Wesentlichkeitstheorie und Pandemiegesetzgebung

More than three years have passed since the outbreak of the COVID‑19 pandemic in Germany in early 2020. At the beginning, it was the »moment of the executive« to control this state of health emergency. Nevertheless, shortly thereafter, parliament was called upon to amend, inter alia, the Infectious Diseases Protection Act. In constitutional terms, the call for legislation by parliament echoes the Federal Constitutional Court's »essential-matters doctrine« (»Wesentlichkeitsdoktrin«) according to which parliament is constitutionally obliged to adopt laws that lay down those decisions which are essential with a view to areas of a fundamentally normative character (such as, e. g., the area of basic rights). Legislation on pandemics is, in essence, state emergency legislation. In case of pandemics, such emergency legislation has exceedingly indiscriminate effects on, and interferes severely with, an abundance of basic rights. Accordingly, for these, and other, reasons the »essential- matters doctrine« applies. Against this background, this article identifies what are the »essential« decisions to be laid down in an act of parliament with a view to pandemics. As of today, the Infectious Diseases Protection Act has, to a large extent, been reconciled with constitutional law and, especially, with the »essential-matters doctrine«. However, its rules have been tailored narrowly to address the COVID‑19 pandemic only. Hence, the Infectious Diseases Protection Act is not fit for purpose as regards future pandemics caused by pathogens other than SARS-CoV‑2. Accordingly, this study aims at establishing the cornerstones of a generally applicable legal framework on pandemics to be incorporated into the Infectious Diseases Protection Act. Generally speaking, relevant rules need to allow for dynamic risk regulation with a view to the specificities of the individual pandemic. More particularly, a generally applicable legal framework on pandemics must conform to the following three key aspects. First, it is parliament that has to declare a state of health emergency in respect of a particular pandemic. Second, such a declaration unlocks statutory provisions (e. g., of the Infectious Diseases Protection Act, the Medicinal Products Act, the Pharmacies Act, the Narcotic Drugs Act etc.) which empower the executive to adopt emergency regulations laying down rules deviating, as the case may be, from the aforementioned acts of parliament temporarily. Third, the Infectious Diseases Protection Act must allow for temporary infectious diseases protection measures laid down in a non-exhaustive list annexed to the Act. Such measures have to be taken primarily by the executive (so as to allow for judicial remedies before the administrative courts) and must be based on an overarching protective strategy which ensures that the measures pursue the effective protection of life and health as well as the stability and functioning of the health care system proportionally and coherently. For that purpose, certain indicators (e. g., hospitalization rate, seven-day incidence etc.) may serve as thresholds triggering the applicability of individual or multiple infectious diseases protection measures. Furthermore, as a rule, vaccinated person, persons having recovered from the infectious disease and other persons having acquired immunity against the relevant pathogen have to be exempted from such measures.