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northAfter a heated debate, the Bundestag approved the amendments to the Infection Protection Act (IfSG) on Wednesday afternoon. 415 deputies voted in favor of the Union and the SPD, 236 against, eight abstained. Then the Federal Council approved it. But nothing really changes for citizens. The only new thing is the legal basis on which the corona measures will be based in the future.
To understand the dispute over the reform of the law, it is essential to take a look at the legal debate in recent months, since when the IfSG was written, no one could say exactly what kind of epidemic threat would affect the country in the future, the legislature created the General clause of paragraph 28, which establishes that “the competent authority may take the necessary protection measures”, “to the extent and for the time necessary to prevent the spread of communicable diseases.” According to paragraph 32, state governments can regulate the corresponding requirements and prohibitions as an ordinance. This is how containment measures have been adopted so far. In several emergency procedures, the administrative courts have verified whether they were really necessary, with different results.
However, during the summer, the criticism grew louder. It is essentially based on the principle that violations of citizens’ rights always require a legal basis and cannot simply be ordered by the executive. This basis of intervention must be formulated with greater precision by the legislator, the more deeply the measures intervene in the rights.
In the first blockade, the courts, including the Federal Constitutional Court, had relied on the fact that the situation was so new and so unpredictable that the authorities could rely on the general clause in paragraph 28: Karlsruhe only noted that the measures always they must be limited in time. so that their need will be constantly verified. However, with the second shutdown, more and more courts expressed doubts that the legal basis was still sufficient; after all, the danger now is neither new nor completely incalculable.
The ordinances must be limited in time and justified.
Therefore, in early November, under pressure from the SPD, the coalition managed to give the crown measures (already enacted) a more precise legal framework. Section 28a now lists “Special protective measures to prevent the spread of Coronavirus disease 2019 (COVID-19)”, which may be “necessary protective measures” within the meaning of Section 28. From the distance requirement up to the mask requirement and the prohibition of cultural and sporting events or overnight stays, the well-known containment measures can be found here at 17 points. The practice that has been practiced so far is explicitly allowed by Parliament. Actions can be taken if there is a “nationwide epidemic situation”.
However, the first version of the bill in particular was the subject of harsh criticism. This was based, among other things, on the fact that the conditions under which measures can be dictated remain comparatively vague. Over the weekend, the coalition factions improved their recruitment and at least regulated the exact conditions for when an “epidemic situation” exists, that is, when the WHO declares an international emergency or a threatening situation spreads across several countries of Germany. The federal government must also report orally to the Bundestag on developments in the situation.
In the revised bill, the requirements for banning religious gatherings and services, as well as exit restrictions and entry bans into nursing homes and nursing homes, were also made more specific. They can only be issued at a later stage if the pandemic cannot be contained despite other measures. Furthermore, the law now expressly states that individual persons or groups must not be completely isolated and that a minimum of social contacts must be guaranteed.
According to paragraph 6 of paragraph 28a, “the social, social and economic effects on the individual and the general public must now be included and taken into account.” Paragraph 3 refers to the known seven-day incidence values of 35 and 50 as threshold values for the measures, but does not specify which restriction is allowed and since when. The opposition had repeatedly criticized it and demanded precise legal requirements, but above all the union wanted to give the executive the greatest possible freedom so that the authorities would not have to react too schematically to the dangerous situation.
After the first criticism, the coalition improved on another point: the law now states that ordinances must be limited in time and have a general justification. The latter should facilitate the work of the courts and lead to a more uniform jurisprudence. Because so far the crown measures have been adopted without any explanatory text, so each judge had to find out what the respective state government wanted to achieve with the measure and if the restrictions are necessary for that purpose.
