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

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Basic data
Title: Fourth law for the protection of the population in the event of an epidemic situation of national concern
Short title: Fourth Civil Protection Act (not official)
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74, Paragraph 1, No. 19 of the Basic Law
Legal matter: Infection Protection Law
Issued on: April 22, 2021
Federal Law Gazette I p. 802
Effective on: April 23, 2021
Weblink: Text of the law
Please note the note on the applicable legal version.

The fourth law for the protection of the population in the event of an epidemic situation of national scope stipulates, in particular, nationwide measures to contain the COVID-19 pandemic in Germany . They were valid from a seven-day incidence of 100 new infections with SARS-CoV-2 per 100,000 inhabitants. These measures expired on June 30, 2021. Other elements of the amending law continue to apply.

The law is known as the federal emergency brake or corona emergency brake .

occasion

With a resolution of March 3, 2021, the Federal Chancellor and the heads of government of the federal states agreed in the federal-state conference that a so-called "emergency brake" should apply from a seven-day incidence of over 100:

"If the 7-day incidence per 100,000 inhabitants rises to over 100 on three consecutive days in a federal state or region, the rules that were in effect up to March 7th come into force again from the second following working day ( Emergency brake). "

Consistent implementation was emphasized in the resolution of March 22, 2021:

"In view of the exponentially increasing infection dynamics, the emergency brake agreed in the last resolution must be implemented consistently for all incidence-dependent opening steps [...]"

After Chancellor Merkel was dissatisfied with the implementation practice of individual federal states, she addressed a possible amendment of the Infection Protection Act on the television program Anne Will on March 28, 2021 . On March 29, 2021, the Scientific Services of the German Bundestag submitted a statement on the legislative competence of the federal government in infection protection law. In it they state that the federal government can regulate all measures to combat the corona pandemic itself. For example, it could stipulate which measures must be taken if a certain incidence value is exceeded, without giving the Länder their own discretion.

description

In its first version, the draft law was called the Law to Change the Infection Protection Act (Infection Protection Act Amendment Act) . The federal government then decided on April 13, 2021 for the name of the fourth law for the protection of the population in an epidemic situation of national scope ; linguistically, it tied in with the law for the protection of the population in the event of an epidemic situation of national scope and its two successors.

In the media and by the federal government, the law and the measures it contains are also referred to as the “Federal Emergency Brake”, “Corona Emergency Brake”, “Emergency Brake Act” or “Federal Emergency Brake”. This expresses the fact that the planned law is the reaction of the federal government to a current "non-uniform interpretation of the measures jointly decided by the federal states in the regularly held federal-state conference".

content

Supplement to the Infection Protection Act

Article 1 of the Act added two new provisions ( Section 28b and Section 28c IfSG, new version [new version]) to the Infection Protection Act (IfSG) and added the provisions on fines in Section 73 IfSG.

Measures, § 28b IfSG

The aim of the legislature was to take sufficiently far-reaching measures when there was a high incidence of infection, "in order to reliably lower the R-value below 1 and thus achieve a weakening of the incidence of infection." The reproductive number (R value) describes how many people one infected person on average.

Since the law came into force, Section 28b (1) Nos. 1–10 IfSG provides for the following measures:

  • Private get-togethers in public or private spaces are limited to a maximum of members of a household plus one additional person per day and household with a maximum total of five people, not including children up to the age of 14
  • Night curfews from 10 p.m. to 5 a.m., with certain exceptions (including business activities and walking for the dog)
    • Only physical exercise (such as jogging ) until midnight is allowed.
  • Prohibition of the operation of commercial leisure facilities (e.g. discos, swimming pools, amusement parks)
  • regular COVID-19 tests in schools as a prerequisite for classroom teaching
    • in the case of a seven-day incidence greater than 100: mandatory switching instruction
    • in the case of a seven-day incidence greater than 165: general ban on face-to-face teaching in day-care centers, schools, universities, etc.
  • Obligation of employers Home Office to allow; Obligation of employees to switch to the home office
  • Closure of shops and markets with customer traffic; Exceptions are grocery stores including direct marketing, beverage stores, health food stores, baby stores, pharmacies, medical supply stores, drug stores, opticians, hearing aid acousticians, petrol stations, newspaper sales outlets, bookstores, flower shops, animal supply stores, animal feed markets, garden centers and wholesalers
    • up to a seven-day incidence of 150: shopping only with advance registration and negative test ( Click & Meet )
    • In any case, the collection of pre-ordered goods ( Click & Collect ) is permitted .
  • Closure of theaters, operas, concert halls, stages, music clubs, cinemas (with the exception of drive-in theaters), museums, exhibitions and memorials
    • Visiting zoological and botanical gardens with a negative test remains permissible
  • Prohibition of practicing sports, with the exception of individual sports (e.g. jogging) and professional sports (e.g. football Bundesliga) without spectators
    • For children up to 14 years of age, contactless sports are still possible in groups of up to five people.
  • Closure of all kinds of restaurants
  • Prohibition of services for which physical proximity to the customer is essential; Exceptions: services that serve medical, therapeutic, nursing or pastoral purposes as well as hairdressers and foot care with the proviso that all those involved wear respiratory masks (FFP2 or comparable) and a negative result for a test before the customer visits a hairdresser or foot care Infection with the coronavirus SARS-CoV-2 must be presented
  • Passengers are obliged to wear a respirator (FFP2 or comparable) when transporting people in local and long-distance public transport, as well as when traveling by taxi and when transporting schoolchildren
  • Ban on hotel accommodation for tourist purposes

