Centralized arbitrariness: About the draft of a 4th civil protection law
>> 1. The law (drafting aid of the Federal Government for the parliamentary groups of the CDU/CSU and the SPD, draft of a Fourth Law on the Protection of the Population in an Epidemic Situation of National Scope, dated 13.4.2021) commits itself in Section 28b of the Infection Protection Act (IfSG) to a concept of non-pharmaceutical interventions (NPIs) and primarily favors contact restrictions.
a. Justified by the fulfillment of the "state's duty to protect the fundamental right to life and physical integrity under Article 2, Paragraph 2, Sentence 1 of the Basic Law to the necessary extent, and in particular to continue to ensure the functionality of the health system as an overriding public good and thus the best possible medical care." (Formulation aid of the Federal Government for the CDU/CSU and SPD parliamentary groups, Draft of a Fourth Act on the Protection of the Population in an Epidemic Situation of National Scope, Explanatory Memorandum, General Part, Essential Content of the Draft, as of April 13, 2021)
b. Justified by a gap due to non-compliance with the agreements of the Conference of Minister-Presidents. "Currently, there is a lack of uniformity across the federal states in the interpretation of the measures jointly decided upon by the states in the regularly held Conference of Minister-Presidents. This draft law is intended to close the resulting gap in protection against further Covid-19 infections. In view of the still uncertain and dynamically changing threat situation, the legislature has further discretion in assessment, evaluation, and policy-making." (ibid.)
c. Furthermore, the draft contains an authorization for the Federal Government to issue regulations: „In addition, the Federal Government is authorized to issue statutory instruments with the consent of the Bundesrat (paragraph 6) to enforce coronavirus measures. This gives the Federal Government additional powers to ensure the implementation of the national objectives of the Infection Protection Act. In this respect, another gap in the Infection Protection Act is closed.“ (ibid.)
d. The draft essentially contains contact restrictions regarding private gatherings, curfews, closures, restrictions or prohibitions on the provision of services, gastronomy and sports, and in public transport and the hotel industry.
e. All restrictions are uniformly linked to Section 28b Paragraph 1 of the Infection Protection Act (IfSG-E). "If, in a district or independent city, the number of new infections with the SARS-CoV-2 coronavirus per 100,000 inhabitants within seven days (seven-day incidence) published by the Robert Koch Institute pursuant to Section 28a Paragraph 3 Sentence 13 exceeds the threshold of 100 for three consecutive days, the following measures shall apply there from the day after next…". (ibid.)
Their automatic cancellation occurs on the day after next if the incidence rate falls below 100 for five consecutive working days (§ 28b para. 2 IfSG-E).
2. The law is based on an arbitrarily set „threshold“ and links to it an automatic mechanism and a statutory instrument authorization that limits the competences of the Länder (federal states).
a. The threshold is arbitrarily set. The thresholds have no basis in scientific evidence; neither infectiology, nor epidemiology, nor clinical epidemiology (evidence-based medicine), nor health services research contributed to their development. Furthermore, the draft does not even mention the previous justifications for the thresholds in Section 28a Paragraph 3 of the Infection Protection Act (IfSG) (tracing of infections by public health authorities). Moreover, the previous justifications for the thresholds have been rendered obsolete by developments in the digitalization of public health services.
b. There is still a lack of cohort studies that could be used as a basis for rational political control.
c. The threshold of 100 could be much higher, taking into account a likely significant number of unreported cases. Therefore, setting the threshold is not only arbitrary but also inherently uncertain.
d. The threshold values are a political decision based on an uncertain and arbitrary setting. They fail to meet the basis of the rule of law for effective governance. In the health sector, any governance action should, in any case, take into account (even differing) scientific findings and process them accordingly, or initiate their generation (see Hart/Gruhl/Knieps/Manow, Science, Politics and Constitutional Proportionality, Public Health Forum 2021; 29(1): 51-53).
