Combatting the CoViD-19 Pandemic – the Case of Germany

Introduction

The Sars CoViD 2 Pandemic has had unparalleled impacts on most states and societies. The extent of the economic, social, and cultural effects of this epochal health crisis is yet unknown, but the effects are enormous and impossible to overstate. The crisis has given rise to extensive and wide-spread conspiracy theories around the globe. There are signs that the ordering of significant restrictions to combat the virus is in some places being used as an excuse for justifying or even resorting to violent disruption. This is not only visible in the United States and Brazil but also in Germany, where the city of Stuttgart, usually the cliched community of the weekly deep sidewalk sweep, was torn apart by violent rioting and destruction arising from a mob of several hundred partying – mostly young – people. There have been similar riots, albeit on a smaller scale in other cities as well. These riots were not exclusively ‘Corona riots’ in a narrow sense. There was disproportionate participation by people with a migration background. However, there appears to be a strong correlation to the pandemic, the restrictions put in place because of it, and the economic impact on many but especially on migrants who are often working in precarious jobs with little or no job security. The loss of employment in these circumstances can have devastating impacts on future perspectives and finding one’s footing and getting settled in a new and foreign country. The eminent criminologist and former Minister of Justice in the state of Lower Saxony, Christoph Pfeiffer, submitted that these riots were a direct consequence of the pandemic, the frustrations caused by the restrictions and of job losses, especially in the black labor market where many of these young people make their living.

The longer the pandemic lasts, the higher the level of frustration. At the beginning of August, anywhere between 20,000 (according to the police) and more than 1 million (according to the organizers) came together in Berlin from all over the country to demonstrate against Corona measures in a protest coalition that included extreme right groups, anti-vaxxers, esoteric groups, the peace movement, self-proclaimed defenders of the Grundgesetz (Basic Law), Trump-Supporters and all kinds of conspiracy theorists.

On the legal side, the pandemic has brought an unprecedented level of restrictions to Germany and its entire population. These restrictions affect everyday behavior that one would typically not even describe in terms of a right or freedom, notwithstanding that they, of course, reflect fundamental rights and freedoms, because they are – were? – so self-evident that they were indeed taken for granted. Leaving the house, walking in the street with whomever you want, going to the pub, and watching a football game would fall into this category. Then there were activities more readily associated with the exercise of constitutional rights such as the prohibition of assemblies and demonstrations, which are strongly protected by Article 8 of the Basic Law. There is also a third category: Those who are asked to sacrifice their ability to make a living for themselves and their families by being forced to close their businesses, interfering with their economic freedom rights as protected by Article 12 GG (and, where not covered by Article 12, by Article 2.1 GG) and the property protection clause in Article 14 GG, notwithstanding potential rights for compensation under § 56 Infection Protection Act. Those who become or became unemployed or are threatened by unemployment are in a similar position economically and will generally be able to access social benefits such as unemployment or ‘short-time work’ benefits. In contrast to the forced closure of businesses, unemployment as such does not impact constitutional rights as there is no right to employment in German law, i.e., there is no right to work that could in any way be construed as a right to employment. There is only a right to an adequate standard of living as a consequence of the welfare state principle in Article 20.1 GG and its practical implementation in various parts (‘books’) of the comprehensive Social Code.

This paper attempts to give a cursory overview of the legally relevant response to the Coronavirus in Germany with an emphasis on those scenarios which have played a role before the courts.

Budgetary Measures

Budget measures to combat the effects of the Coronavirus may not be legal in the narrow sense, but there are some noteworthy legal implications. There is the sheer size of the costs of the response measures, which must be seen in the light of a significantly reduced revenue stream caused by the pandemic.

