The world is in an ex-ceptional situation. A new epidemic simul-taneously affects the daily lives of billions of people. In the absence of a vac-cine or an effective treatment me- thod, countries on all continents are faced with the question of how they can contain the exponential spread of the virus and the consequent deaths. At the same time, they need to try to mitigate serious economic Timpacts and, frequently, to revoke significant interference in consti-tutional rights. The exceptional sit-uation cannot be transformed into a state of exception.
The question of which measures to combat the epidemic are economically sound, therefore, adds to the question of how these measures can be legally shaped and limited. In federations supported by a Constitution, the is-sue of competent authority to appro- ve these measures is added. No one has yet found the ideal path. We are all in the process of learning and observing one another. This article aims to elucidate Germany’s practi-cal and legal way of proceeding.
Chancellor, Minister of Health, Governors – competent authorities in Germany
Like Brazil, Germany is a Federal State. In addition to the Union, there are 16 federated units (Bundesländer) with state quality. The states are, in principle, competent to legislate their own laws; and the Union has power to legislate only on matters that the German Constitution gives it express powers to do so.
However, over the years, more and more matters have migrated to the competence of the Union. Distinct from legislative competence is the question of who enforces laws. The enforcement of federal and state laws is the responsibility, with few exceptions, of the states. For the purpose of fighting epidemics, Germany has a tripartite system: alongside the Federal Ministry of Health, states coexist with their state health departments and agencies, below them, the municipal health agencies.
How does such a multi-party, federal system deal with a (inter-) national health crisis? In case of an “epidemic situation of national scope”, according to art. 5 of the Infection Protection Law (IfSG), the Minister of Health has special competences, especially pertinent to the collection of data related to movements, travels and measures aimed at ensuring the supply of medicines, and medical and hospital equipment.
However, the enactment of more essential drastic measures (restrictions on contact, curfews, closure of establishments, etc.) is under the responsibility of the executive branch of the states. State governments are authorized, pursuant to art. 32 in combination with art. 28 of IfSG, to approve, by means of executive regulations, orders and prohibitions to combat infectious diseases, and they did so (see below).
Municipal health agencies, in turn, carry out tests to diagnose infection in their areas and track infection chains, according to the possibilities. These data are then transmitted to the Robert Koch Institute, the central scientific body of the Union that collects and analyzes data, in addition to advising political decision makers from different spheres, but does not have the power to enact measures.
As the majority of citizens are guided by the federal government and do not always know their re-spective competences, in Germany some citizens are also insecure when the Union (the Chancel-lor and the Minister of Health) does not seem to coordinate actions suffi-ciently and state regula-tions diverge. Others, for their part, fear that the Union will take away citi-zens’ rights.
The reality is Lawmore complex and less authoritarian. In the crisis, the federal government and state governments perform a concert of continuous consonance. Although this system, which is in the process of learning and adapting, is also unable to speak immediately in unison at all times, until now, it has become clear that the decentralized approach – coordinated in videocon-ferences held regularly – has both met the different levels of overload in the different regions and favored on crucial issues (extension of clos-ings, method of reopening) of the dispute between the approaches.
Thus, until now, ultimately there have been generally similar mea-sures, although regionally adapted. The advantages of this decentrali- zed system, however, are offset by disadvantages in the form of less uniform communication of these measures. This runs the risk of un-dermining the very important wide acceptance of the necessary dras-tic measures and, thus, threatening again the results already achieved by the distance measures.
So far, the level of acceptance in Germany has remained high. In order for it to remain so, there must be close co-ordination between the Union and the states – among actors who also compete in the political sphere. Ob-viously, it is not always easy, but so far it has been sustained.
Protection of health x the good of the economy x fundamental rights – how has Germany been acting concretely?
Fighting an epidemic is, in essence, a matter of risk prevention. A virus spreads without a vaccine or effective treatment method. If everyone kept an absolute distance from everyone else for several weeks, the virus would be beaten. A relatively small number of people would die. This form of isolation, which is the most effective was, at the same time, the most massive interference in the economy and fundamental rights.
On the contrary, if daily life had continued as if there were no pandemic, serious studies (for example, from Imperial College London) predicted that there would have been an exponential, dramatic increase in the number of cases, which would have led to an overload of health systems. Doctors would have to choose who to allocate scarce therapeutic resources to.
Consequently, not every citizen would have received equal treatment. A relatively high number of people would have died.
The right to life and physical integrity is guaranteed in art. 2nd, § 2nd, 1st sentence, of the Basic Law. This right concomitantly derives an obligation of protection on the part of the State. It must actively protect the health of its citizens. The form and extent of the protection obligation are, however, indeterminate.
The State has a wide margin of maneuver for evaluation and organization here. According to the jurisprudence of the Federal Constitutional Court of Germany, when acting, the State must weigh the species, the gravity and the probability of the threats of damage to health in face of the fundamental rights, equally affected, of third parties (freedom of assembly, religious freedom, freedom of professional practice etc.). The German State is therefore obliged to act; it cannot ignore a artigo scientifically proven risk situation. At the same time, it must guide its action by the fundamental rights of third parties.
