Chancellor Angela Merkel is pushing for legal changes that would give the federal government more powers to stop the spread of the coronavirus. But the states are pushing pack.
By Matthias Bartsch, Rafaela von Bredow, Jan Friedmann, Florian Gathmann, Veronika Hackenbroch, Martin Knobbe, Timo Lehmann, Jonas Schaible, Christoph Schult, Christian Teevs, Nicolas Wildschutz und Steffen Winter
Sascha Raabe, a Social Democratic (SPD) member of German parliament from the state of Hesse, knows what it’s like to have COVID-19. He caught the disease last fall and says it “really knocked him out” for six days. After three months, he still can’t taste properly and his sense of smell isn’t back yet either, he says. Raabe is not one to minimize the dangers of the virus.
Nevertheless, the 52-year-old is not planning on supporting changes to Germany’s Infection Protection Act when they come up for a vote next week in the Bundestag, as Germany’s parliament is known. He’s especially bothered by one of the measure it contains: the nightly curfew. He argues that it’s neither sensible nor proportionate to “lock people up in their homes after 9 p.m.”
The Social Democrat isn’t alone in his displeasure with the legislation, which was in part pushed forward by Olaf Scholz, also of the SPD. Scholz serves as vice chancellor to Angela Merkel and is also his party’s candidate for Germany’s highest political office in elections this fall. During a meeting on Tuesday of the SPD’s parliamentary group, more than 40 members of parliament discussed the piece of legislation, drafted by Merkel and her cabinet, and many were highly critical. In the end, the faction leadership attempted to channel the anger of fellow party members, saying they would seek changes when the legislation is debated in parliament.
Chancellor Merkel is seeking to take greater federal government control over measures to contain the coronavirus in Germany, essentially seeking the legal authority to pull the emergency brake. In Germany’s federalist system, states are in charge of deciding and implementing most such measures. But in recent months, regular meetings between Merkel and the governors of the country’s 16 states have failed to achieve uniform responses to the coronavirus across the country. Under the new rules, if the number of infections for a city or district exceeds a threshold of 100 per 100,000 residents for three days within a seven-day period, uniform federal rules would apply. The rules also stipulate that people can only meet with a person from one other household, that all stores would have to close except those offering essential services and that a strict curfew would be imposed from 9 p.m. to 5 a.m. According to the draft legislation, if infections grow to 200 per 100,000 residents, schools would be required to close and return to remote, online learning. Companies will also be required to offer rapid coronavirus antigen tests to their employees.
“The third wave of the pandemic has our country firmly in its grip,” Merkel said Tuesday after the cabinet meeting. “If we wait until all intensive care unit beds are occupied, it will be too late. We can’t allow that to happen.”
That, though, is exactly the scenario Germany is now facing. The law was not passed within a week, as some in Merkel’s government had hoped. Now, the earliest it is likely to be passed is the end of next week, after a meeting of the Bundesrat, Germany’s second legislative chamber, which also has to approve the measure and will first convene next Friday.
Before passage, the legislation is also likely to be watered down in light of the many concerns and counter-proposals. Even within the government, legal assessments are circulating that regard a curfew to be legally untenable.
“But if we weaken the measures in parliament now, they will not be sufficient to break the third wave,” warns SPD health expert Karl Lauterbach – criticism that is also directed at his own party. “We’re late on this, anyway.” In light of the rising and threatening numbers of infections, just hoping for the law is too risky, says Lauterbach. “The federal states need to act sooner.” German Health Minister Jens Spahn expressed similar concern on Thursday. “We shouldn’t wait until parliament has passed this law,” he said.
After the Easter holidays seemed to slightly slow the growth in new infections, they have been rising sharply again since the middle of the week, to close to 30,000 new infections on Thursday.
“The pressure on intensive care units is really high now – in Cologne and Bonn, for example, they are really full,” says Christian Karagiannidis, a senior physician at the Cologne-Merheim Lung Clinic and president of the German Society of Internal Intensive Care and Emergency Medicine. The physician is expecting “a significant increase in intensive care occupancy” within seven to 10 days.
He says that patients ought to be moved from the Cologne/Bonn area to other regions to free up beds. “But at some point starting next week, there will finally have to be strict contact restrictions for at least two weeks to bring the caseload down,” Karagiannidis says.
