• Prof. Maximilian Werkmüller

What can the state do?

In the Corona crisis, the government has demanded considerable restrictions from citizens. Was that legal? And: Was it proportional? Maximilian Werkmüller, professor at the Allensbach University, provides answers.

Anyone dealing with such issues would do well to think back briefly to March of this year. Numerous sick people had to receive intensive medical care. The health systems of our neighbours collapsed. The "Triage" could be read about.

That the federal government wanted to spare the German population similar conditions and images is understandable (ex ante as well as ex post). The Infection Protection Act gives the Federal Government and the Länder the opportunity to take appropriate measures to protect the population. This already provides a substantial answer: The state must protect against threats. It not only "may" do so, it "must" do so. And this protection can also be linked to the restriction of fundamental rights. During the lockdown, this was exercised across the board. The most recent amendment to the Infection Protection Act, which involves the most extensive reduction of civil democratic freedoms since the 1968 Emergency Powers Act, is also a priori unobjectionable. Nevertheless, the "spice" lies in the application of the law by the administration and the time limit of the measures. This must be appropriate.

The foreseeable consequences for the economy are already devastating. The longer acknowledged virologists contradict themselves publicly, the longer the life of citizens is reduced to their own four walls and the more often it is reported that the emergency capacities provided have, thank God, been used only to a minimal extent, the greater the pressure on state bodies to justify relaxing the restrictions on personal freedom.

In the meantime, the first courts have had to deal with the Covid19-related restrictions. In particular, control engineering was the subject of several proceedings. These concerned how fundamental rights may be restricted - only by law and not by a general ruling, which is roughly on a par with a "nod". In Bavaria, following criticism from the Munich Administrative Court, the state government had also subsequently chosen the "higher" instrument in the hierarchy of norms, a statutory instrument based on a law, in order to retroactively cure potential constitutional shortcomings - a learning curve with a signal effect. If at the beginning of the lockdown the courts still supported the ordered measures, the Constitutional Court of the Saarland recently questioned the suitability of a lockdown with regard to the goal to be achieved per se - a resounding slap in the face for the administration. These and similar decisions remind those in power to adapt the scope of the restrictions to the respective development of the situation.

The protection of fundamental rights for citizens is provided above all by the European Court of Justice and the Federal Constitutional Court: only these courts can overrule norms and laws immediately and for the future, and can themselves lay down a regulation until the legislator has made improvements.

"Flatten the curve" - this declared goal was (apparently) achieved. The most important question now is: What happens in the event of a second wave? Is the state allowed to impose another lockdown and thus deal a certain death blow to parts of its own economy despite comprehensive aid? Certainly not. In this case, I believe that there will be proceedings even before the Constitutional Court. The fact that the "guardians of the constitution" have currently, for the first time, accepted complaints by citizens against the bond purchases by the ECB is, in my view, a clear signal for the protection of fundamental rights in difficult times.

We will survive Corona and so will our system. Once the threat has abated, we will regain our freedoms - there is no doubt in my mind about that.

It is the Herculean task of the elected government to balance the conflicting interests of the sick on the one hand and the healthy and the economy on the other. To do this, you need a good overview, a clear head and a steady hand. So far, it seems, we have had plenty of that.

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