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Communication was well planned.

No sooner had the changes to the Infection Protection Act been established than the parliamentary groups of the Union and SPD brought their members together for special sessions.

Not only in the public, but also in the parliamentary groups, there had previously been considerable doubts about the planned federal emergency brake.

Is the nocturnal exit restriction constitutional?

Can citizens continue to take legal action against the corona measures?

The MPs entrusted with the negotiations stated that they had made improvements to the German government's original draft.

The exit restrictions have been relaxed.

And citizens could of course continue to sue.

Many doubts seem to have been dispelled before the decisive vote in the Bundestag on Wednesday.

But an unknown remains.

It concerns paragraph 28b, paragraph 6 of the planned Infection Protection Act.

This is not about the specific measures of the emergency brake, which have so far been at the center of the public debate.

But about a new authorization for the federal government to issue ordinances.

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In future, it can be read in it, “additional commands and prohibitions” to contain the pandemic if the seven-day incidence exceeds the threshold of 100 - with the consent of the Bundestag and the Bundesrat.

It is therefore conceivable that in the near future there will be even more severe interventions in basic rights than the steps already provided for in the emergency brake.

What is the point of this additional instrument?

Which interventions are to be expected?

And what would such a regulation mean for the legal protection of citizens?

"Further protective measures through statutory ordinance"

If you ask around in the coalition factions, you will learn that this is a kind of emergency mechanism - created for the worst case.

The emergency brake regulates uniform measures for the current situation, says the legal policy spokesman for the Union parliamentary group, Jan-Marco Luczak (CDU) WELT.

"However, it cannot be ruled out that the infection process will get out of control and tougher containment measures will be necessary."

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For example, a "new, deadly virus variant that requires rapid intervention could emerge."

In order not to have to rely on the format of the Prime Minister's Conference again, the Federal Government is authorized to “take further protective measures by means of statutory instruments”.

This would be quicker to implement than a law.

Dirk Wiese, deputy chairman of the SPD parliamentary group, argues that the aim of the new law is more national uniformity.

Against this background, it is also important to include the authorization to issue ordinances.

Both MPs emphasize that the federal government cannot go it alone.

With the approval of the Bundestag and the Bundesrat, the Parliament and the Laender Chamber would have the final decision on further measures.

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Under constitutional law, this is not a problem, says Jena constitutional lawyer Michael Brenner WELT.

The federal government could impose its own containment measures in the area of ​​infection protection.

Nevertheless, such a federal ordinance would be a significant change to the status quo.

So far, only the federal states have been allowed to take protective measures - those that are specified in Section 28a of the Infection Protection Act.

These include curfews, contact restrictions, but also company closings and travel bans.

As a rule, the Länder did not make full use of the very far-reaching options.

Anyone who did not agree could also take legal action against it.

Sometimes measures were then overturned by the administrative courts.

The situation would be different with a federal regulation.

It is true that the federal government is only likely to take containment measures that are already laid down in the Infection Protection Act - and only with the clear approval of the Bundestag and the states.

More difficult to take action against in court

However, the legal process would be a little different, explains the legal scholar Johannes Gallon from the University of Flensburg.

"You can only proceed against a statutory ordinance of the federal government before the administrative court in Berlin," he tells WELT.

Plaintiffs would then have the option of having a so-called declaratory action checked whether they were affected by the measures.

"However, a decision would only have an effect between the plaintiff and the federal government."

Means: Anyone who wants to have the measures checked would have to submit their own application to the Berlin Administrative Court.

"I doubt that the Berlin Administrative Court has the infrastructure to process the expected large number of lawsuits promptly and thoroughly," says Gallon.

So it would be more difficult to take legal action against a federal regulation.

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It is also questionable whether the examination of further encroachments on fundamental rights would be as intensive as would be the case with a formal law.

It is a step forward that the coalition is subject to the approval of the Bundesrat and Bundestag, says the deputy chairman of the FDP parliamentary group, Stephan Thomae, WELT.

However, the approval consists of a single referral in Parliament.

With the emergency brake regulation, it was seen that even in the coalition factions there was uncertainty as to how the regulation could be made constitutional - despite repeated referrals in the Bundestag including expert hearings.

"A proper legislative procedure would be better if further measures are to be imposed," says Thomae.

Manuela Rottmann, right-wing politician in the Green parliamentary group, fears that important decisions with such authorization could be put on the back burner.

Fundamental questions need to be clarified now: “How do we react if the infection rate continues to worsen?” How do you deal with overloaded intensive care units?

“At the moment, the grand coalition is not even asking itself these questions.

She keeps the regulation open. "

Nobody knows exactly what it should be about there: Is it about additional vaccinations in hotspot regions?

Is it about company closings?

"We can't always leave everything open and then always rush to make decisions."

If the federal government actually enacts a new ordinance, it would be sufficient if the Bundestag and Bundesrat approve with a simple majority, says state lawyer Brenner.

With a simple veto, however, they could also reject the project.

The Basic Law does have a mediation committee between the Bundesrat and the Bundestag when there is a dispute over laws.

But not with federal regulations.