3. The linking of the automatic nature of different interventions (interferences with fundamental rights) in Section 28b Paragraph 1 of the Infection Protection Act (IfSG-E) with the uniform threshold value violates the principle of proportionality, which requires a differentiated justification for each individual intervention.
a. Linking very different infringements of fundamental rights to a uniform "incidence" standard violates the principle of proportionality, which requires specific justifications and balancing of the infringement of fundamental rights against the protected interest. The constitutional assessment is a risk-oriented balancing decision under uncertainty, which establishes a proportionate balance between the protected interest and the interest being infringed.
b. The regulation in Section 28b Paragraph 1 of the Infection Protection Act (IfSG-E) infringes upon very different fundamental rights: freedom of movement and general freedom of action (Article 2 Paragraph 1 of the Basic Law); right to life and physical integrity (Article 2 Paragraph 2 Sentence 1 of the Basic Law); principle of equality (Article 3 Paragraph 1 of the Basic Law); freedom to choose and practice a profession (Article 12 Paragraph 1 of the Basic Law); freedom of movement (Article 11 Paragraph 1 of the Basic Law); inviolability of the home (Article 13 Paragraph 1 of the Basic Law); freedom of property (Article 14 of the Basic Law) (some fundamental rights are not cited in Section 28b Paragraph 9 of the Infection Protection Act (IfSG-E)).
c. The consensus in constitutional law and jurisprudence is that the justification required is not for the exercise of a fundamental right, but for the exercise of that right itself. A concise and relevant point in this context is: „The exercise of a fundamental right does not require justification. Rather, its restriction requires justification, which must comprehensibly weigh the depth of the interference against the extent and probability of the imminent danger that the restriction is intended to avert.“ (Constitutional Court of Saarland, Decision of April 28, 2020 – Lv 7/20 –, juris).
d. The requirement of specific justification for the proportionality of infringements of fundamental rights has been confirmed during the pandemic by the jurisprudence of the Federal Constitutional Court and several other constitutional and higher administrative courts:
i. Federal Constitutional Court, Rejection of interim injunction of 30 August 2020 – 1 BvQ 94/20 –, juris: „While strictly adhering to the principle of proportionality, which in particular requires consideration of all circumstances of the individual case, including the current state of the dynamic and potentially volatile infection situation (cf. Federal Constitutional Court, Decision of the First Chamber of the First Senate of 11 June 2020 – 1 BvQ 66/20 –, para. 5), measures restricting assemblies may also be taken for the purpose of protection against the dangers of infection.“
ii. Higher Administrative Court of Berlin-Brandenburg, decision of November 10, 2020 – OVG 11 S 116/20 –, juris: „According to the principle of proportionality, infringements of fundamental rights are only permissible if they are justified by sufficient reasons of public interest, if the means chosen are suitable and necessary to achieve the pursued purpose, and if, in an overall assessment of the severity of the infringement and the weight of the reasons justifying it, the limit of what is reasonable (proportionality in the narrower sense) is still respected (cf. decisions of the Senate of May 22, 2020 – OVG 11 S 51/20 –, juris para. 29 and of May 20, 2020 – OVG 11 B 49/20 and OVG 11 B 52/20 –).“
iii. For example, the imposition of curfews requires special conditions and complex assessments of the interaction of measures: „According to Section 28a Paragraph 2 Sentence 1 No. 2 of the Infection Protection Act (IfSG), the imposition of a curfew pursuant to Section 28a Paragraph 1 No. 3 of the IfSG, according to which leaving the private living area is only permitted at certain times or for certain purposes, is only permissible insofar as, even taking into account all other protective measures taken so far, an effective containment of the spread of the coronavirus disease 2019 (COVID-19) would be significantly jeopardized.“ "To assess whether the effective containment of the spread of the coronavirus disease within the meaning of Section 28a Paragraph 2 Sentence 1 of the Infection Protection Act (IfSG) would be significantly jeopardized without the contested curfew, the authority ordering this measure must prepare a risk assessment based on the specific pandemic situation, which is based on an ex-ante analysis (see Bavarian Administrative Court, Decision of January 12, 2021 – 20 NE 20.2933 –, juris para. 42; see also Baden-Württemberg Administrative Court, Decision of February 5, 2021 – 1 S 321/21 –, juris paras. 32 ff.). The measures mentioned in Section 28a Paragraph 2 of the IfSG thus represent a 'last resort' and should only be considered if measures under Section 28a Paragraph 1 of the IfSG are unlikely to be effective." (OVG Lüneburg, decision of April 6, 2021 – 13 ME 166/21 –, juris).
