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Federal Republic of Germany: Legal Response to Covid-19

Germany [de]

Anna-Bettina Kaiser, Roman Hensel

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 18 June 2021

General editors: Prof. Jeff King; Dr. Octavio Ferraz
Area editors: Prof. Tendayi Achiume; Prof. Alan Bogg; Dr. Natalie Byrom; Prof. Cathryn Costello; Prof. Nicola Countouris; Prof. Colleen Flood; Prof. Eva Pils; Prof. Nico Steytler; Dr. Silvia Suteu; Dr. Bryan Thomas; Dr. Michael Veale; Dr. Pedro A. Villarreal


© The several contributors 2021. Some rights reserved. This is an open access publication, available online and distributed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0), a copy of which is available at https://creativecommons.org/licenses/by-nc/4.0/. Enquiries concerning use outside the scope of the licence terms should be sent to the Rights Department, Oxford University Press.

DOI: 10.1093/law-occ19/e2.013.2

Except where the text indicates the contrary, the law is as it stood on: 15 December 2020

I.  Constitutional Framework

1.  The constitutional framework of the Federal Republic of Germany is provided by the Basic Law (Grundgesetz). The federal jurisdiction (Bund) as well as the 16 sub-federal jurisdictions, the Länder, are organized as parliamentary democracies. The directly elected federal parliament (German Bundestag) elects the Federal Chancellor (Article 63 Basic Law) who, as the head of the Federal Government, names the federal ministers (Article 64(1) Basic Law) and determines the ‘general guidelines of policy’ (Article 65 Basic Law). The Länder, each having its own written constitution, are structured in a similar manner with directly elected parliaments (Landtage) consisting of one chamber and electing minister-presidents as heads of the respective government. Through the Bundesrat, which does not have exactly the powers of a typical second chamber,1 the Länder participate in the passage of federal legislation (Article 50 Basic Law).

2.  Federal law-making is mainly divided between statutes enacted by the Bundestag—with the participation of the Bundesrat (Article 78 Basic Law)—and regulations adopted by the executive branch. The Basic Law prevails normatively over statutes and statutes prevail over regulations. Though having great practical importance, decisions by courts are, traditionally, not regarded as sources of law. These categories of legislation exist also at the level of the Länder while federal law always takes precedence over the Länder’s law (Article 31 Basic Law). All non-constitutional sources of law, both at federal and at the Länder’s level, are subject to judicial review, although parliamentary statutes may only be declared void by the Federal Constitutional Court or, in the case of statutes by the Länder, also by the Länder’s constitutional courts (Article 100(1) Basic Law).

3.  The division of powers between the federal level and the Länder is complex. As regards legislation, a law may only be adopted at the federal level if a federal legislative power is explicitly permitted by the Basic Law; otherwise, the Länder have the legislative power (Article 70 Basic Law). With respect to health, the Basic Law grants a federal legislative power regarding measures to, inter alia, combat diseases (Article 74(1)(19) Basic Law). Under this provision, the federal government enacted the Infection Protection Act (Infektionsschutzgesetz) 2000, the most important legal basis for the diverse reactions to the pandemic. In contrast, a federal power concerning civil disaster protection does not exist.2 Hence, legislation in this realm remains a responsibility of the Länder. Despite having this jurisdiction, the Länder’s existing laws on disaster protection have not played a decisive role during the pandemic.3

4.  For most areas, regardless of whether a law has been passed at the federal level or by the Länder, the Länder execute laws in their own right (Article 83 Basic Law), including the organization of authorities (Article 84(1) Basic Law). Local authorities such as regional councils and municipalities, which legally belong to the Länder, regularly have the task of enforcing both federal and the Länder’s law at the local level. Hence, it is, in general, the authorities of the Länder which implement federal law. This division of powers—competences for important fields of legislation at the federal level and most competences for implementation of legislation at the Länder’s level—is commonly termed ‘executive federalism’ (Vollzugsföderalismus) to highlight the entanglement of both levels which is unknown to most other federal systems. A certain compensation for the Länder’s task to execute federal law is their participation in federal legislation through the Bundesrat, as already mentioned above. According to this institutional setting, the Länder are generally in charge of the enforcement of the federal Infection Protection Act 2000. Law enforcement by federal authorities is the exception.

5.  Despite this division of competencies, the Federal Government led by Chancellor Angela Merkel saw the political need to ensure a coordinated overall approach among the Länder. Although lacking any relevant legal authority, the Chancellor held repeated informal meetings with the minister-presidents of the Länder in order to develop a unified strategy to be subsequently legally implemented by the Länder.4 In October 2020, the Chancellor even decided to directly discuss local approaches with the mayors of the 11 biggest cities.5 Although the agreements between the Federal Chancellor and the minister-presidents are regarded by the public as being highly important in political decision-making, they are a form of inter-governmental political consultation rather than a legal measure per se. However, the de facto binding effect must not be underestimated.

6.  Insofar as significant discrepancies between the 16 Länder arise concerning rule-making, law enforcement, and the implementation of the aforementioned agreements in the current pandemic, this report focuses on Bavaria and Berlin, two disparate jurisdictions. The former is a large territorial Land with a conservative government, the latter a densely populated city (and Land) governed by a left coalition.

7.  The Covid-19 crisis has not changed the basic constitutional arrangements, especially with regard to the federal structure of Germany. While it gave rise to crucial legal and constitutional questions, the efforts against the pandemic were, all in all, carried out without any significant departure from the customary patterns of constitutional lawmaking and litigation in Germany.

II.  Applicable Legal Framework

A.  Constitutional and international law

8.  Due to the fact that the Weimar Republic’s emergency constitution played a decisive role in the destruction of the Republic,6 the Basic Law is very restrictive regarding states of emergency. In its original version from 1949, the German constitution did not recognise any form of state of emergency in the traditional sense. That changed in 1968 with a highly controversial constitutional amendment introducing an emergency constitution, providing for natural catastrophes (Article 35), internal turmoil (revised Article 91), and war (Articles 115a–115l Basic Law). Still, the amendment did not provide for a more general norm that would apply to every emergency situation.7 As none of these provisions cover the situation caused by the Covid-19 pandemic, a state of emergency regarding the pandemic has not been and may not be formally declared at the constitutional level.

9.  Although fundamental rights can never be suspended under the Basic Law (not even in times of emergency),8 the state may legally interfere with fundamental rights if this interference is justified by other (constitutional) interests. Certain constitutional principles limit the scope of such interference, among them, most importantly, the principle of proportionality. Even in a mere statutory (ie not provided for by the Constitution) state of health emergency such as declared by the Bundestag in the Covid-19 pandemic,9 an extensive limitation of basic rights might be considered constitutional because highly valued constitutional interests, first and foremost the protection of (public) health, can justify the restriction of other fundamental rights. However, legal limits upon these interferences must be specified with regard to every single measure taken by the state.

10.  By contrast, the Bavarian Constitution 1998, originally adopted in 1946, thus predating the Basic Law, contains a provision that entitles the government to suspend fundamental rights (Article 48). As such a suspension would only cover certain rights of the Bavarian Constitution, but not the provisions of the Basic Law,10 the norm is virtually meaningless and has played no role during the crisis.

11.  The Federal Republic of Germany is a Member State of the European Union (EU). Although the EU has only weak competences regarding health protection (Article 168 Treaty on the Functioning of the European Union), European law strongly affects all policy decisions nowadays. For instance, the Schengen Borders Code plays a decisive role when cross-border traffic is restricted.11

12.  Germany is also a contracting party of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).12 Formally, the ECHR ranks as a federal statute, but according to the Federal Constitutional Court, its requirements must be taken into account when the provisions of the Basic Law, especially fundamental rights, are interpreted.13 There has been no formal decision to derogate from the ECHR or any other international convention. Besides, a derogation from the ECHR would be meaningless as the fundamental rights of the Basic Law may not be suspended.

13.  The World Health Organization’s (WHO) International Health Regulations were transformed into national law through the Act on the Implementation of the International Health Regulations 2013. The Robert Koch Institute (RKI), a scientific authority at the federal level,14 is responsible for the notification of communicable diseases to the WHO. The statutory provisions of national law, as amended during the pandemic (Part II.B), refer to the WHO’s declaration of a ‘Public Health Emergency of International Concern’.

B.  Statutory provisions

14.  The statute that applies to the prevention and handling of communicable diseases is the federal Infection Protection Act 2000.15 Section 28(1) entitles the competent authorities to implement the ‘necessary protective measures’ if a communicable disease occurs. The law also specifies some of these measures. In particular, facilities for children such as daycare centres and schools may be closed and, according to section 30(1), the isolation of infected persons and quarantine of individuals who are suspected of infection may be ordered. The first reactions to the pandemic by local authorities were based on these provisions. For example, a Bavarian district council issued a stay at home order for the area of an early affected municipality in the middle of March 2020.16

15.  There were two major reforms of the Infection Protection Act 2000 in the course of the crisis. A first amendment was passed by the Bundestag with consent of the Bundesrat soon after the pandemic had reached Germany.17 Especially noteworthy is the adoption of section 5 which establishes a legal framework for an ‘epidemic emergency of national concern’ (‘epidemische Lage von nationaler Tragweite’). This emergency must be formally declared by the German Bundestag. In fact, the Bundestag adopted this decision in the same session in which it passed the bill on 25 March 2020.18

16.  For the duration of the epidemic emergency, the Federal Ministry of Health obtains increased legal powers. First, it was allowed to directly order the implementation of certain measures, especially regarding cross-border traffic. Further, it may adopt regulations which contradict pre-existing statutory provisions. For example, it may allow deviations from the Act on Medicinal Products 2005 in order to ensure the provision of medicines including vaccines. According to the aforementioned first amendment to the Infection Protection Act from March 2020, the Ministry was even allowed to issue regulations contradicting the Infection Protection Act 2000 itself. Hence, it can be stated that section 5 of the Infection Protection Act 2000 establishes a hygienic emergency regime at the statutory (in contrast to the constitutional) level.19 These new powers of the Federal Ministry of Health were widely discussed and were deemed unconstitutional by many lawyers for two reasons. First, it is questionable whether it is possible for executive regulations to deviate from parliamentary statutes to such an extent. Second, under the Basic Law it is, in general, the Länder that enforce federal law, not a federal authority (see Part I above).20

17.  Although the rules of procedure of the Bundestag do not provide a formal fast-track procedure, the bill was adopted within only one week: the first published draft by the Federal Ministry of Health dates from 23 March 2020.21 The bill was introduced in the Bundestag on the following day.22 All three readings by the Bundestag23 as well as the discussion by the committee of health24 were carried out one day later. Finally, the Bundesrat consented on 27 March 202025 and the bill was promulgated by the Federal President on the same day.

18.  Two parliamentary groups of the opposition, the party ‘Die Linke’ (‘The Left’) as well as the far-right party ‘AfD’ (‘Alternative für Deutschland’, ‘Alternative for Germany’), abstained from voting, however only the duration of the sunset clause was controversial at the time. Whereas those parties favoured a sunset period expiring on 30 September 202026 the majority accepted the continuation of section 5 powers until 31 March 2021.27 In general, administrative acts and regulations adopted by the Federal Ministry of Health cease to have effect on the same day—or earlier if the declaration of the epidemic emergency is repealed by the Bundestag.

19.  The second major amendment of the Infection Protection Act 2000 was passed in November 2020.28 The amendment again revised section 5, first by adopting a legal definition of the term ‘epidemic emergency of national concern’. Whereas the phrase had always been implicitly related to the WHO’s declaration of a ‘Public Health Emergency of International Concern’, this is now made explicit. Although the declaration of an ‘epidemic emergency of national concern’ is by itself not temporally limited and had not been repealed by the Bundestag meanwhile,29 the Bundestag renewed its formal declaration when voting on the bill in November 2020.30 The sunset clause of the first amendment, 31 March 2021, was not extended, thus section 5 still runs out on this day.

