Germany’s Protective Measures against the COVID-19 Pandemic: Stress Test for the German Rechtsstaat

Introduction

The COVID-19 pandemic reached the Federal Republic of Germany on 27 January 2020. A 33-year-old employee of an automotive supplier in Bavaria in South Germany – the so-called “patient 0” – who had travelled to Germany from the company’s Shanghai location, contracted the virus from a Chinese colleague during an internal training course. Soon after, 13 of his colleagues or their relatives were infected. On 25 February 2020, the first infection in Baden-Wuerttemberg, also in the south of Germany, was confirmed. This person had likely been infected during a trip to Italy. Shortly afterwards, the virus was also detected in a person in the federal state of North Rhine-Westphalia in the west of Germany. From then on, the number of confirmed cases rose sharply across Germany.

On 22 January 2020, the Robert Koch Institute declared that only a small number of people could be infected by others at a time; that the virus would not spread very widely in the world; and assessed the risk for the population to be “low to moderate“. However, it changed its risk assessment on 17 March to “high”, and on 26 March to “very high” for risk groups.

Subsequently, a range of measures was taken to curb the course and spread of the coronavirus. This paper aims to give a brief overview of the measures which were implemented by the German Government, followed by a legal assessment of these measures.

The Government’s responses and measures

Initially, the German Government relied on citizens taking voluntary measures and assessed the course of the coronavirus to be significantly milder than the flu. The sole requirement was, from 31 January 2020, onwards, a reporting obligation for infected people. In early March, the Federal President called for solidarity with people over the age of 60, and recommended avoiding events with more than 1000 participants. In addition, the German Chancellor called for social contact to be avoided wherever possible.

These voluntary recommendations were not adhered to by parts of the population, and the virus continued to spread rapidly. As a consequence, the German Government and the federal states agreed, on 22 March, on a wide-ranging “restriction of social contacts”. These included, among others, the following measures:

  • Restriction of contact with people outside one’s own household to an absolute minimum.
  • Physical distancing in public spaces of at least 1.5 metres.
  • A ban on group celebrations.
  • Closure of restaurants, with take-away of foods and beverages permitted.
  • Closure of service providers in the field of personal care – eg hairdressers, beauty salons, massage practices, tattoo studios. Exceptions applied for medically required activities.
  • The federal states also imposed additional measures based on social distancing, with the aim of reducing the rate of spread of the virus:
  • Suspension of face-to-face teaching in schools, and closure of child day care centres.
  • Quarantine measures and closures of universities, businesses and retirement homes.
  • Quarantine measures for an entire region (Heinsberg).
  • A ban on church services.

These measures were gradually phased out from 15 April 2020. In contrast, at the end of April, a requirement to wear masks on public transport and in shops was introduced. In addition, a 14-day quarantine requirement was imposed on those returning from abroad.

The most relevant measures which were implemented can be found in chronological order in the overview below (see diagram). 

In addition to these jointly agreed measures, some federal states imposed further lockdown restrictions, where leaving one’s own apartment or entering public space was permitted only with a “valid reason”. However, some of these restrictions were overturned by constitutional courts of the federal states.

Protective measures in accordance with the German Infection Protection Act (IfSG) 

The most important legal basis for measures against the coronavirus is § 28 (1) IfSG.

As the more specific clause, Sentence 2 of § 28 (1) IfSG primarily applies. This provision empowers the competent authority to prohibit or curtail events and gatherings, and to close swimming pools and other community facilities such as school and child daycare centres. The provision concerning ‘other gatherings’ covers not only gatherings in public, but also those in the private sphere, for instance, birthdays, weddings, and funerals.

The general clause in Sentence 1 of § 28 (1) IfSG empowers the competent authority to take protective measures required to prevent an infectious disease from spreading from infected persons, or persons suspected to be infected. This provision is the primary legal basis for self-isolation at home; furthermore, people may be prohibited from leaving or entering certain locations, i.e. the provision represents the legal basis for curfews. It is also the legal basis for operating prohibitions, in particular  with regard to catering establishments, retail businesses or establishments for leisure activities.

