By Sara Gerke
Many countries are looking these days to Germany’s approach to combating COVID-19. Although Germany initially experienced a high case rate, the country has been able to slow the spread of the virus and appears to have the situation better “under control” than other countries.
There may be various reasons for Germany’s successful handling of the pandemic so far, ranging from early testing for COVID-19 to high public outreach and transparency to increasing the number of ICU beds and ventilators.
Restrictions of Basic Rights
However, various measures have also been taken at the federal and state levels that restrict the basic rights of citizens. For example, social distancing and contact restrictions in public spaces have been introduced nationwide. In all federal states, individuals are required to wear a mask in certain public areas, such as supermarkets and public transport. In some states, such as Saxony or Bavaria, stay-at-home orders were temporarily imposed; individuals could leave their homes only in certain circumstances. Daily life came to a standstill.
These restrictive measures caused anger and frustration among some citizens, and protests have taken place in several cities since March.
Moreover, the German Federal Constitutional Court (BVerfG) is receiving many applications against COVID-19 measures; some have been lifted, others have not. For example, on April 15, the BVerfG ruled, by means of an accelerated procedure, that the Gießen assembly authority had incorrectly assessed the ordinance of the Hessian State Government to combat the coronavirus. The authority’s interpretation surmised a blanket ban on assemblies of more than two people who do not belong to the same household. On this basis, the authority banned the applicant’s assemblies, and thereby, the court ruled, violated the applicant’s basic right to freedom of assembly under Article 8 of the Basic Law for the Federal Republic of Germany (GG). One of the assemblies was carried out on April 17 in Gießen, but with conditions such as safe distancing and mouth protection.
Some citizens also filed constitutional complaints against temporary stay-at-home-orders imposed by some federal states. For example, the Bavarian Constitutional Court refused on March 26 to repeal the Bavarian Ordinance on a temporary stay-at-home order due to the COVID-19 pandemic. On April 24, the same court also rejected the repeal of the Second Bavarian Infection Protection Measures Ordinance on the stay-at-home order due to the COVID-19 pandemic. In contrast, the stay-at-home order in Saarland was lifted by the Saarland constitutional court with immediate effect on April 28.
Easing of Measures
The country now has fewer numbers of confirmed daily COVID-19 cases than at the beginning of the crisis, and chancellor Angela Merkel has said in a press conference on May 6 that “we have achieved the goal of slowing the spread of the virus.”
But the complete shutdown has left its mark, such as through corporate insolvencies and rising unemployment.
Germany is thus easing the measures step-by-step, for example, gradually reopening shops, restaurants, schools, and museums. Contact restrictions initially remain until June 5. The federal states mainly decide independently on the successive loosening of restrictions. However, a spike in new infections (50 per 100,000 inhabitants per week) would trigger the reintroduction of restrictive measures to stop the further spread of the virus in affected regions. The corona warning app planned for June could also help to interrupt chains of infection. The use of the app will be voluntary and comply with European and German data protection rules.
Despite the easing of measures, protests are ongoing. On May 13, Merkel made an appeal for perseverance: “It would be depressing if we had to go back to the restrictions we all want to leave behind because we want too much too quickly.” On May 12 and 13, the BVerfG confirmed the current political course by not accepting two opposing constitutional complaints, one against the easing of COVID-19 measures and one against the continuing restrictions.
It remains to be seen in the coming weeks how the new step-by-step plan will play out, but Germany is proceeding with caution and safeguards in place, and continuing to focus on scientific development as a means to combat the pandemic. In particular, testing for COVID-19, antibody tests, and the development of vaccines remain a high priority.
Testing for COVID-19
The first patient with COVID-19 was diagnosed in Germany at the end of January. At that time, Germany was already well prepared and had started to produce and store test kits. Christian Drosten and his team at the Charité in Berlin developed and made available the world’s first diagnostic test in mid-January. Germany not only tested for the virus early on but has also increasingly expanded its testing capacity: According to the Robert Koch Institute, over 3.1 million people have been tested so far. The widespread testing could also be one reason why the coronavirus mortality rate is lower than in other countries.
Antibody testing is carried out with blood samples and can help to identify individuals who may have been previously infected with the virus and may have developed COVID-19 immunity. According to the current state of knowledge, further studies, however, are needed to better understand the level of antibodies required for individuals to be immune and the length of protection they offer.
Many countries around the world are currently also considering to implement so-called “immunity passports” to allow people with COVID-19 immunity to return to work and everyday life. Such passports, however, raise several ethical concerns. The formulation aid for a draft of the Second Civil Protection Act to be introduced in the German Bundestag initially included the introduction of immunity passports. After fierce criticism, however, the relevant passages were deleted, and the bill of May 5 does not include such passports.
The Federal Minister of Health, Jens Spahn, said that the opinion of the German Ethics Council should first be awaited before legal regulations on immunity passports are considered.
The pharmaceutical company Roche has recently made headlines, as the company is scheduled to deliver three million antibody tests to health care facilities in Germany in May, and five million tests each month over the coming months. The new test seems to be highly promising, reportedly having a sensitivity of 100 percent and a specificity of 99.8 percent.
Additionally, in April, the Robert Koch Institute announced the start of nationwide antibody studies.
Antibody testing can also help to identify potential donors of convalescent plasma that could be used to treat seriously ill patients with COVID-19. The Paul Ehrlich Institute approved the first COVID-19 clinical trial with convalescent plasma in Germany in April.
Germany is also working to develop a vaccine against COVID-19. The Paul Ehrlich Institute approved the first clinical trial of a vaccine in April and anticipates that further clinical trials of vaccines against COVID-19 will be approved in the coming months. These studies should be conducted with a robust ethical framework in place.
There have been some recent rumors of compulsory vaccination against COVID-19 in Germany, but the grand coalition has rejected such speculations. Spahn is optimistic that the vast majority of citizens would want to be vaccinated immediately as soon as there is a vaccine against COVID-19 available, and affirmed that “where voluntariness leads to the goal, there is no legal obligation.” From a constitutional point of view, a general obligation to vaccinate also could hardly be justified with the basic rights of physical integrity or occupational freedom.
Sara Gerke is a Research Fellow in Medicine, Artificial Intelligence, and Law at the Petrie-Flom Center.