20.  Further, the amendment abrogated some of the extended powers for the Federal Ministry of Health in section 5. Most of its competences for directly ordering the implementation of certain measures were terminated. Partly, those powers were transformed into regulation-making competences of the Federal Government (section 36(8) Infection Protection Act 2000). So, the issues regarding federal enforcement competences diminished. Whereas the power of the Ministry to deviate from the Infection Protection Act 2000 itself was also abrogated, its competence to issue regulations contradicting other federal statutes such as the Act on Medicinal Products 2005 remained. Thus, the problem of section 5 regarding the division of powers has not been overcome.

21.  Another, even more important aspect of the amendment was the adoption of section 28a Infection Protection Act 2000 which is meant to specify the requirements and contents in particular of the central legal instrument for combatting the pandemic, the Länder’s regulations, especially by enumerating certain kinds of ‘necessary protective measures’ such as the implementation of distancing and wearing masks. The necessity of this part of the amendment is comprehensible only against the background of the Länder’s regulation-making powers and will be discussed in Parts II.C and III.A below.

22.  The amendment of November 2020 was also adopted expeditiously. A first draft by the Federal Government, not yet including a proposal for section 28a, dates from 28 October 2020.31 The bill was introduced in the Bundestag on 3 November 2020.32 The Committee on Health, after hearing a number of experts, among them several legal scholars,33 proposed crucial further amendments.34 For instance, the adoption of a legal definition regarding the ‘epidemic emergency of national concern’ was introduced by the Committee. Section 28a was enriched with many details, for example the rule-maker’s obligation to provide a written justification for the regulations (see Part II.C below). The Bundestag decided on this revised version of the bill in a roll-call vote on 18 November 2020. While the members of the government coalition and of the green party consented, all other parliamentary groups opposed the bill,35 with the far-right party AfD catching public attention by making an unfounded comparison of the bill to the ‘Ermächtigungsgesetz’ by Hitler.36 Still, the Bundesrat gave its consent on the very same day37 and the statute was promulgated.

23.  In addition to these amendments of the Infection Protection Act 2000,38 the Bundestag passed numerous bills in order to cope with the crisis in all fields of law. For instance, two so-called ‘Social Security Bundles’ amended a series of laws in the field of social legislation.39 Of great importance was also the adoption of two supplementary budget acts by the Bundestag,40 considerably expanding financial discretion at the federal level.

24.  As already mentioned in Part I, civil disaster protection remains a responsibility of the Länder. According to the Bavarian Act on Disaster Protection 1996, the Bavarian Minister of the Interior declared a disaster situation in mid-March 2020, lasting until mid-June 2020.41 On 8 December 2020, a disaster situation was again declared.42 This declaration only affects the organization of (local) authorities which become subject to instructions by the Bavarian Minister of the Interior. The Bavarian parliament also adopted the Bavarian Infection Protection Act 2020 which entitles authorities to seize medical materials if a ‘health emergency’ is declared by the Bavarian government. However, this law has not yet been applied. In Berlin, neither a disaster situation was declared nor a general statute concerning the crisis was passed. The focal point of legal responses to the pandemic lies, in Bavaria as in all other Länder, on the adoption of executive regulations which will be outlined in the next section.

C.  Executive rule-making powers

25.  During the crisis, it emerged that one of the most relevant provisions of the Infection Protection Act 2000 is section 32. It entitles the governments of the Länder to issue regulations under the requirements established by sections 28–31. That means that the Länder, on the occurrence of a communicable disease like Covid-19, may use regulations to implement all ‘necessary protective measures’. This conceivably vast legal basis imposed few restraints upon legal responses to the pandemic and was subject to considerable debate,43 which led, in November 2020, to a specification of the requirements and contents of such regulations by the adoption of section 28a Infection Protection Act 2000 (see also Part III.A below). Furthermore, all measures are subject to scrutiny by the courts which apply, in particular, constitutional standards such as the principle of proportionality44 and the principle of equality.

26.  Regulations (‘Rechtsverordnungen’), governed by Article 80 Basic Law, are issued by the executive and have the function of spelling out or implementing the abstract provisions of a parliamentary law at a more operative level.45 Such regulations cannot be adopted by the executive branch unless it has been explicitly authorized to do so by a delegating parliamentary act that also specifies the ‘content, purpose, and scope’ (‘Inhalt, Zweck und Ausmaß’) of the regulation-making power, in accordance with Article 80(1) Basic Law.46 Federal laws may confer such rule-making powers on the Federal Government, to a single Federal Minister, or to the Länder’s governments. Like statutes adopted by parliament, regulations are binding general rules. In principle, parliaments are not involved in issuing or scrutinising regulations. However, there are specific situations in which the consent of the Bundesrat is required for regulations adopted by the federal executive, unless the authorizing law provides otherwise (Article 80(2) Basic Law).

27.  Although some Länder had refrained from the application of section 32 Infection Protection Act 2000 at the beginning of the pandemic,47 it did not take long for all 16 Länder to make use of this authorization. All regulations have been temporally limited, with the scope of temporal limitation varying depending on the outreach of the restrictions. When significant interferences with fundamental rights like substantial mobility restrictions were imposed, the provisions’ validity was limited to a very short period of time; thus, the provisions had to be re-adopted before they expired. For instance, the most extensive restrictions on mobility and activities in public space during the first phase of the pandemic were effective between 21 March 2020 and 10 May 2020 in Bavaria and between 23 March 2020 and 8 May 2020 in Berlin; all of the respective regulations were temporally limited to not more than two and a half weeks at a time.48 While the temporal limitations of these early regulations were made due to political choice on the one hand and general constitutional requirements such as the principle of proportionality on the other,49 section 28a(5) Infection Protection Act 2000 has now introduced the explicit requirement to limit the validity of the regulations to not more than four weeks.

28.  Another procedural novelty of section 28a(5) is the duty of the Länder’s governments to provide a written justification for each regulation.50 In general, only administrative orders concerning specific cases must come along with a justification in the German legal order. There are also reasons to be found in the legislative materials of parliamentary statutes. By contrast, a general obligation to provide a justification for executive regulations does not exist, which was regarded as leading to a lack of transparency due to the importance of the regulations concerning Covid-19.51

29.  Section 28a(1) Infection Protection Act 2000 aims at specifying the content of the Länder’s regulations by enumerating the most important protective measures that have governed social life since March 2020 and that will be outlined in Part IV below. The provision allows for the implementation of physical distancing rules (no. 1), mandatory face coverings (no. 2), stay at home orders (no. 3), hygiene measures in all kinds of facilities (no. 4), and the closure of all types of business enterprises (no. 14), to name only a few examples. However, the enumeration in section 28a(1) is not exhaustive, so the Länder may also adopt other measures in their regulations. All those measures may be ordered if the Bundestag has declared the ‘epidemic emergency of national concern’ or, according to section 28a(7), if a Land’s parliament has adopted a respective declaration for its own territory. Arguably, these measures become inadmissible if the Bundestag repeals its declaration, and the Land’s parliament does not adopt its own.

30.  Specific interferences with fundamental rights such as the interdiction of assemblies or worship services are, according to section 28a(2) Infection Protection Act 2000, only allowed as ultima ratio if an effective containment of the disease, taking into account all implemented measures, is ‘considerably endangered’. The constitutional problems of such interferences are further elaborated in Part IV.A.3 below. Section 28a(3) emphasizes the priority of local and thus differentiated approaches in order to contain the disease. This section legally incorporates different numerical thresholds that have functioned as a guideline for political decision-making throughout the whole crisis, namely the value of 50 confirmed infections among 100,000 inhabitants within the last seven days. If, eg, this threshold is exceeded in a certain territory (municipality, rural area, Land, or Federal Republic), the rule stipulates that ‘comprehensive protective measures’ shall be implemented in the respective region. By explicitly requiring the coordination of measures at the federal level in the case of a federal exceedance of the threshold, the norm is also a legal basis for the harmonization of the regulations among the Länder (see Part I), though still not giving the agreements between the Chancellor and the minister-presidents direct legal effect.

31.  Due to the constant necessity of re-adopting and adjusting rules, but also facilitated by the straightforward procedure for issuing regulations without the involvement of parliaments, there has been a veritable deluge of these regulations. In Bavaria, for instance, there have been, until 15 December 2020, 12 successive regulations, not considering several amendments. In Berlin, there have been 14 regulations. The rapid succession of amendments and new regulations enhances legal flexibility and shows that politics is able to learn rapidly. However, it also leads to a considerable lack of clarity for citizens which is problematic under the rule of law.

32.  According to section 47(1)(2) Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) 1991, regulations of the Länder may be scrutinized by the Higher Administrative Court on application if a Land’s law so provides, which is the case in 13 (of 16) jurisdictions.52 In Berlin and Hamburg, this kind of proceeding is not established. In Rhineland-Palatinate, the requirements for this proceeding are not met by the regulations concerning the pandemic.53 The Higher Administrative Court may also issue a temporary injunction (section 47(6)). Since March 2020, there has been a historically unprecedented amount of these court proceedings challenging the validity of the Länder’s regulations (see Part III.C below).

D.  Guidance

33.  Authorities also relied heavily on soft law approaches to cope with the pandemic. Since the dawn of the disease in Europe, the Federal Ministry of Health and other federal institutions have published various legally non-binding recommendations on hygiene in daily life. Many are found on a website by the Federal Centre for Health Education,54 a specialist authority within the portfolio of the Federal Ministry of Health. The main slogan of the public campaign became ‘AHA’ abbreviating the threefold approach of distancing (Abstand), hygiene (Hygiene), and masks (Alltagsmasken). The Länder’s regulations also contain non-enforceable guidelines, eg asking but not requiring all people to minimize physical encounters with other persons.55 Also, the Chancellor addressed the population several times in a television address and her video podcast,56 calling on them to keep their distance and to be careful. Another non-legal measure was the development of the ‘Coronavirus warning app’ for smartphones as detailed in Part IV.9.

34.  While non-legal measures such as the addresses by the Chancellor were not unimportant for political discourse, the public always seemed to have the right sense for the distinction between legal and non-legal measures. Public discussion, especially in the media, was steadily centred on the amendments and relaxations of the Länder’s regulations.

III.  Institutions and Oversight

A.  The role of legislatures in supervising the executive

35.  The extended powers of the Federal Ministry of Health under the amended section 5 Infection Protection Act 2000 (see Part II.B) depend on the support by the Bundestag. The Bundestag is the only actor that may declare an ‘epidemic emergency of national concern’ and may repeal this declaration at any time. If the Bundestag repeals the declaration, almost all orders and regulations adopted by the Federal Ministry of Health cease to have effect instantly.57 Although the declaration of an ‘epidemic emergency of national concern’ is by itself not temporally limited, it would lose its legal effects at the moment section 5 runs out according to the sunset clause of the statute. Therefore, the Bundestag must also renew the statutory provision if the extension of executive powers is considered to be necessary beyond March 2021.

