Law to protect the population in the event of an epidemic situation of national concern

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Basic data
Title: Law to protect the population in the event of an epidemic situation of national concern
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74 para. 1 nos. 11, 12, 13, 19 and 19a GG
Legal matter: Infection protection law, social law , business law , construction law
Issued on: March 27, 2020
( BGBl. I p. 587 )
Entry into force on: 28./30. March 2020 (Art. 7 para. 1 and 2 G of March 27, 2020)
Expiry: January 1st / 1st April 2021 (Art. 7 para. 3 and 4 G of March 27, 2020)
GESTA : M037
Weblink: Text of the law
Please note the note on the applicable legal version.

The law for the protection of the population in the event of an epidemic situation of national scope of March 27, 2020 is an article law that was enacted in Germany on the occasion of the outbreak of the COVID-19 pandemic caused by the novel coronavirus SARS-CoV-2 .

The law changed the Infection Protection Act , the IGV Implementation Act , the Fifth Book of the Social Code - Statutory Health Insurance - (SGB V) and the Building Code . The changes apply partly for a limited time, partly for an unlimited period.

Amendment of the Infection Protection Act

In addition to the administrative competence of the federal states, the Federal Ministry of Health , in particular, is empowered to take basic medical care measures, including narcotics, medical devices, laboratory diagnostics and aids , by order or ordinance without the consent of the Federal Council , in the event of an epidemic emergency caused by a transmissible disease spreading across borders across the entire federal territory To hit items of personal protective equipment and products for disinfection as well as to strengthen human resources in the health care system ( Section 5 (2) No. 1–8 IfSG new version).

The powers only exist if the German Bundestag acc. Section 5 (1) IfSG establishes an “ epidemic situation of national importance”. The Bundestag also decides when this epidemic situation no longer exists, which is to be published in the Federal Law Gazette. A legal definition of this term does not exist. From the explanatory memorandum of the law, however, what is meant is the nationwide epidemic caused by the new coronavirus SARS-CoV-2, which cannot be countered at state level to a limited extent. In Art. 12 of the International Health Regulations there is only one definition for a health emergency of international scope .

The competencies of the Federal Ministry of Health come alongside the ongoing powers of the federal states.

Furthermore, the law allows members of health professions (nurses, geriatric nurses, nursing professionals and emergency paramedics) to perform medical activities if they are personally qualified to do so. This should relieve doctors during the epidemic (§ 5a IfSG new version). This “authorization to treat” also only exists as long as the epidemic situation of national importance lasts.

In addition, the compensation regulation of § 56 IfSG is extended to mitigate loss of earnings suffered by working custodians of children when they are unable to pursue their professional activity because facilities for the care of children or schools are temporarily closed due to official orders or their entry is temporarily prohibited is (§ 56 Abs. 1a IfSG new version, § 28 Abs. 1 Sentence 2, § 33 IfSG).

The law stipulates in Art. 7 Paragraphs 3 and 4 that the new competencies of the Federal Ministry of Health expire on April 1, 2021, the "treatment authorization" of nurses and emergency paramedics and the expansion of the compensation scheme as of January 1, 2021.

An application by the parliamentary group Die Linke to limit the new powers of the Federal Ministry of Health to September 30, 2020, did not find a majority in the German Bundestag.

The Federal Ministry of Health should submit an evaluation report to the German Bundestag by March 31, 2021 at the latest ( Section 4 (1a) IfSG new version)

Amendment of the IHR Implementing Act

In Section 12 (5a) of the Act for the Implementation of the International Health Regulations (IGV Implementation Act), a power is created in favor of the health authorities responsible according to Section 25 (1) IfSG, in order to obtain passenger data directly from the To determine the passenger data center according to the passenger data law .

Change to SGB V

In the case of cross-border projects in supply and health research in which public and non-public bodies of the federal and state governments are involved, processing of personal data is also permitted without the consent of the person concerned (Section 287a sentence 1 SGB V new version, Section 27 BDSG ). The bodies involved should designate a lead supervisory body in the sense of a “ one-stop shop ” for the protection of patient data (Section 287a sentence 2 SGB V new version).

Amendment of the Building Code

When approving systems for health purposes to supply people who have or may have been infected with the SARS-CoV-2 coronavirus, the planning law provisions of the building code can be used until the end of December 31, 2020 after hearing the municipality concerned (BauGB) are deviated from (§ 246b BauGB new version). The regulation ties in with already existing special facts in § 37 , § 246, Paragraph 14 of the BauGB and applies under the condition that the project could not be made available or could not be made available on time without the application of the possibility of derogation.