The measures apply automatically and compulsorily in rural districts or urban districts if the seven-day incidence of 100 new infections is exceeded on three consecutive days from the day after the next. In this respect, previous resolutions at a federal-state conference are unnecessary. Due to the hierarchy of norms , the federal states can not issue any exceptions or more lenient measures - but even stricter ones. The measures should apply until the seven-day incidence in the relevant district or urban district has fallen below the threshold value of 100 on five consecutive working days (Section 28b (2) IfSG new version). Violations are subject to a fine (Section 73 IfSG new version).

The provision of § 28b IfSG n. F. and 6 adopted on the basis of para. Ordinances are for the duration of the detection of epidemic situation of national importance according to § 5 apply 1 IfSG paragraph 1 sentence, but no longer than until the end of June 30 2021 (Section 28b (10) IfSG new version).

Authorization to issue ordinances

Section 28b (6 ) IfSG new version contains an authorization in favor of the Federal Government, with the consent of the Bundestag and Bundesrat, to order additional protective measures in accordance with Section 28 (1) and (2) and Section 28a (1 ) IfSG if the nationwide seven days -Incidence exceeds the threshold of 100.

In addition, the Federal Government is empowered in the new § 28c IfSG to make exceptions for those who have been vaccinated, those who have been tested and those who have recovered . The COVID-19 Protective Measures Exception Ordinance is based on this .

Amendment of the Social Code

Article 3 of the Act extends the period for which the so-called child sickness benefit is paid from 20 to 30 working days. To this end, Section 45, Paragraph 2a, Fifth Book of the Social Security Code was amended. The change was made retrospectively as of January 5, 2021.

Similarly, Article 2 of the Act extends the duration of unemployment benefits from 20 to 30 days if children who are ill or who are in need of care due to KiTa or school closings are cared for.

Legislative process

A so-called wording aid was presented on April 9, 2021 for the law. It was passed by the federal cabinet on April 13, 2021 with slightly changed content and introduced into the parliamentary legislative process on the same day as a draft law by the parliamentary groups of the CDU / CSU and SPD . The first reading in the Bundestag took place on April 16, 2021. This was followed by a public hearing by the health committee . The experts heard did not agree on how the planned measures should be assessed. As a result of the hearing, changes were made: the period for the night exit restriction was reduced; Exceptions for evening strollers or joggers have been added. The incidence level above which classroom teaching is prohibited in schools has been reduced from 200 to 165. In addition, a statutory authorization was added to regulate the handling of people who have tested negative, vaccinated or otherwise immunized.

After the second and third readings, the Bundestag passed the law as amended by the Health Committee on April 21, 2021. The Bundestag voted on the law by name. The majority of the CDU / CSU and SPD voted in favor, FDP , AfD and Die Linke voted against, Alliance 90 / The Greens abstained.

On April 22, 2021, the Federal Council decided not to call the Mediation Committee and thereby approved the law. Federal Council President Reiner Haseloff said that an objection would only have delayed the law, not improved it or prevented it. On the same day, Federal President Frank-Walter Steinmeier signed the law. The same day it was announced in the Federal Law Gazette . The law came into force the day after its promulgation, i.e. April 23, 2021.

Since then, the rural districts and urban districts have been evaluating and publishing which measures will apply there from the next day on the basis of the incidence values ​​of the last three days. The law first affected the population on April 24, 2021. This was made clear by paragraph 6 of § 77 IfSG, which was inserted into the Infection Protection Act by the Fourth Civil Protection Act.

Criticism, evaluation, constitutional complaints

Demonstration on April 21, 2021 on the Strasse des 17. Juni.

criticism

Criticism came among other things. by the Thuringian Minister of Education, Helmut Holter , who feared a restriction of the right of the federal states to have a say.

