Suitable for summer and winter: Why the traffic light abolishes the “epidemic situation”

The number of infections is higher than ever during the corona pandemic in Germany, the first intensive care units are at their limit – but the traffic light parties want to abolish the “epidemic situation of national importance”. Sounds absurd, but it’s more complicated.

What is the national epidemic situation?

the epidemic situation of national importance is not just an abstract emergency, but is defined in the Infection Protection Act. It occurs “when there is a serious risk to public health in the entire Federal Republic of Germany” because, firstly, “the World Health Organization has declared a health emergency of international scope and the threat of a dangerous communicable disease being introduced into the Federal Republic of Germany” or, secondly “a dynamic spread of a threatening communicable disease across several countries in the Federal Republic of Germany threatens or takes place”.

The epidemic situation does not apply because the federal government feels like it, but has to be determined by the Bundestag. The Infection Protection Act expressly states that the Bundestag will lift the epidemic situation again if the conditions are no longer met. The determination of the situation has to be extended every three months, the last time being on August 25th. If the emergency is not prolonged, it is deemed to have been lifted three months later. That would be the case on November 26th.

Where is the problem?

The epidemic situation of national scope forms the basis for most of the corona measures. If it expires at the end of the month without replacement, the federal states can no longer even impose mask requirements.

Are the prerequisites for an epidemic situation of national scope still in place?

Corona is currently undeniably spreading very dynamically across several federal states and there is “a serious risk to public health” throughout Germany. Nevertheless, the prerequisites for the epidemic situation are not in place still, but again before. This is how the health lawyer Thorsten Kingreen from the University of Regensburg sees it writes in the constitution blogthat there was no epidemic on either June 4th or August 25th – those were the last two times the situation was identified. Kingreen concludes that “the Bundestag should therefore not only not have prolonged the determination of the situation on these days, it should have (…) even lifted it”. This is what politicians mean when they say that the construct of the epidemic situation is not legally secure and that it could be overturned by the courts.

Because the numbers of corona infections and hospitalizations are known to depend heavily on the seasons. If the Bundestag were to orient itself strictly to the definition of the Infection Protection Act, “there would have to be a ping-pong of wintry declarations and summer rescission resolutions,” said Kingreen. He advocates “shutting down the pointless construction of the ‘epidemic situation’ and simply pursuing effective danger prevention”.

What does the traffic light want?

After the emergency has been extended twice, although it should not have been extended, it is now not being extended, although it should actually be extended. If one wants to assume goodwill of the traffic light parties, then they abolish the construct of the epidemic situation of national scope in order to get out of the seasonal self-deception. If one wants to emphasize the inadequacy of their plans, it is pointed out that the traffic light parties have declared that all measures should end “by the beginning of spring on March 20 at the latest”. And if it should be emphasized that the FDP in particular rejects the epidemic situation, then it could be assumed that this is primarily about coming to terms with the legal past.

In practice, the traffic light creates a new legal basis for a catalog of measures which – following the latest addition – is close to the previous legal situation. The Bundestag is now also to be given the express opportunity “to extend the validity of the regulations by a maximum of three months by March 19, 2022”. In their key issues paper presented at the end of October, the traffic light parties had already announced that they would strive for “a fundamental revision” of the Infection Protection Act.

What do the critics say?

The contribution by Thorsten Kingreen quoted above is a response to Franz C. Mayer, Professor of Public Law, European and International Law at Bielefeld University. Mayer had sharply criticized the plans of the traffic light parties under the heading “Better not to change laws than badly change”. “The fire brigade throws parts of their equipment into the fire in the middle of a mission”, wrote he, also on the constitution blog. What remains for the countries after the change is a “narrow catalog”. The argument put forward by the traffic light parties that the current infection protection legislation is in danger of being cashed in by the courts is not true. Instead, the end of the epidemic situation seems to be “the primary political goal, almost a fetish”.

“Proclaiming the end of the epidemic situation is the wrong way in every respect,” said CSU boss Markus Söder. “Germany is zero winter-proof with the previous laws that are planned. We are stumbling into an ice-cold winter with shorts and summer tires. It will not work.” In the Bundestag, CSU regional group leader Alexander Dobrindt had attacked the likely new Chancellor Olaf Scholz head-on: “You are almost leaving the ‘Caution team’ and you are joining the ‘Try it again’ team.” Union faction leader Ralph Brinkhaus called it a “denial of reality” to let the epidemic situation run out.

What do the proponents say?

In the meantime, the traffic light parties have improved their draft law and resumed some measures that had previously been deleted. Above all, the FDP was originally proud that only “less intrusive measures” should be made possible. With the increasing number of infections, that is done.

The three traffic light parties are very united in their defense against criticism from the CDU and CSU. This is “a clumsy diversionary maneuver to cover up one’s own failures,” said SPD parliamentary deputy Dirk Wiese. “Even under the current legal situation, Markus Söder could have acted long ago if he had wanted to. Pointing to Berlin now and demanding something new every day is a transparent attempt to distract attention and get out of it, especially in Bavaria, from low vaccination rates and high incidences of stealing responsibility. “

Thorsten Kingreen sees it that way too. “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,” he says in an interview with “That is a bit contradicting itself.” In fact, the federal states cannot be accused of excessive action, on the contrary: At the Prime Minister’s Conference on October 22nd, they decided “that the protective measures that are currently still in place will probably not have to be extended over the autumn and winter”. From today’s perspective, that was pretty optimistic. Kingreen says you don’t need emergency law to fight the pandemic. He praised the fact that with the traffic light parties’ draft law there was “finally a precise set of instruments”.

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