Corona measures: Court overturns the 2G rule in retail in Lower Saxony

There is movement in the dispute over corona-related restrictions in retail. The Lower Saxony Higher Administrative Court has overturned the 2G rule that has only recently come into force in retail in Lower Saxony.

The measure was not necessary to further contain the coronavirus and is also not compatible with the general principle of equality, the court decided on Thursday, according to the announcement.

The German Trade Association (HDE) welcomed the decision. “The judgment in Lower Saxony makes it clear that the 2G regulation is not a legal sure-fire success for large parts of the retail sector,” said HDE managing director Stefan Genth of the German press agency. It remains to be seen how the courts in other federal states will judge. But the legality of the 2G restrictions in retail is now at least questionable. “The other state governments should now also take this into account, avoid unjustified burdens on the retail trade and not wait until their ordinances are collected again by the courts.”

The background: Many retailers are complaining of a massive drop in sales due to the introduction of the 2G rule – and of all things during the important Christmas business. Since only vaccinated and convalescent people are allowed to shop in many shops from fashion stores to electronics stores, the number of visitors has decreased significantly. Exceptions to the 2G rule apply to shops with daily needs, such as supermarkets and drug stores.

Lawsuits against the 2G rule have now been received in courts throughout Germany. But so far there is no uniform line of the judges. In Schleswig-Holstein an urgent application by the department store chain Woolworth against the 2G rule was rejected by the responsible court this week. Here the judges referred to the variant Omikron, which was classified as particularly worrying. In view of this threat, there is no doubt that the 2G regulation is suitable to counteract the spread of Covid-19 and to reduce the risk of serious disease courses. The use of FFP2 masks and Plexiglas panes in the checkout area could not ensure this to the same extent. The judgment in another urgent procedure before the Higher Administrative Court for the State of North Rhine-Westphalia is still pending.

The 2G rule has been in effect in Lower Saxony since Monday. The 13th Senate of the court decided to suspend this regulation for the time being. (Ref .: 13 MN 477/21). The complaint was filed by a company that also operates retail outlets in Lower Saxony with a mixed assortment. According to the plaintiff’s attorney, this is also Woolworth.

The court justified its decision, among other things, by stating that it was not possible to simply transfer research findings from closed spaces in the sports and leisure sector to retailers. In addition, retail customers could also be required to wear an FFP2 mask. In addition, it is not evident that the country has increased its research on infection routes in order to improve the accuracy of its protective measures.

The trade association for textile shoes and leather goods (BTE) assessed the court’s decision as a “good sign”. Only a few days ago, the association had called for an “immediate abolition of the 2G restrictions” in the fashion trade. BTE President Steffen Jost said that brick-and-mortar retail was getting into a “dramatic, often existence-threatening situation”.