FDP party leader Christian Lindner said: “The planned strict curfew is ultimately disproportionate. For example, a vaccinated couple's evening walk does not pose any risk of infection. "

The restriction to a person outside the household and the lack of regulations on companies, in particular regular testing obligations in the companies, were also criticized. The federal government then introduced mandatory operational test offers in the SARS-CoV-2 occupational safety and health ordinance.

Demonstrations took place in the government district during the debates on the law . According to the Berlin police, 8,000 people took part in the protests for the 2nd and 3rd reading of the law on April 21, 2021 ; the police were represented by 2,200 emergency services. There were 152 arrests.

Legal evaluation

The Scientific Services of the German Bundestag examined the draft law from a legal perspective. In their draft of April 15, 2021, they start from the premise that the legislature must act in the current crisis in order to fulfill its duty to protect the population. The legislature's already existing room for maneuver is currently "considerably increased". Nevertheless, the draft law contains three particularly problematic provisions:

  • Based solely on the seven-day incidence of over 100 new infections per 100,000 inhabitants: This could be disproportionate, and it must also be checked whether "other circumstances relevant to the infection process" should be included.
  • Exit restrictions: It is doubtful whether they will stand up to constitutional scrutiny.
  • Exceptions for vaccinated people: These are missing and need to be supplemented.

The Scientific Service's concerns have been partially addressed in the Health Committee; the law was amended and supplemented in a number of points.

Constitutional Complaints

Up to May 6, 2021, 334 constitutional complaints and applications for the issuance of interim orders were submitted to the Federal Constitutional Court (BVerfG) against the Fourth Civil  Protection Act . By the end of May 31, 2021, "a total of 424 proceedings had been received by the Federal Constitutional Court, including one with over 7,000 complainants."

On April 22, 2021, member of the Bundestag Florian Post (SPD) and four other people filed a constitutional complaint against the restrictions on freedom anchored in Section 28b IfSG. At the same time, he applied for an interim order to be issued, according to which the measures restricting freedom should not apply automatically, but only if and to the extent that the state authorities have previously determined the proportionality of the measures and ordered the validity of the measures by means of a general decree. Florian Post is represented by the constitutional lawyer Dietrich Murswiek .

The Society for Freedom Rights (GFF) supports twelve people who filed a constitutional complaint against the night curfews on April 24, 2021. At the same time as the constitutional complaint, an application was made to issue an interim order. The twelve complainants, including the Bundestag member Canan Bayram (Bündnis 90 / Die Grünen), the lawyer Sven Kohlmeier , and the politicians Sebastian Schluesselburg (Die Linke), Anne Helm (Die Linke), Petra Vandrey (Bündnis 90 / Die Grünen) and Stefan Förster (FDP) consider the curfews to be largely ineffective symbolic politics. The legal representative is Anna Katharina Mangold, a law professor .

All 80 members of the FDP parliamentary group have jointly lodged a constitutional complaint in Karlsruhe. Your complaint of April 27, 2021 is directed against the curfews and "against the sole orientation to the incidence, which only very imprecisely depicts the real pandemic on site". The complaint was not made on behalf of the group, but by the MEPs themselves as “citizens of this country”. The legal representative is the constitutional lawyer Thorsten Kingreen .

On May 5, 2021, the Federal Constitutional Court rejected several applications for a temporary injunction, including the application supported by the GFF. With them, the nightly exit restrictions should be temporarily suspended. The application of a complainant who claims to have been immunized after surviving the COVID-19 disease is being dealt with in a separate procedure.

literature

  • Scientific services of the German Bundestag : Constitutional evaluation of the new infection protection legislation . Ed .: German Bundestag. April 15, 2021 ( bundestag.de [PDF; 304 kB ; accessed on April 16, 2021]).
  • Scientific services of the German Bundestag: Scope of the legislative competence of the federal government in infection protection law . Ed .: German Bundestag. March 29, 2021 ( bundestag.de [PDF; 83 kB ; accessed on April 16, 2021]).

