Things Will Never be the Same Again: How the Coronavirus Pandemic is Changing the Understanding of Fundamental Rights in Germany

Abstract

In the coronavirus pandemic, the challenges for the doctrine of fundamental rights are significantly different from comparable issues in all previous crises in terms of their intensity, dynamics and the uncertainty of the risk. Scrutiny of the proportionality of the measures against the COVID-19 virus caused serious difficulties, and these difficulties could barely be overcome in the most critical phases during the first and second wave of infections. Furthermore, the combination of intensity, dynamics and uncertainties has forced federal and state legislators to make seemingly arbitrary differences in many cases. Therefore, in the jurisprudence of the administrative courts on the restrictions of fundamental rights during the coronavirus pandemic, there has been a shift in the standard of justification from aspects of freedom to aspects of equality. The pandemic has also led to the questioning of central categories of state liability law that are closely related to fundamental rights. Last but not least, the pandemic raised the question of the essence of fundamental rights. On the whole, the pandemic has made the limits of the efficiency of fundamental rights visible. The higher the expectations of optimization requirements and new dimensions of fundamental rights protection under normal conditions, the greater the disappointments will be about the effectiveness of fundamental rights in the case of an emergency such as the coronavirus pandemic. The luxury of fundamental rights afforded under normal conditions becomes a problem in an emergency situation. This carries the risk of obscuring the essence of fundamental rights protection.