What is temporary protection obligation

Federal Constitutional Court

Press release No. 33/2021 from May 5, 2021

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

With a decision published today, the First Senate of the Federal Constitutional Court has rejected applications for an interim order that was intended to temporarily suspend the night-time exit restriction regulated in Section 28b (1) sentence 1 no.2 IfSG. This does not mean that the exit restriction is compatible with the Basic Law. The Federal Constitutional Court cannot make such a decision in an urgent procedure. This check is reserved for the main proceedings. In the procedure 1 BvR 805/21, the constitutional complaint of a complainant who submitted that he had been immunized after surviving COVID-19 disease was separated. His complaint is handled in a separate procedure.


The fourth law on the protection of the population in the event of an epidemic of national scope included a regulation on night exit restrictions in the Infection Protection Act. If the number of new infections with the SARS-CoV-2 coronavirus per 100,000 inhabitants within seven days (seven-day incidence) in a district or an independent city exceeds the threshold of 100, the measures specified in Section 28b (1) IfSG apply there from the day after next. For example, according to Section 28b, Paragraph 1, Clause 1, No. 2 IfSG, people are prohibited from staying outside of an apartment or accommodation from 10 p.m. to 5 a.m. the following day. The regulation contains various exceptions. Stays between 10 p.m. and midnight that are used for outdoor physical exercise are excluded, for example, as well as stays that serve to avert a medical or veterinary emergency, to exercise a profession, to exercise custody or access rights or similar important purposes.

The complainants essentially assert that the regulation of exit restrictions, subject to fines, in Section 28b, Paragraph 1, Sentence 1, No. 2 of the IfSG resulted in significant encroachments on their fundamental rights that were not constitutionally justified. You request the provisional suspension of the statutory provision.

Key considerations of the Senate:

The applications for an interim injunction are unsuccessful.

I. When deciding on the application for an interim order, the reasons put forward for the unconstitutionality of the challenged measures must generally be disregarded, unless the main application turned out to be inadmissible from the outset or obviously unfounded . If the outcome of the main proceedings is open, the Federal Constitutional Court must weigh up the consequences. If the suspension of the implementation of a law is sought, particularly high hurdles apply because this represents a considerable interference with the original competence of the legislature. The reasons in favor of a provisional regulation must weigh so heavily that they make the issuance of an interim order indispensable and in this case also have special weight.

II. The underlying constitutional complaints are neither inadmissible from the outset nor are they obviously unfounded. In particular, for reasons of subsidiarity, the complainants are not required to seek legal protection from a specialized court in advance. However, the constitutional complaints do not already prove to be clearly justified. Rather, the outcome of the main proceedings is open.

1. The fact that the Federal Council has not approved the law does not make the law obviously formally unconstitutional. In any case, the need for the approval of the Federal Council for the aforementioned law to come about is not obvious, but rather raises questions that require further clarification.

2. The exit restriction according to ยง 28b Abs. 1 Satz 1 Nr. 2 IfSG is also not obviously materially unconstitutional. It is not unequivocally and unequivocally obvious that, taking into account the discretion of the democratic legislature, it would obviously not be suitable, necessary or inappropriate for combating the pandemic.

a) The exit restriction serves a fundamentally legitimate purpose. In fulfilling its constitutional duty to protect, the legislature pursues the goal of protecting life and health, as well as ensuring the functionality of the health system as an extremely important common good and thus at the same time ensuring the best possible health care. This goal should be achieved through effective measures to reduce interpersonal contacts.

b) The legislature regards the restriction of the stay in public space as a means to limit private get-togethers that previously took place in the evening hours in private space. The effect expected by the legislature that the extension of private gatherings is reduced by the exit restriction is in any case not obviously implausible. In addition, compliance with the accompanying exit restriction can be controlled more gently than the restriction of private gatherings in private rooms per se. Whether the nocturnal exit restriction is suitable to achieve its goal is scientifically disputed. Their inappropriateness is not evident. In assessing whether the statutory regulation is suitable to achieve its goal, the legislature has a prerogative of assessment, which extends both to the assessment and evaluation of the actual circumstances and to any necessary prognosis and the choice of means to achieve his goals. He also has leeway in assessing the necessity of the regulation. Other means of ensuring effective control of existing contact restrictions and a reduction in the infection rate just as effectively, but which interfere with fundamental rights less intensively, are not obvious.

