“Wave-breaker” shutdown in effect

The German federal government’s “wave-breaker” shutdown from 28 October 2020 with its new coronavirus protection measures has been in effect since 2 November 2020. However, courts are increasingly calling into question the viability of the legal basis for this. On 6 November 2020, the federal government is submitting new legislation to the Bundestag to provide a new legal basis for protective measures to combat the coronavirus.

Subject of the new provisions

The new provisions to protect against the coronavirus include contact restrictions in public and sweeping closures, especially in the gastronomy and tourist accommodation sectors but also including recreational facilities, events and sports facilities. Retail shops are permitted to remain open with restrictions on the number of customers in a shop at any given time. In contrast to the beginning of the pandemic, when enterprises had to close down, the new regulations provide for financial help of up to EUR 10 billion for businesses, self-employed persons and clubs/associations that are hit particularly hard by the new rules. Businesses with up to 50 employees will receive compensation amounting to 75% of their revenue in the same month last year; the compensation for larger companies will be calculated based on the maximum amount of the applicable State aid rules.

Doubts increasing as to the viability of the authorisation to issue ordinances

While the courts affirmed the legality of the vast majority of the protective measures against the coronavirus at the beginning of the pandemic, they started to set stricter standards later. For most courts, a decisive factor was whether there was proof that the specific activities that were restricted by the government’s measures contributed to infections. Several courts have recently abandoned this approach because of the rapid and wide-spread increase in coronavirus cases, due to which it is no longer possible to trace the paths and identify the places of infection. The courts’ assessment of the new rules remains to be seen.

However, doubts are increasing as to the viability of the authorisation to issue ordinances (sections 28 and 32 German Act on Protection from Infection (Infection Protection Act - IPA)), which provide the basis for the protective measures against the coronavirus. In two recent accelerated decisions, the Bavarian Higher Administrative Court (29 October 2020, case no. 20 NE 20.2360) and Mainz Administrative Court (1 November 2020, case no. 1 L 843/20.MZ) first upheld current protective measures against the coronavirus while explicitly expressing doubt as to whether the measures still satisfy the constitutional requirements placed on authorisation to issue ordinances (article 80(a) German Basic Law). Up to then, courts had held that sections 28 and 32 IPA did satisfy these requirements (e.g.: Berlin Administrative Court (VG Berlin), 15 October 2020, case no. 14 L 422/20; Saarland Higher Administrative Court (OVG Saarland), 3 June 2020, case no. 2 B 201/20).

The Bavarian Higher Administrative Court and Mainz Administrative Court are now emphasising the significance of the time component in this context. The Bavarian Higher Administrative Court has found that the local hotspot strategy is a regulation that is not limited in time. In contrast, Mainz Administrative Court focuses primarily on the duration of the pandemic itself and has stated that the requirements that necessitate parliamentary approval according to Art. 80(1) Basic Law become stricter as the protective measures become longer and more severe.

New legislative proposal for protective measures against the coronavirus in the Bundestag

On 6 November 2020, the German federal government submits to the Bundestag an amendment to the IPA for reasons including the public discussion of more involvement by parliament. The amendment provides in particular for creating a new section 28a IPA as a legal basis for special protective measures to combat the novel coronavirus SARS-CoV-2. This new section adds specifics to section 28 IPA and includes a detailed catalogue of measures that can be taken when the Bundestag has declared that an epidemic situation of national magnitude exists (section 5(1) IPA). These include contact restrictions, mandatory face masks, business closures, travel restrictions and ordinances on processing contact data in order to trace infection chains. In addition, section 28a(2) provides that the protective measures are to be adapted to correspond to the local infection situation in the German districts (Landkreise), regions (Bezirke) or independent cities. This new legislation is very likely to clear the rising doubts as to authority to issue ordinances. The law can be expected to pass quickly.