Germany – a federal executive power grab?

Germany – a federal executive power grab?

By Stefan Theil (Bonavero Institute of Human Rights)

The German Infectious Diseases Protection Act (Infektionsschutzgesetz – IDPA) is the primary federal statute regulating the fight against covid-19 in Germany. The Act has been recently amended to provide the federal government with a greater role in enforcement and expanded its authority to pass delegated legislation without the consent of the Bundesrat. The Bundesrat is representative body of the German states at the federal level whose consent is ordinarily required before any law can be enacted or amended that impacts on the state sphere of competence. This post provides an overview of the IDPA framework and highlight some initial preliminary rulings from German courts, most notably from the Constitutional Court, before turning to assessing the constitutionality of the newfound powers of the federal executive.

Infectious Diseases Protection Act

The IDPA empowers competent authorities to adopt measures ranging from monitoring to preventative and repressive measures: these include bans on public gatherings, quarantine measures and restrictions on free movement, prohibitions on individual professional activities, and closing of public facilities such as day care centres, schools and educational facilities, care homes and vacation camps (see §§ 29 – 33 IDPA). Measures can generally be directed against infected persons, suspected cases, and those who are asymptomatic carriers, but also the general public. This is achieved through administrative acts directed at individuals, decisions of general application (Allgemeinverfügung) directed at an indeterminate, but discrete group of individuals (for instance the would-be audience of a rock concert) and general delegated legislation that addresses and imposes duties on the public as such (§ 32 IDPA). A general clause further permits any other measures necessary (§ 28 IDPA) but is generally thought to provide an insufficient legal basis for measures that are significantly broader than enumerated examples: most notably with respect to the persons covered and the impact on fundamental rights.

The initial appeal for authorities in passing measures under § 28 IDPA was that these measures could be enforced by way of a decision of general application, and hence only be legally challenged on an individual by individual basis: in other words, a potentially adverse court ruling against measures adopted under § 28 IDPA impacts its legal validity only with respect to the individual bringing the case, but leaves it intact with respect to the wider public. By contrast, legal challenges against delegated legislation adopted under § 32 IDPA affect the legal validity beyond the parties to the case. In that vein, the law expressly permits limitations of fundamental rights, notably freedom of assembly, freedom of movement, and inviolability of the home (§ 28 para 1 and § 32). Nonetheless, concerns have been raised whether the broad range of lockdown measures can be based on these provisions, especially in light of their far-reaching fundamental rights implications. So far, however, courts have generally upheld the imposed lockdown measures.

Preliminary court decisions

The Munich administrative court first held that § 28 IDPA cannot support a general prohibition on leaving home without a proper excuse and the social distancing rules that are now the norm across Germany. Instead, competent authorities must enact delegated legislation under § 32 IDPA to achieve these outcomes. Regional administrative courts, for instance in Berlin, have generally upheld the measures adopted under delegated legislation in preliminary rulings: for instance, restrictions on care home visitation, religious services and gatherings and limitations on professional services offered by lawyers.

A notable counter-example comes from the Upper Administrative Court of Mecklenburg Western Pomerania, which in a preliminary ruling quashed a prohibition on touristic travel to the Baltic sea resorts for residents of the state. The Court was not convinced that the restrictions would prevent large gatherings of people and hence failed the reasonable test of the proportionality assessment. Moreover, significant regions, including the capital of the state Schwerin was exempted from the restriction. Finally, the applicant had convincingly argued that barring out of state tourists from visiting left sufficient space for effective social distancing.

A request for a preliminary injunction from the Federal Constitutional Court against delegated legislation enacted by the state of Berlin pursuant to § 32 IDPA was also dismissed on procedural grounds. The Constitutional Court determined that the applicant had failed to exhaust the available administrative court remedies to challenge the restrictions on free assembly and social distancing. The fact that the Berlin delegated legislation provides for fines and enforcement mechanisms alone was insufficient to substantiate a violation of fundamental rights, as the applicant could have sought a declaratory ruling from lower courts.

A challenge against the delegated legislation enacted by Bavaria was rejected based on the harm assessment conventionally adopted by the Constitutional Court. The test emphasises and evaluates the potential harm to fundamental rights if no interim order is passed versus the harm caused if an interim measure is adopted. On this basis, the Court was not convinced that the harm to the applicant’s freedoms outweighed the risks to life and health of others. The Court likewise rejected an application seeking permission to hold a protest against the lockdown in Munich. However, in a regional twist, the Higher Bavarian Administrative Court ultimately permitted the protest to go forward, reasoning that the city of Munich made errors in the exercise of its statutory discretion.