Web links

Individual evidence

  1. ^ Video switching conference between the Chancellor and the heads of government of the federal states on March 3, 2021 . Decision.
  2. ↑ Video conference between the Chancellor and the heads of government of the federal states on March 22, 2021 . Decision as of March 24, 2021.
  3. ↑ dpa: Merkel urges countries to implement the emergency brake echo-online, March 29, 2021.
  4. ↑ Scientific services of the German Bundestag : scope of the legislative competence of the federal government in infection protection law . Ed .: German Bundestag. March 29, 2021 ( bundestag.de [PDF; 83 kB ; accessed on April 16, 2021]).
  5. ^ Infection Protection Act - Cabinet agrees on "Federal Emergency Brake". Status: April 13, 2021 5:30 p.m. In: tagesschau.de. April 13, 2021, accessed April 13, 2021 .
  6. ↑ Bundestag decides nationwide Corona emergency brake. In: zeit.de. April 21, 2021, accessed April 21, 2021 .
  7. ↑ Covid-19 - country leaders criticize the emergency brake law. In: Deutschlandfunk.de. April 17, 2021, accessed April 20, 2021 .
  8. ↑ Infection Protection Act : This regulates the nationwide emergency brake. German Federal Government, April 24, 2021, accessed April 25, 2021 .
  9. ↑ Draft of a law amending the Infection Protection Act (Infektionsschutzgesetzänderungsgesetz) (PDF) Formulation aid by the Federal Government for the parliamentary groups of the CDU / CSU and the SPD, status: April 9, 2021, p. 9.
  10. ^ Draft of a fourth law for the protection of the population in the event of an epidemic situation of national concern. (PDF) Bundestag printed paper 19/28444. German Bundestag, April 13, 2021, p. 1 , accessed on April 14, 2021 .
  11. ↑ Nowcasting and R-Estimation: Estimation of the current development of the SARS-CoV-2 epidemic in Germany Robert Koch Institute , as of April 14, 2021.
  12. ↑ Manuel Siekmann: Corona numbers: R value for Germany April 14, 2021.
  13. ↑ Michael Fuhlrott : Stricter infection protection in the company - employees have to work from home. In: lto.de. Legal Tribune Online, April 22, 2021; accessed April 25, 2021 .
  14. ↑ § 28b Abs. 6 IfSG new version: "Further protective measures on the basis of this law remain unaffected."
  15. ↑ Questions and answers on the 4th Civil Protection Act . Federal Ministry of Health, April 23, 2021, accessed on April 25, 2021 : “ What are the federal states still to decide? The nationwide 'emergency brake' takes effect from a stable incidence of 100. If the incidence is below 100, the federal states continue to decide on measures. In addition, the federal states can provide additional protective measures for incidences of more than 100. "
  16. ^ Draft law of the parliamentary groups of the CDU / CSU and SPD: Draft of a fourth law for the protection of the population in an epidemic situation of national scope. In: Bundestag printed matter 19/28444. April 13, 2021, p. 15 , accessed on April 25, 2021 (Section 28b (4) (relationship to other regulations)).
  17. ↑ Formulation aids of the Federal Government for the Bundestag. Federal Government, 2021 : “It is common practice for the Federal Government to provide assistance in the legislative work of the Bundestag. This takes place not only in the form of background notes, through verbal and written answers to questions from individual parliamentarians or parliamentary groups, but also through the development of drafts of individual regulations (normal case) or entire sets of rules (exceptional case). These drafts are called formulation aids. ";
  18. ^ Draft of a law amending the Infection Protection Act (Infection Protection Act Amendment Act) (PDF) Formulation aid by the Federal Government for the parliamentary groups of the CDU / CSU and the SPD, status: April 9, 2021.
  19. ^ Draft of a fourth law for the protection of the population in the event of an epidemic situation of national concern. (PDF) Formulation aid from the federal government for the parliamentary groups of the CDU / CSU and the SPD. Federal Ministry of Health, April 13, 2021, accessed on April 14, 2021 .
  20. ↑ Federal Government: Supplementation of the Infection Protection Act - uniform federal emergency brake for high numbers of infections. Bundesregierung.de, April 13, 2021, accessed on April 13, 2021 .
  21. ^ Draft law of the parliamentary groups of the CDU / CSU and SPD: Draft of a fourth law for the protection of the population in an epidemic situation of national scope. In: Bundestag printed matter 19/28444. April 13, 2021, accessed April 14, 2021 .
  22. ↑ Violent dispute over the new Civil Protection Act. German Bundestag, April 16, 2021, accessed on April 19, 2021 .
  23. ^ Infection Protection Act discussed controversially in a hearing bundestag.de, April 16, 2021.