36.  On the other hand, neither the Bundestag nor the Bundesrat are formally involved in the process of executive rule-making by the Federal Ministry of Health after the declaration of the epidemic emergency is adopted. Section 5(2) Infection Protection Act 2000 confers the power to adopt regulations upon the Ministry and does not provide for any parliamentary scrutiny thereof. However, the November 2020 amendment of section 5 introduced a reporting obligation requiring regular oral statements of the Federal Government in the Bundestag as long as the ‘epidemic emergency of national concern’—and thus the extended powers of the Federal Ministry of Health—last. Further, regular parliamentary sittings are also often centred on government’s handling of the crisis, as the budget debate of December 2020 showed.58

37.  The situation is more complex regarding the power of the Länder’s governments to issue regulations under section 32 Infection Protection Act 2000. The substantive law governing the adoption of regulations by the governments of the Länder sits solely within the powers of the federal parliament. As indicated in Part II.C above, the executive branch may adopt regulations only if the regulation-making power is explicitly conferred by a parliamentary law specifying the admissible contents of potential regulations (Article 80(1) Basic Law). There is no power of the executive branch to legislate in its own right. Thus, under the regime of the Basic Law, the executive does not have any legal means to extend its powers without preceding action on the part of the legislature. What is more, there are additional legal requirements for interferences with fundamental rights: according to the Federal Constitutional Court, parliament is obliged to decide on all ‘essential’ questions regarding the realization of fundamental rights; it may not delegate these assessments to the executive.59 Following these standards, critics claimed that the original provisions of the Infection Protection Act 2000 (sections 28(1), 32) were too broad and the Bundestag should have spelled out specific requirements as well as the essential contents of the regulations the Länder are entitled to adopt.60 The passage of section 28a by the Bundestag in November 2020 was a reaction to this criticism. The reform sets up procedural as well as some substantial requirements for the Länder’s regulations (see Part II.C. above). Nevertheless, critics invoking the need for a statutory framework controlling the regulations have not fallen silent. For the amendment does not, with a few exceptions, stipulate specific conditions regarding each type of restriction but allows for the whole bundle of measures once an ‘epidemic emergency of national concern’ is declared. Another reason for criticism is that section 28a only conceptualizes what has already been common practice before.61

38.  The parliament of each Land exercises control and oversight over its government. Support by a parliamentary majority remains crucial for the Länder’s governments, because a vote of no-confidence by parliament could hypothetically end the term of government. However, Länder’s parliaments can neither change substantive federal law (eg the Infection Protection Act 2000) nor do they exercise strict legal control over the content of the regulations. As of the end of 2020, some Länder’s parliaments have passed special procedural statutes legally forcing their governments to report in parliament when issuing new regulations.62

39.  Another option of substantial parliamentary control at the Länder’s level, not yet realized and barely considered in the context of the pandemic, is provided for in Article 80(4) Basic Law.63 According to this provision, the Länder may also adopt a parliamentary statute if the governments of the Länder are entitled by federal law to issue regulations. In this case, the statute would preclude the Land’s government from issuing regulations, at least to the extent of any inconsistency.64 In this way, the parliaments of the Länder could obtain—but have not yet obtained—substantial control over governing the crisis.

40.  The conclusion regarding the legislative supervision of the executive is mixed. The fact that, at the beginning of the crisis, the Bundestag and the Länder’s parliaments had hardly been involved in deciding on the most extensive interferences with fundamental rights within the last 75 years was objected to both by opposition parties and legal academics.65 The Bundestag did not take advantage of the slower development of the disease during summer 2020 in order to reshape the legal framework, which was then made up hurriedly in November 2020. However, the November 2020 reform of the Infection Protection Act 2000 can be regarded as a reawakening of the Bundestag which is still due for most of the Länder’s parliaments.

B.  The functioning of the legislature where its ordinary business is disrupted

41.  The Basic Law does not provide for any explicit rules ensuring, during times of crisis, the functioning of parliament, except the so-called Joint Committee which may substitute both the Bundestag and the Bundesrat during a state of defence (Articles 54a, 115e Basic Law). Hence, it was debated whether the Constitution should be amended in order to establish a ‘committee of emergency’ which may replace the Bundestag in case the parliament fails to function or cannot convene, eg because most of its members fall ill or run the risk of infection. So far, the Covid-19 crisis has not resulted in this proposal being necessary. The Bundestag was able to ensure its functions by means of its autonomous organization.66 At the beginning of the pandemic, parliamentary groups reduced the number of present representatives by a pairing agreement in order to keep physical distance.67 The Bundestag also amended its Rules of Proceedings 1980 by adopting, for a limited duration, section 126a.68 Under this provision and in contrast to the general rules, the resolutions of the Bundestag shall be valid if at least more than a quarter (instead of half) of its members is present.69 The same applies to its committees whose members may also attend meetings and vote through electronic means of communication. However, electronic meetings and voting have not been introduced for plenary sessions, for which such a procedure is legally controversial.70 The scheduled recess of the Bundestag, usually about two months in summer, was neither extended nor postponed. All in all, parliament’s work has not been interrupted irregularly. Although complaining about the fast pace of the amendments regarding the Infection Protection Act 2000 in November 2020,71 an obstruction of the functioning of parliament has not been claimed.72 However, the far-right party AfD filed a case against the requirement to wear masks in the Bundestag.73

42.  The Bundestag, situated in the centre of Berlin, was explicitly exempted from the prohibition of gatherings that was imposed for the city of Berlin by regulation as of 23 March 2020.74 This exception raises the question of whether the (federal) parliament can ever be subject to regulations adopted by a Land’s government. The separation of powers as well as considerations regarding the federal structure of the Republic supply strong arguments against this notion. It seems convincing that only rules set by parliamentary institutions themselves may bind the members of parliament.75 Hence, it is due to the adoption of such internal regulations that members of the Bundestag are required to observe general rules of hygiene such as wearing masks76 and keeping physical distance which sometimes places certain challenges on procedural organization, eg in the case of roll-call votes.

C.  Role of and access to courts

43.  German court procedure is governed, on the one hand, by the general Courts Constitution Act (Gerichtsverfassungsgesetz) 1975, and on the other hand, by the procedural code which applies to the particular type of proceeding (eg the Code of Administrative Court Procedure 1991 or the Code of Criminal Procedure 1987). In general, applications are not presented directly to courts’ registrars, but are filed in written form by post. Applications through electronic means of communication require certain, legally prescribed, formats, but are not admissible by simple e-mail, ie without digital signature.77 This has not changed during the pandemic. An oral hearing is not obligatory for all kinds of cases. As regards, for instance, administrative procedure, deciding without hearing oral argument is admissible in straightforward cases, in summary proceedings, or with consent of the parties.78 Another example is provided by the Federal Constitutional Court which decides the vast majority of its cases on the papers. In the 30 years between 1990 and 2019, the Court held in average only 7 oral hearings—while deciding around 6,000 cases—each year.79 Deciding without hearing oral argument is especially admissible for constitutional complaints.80

44.  According to section 128a Code of Civil Procedure 2005, already introduced with effect as of 200281 and applying to most kinds of proceedings82 except criminal cases,83 the court may permit (not order) the parties and their proxies as well as witnesses and experts to stay at a location outside the courtroom. In this case, the hearing is broadcast to the remote location while the judges themselves must be present in the courtroom where, in general, access of the public shall also be provided. During the crisis, the Labour Court Act 1979 (section 114) and the Social Court Act 1975 (section 211) were amended in order to additionally allow honorary judges to participate remotely in the hearing.84 Although these provisions grant a legal basis for oral hearings by means of video technology, their impact on daily practice should not be overestimated. Digitization gains no ground in the courtroom but slowly. Not all courts have acquired expensive video technology and there are considerable differences among the Länder.85 However, judges may in principle also use their private hardware and platforms like ‘Zoom’ for video conferencing.86 Insofar as physical presence in the courtroom is mandatory, for instance in criminal cases, it is the presiding judge’s task to ensure that rules of hygiene are observed during the sitting (section 176(1) Courts Constitution Act 1975).87

45.  The declaration of the ‘epidemic emergency of national concern’ by the Bundestag according to amended section 5(1) Infection Protection Act 2000 can become the subject matter of court scrutiny in two different ways: On the one hand, the parliamentary opposition or one of the governments of the Länder could file an application at the Federal Constitutional Court. In this regard, the adoption of a definition of an ‘epidemic emergency of national concern’ in section 5(1) (see Part II.B above) might have narrowed the respective margin of appreciation of the federal parliament. On the other hand, all (administrative) courts that are confronted with the legality of measures taken in the ambit of revised section 5 Infection Protection Act 2000 must consider whether the amendments of the Infection Protection Act 2000 and the corresponding declaration of the health emergency by the Bundestag as their legal basis are valid. In the case that a court regarded section 5 to be unconstitutional, it would have to submit this question to the Federal Constitutional Court according to Article 100(1) Basic Law.

46.  Different types of summary procedures before the administrative courts are relevant in the crisis. As already indicated in Part II.C above, executive regulations may directly be challenged before the Higher Administrative Courts in most Länder. Each Land has its own Higher Administrative Court which decides in the last instance on questions of the Land’s administrative law. Although cases involving questions of federal, especially constitutional law can be appealed to the Federal Administrative Court, this is not admissible for summary procedures.88 Furthermore, cases can be brought before the Administrative Courts if an infringement of individual rights by the state is claimed. These cases may be appealed to the Higher Administrative Court. The sheer number of court proceedings—so far, there have been around 1,000 decisions by administrative courts published—bears ample testimony to the resilience of the rule of law in times of crisis. On juris, the central database for court decisions in Germany, there are even 2,188 court decisions regarding administrative law to be found for the search terms ‘corona’ or ‘Covid-19’ and for the period from 15 March 2020 to 15 December 2020—these numbers also include many decisions regarding asylum law and some decisions by constitutional courts. In the beginning, courts seemed to tolerate even objectionable interferences with fundamental rights, eg regarding the prohibition of assemblies.89 This might be explained by a shortfall concerning the principle of proportionality which can hardly be applied if the courts lack empirical knowledge when asking whether a measure taken is suitable and necessary.90 However, with increasing knowledge on the pandemic, judicial review of state action became more robust, sometimes considerably constricting the margin of appreciation of the Länder’s governments. An example is provided by the decisions on bans on domestic travel as detailed in Part IV.A.2 below.

D.  Elections

47.  In 2020, only elections at local level had to be held during the pandemic. Whereas the first ballot of the local elections in Bavaria in mid-March 2020 was not decisively affected by the beginning spread of Covid-19 at that time, the second ballot on 29 March 2020, though not postponed, was exclusively organized as a postal vote with the respective documents being sent automatically to all eligible voters.91 In North Rhine-Westphalia, the parliament enacted a law facilitating the local elections, eg by extending deadlines for applications of candidates, that finally took place as planned in September 2020.92

48.  In contrast to 2020, a number of important elections are scheduled for 2021, especially for autumn 2021, including the federal elections for the Bundestag that will also decide the composition of the next Federal Government. There will be regular elections in Baden-Wuerttemberg, Rhineland-Palatinate, Saxony-Anhalt, Mecklenburg-Western Pomerania, and Berlin. In Thuringia, the main political parties agreed on early elections. It will strongly depend on the development of the pandemic as to whether complying with general rules of hygiene will be sufficient, or whether additional measures will be necessary, some of which—such as a recourse to exclusive postal voting—are legally controversial.93

E.  Scientific Advice

49.  Giving advice to authorities, politicians, and the public is one of the main tasks of the RKI. The RKI is, according to section 4(1) Infection Protection Act 2000, the central scientific institution for the identification and surveillance of communicable diseases at the federal level. The RKI is organized as a federal authority within the portfolio of the Federal Ministry of Health. Although, therefore, being partly employed as civil servants, its approximately 450 researchers94 enjoy some independence insofar as the freedom of science, protected by Article 5(3) Basic Law, applies to them as well.

