Lawyers are taking action against the reform of the Infection Protection Act. At which points is the resistance to the “federal emergency brake” ignited? An overview.

Police forces walk along the banks of the Maschsee in Hanover to check compliance with the mask requirement.

Dhe changes to the Infection Protection Act have not yet come into force when the first constitutional complaint from a Berlin defense lawyer arrived in Karlsruhe on Thursday. Other complaints have already been announced. The resistance against the “Federal Emergency Brake” is fierce and it ignites above all at the following points:

• Federal competence

The party of “Free Voters” from Bavaria has fundamental problems with the fact that the federal government should now regulate what the federal states had in their hands for a year. The federal government is making a “glaring mistake” by adopting a federal emergency brake in the “hau-jerk procedure”, which turns the previous approach in the fight against pandemics on its head, criticized the Bavarian Minister of Economic Affairs and Free Voters state chairman Hubert Aiwanger on Thursday when a constitutional complaint was announced.

The Berlin lawyer Niko Härting, who supports the Free Voters, added that it is quite possible that the federal government will take action. However, the federal government is not required to take action because the infection rate is very different from region to region. Jurists also criticize that the rules are not specific enough, after all, they are only based on the incidence value that the Robert Koch Institute publishes on a daily basis. The law therefore now stipulates that the state governments would have to announce measures so that the citizens could orientate themselves accordingly.

• curfews

The loudest rhetoric against the curfew, according to the FDP, the Free Voters and the Society for Freedom Rights, is the strongest restriction of personal freedom. So far, the exit restrictions, as they are formally called, are special in Section 28a, Paragraph 2 of the Infection Protection Act high hurdles. They are only permissible if all the measures taken so far do not lead to effective containment.

Several administrative courts have already rejected existing exit restrictions in individual state ordinances because the reasons for them were not convincing. With the new regulation, the restrictions automatically come into force between 10 p.m. and 5 a.m. for an incidence value of at least 100 on three consecutive days. In addition to the general objection that exit restrictions are disproportionate and that their benefits are controversial, lawyers also cite a formal but not insignificant objection: In the Basic Law, restrictions on personal freedom are not permitted by a law that takes effect automatically, explained Härting.

Rather, an additional enforcement act should ensure that the restrictions on freedom are checked again before they take effect. The curfew was “therefore the unconstitutionality already written on the forehead,” said the lawyer. Several constitutional lawyers also raised this objection at a hearing before the health committee last week.

• Missing exceptions for vaccinated persons

The FDP is a thorn in the side that the legal regulations do not provide for any exceptions for fully vaccinated people. Constitutional lawyers have been warning of this for months, all the more since the RKI determined in April that vaccinated people are hardly any more dangerous: the risk of virus transmission is reduced to the extent that vaccinated people are reduced by the 15th day after the second dose of vaccination at the latest no longer played an essential role in the epidemiology of the disease.

In the opinion of constitutional lawyers, serious restrictions should therefore no longer be imposed on this group of people. This applies, for example, to contact restrictions or curfews. However, the new Infection Protection Act is silent on this aspect; it only provides that the federal government may issue ordinances on this at a later date. For those who are fully vaccinated, however, this means a step backwards, after all, individual state regulations already provide for relief for vaccinated persons, for example from the obligation to test, which are now being reversed by the nationwide regulations.

• Business closures

Several trading companies have also announced that they will take action against the Infection Protection Act before the Federal Constitutional Court. They criticize the distortion of competition because large grocery stores can continue to sell shoes, clothing or toys while the specialist retailers in question have to close. They cite several studies, according to which the risk of infection in retail is extremely low. The one-sided burden on trade compared to other employers is also causing criticism.

With the new rules, the home office obligation for employers is put on a legal basis, but companies can give operational reasons to call their employees to the office or to the workbench. However, trading remains completely closed above the threshold of the incidence value of 150. Below this value there is the possibility of making appointments if the customers can show a negative test result.