Compliance with constitutional law

§ 28 (1) IfSG empowers authorities to take very far-reaching measures which severely curtail fundamental rights of citizens. The measures implemented in the Federal Republic of Germany to manage the spread of coronavirus may be considered to affect, in particular, the following fundamental rights (see table next page).

Protective measuresLegal basisAffected fundamental rights
Closure of catering establishments, retail businesses and establishments for leisure activities§ 28 (1) Sentence 1 IfSGFreedom of occupation (Article 12 of the “Grundgesetz” – GG –)
Self-isolation at home§ 28 (1) Sentence 1 IfSGFreedom of movement (Article 11 GG)
Ban on gatherings§ 28 (1) Sentence 2 IfSGFreedom of assembly (Article 8 GG)
Ban on church services§ 28 (1) Sentence 2 IfSG Freedom of religion (Article 4 GG)
Closure of schools and training facilities§ 28 (1) Sentence 2 IfSG Freedom of education (Article 7 GG)
Ban on private celebrations§ 28 (1) Sentence 2 IfSG Individual freedom (Article 2 (2) Sentence 2 GG)


The need to combat a pandemic does not in itself allow the state to interfere with its citizens’ fundamental rights. Both the provisions of the German Infection Protection Act and the specific measures must be considered with reference to these fundamental rights. Ultimately, both must comply with the principle of proportionality.

Proportionality of the specific protective measures

While the legal provisions comply with German constitutional law, this does not necessarily mean that the specific measures adopted during the crisis also comply with it. Rather, it is necessary to consider each individual measure in order to establish whether it is consistent with the principle of proportionality and, in particular, if it is reasonable. The 14-day quarantine obligation for returnees from abroad, for example, has already been ruled to be unlawful on the ground that it cannot be assumed with a sufficient degree of probability that all returnees are likely to be infected. Prohibition of church services, mosque services or synagogue services is also considered to be incompatible with the freedom of religion (Article 4 GG), and to require exceptions on a case-by-case basis, issued in coordination with the health authorities and with additional conditions and requirements, as necessary. Courts have, however, upheld the general requirement to wear masks on public transport and in shops, just as they have upheld the restrictions on school operations.

However, a general, sweeping statement on proportionality cannot be made. Rather, the measures to contain the spread of coronavirus must be continually monitored and assessed against the principle of proportionality. Furthermore, it is necessary also to continually examine whether individual restrictions must be maintained (especially in the light of new data) or may be eased (with conditions and requirements, or regional restrictions, if necessary).

Outlook

Even though the number of infections has decreased significantly in Germany, and the strategy of the German Government has attracted interest abroad, it must be noted that many provisions in ordinances were subsequently overturned on the ground that they were too general, and did not allow for individual cases to be taken into account. The number of court cases – several hundred – show that the rule of law is functioning well in the Federal Republic of Germany, and that the courts have duly carried out their duty to scrutinise the use of executive power. 

At the time of writing, we do not know whether we in Germany have largely overcome the dangers of the coronavirus or whether we must expect a second wave. If so, new legal challenges will be taken to the courts. However, the past few months have shown that two fundamental conclusions can be drawn from the measures implemented against the coronavirus in the Federal Republic of Germany, and the numerous court decisions in their regard. Firstly, it is important to ensure that national measures are not too general and rigid, but rather provide for adequate responses to individual cases and exceptions, if necessary. Secondly, the measures adopted must be temporally limited, and continually be assessed against the proportionality test.

