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The flat-rate quarantine obligation for returning travelers is off the table in Lower Saxony after a court decision. The decision could also have an impact in other federal states.
By Christoph Kehlbach, ARD Legal Editor
The Upper Administrative Court (OVG) in Lüneburg has revoked the quarantine obligation in Lower Saxony for returning travelers. A lawyer who owned a vacation home in southern Sweden, where he would like to spend a few days vacation soon, had sued. It is opposed to the corresponding order in the Lower Saxony Crown Ordinance.
Among other things, he says: “People who come to Lower Saxony by land, sea or air from abroad have to (…) separate. They are obliged to go directly to their apartment immediately after entry and … ( …)) and stay there for a period of 14 days after arrival. “
For the plaintiff, this meant that he should not have left his property for 14 days after returning from Sweden. That went too far for him. Because the ordinance mandates quarantine solely on the fact that someone has entered from abroad, without an overwhelming probability of crown infection in individual cases. The three judges of the 13th Senate at the OVG in Lüneburg saw the same thing. They accepted the urgent request. The court’s argument: There is no legal basis for adopting such a general rule.
Allowed only for certain groups of people
Because the Crown ordinance can only be enacted based on a provision of the Infection Protection Act (IfSG). After that, the corresponding requirements that the IfSG provides for the respective measures would also have to be met. For quarantine settlement, this means that it can only be arranged against certain groups of people. For example against “sick people, suspicious diseases or suspicious infections”.
However, these terms cannot be used to cover everyone arriving from abroad. Rather, the prerequisite is that the assumption that a person has taken pathogens is “more likely than the opposite.” Despite the current number of cases worldwide, this cannot be seen this way for every entry.
Quarantine is still possible in specific cases
Therefore, anyone who is currently quarantined in Lower Saxony due to the regulation now revoked (i.e. paragraph 5 of the Crown Ordinance) can abandon it. Because the original legal basis for the quarantine order no longer exists. However, this does not expressly apply to those affected who are quarantined for other reasons.
This means for all those against whom the Department of Health has directly ordered the quarantine through a specific administrative act because there is a concrete suspicion of a risk of infection. Here, the respective administrative files continue to exist initially. Of course, those affected can also have such administrative files legally verified. But they did not automatically disappear with the decision of the Lower Saxony OVG.
Notification to the health authority?
In their decision, the judges appointed the ARD Legal Editor there is an express possibility to order quarantine without affecting all travelers in general, for example, to identify certain risk areas “on the basis of understandable results”.
A basic quarantine would be legal for those who return from there. Another viable way is to impose an obligation to inform immigrants of the health authority. This could individually verify whether quarantine requirements, as determined by the Infection Protection Act (IfSG), are in effect and impose quarantine.
Similar decisions can be conceived.
The OVG Lüneburg is the highest administrative court in Lower Saxony. The decision with which the judges suspended the quarantine obligation only refers to the corresponding regulation of the Lower Saxony Crown Ordinance and, therefore, only applies to this federal state. Therefore, returnees to other federal states are not directly affected.
But the other federal states also have comparable regulations in their Crown ordinances; in many cases, even the same words. Because stringent traveler regulations were part of a common “walking route” coordinated between the federal government and the states. And: The Infection Protection Law, which determines the requirements for quarantine, applies throughout the country. Therefore, it is at least conceivable that the courts of other federal states can make a similar decision if they have appropriate lawsuits.