At the federal level, two supplementary budgets have been passed in 2020 already. The first supplementary budget was passed in late March 2020 and had a volume of EUR 122.5 billion. That is almost exactly one-third of the pre-Corona full federal budget originally passed for 2020 (EUR 362 billion). At the same time, it was expected that tax revenue would decrease by EUR 33.5 billion, necessitating an increased need for debt financing of EUR 156 billion. This was revised upwards in May 2020 to EUR 166 billion. A second supplementary budget was passed in June 2020. Whereas additional expenditure in this second supplement in June was ‘only’ EUR 24.8 billion compared to the first supplement in March, the net impact on the federal debt will be an extra EUR 62.5 billion compared to the first supplement because of a further adjustment of projected revenue. The original pre-Corona budget for 2020 was based on tax receipts of EUR 325 billion, which is now forecast to be just EU 264.4 billion, a decrease of almost 20%.

Legally this means that the (federal) fiscal responsibility clauses of the Grundgesetz (Articles 109.3 and 115.2 GG)[Ref]See also Section 51 of the Budgetary Principles Act [translation by author: Gesetz über die Grundsätze des Haushaltsrechts des Bundes und der Länder (Haushaltsgrundsätzegesetz – HGrG)], available in German at www.gesetze-im-internet.de/hgrg/__51.html (last accessed on 7/8/2020).[/ref] had to be suspended based on the emergency escape clause included in this provision for extraordinary emergencies. To this, one must add the budgetary impacts at the state and municipal levels. A study commissioned by the Bavarian Industry Association, conducted by the German Economic Institute and presented on 8 June 2020 (less than six months into the year) forecasts a combined impact of higher expenditure (+ EUR 66.4 billion) and lower receipts (-EUR 35 billion) of EUR 101.4 billion on the budgets of the 16 Länder in Germany and another EUR 19.6 billion (+ EUR 4 billion expenditure and -EUR 15.6 billion receipts) for the municipalities. The aggregate amount of this exercise comes to EUR 287.5 billion of additional deficit spending at the three levels of government in Germany. This, in turn, amounts to roughly 80% of a full yearly federal budget based on the pre-Corona budget of EUR 362 billion.

In the EU, national budgets are not just a national affair. Those member states who have adopted the Euro as their currency also have to comply with the strict debt regime of the Stability and Growth Pact, which limits the yearly debt-financed part of national budgets to 3% of GDP. The spending described above will affect Germany’s 2020 budget, and that of practically all member states. The Corona budget measures of 2020 alone could stretch overall German debt from just under 60% in 2019 to over 81% of GDP in 2020 and nullify any gains made in Germany’s budgetary position from the high debt levels in the wake of the Global Financial Crisis (GFC). In the meantime, the EU has released the member states from the strict debt restriction obligations under the EU’s Stability and Growth Pact under the escape clause for extraordinary and severe economic conditions.

Finally, the EU side of things cannot be ignored when trying to survey the situation. The European Central Bank (ECB) reacted swiftly and announced on 18 March 2020 the “Pandemic Emergency Purchase Programme” (PEPP), with an envelope of EUR 750 billion to temporarily purchase assets consisting of private and public sector securities, thus providing the financial markets with the liquidity required to respond to the crisis. In early June, the PEPP financial envelope was increased by EUR 600 billion for a total funding scope of EUR 1.35 trillion. The timeline for the net purchasing of assets was extended to June 2021 and the reinvestment of income from those assets until the end of 2022. In addition, the EU at the recent European Council summit agreed to provide itself major financial relief for member states particularly hard hit by the pandemic. The EU communicated a total response package of an unfathomable amount of EUR 2.634 trillion. That figure overstates the real number because more than EUR 1 trillion consists of the multiannual budget planning figures for 2021-2027. Nonetheless, the extraordinary response package adopted in July still comprises EUR 750 billion in grants and loans and, together with earlier measures, exceeds one trillion Euros.