  1. The Robert-Koch-Institut is the German Society for Hygiene and Microbiology.
  2. www.bundesregierung.de/breg-de/themen/coronavirus/besprechung-der-bundeskanzlerin-mit-den-regierungschefinnen-und-regierungschefs-der-laender-1733248.
  3. Constitutional Court of the Saarland, decision of 28 April 2020, Case Lv 7/20.
  4. “Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite”, BGBl. I 2020, 587.
  5. “Zweites Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite”, BGBl. I 2020, 1018.
  6. Overview in Schmidt/Lindner, COVID-19, Rechtsfragen zur Corona-Krise, 1. Aufl. 2020, § 16 Rz. 1.
  7. Administrative Court of Aachen, Decision of 21 March 2020, Case 7 L 230/20.
  8. Bavarian Higher Administrative Court, Decision of 30 March 2020, Case 20 CS 20.611; Administrative Court of Bremen, Decision of 26 March 2020, Case 5 V 553/20; Higher Administrative Court of Hamburg, Decision of 26 26 March 2020, Case 5 Bs 48/20.
  9. Regarding shutdowns of gambling halls, casinos and betting offices, cf. Administrative Court of Düsseldorf, Decision of 20 March 2020, Case 7 L 575/20; Administrative Court of Cologne, Decision of 20 March 2020, Case 7 L 510/20.
  10. “Zweites Gesetz zum Schutz der Bevölkerung bei einer epidemischen Lage von nationaler Tragweite”, BGBl. I 2020, 1018.
  11. The “Grundgesetz” is the Constitution of the Federal Republic of Germany.
  12. Instead of many, e.g. Rixen, NJW 2020, 1097, 1098.
  13. www.bundestag.de/resource/blob/690262/cb718005e6d37ecce82c99191efbec49/WD-3-080-20-pdf-data.pdf
  14. Administrative Court of Hamburg, Decision of 13 May 2020, Case 15 E 1967/20. 
  15. Federal Constitutional Court, Decision of 29 April 2020, Case 1 BvQ 44/20.
  16. Higher Administrative Court of Schleswig-Holstein, Decision of 13 May 2020, Case 3 MR 14/20; Administrative Court of Hamburg, Decision of 11 May 2020, Case 9 E 1919/20.
  17. Higher Administrative Court of Baden-Wuerttemberg, Decision of 18 May 2020, Case 1 S 1357/20.
  18. Federal Constitutional Court, Decision of 10 April 2020, Case 1 BvQ 28/20.

Prof Dr hc Rudolf Mellinghoff

Honorary Professor and retired Chief Justice

Biography

Prof Dr hc Rudolf Mellinghoff (Honorary Professor and retired Chief Justice) started his judicial career 1987 as Judge at the Finance Court of Duesseldorf (North Rhine-Westphalia), served from 1992 to 1996 as Judge in Mecklenburg-West Pomerania (Judge and since 1996 Presiding Judge at the Finance Court of Mecklenburg-West Pomerania; simultaneous: Judge at the Administrative Court of Mecklenburg-West Pomerania). 1997 he was appointed as Judge at the Federal Supreme Finance Court of Germany. From 2001 to October 2011 he was Justice of the Federal Constitutional Court of Germany (Second Senate). From November 2011 to July 2020 he was President of the Federal Supreme Finance Court of Germany. He was in several legal and tax associations in leading roles, e.g. President of the German Tax Jurist Society, President of the German Section of the International Commission of Jurists (ICJ) and Member of the Permanent Scientific Committee of the International Fiscal Association (IFA). He is Member of the Judicial Integrity Group (JIG). 

Biography

Dr Philipp Maetz was born in 1981 in Baden-Wuerttemberg, Germany. After graduation from high school (2000) and national service, he completed his professional training in the Fiscal Administration of Baden-Wuerttemberg, and studied taxation at the University of Applied Sciences for Public Administration and Finance in Ludwigsburg (2001–2004). He then studied law at the University of Heidelberg (2004–2010), including an exchange year at Kyoto University, Japan (2006-2007). After the First State Examination (2010) and the completion of his legal training with the Second State Examination (2012), he worked as a lawyer in the area of tax law and succession planning (2012–2016). In this time, he also successfully passed the tax consultant exam (2015). Since 2016, Philipp Maetz has worked as a judge at the Finance Court of Baden-Wuerttemberg in Stuttgart. In 2017, he was awarded his doctorate by the University of Cologne. He is currently seconded as a research assistant to the Federal Supreme Finance Court (Bundesfinanzhof) in Munich. In addition, Philipp Maetz is co-author of commentaries in the area of income tax as well as reorganisation tax law.

Introduction

Analysis

Conclusion