Monday 15th November 2021
Interview with Thorsten Kingreen
“We don’t need emergency law for Corona”
The dispute over the end of the epidemic situation is intended to cover up the political and administrative failure in the summer, says lawyer Thorsten Kingreen. “With the traffic light parties’ bill, we finally have a precise set of instruments.”
ntv.de: The traffic light wants to end the epidemic situation of national importance. That sounds grotesque – is there currently no “serious risk to public health in the entire Federal Republic of Germany”, as stated in the Infection Protection Act?
Thorsten Kingreen: Of course there is currently an epidemic situation of national scope and we have a threat to public health – not nationwide at the moment, but in many regions. In view of the incidence values, one does not have to be a clairvoyant to predict that this situation can extend to the whole of Germany. One cannot seriously deny that.
The epidemic situation is a construction that has led to massive shifts of power between parliament and government. That is what the traffic light wants to end in a understandable way. In the current situation, however, it is incredibly difficult to convey politically that effective danger prevention and an end to the epidemic situation are not mutually exclusive.
You write in one Post in the constitution blog, The Bundestag should not only have “not allowed to prolong the determination of the epidemic situation at the last two times at the end of August and beginning of June, it should have (…) even lifted it”. Why?
The Infection Protection Act stipulates that the Bundestag must decide every three months whether to extend the epidemic situation on a national level. So he has to reassess the situation every time, in each case in the specific situation, otherwise the three-month rule would make no sense. In June and August we had a hospitalization rate so low that there was no reason to believe that there would be a risk to public health.
Where did the construct of the epidemic situation of national scope come from?
This comes from international law: The World Health Organization (WHO) can determine a health emergency of international scope in order to organize an internationally coordinated action against pandemics and other threats. The federal legislature adopted this construction very uncritically in the dramatic situation in March 2020. Originally, the associated shift in power in favor of the executive was only supposed to take place temporarily, but this has now become more permanent. The traffic light parties wanted to set an example: the pandemic can be combated effectively with the instruments of the democratic constitutional state that have been practiced; you don’t need emergency law for that.
Can one fight the pandemic if one does not determine the epidemic situation of national scope?
Definitely! With the draft law of the traffic light parties, we finally have a precise set of instruments. We now have a clear legal basis for ordering 2G and even 2G plus across the board. This is still controversial in the coalition, but I expect this possibility to come.
While Israel started booster vaccinations in the summer, we had absurd discussions about whether 2G discriminated against the unvaccinated and shut down the vaccination centers that we urgently need now. If we have one thing in Germany, it is a political and administrative failure. What we don’t have, however, is a legislative failure because the catalog that is coming now is suitable, necessary and appropriate to combat the pandemic. There is no instrument that is missing, except for the contact restrictions. But they should come back in now. Luckily.
You write in the constitution blog that some prime ministers are also beating the traffic light parties because they do not have a safe majority in their state parliaments for tough measures.
The current legal situation already allows the federal states to pass all measures that are contained in the Infection Protection Act through their state parliaments. But they didn’t do that. At the Prime Minister’s Conference on October 22nd, you even decided not to make use of the option of applying the catalog of measures on your own responsibility after the epidemic had expired. Instead, they wanted a nationwide regulation. The federal legislature then took action.
In the form of the traffic light parties with their majority in the Bundestag.
And now individual countries come and complain. They could have taken all measures in the summer. In Bavaria, on the one hand, the big word is against the reform, but on the other hand, 2G will only apply in restaurants from this week. That is a bit contradicting itself. After the latest announcement of the traffic light, there is now also a state opening clause, which expressly enables the state parliaments to take individual, stricter measures. My prediction is: the countries will not make use of it. A party-political shadow battle is taking place to cover up the political-administrative failure in the summer. And then, as you know, we had another government.
There is often a certain amount of confusion about who is responsible for fighting the pandemic: the Federal Chancellor and the Conference of Prime Ministers, the Federal Minister of Health or the state health ministers, the districts and their health authorities … Can you briefly explain who is responsible if something goes wrong?
(laughs) No, I can’t do that for a moment. The federal confusion is quite substantial. From my point of view, it is important that a parliament has to decide on the tightened measures that are being introduced now and will probably also have to be introduced. The decision-making powers are being shifted from the Prime Minister’s Conference, which I have always considered questionable, to the Bundestag and the state parliaments.
Can you assign the political-administrative failure to specific people or to a level?
I wouldn’t assign it to people, that would be completely wrong. But it’s fair to say that the decision not to start the booster vaccinations was a failure at the federal level. That was decided in the summer, around the time Israel started booster vaccinations. In this phase, the vaccination centers were closed instead. The federal states did this on their own responsibility, but it happened as a result of the political signals from the federal government that the vaccination campaign could now run sufficiently through the doctor’s offices. We are therefore now in the situation that we have enough vaccine, but no longer the necessary infrastructure to boost very quickly. I find that very strange, because in the summer it was foreseeable that there would have to be a third vaccination for everyone.
Hubertus Volmer spoke to Thorsten Kingreen