The Union accuses the traffic light parties that the countries with the new Infection Protection Act no longer have all the measures that were previously available. “On the one hand, that’s true,” says Andrea Kießling from the University of Bochum, “on the other hand, you have to say that there are additional measures”. In an interview with ntv.de, she explains which measures are available to the federal states – and what the problem with the Prime Minister’s conferences is.
ntv.de: Can you understand that non-lawyers lose track in the dispute between the traffic light parties and the Union over the amendment of the Infection Protection Act?
Andrea Kießling teaches public law as well as social and health law at the Ruhr University in Bochum.
(Photo: private)
Andrea Kießling: I can understand that very well. The confusion arises, on the one hand, because it is sometimes not entirely clear what is currently applicable and when and who is allowed to order what. On the other hand, because many people do not understand why the epidemic situation of national importance should come to an end right now.
Why are the traffic light parties letting the epidemic come to an end?
The epidemic situation of national scope has existed since 2020; it is the basis for the corona measures in the federal states. Since April of this year, it has only been valid for three months, after which it has to be extended by the Bundestag. If he doesn’t, it will automatically expire. This expiry will happen next Thursday, November 25th.
But why?
At the end of October, the SPD, Greens and FDP justified this in a press conference by stating that the prerequisites for the epidemic situation no longer exist because the intensive care units and the health system as a whole are not overloaded. Even then, however, it was not entirely clear whether that was really the case.
The traffic light parties, especially the FDP, argue that the previous legal situation was on “feet of clay”. The whole Infection Protection Act was therefore not legally secure.
From my point of view, it was not always clear what this argument refers to. In part it sounded as if the determination of the epidemic situation was no longer legally certain because there are now so many people who have been vaccinated. But the epidemic only asks whether the health system is overburdened or not. That has nothing to do with how many Germans are vaccinated.
In part, this meant that exit restrictions were disproportionate and therefore unconstitutional. It is of course to be welcomed that measures are being removed from the law that are believed to be unconstitutional. There was a few weeks ago about the exit restrictions in spring 2020 Judgment of the Munich Administrative Courtwho thought it was disproportionate. But with regard to other measures, there was no discussion in either case law or jurisprudence that something should necessarily be deleted.
The Union accuses the traffic light parties that the countries with the new Infection Protection Act no longer have all the measures that were previously available. Is that correct?
On the one hand that is true, on the other hand it has to be said that there are additional measures. The Bundestag has included a few regulations in the Infection Protection Act, which now apply immediately without the states having to take action. But measures have also been deleted from the catalog. In a sense, there are now three levels of authority for the Länder.
You have to explain that.
There is not one rule that says everything, there are various options. The first possibility is: As long as the epidemic situation persists, the federal states can prescribe all measures that they have been able to prescribe up to now. Because the epidemic situation was not ended by the Bundestag on Thursday, but will continue to apply for a few days. This applies to all measures that we know from winter 2020/21, including lockdown, exit restrictions and school closings.
How long would that be valid?
If a federal state issues a corresponding ordinance by November 25th, this will apply until December 15th – this is what the Infection Protection Act says now.
And the second option?
The second possibility, which will exist after November 25th, is: The state governments will pass regulations as before, but measures have been removed here: the exit restrictions, the closure of schools, restaurants, bars and pubs. The federal states can still restrict access to restaurants or other areas, for example 2G or 3G or a mask requirement. But they can no longer close everything.
The third layer of authority is still missing.
The third option can be opened up by the federal states through a resolution in the state parliament. If the state parliament decides that measures beyond the framework just described are necessary, then the state government will have further options. The state parliament does not determine these measures itself, but can expand the state government’s leeway through its resolution. The traffic light parties and the Union argued about this in the Bundestag the day before yesterday.
This went so far that MPs read passages from the same text to each other in order to support completely contrary views.
Exactly. What the states are no longer allowed to order in the future, even after a state parliament resolution, are exit restrictions. They are also no longer allowed to prohibit individual sports, assemblies and religious gatherings. They are also no longer allowed to close daycare centers and schools, as well as the catering trade.
What is left then?
Discos and clubs, for example – that’s what the dispute between MPs Jan-Marco Luczak from the CDU and Dirk Wiese from the SPD was about (pdf). Discos and clubs do not count as gastronomy, but as leisure facilities. That is another point in the new catalog of measures of the Infection Protection Act. Leisure facilities may still be closed. The same applies to leisure events such as Christmas markets.
Could the federal government, with the current legal situation, impose nationwide measures against the will of a single state?
We had that with the so-called federal emergency brake. This applied nationwide wherever the seven-day incidence was over 100, or in the case of school closings over 165. The federal government is now also doing it with 3G at work, with 3G in buses and trains or with compulsory testing in nursing homes, however independent of a certain threshold value. This applies directly to all of Germany.
Another possibility is for the Federal Minister of Health or the Federal Government to issue ordinances. But the Bundestag must first create this possibility by law. This is the case, for example, with the test obligations and quarantine rules for travelers returning and arriving.
On October 22nd, in a conference of ministers presidents (MPK), the federal states called on the federal government to amend the Infection Protection Act so that no state parliament resolutions are required. Did that happen?
Yes – this has been included in the current change. When the Greens and the FDP said in the summer that the epidemic situation is not a good basis for the Corona measures, there were corresponding considerations in the grand coalition. The CDU politician Erwin Rüddel, chairman of the health committee in the last legislative period, still has Said at the end of Octoberthat there was agreement in the Union that the epidemic situation should end on November 25th. Even before the federal elections, in September, Groko had changed the Infection Protection Act so that the federal states could take action without an epidemic situation. For this, the state parliaments each had to pass a resolution. The state governments wanted that now not in autumn: The Prime Ministers feared that they would not have the necessary majorities in their parliaments for Corona measures – for example in North Rhine-Westphalia because of the FDP or in Bavaria because of the Free Voters.
The request to change the Infection Protection Act again led to the result that we now have. The state governments have a number of measures at their disposal that they can adopt without a state parliament. They only need state parliaments for certain rules. From a purely legal point of view, there is still the possibility that the old catalog of measures will be applied again: if the Bundestag re-establishes the epidemic situation – because the corresponding regulation has not been deleted from the law.
Would you say that the somewhat unclear responsibilities between the federal and state governments help a lot in disguising responsibilities?
You can see it that way. An example: Federal Health Minister Jens Spahn changed the vaccination ordinance in August to allow booster vaccinations for certain groups of people. One can ask who is responsible for the fact that these booster vaccinations did not take place to the necessary extent.
So where is the responsibility?
The federal states are responsible for organizing these vaccinations. But of course that doesn’t mean that the Federal Ministry of Health couldn’t coordinate this better.
I also have the impression that the MPK is a body that favors political blockades. Individual state governments are apparently saying to themselves: Before we make an unpopular decision, we’d better wait a few days until the MPK. A few days can be a long time in the pandemic, however.
Hubertus Volmer spoke to Andrea Kießling