50.  On its website, the RKI issues situation reports regarding national infection statistics and the present epidemiological situation on a daily basis.95 It has also published numerous recommendations with respect to diagnosis, medical treatment, and hygienic handling of the disease.96 Extracts of the regular press briefings by the RKI’s president Lothar Wieler were part and parcel of every news programme at the beginning of the crisis.

51.  The RKI’s expertise has also become of crucial political importance. The Federal Government as well as the governments of the Länder, albeit not legally bound to do so, have always strongly relied on the RKI’s increasingly more knowledgeable and detailed assessments of the disease and feasible measures against it. Some regulations, for instance those concerning travellers coming or returning from foreign countries (see Part IV.A.2 below), explicitly relate to data by the RKI. What is more, administrative courts not only follow the content of the RKI’s valuations but seem to assign a normative primacy to them—in comparison to other sources of extra-legal knowledge like expert witnesses.97

F.  Freedom of the press and freedom of information

52.  While the work of journalists is impacted by general rules like physical distancing measures, German authorities have not implemented special legal restrictions on the media,98 which would be, with regard to the freedom of press (Article 5(1) sentence 2 Basic Law), highly objectionable. In some regulations, the press is explicitly exempted from general restrictions that could interfere with the freedom of press like mobility provisions.99

53.  The general provisions granting access to official information from authorities, like the Federal Freedom of Information Act 2005, also apply in the pandemic, whereas a Higher Administrative Court held that journalists may not invoke (more specific) laws governing the access to environmental information in order to obtain all legal documents concerning the crisis.100

G.  Ombuds and oversight bodies

54.  According to Article 114(2) Basic Law, financial management at the federal level is subject to the scrutiny of the Federal Court of Audit. As reactions to the pandemic encompass an immense increase of borrowing and wide-ranging financial aid in favour of public and private institutions, the Federal Court of Audit will come upon a broad spectrum of topics for its pending examinations.101

55.  Lots of measures against the pandemic raise crucial questions regarding data protection. At the federal level as well as in the Länder, independent commissioners for data protection are established as prescribed by Article 51(1) European General Data Protection Regulation 2016. On their websites—such as for Bavaria and for Berlin—the commissioners for data protection provide information concerning data-related topics, for instance with regard to data protection on private hardware used in home offices or data security of video conferencing software. The Federal Commissioner for Data Protection and Freedom of Information has assumed the supervision of the operation of the ‘Coronavirus warning app’.102

56.  By contrast, a special reviewer of legislation is unknown to the German legal order. The task of supervising both legislation and law enforcement is attributed to the courts.

IV.  Public Health Measures, Enforcement and Compliance

57.  Although there have always been substantial efforts to ensure uniform approaches among the Länder, the details of the regulations finally adopted and the enforcement policies of local authorities may differ considerably. In this section, public health measures regarding the pandemic will be outlined, drawing the main focus, insofar as regional discrepancies arise, from Bavaria and Berlin.

A.  Public health measures

58.  As of the end of 2020, the German approach to the pandemic can roughly be categorized into three chronological stages: during a first phase from mid-March 2020, severe restrictions on general mobility and the closure of most facilities were ordered throughout the Republic, and the Länder implemented strategies that were closely coordinated in the regular meetings with the Federal Chancellor. A second stage, beginning at the end of April 2020, brought significant relaxations of restrictions, while the uniformity of the measures taken by the Länder decreased as they took more and more autonomous political control.103 A third stage with new restrictions due to rising infection numbers began in October 2020, with the approaches of the Länder becoming more integrated again, culminating in the decision to impose, once more, extensive nation-wide restrictions. For November and the first half of December 2020 a ‘lockdown light’ was implemented, with shops and schools being kept open.104 As infection numbers did not decrease, and then even started to increase again, the Chancellor and the Länder agreed on a new ‘hard lockdown’ as of 16 December 2020, limited until 10 January 2021.105

1.  Individual mobility restrictions on citizens (stay-at-home, curfews, etc)

59.  On 22 March 2020, the Federal Chancellor and the minister-presidents of the Länder reached an informal consensus that every Land would impose mobility restrictions according to which being in public space was only allowed for citizens if they were alone, together with one other person, or together with members of their own household.106 Although the literal wording of this agreed constraint only regards outdoor gatherings, it was, by politics and in public discourse, regarded as a measure in order to restrict individual mobility, which becomes clear by, eg, Bavaria and Berlin’s implementation of this consensus. According to their provisions, people were only allowed to leave their home for certain reasons, the most important of which were explicitly enumerated in the regulations.107 Among those exceptions were ‘sports and physical outdoor activities’ conducted alone, with members of one’s household, or with one other person,108 which related to the consensus at the federal level. Although the Bavarian rules required ‘compelling reasons’ (‘triftige Gründe’) to leave home, the Bavarian Higher Administrative Court finally held that, due to the wide range of explicitly enumerated excuses, ‘any reasonable, not from the outset inadmissible occasion’ was sufficient.109 All in all, a strict ban on leaving home was not imposed during the early phase of the pandemic.

60.  The imperative to stay at home was abrogated in Berlin as of 22 April 2020 and in Bavaria as of 11 May 2020. From then on, the general mobility rules in Bavaria and Berlin consisted only of limited group sizes for meeting outdoors—as the federal agreement envisaged from the beginning.110 With the number of people that individuals could meet with being extended more and more, this principle was kept in Berlin until the end of June 2020, at which point only non-enforceable guidance to reduce physical encounters remained,111 while the restriction was always applicable in Bavaria, finally allowing groups of up to ten persons.112

61.  In October 2020, Berlin again prohibited meeting outside in groups of more than five during the night113 and there was a first local lockdown in Bavaria,114 but infection numbers could not be prevented from rising. Therefore, the Länder decided to implement new restrictions, limiting groups both in public and private spaces to members from two households, but not more than ten, later five, people,115 which was implemented by regulations in Bavaria and Berlin.116 As of 9 December 2020 in Bavaria and 16 December 2020 in Berlin, both Länder returned to the general prohibition of leaving one’s home except for ‘compelling reasons’, which again comprised physical outdoor activities with the members of one's own household or one other household, but not more than five persons.117 An unprecedented mobility restriction is the Bavarian curfew during the night (9pm–5am) entering into force on 16 December 2020 and allowing only for narrow exceptions such as medical emergencies.118

62.  The passage of section 28a Infection Protection Act 2000 in November 2020 (see Part II.B above) brought a new legal basis for mobility restraints in the Länder’s regulations. According to section 28a(1) no. 3, general restrictions on leaving home may be ordered during an ‘epidemic emergency of national concern’. However, restrictions allowing leaving home only during certain time slots or for certain reasons may not be implemented except as ultima ratio (section 28a(2) no. 2).

63.  Though challenged in numerous summary proceedings throughout the Federal Republic, the first mobility restrictions were not found to be unconstitutional by administrative courts. While highlighting the historically unprecedented interference with fundamental rights, the courts also put emphasis on the highly valued aims of the restrictions, especially the functioning of public health care, on the strict temporal limitation of all regulations and the wide-ranging exemptions.119 The Federal Constitutional Court also refused to issue temporary injunctions regarding mobility restrictions.120

2.  Restrictions on international and internal travel

64.  Restrictions on international and internal travel were among the most debated topics in the course of the crisis, also causing considerable confusion as rules are made at the federal as well the Länder’s level, and the Länder have sometimes adopted differing rules.121 The following three travel related issues were of utmost importance.

65.  First, the Federal Ministry of the Interior instructed the federal police forces to carry out controls at the borders with Austria, Switzerland, France, Luxembourg, and Denmark between 16 March and 15 June 2020, requiring a ‘compelling reason’ for crossing the border.122 In accordance with a communication by the European Commission,123 the Ministry also extensively restricted entry into Germany from outside the EU from 17 March 2020.124 As of July 2020, the Council of the European Union recommended lifting these restrictions from residents of countries on a regularly updated positive list,125 which is also applied by the Ministry of the Interior. 126 An ‘important reason’ such as an urgent family-related occasion is required for the entry of residents of countries not listed.

66.  Second, the Federal Government and the Länder have agreed on quarantine rules concerning travellers coming or returning from foreign countries. Whereas only the Länder have the legal power to issue the respective regulations, the agreements between the Länder contain a model text facilitating a uniform legal result.127 In the beginning, all travellers, with certain exceptions such as for cross-border commuters, were placed under quarantine for 14 days by the Länder’s regulations.128 Some administrative courts regarded this rule as unconstitutional because it covered all countries regardless of the current pandemic situation.129 Later versions of the regulations only apply to travellers coming from ‘risk areas’, also providing an exception from quarantine in the case of a negative test result.130 As section 2 no. 17 Infection Protection Act 2000 (adopted in November 2020) now defines, ‘risk areas’ are foreign areas ‘with an increased risk of infection’. Those areas are designated by the Federal Ministry of Health in accordance with the Federal Foreign Office and the Federal Ministry of the Interior and are promulgated on the RKI’s website.131

67.  Third, the Federal Ministry of Health used its powers under amended section 5 Infection Protection Act 2000 to facilitate the enforcement of the aforementioned quarantine regimes of the Länder. Therefore, it obliged travellers who enter Germany from risk areas to provide information, such as contact data, which enables the local authorities to monitor compliance with the quarantine rules.132 For this purpose, the RKI provides an online registration tool.133 As detailed in Part II.B above, the direct implementation competences of the Ministry of Health were abrogated in November 2020 and partly transformed into regulation-making powers of the Federal Government in section 36(8) Infection Protection Act 2000. However, a federal regulation requiring travellers to use the RKI’s tool has, as of 15 December 2020, not been issued. Thus, for the moment, such obligations only follow from the Länder’s regulations.134 Further, the Ministry of Health, according to section 36(7) Infection Protection Act 2000, has adopted a regulation empowering local authorities to demand virus tests from travellers coming from international risk areas.135

68.  In October 2020, some Länder additionally decided to prohibit the accommodation of tourists coming from domestic risk areas by their regulations.136 In this regard, a risk area is usually defined as a territory where infection numbers exceed 50 per 100,000 inhabitants within the last seven days. After much debate among the Länder and some court decisions, holding that the rule was not effective and thus unconstitutional,137 this restriction was abandoned for the moment. However, the Länder decided to completely prohibit the accommodation of tourists as of November 2020,138 which was, as well as in the other Länder, implemented by regulations in Bavaria and Berlin.139 Restrictions and prohibitions of travels and accommodations are now based on section 28a(1) nos 11 and 12 Infection Protection Act 2000, as amended in November 2020.

3.  Limitations on public and private gatherings and events

69.  Cancelling events with more than 1,000 attendees was one of the first measures taken in all Länder in the very beginning of the crisis.140 As of 17 March 2020, all gatherings and events, except those in private living spaces, were prohibited in Bavaria by administrative order.141 As of 23 March in Berlin and 31 March in Bavaria, all kinds of public and private gatherings and events were prohibited by regulation.142 In Berlin, an exception for private events of up to ten persons was provided if held due to ‘compelling reasons’, eg funerals.143 The prohibitions of private gatherings often overlap with the restrictions on individual mobility detailed in Part IV.A.1 above.

