Judicial Restraint or Activism? The Federal Constitutional Court’s Role in Recent 'Emergencies'

Abstract

This article examines the role of the German Federal Constitutional Court (Bundesverfassungsgericht) in situations commonly labelled as “emergencies”, using recent decisions on climate change and the federal pandemic emergency brake as case studies. Although the Basic Law does not provide for a general state of emergency permitting the suspension of constitutional norms, crises such as the COVID-19 pandemic and climate change nevertheless require flexibilisation within the ordinary constitutional framework. The article shows that the Court’s jurisprudence in these contexts contains both activist and restrained elements. The climate change decision, while outwardly activist due to its creative concepts and international resonance, proves more restrained upon closer inspection, particularly in its refusal to derive new fundamental rights and its deference to legislative discretion. Conversely, the pandemic emergency brake decisions, though initially characterised by judicial restraint, include significant doctrinal developments such as the recognition of a fundamental right to school education.