Measures to Combat the Pandemic

From a legal perspective, there has been a myriad of responses. Matters are complicated by the fact that the German Länder have retained significant powers in relevant areas, especially regarding the ability to pass regulations authorized by federal statutes. Overall the most important federal statute is the Infektionsschutzgesetz (Infection Protection Act) In § 28, the Act provides for sweeping restrictions ranging from prohibiting public gatherings to requiring people not to leave or not to enter specified places. Subsequent paragraphs include specific powers to counter the threat of infectious diseases ranging from observation (§ 29), quarantine (§ 30), to prohibiting professional activities (§ 31). Paragraph 32 extends this power to the Länder and subordinate authorities who can order counter-measures provided for in the Act within their jurisdiction. As required by Article 19.1 GG, the Act always specifies the basic rights that will be affected if measures are taken. The personal freedom guarantee under Article 2.2 GG provides for free movement (the right not to be restricted to one place) and is one of those foundational guarantees; the inviolability of the home in Article 13 GG is another; the right to assemble and demonstrate is also subject to severe restrictions to the point that at least temporarily there is nothing left of it. The religious freedom clause under Article 4 GG is not mentioned as an affected right because of a somewhat curious, confusing, and misleading distinction between restrictable and unrestrictable rights. The consequence is that Article 19.1 GG does not apply, but that does not mean that religious services could not be restricted as severely as assemblies and demonstrations.

National border closures present an issue under the EU’s free movement rules, especially Articles 21 and 45 Treaty on the Functioning of the EU (TFEU). However, if “a serious threat to public policy or internal security in a Member State requires immediate action to be taken,” border controls may be reintroduced for prescribed short periods. This had severe impacts, particularly on parts of Germany, where cross-border integration is traditionally very developed, and many people live and work on different sides of the national border.

The legal measures cover many areas ranging from insolvency law (lowering the threshold for filing for bankruptcy to avoid mass bankruptcies for businesses suffering cash-flow or other issues due to the pandemic to legislation and regulation attempting to secure the supply of medical equipment, protective gear, and medicines.