iv. For example, these connections, which would be excluded by the automatic nature of the "threshold," would also have to be considered within the framework of a proportionality assessment: Constitutional Court of Saxony-Anhalt, Judgment of March 26, 2021 – LVG 4/21 –, juris: "The availability of vaccinations against Covid-19, which began during the period of validity of the 9th SARS-CoV-2 Infection Control Ordinance, did not yet call into question the suitability of general infection control measures. As soon as it is established that vaccination not only prevents or mitigates the illness of Covid-19 in the vaccinated person, but also transmission of the pathogen to others, the application of infringements of fundamental rights intended to prevent infection of or by the holder of the fundamental right to vaccinated persons is unsuitable for this purpose, therefore disproportionate, and no longer justifiable. Infection control regulations must then accordingly withdraw their applicability to people without such vaccination protection and create the necessary conditions for the enforceability of this distinction based on existing vaccination protection."„
Particularly in the area of suitability, especially necessity and appropriateness (proportionality in the narrower sense), infringements of fundamental rights are not legally permissible without specific justifications relating to the measures and the infringements themselves. To treat completely different infringements as a single measure violates the principle of proportionality. The proportionality assessment must be carried out on a measure-specific basis; requirements of appropriateness specific to fundamental rights must be observed (Poscher, in: Huster/Kingreen, Handbuch Infektionsschutzrecht [Handbook of Infection Protection Law], 2021, Chapter 4, para. 109 et seq.).
4. The law contains an authorization to issue statutory instruments.
(§ 28b para. 6 sentence 2 of the Infection Protection Act (IfSG-E)), which, according to its wording – „further regulations and measures“ – permits provisions that go beyond the purposes of the Infection Protection Act. If one follows the wording alone, then – without a purpose-limiting correction through a systematic and teleological interpretation of the IfSG – the legal basis for this authorization would be lacking.
5. The conditions for legally mandated automated interventions can be influenced by the control of the testing; likewise, the statutory authorizations.
The massive expansion of rapid testing now underway is leading to the detection of more asymptomatic infections. These infections previously went undetected and were therefore not included in the reported positive test results. While the additional detection of asymptomatic infections is epidemiologically sound, it will also result in a significant increase in the number of positive tests per 100,000 inhabitants, without any actual change in the infection rate.
If more and more vulnerable groups are vaccinated and testing increases, the epidemic will inevitably cause fewer severe cases, while the number of positive tests will remain the same. This is not taken into account by the law.
6. The law excludes differentiation as a concept for combating the pandemic.
The impression arises that the emphasis on contact restrictions implies a no-Covid strategy, thus limiting itself to a position that scientifically competes with other concepts and excludes other, more nuanced perspectives. The ongoing scientific debate should prompt legislators to exercise restraint.
7. The law could be the starting point for a permanent lockdown.
There is a risk that the law, through the arbitrarily set threshold, the possibility of influencing the threshold through testing, and the reliance on a competing scientific concept, will pave the way for a permanent lockdown as the sole measure to combat Covid-19.
8. The law makes judicial review difficult or impossible; the only exception is the constitutional review procedure before the Federal Constitutional Court.
The automatic ordering of "measures" by law makes judicial review of the constitutionality of these measures difficult and allows only judicial review proceedings or (to a limited extent) constitutional complaints before the Federal Constitutional Court (Article 93, Paragraph 1, Nos. 2 and 4a of the Basic Law). Consequently, the law removes a large portion of the legally automated "measures" from judicial scrutiny and renders the "solidified pandemic policy" legally unassailable. This is linked to the reduction of judicial protection inherent in this law, due to the exclusion of recourse to administrative courts. Administrative review is indispensable, particularly in the area of measures infringing on fundamental rights during the pandemic, because only it can provide the differentiated balancing of the fundamental rights to protection against the infringement in each individual case. We consider this approach at least questionable from a rule-of-law perspective – a solution using statutory instruments would not have provoked this criticism.
