Are checkpoints for internal border control under constitutional law

Absence Makes the Heart Grow Fonder

According to a well-known English proverb, love grows with distance. This is particularly desirable in times of the Covid 19 pandemic for all couples who have a cross-border relationship. Because at the moment - despite all the easing of the last few days - it is hard to think of an early reunion on German soil for couples in which one partner is not German citizens.

As part of nationwide measures in the Covid-19 pandemic, many European countries have closed their borders for private border crossings or at least severely restricted them. Not only tourism is particularly affected by these restrictions, but also all persons who regularly undertook cross-border trips for personal and family reasons in the time before the outbreak of the coronavirus. The extent to which it is currently permitted to cross the border for such reasons is, however, handled very differently by the individual states.

Austria and Germany in comparison

Austria, for example, bases the entry restrictions there on the “Ordinance of the Federal Minister for Social Affairs, Health, Care and Consumer Protection on Measures for Entering from Italy, Switzerland, Liechtenstein, Germany, Hungary and Slovenia”, last extended on April 30, 2020. In Section 1 (1), this stipulates that people wishing to enter Austria from neighboring countries must present a medical certificate stating their state of health. This must certify that a test for SARS-CoV-2 was carried out for the person and that it was negative. The certificate must not be older than four days. However, Section 4 of the Ordinance regulates exceptions to the above obligation. Since the change of April 9th, 2020, entry is possible without a medical certificate "for reasons that are particularly worth considering in the family circle".

The Ministry of Social Affairs explains what should be understood by these reasons on its website under “Travel and Consumer Protection”: “Other exceptions to the regulation are special family reasons [...] in individual cases, which are made credible during border control upon entry Need to become. The special family reasons include, for example, visits by family members in the event of illness or their own children as part of custody duties, a visit to the life partner. ”This means that life partners can travel to their partner in Austria regardless of their citizenship without a Having to show a medical certificate.

This is different when entering Germany. The search for an answer leads to the website of the Federal Ministry of the Interior, where under the heading "Coronavirus - Questions and Answers" on travel restrictions / border controls you can read that "Travelers without an urgent reason to travel [...] are no longer allowed to enter or leave the country" . What is (not) to be understood by these urgent travel reasons can be found below:

"Spouses and registered civil partners are allowed to enter the country to restore the cohabitation, even across the German internal border. The existence of a marriage or registered partnership is recognized as a valid reason for entry [...]. Corresponding evidence must be taken with you when crossing the border. In the absence of traceability, other civil partnerships without official proof (marriage certificate) should in principle not be a valid reason within the meaning of the entry regime; In individual cases, however, a different decision can also be made here according to the respective circumstances within the framework of the dutiful discretion [...]. "

This means that, unlike the spouse or registered partner, visiting your partner is generally not a valid reason for entering Germany. German citizens are exempt from these restrictions; these can enter Germany unhindered. However, unlike seasonal workers who harvest asparagus, non-German partners can expect to be rejected at the German border.

In contrast, the protection of civil partnerships is upheld in the quarantine regulations of the federal states. These are based uniformly on a model ordinance that the federal states agreed on on April 6, 2020 with the leading participation of the Federal Ministry of the Interior. Section 3 (1) sentence 1 number 5 of this model regulation regulates an exception to the obligation to quarantine at home for two weeks in accordance with Section 1 (1) after entering Germany. This obligation applies to all immigrants regardless of nationality. According to Section 3 Paragraph 1 Sentence 1 No. 5, people “who have another valid reason for travel” do not have to go into quarantine at home after entering the country. Explicit reasons for travel are “especially social aspects such as [...] visiting a partner who does not live under the same roof”.

Life partners without German citizenship would be exempt from the quarantine obligation if they were only allowed to enter Germany.

Collective subordination

According to the Interior Ministry, the restrictions are based on Article 28 of the Schengen Borders Code (SGK). According to this, temporary border controls at the internal borders of the European Union are permitted in cases that require immediate action due to a serious threat to public order or internal security in a member state. According to its wording, Art. 28 SGK can only be the legal basis for border controls, but not for rejections at the internal border.

