Bayern and Saxony have shut down bars, restaurants and hotels based on the OLD Infection Protection Act which is set to expire on November 24th. This is a loophole that they are using to ram in a lockdown for the unvaccinated.
The new Infection Protection Act does not provide for the closure of hotels and restaurants. Nevertheless, federal states are currently taking tough action, closing restaurants and imposing accommodation bans. This is loophole is possible because the “old” Infection Protection Act is currently still in force. The situation will change in five days.
The German federal states can only use this loophole before the 24th of November
▶ All federal state ordinances and general directives at state level that come into force or have come into force by November 24, 2021 will remain in force until December 15, 2021 at the latest. This means that the federal states still have the option of tightening their corona regulations by November 24, 2021 and, for example, of imposing a lockdown in individual industries.
▶ These state regulations can apply until December 15, 2021 at the latest. Then the federal states will have to issue new corona ordinances taking into account the new Infection Protection Act, so that a lockdown for the exceptions listed above will no longer be possible.
The state premiers’ conference on the 18th of November
The state premiers’ conference yesterday decided, among other things, on a step-by-step plan on which future measures in the federal states are to be based:
▶ The central criterion is the nationwide hospitalization rate.
▶ Fortunately, bridging aid III Plus will be extended.
▶ In addition, it was agreed that the federal states should ensure that vaccinated citizens can receive a booster vaccination.
Increased controls of the regulations are intended to prevent abuse and to guarantee compliance with them as far as possible. It is to be welcomed that the regulatory loophole on criminal liability for falsifying health certificates and their use will be closed in a timely manner.
What is the legal situation according to the new Infection Protection Act?
Major changes to the Infection Protection Act
▶ One of the changes to the Infection Protection Act is that the epidemic situation of national scope will expire on November 25th. Instead, a catalog of measures is planned, which includes nationwide 3G regulations in public transport and at the workplace.
▶ Stricter corona measures by the federal states are still possible. The federal states should expressly be given the opportunity to regulate contact restrictions in private and public spaces. This also includes 3G and 2G regulations, for example in gastronomy.
The federal states cannot decide:
- Prohibition or restriction of the operation of catering facilities,
- Prohibition or restriction of accommodation offers,
- Prohibition or restriction of travel; this applies in particular to tourist trips,
- Closure or restriction of businesses, businesses, retail or wholesale,
- Prohibition or restriction of sporting events and the practice of sport.
However, there is a transitional regulation for the federal states in the Infection Protection Act, according to which, under certain conditions, they also have the option of ordering closings. This requires the adoption of resolutions by the state parliaments.
All state ordinances and general orders at state level that come into force or have come into force by November 24, 2021, remain in force until December 15, 2021 at the latest. This means that the countries still have the option to tighten their corona regulations by November 24, 2021 and, for example, to impose a lockdown in individual industries. These state regulations can apply until December 15, 2021 at the latest. Then the federal states will have to issue new corona ordinances in compliance with the new Infection Protection Act, so that a lockdown for the exceptions listed above is no longer possible.
The 5 relevant passages of the new Infection Protection Act in Germany
1. Comprehensive 2G regulation from threshold value 3 (section 8)
Corona disease is more severe in people who have not been vaccinated. They show a significantly higher risk of infection for others. Therefore, special measures are necessary and justified. If the hospitalization rate shown for the respective country exceeds threshold value 3, the states will therefore, if not already done, access to leisure events and facilities, cultural events and facilities, sporting events and exercises, dining facilities and other events – indoors – , as well as body-oriented services and accommodation for vaccinated and convalescent people ( comprehensive 2G regulation) to break the infection dynamics. The intensity of the implementation takes into account the regional infection rate. If the threshold value is not reached for five days in a row, the above regulations can be waived again. […]
It is still open whether all countries, including those that have not yet exceeded threshold value 3 for the hospitalization rate, will introduce 2G in the new ordinance regulations. There are many indications that 2G will be introduced nationwide in the next few days.
2. 2G-plus regulation from threshold value 6 (section 9)
If the hospitalization rate shown for the respective country exceeds threshold value 6 , the federal states will also make exceptions and relief measures for protective measures dependent on the existence of a negative test result, even for vaccinated and recovered persons ( 2G plus ). This will mainly be done in places where the risk of infection is particularly high due to the number of people and the more difficult compliance with hygiene measures, especially in discos, clubs and bars. If the threshold value is not reached for five days in a row, the above regulations can be waived again.
This raises the question of whether 2G plus can only be introduced for discos, clubs and bars or whether the wording also means that 2G plus can also be adopted by the state governments for restaurants and hotels with a threshold of 6 or more . The wording is ambiguous, but suggests that restaurants and pubs could also be subsumed under the sentence marked above.
3. State opening clause from threshold value 9 (section 11)
The states will – subject to the approval of the state parliaments – in the event of a particularly high infection rate with a particularly high burden on the public health system – at the latest when the hospitalization rate shown for the respective country exceeds threshold value 9 – in the respective country consistently make use of the further options of the Infection Protection Act and in the Within the framework of the state regulations together with the state parliaments – take the necessary measures (state opening clause).
The Infection Protection Act passed yesterday by the Bundestag and today by the Bundesrat contains a so-called state opening clause for these more extensive measures above a threshold value of 9.
4. Intensification of controls (items 8 and 12):
[…] Adherence to the access regulations is monitored consistently and even more intensively than before. Where possible, the provision of a QR code registration will be ordered to facilitate the tracking and interruption of chains of infection. And further in section 12: The protective measures described can only develop their full effect – and subsequently be quickly reduced again – if they are reliably adhered to. This requires strict control, for example of vaccination, recovery or test certificates, with corresponding access restrictions. The organizers and operators of facilities are responsible here, as negligent controls increase the risk of infection and promote the spread of the virus.
The federal states will therefore exhaust the range of fines, for their part increase the density of controls and resolutely sanction violations. From the point of view of the heads of government of the federal states, it is to be welcomed in this context that the closure of gaps in criminal liability in the case of forgery of health certificates (e.g. vaccination certificates) called for in the resolution of the federal states of October 22, 2021 is now to be implemented by law.
5. Extension of the bridging allowance (section 18):
In addition to short-time work benefits, the bridging aid is the most important instrument to help companies particularly affected by the pandemic. The federal government will extend the bridging aid III Plus (including the restart aid) and regulations on short-time work by three months until March 31, 2022. […]