COVID-19 and Cooperative Administrative Federalism in Germany

Germany’s response to COVID-19 consists of federal delegation, state regulation, and multi-level cooperation.

In early March, the number of recorded COVID-19 cases in Germany started rising. The Robert Koch Institute, the German federal authority for public health and infectious diseases, had registered just over 260 cases of COVID-19 infections all over Germany by March 4. Of those, 113 cases occurred in the district of Heinsberg in North Rhine Westphalia alone—the first major outbreak in Germany. In the following days, the numbers climbed rapidly. By March 14, the total had reached nearly 3,800 confirmed cases. The next day, Germany recorded for the first time more than 1,000 new cases on a single day.

At that point, German authorities began to enact drastic legal measures aimed at containing COVID-19. Some measures, such as the establishment of temporary checks at and partial closures of Germany’s external borders, remained in the federal domain. To implement other measures, the federal government and the governments of the 16 German states coordinated to issue common guidelines explicitly seeking to provide a “uniform approach.”

The common guidelines issued by federal and state governments on March 16 announced the closure of bars, clubs, theaters, museums, playgrounds, sporting facilities, and most retail outlets. The guidelines also included strict rules on social contact in hospitals and nursing homes, as well as a ban on social gatherings, including those of religious communities. The guidelines also expressed a common understanding that all universities, schools, and kindergartens should largely be closed.

About a week later, federal and state governments intensified the containment measures, particularly social distancing orders. These updated guidelines, issued on March 22, included a ban of public gatherings of more than two people outside of families and households, a minimum distance of 1.5 meters between people in public, and the closure of restaurants except for food delivery and pickup.

These federal and state guidelines are not legally binding instruments—the broad political power of federal and state governments’ joint authority, however, ensured their immediate implementation through formal legal measures.

During the implementation process, a federal statute called the Infektionsschutzgesetz, or the Infection Protection Act (IfSG), became central. The IfSG empowers state governments to issue regulations to control communicable diseases, while also incorporating additional substantial requirements on protective measures, quarantine, and the prohibition of professional activities. The IfSG’s provisions on protective measures were amended by federal statute on March 27 to cover stay-at-home orders and regulations of visits to public places, but have otherwise remained largely unchanged since the law’s enactment in 2000.

The rather open statutory language of the provisions of the IfSG that allows for subsequent state regulation of protective measures has raised concerns about the specific determinacy requirements for statutory instruments under Article 80 of the German Federal Constitution—which requires that content, purpose, and scope of a delegation of authority to issue such regulations must be specified in law. These concerns, however, have been rejected by some state courts. For example, in recent decisions, the High Administrative Court of Bavaria and the High Administrative Court of North Rhine-Westphalia affirmed the overall constitutionality of these provisions of the IfSG, holding that these provisions provided adequate determinacy. Both courts rejected the petitioners’ motions that sought preliminary injunctions against particular provisions of the states’ COVID-19 regulations.

State governments’ COVID-19 regulations under the IfSG have become the single most important legal source of containment restrictions. Not only do these regulations implement the broad range of instruments included in the common guidelines, but they also include additional instruments. For example, one after another, all German states introduced the duty to wear face masks in shops and public transport through amending state regulations.

Many state COVID-19 regulations include sunset clauses that provide for their expiration, typically after one to several weeks. These time limits are legal features intended to ensure the proportionality of ends and means and to ease the enormous burden on fundamental rights that the containment measures represent.

State governments regularly renew expiring COVID-19 regulations with updated versions that adjust containment requirements to changing circumstances. In addition, the IfSG allows for state governments and local authorities to implement measures through the legal instrument of “general orders” or “general decrees.” This specific type of administrative act has been applied, for example, to impose a preliminary stay-at-home order for the state of Bavaria, as well as to regulate local retail sales in the state of Duesseldorf. Federal authorities play only a minor role in the implementation of the common guidelines—for example, in containment measures vis-à-vis federal facilities.

The containment measures announced in the common guidelines on March 16 and updated on March 22 began to take measurable effect about three to four weeks after they were issued. The daily count of new COVID-19 infections peaked in early April at about 6,000 new cases daily. The numbers dropped to about 4,000 new cases on April 8 and eventually levelled out at around 1,000 new cases per day in early May. As of May 12, the overall number of confirmed COVID-19 infection cases in Germany stands at over 170,000 and COVID-19-related deaths at about 7,600.

The central role of federal and state governments in both guideline-setting and implementation reflects two traditional patterns of federal governance in Germany: administrative federalism and cooperative federalism.

As explained by Thomas Hueglin of Wilfrid Laurier University and Alan Fenna of Curtin University, the notion of administrative federalism, also referred to as executive federalism, is derived from the constitutional allocation of administrative competences in the German Federal Constitution, which generally entrusts the German states with the implementation of federal legislation. In the context of COVID-19, state governments’ implementation of the IfSG is key to the German containment approach.

The notion of cooperative federalism, as Tanja A. Börzel of Freie University, Berlin explains, refers to the strong role of state governments in federal lawmaking—by way of state representatives serving in the second chamber of the German federal parliament, the Bundesrat—as well as fiscal equalization in the federation. Cooperative federalism also refers to an institutional culture of federalism with “multilateral bargaining and consensus-seeking” as dominant features. In the context of COVID-19, such a cooperative institutional culture is visible in the nationwide containment measures established by the common federal and state guidelines.

Compared across the field of administrative law, however, features of the legal structure of Germany’s governance of COVID-19 containment have been extraordinary.

First, the delegation of rulemaking authority to state governments by federal statute, as in the IfSG, is anticipated in the Constitution but is still not very common. This delegation structure differs significantly from the widely used structures that base federal regulations on federal statutes and state regulations on state statutes. Because state governments do receive rulemaking authority directly from the federal statute, the implementation of common guidelines on COVID-19 containment does not depend upon state legislatures.

What is more, the accountability relation between the delegating authority—here, the federal legislature that enacted the IfSG—and the recipient of the delegation—state executives—is very loose. In the German model of parliamentary democracy, there are strong institutional connections between legislatures and executive officials at both the federal and state level of governance. For example, parliaments elect the federal chancellor and the minister presidents of the states as the executive heads of government and may also exert broad parliamentary control over executive action. These institutional connections and checks, however, do not exist across the federal and state levels.

Second, in the area of disease control, European Union regulatory authorities are largely absent. This differs significantly from areas such as financial regulation, environmental law, energy law, product safety, or data protection. Legal reform following the COVID-19-pandemic may well lead to a greater role of the European Union in disease control, and in turn, to a smaller role for federal and state cooperation on the national level.

At the end of April, against the backdrop of the flattening curve of new infections, political and legal discourse turned to strategies for easing containment measures. After consultation between federal and state authorities, the governments eased various restrictions including those on museums, playgrounds, shops, restaurants, and visits to care homes, while other restrictions remained in place, including social distancing requirements.

In general, with the growing perception that Germany has met the containment goals for the “first phase” of the COVID-19 pandemic response, the degree of uniformity in federal and state action has been reduced in favor of political autonomy and individual state responsibility. Federal and state governments, however, have agreed on a containment clause that allows for the return to stricter containment measures within a particular district or city if more than 50 new infections per 100,000 residents are recorded within seven days.