Published on 9 January 2023

FOURTH SECTION

Application no. 26657/22 M.C.K. and M.H.K.-B. against Germany and 3 other applications (see list appended) communicated on 20 December 2022

SUBJECT MATTER OF THE CASE

The applications concern Covid-19 related restrictions on and prohibition of in-class lessons (also globally referred to as school closures ) under Section 28b § 3 of the German Protection Against Infection Act (the “IfSG”) in its version effective from 23 April 2021 (as amended by the Fourth Act on the Protection of the Population during an Epidemic Situation of National Dimension of 22 April 2021), further amended with effect from 4 May 2021 (Second Act Amending the Protection Against Infection Act and Other Acts of 28 May 2021; so-called Federal pandemic emergency brake II).

In particular, the impugned provision prescribed, depending on the rate of new Covid-19 infections calculated on the basis of the previous seven days (so-called seven-day incident rate) in the district concerned on three consecutive days, for general education and vocational schools

- a hybrid learning requirement with school classes divided into different groups alternating between in-class lessons at school and remote learning from home or

- a complete ban on in-class lessons.

The applicants are pupils from various districts in Germany and attended schools which had been closed several times during the Covid-19 pandemic before and which were again subject to school closures by virtue of the impugned provision since 23 April 2021 for different periods of time.

On 19 November 2019 the Federal Constitutional Court dismissed two joint constitutional complaints (applications nos. 26657/22 and 27035/22) in a leading order on the Federal pandemic emergency brake II (school closures), 1 BvR 971/21 and 1 BvR 1069/21. Subsequently, it decided not to accept the further applicants’ constitutional complaints for adjudication without providing any reasons (applications no. 28889/22 and respectively no. 33664/22).

The applicants complain that the school closures negatively affected their personal and social development as well as their mental health and respectively reduced their knowledge with effects on their future careers and income.

COMMON QUESTIONS TO ALL PARTIES

1. Have the applicants been denied the right to education, guaranteed by Article 2 of Protocol No. 1?

2. Has there been an interference with the applicants’ right to respect for their private and/or family life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

3. Concerning both Article 2 of Protocol No. 1 and Article 8 of the Convention:

In particular, did the national authorities enjoy a margin of appreciation in the matter and, if so, to what extent?

If so, did they overstep their respective margin of appreciation when ordering by virtue of Section 28b § 3 of the German Protection Against Infection Act (the “IfSG”), since 23 April 2021, so-called school closures , including in particular

- a hybrid learning requirement with school classes divided into different groups alternating between in-class lessons at school and remote learning from home or

- a complete ban on in-class lessons?

In particular, were the so-called school closures taken in, and with due consideration of, the children’s best interest?

If so, to what extent were the national authorities required to take into account previous school closures ordered before 23 April 2021 within the context of the Covid-19 pandemic?

REQUEST FOR FACTUAL INFORMATION CONCERNING ALL APPLICATIONS

The parties are requested to submit for each applicant factual information on the availability, extent, and duration of alternative education possibilities at the relevant time such as, for example, hybrid learning possibilities, online lessons, and emergency day-care at school.

Appendix

List of applications

No.

Application no.

Case name

Lodged on

Applicant, City and Nationality

Represented by

1.

26657/22

M.C.K. and M.H.K.-B. v. Germany

27/05/2022

M.C.K.

München German M.H.K.-B. München German

Axel Tim Koch

2.

27035/22

J.M.B. v. Germany

27/05/2022

J.M.B. Schnelldorf German

Benjamin Jonathan Böhm

3.

28889/22

L.D.T. v. Germany

10/06/2022

L.D.T. Bielefeld German

Axel Tim Koch

4.

33664/22

M.S. v. Germany

23/06/2022

M.S. Mainz German

Bernhard Ludwig