  1. For example, in Frankfurt, see Frankfurter Allgemeine Zeitung, Erst die Ausschreitungen in Stuttgart, dann die Krawalle in Frankfurt. Was ist da los?, 25/7/2020 and in Göttingen, see Ausschreitungen in Göttingen – Hochhaus-Bewohner greifen Polizei an, N-TV, 20/6/2020, www.n-tv.de/panorama/Hochhaus-Bewohner-greifen-Polizei-an-article21860432.html (last accessed on 7/8/2020).
  2. Frankfurter Allgemeine Zeitung, Das sind die Verdächtigen der Krawallnacht in Stuttgart, 23/7/20.
  3. Deutsche Welle (DW), Aktuell Deutschland Ursachenforschung nach Stuttgarter Krawallen, 22/6/2020, www.dw.com/de/ursachenforschung-nach-stuttgarter-krawallen/a-53899715 (last accessed on 7/8/2020). See also ZDF, Göttingen, Gütersloh, Stuttgart – Führt Corona zu gesellschaftlicher Spaltung?, www.zdf.de/nachrichten/panorama/coronavirus-guetersloh-stuttgart-100.html (last accessed on 7/8/2020).
  4. See, for example, ARD Tagesschau, Corona-Demo in Berlin: Protestiert, gestoppt, kritisiert, 2/8/2020, www.tagesschau.de/inland/corona-demo-polizei-101.html; see also Frankfurter Allgemeine Zeitung (FAZ.net), Anti-Corona-Demo in Berlin: „Es gibt keine Pandemie“, 1/8/2020, www.faz.net/aktuell/politik/inland/es-gibt-keine-pandemie-so-verlief-die-anti-corona-demo-in-berlin-16886349.html (last accessed on 7/8/2020).
  5. The Basic Law is the German Constitution, the Grundgesetz (GG). Henceforth the abbreviation GG will be used when referring to the Basic Law. An English-language version of the GG is available at www.gesetze-im-internet.de/englisch_gg/englisch_gg.html (last accessed on 7/8/2020).
  6. § 56 Infektionsschutzgesetz (Infection Protection Act), www.gesetze-im-internet.de/ifsg/__56.html.
  7. ‘Short-time work’ and ‘short-time work benefits’ (Kurzarbeit and Kurzarbeitergeld; translation taken from the Federal Ministry of Labour and Social Affairs), is an instrument in German law allowing employees to remain employed even in the case of large-scale economic disruption that would otherwise require laying off significant parts of the workforce. The government effectively subsidizes the employees for the loss of working hours. 
  8. See, for example, § 9 Social Code Book I (Sozialgesetzbuch/SGB) or § 1 SGB Book XII. German text available at www.sozialgesetzbuch-sgb.de/ (last accessed on 7/8/2020).
  9. Gesetz über die Feststellung eines Nachtrags zum Bundeshaushaltsplan für das Haushaltsjahr 2020 (Nachtragshaushaltsgesetz 2020) [Supplementary Budget Act], Official Gazette (BGBl. I) 2020, 556 (27/3/2020).
  10. Gesetz über die Feststellung eines Zweiten Nachtrags zum Bundeshaushaltsplan für das Haushaltsjahr 2020 (Zweites Nachtragshaushaltsgesetz 2020) [Second Supplementary Budget Act], Official Gazette (BGBl. I) 2020, 1669 (16/7/2020).
  11. See the determinations of the Stability Council at its meeting of 22/6/2020 on budgetary policy in an emergency situation, stipulating the determination of an extraordinary situation required by the Grundgesetz for deviating from its fiscal discipline clauses, see www.stabilitaetsrat.de/DE/Beschluesse-und-Beratungsunterlagen/20200622_21.Sitzung/Sitzung20200622_node.html. The Stability Council (Stabilitätsrat) is a joint body of the German Federation (Bund) and the federal states (Länder). It was established in 2010 as part of the second stage of Germany’s federal reforms and is enshrined in Article 109a GG, cf. www.stabilitaetsrat.de/EN/Home/home_node.html (last accessed on 7/8/2020).
  12. Verband der bayerischen Wirtschaft (vbw), Corona-Krise, Konjunkturprogramm und Staatsverschuldung (Eine vbw Studie, erstellt vom Institut der Deutschen Wirtschaft Köln), as of: June 2020, https://www.vbw-bayern.de/Redaktion/Frei-zugaengliche-Medien/Abteilungen-GS/Wirtschaftspolitik/2020/Downloads/vbw-Studie-Coronakrise-Konjunkturprogramm-und-Staatsverschuldung.pdf (last accessed on 7/8/2020).
  13. Numbers cited taken from the study cited in previous footnote. See also Federal Ministry of Finance, Overview of federal budgetary and financial data up to and including June 2020 – translated abstract of the Federal Ministry of Finance’s July 2020 monthly report, 21/7/2020, www.bundesfinanzministerium.de/Content/EN/Standardartikel/Press_Room/Publications/Monthly_Report/Key_Figures/2020-07-federal-budget.html (last accessed on 7/8/2020).
  14. See VBW-study, supra fn. 13, p. 12.