Finally, the Constitutional Court recently upheld in a preliminary ruling the ban enacted by the state of Hessia on religious services, affecting a catholic applicant wishing to attend Easter mass. The Court found a particularly significant infringement of the applicant’s fundamental rights to practice their religious beliefs, but ultimately concluded that the mass gathering would constitute a severe threat for the life and health of the public. On balance, therefore, the ban was upheld on the basis of the aforementioned balancing of harms. However, the decision emphasised that the periodic reviews ensured by the sunset clauses contained in the delegated legislation were crucial to this finding.

Naturally, the eventual outcome of these cases cannot be determined based on the decision to deny injunctive relief. The Constitutional Court in particular has indicated that it will subject delegated legislation to in-depth scrutiny during the main proceedings. In the short-term however, this means that the measures are likely to endure, which arguably extends to the new powers of the federal executive under IDPA.

Enforcement

Although the IDPA is a federal statute, the role of the Federal government in its enforcement and implementation is limited. In response to covid-19 the IDPA has been amended, providing the Federal Minister of Health with novel powers that they can exercise when and if the Bundestag (German Parliament) declares a ‘national pandemic state of emergency’ (§ 5 para 2, number 1).

Ultimately, the Federal Minister is only accountable to the Federal Chancellor for the exercise of these powers pursuant to Article 64 Basic Law, which contains the power of the Chancellor to seek the dismissal of a Minister from the Federal President. The Chancellor, in turn, is responsible to the Bundestag and may be removed through a so-called constructive vote of no-confidence: a majority of MPs withdraw their confidence from the Chancellor and successfully vote an alternative candidate into power. The process hence does not typically lead to a general election, an example of the German constitutional hesitance to dissolve the Bundestag.

Most of these powers appear sensible in principle, but all require further scrutiny because they give significant powers to the federal executive, notably the Federal Minister for Health.

First, the Minister is empowered to require individuals returning from overseas travel to provide health related information and submit to examination. Individuals who fail to comply face fines of up to 25,000 Euros. This provision departs from the otherwise state focused enforcement and implementation of IDPA and has been viewed as incompatible with Article 83 of the Basic Law. Article 83 Basic Law provides for the exclusive competence of the Länder in enforcing federal law. Hence, the implementation of IDPA falls to the Länder and by extension local authorities, not the Federal government. Any exceptions would require an express constitutional provision and, in this case, likely a constitutional amendment.

Second, the Federal Minister is empowered to provide exemptions from IDPA rules and delegated legislation passed on this basis at their discretion without the consent of the Bundesrat (§5 para 2, number 3). The provision is problematic from a constitutional perspective because it effectively side-lines the states in the legislative process and concentrates power in the federal executive in a manner that the Basic Law generally does not permit. However, it is worth mentioning in this context that measures and delegated legislation adopted under these provisions are subject to a sunset clause and explore when the pandemic is declared over, or at the latest on 21 March 2021 (§ 5 para 4).

The Federal Minister is also empowered to provide for exemptions from a swathe of statutes through delegated legislation without scrutiny through the Bundesrat: this notably includes the Medicinal Products Act, Narcotics Act, Pharmacy Act and volume five of the Social Security Act, as well as delegated legislation enacted on this basis. Chiefly, the exemptions are permitted in the interest of safeguarding the supply of medical equipment and supplies as well as securing the continued operation of health care and social care system (§5 para 2, numbers 4 – 8).

Both of these provisions are problematic because Article 80 para 1 of the Basic Law expressly only permits specifications of statutory provisions through delegated legislation, not providing exemptions for unspecified provisions without parliamentary oversight: in short, the constitution does not generally permit delegated legislation to deviate from their statutory basis, nor provide exemptions from statutory provisions.

Both of the identified constitutional issues with respect to Article 80 and 83 of the Basic Law would render the changes to IDPA unconstitutional, notwithstanding that their substance may be desirable to effectively tackle the current crisis. IDPA has not yet been challenged as such through judicial review, and no delegated legislation has thus far been enacted by the federal executive under its newly introduced powers. However, when this does occur, the reluctance of courts to grant injunctive relief against measures adopted by local authorities indicate that it is unlikely the reforms would be disapplied pending a full hearing.