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Germany: Uniform Federal COVID-19 “Emergency Brake” Introduced

(Apr. 27, 2021) On April 23, 2021, the Fourth Act to Protect the Public in the Event of an Epidemic Situation of National Significance (Fourth Act) entered into force in Germany. The Fourth Act amends the Infectious Diseases Protection Act (Infektionsschutzgesetz, IfSG) and introduces a federal “emergency brake” that provides for uniform restrictions in all German states when the seven-day COVID-19 incidence in a county or independent city exceeds 100 for three consecutive days. A federal emergency brake was considered necessary to avoid the divergent implementation of measures agreed upon by the German states. (Explanatory memorandum at 8.) It will expire on June 30, 2021.

In addition, the Fourth Act authorizes the federal government to adopt ordinances with the consent of the German Bundestag (parliament) and the German Bundesrat, the constitutional organ through which the German states participate in the legislative process, to provide for further measures to restrict the spread of COVID-19 and to adopt special rules for vaccinated people or people with a negative COVID-19 test result. Lastly, employees will receive 10 additional sick days to take care of their children when daycares and schools are closed due to the pandemic.

The Fourth Act was adopted in an expedited procedure to curb the third wave of the COVID-19 pandemic. The German Bundestag debated and adopted the draft law on April 21, and the German Bundesrat followed suit one day later. The Fourth Act was signed and published in the Federal Law Gazette the same day. About 65 complaints have been submitted against the new rules at the German Federal Constitutional Court, with new ones coming in daily. They allege, among other things, that nightly curfews are ineffective, disproportionate, and therefore unconstitutional.

Content of the Fourth Act

The Fourth Act adds section 28b to the Infectious Diseases Protection Act. The new section 28b defines when the federal emergency brake applies and specifies the measures that will take effect two days after the federal emergency brake is activated:

  • Gatherings in private and public spaces are limited to household members and one additional person.
  • A curfew is imposed from 10 p.m. to 5 a.m., with exceptions for emergencies; business reasons; the exercise of custody rights; care of vulnerable adults, minors, or the dying; care of animals; other equally significant and irrefutable reasons; or outdoor physical activities between 10 p.m. and 12 a.m.
  • Businesses that offer recreational activities may not open.
  • Retail outlets and markets with the exception of grocery stores and other essential businesses must remain closed. Essential businesses are subject to restrictions.
  • Cultural institutions must remain closed.
  • Exercising is limited to contactless sports that can be practiced alone, with two people, or with the members of a person’s household
  • Dining establishments must remain closed, but may offer take-out and delivery.
  • Personal services that require close contact are prohibited.
  • Masks are mandatory on public transport and in taxis.
  • Overnight accommodations for tourists may not be provided.

In-person classes in schools may take place only if teachers and students get tested twice a week. If the seven-day incidence—which is published by the Robert Koch Institute, Germany’s public health institute—exceeds 100 for three consecutive days, in-person classes must be alternated with virtual classes. When the seven-day incidence exceeds 165, only virtual classes will be allowed. The local competent authorities may offer emergency childcare. (§ 28b, para. 3.)