It’s highly questionable whether the German government will be able to comply with that demand. Just how great the need for discussion among politicians about the planned “federal emergency brake” was also evident at a meeting of the faction of Merkel’s conservative Christian Democratic Union (CDU) and its Bavarian sister party, the Christian Social Union (CSU). Although the deputies had already spent three and a half hours arguing over the parties’ shared chancellor candidate, they added a two-hour debate on the Infection Protection Act. Participants described the debate as a “lively” one in which “clear displeasure” with the proposal was expressed – and not just be the usual contrarians.
Even more liberal parliamentary group members have expressed concerns. The criticism has centered on two points: the fact that the decision as to when to apply the emergency brake is based purely on the incidence value; and the planned curfew. Participants said that even parliamentary group head Ralph Brinkhaus was not entirely convinced of the curfew in his speech.
The opposition has been even clearer on the issue. “The FDP parliamentary group has a whole slew of serious concerns,” says Marco Buschmann, a senior member of the business-friendly Free Democratic Party (FDP) in parliament. He, too, criticizes the fact that the emergency brake is “linked exclusively to the incidence.” In his view, other factors, such as the number of intensive care beds available and the nature of the outbreak, should also be taken into consideration. Moreover, he said, curfews are considered to be ineffective in combating the epidemic. “If there are no substantial changes to the bill, the FDP parliamentary group will not agree to the amendment to the Infection Protection Act.”
The Greens, who have generally supported the government’s policies in the pandemic, have also stated their opposition. In principle, uniform national rules would make sense, says Katrin Göring-Eckardt, the co-head of the Green Party’s parliamentary group. “We will agree to a bill that we believe will tangibly reduce infection rates. But that’s not the case with the current government proposal.”
The Greens argue that the restrictions are disproportionate – too many restrictions are being placed on private life and too few on work. “Binding rules for the working world are imperative: An obligation to only offer a test is a sham, it doesn’t go far enough,” argues Göring-Eckardt. She says that more needs to happen in schools too, that the government can’t wait until an incidence of 200 to take action. “At the latest, half-capacity classrooms, two (COVID) tests a week and masks would have to be mandatory from 100 – and even better from 50. Starting at an incidence of 50, the requirement of mandatory in-person school attendance should be dropped.”
Meanwhile, the far-left Left Party also rejects the law because it is too lax for them. “The planned federal emergency brake is actually more likely to be like stepping on the gas pedal of this pandemic,” says party head Susanne Hennig-Wellsow. “The Robert Koch Institute (Germany’s center for disease control) has proposed a staged approach and recommends strong action starting at an incidence of 50 or more. And what is the federal government doing? It’s increasing that number to 100, thus increasing scope for mutants to spread.”
Scientists also have grave doubts about whether the measures in the bill will be enough to contain the spread of the viruses. “We welcome the introduction of unified rules, but these won’t go far enough,” says Thorsten Lehr, a modeler at Saarland University. “They encourage risky moves at an incidence level that is already out of control, and they are much too late.” Lehr is particularly critical of the rules for schools. “I think opening schools at such a high incidence is irresponsible toward the children and parents who still remain unvaccinated,” the scientist says.
Oliver Keppler, a virologist at Munich’s Ludwig Maximilians University also says that from the perspective of infections, it doesn’t make sense to keep schools open when the incidence rate is higher than 100. And that if the decision is made to keep schools open for societal reasons, that there would have to be stricter rules for private contacts to compensate for that. “Curfews can be effective, as the experiences in other countries show,” Keppler says.
But the ban on people being able to leave their homes in the evening is the most controversial. Critics doubt it will do much to change the situation at all. They cite an open letter from the Society for Aerosol Research to the federal and state governments. “Transmission of SARS-CoV-2 viruses occurs almost invariable indoors,” the researchers write. “If we want to get the pandemic under control, then we need to make people aware that the danger lurks INSIDE.”
Proponents of a curfew point out that it is only meant to prevent evening gatherings and parties in homes. Meanwhile, health expert Lauterbach also says that people could get infected outside if they stand closely together and talk loudly.
