In an order published on November 4, 2025, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) concluded that a rule regulating medical triage was invalid because it violated health care workers’ occupational freedom. The court ruled that section 5c of the German Protection Against Infection Act (Infektionsschutzgesetz, IfSG) was void because it infringed the constitutionally guaranteed freedom of occupation codified in article 12, paragraph 1 of the German Basic Law (Grundgesetz, GG). The challenged rule regulated triage, or the allocation of life-sustaining intensive care treatments during a shortage of such treatments. However, it only applied if the shortage was at least in part a consequence of a communicable disease. (IfSG, § 5c, para. 1, subpara. 1.)
Section 5c of the Protection Against Infection Act
Section 5c, paragraph 2 of the Protection Against Infection Act laid down the criteria for medical workers to follow when allocating life-sustaining intensive care treatments in triage situations caused by communicable diseases. The statute provided that a decision to provide care should only be made based on the current and short-term probability of the patient’s survival. (IfSG, § 5c, para. 2, subpara. 1.) It explicitly mentioned negative criteria, such as the patient’s possible disabilities, age, and degree of frailty, but directed medical workers not to consider them due to their discriminating nature. (§ 5c, para. 2, subpara. 3.)
Moreover, the statute prohibited “ex-post-triage” by exempting already-allocated intensive care treatment resources from subsequent triage decisions—meaning once medical personnel allocated resources to a specific patient, the resources could not be removed from that patient and provided to another patient. (§ 5c, para. 2, subpara. 4.)
Regarding the triage procedure, the challenged rule stated that, in general, two medical doctors, who must have at least two years’ experience in intensive care treatment, had to agree on the allocation of treatment based on independent examinations of the patients. (§ 5c, para. 3, subpara. 1.) Lastly, section 5c, paragraphs 5-7 of the act set down rules regarding documentation, supervision, and notification of the triage procedure.
Background to Section 5c
Lawmakers added the challenged regulation to the Protection Against Infection Act on December 14, 2022, after the Federal Constitutional Court ruled in 2021 that the legislature was obliged to actively protect the rights of people with disabilities during times of particular vulnerability pursuant to article 3, paragraph 3, subparagraph 2 of the German Basic Law (principle of equal treatment). The court issued the 2021 order in response to a constitutional complaint by people with severe disabilities regarding unequal intensive care treatments caused by the scarcity of such resources during the COVID-19 pandemic.
Infringement of Occupational Freedom
The current judgment from the Federal Constitutional Court deals with complaints by medical workers regarding the triage rule and alleged infringements of their rights codified in article 4, paragraph 1 (freedom of faith and conscience) and article 12 (occupational freedom) of the German Basic Law.
First, the court clarified that the challenged regulation did not infringe medical workers’ freedom of conscience. It stated that decisions medical practitioners must make during medical treatments could, in principle, affect their freedom of conscience. However, to be successful, claims of infringements of this right must involve specific, individual treatment decisions. According to the court, the claimants did not sufficiently specify such decisions and merely referred to their general work in intensive care medicine. (BVerfG, paras. 54-65.)
Nevertheless, the court found that the regulation infringed the claimants’ freedom of occupation pursuant to article 12, paragraph 1 of the German Basic Law. It explained that this right covers the freedom to choose and perform an occupation. Thus, it also covers the right of a medical practitioner to freely choose appropriate medical treatment and how to conduct that treatment. (Paras. 72-74.) By regulating how to conduct intensive care treatment in triage situations caused by communicable diseases, the challenged rule intervened with this right, in the opinion of the court. (Para. 78.)
According to the court, such an infringement could only be justified by an act that complies with all the procedural and substantial requirements of the Basic Law, which section 5c of the Protection Against Infection Act failed to do. The court, at length, explained the formal—meaning procedural—unconstitutionality of the provision and, therefore, did not further explore its alleged substantive unconstitutionality.
The court stated that the basis for the provision’s unconstitutionality is the federal government’s lack of legislative competence to regulate triage situations. (Para. 84.) Unless the Basic Law explicitly assigns this legislative competence to the federal government, it remains with the German federal states by default pursuant to article 70, paragraph 1 of the German Basic Law. The court held that none of the Basic Law’s explicitly assigned legislative competences cover the challenged provision. (Para. 85.) Additionally, the federal government’s legislative competence cannot be derived from inherent grounds. (Paras. 133-138.)
Two justices of the eight-member chamber of the court dissented with the decision to declare the rule unconstitutional.
Next Steps
The Federal Constitutional Court’s nullification of the rule is retroactive. Thus, section 5c of the Protection Against Infection Act is being treated as if it had never been in effect. However, due to the court’s previous ruling in 2021, the legislature remains obliged to actively protect the rights of disabled people during a shortage of life-sustaining intensive care treatments. In the current judgment, the court indirectly mentioned two possibilities for the federal legislature to fulfill this obligation.
First, the court said the legislature could regulate the civil law contracts concluded between medical practitioners and patients and mandate the inclusion of such a protection based on the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz, AGG). However, this would contradict the explicit will of the federal legislature as stated in the explanatory memorandum to the challenged regulation. (Para. 131; Bundestag Explanatory Memorandum 20/3877, at 21.) Second, the court discussed the possibility of regulating the issue on the state level rather than the federal level. Under their default legislative competence, the German states could each enact rules similar to section 5c of the Protection Against Infection Act as long as they comply with the requirements set by the 2021 ruling, the court said. (BVerfG, paras. 84-85.)
Prepared by Kim Marie Eberhardt, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist
Law Library of Congress, December 16, 2025
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