Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The Basic Law for the Federal Republic of Germany does not provide for special rules for a pandemic. However, in cases of natural disasters and grave accidents and other internal or external emergencies, the Basic Law puts in place certain procedural and organizational rules to ensure the functioning of the constitutional order. These provisions do not justify a derogation of human rights in emergency situations.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
A special legislative act of the Federal Republic of Germany regulating the state of emergency does not exist. According to Article 70 of the Basic Law the states (Länder) shall have the right to legislate as far as the Basic Law does not confer the legislative power to the Federation. Averting dangers for public safety is jurisdiction of the states in Germany’s federal system. Therefore, all 16 states passed Disaster Protection Acts containing different rules for declaring a state of disaster.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
The legal basis for the control of infectious diseases is provided by the Federal Act to Prevent and Combat Infectious Diseases in Humans – Infection Protection Act (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen – Infektionsschutzgesetz – IfSG) of 2001. The legal purpose is to prevent communicable diseases in humans and to stop their further spreading (§ 1 IfSG).
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
On 27 March 2020, the Bundestag identified an epidemic situation of national significance with the amendment to the federal Infection Protection Act (§ 5 I IfSG).
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Declarations were made at the Lander (regional) level. The declarations of an “epidemic situation of national significance” and the declaration of an epidemic situation in North-Rhine-Westphalia are parliamentary acts. Only in Bavaria it was an act of excecutive. Approval is neither prescribed by law nor was it given.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Numerous legal acts, measures and actions were reviewed by preliminary legal protection before the federal constitutional court, the constitutional courts and the administrative courts of the Länder.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
The Basic Law of Germany does not provide a derogation clause in case of emergency. Limitations to fundamental rights are only permissible if the fundamental right in question contains a reservation of legal restriction and there is a legal basis for the interference.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
Measures necessary in order to limit the spread of the virus and to prevent health systems from being overburdened have been taken at the federal, the Länder and the municipal level.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Powers of the executive during the epidemic crisis are regulated by the pre-existing legislation, namely the IfSG (see Q2). According to Article 28 I IfSG, the competent authorities can take the necessary protective measures if sick, suspected or contagious suspects are identified, insofar as and as long as this is necessary to prevent the spread of communicable diseases. This applies in particular to the measures mentioned in §§ 29 – 31 IfSG. For example, the competent authorities can oblige people not to leave the place where they are located, or only to leave it under certain circum-stances, or not to enter certain places or public places, or only to enter under certain circum-stances. § 32 IfSG authorizes the Länder authorities, under the conditions of 28 IfSG, to issue commandments and prohibitions to combat communicable diseases by means of statutory or-dinances with state-wide effect. Lower authorities, especially local authorities, may issue in-dividual or general orders on the basis of § 28 IfSG.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The German Basic Law provides no possibility for the Executive to derogate from the normal division of powers.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
The Bundestag kept functioning during the Covid-19 Pandemic with the exception of the usual three-week Easter break. Several safety measures were put in place to protect the health of the members of the Bundestag and the staff. Public events and visits were temporarily cancelled, business-trips of parliamentarians were limited to what was absolutely necessary, travel to risk regions were prohibited.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
German courts are still functioning, but with various restrictions. Whenever possible, judicial proceedings take place in written form or via videoconference.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
Numerous legal acts were passed at the federal, the Länder and the local level to tackle the epidemic. Interventions relevant to fundamental rights provide in particular legal acts of the Länder and concretizing provisions of the municipalities. In contrast, federal legal acts primar-ily aim to mitigate or compensate for the consequences of the pandemic.
14. Was this additional legislation subject to judicial review?
According to the the German Association of Judges, more than 1000 applications for preliminary injunctions have been submitted to German administrative and constitutional courts by the end of May, 2020. Most of the complaints filed against corona protective measures were unsuccessful.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
For the case-law of the Constitutional Court regarding COVID-19 related measures see here
Germany
The external emergency is intended to cover the case of an armed attack from outside the country’s borders (State of Defense, Articles 115a-115 l).
