The corona measures should become more uniform. For this, the Infection Protection Act must be reformed. But what can the federal government actually regulate? What role will courts play? The most important questions and answers.
From Claudia Kornmeier, ARD legal editors
Can the federal government issue corona rules?
Yes, he can. Because the legislative competence for infection protection lies with the federal government. According to Article 74, Paragraph 1, No. 19, the “measures against publicly dangerous and communicable diseases” are a federal matter. The federal states are only responsible if the federal government has not regulated anything. So far, the federal government had set a certain framework, but then authorized the states to decide specifically which measures should be taken to combat the pandemic. That is why the corona rules have so far mainly been issued by the federal states by ordinance. But that should change now.
Could the federal government lay down even more corona rules?
Yes. The Bundestag could stipulate further concrete measures directly in the Infection Protection Act. However, it is also planned that the Infection Protection Act will in future also allow the federal government to take further measures for all of Germany by ordinance. Corona measures can be adjusted a little faster and more flexibly via statutory ordinance than in a legislative procedure.
To what extent does the Federal Council have to be involved in the reform?
The federal states are involved in the legislative process at federal level through the Bundesrat. There are laws that the Federal Council must approve in order for them to come into force. The Land Chamber can only appeal against the majority of the laws. Then a mediation committee has to be convened. In this way, a legislative process can at least be delayed. According to the Basic Law, the approval of the Federal Council is not required for protection against infection. The federal government also assumes that the current law is merely an “objection law”. However, it is controversial as to what applies when infection protection, for example, coincides with the issue of education, for example when schools are closed. Because the federal states are responsible for education. And with previous changes, the Infection Protection Act was also viewed as an approval act.
Is a curfew legally permissible?
Whether curfews are proportionate is very controversial. Critics doubt that such restrictions are even suitable for containing the infection rate. If you go for a walk alone at night, you don’t risk any infections. However, exit restrictions are more about preventing inadmissible private meetings. If you have to be home by 9 p.m., you may not even have dinner with a group of friends. In the past there were already comparable exit restrictions in some federal states. Some of them were overturned by the courts. Some courts have also questioned the effectiveness of exit restrictions. In other cases, exit restrictions were also overturned because the seven-day incidence was low at the time and continued to fall. However, the legislature also has a certain amount of leeway. In the explanatory memorandum for the law, the Federal Government expressly refers to experience in other countries and scientific studies. It may well be that the currently planned regulation will ultimately end up with the Federal Constitutional Court.
Who can overturn these new rules?
Only the Federal Constitutional Court can overturn the planned statutory rules. The corona regulations of the federal states, on the other hand, can be attacked before the administrative courts. If there are federal ordinances, things will look a little more complicated. In these cases, too, one could first sue the administrative courts. Filing a constitutional complaint directly could also be permissible. However, the hurdles are high.
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