c) An obvious inappropriateness of such exit restrictions cannot be recognized either. In the main proceedings on the constitutional complaints, the proportionality of the legal regulation on exit restrictions challenged here will require detailed examination.

d) The exit restriction is not obviously unsuitable because its validity is tied to a seven-day incidence related to rural districts and urban districts. The legislature regards the seven-day incidence without clearly exceeding its assessment prerogative as a suitable indicator for the infection process. He assumes that with such an incidence there is a risk of overloading the health system and that it is finally no longer possible to contain the incidence of infections through contact tracing. Because of the corresponding experience in earlier phases of the pandemic, this has a comprehensible basis.

III. The weighing of consequences, which is therefore required according to the strict requirements for the provisional suspension of a law, is at the expense of the complainant.

1. If the interim order was not issued, but the constitutional complaints later turned out to be justified, the disadvantages from the continued application of the exit restriction from Section 28b, Paragraph 1, Clause 1, No. 2 IfSG are of considerable weight.

The nocturnal exit restriction has a profound effect on living conditions. The consequences of the exit restriction affect almost all areas of private, family and social contacts as well as the organization of working hours. The challenged exit restriction can also represent a particular constitutional challenge for people who are expected to be immunized against the SARS-CoV-2 coronavirus (Section 28c sentence 1 IfSG) if they are not relevant to the infection process. The law counteracts such consequences through part of the exemption regulations, which mitigates the consequences of the continued application of the exit restriction. The restrictions on private life through the exit restriction outside of the exceptional circumstances, however, go far. The restrictions on the exercise of various freedoms directly or indirectly associated with the exit restriction cannot be compensated by the persons concerned outside the period covered by the restriction or after the end of the period of validity of the challenged regulation. In the assessment, however, it should also be taken into account that the exit restriction falls during a period in which, according to the previous behavioral patterns, activities outside of an apartment or accommodation do not have a very significant quantitative significance. It affects the period from 10 p.m. to 5 a.m. and allows physical movement in public spaces until midnight. It should also be borne in mind that their validity is linked to the seven-day incidence threshold of 100. If the measures to protect against infection with the virus take effect and the prerequisites according to Section 28b (2) sentence 1 IfSG are met, the exit restriction as well as the other protective measures from Section 28b (1) IfSG expire. According to the current legal situation relevant for the decision on the applications for the issuance of interim measures, the period of validity is limited to 30 June 2021 at the latest.

2. If Section 28b, Paragraph 1, Clause 1, No. 2 IfSG were temporarily suspended by a temporary injunction, the regulation would later prove to be constitutional, but the exit restriction as a nationwide measure of infection control would not apply, which could also cause significant disadvantages . This means that an instrument that is important for the overall legislative conception of measures to combat infection would no longer be available. 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 considerable importance. 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 must be taken into account. According to the assumptions of the legislature, which are also understandable in this respect, too large a number of infected people in contact with people who have not yet been fully vaccinated can contribute to the development of virus variants against which the existing and already administered vaccines are less effective. The elimination of uniformly applicable and effective exit restrictions as a means of safeguarding existing contact restrictions is also of considerable importance in this respect.

3. Despite the not insignificant burdens for all those affected by the exit restriction, the disadvantages associated with it do not outweigh those of a suspension of enforcement. It is true that the exercise of freedom that cannot be exercised during the exit restriction cannot be made up for and increased physical and psychological stress from the infection control measures can only be counteracted with considerable effort. However, if the nationwide exit restriction as an instrument for securing and controlling the currently urgently required contact restrictions were not available until a decision was mainly made, this would entail considerable, albeit not individually predictable, infection risks. Since the legislature has also mitigated the effects of the impairment of freedom associated with the exit restriction by means of exceptional circumstances and the period of validity of the challenged regulation is relatively limited in time according to the current legal situation, the disadvantages for those affected do not outweigh the disadvantages for an effective one, regardless of the considerable intensity of interference of the exit restriction Protection against infection if the regulation is suspended.