The internal emergency is defined as “an imminent danger to the existence or free democratic order of the German Federation or of a Land" (Article 91 I). It is regulated in Articles 35, 87a and 91 and enables the Federal Government and the states (Länder) to pro-vide mutual administrative assistance. Article 35 allows the federal or the states governments, in case of a threat to public order, a grave accident or a natural disaster, to call upon personnel and facilities of the Federal Border Police or the Armed Forces. According to Article 91 the Land can do the same and ask for the use of another Land’s civil service to avert an imminent danger to the existence or to the free and democratic constitutional order of the Federal Government or one of the states. If a Land is unwilling or unable to combat the threat, the Federal Government can assume control over the state’s policy or deploy units of the Federal Police. In cases where the danger extends beyond the territory of a single Land, and inasmuch as necessary to combat such danger, the Federal Government may give instructions to Land governments. These articles do not allow for a shift of powers towards the executive branch or special interventions in fundamental rights. Even more, the Federal Government may only intervene if there is a threat to the existence or constitutional order of the state.
Every Disaster Protection Act (DPA) has its own definition of disaster. Common to all definitions of the term disaster is the occurrence of a damaging event, the consequences of which cannot be eliminated without uniform management and additional resources; the authorities must be overburdened dealing with the event. For example, according to the Disaster Protection Act of North-Rhine-Westphalia a disaster “is a dam-aging event which endangers or substantially impairs the life, health or vital supplies of nu-merous people, animals, natural resources or substantial material assets to such an unusual ex-tent that the resulting threat to public safety can only be effectively countered if the compe-tent authorities and services, organizations and deployed forces work together under the uni-form overall management of the competent civil protection authority.”
Until March 2020 (when the IfSG was revised - see below) the IfSG left only a coordinating role for the federal government and the Robert Koch institute, the federal agency and research institute responsible for disease control and prevention. When the Covid-19 reached Germany the IfSG gave primary responsibility for threat prevention and maintenance of public order to the 16 states and their governments, which had to implement the provisions of the IfSG and to determine the type and scope of the required measures.
The authorities responsible for measures are determined by ordinance of the Länder governments, unless there is a Land law regulation (§ 54 I IfSG). Ordinances (Rechtsverordnungen) of the Länder governments to prevent the spread of infectious diseases are issued on the basis of § 32 IfSG and have state-wide effect. Lower administrative authorities, the cities and municipalities, issue general orders (Allgemeinverfügungen) on the basis of Paragraph 28 IfSG. This means that a multitude of Land and local authorities are performing tasks under the IfSG.
On March 27, 2020, the federal Infection Protection Act was revised as a part of the massive legislative "corona crisis package“ (the Act for protecting the Population in the Event of an Epidemic Situation of National Importance containing amendments to several existing laws). In addition to measures to mitigate the consequences of the pandemic, these amendments also aimed at expanding the competencies of the federal government.
On the same day with the same legal act and effect on April 28, 2020, the Bundestag declared a national emergency in case of the "epidemic situation of national significance“ (§ 5 I IfSG) and authorized the Ministry of Health under the revised provisions to restrict cross-border-traffic and check identity and health at the borders (§ 5 II lit. 1, 2 IfSG). Measures to ensure the supply of medicines, medicinal products, medical devices, desinfectants, products for laboratory diagnostics or measures to strengthen human resources in the health sector can be regulated by ordinance of the ministry of health; ordinances can allow exceptions to sub-statutory health care provisions to ensure health care. Ordinances and orders issued pursuant to § 5 II IfSG shall be effective until the statement of the epidemic situation has been lifted, but shall expire no later than March 31, 2021, at the latest (§ 5 IV IfSG).
Two Länder parliaments (Landtage) adopted additional legal acts. The Bavarian Landtag passed already on March 25, 2020, an Infection Protection Act (Bayerisches Infek-tionsschutzgesetz, BayIfSG). North-Rhine-Westphalia followed on May 21, 2020 with the Infection and Powers Act (Infektions- und Befugnisgesetz, IfSBG NRW).