  15. Statement of EU ministers of finance on the Stability and Growth Pact in light of the COVID-19 crisis, 23/3/2020, www.consilium.europa.eu/en/press/press-releases/2020/03/23/statement-of-eu-ministers-of-finance-on-the-stability-and-growth-pact-in-light-of-the-covid-19-crisis/ (last accessed on 7/8/2020).
  16. Decision 2020/440 of the European Central Bank of 24 March 2020 on a temporary pandemic emergency purchase programme (ECB/2020/17), OJ L 91, 1 (25.3.2020), http://data.europa.eu/eli/dec/2020/440/oj (last accessed on 7/8/2020).
  17. Decision 2020/1143 of the European Central Bank of 28 July 2020 amending Decision (EU) 2020/440 on a temporary pandemic emergency purchase programme (ECB/2020/36), OJ L 248, 24 (31.7.2020), http://data.europa.eu/eli/dec/2020/1143/oj (last accessed on 2/8/2020).
  18. See COVID-19: the EU’s response to the economic fallout, www.consilium.europa.eu/en/policies/coronavirus/covid-19-economy/ and, for more detail, European Commission, Recovery plan for Europe, https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response-0/recovery-plan-europe_en (last accessed on 7/8/2020).
  19. A comprehensive but probably not complete overview has been compiled at https://dejure.org/corona-pandemie (last accessed on 7/8/2020).
  20. The Robert Koch Institute, Germany’s central scientific institution in the field of biomedicine, has provided an unofficial English translation of the Act at www.rki.de/EN/Content/infections/inf_dis_down.pdf (last accessed on 7/8/2020).
  21. Treaty on the Functioning of the EU (TFEU), Official Journal C 202/47 (7.6.2016), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2016:202:TOC; Art. 21: http://data.europa.eu/eli/treaty/tfeu_2016/art_21/oj; Art. 45: http://data.europa.eu/eli/treaty/tfeu_2016/art_45/oj (last accessed on 7/8/2020).
  22. Articles 25 and 28 of Regulation (EU) 2016/399 of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ L 771 (23.2.2016).
  23. For example, the Saar-Lor-Lux area, i.e. the area where the Saarland, France, Luxembourg meet or in the German/Dutch border regions further north.
  24. For more information on the Federal Constitutional Court (FCC; Bundesverfassungs-gericht), see www.bundesverfassungsgericht.de/EN/Homepage/home_node.html (last accessed on 7/8/2020).
  25. Albeit without success because of the margin of appreciation granted to authorities, see BVerfG, 12/5/2020, 1 BvR 1027/20, www.bverfg.de/e/rk20200512_1bvr102720.html (last accessed on 7/8/2020).
  26. BVerfG, 19/5/2020, 2 BvR 483/20, www.bverfg.de/e/rk20200519_2bvr048320.html (last accessed on 7/8/2020) concerning an application by a defendant to not hold hearings in a criminal trial for fear of a Coronavirus infection.
  27. BVerfG, 10.4.2020, 1 BvQ 31/20, www.bverfg.de/e/qk20200410_1bvq003120.html (last accessed on 7/8/2020).
  28. BVerfG, 15.4.2020, 1 BvR 828/20, www.bverfg.de/e/rk20200415_1bvr082820.html. Similarly, on exercising discretion properly BVerfG, 17.4.2020, 1 BvQ 37/20, para. 20 et seq., www.bverfg.de/e/qk20200417_1bvq003720.html (last accessed on 7/8/2020).
  29. BVerfG, 10.4.2020, 1 BvQ 31/20, www.bverfg.de/e/qk20200410_1bvq003120.html (last accessed on 7/8/2020).
  30. BVerfG, 18/6/2020, 1 BvQ 69/20, www.bverfg.de/e/qk20200618_1bvq006920.html (last accessed on 7/8/2020).
  31. FCC, 15/7/2020, 1 BvR 1630/20, www.bverfg.de/e/rk20200715_1bvr163020.html, paras. 24-5 (last accessed on 7/8/2020).

Professor Jürgen Bröhmer

Professor of Law at the Law School of Murdoch University

Biography

Professor Jürgen Bröhmer is Professor of Law at the Law School of Murdoch University in Perth, Western Australia. He joined Murdoch University at the beginning of 2012 as Dean of the Law School and Professor of Law and served in that function until the creation of the new College of Arts, Business, Law and Social Sciences (ABLSS) of Murdoch University in 2019. Before joining Murdoch University, he worked at the University of New England, in Armidale, NSW, Australia, having commenced there in 2006 and leading that Law School from 2007 to 2011. Professor Bröhmer received his law degree from Mannheim University in Germany and his doctorate and post-doctoral habilitation from Saarland University in Saarbrücken, Germany where worked at the Europa-Institute of Saarland University from 1992 to 2006 and where he continues to be part of the visiting faculty.

Professor Bröhmer is a fellow of the Australian Academy of Law. His areas of expertise are Public International Law, German and comparative constitutional law, European Union law, international trade and international human rights law.

Introduction

Analysis

Conclusion