70.  Private gatherings (‘Ansammlungen’, in contrast to private meetings) were almost completely prohibited until 16 June 2020 in Bavaria.144 As of 22 June 2020, events with a determined group of participants—such as private solemnities or meetings of associations—and up to 50 attendees inside and 100 attendees outside were again allowed in Bavaria.145 These numbers were increased to 100 persons inside and 200 outside in July.146 Berlin’s regulation again allowed certain private solemnities, such as weddings, with not more than 50 attendees as of 30 May 2020 and public events with up to 150 persons inside and 200 persons outside as of 2 June 2020, the latter numbers being increased to 300 persons inside and 1,000 persons outside as of 30 June 2020.147 Later, Berlin even abrogated any specific restriction on private gatherings, and (public) events became allowed for up to 5,000 people outside and 750 people inside as of 1 September 2020.148

71.  Due to rising infection numbers, Bavaria again imposed a complete prohibition of all (public and private) events as of 2 November 2020.149 While, on the same date, private events were restricted to ten persons in Berlin, public events remained allowed with 100 attendees outside and 50 inside.150 As of 15 December 2020, this rule is still valid, although leisure and entertainment events were explicitly forbidden.151 Section 28a(1) nos 5, 7, and 8 Infection Protection Act 2000, as amended in November 2020 (see Part II.B above), also offers a new legal basis for restrictions of public and private events. Private gatherings are subject to section 28a(1) no. 3 which also allows for ‘restrictions on social contact’.

72.  The initial prohibition of all kinds of gatherings raised certain legal problems, especially concerning freedom of assembly on the one hand and freedom of religion on the other hand. Some Länder completely prohibited assemblies; others, like Berlin, interdicted assemblies unless special permission, admissible for demonstrations of up to 20 persons, was granted by the competent authority which retained discretion in this regard.152 However, Article 8 Basic Law provides for the right to assemble explicitly ‘without prior notification or permission’. The only Land which clearly gave priority to this right was Bremen where assemblies remained explicitly allowed.153 In April 2020, the Federal Constitutional Court held that the authorities had to consider the individual facts of each case as well as the overall significance of the freedom of assembly when deciding on restrictions regarding demonstrations,154 thus clearly rejecting the notion of a general prohibition of assemblies.155 In the following months, administrative courts repeatedly allowed demonstrations that had previously been interdicted by the competent authorities.156 In summer and autumn 2020, tens of thousands of people demonstrated against the restrictions concerning Covid-19 in different German cities.157 Later regulations provide explicit rules for assemblies. For instance, the Bavarian regulation of mid-December 2020 allows stationary outdoor assemblies with, in general, not more than 200 attendees who are obliged to keep physical distance and wear face-coverings.158 Berlin’s regulation does not prescribe a specific maximum number of attendees, but requires also physical distance and the wearing of masks.159 A complete prohibition of assemblies is now, pursuant to section 28a(2) Infection Protection Act 2000, only admissible if the containment of the disease is ‘comprehensively endangered’ (see Part II.C above). However, Berlin and Bavaria’s regulations completely interdicted assemblies on 31 December 2020 and 1 January 2021.160

73.  The initial prohibition of gatherings also applied to worship services,161 thus creating another legal tension, this time concerning religious freedom as protected by Article 4 Basic Law. The Federal Constitutional Court also drew boundaries in this regard when deciding that a total interdiction of all services during Ramadan was unconstitutional.162 With effect of the beginning of May 2020, the Länder established explicit exceptions for worship services.163 As of now, Berlin’s regulation contains no explicit rules for worship services, but exempts them from the maximum numbers regarding (public) events.164 In Bavaria, there are also no maximum numbers for attendees, but people are obliged to maintain physical distance and wear masks, and congregational singing is forbidden.165 Worship services are also subject to the new provision of section 28a(2) Infection Protection Act 2000, so a total prohibition faces the aforementioned statutory threshold.

4.  Closure of premises and facilities (eg schools, shops, services, parks, churches, sport facilities)

74.  One of the first drastic measures against the pandemic was the mandatory closure of schools and all other facilities for minors such as daycare centres in Bavaria and Berlin as of 16 March 2020.166 As soon as two days later, both Länder implemented the closure of all shops with the exception of necessary services that were enumerated in the regulations such as groceries, pharmacies, drugstores, filling stations, post offices, and banks, but, in Berlin, also hardware stores, garden centres, and book stores.167 Restaurants were only allowed to offer take away services; hotels were only permitted to accommodate business travellers.168 The operation of other premises, such as swimming pools, sports facilities, cinemas, libraries, museums, theatres, clubs, and brothels, was prohibited as well.169 Parks were not closed, with the exception of playgrounds.

75.  Regarding these extensive restrictions, the process of relaxation was highly differentiated across sectors of the economy within each Land. By the beginning of May 2020, a lot of facilities such as stores and most cultural premises were allowed to re-open in all Länder, provided that they had hygiene measures ensuring the reduction of physical encounters between the attendees.170 At around the same time, school education with physical presence was offered again, step by step for the different grades.171 In Berlin, all bars and restaurants were permitted to open as of June 2020,172 whereas in Bavaria, the interior of bars had to remain closed until mid-September 2020.173 The operation of some venues such as dance clubs has been completely prohibited in both Länder throughout the pandemic.174

76.  As of 2 November 2020, all Länder agreed on new restrictions which comprise again the closure of most services requiring physical contact but, for the moment, explicitly exempted two areas: all kinds of shops and all premises for minors such as schools. Most other services such as theatres, cinemas, sports premises, and bars have been closed; restaurants have been only allowed to offer take away dishes.175 Due to the exceptions, but also due to less severe mobility restrictions (see Part IV.A.1), the lockdown from 2 November to 15 December 2020 was labelled as ‘lockdown light’. As infection numbers only stabilized and later started to increase again, the Länder intensified their approach and decided on a new ‘hard lockdown’ as of 16 December 2020.176 Schools and other facilities for minors as well as most shops—with similar exceptions as in the beginning of 2020—were closed by the Länder’s regulations.177

77.  By and large, the administrative courts, in numerous summary proceedings, affirmed the constitutionality of the initial closures of nearly all business enterprises which require physical customer contact.178 Nevertheless, the legal assessment of these measures has not yet been fully completed. The Higher Administrative Court of Baden-Wuerttemberg raised plausible doubts whether sections 28 and 32 Infection Protection Act 2000 provided a sufficient legal basis for mandating the closure of whole business branches throughout the Land.179 As already indicated,180 interferences with fundamental rights presuppose that parliament has decided on the ‘essential’ questions by statute. For regulations in particular, Article 80 Basic Law also requires the scope of the conferred rule-making power to be outlined by the delegating parliamentary statute. However, the original provisions of the Infection Protection Act 2000 allowed for all ‘necessary protective measures’, not specifying that business enterprises can be subject to a mandatory closure, while the entrepreneurs may invoke the fundamental right of Article 12 Basic Law protecting occupational freedom. At present, it remains an open question whether the mandatory closures will withstand the critical appraisal by courts concerned with compensation claims.181 The passage of section 28a in November 2020 (see Part II.B) also provides a new legal basis for regulations restricting business enterprises. At least, such measures are now explicitly allowed by the statute (section 28a(1) nos 12–14). However, the law specifies no necessary legal conditions but the declaration of an ‘epidemic emergency of national concern’. It will be the task of the (constitutional) courts to evaluate whether this suffices as a parliamentary decision on the ‘essential’ questions of the restrictions.

78.  The picture of mostly approving court decisions has already slightly changed since questions of equal treatment were raised by the relaxations after the first lockdown distinguishing between different kinds of business enterprises. A vivid illustration is provided by rules that restricted the retail space of shops to 800 square metres, a provision that applied to most but by far not all kinds of stores for a short time during the first relaxations in April 2020.182 Some administrative courts, in Bavaria and Berlin, held that this restriction treated different kinds of shops unequally without reasonable justification.183 For instance, in Berlin, the space limit applied to big department stores but not to malls which was regarded as an unreasonable distinction by the court.184 The Länder’s governments quickly abandoned these rules.

5.  Physical distancing

79.  Mandatory physical distancing was already introduced in the first regulations, prescribing a minimal distance of 1.5 metres ‘wherever possible’.185 This rule also applies to encounters in private settings, as the rules explicitly state in Berlin, where also some exceptions such as using public transportation are enumerated.186 Implementing a physical distancing rule is one of the possible measures that were explicitly mentioned in the Infection Protection Act 2000 in November 2020 (section 28a(1) no. 1).

6.  Use of face coverings and personal protective equipment (PPE)

80.  Albeit being politically controversial in the beginning of the pandemic, the Länder soon decided to implement the mandatory use of masks or other face coverings for certain public areas, in particular for shops and public transportation.187 In October 2020, wearing face masks became also mandatory in certain, usually crowded streets.188 Section 28a(1) no. 2 Infection Protection Act 2000 now also provides an explicit legal basis for such measures. Courts considered the mandatory use of masks as constitutional189 as long as exceptions for extraordinary hardships are provided.190

7.  Isolation of infected individuals and quarantine of individuals suspected of infection

81.  According to section 30(1) sentence 2 Infection Protection Act 2000, authorities may order that persons who are ill or suspected of being ill are isolated by any means considered appropriate. Isolation in a closed hospital by force requires a judicial order (section 30(2) Infection Protection Act 2000, Article 104(2) Basic Law), which has, apparently, played no role so far. German legal terminology does not sharply distinguish between ‘isolations’ and (mandatory) ‘quarantines’. Section 30 speaks of ‘isolation’, also when referring to individuals who are only suspected of infection. However, interchangeable word usage must not disguise that legal requirements differ in relation to whether an individual is tested positive or merely suspected of being infected. In the latter case, there must be substantial evidence for the possibility of an infection, so that the presumed risk of infecting others outweighs the interference with fundamental rights.

82.  As a case-by-case approach to such cases is nearly impossible for local authorities during the pandemic, the RKI has published a recommendation describing typical situations for which a high risk of infection should be assumed. The RKI recommends a quarantine for 14 days after an individual either had close contact with persons who tested positive or was exposed to high virus concentrations (eg in school rooms).191 The Länder and the local authorities implement this recommendation usually by ordering quarantines at home. The Bavarian Ministry of Health has therefore issued a general quarantine order for the whole territory of the Land specifying the conditions under which a quarantine is obligatory.192 In Berlin, the quarantine is either ordered individually by the local authority or is obligatory by a general order applying to the respective borough.193

8.  Testing, treatment, and vaccination

83.  Section 28(1) sentence 3 Infection Protection Act 2000 explicitly states that authorities may not order mandatory medical treatment. However, according to section 29, persons who are ill or suspected of being ill may be placed under observation. Those persons shall also permit medical examinations, which includes a virus test if ordered by the local authority. The Länder’s regulations do not provide any rules on general mandatory testing. The question, as discussed in politics, is not who is forced into testing but rather how testing capacities are allocated effectively. This also comprises the question of public payment for testing which is subject to a separate regulation by the Federal Ministry of Health.194 Thus, as far as apparent, mandatory testing plays no role in Germany except in specific constellations. One example is provided by the regulation concerning mandatory testing of travellers entering Germany from foreign risk areas (as detailed under Part IV.A.2 above). Another example is the testing obligation for visitors of residential care facilities (see Part IV.A.10 below).

84.  A general obligation for vaccination against Covid-19 does not exist, neither at statutory level in the Infection Protection Act 2000 nor in the regulations of the Länder. Reacting to public discussions, especially fuelled by the far-right party AfD, the Federal Minister of Health again underlined that ‘there will be no vaccination obligation in this pandemic’ on 18 November 2020.195 The willingness to be vaccinated has constantly decreased among the population from about 80% in April to around 50% in early December 2020.196

9.  Contact tracing procedures

85.  When services such as restaurants, gyms, and cultural premises were allowed to reopen, completing contact forms became mandatory for all attendees.197 Another measure in this regard is the contact tracing procedure concerning travellers entering Germany as implemented by the Federal Ministry of Health (detailed in Part IV.A.2 above).

