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 Institute¹ 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”.² 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.³

Legal basis

Measures taken by the Government to control the spread of the coronavirus, to contain the number of cases and thus prevent a collapse of the national healthcare system, are measures of Public Law. This field of law governs the legal relationships between citizens and the government, as well as the exercise of public authority. Public Law regulates which actions a government may take to fulfil a task (in this case, to combat a pandemic); how far these measures may go; which level (federal or state (Länder)); which authorities are in charge of the specific measures; and what legal remedies are available to citizens. Measures against the coronavirus are principally regulated by the German Infection Protection Act (IfSG), which was rapidly and fundamentally altered by two amending laws dated 27 March 2020,⁴ and 19 May 2020.⁵⁶

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 particular⁷  with regard to catering establishments, retail businesses⁸ or establishments for leisure activities.⁹

Legal implementation of protective measures

The German Infection Protection Act provides for the implementation of the abovementioned measures either in specific individual cases – eg only applicable to a single person – or nationwide for the entire Federal Republic, a federal state or parts thereof (and therefore applicable to a large number of individuals).

If the competent authority only wishes to apply single measures against specific persons, the measures are implemented through administrative decisions (Verwaltungsakte). This is a form of action by public administration in Germany used to enforce the law in individual cases.

Where measures are intended to be applied nationwide, it is more appropriate to lay these down in ordinances (Rechtsverordnungen). The latter are legal norms which are not enacted by Parliament (legislature) but by a governmental or administrative body, and therefore exceptionally issued by the executive. Ordinances always require proper authorisation by an Act of Parliament. In Germany, state governments have the power to issue ordinances with state-wide effect under § 32 IfSG. They are potential solutions if measures are meant to be uniform for an entire federal state, or a large part of it. § 5 IfSG was changed by the amending law of 19 May 2020⁵ and now also authorises the Federal Government to issue ordinances.

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).

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 legal basis

On the issue of the – general and abstract – provisions of the German Infection Protection Act for the implementation of protective measures – especially § 28 (1) IfSG – most legal scholars consider that the provisions are proportionate.¹² As a pandemic of the magnitude of the coronavirus poses a threat to the people’s highest-ranking legal interests, namely human life and health as well as the functioning of the national healthcare system, the proportionality of the provisions in general may hardly be questioned. This also applies to provisions that provide for far-reaching interventions such as bans on gatherings, quarantine or restriction of contacts.

Unlike most legal scholars, the scientific service of the German Parliament (Wissenschaftlicher Dienst des Deutschen Bundestages) considers that § 5 (2) IfSG (which authorises the Federal Minister of Health to issue ordinances under certain circumstances) is – at least in part – unconstitutional. In the view of the scientific service, the competences transferred from the Legislature to the Executive by the provision are too far reaching.  Additionally, the provision empowers the Federal Government to intervene too far in matters for which the federal states are responsible.¹³

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.¹⁴ 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.¹⁵ Courts have, however, upheld the general requirement to wear masks on public transport and in shops,¹⁶ just as they have upheld the restrictions on school operations.¹⁷

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).¹⁸

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.