Emergency Powers Under the Grundgesetz: Defense and Crisis Management

The Grundgesetz provides a comprehensive framework for emergency situations, governed by Articles 80a, 115a–115l, and related provisions, supplemented by the Zivilschutzgesetz and the various Land police laws. The emergency constitution (Notstandsverfassung) was introduced in 1968 through the Notstandsgesetze (Emergency Acts), which amended the Grundgesetz after a protracted political debate about the appropriate balance between state effectiveness and individual liberty in crisis situations. The framework distinguishes between the state of defence (Verteidigungsfall), the state of tension (Spannungsfall), internal emergencies, and disaster response, each with its own legal regime.

The State of Defence

The state of defence (Verteidigungsfall) under Article 115a GG is declared when the federal territory is under attack by armed force or imminently threatened with such an attack. The declaration is made by the Bundestag with the consent of the Bundesrat, requiring a two-thirds majority of votes cast and at least a majority of Bundestag members. On the application of the Federal Government, the Joint Committee (Gemeinsamer Ausschuss) may issue a declaration if the Bundestag cannot convene in time. The state of defence triggers significant constitutional changes under Articles 115b–115l GG. The Federal Chancellor assumes command of the armed forces (Befehls- und Kommandogewalt), transferring this authority from the Minister of Defence. The federation acquires extended legislative competence, including the power to legislate on matters normally within Land competence. The federal government may issue instructions to Land governments and Land authorities, and administrative procedures may be simplified. The Joint Committee may assume the functions of the Bundestag and the Bundesrat if they cannot convene, though constitutional amendments may not be adopted during the state of defence.

The State of Tension

The state of tension (Spannungsfall) under Article 80a GG is a preliminary stage to the state of defence, declared when an imminent threat of armed conflict has not yet materialised but requires preparatory measures. The declaration of the state of tension requires a two-thirds majority in the Bundestag with the consent of the Bundesrat. During the state of tension, the federal government may take measures necessary for defence preparedness, including calling up reservists, requisitioning property, and imposing restrictions on movement. The constitutional provisions governing the state of defence do not apply fully during the state of tension, but the government may take preparatory measures authorised by statute. The distinction between the state of defence and the state of tension allows graduated responses to escalating threats, preserving constitutional safeguards as long as possible.

The Joint Committee

The Joint Committee (Gemeinsamer Ausschuss) under Article 53a GG is a constitutional emergency body composed of two-thirds Bundestag members and one-third Bundesrat members. The Bundestag members are elected in proportion to party strength, ensuring that the Joint Committee reflects the political composition of the full Bundestag. The Joint Committee assumes the functions of the Bundestag and the Bundesrat if they cannot convene during a state of defence, exercising legislative powers under Articles 115d–115f GG. However, Article 115d(2) GG provides that the Joint Committee may not amend the Grundgesetz or enact statutes that would suspend the functioning of the Bundestag or the Bundesrat. The Joint Committee’s legislative power is strictly limited to measures necessary to repel the attack and to secure the continued functioning of the constitutional order.

Internal Emergency

The Grundgesetz distinguishes between external defence emergencies and internal emergencies (innerer Notstand). Articles 35 and 91 GG address situations where the public order or security is seriously endangered within the federation. Article 91 GG provides that a Land may request federal assistance in maintaining public order, including the deployment of the Federal Police and the armed forces, when the Land is unable to cope with a threat to public order. The federation may also act to protect the free democratic basic order in a Land that is unwilling or unable to do so — the federal compulsion (Bundeszwang) under Article 37 GG. The deployment of the armed forces in internal emergencies is subject to strict constitutional limits under Article 87a GG, which provides that the armed forces may be used in internal emergencies only when expressly authorised by the Grundgesetz, and then only in support of the police and the Federal Border Police.

Disaster Response

Disaster response (Katastrophenschutz) is primarily a Land competence under German federalism, governed by Land disaster protection laws. The federation provides supplementary assistance through the Federal Office for Civil Protection and Disaster Assistance (Bundesamt für Bevölkerungsschutz und Katastrophenhilfe, BBK) and the Technical Relief Agency (Technisches Hilfswerk, THW). Article 35(2) GG provides for mutual assistance between Länder in disasters and serious accidents, and Article 35(3) GG allows the federation to deploy the Federal Police and the armed forces to support the Länder in major disasters where the disaster exceeds the capacity of the affected Land. The COVID-19 pandemic led to significant constitutional debate about the adequacy of the federal emergency framework, resulting in the amendment of the Infection Protection Act (Infektionsschutzgesetz) and the expansion of federal coordinating powers in public health emergencies. The Federal Constitutional Court’s decisions on pandemic measures, including the Bundesnotbremse cases of 2021, established important principles for the justification of fundamental rights restrictions during health emergencies.

Constitutional Limits and Safeguards

The emergency constitution balances expanded executive powers against constitutional safeguards. The essential content of fundamental rights (Wesensgehalt) under Article 19(2) GG may not be infringed even in emergencies. The Federal Constitutional Court retains its full jurisdiction during emergencies and may review emergency measures for constitutional conformity. The state of defence or tension must be revoked once the conditions for its declaration cease to exist. The Grundgesetz’s emergency provisions thus reflect the drafters’ determination that even existential threats to the state must be addressed within a constitutional framework that preserves fundamental rights and democratic accountability.