Before, already on March 16, 2020, the Bavarian Ministry for Internal Affairs, Sport and Integration had declared a state of disaster throughout its entire territory on the basis of § 4 of the Bavarian Disaster Protection Act. After the North-Rhine-Westphalian parliament had passed the IfSBG NRW as a part of a legislative package (“Act to deal with the Covid-19 pandemic in North-Rhine-Westphalia consistently and in solidarity and to adapt state law to the effects of the pandemic”) on 14 April 2020, the Landtag declared an epidemic situation throughout its entire territory for two months on the base of this act.
In most Disaster Protection Acts of the 16 states the disaster is also dealt with by the official determination of the entry and the end of the disaster described. These declarations are merely symbolic and the outward announcement that the authority has determined the disaster case. The measures taken to fight Covid-19 are based on the federal IfSG and legal acts of the states.
According to Article 80 of the Basic Law the Government, a Minister or the Land governments may be authorized by statute to issue ordinances. The content, purpose, and scope of the authorization so conferred must be laid down in the statute concerned. This legal basis has to be stated in the ordinance. Where a statute provides that such authorization may be delegated, such delegation requires another ordinance.
Restrictions must be carried out in accordance with the law. Furthermore, every restriction of fundamental rights must comply with the principle of proportionality derived from the Rechtsstaatsprinzip. Legislators, authorities and courts have to carry out an individualised evaluation of the particular situation. The limitation or restriction must be strictly necessary to achieve a legitimate objective, based on scientific evidence, must be proportionate to achieve that objective, neither arbitrary nor discriminatory in application, of limited duration, respect-ful of human dignity, and subject to review. So on the one hand, the freedoms affected by the measures to combat Covid-19 must be safeguarded, on the other hand, the state has to ob-serve the fundamental right to life and physical integrity (Article 2 II 1 Basic Law) – itself a core fundamental rights obligation – which imposes the duty to protect on the state. This means that the state has to take all suitable, necessary and appropriate measures in order to fulfil its duty to protect the population. If type and extent of the crisis are not clear there is scope for the legislative and the executive to assess both the extent of the crises and the suitability and necessity of the security measure. The greater the dangers to life and health of the population, the more comprehensive and massive restrictions may be. So far, German courts have considered the restrictions as adequate in most cases. The urgent need to save lives would justify restrictions on other rights, such as the freedom of movement and of assembly or the freedom of religion. However, the restrictions have to be checked regularly. Once the exceptional circumstances change the emergency measures have to be reduced or lifted (see Q14).
Wide-ranging measures interfering with fundamental rights of the Basic Law for the Federal Republic of Germany (GG) were put in place by Länder governments, cities and municipalities and vary in form and duration. The Federal Chancellor and the heads of government of the federal states agreed on guidelines for joint action.
However, planned actions were implemented differently and at different speed by the Länder. The actions amount to an interference with those mentioned below fundamental rights of the Basic Law (GG); it is not un-common for a measure to affect simultaneously several fundamental rights.
For example, those measures y affect the right to free development of personality (Article 2 I GG): since March 16, 2020, travel restrictions have been imposed by ordinances and general orders of the Länder and local units on the base of an order from the federal Interior Minister. Travelers are not allowed to enter and exit without a valid reason. The ban initially only affected risk countries designated by the Robert Koch institute, and later all countries. The prohibitions on contact which limit gatherings in public space of more than two people, the obligation to keep a distance of 1,5 m and to wear masks, particularly in shops and public transport, may arguably be seen as interfering with the right to free development of the personality. The transmissions of health data or the compulsory introduction of “corona-apps” for the identification of high-risk contacts (which is being discussed but not actually implemented) amount to an interference with the right to informational self-determination.
The freedom of the person (Article 2 II 2 GG) was affected: persons with symptoms suspected of or confirmed to be infected with Covid-19 and their contacts as well as return travellers are obliged to stay at home for a limited time while some essential activities (shopping for food) are still allowed.
