The Federal Republic of Germany is experiencing its first state of exception. This presentation first addresses what actually constitutes a state of exception under German law.
It thereby compares the German model to models followed in other jurisdictions, especially with regard to constitutional rights.
It then examines the constitutionality of the most important German measures against the COVID-pandemic taken so far.
The Basic Law does not allow the suspension of constitutional rights, it instead follows a one size fits all model, that is, its constitutional rights protections apply both in normal times and times of emergency. At the same time, however, all rights protections contained in the Basic Law can generally be limited (with the notable exception of the right to Human Dignity in Article 1), as long as the measures that limit them do not violate the proportionality principle, nor a number of other protections (what we call “limits on limits”). These include the so-called “Irremovable Essence” (Article 19 section 2), or “Human Dignity core” (Article 1 section 1), of the respective rights. These protections are what I call the “negative constitutional law on emergencies”, because they set final limits to the state’s power, especially in times of crisis.