Davide Paris - Max Planck Institute for Comparative Public Law and International Law, Heidelberg

Name of the act/s*

§ 28 Infektionsschutzgesetz (IfSG) – Art. 28 of the Infection Protection Act, amended by Law of 27 March 2020

Subject area

Covid-19 measures

Brief description of the contents of the act

Following the amendment by Law of 27 March 2020, Art. 28 of the Infection Protection Act enables “the competent authorities” to oblige persons not to leave the place where they are located (or only under certain conditions) and not to enter specific places or public places.

Comment

To counter the current Covid-19 pandemic, Germany did not resort to the so-called “emergency constitution”, i.e. the constitutional framework set by the German Constitution itself to address external or internal emergencies. Measures to counter the spread of the Coronavirus were simply based on the Infection Protection Act (Infektionsschutzgesetz - IfSG). However, it was questionable whether the Infection Protection Act, in the version in force at the moment of the pandemic’s outbreak, provided for a solid legal basis for the adoption of all measures deemed necessary to effectively protect public health. Doubts arose, in particular, on whether a prohibition to leave the place of residence (Ausgangssperre) could be validly ordered under Art. 28 of the Infection Protection Act. In its version in force until 27 March 2020, that provision read: “the competent authorities […] can oblige persons not to leave the place where they are located […] until necessary protective measures have been taken”. This seemed unfit to cover a lasting ban to leave one’s house, also because the provision did not mention freedom of movement (Art. 11, para. 1 of the German Constitution) among the freedoms that could be restricted through these measures. Law of 27 March 2020 amended Art. 28 accordingly, repealing the reference to the temporary nature of such measures (“until necessary protective measures have been taken”) and explicitly mentioning freedom of movement among the freedoms that can be restricted. This was to comply in particular with Art. 19 of the German Constitution, which requires that “the law must specify the basic right affected and the Article in which it appears” when it restricts basic rights (so called Zitiergebot).     

Secondary sources/ doctrinal works (if any)

Further readings: L. Hering, Covid-19 and constitutional law: the case of Germany, in J.M. Serna de la Garza (ed.), Covid-19 and Constitutional Law, Universidad Nacional Autónoma de México, Mexico City, 2020, 149-156

*Act citation /year and number

§ 28 Infektionsschutzgesetz (IfSG), amended by Law of 27 March 2020 (BGBl. I S. 587)

Enacted by

German Bundestag

Official link to the text of the act

https://www.gesetze-im-internet.de/ifsg/

Name of the act/s*

Rule 126a) GOBT – Rules of Procedure of the German Bundestag (Geschäftsordnung Bundestag), amended by Bundestag decision of 25 March 2020

Subject area

Organization and working methods of the German Parliament

Brief description of the contents of the act

According to Rule 45, para. 1 GOBT, “a quorum of the Bundestag shall exist when more than one half of its Members are present in the Chamber”. If the lack of a quorum has been ascertained – in particular following a request by a parliamentary group or by five percent of the Member of the Bundestag – the President shall immediately terminate the sitting (Rule 45, para. 3). By way of derogation from Rule 45, para. 1, Rule 126a) GOBT provides that a quorum of the Bundestag shall exist “when more than one quarter of its Members are present in the Chamber”. This apply until 30 September 2020 but the Bundestag can repeal Rule 126a) at any time. Through its decision of 17 September 2020, the Bundestag extended this Rule’s application until 31 December 2020.     

Comment

As the title of the Rule makes clear, Rule 126a) provides for an “Extraordinary application of the Rules of Procedure in response to the general restrictions arising from Covid-19”. In particular, it allows the Parliament to validly work with a reduced number of members participating in the sitting, to avoid spreading the Covid-19 infection. In practice, given that the Bundestag consists of 709 members, the presence of 178 of them suffices. The provision also allows the use of electronic communications media for voting and adopting decisions in the Committees (para. 3). By contrast, it is considered that a constitutional amendment is necessary to allow the Bundestag to hold sessions and vote online.     

Secondary sources/ doctrinal works (if any)

Further readings: L. Hering, Covid-19 and constitutional law: the case of Germany, in J.M. Serna de la Garza (ed.), Covid-19 and Constitutional Law, Universidad Nacional Autónoma de México, Mexico City, 2020, 149-156

*Act citation /year and number

Bundestag decisions 25 March 2020 (BGBl. I S. 764) and 17 September 2020 (BGBl. I S. 2067)

Enacted by

German Bundestag

Official link to the text of the act

https://www.bundestag.de/parlament/aufgaben/rechtsgrundlagen/go_btg/go_btg-197104

https://www.bundestag.de/en/documents/legal

G. v. 18.05.2017 BGBl. I S. 1218 (Nr. 29) - Entry into force: 25 May 2017

The so-called Infrastructure fee law entered into force on 12 June 2015. However, its practical implementation has been put on hold until May 2017 due to an infringement procedure initiated by the EU Commission under Article 258 et seq. TFEU. An agreement on the changes necessary to ensure compliance with EU law has been reached in December 2016. The amendments made include the following:

- First, the Infrastructure fee law establishing the road fee was amended in order to allow for five different categories of vehicles (instead of three categories envisaged under the old scheme). This will provide the opportunity for a better differentiation of the road charge on the basis of environmental criteria. ‘The price of short-term vignettes – which are typically bought by foreign drivers – was reduced in relation to the annual rate. For the most environmentally friendly cars, a short-term vignette (for 10 days) costs only € 2.50, which is significantly less than € 5 originally proposed in 2015.

- Second, the vehicle tax is once again amended in order to ensure that the most environmentally friendly vehicles are given particularly favourable treatment in the annual vehicle tax’ (EU Commission, Press release 1 December 2016). In summary, environmentally friendly cars are now charged less and short term fees for foreign cars were reduced.

In light of these developments, the European Commission halted proceedings in February 2017, paving the way for the practical implementation of the law. However, the case will only be formally closed once the amending German legislation taking into account the Commission's legal concerns is adopted. This “compromise” between the Commission and the German government was subject to severe criticism by the European Parliament in a separate resolution because the most controversial aspect – the tax relief for German car owners – still exists. This ’inofficial political compromise’ (between Germany and the Commission) does not render the arrangement lawful – the task of deciding whether or not sth. is lawful is not up for the Commission to decide but rather for the ECJ under Article 19 EU.

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