86.  The ‘Coronavirus warning app’ for smartphones also serves this purpose, despite not being obligatory. The app records anonymously encounters with other app users and, in the case of a positive test result of a former contact, gives an alert and additional advice to its user. The data is stored locally on the smartphone after plans for central data storage had become the subject of much debate.198 The Federal Commissioner for Data Protection and Freedom of Information considers the data security of the app, in its final version, as sufficient.199 Downloading and using the app is recommended by the Federal Government200 but its use is not required by law. Until the end of September 2020, the app had been downloaded 18.4 million times, but due to data protection there are no numbers on how many persons use the app.201

10.  Measures in long-term care facilities or homes for the elderly, restrictions on visitors etc

87.  An extensive restriction on visiting people in residential care was one of the first measures as of mid-March 2020.202 In Bavaria, visits were completely prohibited temporarily,203 while, in Berlin, residents were allowed to host one visitor per day for the duration of an hour.204 During the relaxations, both Länder abrogated the respective restrictions, entrusting the care facilities with the responsibility of arranging visitor traffic.205 In Bavaria, the subsequent regulations explicitly require visitors to wear a mask and maintain a physical distance of 1.5 metres.206 In November 2020, Berlin adopted a separate regulation with specific requirements for care facilities, which are, for instance, obliged to set up ‘visiting concepts’ with a minimum time slot for visits prescribed in the regulation.207 As of 9 December 2020, Bavaria has again restricted visits in residential care to one visitor per day who must also provide a negative virus test result.208 A similar restriction applies in Berlin as of 17 December 2020.209

88.  Section 28a(1) no. 15 Infection Protection Act 2000 also provides a new legal basis for such restrictions on visits in residential care facilities. According to section 28a(2) no. 3, visits of close relatives may not be prohibited except as ultima ratio. Moreover, such measures must not lead to a ‘complete isolation’ of individuals or groups and a minimum of social contact must be provided, as the law now explicitly states.

B.  Enforcement and Compliance

1.  Enforcement

89.  In general, individual orders according to sections 28–31 Infection Protection Act 2000 are issued by the local authorities. These are, for instance, the district administrations (Landratsämter) (for rural areas) or independent municipalities (kreisfreie Städte) in Bavaria and the 12 borough administrations (Bezirksämter) in Berlin. The most important task of authorities at this level certainly lies in discovering local outbreaks of the disease and tracing infection chains in order to contain the spread of the virus by targeted testing and individual isolation and quarantine orders.

90.  Besides the very beginning of the crisis when concerted overall approaches were still missing, law enforcement concerning the Covid-19 pandemic is of special character insofar as the regulations adopted by the Länder’s governments are mostly self-executing. The regulations set up general prohibitions and rules of conduct which do not have to be further implemented by local authorities on a case-by-case basis. For instance, the prohibition of assemblies in the beginning of the crisis was of such general character, not requiring further decisions by local authorities. On the one hand, the workload of local authorities, often suffering from personnel shortage, is considerably reduced in this way. On the other hand, this approach has been criticized as local authorities do not retain discretion that would allow them to apply the rules considering local and individual circumstances.210 The decisions by the Federal Constitutional Court concerning the prohibition of assemblies (mentioned in Part IV.A.3 above) can be regarded as recalling the importance of an individual assessment of each case when fundamental rights are at stake.

91.  The significance of local approaches slightly increased with the relaxations during summer 2020. An example is provided by Bavaria’s regulation of October 2020 which established a framework that guided the reactions of local authorities depending on local infection numbers.211 While the regulation predefined which measures should be implemented if a certain number of infections was exceeded—for instance the aforementioned threshold of 50 confirmed infections per 100,000 inhabitants within the last seven days—the final decision on these measures remained within the discretion of local authorities. Pursuant to these provisions, Berchtesgadener Land was the first rural district which once again imposed extensive restrictions such as a stay at home order, the prohibition of private and public events, and the closure of most facilities as of 23 October 2020.212

92.  The Länder’s police forces as well as the public order offices at the local level have the responsibility of monitoring compliance with the enacted regulations. These authorities have sometimes been supported by federal police forces. In Germany, the military are not involved in policing public space, although they have been employed to assist local authorities, threatened by work overload, with contact tracing by telephone and carrying out virus tests. Such assistance was refused, attaining considerable public attention, by a borough administration in Berlin.213

93.  Civil fines, partly of extensive amount, also aim at ensuring compliance with the Länder’s regulations. The Länder have enacted catalogues defining the amount of such fines with regard to certain mandatory rules. Constitutional law requires the respective rules to be very specific in order to draw a clear line between the acts punishable and those not, a principle that was violated by an early regulation in Berlin.214 Particular violations of the Infection Protection Act 2000, according to section 74, may also be punished by the criminal courts. However, there are no criminal procedures concerning Covid-19 reported.

94.  In Bavaria, specific ‘standard amounts’ of fines are enumerated. Concerning the rules of mid-December 2020, there are, for example, fines in Bavaria for leaving home without ‘compelling reason’ (250 Euro), for an infringement of the curfew during night-time (500 Euro), for not wearing a mask where mandatory (250 Euro), and for conducting any event (5,000 Euro).215 By contrast, in Berlin, only a range of admissible fines is provided for each measure. For instance, there are, as of mid-December 2020, fines for being in public in groups consisting of too many people (50–500 Euro), not wearing a mask where mandatory (50–500 Euro), and for conducting events with more attendees than admissible (1,000–15,000 Euro).216 In all Länder, and also in Bavaria, the public order offices retain discretion for determining the exact amount of the civil fine on a case-by-case basis.

95.  In fact, enforcement of the regulations differs considerably between Bavaria and Berlin. In Berlin, until June 2020, authorities imposed fines in about 700 Covid-19related cases—about 19 fines per 100,000 inhabitants—while some borough administrations refrained from imposing fines at all.217 By contrast, in Bavaria, authorities imposed, until mid-July 2020, fines in 36,549 cases—about 281 fines per 100,00 inhabitants.218 Thus, it is certainly true that the actual differences between Bavaria’s and Berlin’s Covid-19-policies are not to be found in legal details of the regulations, but in the enforcement practices of local and police authorities.

2.  Compliance

96.  The mobility of German citizens during the crisis is explored by the ‘Covid-19 mobility project’ (authored by the RKI and the Humboldt University of Berlin) which gathers and interprets anonymous data made available by mobile phone providers. According to the findings, there was a significant drop of mobility (-39% compared to 2019) after the restrictions of March 2020 took effect. Mobility normalized during the relaxations of summer. In November and December 2020, when new restrictions were implemented, mobility again decreased, but less significantly (-10%).219 Regional examples can provide further evidence for the effect of legal measures. For instance, the early second lockdown in Berchtesgadener Land in October 2020, as mentioned before, led to an immediate decrease of mobility in this rural district of -33%, while countrywide mobility remained at a regular level.220

97.  Further data regarding compliance with the legal measures is aggregated by the ‘Covid-19 Snapshot Monitoring’ (‘COSMO’) which conducts weekly online surveys with about 1,000 participants. In the survey of mid-December 2020, 85% said that they knew exactly which legal measures apply to them. The majority indicated they complied with the following rules ‘always or frequently’: (1) wearing masks (92%); (2) maintaining physical distance of 1.5 metres (87%); (3) not participating in private solemnities (83%); and (4) meeting only people from one other household in public (81%).221 The acceptance of severe legal measures correlates with the spreading of the virus. When infection numbers significantly rose in November and December 2020, the acceptance of the infringement of fundamental rights such as stay at home orders increased significantly.222

Prof. Dr. Anna-Bettina Kaiser, Humboldt-Universität zu Berlin

Roman Hensel, Humboldt-Universität zu Berlin

Footnotes:

1  Federal Constitutional Court, Order of 25 June 1974 – 2 BvF 2, 3/73 – BVerfGE 37, 363, 380.

2  F Wittreck in H Dreier (ed), Grundgesetz-Kommentar (3rd edn Mohr Siebeck 2015) vol. II Art. 73 [15].

3  C Gusy, ‘Katastrophenrecht’ (2020) Zeitschrift für das gesamte Sicherheitsrecht 101, 102.

5  Federal Government, press release no 359 ‘Results of the Meeting between the Federal Chancellor and the Mayors of the 11 Biggest Cities in Germany’ (9 October 2020).

6  D Dyzenhaus, ‘States of Emergency’ in M Rosenfeld and A Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 448–449.

7  E-W Böckenförde, ‘Der verdrängte Ausnahmezustand. Zum Handeln der Staatsgewalt in außergewöhnlichen Lagen’ (1978) Neue Juristische Wochenschrift 1881.

8  A-B Kaiser, Ausnahmeverfassungsrecht (Mohr Siebeck 2020) 227–228.

9  See Part II.B below.

10  A-B Kaiser, Ausnahmeverfassungsrecht (Mohr Siebeck 2020) 247.

13  Judgment of 12 June 2018 2 BvR 1738/12 et al. – BVerfGE 148, 296 (Strike ban for civil servants) (FCC) [126]–[35].

14  See Part III.E below.

15  An English translation is provided by the Robert Koch Institute. Note that this translation is based on the original bill of 2000, no amendments are considered.

16  District Administration (Tirschenreuth), Order of 18 March 2020 – 093/1-21.

18  German Bundestag, Plenarprotokoll 19/154 (25 March 2020) 19169C.

19  J Ipsen, ‘Notstandsverfassung und Corona-Virus. Rückblick und Ausblick’ (2020) 56 Recht und Politik 118, 123.

20  T Mayen, ‘Der verordnete Ausnahmezustand. Zur Verfassungsmäßigkeit der Befugnisse des Bundesministeriums für Gesundheit nach § 5 IfSG’ (2020) Neue Zeitschrift für Verwaltngsrecht 828; see also J Kersten and S Rixen, Der Verfassungsstaat in der Corona-Krise (C.H. Beck 2020) 121–28; KF Gärditz and MK Abdulsalam, ‘Rechtsverordnungen als Instrument der Epidemie-Bekämpfung’ (2020) Zeitschrift für das gesamte Sicherheitsrecht 108, 114–15; HM Heinig, T Kingreen, O Lepsius et al, ‘Why Constitution Matters – Verfassungsrechtswissenschaft in Zeiten der Corona-Krise’ (2020) 75 Juristenzeitung 861, 867–68.

22  German Bundestag, Drucksache 19/18111 (24 March 2020).

23  German Bundestag, Plenarprotokoll 19/154 (25 March 2020) 19118B-19119A; 19158A-19170D; 19169B.

24  German Bundestag, Drucksache 19/18168 (25 March 2020).

25  Bundesrat, Plenarprotokoll 988 (27 March 2020) 99.

26  German Bundestag, Drucksache 19/18165 (25 March 2020); Drucksache 19/18168 (25 March 2020).

29  German Bundestag, Plenarprotokoll 19/176 (17 September 2020) 22180A.

30  German Bundestag, Drucksache 19/24387 (17 November 2020); German Bundestag, ‘Roll-Call Vote’ (18 November 2020).

32  German Bundestag, Drucksache 19/23944 (3 November 2020).

33  M Brenner, Expert Position Paper (11 November 2020); A Kießling, Expert Position Paper (10 November 2020); A Klafki, Expert Position Paper (10 November 2020); C Möllers, Expert Position Paper (11 November 2020); H Wißmann, Expert Position Paper (10 November 2020); F Wollenschläger, Expert Position Paper (11 November 2020).

