When you listen to the Prime Minister of North Rhine-Westphalia, Hendrik Wüst (CDU), you might think that Germany is about to have its Freedom Day: “If the Bundestag does not act, all measures to protect against the virus will expire by March 19th, at the latest after a one-time extension,” said the chairman of the Prime Ministers’ Conference to the “Redaktionsnetzwerk Deutschland”. “Then the federal states and municipalities would effectively have no protection options.”
Is it possible that the Corona measures will simply expire in six weeks? Questions to the parliamentary groups in the Bundestag show that there is a lively debate about openings, but there does not seem to be a concrete roadmap.
It is correct that two paragraphs – 28a and 28b – in the Infection Protection Act expire at the end of March. The three traffic light parties SPD, Greens and FDP had agreed on this last year. are regulated in Clause 28awhich corona measures can be prescribed. The list also goes by the name “instrument box”. The range of possible rules includes, among other things, the obligation to wear a mask, contact and exit restrictions as well as bans on meetings and the obligation to present a vaccination card.
28b however, refers to 3G am Workplace and in public transport. The Bundestag could extend both passages once by three months by resolution. It would also be possible to provide the law with a new deadline in a more complex procedure.
But within the traffic light, it seems that a clear course has not yet been decided. Although the SPD faction gives the impression that they would rather let the regulations expire sooner rather than later, the Greens in particular are skeptical about easing.
This is how the traffic light factions position themselves
“In the next few weeks we will take our time to see whether it is even necessary to extend the corona protection measures beyond March 19,” said Johannes Fechner, parliamentary director of the SPD parliamentary group, WELT. “If we actually see a decline in the omicron variant in mid-February, the question arises as to whether we still need these restrictions in the spring and summer months.” He thinks it is more likely that “only with a view to next fall again about such protective measures”.
The Liberals want more speed. “We now have to discuss openings and what will happen if the measures in the Infection Protection Act expire on March 19,” said FDP parliamentary group leader Christian Dürr. It is not yet known exactly when the omicron wave will reach its peak.
However, you have to prepare for that. “Otherwise we will soon be faced with a decision: All measures will be extended or all measures will be dropped – including effective regulations that got us through the last wave. That would not be effective.” Dürr suggests first agreeing to relax the contact restrictions for vaccinated people and to remove the 2G rule in retail. The latter regulation had already been overturned by several administrative courts, for example in Hesse and Bavaria.
However, the Greens consider it premature to relax at this point in time. “We will now not be able to do without certain measures such as the obligation to wear masks or a reduction in contacts,” said parliamentary group leader Britta Haßelmann. The omicron wave has not yet reached its peak.
Even if the course of the disease is less severe, in large numbers they lead to a noticeable burden on the clinics. About the spread of subtype BA.2 we still know too little, the vaccination gap is too large. “Therefore, there are no prerequisites for easing at the moment.” If the infection situation eased, there would be a reaction.
“Then it will be about opening steps and stage models so that sectors such as culture or retail have planning security,” says Haßelmann. The parliamentary group did not respond to the question of phasing out or extending the relevant passages in the Infection Protection Act.
“Does not mean that measures are inadmissible in principle”
However, whether the expiry of the deadline would lead to an automatic omission of all rules at all – constitutional lawyer Steffen Augsberg from the University of Gießen has great doubts. “It is by no means the case that a kind of Freedom Day will be declared when the specified deadline for measures under Section 28a of the Infection Protection Act expires.”
State lawyer Steffen Augsberg
Source: German Ethics Council/Reiner Zensen
For his explanation, Augsberg, who is also a member of the German Ethics Council, refers to the history of the paragraph. This was passed at the end of 2020 as a specification of the previous legal situation. Until then, the measures had been based on a general clause.
According to Augsberg, when paragraph 28a expires, the same question would arise as it did more than a year ago: “Is a general clause sufficient to justify such measures that significantly restrict fundamental rights?” , but also greater legal uncertainty. “It would then be up to the courts to take a particularly critical look at measures,” says Augsberg.
“If Paragraph 28a no longer applies because the deadline has expired, that does not mean, in my view, that the measures stipulated there are in principle inadmissible.” Only then are the necessary requirements highly controversial.
A mere phasing out, which the traffic light coalition partners are currently not ruling out, could therefore not lead to greater clarity with certainty. But in the worst case to even more patchwork and government of the countries.
The opposition Union faction is clearly in favor of an extension. “Section 28a opens the possibility, if necessary, to enact protective measures. In view of the current infection situation, this flexibility should initially be retained beyond March 19, ”said Deputy Chairwoman Andrea Lindholz (CSU). Anyone who wants to open up steps should not take away the “basic protection options” from the countries.