German Covid-19 laws aim to balance freedoms and containment

The change in the law comes in light of growing scrutiny of the proportionality of restrictions on personal freedoms in Germany, said Dr. Nils Rauer of Pinsent Masons, the law firm behind Out-Law.

Rauer said: "The amendments have been criticised for allowing the government to further limit individuals' constitutional rights and freedoms. However, authorities will now not only have to consider whether the restrictive measures are necessary for containing the pandemic, but also formally take into account the fundamental rights the measures would impinge on when assessing their proportionality. "It is therefore fair to say that in the same way as the new law allows restrictions, it also strengthens individuals’ rights."

Rauer was commenting after both the Bundestag and the Bundesrat, Germany's two houses of parliament, voted to approve the so-called 'Third law to protect the population in the event of an epidemic situation of national importance' on Wednesday evening, following hours of debate in both chambers. The new laws have been signed by the German president and will have effect after they are published in the country's public gazette, the Bundesgesetzesblatt.

"The Bill is meant to amend several already enacted provisions dealing with the containment of the Covid-19 pandemic," Rauer said. "Notably, the German Infection Protection Act is at the core of the legislative changes. The main purpose of the new law is to effectively and adequately fight the pandemic while at the same time preserving the highest level of personal freedoms of the German people. To achieve this, a new catalogue of measures to choose from proportionally is included. These measures may be taken based on a strict reasonableness test. Local as well as regional authorities need to balance and take into account the respective level of infection rates at the time being and the circumstances of the very matter at issue."

In Germany, like in many other European countries, the number of cases of Covid-19 infection has increased in recent weeks. This has given rise to the fear that Germany's public health system would be overwhelmed during the winter period unless action to quell the continued spread of the virus was taken.

At the end of October, the heads of federal states within Germany, in cooperation with German central government in Berlin, ordered a partial lockdown for the whole of Germany until at least early December. Rauer said that the measures have resulted in a slow down of public life, though not to the extent seen in other areas of the world. The authorities are currently evaluating whether the measures are serving their purpose.

Rauer said: "The measures imposed to contain the spread of Covid-19 over the past months have come in for judicial scrutiny. Several German courts have lifted individual administrative measures due to a lack of adequate legislative authorisation. The measures were held to be a violation of the principle of proportionality, with personal rights seen to be infringed with due to the lack of adequate balancing of interests. This prompted calls for German legislators to provide legal certainty and offer guidance to administrative bodies on how they can reach their individual decisions on any restrictive measures."

"Many state and federal parliamentarians in Germany believe they have not been sufficiently involved in the decision making processes that took place in the past, so the debate about where to draw the line between executive competence and the need for legislative measures is likely to continue. It is against this background that the newly introduced measures will be tested and reviewed in the weeks to come. Courts will yet again play their part in this," Rauer said.