Germany’s SPD wants ‘new legal basis’ for winter Covid rules

As Germany mulls lifting its pandemic emergency powers in November, the Social Democrats (SPD) are in talks with their potential coalition partners to enshrine Covid protection measures in law.

A sign on a shop window informs visitors to wear masks
A sign on a shop window informs visitors that masks are mandatory. Photo: picture alliance/dpa/dpa-Zentralbild | Robert Michael

The ‘pandemic state of emergency’, which is due to expire on November 25th, has until now been the basis of measures such as mandatory mask-wearing and social distancing on a federal level.

Through a special clause in the German constitution, these special powers allow the federal and state governments to order anti-Covid measures without the approval of parliaments.

With talks underway about letting this legislation expire, the Social Democrats (SPD) are speaking with possible future coalition partners about placing new Covid regulations in the Infection Protection Act, SPD parliamentary party leader Rolf Mützenich confirmed on Monday.

As of Monday, Germany’s 7-day incidence of Covid infections had jumped to 110 per 100,000 people – an increase of around 60 percent on the previous week’s figure of 74.4. 

In comments made before parliamentary group meeting, Mützenich referred to Germany’s spiralling infection rates, but said the SPD would not be aiming to extend the “epidemic situation of national importance” by another three months.

Instead, the centre-left party want to introduce new regulations as part of the Infection Protection Act that would enable the states to respond to these challenges in the future, he said. 


Furthermore, the Infection Protection Act should also be amended in other places during the next legislative period, Mützenich explained. The pandemic has shown that there is a “need for improvement” in the country’s infection protection regulations.

Ralph Brinkhaus, leader of the CDU/CSU parliamentary group, said that the CDU/CSU would discuss how to proceed and still had to gather information before deciding on whether to scrap the pandemic emergency powers or replace them.

He pointed out that from Tuesday onwards, the CDU/CSU and SPD government is only in office in a caretaker capacity until a new coalition government is formed. The SPD is currently in talks with the Free Democrats (FDP) and Greens to form a new ‘traffic light’ coalition, named after each of the party’s colours.

Ralf Brinkhaus, head of CDU parliamentary group
Ralph Brinkhaus, head of the CDU parliamentary group, gives a statement ahead of a parliamentary meeting on October 25th, 2021. Photo: picture alliance/dpa | Michael Kappeler

That means the ball is now in the court of the ‘traffic light’ to decide on a new legal basis for Covid rules, Brinkhaus said. However, he said, the CDU/CSU would not refuse to engage in good talks in the interest of infection control.

The Bundestag first declared an “epidemic situation of national importance” in March 2020 and has extended it regularly ever since. It last extended the legislation for another three months at the end of August.

It will automatically expire at the end of November if the Bundestag does not vote to extend it again. According to the current Infection Protection Act, the epidemic situation clause is a basis for new laws such as mandatory masks, social distancing, contact restrictions Covid health pass entry rules or vaccine procurement.

Federal Health Minister Jens Spahn (CDU) has recently called for the “epidemic situation” to expire, though he wants protective measures like the Covid health pass and wearing masks to continue throughout autumn and winter.

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Bavaria signals end to compulsory masks on public transport

Bavaria's state premier Markus Söder (CSU) has announced plans for a "prompt" end to mandatory masks on buses and trains.

Bavaria signals end to compulsory masks on public transport

If infection levels and hospitalisations remain low, the end of the mask-wearing rule could come as soon as December or January.

“We are convinced that the mask requirement in public transport could also be phased out either in mid-December or early next year, if the numbers remain reasonably stable and there are no new mutations,” Söder explained on Monday, following a meeting with the CSU executive committee. 

A decision on when to end the measure would be made “promptly”, he added.

The CSU politician had said last week that the sinking infection rates meant that compulsory masks were no longer appropriate and that the mandate could be changed to a recommendation. 

No set date for change

The latest version of Bavaria’s Infection Protection Act – which lays out an obligation to wear masks on public transport as one of the few remaining Covid rules – is currently due to expire on December 9th.

State ministers could decide whether to let obligatory masks on buses and trains lapse on this date as early as next week, or they could decide to initially extend the legislation and set an alternative date for ending the rule.

Regardless of their decision, FFP2 masks will continue to be mandatory on long-distance public transport until at least April next year, when the nationwide Infection Protection Act is due to expire.

READ ALSO: KEY POINTS: Germany’s new Covid-19 rules from October

Speaking to Süddeutsche Zeitung on Monday after the meeting of the Council of Ministers, Florian Herrmann (CSU), head of the State Chancellery, confirmed that Covid-19 had been discussed in passing.

However, no decisions or discussions were made on how to proceed after the expiry of the regulation, he said.

According to Herrmann, the fact that Covid was no longer the “dominant topic” in the cabinet under “enormous tension” shows “that we are returning to normality” in a gradual transition from pandemic to endemic. 

As of Wednesday, the 7-day incidence of Covid infections per 100,000 people stood at 108 in Bavaria, down from 111 the previous day. However, experts have cast doubt on how meaningful the incidence is in light of the fact that fewer people are taking tests.

Nevertheless, the 133 hospital beds occupied by Covid patients in the Free State falls well below the 600 threshold for a ‘red alert’. With Omicron causing less severe courses of illness than previous variants, politicians have increasingly focussed on hospitalisation statistics to gauge the severity of the situation.

‘A risk-benefit trade-off’

Bavaria is the second federal state to announce plans to relax its mask-wearing rules in recent weeks.

On November 14th, the northern state of Schleswig-Holstein announced that it would be ending obligatory FFP2 masks on public transport and urged other states to do the same. From January 2023, masks on public transport will only be recommended rather than mandated for passengers on local buses and trains. 

However, the Federal Ministry of Health has urged states not to loosen their rules too quickly.

Given that infection rates are likely to spike again in winter, “there’s no basis for loosening restrictions”, said Health Minister Karl Lauterbach (SPD).

Physicians are also split on whether an end to masks on public transport is appropriate.

READ ALSO: Will Germany get rid of masks on public transport?

Health Minister Karl Lauterbach

Health Minister Karl Lauterbach (SPD) speaks at the German Hospital Day in Düsseldorf on November 14th. Lauterbach is against the lifting of the mask-wearing rule. Photo: picture alliance/dpa | Roberto Pfeil

Christoph Spinner, a virologist at the University Hospital in Munich, told Süddeutsche Zeitung he believed it was time to put the decision on mask-wearing back into the hands of individuals.

“Why not? The incidences are low, the danger of Covid-19 has dropped significantly and mortality has also decreased,” he said. 

But the Bavarian General Practitioners’ Association spoke out against the move, arguing that – unlike a trip to a restaurant or cinema – people often have no choice but to travel on public transport.

“If the obligation to wear a mask in public transport is maintained, this will help to protect against a Covid infection on the way to work by bus or train – especially in view of the discontinuation of the obligation to isolate in the event of a Covid infection,” they explained.

Bavaria is one of four states to have recently ended mandatory isolation for people who test positive for Covid. Baden-Württemberg and Schleswig-Holstein both scrapped their isolation mandate last week, while Hesse removed its obligation on Tuesday. 

READ ALSO: Four German states call for end to mandatory Covid isolation