The right of equality before the law (Article 3 I GG): Closing down schools and kin-dergardens for most, but not all children, affects the right to equality before the law. The same applies to the distinction between essential and non-essential businesses or small and large stores according to sales area when deciding whether to close or to reo-pen business.
The freedom of religion (Article 4 I GG): Since event and assembly bans also apply to religious communities they are associated with an infringement of the freedom of religion.
The protection of marriage and family (Article 6 I GG): general movement re-strictions and the restriction of visits of family members in closed institutional settings such as retirement homes, hospitals including the limitation of the access to the delivery room for expectant fathers mean grave infringements of family life.
The freedom of assembly (Article 8 I GG): Most Länder first banned all gatherings of more than two individuals who do not live in the same household; later assemblies were again permitted with certain limits in compliance with the prescribed social distance requirements.
The freedom of movement (Article 11 I GG): This basic right was infringed, for example, by the prohibition to enter the Land of Mecklenburg-Pommerania for people without a first place of residence in this country. The ban of the transport of people without first place of residence on the North Sea Islands in Lower Saxony or the pro-hibition of travel for touristic purposes to Schleswig-Holstein have the same effect. Problematic from the point of view of freedom of movement is also the prohibition to visit people in institutional settings (hospitals, nursing homes, pensioner’s homes, prisons, refugee camps).
The occupational freedom (Article 12 I GG): Closing non-essential businesses, cultural and educational institutions, social and physical distancing measures at workplaces amount an interference with the occupational freedom.
The right to property (Article 14 I GG): Business closures that result in large financial damage or even in the loss of the business or the restriction of the use of second homes as the result of travel restrictions interfere with the right to property.
But these fundamental rights are not absolute; according to the Basic Law the exercise can be limited for valid reasons including public health emergencies.
General orders (Allgemeinverfügungen) to protect people from the risk of infection apply to everyone and not just to persons who have been infected or who are suspected of being infected. According to the revised § 5 II IfSG, federal authorities may also issue ordinances and orders. But this authorization is limited; it is valid for the period of ascertainment of the epidemic situation of national signifi-cance and expires on March 31, 2021 at the latest.
On March 25, 2020 the Rules of Procedure were changed to ensure functioning amid the pandemic. These rules will remain in effect until September 20, 2020, unless the Bundestag decides to repeal them earlier. For example, the quorum was reduced from a majority of half of the members’ of the Bundestag physical presence to adopt a law or make any other decision to a majority of one quarter of the members. Committees may decide when more than a quarter of their members are either physically present or participate remotely through electronic means. Committees may vote remotely by use of electronic means in derogation from the rule that voting takes place in person either by a show of hands or by standing up or remaining seated. Committee deliberations and hearing sessions that are open to the public may ensure public participation by providing access through electronic means only.
The German Federal Constitutional Court (BVerfG), the Länder constitutional courts and the administrative courts in the Länder have been and are receiving many applications against Covid-19 measures. Some have been lifted, most have not (see Q14).
Restrictions based on orders and general orders of local authorities can be lodged with the administrative courts according to § 40 Administrative Court Act (Verwaltungsgerichtsordnung, VwGO). Restrictions on the bases of ordinances of the Länder, which were issued according to §§ 28 I, 32 IfSG may be appealed in the course of the administrative judicial norm-control according to § 47 I No. 2 VwGO. The higher administrative courts decide on applications for an interim order pursuant to § 47 VI VwGO. The Federal Constitutional Court can also issue temporary orders if this is urgently required to avert serious disadvantages, to prevent impending violence or for any other reason for the common good (§ 32 I Federal Constitutional Court Act). In most Länder, affected natural and legal persons can also turn to the Länder constitutional court if a fundamental right guaranteed in the constitution of the Land has been infringed by a sovereign act of the Land. Mostly, the constitutional complaint is excluded from the Land constitutional court if the constitutional complaint has been or will be raised to the Federal Constitutional Court. If the appeal to the Land Constitutional Court is not subsidiary or limited to a certain object, the appellant has the choice.