34  German Bundestag, Drucksache 19/24334 (16 November 2020).

35  German Bundestag, ‘Roll-Call Vote’ (18 November 2020).

36  German Bundestag, Plenarprotokoll 19/191 (18 November 2020) 24046B.

37  Bundesrat, Plenarprotokoll 996 (18 November 2020) 466.

39  Social Security Bundle 2020; Social Security Bundle II 2020. These measures will be explored in Part V.A of this report, to be published later in 2021.

41  Bavarian Ministry of the Interior, for Sports and Integration, ‘Covid-Pandemic: Herrmann declares End of Disaster Situation’ (16 June 2020).

42  Bavarian Ministry of the Interior, for Sports and Integration, ‘Covid-Pandemic: Declaration of Disaster Situation in Bavaria’ (BayMBl. 2020 no 710) (8 December 2020).

43  See also Part III.A below.

44  See, however, on the shortfall of the principle of proportionality Part III.C below.

45  Cf. F Ossenbühl, ‘Rechtsverordnung’ in J Isensee and P Kirchhof (eds), Handbuch des Staatsrechts der Bundesrepublik Deutschland (3rd edn C.F. Müller 2007) vol. V, ch. 103 [3].

46  A Wallrabenstein in I Münch and P Kunig, Grundgesetz-Kommentar (6th edn C.H. Beck 2012) vol. II Art. 80 [3].

47  Eg in Bavaria, see Bavarian Ministry of Health and Care, Order of 11 March 2020, 51b-G8000-2020/122-45 (BayMBl. 2020 no 139); Order of 16 March 2020, 51-G8000-2020/122-67 (BayMBl. 2020 no 143); Order of 20 March 2020, Z6a-G8000-2020/122-98.

49  See Higher Administrative Court (Bavaria), Order of 30 March 2020 – 20 NE 20.632 [63].

50  See eg Bavarian Ministry of Health and Care, ‘Justification for the 11th Bavarian Infection Protection Regulation’ (BayMBl. 2020 no 738) (15 December 2020); Senate Chancellery Berlin, ‘Justification’ (no date indicated).

51  German Bundestag, Drucksache 19/24334 (16 November 2020) 81.

53  Higher Administrative Court (Rhineland-Palatinate), Order of 16 April 2020 – 6 B 10497/20.

54  Federal Centre for Health Education, ‘Information regarding the Coronavirus‘(no date indicated).

55  In Bavaria, such a provision was adopted in Bayerische Verordnung über eine vorläufige Ausgangsbeschränkung anlässlich der Corona-Pandemie (BayMBl. 2020 no 130) (24 March 2020) s 1. For the non-enforceability see Higher Administrative Court (Bavaria), Order of 30 March 2020 – 20 NE 20.632 [49]–[51]. See for Berlin Vierte Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 262) (21 April 2020) art 1 s 1.

56  See eg The Federal Chancellor, ‘We are now in a very serious phase of the Coronavirus-Pandemic’ (17 October 2020).

57  Infection Protection Act 2000, s 5(4) sentences 1 and 4.

58  See eg E Lohse, ‘Merkel fordert striktere Einschränkungen – vor Weihnachten’ Frankfurter Allgemeine Zeitung (Online, 9 December 2020).

59  See eg Federal Constitutional Court, Judgement of 19 December 2017 — 1 BvL 3, 4/14 — BVerfGE 147, 53 [116].

60  KF Gärditz and MK Abdulsalam, ‘Rechtsverordnungen als Instrument der Epidemie-Bekämpfung’ (2020) Zeitschrift für das gesamte Sicherheitsrecht 108, 113; O Lepsius, ‘Grundrechtsschutz in der Corona-Pandemie’ (2020) 56 Recht und Politik 258, 267–68. See also the statement of the Land of Thuringia in Resolution by the Federal Chancellor and the heads of governments of the Länder (28 October 2020).

61  U Volkmann, ‘Das Maßnahmegesetz’ VerfBlog (Online, 20 November 2020); H Wißmann, Expert Position Paper (10 November 2020) 5–6.

62  Act on Issuing Measures concerning Infection Protection (Baden-Wuerttemberg) 2020; Act on Issuing Measures concerning Infection Protection (Hesse) 2020 (not yet published); see also the bills of Hamburg Parliament, Drucksache 22/2415 (2 December 2020); Bremen Parliament, Drucksache 20/757 (15 December 2020).

63  See, however, S Birkner, ‘Parlamentarische Legitimation und effektive Pandemiebekämpfung’ (2020) Zeitschrift für Rechtspolitik 157, 158.

64  H Bauer in H Dreier (ed), Grundgesetz-Kommentar (3rd edn Mohr Siebeck 2015) vol. II Art. 80 [67].

65  HM Heinig and C Möllers, ‘Die Stunde der Legislative’ Frankfurter Allgemeine Zeitung (21 October 2020) 11; HM Heinig, T Kingreen, O Lepsius et al, ‘Why Constitution Matters – Verfassungsrechtswissenschaft in Zeiten der Corona-Krise’ (2020) 75 Juristenzeitung 861; O Lepsius, ‘Grundrechtsschutz in der Corona-Pandemie’ (2020) 56 Recht und Politik 258, 269–70.

66  P Austermann and C Waldhoff, Parlamentsrecht (C.F. Müller 2020) [630]; J Kersten and S Rixen, Der Verfassungsstaat in der Corona-Krise (C.H. Beck 2020) 103; C Möllers, ‘Über den Schutz der Parlamente vor sich selbst in der Krise’ VerfBlog (Online, 20 March 2020).

67  M Meisner, ‘Der Bundestag tagt – aber nur so kurz wie irgend möglich’ Tagesspiegel (Online, 19 March 2020).

68  German Bundestag, Drucksache 19/18126 (25 March 2020). The original limitation was extended until 31 December 2020, see German Bundestag, Drucksache 19/22397 (14 September 2020).

69  This quorum is only decisive if a parliamentary group makes a motion according to Rules of Proceeding 1980, s 45(2).

70  Research Services of the German Bundestag, ‘Virtual Parliament – Constitutional Assessment and Possible Amendments of the Basic Law’ (31 March 2020).

71  German Bundestag, Plenarprotokoll 19/191 (18 November 2020) 24046B-24046D.

72  See eg other claims by the party AfD in German Bundestag, Drucksache 19/22832 (25 September 2020).

73  Administrative Court (Berlin), press release no 61/20 ‘Obligation to wear masks also applies for employees of the AfD parliamentary group’ (20 November 2020).

74  SARS-CoV-2-Eindämmungsmaßnahmenverordnung (Berlin) (GVBl. 220) (22 March 2020) s 1(2).

75  J Kersten and S Rixen, Der Verfassungsstaat in der Corona-Krise (CH Beck 2020) 40–41.

77  See eg Code of Administrative Court Procedure 1991, s 55a.

78  Code of Administrative Court Procedure 1991, ss 84(1), 101(2), (3).

79  Federal Constitutional Court, ‘Annual Statistics 2019’ (February 2020) 16.

82  Code of Administrative Court Procedure 1991, s 102a; Code of Procedure for Fiscal Courts 2001, s 91a.

83  For criminal cases, there are rare provisions that allow participation in the hearing remotely, see Code of Criminal Procedure 1987, ss 233(2) sentence 3, 247a.

84  Social Security Bundle II (BGBl. I 1055) (20 May 2020) arts 2–5.

85  See Portal of the Justice of the Federal Republic and of the Länder, ‘Register of Facilities for Video Conferencing at the Courts and at the Public Prosecutor’s Offices’ (2 July 2020).

86  Court of Appeal in Berlin, Judgement of 12 May 2020 – 21 U 125/19 [20].

87  Cf. J Kersten and S Rixen, Der Verfassungsstaat in der Corona-Krise (CH Beck 2020) 128–33.

88  Code of Administrative Court Procedure 1991, s 152(1).

89  See Part IV.A.3 below.

90  H-H Trute, ‘Ungewissheit in der Pandemie als Herausforderung’ (2020) Zeitschrift für das gesamte Sicherheitsrecht 93, 100; A-B Kaiser, Ausnahmeverfassungsrecht (Mohr Siebeck 2020) 232–38.

91  Bavarian Act on Elections in Municipalities and Rural Districts 2006, art 60a, promulgated as Bavarian Infection Protection Act 2020, art 9a.

93  J Kersten and S Rixen, Der Verfassungsstaat in der Corona-Krise (C.H. Beck 2020) 99–100; M Friehe, ‘Die Demokratie muss immun bleiben: Zum Wahlrecht in der Pandemie’, VerfBlog (Online, 21 May 2020). Cf. Federal Constitutional Court, Order of 9 July 2013 – 2 BvC 7/10 – BVerfGE 134, 25 [13].

94  RKI, ‘Profile’ (Online, 16 September 2019).

95  See eg RKI, ‘Covid-19 – Daily Situation Report of the Robert Koch Institute’ (15 December 2020).

96  See eg RKI, ‘Coronavirus infection and home quarantine’ (23 October 2020); RKI, ‘National Covid-19 Vaccination Strategy’ (6 November 2020).

97  Higher Administrative Court (Saxony), Order of 15 April 2020 – 3 B 114/20 [17]: ‘priority by law’.

98  Reporters sans frontières, ‘World Press Freedom Index 2020 – Country Report: Germany’ (March 2020) 11.

99  Zehnte Verordnung zur Änderung der SARS-CoV-2-Infektionsschutzverordnung (Berlin) (GVBl. 842) (29 October 2020) art 1 s 1(5)(1).

100  Higher Administrative Court (Lower Saxony), Order of 6 July 2020 – 2 ME 246/20.

102  Federal Commissioner for Data Protection and Freedom of Information, ‘Sufficient data protection in the Corona warning app’ (16 June 2020).

108  Bayerische Verordnung über eine vorläufige Ausgangsbeschränkung anlässlich der Corona-Pandemie (BayMBl. 2020 no 130) (24 March 2020) s 1(5) lit g; SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 220) (22 March 2020) s 14(3) lit i.

109  Higher Administrative Court (Bavaria), Order of 28 April 2020 – 20 NE 20.849 [47].

111  SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 562) (23 June 2020) s 1(1).

112  Sechste Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 348) (19 June 2020) s 2(1); Siebte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 562) (1 October 2020) s 2(1).

114  District Administration (Berchtesgadener Land), Order of 22 October 2020.

116  Achte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 616) (30 October 2020) s 3; Neunte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 683) (30 November 2020) s 3; Zehnte Verordnung zur Änderung der SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 842) (29 October 2020) art 1 ss 1(4), 6(4); Dreizehnte Verordnung zur Änderung der SARS-CoV-2Infektionsschutzverordnung Berlin (GVBl. 922) (26 November 2020), art 1(2).

117  Zehnte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 711) (8 December 2020) s 3; SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) s 2.

118  Elfte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 737) (15 December 2020) s 3.

119  Higher Administrative Court (Berlin and Brandenburg), Order of 23 March 2020 – OVG 11 S 12/20 (regarding a case from Brandenburg); Order of 8 April 2020 – OVG 11 S 20/20; Higher Administrative Court (Bavaria), Order of 30 March 2020 – 20 NE 20.632; Order of 28 April 2020 – 20 NE 20.849.

121  Resolution by the Federal Chancellor and the heads of governments of the Länder (14 October 2020) no 6 (not finding a common solution for domestic travels).

122  Federal Ministry of the Interior, Building and Community, ‘Temporary Border Controls at the Borders of Austria, Switzerland, France, Luxemburg and Denmark’ (15 March 2020); ‘Changes regarding Border Regime’ (13 May 2020). See also European Commission, Covid-19: Guidelines for border management measures to protect health and ensure the availability of goods and essential services (2020/C 86 I/01) (16 March 2020).

