Outdoor sports are allowed, staying on the park bench is forbidden – such strict rules sometimes prevailed in Bavaria for fear of infection with Covid-19. The supreme German administrative court decided that these encroachments on fundamental rights were disproportionate.
The Saxon contact restrictions in the early phase of the corona pandemic were lawful, but the strict curfew imposed in Bavaria at the time was not. That was decided by the Federal Administrative Court in Leipzig. It was the first time that the highest German administrative court dealt with the Corona rules. The judgments should point the way for other cases.
The federal judges had lawsuits against the regulations on the table that Saxony and Bavaria had issued in March and April 2020. The Saxon ordinance was about contact restrictions and the closure of sports facilities and restaurants. The higher administrative court had confirmed the rules in the lower court.
In the Bavarian case, the strict curfew was put to the test, which only allowed leaving the apartment for “valid reasons”. In the previous instance, the Administrative Court decided that this regulation was disproportionate.
The federal administrative judges confirmed both times the lower court and rejected the appeals against these decisions. According to the 3rd Senate, the Saxon rules were proportionate and necessary protective measures. The Free State of Saxony was able to rely on the risk assessment of the Robert Koch Institute when assessing the risk situation.
The case was different in Bavaria: the curfew, which allowed leaving the apartment for sport and exercise, but not for staying in the fresh air on a park bench, was too extensive. “The rules about leaving your own home were not proportionate,” said the presiding judge. As a milder measure, contact restrictions in public spaces could also have been considered. Bavaria had pushed ahead with the regulation at the time.
The 3rd Senate also dealt with the controversial question of whether the Infection Protection Act in the version applicable at the time was a sufficient basis for such drastic encroachments on fundamental rights. The federal judges agreed.
Bans aimed at the general public – and not at individual patients – were permissible. Such a “general clause” is appropriate in infection protection law because the legislator cannot foresee which contagious diseases can occur and what protective measures are then necessary. However, the more you know about a disease and its pathogens over time, the more the rules have to be adjusted. In the early phase of the pandemic in spring 2020, such a “codification maturity” for Covid-19 was not yet available.
