Doctors assert themselves
The Federal Constitutional Court has declared central regulations on triage to be unconstitutional. Specifically, this relates to Section 5c of the Infection Protection Act (IfSG), which since 2022 has stipulated the criteria for deciding who is to be treated when intensive care capacities are scarce. It has now become clear that the federal government should not have made this regulation at all.
The lawsuit was brought by doctors working in intensive care medicine who felt that the paragraph restricted their professional freedom - and won their case. The court ruled that the requirements violate Article 12 of the German Basic Law because they interfere too much with doctors' freedom of choice - and without a sufficient legal basis.
No federal law for the consequences of a pandemic
The court's reasoning is important: according to the Basic Law, the federal government may regulate measures to combat infectious diseases. However, the requirements for triage do not concern the disease itself, but only its consequences - specifically the distribution of medical resources when bottlenecks occur. And the Basic Law does not provide the federal government with legislative competence for this. In short: the federal government is not responsible when it comes to who is treated in an emergency - this must be regulated by the federal states.
The court was particularly clear at one point: the triage regulation is not a contribution to containing an infection, but is solely concerned with the distribution of help if there is not enough for everyone. According to the constitution, this is not the task of the federal legislator.
Triage remains a matter for the federal states - with all the consequences
The ruling means that the entire Section 5c IfSG is null and void - including the paragraphs that follow the main regulation. The judges made it clear that if the core is not lawful, the surrounding paragraphs cannot remain in place either.
What this means in practical terms is that there is no longer a uniform national regulation on how decisions should be made in the event of hospital overload. This creates new uncertainty - especially for doctors, who have to make decisions under pressure in an emergency.
Comment: Legally correct, but a step backwards in practice?
The court's decision is legally comprehensible - the legislative powers are clearly regulated in the Basic Law. But in practice, the ruling also means more uncertainty in crisis situations. What was actually intended as support for doctors has now been completely removed.
One thing is clear: a triage situation is always an extreme situation. This makes it all the more important to have clear, legally secure and ethically sound framework conditions. The fact that each federal state is now supposed to set its own guidelines - or not - does not make things any easier.
What remains is a gap. One that only really becomes apparent when it becomes a reality.
Source: Federal Constitutional Court press release 99/2025
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