Concept and Introduction: The Federal Emergency Brake
The so-called Federal Emergency Brake was a nationwide regulation in force in Germany during the COVID-19 pandemic, aimed at curbing the spread of the SARS-CoV-2 coronavirus. The Federal Emergency Brake provided uniform and binding rules regarding the protective measures that would take effect nationwide in individual districts and independent cities once a certain incidence rate was reached. The legal basis for this was an amendment to the Infection Protection Act (IfSG). The Federal Emergency Brake was designed as a temporary statutory response to the infection situation and came into force on April 23, 2021.
Legal Basis of the Federal Emergency Brake
Amendment of the Infection Protection Act (IfSG) by the Fourth Population Protection Act
The legal implementation of the Federal Emergency Brake was carried out through the Fourth Act to Protect the Population in the Event of an Epidemic Situation of National Significance (Fourth Population Protection Act – BGBl. I p. 802), passed on April 22, 2021. With this legislative amendment, Section 28b IfSG was newly introduced. The main content was that from a 7-day incidence of 100 on three consecutive days in a district or independent city, standardized protective measures were automatically and immediately applicable.
Aim and Regulatory Purpose
The Federal Emergency Brake established a unified national approach to effectively contain the infection rate and ensure medical care. Through this statutory mechanism, the legislator aimed to restrict the federal states’ discretion in decision-making, in order to avoid differing regulations and the resulting incoherence.
Content and Application of the Federal Emergency Brake
Spectrum of Measures According to Section 28b IfSG
The Federal Emergency Brake regulated, among other things, the following measures:
- Curfews: Leaving one’s home or property between 10 p.m. and 5 a.m. only permitted in justified exceptional cases.
- Contact Restrictions: Limiting private gatherings to one’s own household and a maximum of one additional person.
- Retail and Services: Closure of non-essential shops, with exceptions for grocery stores, pharmacies, and drugstores.
- School and Education: Alternating or remote instruction from certain incidence rates; additional testing requirements.
- Leisure, Sports, and Culture: Closures of leisure, sports, and cultural venues; ban on certain leisure activities.
Automatic Commencement and Expiry
The measures of the Federal Emergency Brake were triggered automatically as soon as the 7-day incidence exceeded 100 on three consecutive days in a district or independent city. They lapsed as soon as the incidence fell below this threshold for five consecutive days.
Constitutional Aspects and Court Decisions
Compatibility with the Basic Law
The Federal Emergency Brake resulted in profound interventions in fundamental rights, particularly regarding personal freedom (Art. 2 Basic Law), freedom of assembly (Art. 8 Basic Law), freedom of occupation (Art. 12 Basic Law), and the right to education (Art. 7 Basic Law). The legislature justified this with the duty to protect life and health of the population (Art. 2 para. 2 sentence 1 Basic Law) as well as the principles of proportionality.
Constitutional Court Reviews
Several abstract judicial review applications and constitutional complaints were submitted to the Federal Constitutional Court. In several rulings (including BVerfG, Order of November 19, 2021, 1 BvR 781/21, 1 BvR 798/21), the Court decided that the core regulations of the Federal Emergency Brake were compatible with the Basic Law. The Court emphasized the legislator’s aim to protect life and health, as well as to prevent an overburdened healthcare system.
Systematics and Differentiation from Other Measures
Relation to State Law and Distribution of Federal Competencies
The Federal Emergency Brake led to a significant centralization of infection control law during an epidemic emergency. Previously, legal responsibility had primarily lain with the federal states, which issued their own coronavirus protection ordinances. Once the requirements of Section 28b IfSG were met, the federal law overrode these regulations.
Distinction from Other Crisis Instruments
The term “emergency brake” is also used in the context of other pandemics or disasters; legally, however, it explicitly refers to the mandatory automatic application set by law. In this respect, the Federal Emergency Brake differs especially due to its nationwide, non-modifiable, and immediate binding effect.
Expiry and Aftereffects
Expiry of the Regulations
The legal provisions of the Federal Emergency Brake (especially Section 28b IfSG) were limited in time from the outset. Section 28b IfSG expired on June 30, 2021. Subsequently, no further comparable nationwide uniform regulations were enacted; instead, regionally differentiated measures were implemented once more.
Evaluation and Assessment
The Federal Emergency Brake has been the subject of extensive scientific and societal evaluation. In retrospect, the rapid and nationwide handling was welcomed on the one hand, but criticism was also voiced regarding the intensity of fundamental rights restrictions and their social as well as economic consequences. Court-confirmed assessments underlined the exceptional nature of the measures in light of the epidemic situation at that time.
Overview and Significance in the German Legal System
The Federal Emergency Brake serves as a significant example of the temporary centralization of decision-making powers in health emergencies. Its existence documents the federal government’s ability, in situations of exceptional danger, to issue regulations that apply immediately and bindingly to all states.
