Find the original article in German at freiheit.org
To handle the current COVID-19 crisis, Germany can learn from the crisis management experience of the French constitutional bodies. Just in time, the Bundestag has taken a path to hopefully save us from a long-lasting legal exceptional situation. It could have been even stricter.
After the French government initially banned gatherings of groups of people and closed numerous public facilities, a so-called “confinement” entered into force in France on 17 March. These initial restrictions were based on articles L. 3131-1 of the Public Health Code (CSP), passed in the wake of the SARS epidemic of the early 2000s. In the meantime, the French legislator has incorporated them into the legal regime of a new state of emergency. In order to contain the spread of the SARS-CoV-2 virus, the government – now on the basis of the new state of emergency – has banned anyone from leaving their home anywhere in France unless it serves one of the eight reasons listed exhaustively. These include, for example, not being able to move to work (1°), making necessary purchases for professional or private reasons (2°), seeking medical assistance (3°) or “moving for a short period of time close to home in order to exercise alone or walk pets” (5°). The last exception in particular, which is in practice relevant for most citizens, has been successively strengthened: exercise outside is limited to once a day, for one hour and within a radius of 1 kilometre of the domicile. The French exception differs from the German restrictions, which some regions have adopted recently following the example of Bavaria. It differs particularly insofar as that reasons for leaving one’s home are conclusive (no examples for the rules) and that the justification for being outside must be proven on request with a document filled out and signed by the person (government form for a declaration on oath).
The Road to a New State of Emergency
The abovementioned measures in France were provided with a legislative foundation through Law No 2020-290, which entered into force on 25 March 2020, following the example of the French “Etat d’urgence” (state of emergency). Prime Minister Edouard Philippe had announced this step, known as the “Etat d’urgence sanitaire” (state of health emergency), early on in order to establish the current organisation of the State in crisis management and to take necessary measures on a solid legal basis. The terminology of “Etat d’urgence”, which dates back to a law in 1955 at the time of the Algerian war, was chosen deliberately. It is in line with President Macron’s statement that “we are in a health war” (“Nous sommes en guerre sanitaire”). Both aim at disciplining the French population, which in significant numbers initially ignored the appeals for responsibility, and to swear them to a common task. Typically French in this respect: the drastic rhetoric conveys a message of seriousness and urgency to the population. In return, citizens expect their government to take the reins of action, as the state of emergency is proof of.
State of Emergency and State of Health Emergency: Similarities in Procedure, Differences in Substance
Both state of emergency regimes have in common that they are activated according to the same procedure. The competence lies with Art. 2 of Law No. 55-385 of 3 April 1955 on the State of Emergency or now with the new Art. L. 3131-13 CSP, it lies with the Council of Ministers (government as a collegial body). There is only one material condition for activation, the acceptance of which – following past experiences with the state of emergency – has never been challenged by the French administrative courts or the Constitutional Council. For the state of health emergency, the new Art. L. 3131-12 CSP requires the existence of “a sanitary disaster which, by its nature and extent, endangers the health of the population”. The government’s decision to declare a state of health emergency activates, initially for a period of one month, a series of powers that can only be applied in a state of emergency. If they are to remain in force beyond this period and not expire automatically, they require a parliamentary extension by law. In the current case, this has already been done as a precautionary measure for a period of two months. Following the terrorist attacks in Paris in November 2015, the state of emergency was activated and extended six times in total, thus remaining in force for two years. The parliamentary control that accompanied it revealed that the exceptional powers were only used intensively during the first few weeks after its activiation.
French jurists explain the duration of a long-term state of emergency through its psychological impact. According to experts, it is politically extremely difficult to end a state of emergency without being perceived as weak by the population at the same time. In fact, the two state of emergency regimes activate powers with different objectives: the “Etat d’urgence” (state of emergency) primarily promotes concrete individual measures against potential offenders posing a threat to public security, while the “Etat d’urgence sanitaire” (state of health emergency) promotes general measures for the comprehensive countering of a health hazard. Art. L. 3131-15 CSP contains ten new exceptional powers for the validity period of the state of health emergency.
The State of Health Emergency as a Model for Germany?
The French legislator is making a visible effort to place the powers considered necessary for crisis management on special, halfway detailed legal bases. Whether the German Bundestag has succeeded in doing this in revising the central provision of § 28.1 sentence 1 BIfSG (law aiming at protecting against infections, “Infektionsschutzgesetz”; arguments for / against), and whether it has set sufficiently high intervention thresholds in the process, is not the focus of attention here. It is, however, to be welcomed that it regulates curfews, curfew restrictions and contact bans. The fact that individual powers could only be used during a state of emergency has led in France to a situation where it remained in force considerably longer than necessary. The withdrawal from the declared exception is difficult. Not least the Bavarian Prime Minister Söder will have to prove that he can lead the Free State out of a state of emergency in a foreseeable future.
The French experience should serve as a wake-up call to the parliaments not to dwarf themselves. The Bundestag woke up in time. The law passed for the protection of the population in the event of an epidemic situation of national importance still provided in the cabinet version that only the federal government would be able to determine such a situation. The Bundestag and Bundesrat would have been limited to being able to simply demand its repeal. This would have put them in an even weaker position vis-à-vis the executive branch than the French parliament. It is correct that the Bundestag did not go along with this. It thereby assumes its responsibility to weigh up essential questions of (necessary) restrictions of freedom. By simultaneously adapting its Rules of Procedure, it has also ensured being able to take decisions even in current difficult times. However, it should have insisted more on the fact that the powers associated with the epidemic situation of national significance – above all the authority of the German Federal Minister of Health to issue regulations – remain temporary. The best way to do so would have been a strict time limit, according to which the exceptional situation would automatically expire within a few months unless the Bundestag decides an extension. The public debate associated with any extension would have increased the legal pressure to maintain the exemption.
Max Schulze is a doctoral fellow of the Friedrich Naumann Foundation for Freedom. The article was first published on 26.03.2020 on the JuWissBlog No. 39/2020.