Coronavirus in Germany - permissible measures to combat proliferation

To control communicable diseases, the competent authority has various protective measures at its disposal, which can also be enforced, if necessary. If circumstances so require, basic rights such as the right to free development of the personality (Article 2 (1) of the German Basic Law), the right to physical integrity (Article 2 (2) Basic Law), the freedom of assembly (Article 8 Basic Law), privacy of correspondence, post and telecommunications (Article 10 Basic Law) and also the inviolability of the home (Article 13 Basic Law) can be restricted under consideration of the principle of proportionality.

Thus, according to the general clause of Section 28 German Protection against Infection Act (IfSG), certain measures must be taken as far and for as long as necessary to prevent communicable diseases. The competent authority has a duty to take action as and when these conditions are fulfilled. It has discretionary powers only with regard to the measures to be taken in individual cases. As a possible measure, the person concerned may be obliged not to leave the place where he/she is located or not to enter certain places until necessary protective measures have been taken.

Special powers are regulated in Section 29 to Section 31 IfSG. According to Section 29 IfSG, affected persons may be subjected to observation and in this context must tolerate certain examinations and comply with the directives of the health authority. They are also obliged to allow the health authority representatives to enter their home for the purposes of questioning or examination.  In addition, the authorities can order the quarantine of the persons concerned in accordance with Section 30 (1) 2nd sentence IfSG. In such cases, the affected persons must be isolated either in a suitable hospital or in any other suitable way. If the person concerned does not comply with the order, it may be compulsorily enforced by the placing of that person in a closed hospital or in a closed part of a hospital. Furthermore, Section 31 IfSG also provides for the possibility of a ban on professional activities.

The governments of the German regions (Laender) shall determine the competent authority by decree in accordance with IfSG, unless statutory provisions exists under the law of the federal state. In North Rhine-Westphalia, where a serious case occurred recently, the local authorities of the cities and municipalities responsible for law and order are responsible for the control of communicable diseases. Section 3 of the North Rhine-Westphalia Decree on the Arrangement of Responsibilities under the German Infection Protection Act (Verordnung zur Regelung von Zuständigkeiten nach dem Infektionsschutzgesetz, ZVO-IfSG).

Objections raised and actions challenging measures ordered under Section 28 et seqq. IfSG have no suspensive effect. Therefore, any orders may only be challenged in court by means of summary proceedings.

The German Protection against Infection Act (IfSG) provides for compensation only in certain cases. This is, inter alia, the case if for example a person suspected of having or being able to pass on the disease, i.e. a person who has not (yet) been diagnosed as actually suffering from the communicable disease, is banned from employment and thus suffers a loss of earnings. In such a case, the person concerned is entitled to compensation equal to his or her net salary. These amounts shall be paid by the employer and may be reimbursed by the competent authority on request. If the ban on employment should last for more than six weeks, compensation is to be paid from the seventh week onwards at the level of sickness benefit. The German Continued Payment of Wages and Salaries Act (Entgeltfortzahlungsgesetz) applies to a person who is actually ill and who is incapable of working. There is no entitlement to compensation under the German Protection against Infection Act (IfSG).