The provisions of the Federal Emergency Brake thus form an important example of governmental crisis management within the federal system of the Federal Republic of Germany and serve as a reference case for the legal handling of pandemic-related exceptional situations.
Frequently Asked Questions
When did the Federal Emergency Brake come into force, and what was its legal basis?
The Federal Emergency Brake came into effect on April 24, 2021, based on an amendment to the Infection Protection Act (IfSG), specifically Section 28b IfSG. This was the first time the federal government issued binding and nationwide regulations for pandemic control, which had previously fallen under the jurisdiction of the federal states. The legislative amendment stipulated that certain protective measures (e.g., curfews, school closures, contact restrictions, etc.) had to be triggered automatically if the seven-day incidence of 100 new infections per 100,000 inhabitants was exceeded in districts or independent cities for three consecutive days. The regulation aimed at legally secure, transparent, and nationwide uniform management of pandemic-related measures.
What measures could be legally imposed through the Federal Emergency Brake?
The Federal Emergency Brake enabled the federal government by law to impose extensive contact restrictions, curfews between 10 p.m. and 5 a.m., far-reaching restrictions on retail, sports, leisure facilities, gastronomy, as well as on schools and kindergartens. Of particular legal importance was the fact that these measures were no longer at the discretion of the states, but applied directly by federal law. All restrictions were directly based on a statutory basis and were therefore constitutionally and organizationally supported. The specific measures were spelled out in Section 28b IfSG, meaning no separate state regulations were needed, and legal certainty was established immediately.
What role did courts play in reviewing the legality of the Federal Emergency Brake?
The measures of the Federal Emergency Brake were subject to numerous judicial reviews. The Federal Constitutional Court had to decide in several summary proceedings as well as the principal proceedings whether the regulations were permissible, particularly with regard to fundamental rights such as freedom of assembly, occupational freedom, and inviolability of the home. By order of November 30, 2021 (1 BvR 781/21 et al.), the Court confirmed that the legislative change was essentially constitutional, since the legislature had wide discretion given the pandemic circumstances and the interventions had been shaped proportionately. Nevertheless, the Court also highlighted the requirements for an adequate statutory authorization basis and proportionality.
What was the significance of the principle of proportionality when applying the Federal Emergency Brake?
The principle of proportionality was a central standard for the legal evaluation of the Federal Emergency Brake. Each measure had to be suitable, necessary, and appropriate to achieve its intended goal—protecting public health and preventing an overburdening of the health care system. Courts examined in individual cases whether milder means were available or whether the restrictions were proportionate to the intended benefit. Constitutional review by the Federal Constitutional Court emphasized that interventions in fundamental rights can be justified in view of the pandemic situation, but the proportionality principle must always be tested.
How does the Federal Emergency Brake differ legally from previous infection control measures?
Whereas previously the federal states were able to decide largely independently on infection control measures under Section 32 IfSG, the Federal Emergency Brake shifted this discretion in favor of the federal government from April to June 2021. The essential difference was the transition from executive orders of the states to directly applicable federal laws, that is, from state-specific discretionary powers to binding and nationwide mandatory measures. This centralization, from a rule-of-law perspective, stood in tension between the federalism principle and the need for equal risk prevention throughout Germany.
Were there exceptions or legally regulated deviations from the Federal Emergency Brake measures?
Yes, the law provided for various exceptions. For example, curfews did not apply to people in medical emergencies, commutes to work (where no alternative was possible), or care for dependent persons. Furthermore, Sections 28b paragraphs 2 to 4 and other provisions set out specific areas in which the states could allow relaxations under certain conditions, such as revoking measures when the incidence fell below the threshold. However, exceptions were narrowly and conclusively regulated to ensure uniform nationwide standards.
What control and sanction mechanisms did the Infection Protection Act establish during the Emergency Brake?
The Infection Protection Act stipulated that violations of the Federal Emergency Brake measures were considered administrative offenses and could be sanctioned by authorities with fines (§ 73 IfSG). The supervision of compliance remained the responsibility of the state authorities, in particular public order and health offices and the police. In addition, reporting requirements for infection figures were precisely regulated to determine the incidence threshold without doubt and with legal certainty.**
How and when was the Federal Emergency Brake legally repealed?
The validity of the Federal Emergency Brake was materially and temporally limited in the law. It automatically expired at the end of June 30, 2021 (§ 28b para. 10 IfSG old version), without the need for further repeal by legislature or administration. As the incidence figures declined and the pandemic situation changed, the legislature did not adopt an extension and instead returned to a more federalist infection control regime. The temporary nature of the regulation was also evaluated from the rule-of-law perspective as a measure to preserve proportionality and limit infringements on fundamental rights.