123  European Commission, Communication ‘Covid-19: Temporary Restriction on Non-Essential Travel to the EU’ (COM[2020] 115 final) (16 March 2020).

124  Federal Ministry of the Interior, Building and Community, ‘Federal Minister of the Interior Seehofer Implements Extensive Restrictions on International Air and Sea Traffic’ (17 March 2020).

126  Federal Ministry of the Interior, Building and Community, ‘Gradual Lifting of Restrictions for Entries from Third Countries’ (1 July 2020).

129  Higher Administrative Court (Lower Saxony), Order of 11 May 2020 – 13 MN 143/20; Higher Administrative Court (North Rhine-Westphalia), Order of 5 June 2020 – 13 B 776/20.NE.

130  Einreise-Quarantäneverordnung Bayern (BayMBl. 2020 no 335) (15 June 2020); Elfte Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung (GVBl. 557) (16 June 2020) art 1(1).

131  RKI, ‘Information on the designation of international risk areas’ (Online, 18 December 2020).

132  Federal Ministry of Health, Order of 8 April 2020 (BAnz AT 9 April 2020 B7); Order of 6 August 2020 (BAnz AT 7 August 2020 B5); Order of 29 September 2020 (BAnz AT 29 September 2020 B2); Order of 5 November 2020 (BAnz AT 6 November 2020 B5).

134  See eg SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) s 21(2).

135  Verordnung zur Testpflicht von Einreisenden aus Risikogebieten (BAnz AT 7 August 2020 V1) (6 August 2020); Verordnung zur Testpflicht von Einreisenden aus Risikogebieten (BAnz AT 6 November 2020 V1) (4 November 2020).

136  Siebte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 562) (1 October 2020) s 14(2).

137  Higher Administrative Court (Lower Saxony), Order of 15 October 2020 – 13 MN 371/20; Higher Administrative Court (Schleswig-Holstein), Order of 23 October 2020 – 3 MR 47/20; Higher Administrative Court (Saxony-Anhalt), Order of 27 October 2020 – 3 R 205/20.

139  Achte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 616) (30 October 2020) s 14(1); Zehnte Verordnung zur Änderung der SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 842) (29 October 2020) art 1 s 7(11).

141  Bavarian Ministry of Health and Care, Order of 16 March – 51-G8000-2020/122-67 (BayMBl. 2020 no 143).

142  Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 158) (27 March 2020) s 1(1); SARSCoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 220) (22 March 2020) s 1(1).

143  SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 220) (22 March 2020) s 1(4).

145  Sechste Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 348) (19 June 2020) s 5(2).

148  SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 562) (23 June 2020) s 6.

149  Achte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 616) (30 October 2020) s 5.

151  SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) s 9.

152  SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 220) (22 March 2020) s 1(1). For Bavaria see Higher Administrative Court (Bavaria), Order of 9 April 2020 – 20 CE 20.755. For other Länder see S Martini and M Plöse ‘Politische “Bewegung an der frischen Luft” – Teil I: Versammlungsermöglichung im gesperrten öffentlichen Raum’ JuWissBlog (Online, 31 March 2020); J Kersten and S Rixen, Der Verfassungsstaat in der Corona-Krise (C.H. Beck 2020) 60–63.

153  Office of Public Order Bremen, Order of 17 March 2020, no 2; Verordnung zum Schutz vor Neuinfektionen mit dem Coronavirus SARS-CoV-2 Bremen (Brem. GBl. 168) (3 April 2020) s 6(2).

155  See, however, the assessment in Higher Administrative Court (Thuringia), Order of 10 April 2020 – 3 EN 248/20.

156  Higher Administrative Court (Saxony-Anhalt), Order of 18 April 2020 – 3 M 60/20; Higher Administrative Court (Saxony), Order of 30 April 2020 – 3 B 167/20; Higher Administrative Court (North Rhine-Westphalia), Order of 30 April 2020 – 15 B 606/20; Higher Administrative Court (Mecklenburg-Western Pomerania), Order of 8 May 2020 – 1 M 417/20 OVG; Administrative Court (Berlin), Order of 28 August 2020 – VG 1 L 296/20.

157  For instance, in Berlin, see Zehntausende Menschen bei Kundgebung an Siegessäule’ Der Spiegel (Online, 29 August 2020).

158  Elfte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 737) (15 December 2020) s 7.

159  SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) s 10.

160  Elfte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 737) (15 December 2020) s 7(3); SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) s 26.

161  Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 158) (27 March 2020) s 1(1) sentence 2; cf. for Berlin the exemption in SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 220) (22 March 2020) s 14(3) lit. p.

164  SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) s 9(3) no 1.

165  Elfte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 737) (15 December 2020) s 6.

166  Bavarian Ministry of Health and Care, Order of 13 March 2020 – 51-G8000-2020/122-65 (BayMBl. 2020 no 140); SARS-CoV-2-Eindämmungsverordnung Berlin (GVBl. 210) (14 March 2020) ss 7-9.

167  Bavarian Ministry of Health and Care, Order of 16 March 2020, 51-G8000-2020/122-67 (BayMBl. 2020 no 143) no 4; Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 158) (27 March 2020) s 2(4); SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 213) (17 March 2020) s 3a.

168  Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 158) (27 March 2020) s 2(2), (3); Zweite Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 219) (21 March 2020) art 1(4).

169  Bavarian Ministry of Health and Care, Order of 16 March 2020, 51-G8000-2020/122-67 (BayMBl. 2020 no 143) no 2; SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 213) (17 March 2020) ss 2, 4, 11.

170  Vierte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 240) (5 May 2020) s 12, 20; Vierte Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 262) (21 April 2020) art 1 ss 2, 5, 6a.

171  Bavarian Ministry of Health and Care, Order of 8 May 2020 – GZ6a-G8000-2020/122-294 (BayMBl. 2020 no 251); Fünfte Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 287) (28 April 2020) art 1 s 11.

172  Neunte Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 507) (28 May 2020) art 1 s 6; see also the amendment, abrogating all time restrictions, in Zehnte Verordnung zur Änderung der SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 523) (9 June 2020) art 1(2).

174  Siebte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 562) (1 October 2020) s 13(4); Siebente Verordnung zur Änderung der SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 762) (6 October 2020) art 1 s 7(1), (2).

177  Elfte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 737) (15 December 2020) ss 12, 18, 19; SARS-CoV-2-Infektionsschutzmaßnahmenverordnung Berlin (GVBl. 1463) (14 December 2020) ss 13, 14.

178  Higher Administrative Court (Bavaria), Order of 30 March 2020 – 20 CS 20.611; Higher Administrative Court (North Rhine-Westphalia), Order of 6 April 2020 – 13 B 398/20.NE; Higher Administrative Court (Berlin and Brandenburg), Order of 17 April 2020 – OVG 11 S 22/20.

179  Higher Administrative Court (Baden-Wuerttemberg), Order of 9 April 2020 – 1 S 925/20 [37]–[43]; see also Higher Administrative Court (Bavaria), Order of 27 April 2020 – 20 NE 20.793 [45].

180  See II.C; III.A above.

181  However, a first action was dismissed by District Court Berlin, Judgement of 13 October 2020 – 2 O 247/20 (not yet published).

183  Higher Administrative Court (Bavaria), Order of 27 April 2020 – 20 NE 20.793 [34]–[42].

184  Administrative Court (Berlin), Order of 30 April 2020 – 14 L 55/20 [28]–[33].

188  Siebte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 562) (1 October 2020) s 25(3) no 4; Achte Verordnung zur Änderung der SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 782) (20 October 2020) art 1(3) lit b.

189  Higher Administrative Court (North Rhine-Westphalia), Order of 30 April 2020 – 13 B 539/20.NE; Higher Administrative Court (Hesse), Order of 5 May 2020 – 8 B 1153/20.N; Higher Administrative Court (Baden-Wuerttemberg), Order of 13 May 2020 – 1 S 1314/20.

190  Higher Administrative Court (Bavaria), Order of 5 May 2020 – 20 NE 20.926 [25].

192  Bavarian Ministry of Health and Care, Order of 7 May 2020 – G54e-G8390-2020/1277-1 (BayMBl. 2020 no 249); Order of 18 August 2020 – GZ6a-G8000-2020/572 (BayMBl. 2020 no 464); Order of 2 December 2020 – GZ6a-G8000-2020/122-736 (BayMBl. 2020 no 705).

193  See eg Borough Administration (Neukölln), Order of 13 November 2020.

194  Coronavirus-Testverordnung (BAnz AT 14 October 2020 V1).

195  German Bundestag, Plenarprotokoll 19/191 (18 November 2020) 24059A.

196  Covid-19 snapshot monitoring, ‘Fokuserhebungen: COVID-19 Impfung – Einstellungen und Impfabsicht’ (Online, 18 December 2020).

197  Siebte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 562) (1 October 2020) s 4; SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 562) (23 June 2020) s 3.

198  M Freidel, ‘Radikaler Kurswechsel in Berlin’ Frankfurter Allgemeine Zeitung (Online, 26 April 2020).

199  Federal Commissioner for Data Protection and Freedom of Information, ‘Sufficient data protection in the Corona warning app’ (16 June 2020).

200  See eg the video podcast by The Federal Chancellor, ‘The more people who use the app, the greater the benefits’ (20 June 2020).

201  RKI, ‘Key Figures concerning the Coronavirus warning app’ (22 September 2020).

202  Bavarian Ministry of Health and Care, order of 13 March 2020 – 51b-G8000-2020/122-56 (BayMBl. 2020 no 141); SARS-CoV-2-Eindämmungsverordnung Berlin (GVBl. 210) (14 March 2020) s 6.

203  Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 158) (27 March 2020) s 3.

204  SARS-CoV-2-Eindämmungsmaßnahmenverordnung Berlin (GVBl. 220) (22 March 2020) s 6(3).

205  Cf. SARS-CoV-2-Infektionsschutzverordnung Berlin (GVBl. 562) (23 June 2020).

206  Achte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 616) (30 October 2020) s 9.

207  Pflege-Covid-19-Verordnung Berlin (GVBl. 869) (10 November 2020) s 5.

208  Zehnte Bayerische Infektionsschutzmaßnahmenverordnung (BayMBl. 2020 no 711) (8 December 2020) s 9(2).

209  Pflege-Covid-19-Verordnung Berlin (GVBl. 1498) (16 December 2020) s 7.

210  O Lepsius, ‘Grundrechtsschutz in der Corona-Pandemie’ (2020) 56 Recht und Politik 258, 272.

212  District Administration (Berchtesgadener Land), Order of 22 October 2020.

213  C Bodisco, ‘Friedrichshain-Kreuzberg lehnt Bundeswehr-Hilfe weiterhin ab’ Tagesspiegel (Online, 29 October 2020).

214  Constitutional Court (Berlin), Order of 20 May 2020 – 81 A/20.

215  Bavarian Ministry of Health and Care, Order of 17 December 2020 – G51r-G8000-2020/122-765 (BayMBl. 2020 no 768).

217  Parliament of Berlin, Drucksache 18/23907 (21 July 2020).

218  Parliament of Bavaria, Drucksache 18/9916 (6 November 2020).

219  Covid-19 mobility project, ‘Current mobility’ (Online, 17 December 2020).

220  Covid-19 mobility project, ‘Report: First week of “lockdown light”’ (Online, 11 November 2020).

221  Covid-19 snapshot monitoring, ‘Kenntnis und Umsetzung präventiver Maßnahmen’ (Online, 18 December 2020).

222  Covid-19 snapshot monitoring, ‘Akzeptanz aktueller Maßnahmen’ (Online, 18 December 2020).