The Federal Constitutional Court has de facto approved the night-time curfew restrictions. Based on a weighing of consequences, the judges in Karlsruhe rejected the urgent applications against the restrictions that apply between 10 p.m. and 5 a.m.. Although the measure interferes "deeply in living conditions," the advantages outweigh the disadvantages of temporarily suspending this "nationally effective infection control measure," according to the Constitutional Court. If, pending a decision in the main case, the exit restriction were not available "as an instrument for securing and controlling the contact restrictions that are currently urgently needed," this would entail considerable risks of infection, the decision states.

More than 200 constitutional complaints against the so-called federal emergency brake had been received in Karlsruhe. Among the plaintiffs were numerous members of parliament from the FDP and the AfD. Just under two weeks ago, the amendment to the Federal Emergency Brake came into force, which contains uniform measures throughout Germany against the Corona pandemic. If there is an incidence of more than 100 newly infected persons per 100,000 inhabitants, a night curfew, among other things, automatically applies in a district. The plaintiffs argued that there was no danger from lonely walks and that the measures were therefore disproportionate.

The First Senate sees things differently. It considers the purpose of the exit restriction to be legitimate: it serves the constitutional duty to protect life and health as well as the functionality of the health care system as an overriding public good and thus at the same time to ensure the best possible health care. The Karlsruhe judges went on to say that it was not clear and beyond doubt that the measures were manifestly disproportionate. This is the standard in constitutional summary proceedings.

Restricting the stay in public space is a means of limiting private gatherings that take place in the evening hours, even in private spaces, according to the decision, which was published Wednesday evening. In any case, the effect expected by the legislature, that the expansion of private gatherings would be reduced by the curfew restriction, was not obviously implausible, it said. Other ways to prevent private gatherings interfered even more with fundamental rights.

Although the effect of the output restrictions is "scientifically disputed", the legislator has leeway for the assessment in this respect. Such leeway also exists in the assessment of necessity. According to the judges in Karlsruhe, other means that would ensure effective control of existing contact restrictions and thus reduce the rate of infection just as effectively, but would interfere less with fundamental rights, would not be obvious.

Photo by Wes Hicks