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Name of the act/s* |
§ 28 Infektionsschutzgesetz (IfSG) – Art. 28 of the Infection Protection Act, amended by Law of 27 March 2020 |
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Subject area |
Covid-19 measures |
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Brief description of the contents of the act |
Following the amendment by Law of 27 March 2020, Art. 28 of the Infection Protection Act enables “the competent authorities” to oblige persons not to leave the place where they are located (or only under certain conditions) and not to enter specific places or public places. |
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Comment |
To counter the current Covid-19 pandemic, Germany did not resort to the so-called “emergency constitution”, i.e. the constitutional framework set by the German Constitution itself to address external or internal emergencies. Measures to counter the spread of the Coronavirus were simply based on the Infection Protection Act (Infektionsschutzgesetz - IfSG). However, it was questionable whether the Infection Protection Act, in the version in force at the moment of the pandemic’s outbreak, provided for a solid legal basis for the adoption of all measures deemed necessary to effectively protect public health. Doubts arose, in particular, on whether a prohibition to leave the place of residence (Ausgangssperre) could be validly ordered under Art. 28 of the Infection Protection Act. In its version in force until 27 March 2020, that provision read: “the competent authorities […] can oblige persons not to leave the place where they are located […] until necessary protective measures have been taken”. This seemed unfit to cover a lasting ban to leave one’s house, also because the provision did not mention freedom of movement (Art. 11, para. 1 of the German Constitution) among the freedoms that could be restricted through these measures. Law of 27 March 2020 amended Art. 28 accordingly, repealing the reference to the temporary nature of such measures (“until necessary protective measures have been taken”) and explicitly mentioning freedom of movement among the freedoms that can be restricted. This was to comply in particular with Art. 19 of the German Constitution, which requires that “the law must specify the basic right affected and the Article in which it appears” when it restricts basic rights (so called Zitiergebot). |
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Secondary sources/ doctrinal works (if any) |
Further readings: L. Hering, Covid-19 and constitutional law: the case of Germany, in J.M. Serna de la Garza (ed.), Covid-19 and Constitutional Law, Universidad Nacional Autónoma de México, Mexico City, 2020, 149-156 |
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*Act citation /year and number |
§ 28 Infektionsschutzgesetz (IfSG), amended by Law of 27 March 2020 (BGBl. I S. 587) |
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Enacted by |
German Bundestag |
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Official link to the text of the act |
- Davide Paris
- Germany