Abstract

Crises are not only a test for society, they also pose a challenge to the legal order. This is revealed by the worldwide handling of the Coronavirus SARS-CoV-2 and the COVID-19 disease with a clarity that until recently probably nobody thought possible. Even in liberal democratic states, far-reaching restrictions on personal freedoms have been imposed, including lockdowns.

In addition to questions of proportionality, the scope of the parliamentary prerogative in the Corona crisis has been under discussion in Germany since March 2020. Contrary to some voices in legal literature, even serious encroachments on fundamental rights can be justified, at least temporarily, by executive orders based on the general clause under infection control law and its cursory clarifications. Though, as the duration and complexity of crisis management increases, so too does the constitutional exigency for fundamental decisions by the legislature.

The question of parliamentary prerogative also arises in the discussion about compensation payments, for example, for closure of businesses and other establishments during the lockdown. Since special provisions of infection control law often do not apply, some advocate a recourse to unwritten state liability law. However, this law is only geared to selective compensation and does not usually provide a legal basis for state liability in the Corona crisis. Here, too, the legislature must make improvements, if encroachments on fundamental rights – namely on the freedom of property – are no longer deemed proportionate without financial compensation. When assessing proportionality, however, the numerous aid programs must be taken into account.