Article Germany: Amendments to Infectious Diseases Protection Act Enter into Force

(Nov. 24, 2020) On November 19, 2020, the Third Act to Protect the Public in the Event of an Epidemic Situation of National Significance (Third Act) entered into force in Germany. The Third Act amends several laws, in particular the Infectious Diseases Protection Act (Infektionsschutzgesetz, IfSG), to ensure that measures taken to contain the spread of COVID-19 are proportionate and do not infringe constitutional rights. In addition, the Third Act provides for enhanced laboratory capacities by also using veterinary facilities; rapid antigen testing; uniform requirements for travelers returning from risk areas; preparation of vaccination programs and centers; compensation for loss of earning for parents whose daycare or school is closed due to the pandemic; compensation for hospitals that are postponing surgeries to keep intensive care beds available for COVID-19 patients; and digitization of health services.

The Third Act was adopted in an expedited procedure to deal with the exacerbation of the COVID-19 pandemic and to provide legal certainty. The German Bundestag (parliament) and the German Bundesrat, the constitutional organ through which the German states participate in the legislative process, debated and adopted the draft law on November 18, and it was signed and published in the Federal Gazette the same day.

Content of the Third Act

Epidemic Situation of National Significance

The Federal Ministry of Health may adopt ordinances or orders without participation of the German Bundesrat only if the German Bundestag has declared an “epidemic situation of national significance.” (IfSG § 5.) The Third Act defines the term, clarifies the conditions and the procedure for the Bundestag to determine the existence of such an epidemic situation, and requires the federal government to regularly provide information to the Bundestag during its existence.

An “epidemic situation of national significance” is defined as “a serious danger to public health in Germany because

  1. the World Health Organization has declared a public health emergency of international concern and there is a risk that the threatening contagious disease will be brought to Germany or
  2. there is a threat of a dynamic spread of a threatening contagious disease via several countries to Germany or such a spread has occurred.”

Specification of Measures to Contain COVID-19

The Third Act adds a new article 28a to the Infectious Diseases Protection Act. The new article specifies the measures that may be taken during an epidemic situation of national significance to contain the spread of an infectious disease. The list is nonexhaustive:

  • Mandating people to keep their distance in public spaces
  • Mandating people to wear a mask
  • Imposing curfews or limits on gatherings for private and public spaces
  • Mandating businesses, facilities, or other establishments that provide services to the public to create or implement hygiene protocols
  • Prohibiting or limiting recreational events or similar events
  • Closing or limiting the operation of businesses that offer recreational activities
  • Prohibiting or limiting cultural events or the operation of cultural institutions
  • Prohibiting or limiting sports events or exercising
  • Complete or time-limited prohibition of serving alcohol or consuming alcohol in certain public places or in certain publicly accessible facilities
  • Prohibiting or imposing restrictions on events, gatherings, parades, assemblies, and religious or ideological gatherings
  • Prohibiting or limiting travel, in particular leisure travel
  • Prohibiting or limiting overnight accommodations
  • Prohibiting or limiting the operation of dining establishments
  • Closing or limiting the operation of businesses, industry, and retail and wholesale outlets
  • Prohibiting or limiting access or visits to health or social services
  • Closing daycares; schools; children’s homes; vacation camps; universities; extracurricular learning centers for continuing education or similar institutions, or putting restrictions on the continuance of their operations
  • Mandating that contact data of clients, guests, or event participants be processed to trace and break the possible chain of infection after an infection with the coronavirus SARS-CoV-2 has occurred. (IfSG § 28a, para. 1.)

The following measures from the above list may be taken only if all other measures have been unsuccessful in effectively containing the spread of COVID-19:

  • Prohibiting assemblies or processions within the meaning of article 8 of the German Basic Law and religious or ideological gatherings
  • Ordering curfews or imposing lockdowns so that people may leave their living quarters only at certain times or for a certain purpose
  • Prohibiting access or visits to health or social service facilities, such as nursing homes, facilities for the handicapped, birthing facilities, or hospitals for close relatives of residents or patients. Such protection measures may not lead to a complete isolation of individuals or groups; a minimum of social contacts must be ensured. (§ 28a, para. 2.)

Authorities that wish to implement one of these measures must ensure that they are proportional. In particular, they must balance the right to life and health with the functioning of the public health system. Measures must take into account the local level of infection in relation to the threshold levels defined in the law, in particular the number of new infections per 100,000 people within seven days. If the number exceeds 50, comprehensive measures must be taken that are expected to effectively contain the spread of the virus. If the number exceeds 35, broad action must be taken that is expected to effectively slow down the spread of the virus. If the number is below 35, measures to support controlling the spread may be taken. (§ 28a, para. 3.)

Cumulative measures may be taken. The authorities must take into account the societal, social, and economic impact of the measures on individuals and the public. (§ 28a, para. 6.)

Ordinances must include a reasoned explanation and be time-limited. They expire after four weeks at the latest and may be extended. (§ 28a, para. 5.)

Personal data to facilitate contact tracing may be collected and processed only if strictly necessary. It must be deleted after four weeks. It may not be used or transmitted to other authorities for other purposes than contact tracing. (§ 28a, para. 4.)

Traveling from Risk Areas

The Third Act also includes a legal definition of “risk area.” It defines it as “an area outside of Germany for which the Federal Ministry of Health in agreement with the Federal Ministry of Foreign Affairs and the Federal Ministry of the Interior, Building and Community has determined that there is a heightened risk of infection from a specific life-threatening contagious disease; the designation as a risk area will take effect with the expiry of the first day after it has been published on the website of the Robert Koch-Institute at https://www.rki.de/risikogebiete.” (§ 2, no. 17.) People traveling from such risk areas may be required to register electronically before entering Germany to enable the authorities to better track infections. (§ 36, paras. 8–13.)

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Germany: Amendments to Infectious Diseases Protection Act Enter into Force
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Germany: Amendments to Infectious Diseases Protection Act Enter into Force. 2020. Web Page. https://www.loc.gov/item/global-legal-monitor/2020-11-24/germany-amendments-to-infectious-diseases-protection-act-enter-into-force/.

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(2020) Germany: Amendments to Infectious Diseases Protection Act Enter into Force. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2020-11-24/germany-amendments-to-infectious-diseases-protection-act-enter-into-force/.

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Germany: Amendments to Infectious Diseases Protection Act Enter into Force. 2020. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2020-11-24/germany-amendments-to-infectious-diseases-protection-act-enter-into-force/>.

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