Laws at the federal level mostly comprise a whole bundle of legal acts and concern various areas of law. The corona-related new legal acts or revised provisions provide extensive financial support for the health care system, the research network, for the Länder and the municipalities as well as individuals and companies affected by the corona-related restrictions. They provide temporary suspension of contractual and other obligations of individuals and companies that run into financial difficulties. They allow digital means to replace the personal presence, introduce other expedients to enable the work of authorities, extend the term of office of electoral bodies and much more.
The wide-ranging measures affecting human rights are primarily introduced by ordinances of the Länder or their governments on the bases of §§ 32, 28 I IfSG. The regulations of the largest Land of North-Rhine-Westphalia by population are mentioned here by way of example. They are largely issued by the Ministry for Labor, Health and Social Affairs. These ordinances are reviewed at short intervals and adapted to changing circumstances. Parliamentary acts, on the other hand, regulate the competences of the authorities as well as financial aid from the Land and other measures to mitigate the consequences of the epidemic that require amendments to the laws of the Land.
In the first weeks, due to the lack of uniform rules, cities and municipalities took temporary measures to curb the spread of the coronavirus by means of general orders – schools were closed, pupils and teachers quarantined, open-air events prohibited, restaurants, hotels, shops closed. With the adoption of uniform rules for the Land or the entire territory of Germany, these measures were for the most part superfluous and repealed before their validity expired.
Only 3 out of 33 applications to the federal constitutional court were at least partially successful. On April 29, 2020, the ban on gatherings of religious communities under the Lower Saxony Ordinance for Protection Against New Infections with the Corona Virus was suspended as it did not allow for exceptions in individual cases. The court considered the general prohibition without any possibility of allowing exceptions under specific conditions and requirements appropriate to the situation in individual cases and, if necessary, in coordination with the health authority, as disproportionate and incompatible with the freedom of belief guaranteed in Article 4 I GG. In principle, however, the constitutional court assessed the ban on church services as constitutional. Although the prohibition constitutes a substantial interference with the fundamental right, in view of the current situation, the right to worship together must be balanced against the dangers to life and limb that the state must protect in accordance with Article 2 II GG.
The freedom of assembly (Article 8 I GG) was the subject of a number of other proceedings. In two cases, the complainant's applications for legal protection were successful as the local authorities were instructed to decide on the admissibility of the assembly again. The local authorities, when deciding to grant an exemption from the assembly ban, did not see that the ordinances gave discretion. Since they had not made use of the discretion granted in the ordinances, they had not checked the specific circumstances of the individual situation and had not considered the further minimization of the infection risks. This duty to examine measures to minimize the infection risk applies not only to the organizer but also to the authority grant-ing the exception to the ban on the meeting.
All other requests that were directed against the ban on assembly, against single other measures, against several provisions of the ordinance of the Land or even against all the corona protection ordinances of the Länder were rejected by the constitutional court. The court points out that the protective measures are not disproportionate to such an extent that existing rules would have to be declared null and void in preliminary procedures. It was considered acceptable to temporarily interfere with the applicants’ rights in order to protect health and life others. This finding was, however, under the condition that the rules were adapted to changing circumstances.
The decisions of the constitutional courts and administrative courts of the Länder follow the same line. Here too, only a few applicants were successful. For example, the Saxon Constitutional Court has declared the prohibition of the Saxon Corona Protection Ordinance to reduce retail space to 800 square meters to be able to reopen the business as an infringement of the principle of equality in the Saxonian Constitution. However, the court decided not to suspend the ordinance, as it already expired on March 3, 2020. In Mecklenburg-Pomerania, the Higher Administrative Court qualified the temporary ban on day trips to the Baltic Sea islands and places on the Baltic Sea as a disproportionate interference with the fundamental right to free-dom of the person (Article 2 II 2 GG). The ban on entry to Mecklenburg-Pomerania and the obligation to leave the Land for people without a first place of residence in Mecklenburg-Pomerania, on the other hand, was judged to be proportionate in view of the current situation on the basis of a summary review in the preliminary procedure. Complaints from second home owners and a hunting tenant in this regard were unsuccessful.