At the beginning of the second corona wave, there was a heated argument as to whether the drastic corona rules of the federal states were legally tenable. Now the Federal Administrative Court has decided.
The Federal Administrative Court has drawn a line under the discussion as to whether the corona measures in the second wave in autumn 2020 were taken on a sufficient legal basis. The highest German administrative court in Leipzig finally answered in the affirmative on Tuesday. The federal states were therefore allowed to base their rules for the closure of restaurants, hotels and sports facilities on the Infection Protection Act in the version applicable at the time. In legal circles, there was a heated argument about this in the summer of 2020.
On Tuesday, the Federal Administrative Court overturned two different rulings by the Saarland Higher Administrative Court and referred the cases back for retrial. (Ref.: BVerwG 3 CN 4.22 and 3 CN 5.22) The OVG had taken the position that the second corona wave was foreseeable in the summer and that the federal legislature should have acted earlier. The Corona Protection Ordinance of October 2020, which included the closure of catering establishments, was therefore ineffective. Two restaurant operators had sued against the Corona rules.
Because of the Corona rules in force at the time, many companies had to close temporarily
The Infection Protection Act was only changed in November 2020. Instead of just a “general clause” that generally allows protective measures against infectious diseases, it has since defined very specific corona protective measures such as the obligation to wear masks, contact restrictions and the closure of hotels and restaurants in the event that an “epidemic situation of national importance” is determined .
“Whether and under what conditions a nationwide closure of catering establishments can be ordered is an essential question that the parliamentary legislature must regulate itself,” said the Federal Administrative Court. In autumn 2020, the “general clause” was still sufficient. Because of the dynamic development of the pandemic, there was some leeway.
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The federal judges decided on Tuesday another case from Saxony. The plaintiff, who runs a leisure and hotel center in Chemnitz, was right on one point. In its Corona Protection Ordinance of autumn 2020, the Free State of Saxony permitted doing sports alone or in pairs in amateur sports facilities, but not in fitness studios. This is a violation of the principle of equality. The Federal Administrative Court confirmed the remaining rules of the Saxon ordinance – the closure of restaurants and the ban on tourist overnight stays. (Ref.: 3 CN 6.22)
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