unizeit Schriftzug

The virus and proportionality

The longer the restrictions are in place due to the coronavirus pandemic, the more the legal dimension comes into focus. How far may the state may go?

Closed playground
© Christin Beeck, Uni Kiel

All playgrounds were closed during the first weeks of the pandemic as a precautionary measure.

On 10 March 2020, the first steps were taken to curb the coronavirus pandemic in Germany, by authorities in North Rhine-Westphalia. Since the end of April, these have been reduced in gradual steps on a regional basis. This was made possible by scientific findings on the transfer of the novel coronavirus SARS-CoV-2, and the reduced reproduction number (R) of below 1.0: if the transmission of the virus is on average only from one person to another, the growth is linear, and thus more predictable than at an exponential growth rate above 1.0. Legally, the gradual easing of restrictions from the first phase is actually necessary.

Measures without a time limit are not possible for reasons of proportionality.

Florian Becker

"The responsible authorities must take cognisance of new scientific findings and react. They must consider whether less-stringent measures can also achieve the same objective," explained constitutional and administrative law expert Professor Florian Becker. Because a ban on contact and the closure of shops, restaurants and other establishments represent major restrictions to the fundamental rights of the citizens, which are anchored in the constitution. Among other things, these affect the fundamental rights to personal freedoms and physical integrity (Article 2), freedom of movement (Article 11), freedom of assembly (Article 8) as well as occupational freedom (Article 12). Limitations of these rights are permissible in terms of Paragraph 28 of the Infection Protection Act (IfSG). "The guiding principle for all measures which affect fundamental rights - be it closing shops or forbidding contact between people - is proportionality," said Becker.

By definition, this principle of proportionality means that all measures taken by the state must serve a legitimate public purpose, and also be appropriate, necessary and reasonable. "The state’s task during the coronavirus pandemic is to protect public health and the healthcare system. Here, there are different ways to accomplish this task, in the worst case by massive restrictions to fundamental rights," said the legal expert. Public safety law allows wide-ranging decisions to be made quickly, if it is not possible to wait. "Especially in a very uncertain situation and under high pressure, the measures ordered may be more restrictive, and based on less certain facts." He regards a curfew, which was widely called for at the start of the pandemic, to be an extreme solution in the legal sense. "Incidentally, this is not a clearly-defined legal concept, but rather a bundle of measures and exceptions permitted by the constitution. Such a decision is possible in cases of extreme danger to life and limb."

For all decisions, the following applies: "The time limit is an important element here. Measures without a time limit are not possible for reasons of proportionality," said Becker. The initial 14-day periods between the tightening or loosening of restrictions were precisely intended to follow this principle, and take into account the knowledge gained. However, new findings cannot be asserted retrospectively in court. "A court assesses the legality of measures for public safety from an ex-ante perspective, i.e. on the basis of the state of knowledge at the time the decision was made," explained the constitutional law expert.

Especially at the beginning, critics complained about the mechanisms of German federalism, in light of the deteriorating situation in neighbouring countries. They found the coordination meetings between the federal and state governments to be too slow-moving. Florian Becker does not share this assessment: "I believe that federalism and also the participation of local government represents a strong Germany during the coronavirus pandemic. In this way, it was and is possible to respond appropriately locally."

Author: Christin Beeck

Section 28 of the Infection Protection Act (IfSG)

"(1) If sick persons, suspected sick persons, suspected contagious persons or disease carriers are identified, or if it is determined that a deceased person was sick, suspected to be sick or a disease carrier, then the responsible authorities are entitled to take the necessary protective measures, […], insofar as and as long as it is necessary to prevent the spread of communicable diseases; […]. Under the conditions described in Clause 1, the responsible authorities may restrict or prohibit events or other gatherings of people, and close public swimming baths or other establishments referred to in Section 33, or parts thereof. […] The fundamental rights to personal freedoms (Article 2 (2) 2 GG), freedom of assembly (Article 8 GG), freedom of movement (Article 11 (1) GG) and inviolability of the home (Article 13 (1) GG) shall be restricted accordingly."

www.sozialgesetzbuch-sgb.de/ifsg/1.html