For the reintroduced border controls at the internal borders, the relevant provisions of Title II on entry at the EU external borders will then apply accordingly via Art. 32 SGK. According to Article 6 (1) (e) SGK, entry requires, among other things, that the person wishing to enter must not pose a risk to public health.

In times of the Covid-19 pandemic, such a risk to public health is apparently collectively assumed by all travelers. Here it is already questionable whether such a general assumption can be a suitable reason for the refusal of most people at the German internal borders.

Protection of basic rights even without a marriage certificate

Illegitimate partnerships are fundamentally protected. In contrast to marriage in Article 6 (1) of the Basic Law, the illegitimate cohabitation is not placed under special constitutional protection. However, it is also protected by the general freedom of action in Article 2, Paragraph 1 of the Basic Law, i. In conjunction with Article 1, Paragraph 1 of the Basic Law, also through the general right of personality and the general principle of equality from Article 3, Paragraph 1 of the Basic Law. At the level of European law, Art. 7 GrCh and Art. 8 ECHR also protect people from entering into and maintaining a partnership in the context of private life.

If a part of the relationship is refused entry into the country in which the partner is staying, the state encroaches on the rights of defense under Art. 2, Paragraph 1 (in conjunction with Art. GG, Art. 7 GrCh and Art. 8 ECHR.

In particular, the proportionality of such a general restriction raises some doubts. First of all, people's closest private relationships are highly protected, regardless of whether they are legalized by marriage or not. In contrast, the protection of the health and life of people in Germany and the slowing down of the spread of the coronavirus to secure health care are of course extremely important commons. It is therefore important to balance both interests as gently as possible.

It is true that in a situation like the current one, in which quick and decisive action is of the utmost importance, the state should be allowed a wide margin of appreciation. In order to cope with an acute danger, he can also first adopt comprehensive measures. This goes hand in hand with the obligation, if the situation eases, to continuously check whether the measures taken in a hurry are still necessary and appropriate and then to adjust them if necessary. Compared to the German collective rejection of people at the border without checking in individual cases whether the traveler represents a risk to public health, the Austrian model of entry with a current health certificate would represent a milder means.

It is also noteworthy that the Federal Ministry of the Interior, on why the visit of a civil partner should not be an “urgent reason” for entry, argues that such civil partnerships - unlike marriages and registered civil partnerships - do not have a marriage certificate at a border control could be understood. The operation is therefore carried out with the classic “Anyone could come!” Argument. Apparently, the ministry fears a rush to the borders of the Federal Republic of people who could sneak entry with alleged civil partnerships. A look at Austria shows how civil partnerships can also be traced without a marriage certificate: There it is possible to prove civil partnerships with the help of a self-declaration by the traveler and a copy of the partner's ID or registration slip or in some other creative way. Reasons why such a substantiation of the reason for the trip at the German borders should not be feasible or that considerable abuse should be expected are hardly apparent.

In the context of considerations of equality, it should also be asked to what extent the link to the citizenship of the partner entering across the German internal borders is a suitable characteristic for the protection of public health. In any case, it does not protect against infection by the novel coronavirus - just as little as a marriage certificate. It is also doubtful how the quarantine regulations under state law and the rejection practice of the federal police at the German borders should coherently fit together.

For the couples concerned, the reference by the Federal Ministry of the Interior to the decision based on dutiful discretion in individual cases is particularly unpleasant. In this way, it is not possible for the foreign partner to clearly see in advance whether entry might not be possible in individual cases. All that remains for him or her is the hopeful journey to the German border. There, however, those affected will in all likelihood have to prepare for rejection.

Note: The quotes are as of 05/05/2020 at 8:00 p.m. The wording of the information on the ministries' website is constantly changing.


SUGGESTED CITATION Weitensteiner, Julia: Absence Makes the Heart Grow Fonder: Pandemic entry restrictions for non-German partners, VerfBlog, 2020/5/06, https://verfassungsblog.de/absence-makes-the-heart-grow-fonder/, DOI: 10.17176 / 20200507-013416-0.