On the other hand, critics express constitutional concerns. “I am certain that the amendments to the Infection Control Act will be challenged – and that applies particularly to the curfew,” says Thorsten Kingreen, a legal expert and professor at the University of Regensburg. “We don’t know exactly how the Federal Constitutional Court would rule on it. There are opposing court decisions. But given the depth of the encroachment on basic rights, I have constitutional concerns.”
Legal concerns have also been expressed within Merkel’s Chancellery. However, the Federal Interior Ministry, which is responsible for constitutional issues, has reviewed the cabinet’s draft legislation several times. “The regulation that has been found is without a doubt constitutional,” Interior Minister Horst Seehofer told DER SPIEGEL. He said the verdict reached by his legal experts had been clear. Seehofer also points out that the curfew isn’t about hounding people who want to take their dog out in the evening.
But few expect the bill to get passed by parliament without changes. The SPD, for example, wants to ensure that outdoor sports and non-contact sports for children are exempt from the emergency brake. And inside the government coalition, it is assumed that the start of the curfew could be postponed until around 10 p.m.
In the view of Merkel’s government, the Bundesrat isn’t required to approve the legislation. But the second legislative chamber, which represents the federal states, could file an objection.
If there were a vote on the law in the body, several states would like abstain, including North Rhine-Westphalia, Bavaria and Rhineland-Palatinate, where the FDP or Free Voters are part of coalition governments. Florian Streibl, the parliamentary group leader of the Free Voters in Munich, called the transfer of authority an “affront to the state parliaments,” and a “step backward in the fight against the pandemic.”
That displeasure reflects the opinion of many in the state ministries and district offices. They view the shift of power toward Berlin with suspicion, arguing that local outbreaks can best be contained locally and that orders from the capital city will just make it more difficult to get people to accept the rules. Support for strong states’ rights is particularly strong in southern Germany, but not only there.
“Germany has gotten through this time better than any centralized government in Europe,” says Saxony Governor Michael Kretschmer of the CDU. “If 16 state governors discuss an issue, there is a higher probability that you are closer to reality and that a balanced result comes out than would be the case in Élysée Palace (the president’s office in Paris) or in the Warsaw government palace.” What really needs to be done, Kretschmer argues, “is to strengthen that federalism rather than question it.”
The offices of many state governors point out that the provisions of the planned emergency brake are already in force in many places and have already been decided in the regular meetings between the governors and the chancellor. In Bavaria, for example, almost all districts already have a curfew after 10 p.m. Bavarian Governor Markus Söder argues that in addition to the national emergency brake, more needs to be done to “consider” how to get the third wave under control. He believes that the main responsibility still lies with the states.
The Rhineland-Palatinate governor’s office in Mainz is even of the opinion that the new rules aren’t needed at all. Governor Malu Dreyer of the SPD says that in some cases, the state regulations are stricter than the ideas of the federal government. In her state, for example, schools are required to close once and incidence of 100 infections per 100,000 residents is reached.
Dreyer also considers other federal proposals questionable, like closing zoos and animal parks once an incidence of 100 as been reached. Government officials in Mainz note that the danger of infection outside is far lower than inside. And Hesse Governor Volker Bouffier of the CDU argues that the draft’s limits to visitors in a person’s private apartment is neither constitutional nor policeable.
So, will the federal law become a flop before it even goes into effect?
Bodo Ramelow of the Left Party is one of the few state governors who supports the law. “A uniform set of rules is important,” says Thuringia’s head of government. He says it would mean that state leaders would no longer have to consult with and possibly bend to all interest groups. He names Bavaria’s Markus Söder as an example: “He was the first to open the home improvement stores.”
Sophie Schönberger, a constitutional law expert at the University of Düsseldorf says that the transparent procedure in parliament would be “preferable” to the more opaque meeting between state governors and Merkel. “It is to be hoped that the federal government will take up this responsibility and that this isn’t just some one-off action. Otherwise, the relationship of competences will become even more opaque.”
Meanwhile, the Chancellery is sticking to the plan despite the massive criticism – and officials there also point out that some state heads or municipalities have not adhered to the rules agreed upon with the chancellor. In view of the sharply rising numbers of new infections, action needs to be taken now, they argue. An effect can only be achieved with “drastic measures.”
For that to happen, though, those measures would have to take effect very quickly. And not first when the apocalyptic warning of the intensive care physicians have come true.