German Health Minister Jens Spahn has proposed that Germany lets its ‘pandemic emergency powers’ expire in November, citing the vaccination rate which means there is a reduced risk of Covid to the vaccinated population.
A nationwide Covid-19 state of emergency, which is a special clause in the German constitution, allows the federal and state governments to order measures without the approval of parliaments. In March 2020, the Bundestag first declared an “epidemic situation of national scope” and has extended it regularly ever since.
The decision on whether to extend the state of emergency after November 25th lies with the Bundestag who will vote on it.
Why is there an ‘epidemic situation of national importance’ in the first place?
Infection control is a matter for the states. But when the pandemic hit in 2020, it was decided that the crisis should ultimately be managed by the federal government.
It can come into force “if there is a serious danger to public health in the entire Federal Republic of Germany”.The law also specifies that concrete measures can be taken “to prevent the spread of Covid-19” for the duration of the determination of such a situation.
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What does the ‘state of emergency’ have to do with my everyday life?
In the course of the crisis, the Infection Protection Act has been amended several times. In the process, specific Covid measures have been added, which can be ordered directly by the states if an “epidemic situation of national scope” applies.
These include things like: the obligation to wear a mask, distance and contact rules, event bans or restrictions, closures, lockdowns and Covid pass (3G or 2G) entry rules to indoor spaces.
So this determines how people in Germany live their lives including how they travel on public transport, visit a restaurant or attend their workplace.
If the emergency situation ends, do restrictions stop?
That’s not likely. Although the special protective measures listed in the Infection Protection Act would technically cease to apply when there is no longer a crisis situation, it doesn’t mean the restrictions would disappear. That’s because Germany’s 16 federal states will step in.
“The federal states, which are responsible for this anyway, can continue to use the powers if the state parliaments decide so,” administrative law expert Hinnerk Wißmann from the University of Münster, who has advised the Bundestag on the subject in the past, told Focus Online.
Section 28a(7) of the Infection Protection Act explicitly gives the Länder (states) the power to continue to apply Covid measures even after an “epidemic situation” has ended, if their parliament votes in favour.
German state leaders met this week to discuss a uniform approach going forward.
In a draft paper agreed by state leaders, they insist that the standards practised indoors – such as the so-called 3G or 2G rules, mandatory masks, distance and regular ventilation – are also fundamentally needed in the autumn and winter months.
So they want to ensure that protective measures stay in place within a legal framework if the nationwide emergency Covid state is lifted next month.
And it’s not surprising: Germany is seeing a spike in Covid cases, with health experts warning about the winter.
Bavarian health minister Klaus Holetschek, for instance, warned that Germany had to avoid suddenly losing the legal basis for Covid rules “because with a view to possibly increasing infection figures in winter, we will continue to need protective measures”.
So what impact will ending the federal Covid emergency have?
Largely what we’ve seen so far is the state governments have regularly updated and adapted their Covid regulations which have been based on decisions by the federal government, or between Chancellor Angela Merkel and the heads of states.
If the state parliaments join in the decision-making process, the path to approval will become longer, and nationwide coordination will get even more difficult.
We have seen in the past how states have gone their own way on interpreting Covid rules – even within the framework of the current setup.
So if German states have more power in deciding Covid measures then we will probably see a very varied patchwork of rules pop up across Germany.
That means there will likely not be a UK-style “freedom day” when all Covid measures are lifted. The measures will probably be lifted in dribs and drabs and vary regionally as we move towards spring – and hopefully the end of the pandemic situation as experts have predicted.
Is it time to lift the measures?
That very much depends on who you talk to. Some countries – like England – have removed almost all Covid measures. But they admit that they are struggling with high cases.
Lots of German medics and scientists say restrictions should continue until at least spring 2022.
The Social Democrat’s health expert Karl Lauterbach said: “No federal state would be crazy enough to forego entry restrictions to indoor areas, or to bury the mask requirement on buses and trains given the current case numbers.”
Uwe Janssens, former president of the German Interdisciplinary Association for Intensive and Emergency Medicine (DIVI), said Spahn’s proposal could be taken the wrong way by people in Germany, who might think the pandemic is over.
“This is a signal that could be misunderstood by the population as ‘freedom day’ through the back door,” said Janssens.