  24. ^ Jurists disagree on the federal emergency brake. In: becklink 2019514, beck-online. Editor beck-aktuell, Verlag CHBECK, April 19, 2021, accessed on April 25, 2021 .
  25. ↑ Resolution recommendation of the Committee on Health (14th Committee) BT-Drs. 19/28692 of April 19, 2021.
  26. ^ Report of the Committee on Health (14th Committee) BT-Drs. 19/28732 of April 20, 2021.
  27. ↑ Nationwide emergency brake against rising corona infections decided. German Bundestag, April 21, 2021, accessed on April 21, 2021 .
  28. ↑ * Final result of roll call No. 6 of the Bundestag on the draft of the fourth law for the protection of the population in an epidemic situation of national scope. Bundestag April 13, 2021, accessed on April 22, 2021.
  29. ^ German Bundestag - roll-call votes. Retrieved April 22, 2021 .
  30. ↑ Decision of the Federal Council. Fourth law for the protection of the population in the event of an epidemic situation of national concern. In: Federal Council printed matter 315/21. German Federal Council, April 22, 2020, accessed on April 22, 2021 .
  31. ↑ Special meeting on the Corona emergency brake. In: BundesratKOMPAKT. Federal Council, April 22, 2021, accessed on April 22, 2021 .
  32. ^ Zeit Editor: Federal Council approves emergency brake. In: Zeit Online. Zeit Online, April 22, 2021, accessed April 22, 2021 .
  33. ↑ Angelika Slavik: "Low point in the federal culture" - Despite criticism, the Infection Protection Act passed the Federal Council . In: Süddeutsche Zeitung . No. 93 , April 23, 2021, p. 5 .
  34. ↑ Infection Protection Act passes Federal Council. German Federal Government, April 22, 2021, accessed on April 22, 2021 .
  35. ↑ Federal President signs Infection Protection Act - Haseloff: "Low point in federal culture". In: handelsblatt.com. April 22, 2021, accessed April 22, 2021 .
  36. ↑ Federal Law Gazette I p. 802
  37. ↑ Questions and answers on the 4th Civil Protection Act . When does the new Infection Protection Act apply? Federal Ministry of Health, April 23, 2021, accessed on April 23, 2021 : "[...] Based on the incidences of the last three days, all districts and urban districts will then evaluate and publish which rules will apply to them the next day. The law will take effect for the first time on April 24th, 2021. "
  38. ^ Infection Protection Act - criticism from Thuringia's Minister of Education, Holter. deutschlandfunk.de, accessed on April 10, 2021 .
  39. ↑ Coronavirus - Federal government plans night curfews. zeit.de, accessed on April 10, 2021 .
  40. ↑ Corona measures: Power wrangling over the federal emergency brake. In: tagesschau.de. April 11, 2020, accessed April 11, 2021 .
  41. ↑ Georg Ismar: Chancellor specifies the emergency brake: Merkel apparently for a consistent and short “bridge lockdown”. In: tagesspiegel.de. April 11, 2021, accessed April 11, 2021 .
  42. ↑ Binding test offers come in companies. Federal Ministry of Labor and Social Affairs, April 13, 2021, accessed on April 13, 2021 .
  43. ↑ 150 arrests during protests against corona policy. In: zeit.de. The time , April 21, 2021, accessed April 27, 2021 .
  44. ^ Scientific services of the German Bundestag : Constitutional evaluation of the new infection protection legislation . Ed .: German Bundestag. April 15, 2021 ( bundestag.de [PDF; 304 kB ; accessed on April 16, 2021]).
  45. ↑ Christian Rath: Exemption Ordinance for Vaccinated and Recuperated People - A few weeks of inequality. In: lto.de/. Legal Tribune Online, May 7, 2021; accessed May 13, 2021 .
  46. ↑ Federal Constitutional Court - Press - Several urgent motions and constitutional complaints against provisions of the Fourth Civil Protection Act ("Federal Emergency Brake") unsuccessful. Retrieved June 13, 2021 .
  47. ↑ Michael Post, Dietrich Murswiek: Amendment of the Infection Protection Act - My complaint to the Federal Constitutional Court. (PDF) In: florianpost.de. April 22, 2021, accessed April 25, 2021 .
  48. ↑ GFF submits an urgent application to the Federal Constitutional Court against curfews in the Corona “emergency brake” - disproportionate restriction of rights of freedom. In: freiheitsrechte.org. Society for Freedom Rights , April 25, 2021, accessed April 26, 2021 .
  49. ↑ Corona - FDP MPs submit constitutional complaint against the Infection Protection Act. In: FDPBT.de. Group of Free Democrats in the German Bundestag, April 27, 2021, accessed on April 27, 2021 .
  50. ↑ BVerfG, decision of May 5, 2021, Az. 1 BvR 781/21 , 1 BvR 805/21, 1 BvR 820/21, 1 BvR 854/21, 1 BvR 889/21.
  51. ↑ Urgent applications against federal night exit restrictions rejected. Press release No. 33/2021 of May 5, 2021. Federal Constitutional Court, accessed on May 5, 2021 .