Identification of an epidemic situation of national importance

Immediately after the law was passed on March 25, 2020, the German Bundestag decided that "with the entry into force of Section 5 (1) sentence 1 of the Infection Protection Act due to the current spread of the new coronavirus (SARS-CoV-2) in Germany an epidemic situation of national scope ”exists. The members of the CDU / CSU, SPD, FDP and Alliance 90 / Greens voted for this decision. The MPs of the AfD and the Left abstained.

criticism

The constitutional lawyer Christoph Möllers criticized that on the basis of the law a single person, Federal Health Minister Jens Spahn, was allowed to enforce laws. The legal scholar Hans Michael Heinig warned of a "fascistoid-hysterical hygiene state". In contrast, the former President of the Federal Constitutional Court, Hans-Jürgen Papier , described the new regulation as “still in accordance with the constitution”.

The legal scholar Oliver Lepsius criticized the “special ordinance law” introduced in favor of Health Minister Spahn. Because of the fundamental legal relevance of the infection protection measures, it is imperative that the federal government, as a body, decide "because at least ministers are also represented in the cabinet whose tasks include the maintenance of other fundamental rights".

According to the assessment of the Scientific Service of the German Bundestag , the new authorizations to issue ordinances in Section 5 (2 ) IfSG are constitutionally problematic. They put a large part of the regulations of the Infection Protection Act at the disposition of the Federal Minister of Health. It is true that the “multifaceted facts” of infection protection and the possibly rapidly changing actual circumstances suggest that the broad and indefinite authorizations are constitutionally permissible. On the other hand, the Infection Protection Act allows significant interference with fundamental rights . In principle, the legislature must decide on this itself; he should not leave this to the executive ( see also: materiality theory ). Overall, therefore, “serious concerns” remain. The fact that the statutory ordinances may be issued without the consent of the Bundesrat - and thus without the involvement of the states - is in contradiction to Article 80, Paragraph 2 of the Basic Law and therefore meets with "considerable reservations".

Second law for the protection of the population in the event of an epidemic situation of national concern

With the second law for the protection of the population in the event of an epidemic situation of national scope of May 19, 2020, the regulations and measures taken in the law of March 27, 2020 are further developed and supplemented. The regulations in the Second Law are also partially limited in time.

See also

Web links

Individual evidence

  1. ^ Draft of a law for the protection of the population in an epidemic situation of national scope BT-Drs. 19/18111 of March 24, 2020, p. 15 ff.
  2. ↑ cf. Anika Klafki: New legal basis in the fight against Covid-19. The draft law to protect the population in the event of an epidemic of national concern. In: Verfassungsblog. March 25, 2020, accessed March 26, 2020 .
  3. ^ Draft of a law for the protection of the population in an epidemic situation of national scope BT-Drs. 19/18111 of March 24, 2020.
  4. ↑ Law for the Implementation of the International Health Regulations (2005) and for the amendment of other laws of March 21, 2013, Federal Law Gazette I p. 566
  5. ↑ BfDI is very critical of the federal draft law for the protection of the population in an epidemic situation of national scope. Virtual Data Protection Office , March 25, 2020.
  6. ^ Carlo Piltz: Draft law of the Ministry of Health: Determination of the lead data protection authority for research projects with several responsible parties March 23, 2020.
  7. ^ Draft of a law for the protection of the population in an epidemic situation of national scope BT-Drs. 19/18111 of March 24, 2020, p. 28.
  8. ↑ building law; Systems for health purposes to supply people who have (possibly) been infected with the SARS-CoV-2 coronavirus Information from the Bavarian State Ministry for Housing, Building and Transport , March 27, 2020.
  9. ↑ German Bundestag: Stenographic Report, 154th Meeting Berlin, Wednesday, March 25, 2020, 19169 (B), Agenda Item 6 a.
  10. ↑ Corona regulations of the government - constitutional lawyers sound the alarm because of "serious encroachments on fundamental rights". In: focus.de. March 30, 2020, accessed April 2, 2020 .
  11. ↑ Oliver Lepsius: On the decline of fundamental rights thinking categories in the corona pandemic. April 6, 2020, accessed April 14, 2020 .
  12. ^ Scientific services of the German Bundestag : State organization and Section 5 Infection Protection Act. (PDF) German Bundestag, April 2, 2020, p. 9 , accessed on April 11, 2020 .
  13. ^ Scientific services of the German Bundestag : State organization and Section 5 Infection Protection Act. (PDF) German Bundestag, April 2, 2020, p. 9 , accessed on April 11, 2020 .
  14. ↑ BGBl. I p. 1018
  15. ^ Draft of a second law for the protection of the population in the event of an epidemic situation of national concern BT-Drs. 19/18967 of May 5, 2020.