time limit for the Corona Regulation until April 19, 2020 was also important for weighing up the consequences. This ensures that the regulation must be updated taking into account new developments in the corona pandemic.

The decision on the federal emergency brake to be announced on Tuesday concerns, on the one hand, the school closings or the requirement of changing lessons, and, on the other hand, fines for contact restrictions and curfews.

At the beginning of May of this year, the First Senate rejected urgent motions against night exit restrictions, but also made it clear here how deep the interventions are: “The consequences of the exit restrictions affect almost all areas of private, family and social contacts as well as the timing of the Working hours off. "

The restrictions on private life through the exit restriction outside of the exceptional circumstances went far.

On the other hand, the exit restriction serves to control the existing general contact regulations and is intended to promote the willingness to comply with them.

"In view of the still absolute and relatively high number of detected new infections, the virus variants currently assessed as dangerous, the serious course of the disease and the deaths, this is of great importance."

Impact on the vaccination campaign

According to the constitutional court in its urgent decision in May, effective measures to contain the pandemic also appear necessary because the effects of high numbers of infections on the success of the vaccinations currently taking place have to be taken into account. Despite the not inconsiderable burdens for all those affected by the exit restriction, “the disadvantages associated with it do not outweigh those of an enforcement order”. It is true that the exercise of freedom that cannot be exercised during the exit restriction cannot be made up for and that "increased physical and psychological stress from the infection protection measures can only be counteracted with considerable effort."

However, if the nationwide exit restriction as an instrument to safeguard and control the currently urgently required contact restrictions were not available until a decision was mainly made, this would entail considerable, even if not individually predictable, infection risks.

So now the main thing, without an oral hearing, but with the written involvement of numerous experts, not only from virologists such as Christian Drosten and the Robert Koch Institute, but also from experts who provide information about the effects of school closings and exit restrictions on children and families gifts.

The situation has turned again, the federal emergency brake has expired, but it could also be put back into force; at the same time, the number of infections and hospitalizations are skyrocketing to unprecedented heights. The well-known measures are still being discussed - and the steps of a proportionality test are now easily off the lips of politicians.

An assertion, however, is not yet a consideration.

Even in a bad situation, every measure must be suitable, necessary and appropriate - with the legislature still having a margin of appreciation.

But now there is also more experience.

The Federal Constitutional Court is not and will not act as the emergency legislature.

But the guardian of the constitution will put up a stop sign in the event of measures that are evidently of little use and that interfere too strongly with the fundamental rights of the citizens.

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