9. The law could be considered an executive measure that violates the principle of the separation of powers, although this cannot be definitively clarified here.
a. It is intended to implement pandemic control measures that, according to an agreement between the Chancellor and the Conference of Minister-Presidents, were not implemented by the states or were not implemented uniformly.
b. The law is intended to replace statutory regulations or general decrees at the state level.
c. Although it is a complex of abstract and general regulations, their subject matter and circumstances are aimed at regulating individual cases that have not been implemented at the state level.
d. In this respect, the law effectively takes over the administrative implementation of measures that are the responsibility of the Länder and their subordinate administrative units.
e. The Federal Constitutional Court (BVerfGE 95, 1ff – „Stendal Southern Bypass“) sets high standards for the constitutionality of measures enacted by law, particularly under the principle of horizontal separation of powers. In more recent literature, Volkmann, Das Maßnahmengesetz, VerfBlog, 2020/11/20, https://verfassungsblog.de/das-masnahmegesetz/, DOI: 10.17176/20201121-003433-0, has reintroduced the old term:
„"The law, as an abstract and general norm, aims in its basic idea at planned, long-term social shaping to achieve political objectives, whereas the measure is specific to a particular situation and becomes superfluous when that situation ceases; it is not determined by the fundamental question of how and according to which principles we want to organize our coexistence, but by a practical problem that must be addressed as quickly and somehow as possible. The measure is thus, by its very nature, institutionally assigned to the executive branch, just as its content is less bound to a legislative than to an executive or administrative decision-making logic. The measure law that incorporates it, in this sense, forms a peculiar hybrid between executive and legislative action; outwardly an expression of the will of the legislature, it nevertheless operates within an executive framework: in itself, more of a measure than a law."“
From this perspective, the law appeared to be a measure and could be subject to the verdict of violating the principle of the separation of powers.
10. The law politically discredits federalism unnecessarily through crisis-driven centralization.
The constitutional debate surrounding federalism is characterized, among other things, by criticism from the federal level – the federal government is not adequately fulfilling its obligations to support the functioning of federalism: Hermes, German Executive Federalism in the Pandemic – Federal Ordinances as a Way Out of the Consensus Trap, VerfBlog, 2021/4/03, https://verfassungsblog.de/der-deutsche-exekutivfoderalismus-in-der-pandemie/, DOI: 10.17176/20210403-194829-0 – and, on the other hand, by arguments supporting federalism – the states are indispensable: Gallon, Johannes: „It’s not quite that simple: On the question of whether the Federal Government can also enact pandemic measures itself“, VerfBlog, 2021/4/02, https://verfassungsblog.de/aenderung-ifschg/, DOI: 10.17176/20210402-194740-0.
The federal government, through this law, is relieving the states of the responsibility for implementing measures deemed necessary, and the states don't seem to mind. This, too, weakens federalism. Contrary to previous statements by the state premiers, who repeatedly emphasized the advantages of federal diversity, they have now declared their willingness to adopt a uniform federal approach in the current legislative process. The states could independently enact corresponding regulations, as has already happened in Schleswig-Holstein. Relinquishing this authority not only affects the sovereignty over the Infection Protection Act but also has far-reaching implications for fundamental responsibilities of federalism, such as the area of the Standing Conference of the Ministers of Education and Cultural Affairs (e.g., regarding school closures). This break with the autonomy in various areas of responsibility, which the states have so vehemently defended, is surprising, especially since the change of position in some states (Lower Saxony, Rhineland-Palatinate, North Rhine-Westphalia) occurred so quickly, and from a constitutional perspective, there is clearly no reason to abandon the previous emphasis on the advantages of federalism. One gets the impression that for some state governments, shifting responsibility is more important than exercising their own federalist rights.
11. Centralization as a political intervention is justified neither by evidence nor by conviction.
A comparison of countries reveals no evidence that centralized pandemic control strategies are systematically superior to decentralized ones. The literature suggests that a combination of centralized procurement and distribution of scarce resources (vaccines, masks, tests) to minimize problems of bidding wars and moral hazard, and decentralized implementation of protection, containment, and prevention strategies to best and most flexibly respond to local conditions, is the most advantageous approach (see Aubrecht, Paul and Essink, Jan and Kovac, Mitja and Vandenberghe, Ann-Sophie, Centralized and Decentralized Responses to Covid-19 in Federal Systems: US and EU Comparisons (2020), SSRN working paper). The EU and the German federal government have failed particularly badly in the centralized procurement of vaccines. Furthermore, it is not clear whether the infection rate in Germany cannot currently be sustainably contained primarily due to a lack of implementation of the rules adopted, or due to their lack of appropriateness and specificity.
12. The pandemic should not be the starting point for interventions/changes in state organization. The idea of a new emergency constitution in the health sector is compelling.
