German Federal Constitutional Court (Bundesverfassungsgericht), Ersten Senats, No. 1 BvR 1541/20, 16 December 2021

Covid-19 pandemic and access to intensive care resources in relatively scarce conditions. Discrimination on the grounds of disability or illness.

Art. 2, para 2, of the German Basic Law (Grundgesetz - GG)
Art. 3, para 3, of the German Basic Law (Grundgesetz - GG)

1) In the case of a lack of intensive care - and therefore triage situations - the German legislator must take into account the situations of illness and disability when regulating equal access to resources. 

2) In such circumstances, people's lives are at stake, one of the highest-ranking constitutional rights, protected by Art. 2, para. 2 of the German Basic Law (Grundgesetz - GG). Moreover, Art. 3, para. 3, second sentence, of the GG prohibits, in this case, the rationing of intensive care services and the classification in triage on the basis of merely abstract criteria such as, inter alia, disability or state of illness (§44).

3) By failing to take effective and sufficient measures to deal with this sensitive situation and to prevent discrimination on the basis of disability, the legislature has infringed Article 3(3), second sentence, of the Basic Law. The Ersten Senats of the Bundesverfassungsgericht warned the legislature to "fulfil its duty to act without delay by taking appropriate precautions" (§130).