Faced with a disease, Covid-19, whose degree of danger and parameters of dissemination were only researched in a preliminary way, and with data that are always incomplete (number of infected, form of transmission, number of infections by each infected individual, rate of duplication cases, etc.), the authorities working in Germany are faced with the mission of continuously evaluating and adapting their measures, including for legal reasons – which, in fact, occurs.In practice, state governments determined, by executive regula-tions based on the provisions of the Infection Protection Law (arts. 32, 28 IfSG), curfews, restrictions on contact and temporary closings of very comprehensive and varied companies and stores.
The objective was to reduce the speed of propaga-tion (“flatten the curve”), by means of a wide isolation of the citizens, until the number of transmission was low enough, so that the expansion of the treatment capacity could accompany the spread of the disease.
Although some jurists fundamentally ques-tion whether such a general power to issue decrees, such as those pro-vided for in the Infection Protection Act, would be sufficient to stop large segments of public life (Christoph Möllers, Parlamentarische Selbstent-mächtigung im Zeichen des Virus (Parliamentary self-empowerment in the sign of the virus verfassungsblog.de, 26.3.2020), the constitutional courts mainly accepted the compre-hensive measures adopted in the first hour, including the Federal Constitu-tional Court (decision on 07.04.2020, Az. 1 BvR 755 / 20).
Courts also recognized the primacy of the obligation of state protection in favor of life and health over other fundamental rights.
With the passage of time and, especially, since the beginning of the first relaxation measures, the range of judicial decisions opens up. Each relaxation leads to a reduced, scaled level of protection. At the same time, flexibilisations benefit diverse groups of people and activi- ties in a different way.
The level of justification for the prohibition of a specific activity is raised. The balan- ce between life and “other rights” gives way to the examination of the principle of equality and the analysis of coherence: the government has approved, within the scope of its assessment, a certain degree of pre-ventive measures. Are these mea-sures consistent in themselves? Do they also treat equal risk situations in the event of relaxation? (Walther Michl, Die Kohärenz als Begleit-musik zum infektionsrechtlichen Tanz (Coherence as a soundtrack to dance under infection law, ver-fassungsblog.de, 28.4.2020).
These questions were, in part, answered negatively by German courts re-garding the binding of prohibitions on certain sizes of retail stores, as well as in relation to church masses and political meetings, and in those contexts, instead of complete pro-hibitions, stepped regulations and equal treatment were required.
This is reflected in the fact that the decrees have also been constantly adapted according to the situation and jurisprudence. In the state of Bavaria, for example, the concrete formulation of prohibitions went through in all five increasingly different regulations in just six weeks, from March 20 to May 1, 2020 (on March 20, the first prohibition by administrative act on 24.03., Bavarian Decree on Temporary Restrictions on Circulation, then 1st, 2nd, 3rd Bavarian Decree on Infection Protection Measures).
Parallel to the image of the dance with the virus among restric-tions, flexibilities and, if necessary, new restrictions based on a real risk situation, it can be said that govern-ments and justice are also in a posi- tive struggle, in a way, in a dance for the most effective pandemic policy and, at the same time, that most preserves fundamental rights.
Alongside the prerogative and, in part, the obligation of the State to interfere in fundamental rights for the protection of life and health, there arises the obligation to take all appropriate measures to stop these interferences again as soon as possible (Mattias Kumm, Gegen obrigkeitsstaatliche Tendenzen in der Krise (Against authoritarian ten-dencies during crisis, verfassungs-blog.de, 20.04.2020).
The federal government and state governments fulfilled this parallel obligation when they massively expanded the tes-ting capacity from early March to late April (from 7,115 to 141,815 per day), since, without data, neither the real fight against the pandemic is possible, nor is there any parame- ter for weighting interventions in fundamental rights. In addition, there was a significant increase in the number of ICU beds and respi-rators, as well as the organization of a national register of ICUs to stren- gthen the capacity of the health system during the flattening of the curve. There was no overload.
Whether this will continue, it remains to be seen. To mitigate the econo- mic effects of the isolation mea-sures, numerous state aid programs have been implemented. Due to space limitations, we can only men-tion the reduced-work-hours bene- fit model. With this instrument, companies can reduce their employ-ees’ working hours in order to avoid layoffs. In return, employees receive compensation from social security.
However, no aid program can sup-port a stalled economy in the long run. Until the discovery of a vaccine, we will live between relaxation and worsening of restrictions.
In addition to the current relaxation and, eventually, to the new restrictions in case of a second or third wave of infection, it will not be only the technical-scientific perspective that will need to develop new solutions for life with the virus. Legislation and case law will also have the task of permanently improving their instruments for preventing risks and weighing up fundamental rights. This process is only at its beginning.