The German Corona Summit Strategy Has Failed

Axel Spies

German attorney-at-law (Rechtsanwalt)

Dr. Axel Spies is a German attorney (Rechtsanwalt) in Washington, DC, and co-publisher of the German journals Multi-Media-Recht (MMR) and Zeitschrift für Datenschutz (ZD).

The Germans are known for their word creations: Maskenverweigerer (anti-masker), Impfmuffel (anti-vaxxer), Coronaleugner (denying that the virus is a health risk), and the English/German tongue-twister Wellenbrecherlockdown (breaking a Corona wave by a lockdown) – in total one thousand new words and idioms have emerged from the pandemic as the German linguists of the Leibnitz-Institute report.

“Coronagipfel” (Corona Summit) is another creation that was not a German word a year ago. It is part of Chancellor Merkel’s style to work directly with the state governors (minister-presidents) of the sixteen German states, put them together in a room or connect with them via a direct video link, and reach a joint decision on what to do next in the pandemic. Merkel has used this conclave strategy successfully many times, on the EU level and whenever there are major discords in her governing coalition. Such summits cater to her image of an honest broker, and usually, after a long night of arguing back and forth, she wins or at least largely gets what she wants. It caters to her image of an honest broker, which has a long tradition in German diplomacy since Bismarck, who, by the way, also used his illustrious round with the chief executives of the German states for his purposes.

There are several fora in Germany where politicians meet with experts to discuss measures to fight the pandemic outbreak. But there is only one on the federal level where Ms. Merkel meets with the chief executives of each German state. Virus experts do not participate and are usually heard before these talks begin. Nor are members of Parliament present. Citizens lingering in lockdown have high expectations for the Corona Summits, fired up by the German tabloid Bild and other news outlets. The most recent Corona Summit on March 3 ended with a thirteen-page Joint Statement on vaccinations and the lockdown that was, similar to earlier Corona Summits, prepared in advance by Chancellor Merkel’s staff.

From the beginning of the crisis until perhaps the end of 2020, Merkel’s strategy of Corona Summits showing leadership and directing the population fared well. A generally quiescent public was willing to tolerate significant restrictions on their rights and freedoms, all the way into a hardcore lockdown. Few people who challenged Chancellor Merkel’s course due to general opposition to her (FDP, Die Linke) or following various COVID-19 conspiracy theories.  However, currently, the population is not prepared to swallow what Dr. Angela Merkel has prescribed due to the German government’s recent missteps with vaccine orders and self-test kits for everyone.

Consequently, not all minister-presidents of the Corona Summit speak with one voice. For instance, the States of Lower Saxony and Saxony-Anhalt released a disclaimer at the end of the mentioned Joint Statement of March 3 that they “understand the decisions on the opening steps as a [mere] framework for orientation, which they will implement in compliance with the case law […] and the proportionality of the measures derived from it, as well as in compliance with the availability of suitable rapid tests to enable a control of the pandemic situation.” State governors who may be candidates for chancellorship or other high offices after the next federal election in September have an interest in interpreting the decisions of the Corona Summit in a way that suits their career goals best. There is no enforcement mechanism by the federal government against states that digress from the Joint Statement, while every participant of a Corona Summit breaking away from the Joint Statement undermines its authority. The image of strong leadership by a united executive crumbles by the day.

How reliable are the incidence values for a Corona Summit?

Another problem for the Corona Summits:  due to a lack of consensus (both worldwide and EU-wide) on reporting methodology, statistics can give a wrong impression and are a shaky basis for the decision-making in a pandemic. Factors such as how many COVID-19 tests are available, who is actually tested, and where tests are administered can greatly influence the outcome, which puts limits on incidence numbers’ statistical value and has dire consequences for those in lockdown. Therefore, these numbers are more and more perceived as not reliable or meaningful, and some even go so far as to believe as an instrument of social control and not as reliable and meaningful.

Prof. Matthias Schrappe, a reputable German virologist and professor of medicine at the University of Cologne, says the following about the over-reliance of the Corona Summit on the incidence value: “The figures announced daily by the Robert Koch Institute [the German CDC] depend on the number of people tested, but are nevertheless applied to the total population, even though the coronavirus is largely transmitted by infected people without disease progression. […] To use the incidence value for the entire city or country is thus sheer nonsense. It tells us nothing!” Regardless of whether one shares Schrappe’s view, the disagreement of credentialed health experts conveys to the general public is that the decisions of the Corona Summit are uncertain so that citizens are unable to plan their lives in accord with them.

German Parliament Dodging its Responsibilities

The German Parliament has pushed itself to the sidelines and is not part of the Corona Summit decision-making process. No members of Parliament participate in the video conferences of the executive branch. Chancellor Merkel and her team announce the decisions in a press conference. There are some debate and wrangling on the parliamentary floor, but only after the decisions are made public. Complaints by the opposition that Parliament is not involved in the decision-making process on lockdowns or vaccination plans fall on deaf ears. Parliament passed a broad new Sec. 28a of the German Infection Protection Act of November 19, 2020, that gives the executive branch broad authority, some commenters say a free pass, to impose strict measures on the population to rein in the virus. The government argues that this authority is necessary and legal because the fight against COVID requires complex risk assessment with numerous uncertainties. The executive branch needs that broad authority to impose protective measures pursuant to the Basic Law, and there is not much room for a different assessment on evaluation and design of the measures by other branches. .

