Andrea Kießling, Professor of Public Law, Social and Health Law, as well as Migration Law at Goethe University Frankfurt, reflects on the COVID-19 era from a legal perspective.
UniReport: It’s now been five years since the outbreak of the pandemic. What are your personal reflections on that time? How were you affected?
Andrea Kießling: Initially, of course, I was affected like everyone else in Germany, finding myself suddenly having to reorganize daily life. But beyond that, I began engaging with legal issues surrounding pandemic control from the very beginning. I started by publishing short texts and then, within a few months, conceptualized a new legal commentary on the Infection Protection Act, which was published as early as summer 2020. As a result, the pandemic took up almost all my waking moments – it was very exhausting at times.
What, in your view, were the main points of criticism regarding how the state, the authorities, and the courts handled the pandemic? Were there overreaches? And conversely, where is some of the criticism misplaced?
Some measures, especially those taken at the beginning of the pandemic, overshot the mark: certain behaviors were banned that didn’t actually increase the risk of infection. But those decisions were quickly corrected. One criticism I’ve always considered unfounded is that the Bundestag didn’t have enough of a say during the pandemic, when, in fact, it could have directed pandemic policy through more detailed legislation at any time. It chose not to.
At the time, all actions were based solely on the Infection Protection Act. What was problematic about its “general clause”?
The clause itself isn’t the problem. In public safety law – which includes infection control law – you need such a clause to respond to unforeseen situations. However, such a provision is generally intended for limited threats or isolated measures. Whether it’s legally acceptable to rely on this general clause for a population-wide lockdown is highly questionable. The problem was that the Infection Protection Act was not prepared for a pandemic: there were no special provisions that could have defined the authorities’ scope of action through specific conditions or a list of possible protective measures. So, in spring 2020, a clause was applied that simply referred to “necessary protective measures” without offering any limitations. It wasn’t until fall 2020 that the Bundestag amended the Act accordingly.
There hasn’t been a true societal or medical review of the pandemic. Instead, public attention has focused mostly on the former health minister’s mask procurement scandal. Do you believe a comprehensive review is necessary, focusing on both medical and social aspects? Many citizens have become skeptical about whether measures like the 2021 lockdown were ever truly justified.
I wouldn’t say there’s been no review. We now have many court rulings addressing various issues from the pandemic: Individuals from the “Querdenker” movement have been convicted of incitement to hatred, the Federal Court of Justice upheld the conviction of a family court judge in Weimar for perversion of justice after he unlawfully declared school measures invalid, the Federal Administrative Court has ruled some early pandemic measures lawful, others unlawful, and the Federal Court of Justice denied compensation claims over business closures. Regarding the 2021 lockdown, the Federal Constitutional Court already issued a ruling at the end of that year, deeming it constitutional. What we need now, in my opinion, is a forward-looking review: Are we prepared for the next pandemic – which will come sooner or later? From a legal standpoint, that also includes asking whether the Infection Protection Act is now fit for purpose. In my opinion, it is not, because most pandemic-related provisions were either temporary or explicitly applied only to COVID-19 – meaning that in a new pandemic, we’d once again have to rely on the general clause.
As a legal scholar, do you also examine how other countries handled the pandemic from a legal perspective? The measures imposed by countries like Sweden, for example, were far less strict. Or are the legal systems too different to make comparisons?
From an epidemiological standpoint, such comparisons make sense. But in terms of legal systems, the differences are often too great – for example, some countries have special emergency laws or state of exception provisions. In Germany, we relied entirely on regular infection protection law; no state of emergency or similar exception was declared that would have altered the legal framework.
You and other scholars developed recommendations for handling future pandemics. What are the key points, and what gaps were you hoping to close?
We wanted to put pandemic response on a broader legal foundation. We proposed different legal requirements for potential protective measures and made distinctions between various areas of life. For example, depending on the pathogen, schools need to be treated differently than nursing homes, and both differently from workplaces without public contact. We accounted for both respiratory pathogens as well as other known infectious agents. Our proposal became very detailed because of our goal: that in a future pandemic, all interests can be appropriately considered, while the authorities’ actions would be more transparent to the public.
Do you think these recommendations will ever be implemented by policymakers?
Our former “traffic light” coalition government originally planned to reform infection protection law, but that didn’t happen. The current coalition agreement between CDU/CSU and SPD has explicitly acknowledged the need for reform and announced a revision of the Infection Protection Act. Whether that will happen – and whether our recommendations will be implemented – I can’t say. We don’t consider our proposal definitive in every detail; it’s a starting point for revisions that might turn out entirely differently. But doing nothing at all is not an option, in my view. On the contrary: Inaction would come back to haunt us in the next pandemic.
