Though disaster relief responses are administered by the German states (Bavaria already declared a state of emergency on Monday), the federal government in Germany has the option of declaring a nationwide state of emergency, which has never happened in the country’s post-war history.
Before the state of emergency: Infection protection law
There is an important caveat to begin with in the current situation: The German government may not even have to implement a state of emergency, as it is already using powers imparted under the “Infection Protection Law” of 2001.
This gives the government powers to limit some constitutionally-mandated freedoms during an epidemic: Namely, the freedoms of movement, assembly, and the inviolability of the home. However, if stronger powers are deemed necessary, then a state of emergency can be implemented.
What is a state of emergency?
The main purpose of a state emergency is to secure the government’s ability to act in a crisis. That means the declaration expands executive powers and restricts the powers of the parliament, which, in the event that parliamentarians cannot convene, can be reduced to a kind of skeleton assembly: a “Joint Committee” made up of 48 legislators: two-thirds of whom are members of the lower house, the Bundestag, and one-third of the upper house, Bundesrat.
The state of emergency was regulated in the German Emergency Acts, passed in 1968 after a long discussion, fueled in part by memories of the Nazi regime and how its rise to power was aided by emergency measures enacted in the Weimar Republic. The 1968 Acts were incorporated into various parts of the German constitution, or Basic Law.
The acts define different plans for four different states of emergency: states of defense (a military attack), states of tension (an intermediate stage before a state of defense), internal emergency (defined as a threat to the basic democratic order), and natural disasters.
The coronavirus could be defined as a natural disaster, but since it makes mass gatherings like parliamentary sessions dangerous, the government may be forced to call the current crisis an internal emergency, as the democratic process is under threat.
What does a state of emergency allow the government to do?
A state of emergency is defined differently in the different German states, but in general it gives the government extraordinary powers to take control of hospitals and medical equipment, centralize control of all emergency services, impose quarantines, and set up road blocks.
In Germany, depending on what kind of state emergency is called, it also allows for the restriction of certain freedoms otherwise defined in the Basic Law.
One of these freedoms has already been heavily circumscribed by the coronavirus: the freedom of movement, as defined in Article 11, which already says that freedom of movement may be limited “to combat the danger of an epidemic.” The danger of an epidemic is also defined as a reason to limit the inviolability of the home.
Similarly, Article 12 of the Basic Law, which guarantees the right to “occupational freedom,” also includes a paragraph saying that under a “state of defense,” citizens may be obliged by law to join “civilian services for defense purposes, including the protection of the civilian population.”
Meanwhile, Article 10, which guarantees the right to the privacy of mail and telecommunications, can also be restricted,” if the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land.”