In the first few months of the corona pandemic, there were already lockdowns and extensive restrictions – but was the legal basis sufficient for this? The Thuringian State Constitutional Court passed this question on to Karlsruhe. But the judges hold back there.
For the time being, the Federal Constitutional Court will not comment on the question of whether the far-reaching corona measures in the early days of the pandemic had a sufficient legal basis. The constitutional judges in Thuringia had requested a decision from Karlsruhe. However, the competent First Senate declared this submission to be inadmissible, as the Karlsruhe court announced.
In the first few months of the pandemic, the Infection Protection Act only contained general paragraph 28 on protective measures, which were also possible before Corona. Only in November 2020 was the law supplemented with special regulations for this (§ 28a). At that time there was a heated discussion as to whether this was sufficient for such far-reaching encroachments on fundamental rights as exit and contact restrictions. In principle, it is necessary that essential questions of the community are decided by the directly democratically legitimized legislature. Lawyers speak of parliamentary reservation.
The Corona ordinances with the individual measures were issued by the state governments. A case is pending at the Thuringian Constitutional Court in which this question plays a role. The AfD parliamentary group is suing against a Corona state ordinance of October 31, 2020, which it considers unconstitutional and void. The Weimar judges believe that paragraph 28 was just about sufficient as a basis for this. However, they had the impression that they took a different view on the issue than the constitutional judges in Saxony-Anhalt and therefore needed a clarifying decision from Karlsruhe.
Because Article 100 of the Basic Law states: “If the constitutional court of a country wishes to deviate from a decision of the Federal Constitutional Court or the constitutional court of another country when interpreting the Basic Law, the constitutional court must obtain the decision of the Federal Constitutional Court.” Among other things, the Weimar judges wanted to know whether, after six months of the pandemic, one can still speak of a transitional period.
However, the Federal Constitutional Court does not comment on this or on the other questions. In part, this is justified by the fact that there is no contradiction to the case law in Saxony-Anhalt. On the other hand, with the fact that it is not about a legal principle that supports the decision, but only about an individual question.
