So far, the determination of an “epidemic of national importance” has been the basis for many measures taken against the pandemic.

For the duration of this situation, the Infection Protection Act lists as possible protective measures such as pub closings and contact restrictions.

Based on this, the state governments have so far issued their Corona ordinances.

The Bundestag must determine the “epidemic situation”;

it is limited to a period of three months and has been extended repeatedly since March 2020.

Marlene Grunert

Editor in politics.

  • Follow I follow

Should the "epidemic situation" expire at the end of November and not be determined again, the legal basis for all corona measures would no longer apply, including those currently in force.

It is therefore being discussed how the fight against pandemics could continue without a nationwide “epidemic situation”.

Will the Infection Protection Act be changed again?

Consideration is given to decoupling individual moderate measures from the determination of an epidemic situation. To do this, the Infection Protection Act would have to be changed. The lawyer Andrea Kießling has repeatedly promoted such an approach. In particular, "basic rights encroachments of low intensity" should have long since been decoupled from the determination of the epidemic situation, writes the infection protection lawyer in an article from September. This included, for example, the mask requirement and the general distance requirement.

From the point of view of the lawyer, it would also be conceivable not to make a single measure dependent on the determination of the “epidemic situation”.

Instead, the legislature could determine individual conditions for each measure.

The Infection Protection Act would then have to regulate precisely under which conditions, for example, contact restrictions apply.

This is how it usually goes with government intervention;

a coupling of very different measures to a superordinate situation such as the "epidemic situation" is basically not known in administrative law.

Constitutional law does not require such a link either.

If the instruments for fighting pandemics and their requirements were anchored directly in the Infection Protection Act, the rules would apply until further notice.

There was no need for extensions.

The countries are not powerless

Kießling has repeatedly warned that the federal states could become incapacitated as soon as the Bundestag did not prolong the “epidemic situation”, but that the fight against the pandemic was still necessary.

The legislature should therefore "urgently revise the authorization basis for the corona protective measures," she writes.

If the situation in the federal states worsens, they are not powerless even now - even if there is no longer an epidemic situation “of national importance”.

According to Paragraph 28a (7) of the Infection Protection Act, the state parliaments can determine that there is “a specific risk of epidemic spread” of the coronavirus in their respective federal state.

There would then be a legal basis for corona measures again.