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Time and time again, German courts overturn measures to combat the corona pandemic. An overview of the most important decisions and how they were justified.
By Kerstin Anabah and Felix Schwind, SWR, ARD Legal Editors
Mask requirement, but where?
The wearing of masks is now mandatory in public places and shopping streets in many cities. Your mouth and nose should also be covered in closed rooms or in local and long-distance traffic. There were numerous lawsuits against the obligation to wear masks. Most failed. The courts saw the goal of curbing the spread of the pandemic by wearing masks as legitimate and also proven.
However, a student from Jena was successful with his lawsuit against the mask requirement in class. In the judges’ opinion, the crown numbers at that time did not justify the obligation to wear a mask. (VG Gera, decision of April 3, 2020 – 3 E 432/20).
The Higher Administrative Court (OVG) of Schleswig-Holstein saw it differently. In addition to the suitability described above for fighting pandemics, according to the court, the use of a mask has not been shown to involve physical limitations (OVG Schleswig-Holstein, decision of October 6, 2020 – 3 MR 43/20).
It can be said that each administration should consider the infection situation in its own circle when implementing measures. In view of the increasing number of cases, the masks will be reused in class from the fifth grade in North Rhine-Westphalia and Baden-Württemberg. There will certainly be lawsuits against this.
Short breaks, are they allowed?
During the Easter weekend to Rügen for a day, this is a tradition for many people from Mecklenburg-Western Pomerania. The state government banned such day trips. He was afraid of violating current contact restrictions and an uncontrollable wave of infection. Wrong, as OVG Mecklenburg-Western Pomerania discovered.
The measure is adequate to stop infections. However, the state did not make clear why the travel ban should only apply to the Baltic Sea islands, which are quite large in terms of area, and not to other travel destinations within the state. It should also be noted that, due to the current measures, there are no foreigners or tourists from other federal states anyway (OVG Mecklenburg-Western Pomerania, decision of April 9, 2020 – 2 KM 268/20 OVG and 2 KM 281/20).
And again Assembly prohibitions
Complaints against assembly bans were especially frequent. The most popular example is probably the “lateral thinker” rally in Berlin in August. Another case from Hesse reached the Federal Constitutional Court. Here in Giessen several meetings had been recorded under the slogan “Strengthening health rather than weakening the crown.” Despite the presentation of a concept of protection against infections, they were prohibited with reference to the applicable Corona regulation and the contact restrictions specified there.
The Federal Constitutional Court finally agreed with the organizer. The assembly authority had not made use of the so-called discretionary scope to which it was entitled under the Assembly Act and therefore did not consider whether the assembly could take place subject to conditions. This constitutes a violation of the freedom of assembly according to article 8, paragraph 1 of the Basic Law (BVerfG, decision of April 15, 2020 – 1 BvR 828/20).
The 800 square meter rule is often contested
The different court decisions in the sales area resulted in a true patchwork quilt. Initially, across the country they were only required to open stores that had less than 800 square meters of retail space. An exception was made for bookstores, car and bicycle dealers. Retailers harshly criticized these regulations. Numerous lawsuits followed.
Some courts upheld the rules (OVG Hamburg), others objected to them. The Bavarian Administrative Court, for example, granted a retail businessman’s application for temporary legal protection. In the opinion of the judges, the regulation of the sales area violated the principle of equality, the preference for bookstores, car and bicycle dealerships was not justified. Later, the state government allowed larger stores to open. However, only 800 square meters of the total area could be used.
An urgent application from a Bavarian fashion house to the Federal Constitutional Court failed. The Karlsruhe judges decided: The economic interests of large shopping centers would have to resign due to the dangers of Covid-19 for life and limb. (BVerfG, decision of April 29, 2020 – 1 BvQ 47/20)
Possible services in exceptional cases
However, with the ban on the cult, Karlsruhe’s constitutional judges demanded that the authorities examine it more closely. They annulled the general prohibition to celebrate religious services. An exception rule must be possible in individual cases. According to the judges, it is true that religious gatherings in the days of Corona could be more dangerous than shopping, for example. Because depending on the religious direction, you could sing, for example. This could increase the chance that the virus will spread.
In view of the important basic right to freedom of belief, it is not acceptable that religious gatherings are generally prohibited in Lower Saxony. It should be possible to find solutions in cooperation with the health authorities. It is not justifiable that an exception is not allowed in individual cases.
A Muslim association had filed a lawsuit. I wanted to offer the Friday prayer during the fasting month of Ramadan. The believers had offered all kinds of security measures. For example, only 24 must be admitted to the mosque, which would otherwise fit 300 people. However, the association lost before the lower courts, only the Federal Constitutional Court relaxed the strict prohibition of worship in churches, mosques and synagogues. (BVerfG, decision of April 29, 2020, 1 BvQ 44/20)
Cancellation of the accommodation ban in many countries
The accommodation ban is particularly controversial. In some federal states, tourists from risk areas should only be allowed to stay overnight with a negative corona test that is no more than 48 hours old. In Baden-Württemberg, Lower Saxony, Brandenburg, Mecklenburg-Western Pomerania and, more recently, Schleswig-Holstein, however, higher administrative courts struck down accommodation bans there.
In Bavaria, Hesse, Saxony, and Saarland, state governments had lifted restrictions. North Rhine-Westphalia, Rhineland-Palatinate, Thuringia, Berlin and Bremen had lifted accommodation bans from the start.
