Closed gastronomy, stop for artists, limited contacts: Is the "lockdown light" actually compatible with the Basic Law?

By Michael-Matthias Nordhardt, ARD legal editor

One thing is clear: The measures decided are associated with serious encroachments on fundamental rights for many people. Gastronomy and cultural institutions have to close, artists can no longer perform – this is a restriction on professional freedom. Contact restrictions and party bans, however, interfere with the general freedom of action.

The list goes on. But: The Basic Law itself allows such encroachments on fundamental rights if the measures pursue a legitimate goal and are proportionate.

Legitimate and proportionate?

A legitimate goal is quickly found in a pandemic: protecting the health of citizens. The state even has a duty to protect its citizens and must contain health threats.

Relatively are the measures if, firstly, they are suitable to achieve the goal. In the current situation, the question arises: Can the agreed restrictions actually achieve the goal of protecting citizens from infection with the coronavirus – or the measures will come to nothing?

Second requirement: The selected measures must be necessary. Here the question arises: if there weren’t other means that interfere less with basic human rights and with which one could just as easily protect health?

Particularly controversial in restaurants and hotels

This is particularly controversial with the now agreed closings in restaurants and the bans on tourist travel within Germany. Many say these restrictions are not designed to protect people’s health.

Only a few weeks ago, the then applicable bans on accommodation had been temporarily overturned by the administrative courts in an urgent procedure. Some federal states had prohibited hotels and pensions from accepting guests from risk areas within Germany who did not have a fresh negative corona test.

Not drivers of the pandemic

The arguments of the courts: The accommodation providers are not the drivers of the pandemic. However, Chancellor Angela Merkel has now pointed out that 75 percent of the routes of infection are no longer traceable. So you don’t know exactly where people are infected.

The courts also complained at the time: the federal states had not explained why staying in hotels should be more dangerous than in restaurants or pubs. The overall concept is therefore not conclusive. That could be different now, among other things because restaurants have to close too. Still, the courts will look closely at this.

Rich hygiene concepts?

The courts will also consider whether the closings and bans are required as hard means. The operators refer to their sophisticated hygiene concepts. So the question is: are these enough to avoid infection? Then the encroachments on fundamental rights would be too harsh.

The German Hotel and Restaurant Association (Dehoga) is examining legal steps against the measures. Much depends on whether the promised financial aid arrives quickly and comprehensively at the companies, said Dehoga managing director Ingrid Hartges when asked by the ARD legal editor. It is important that the help applies to all companies in the industry.

Overall situation changed

In order to be able to effectively protect citizens in view of the significantly increased number of infections, the necessity of the measures could meanwhile have to be reassessed. In addition, the extensive closure of restaurants and hotels is now embedded in an overall concept of measures with the aim of not having to close relevant facilities such as schools and daycare centers.

Also in view of the prospect of compensation for affected businesses and the time limit for closings until the end of November, it seems at least possible that the courts could currently assess the proportionality of the restrictions differently than a few weeks ago.

Controls possible in private homes

Even before the new resolutions became known, SPD health expert Karl Lauterbach considered corona checks in private apartments – and received clear criticism for this. According to Article 13 Paragraph 1 of the Basic Law, the home is inviolable. But the same applies here: the Basic Law itself allows restrictions. Article 13 (7) allows interventions and restrictions "to combat the risk of disease".

According to law professor Alexander Thiele from Munich’s Ludwig Maximilians University, checks in private homes are therefore conceivable. However, only "strongly depending on the occasion", if there are concrete indications of serious violations of the Corona regulations – and only if the authorities had previously tried to clarify the situation differently.

Lauterbach has now clarified his position: "Of course, the ‘inviolability of the apartment’ according to Article 13 applies. I do not question this either. But we must not allow private parties with 30 people to take place when the pubs are soon closed in the shutdown "he wrote on Twitter.