Constitutionality Questioned

However, many opponents disagree and argue that this broad authority vested in the executive branch for the time of the pandemic (or longer?) runs afoul with the Basic Law. They say it infringes with the established case law of the Federal Constitutional Court that the legislature must act by itself on essential decisions that affect the rights of the citizens. It cannot delegate this authority to Corona Summits and other bodies of the executive branch, they argue. The decisions of the Corona Summit undermine the other branches of government, where the legislators and the courts struggle to perform in the time of the pandemic.

There is no room here to decide this dispute. What can be said is that the adoption of Sec. 28a was primarily triggered by rapidly rising case numbers last November. The media’s propensity for being alarmist has contributed to a state of uncertainty that engendered a sense of vulnerability and helplessness in parts of the population. This general sentiment last year put pressure on the Bundestag to largely abdicate its oversight and give authority to the heads of the executive branch and their decision-making via Corona Summits.

Interestingly, Article 53a of the Basic Law already sets up a Joint Emergency Committee if a case of national defense is triggered that ensures that the Parliament can participate in the decision making even in this extreme case: two-thirds of the members of the Joint Emergency Committee are members of the Bundestag (Lower Chamber), and one-third shall be members of the Bundesrat (Upper Chamber). The members are elected by the Bundestag in proportion to the strength of the parliamentary groups; they may not be members of the federal government. There is no such participation in the urgent decision-making by the Corona Summits and no direct legitimation for them in the Constitution.

There are several legal challenges against Sec. 28a German Infection Protection Act and against other lockdown measures pending, but so far, the German courts have shown little appetite to overrule the decisions of the Corona Summits to open German cities, regions, or states as a whole for business. Legal observers in Germany complain about “suspended justice” during the pandemic with many courts in lockdown, the judiciary being incapable of exercising timely control over the executive power granted by Sec. 28a. Even if the Federal Constitutional Court does not step in, it will be difficult for the Bundestag to reclaim its authority, given that various elections are on the agenda over the next few weeks.

Meandering Corona Summits and Germany falling behind

Two matters of public policy are of paramount importance to manage the Corona outbreak by decisions of the executive branch: a clear understanding of the information used to reach a decision, and the same clear understanding of the political consequences of the given advice from science.  The Corona Summits offer many examples of the difficulty of combining political decision-making power with scientific rationality. The consequences of a lockdown are multi-faceted and not a linear process because of the involvement of individuals openly or behind the scenes with their political ambitions, such as the state governors Söder and Laschet.

With public perception of the government’s failed action plan against the virus, it is not surprising that Corona Summits will further slip out of Chancellor Merkel’s hands. A few weeks ago, she and the minister-presidents promised a short and hard lockdown to bring the numbers down and vaccinations quickly. This did not happen. For Prof. Schrappe, a vaccination campaign is the “most complex social project” imaginable because of all the ethical, legal, and medical consequences. A vaccination campaign must be “well planned […] It must be clarified from the outset what rights vaccinated people have. [The German Government] has missed [that goal],” Schrappe says.

Germans now fear that the case numbers at Easter will be as high as on Christmas, in part due to the British mutant of the virus that becomes more widespread in Germany by the day. How will the Corona Summit react? The United States and some other industrialized countries are far ahead with their vaccinations. Will Chancellor Merkel task the German army (Bundeswehr) with distributing vaccines?  The mood in Germany is sinking and with it the trust in Corona Summits and Chancellor Merkel’s leadership in particular. The number and intensity of demonstrations of self-proclaimed non-conformists against the lockdown increases. Twelve police officers were injured in Dresden alone during a demonstration on March 14.  The outcome of the two state elections last weekend was another indicator that for the CDU things are going south – and for Chancellor Merkel in particular.

To sum up, the decision-making process by Corona Summits is not transparent and its compliance with the Constitution questionable. The complicated measures of incidence values and opening steps imposed on the German population are difficult to understand and create resentment because there seems to be no end in sight. The trust of the population is dwindling.  Will the Merkel Government refrain from relying on Corona Summit to determine how the country should move forward? Probably not because there is no real alternative. But these meetings with the state governors will become more difficult to control for Chancellor Merkel, who is on her way out towards retirement. Two minister-presidents of her party are eager to become her successor, and other state governors must ponder what position is useful for their party’s election campaign. Minister-president Söder was in particular vocal with his criticism after the lost state elections:  “The decisive factor,” he stated, “was skepticism about the Corona crisis management. We will not be able to win the federal election in September in a sleeper train.” The next Corona Summits may hurt Chancellor Merkel more than they will be useful for her.