Closure of business facilities by administrative order due to the coronavirus
In order to contain the coronavirus, federal and local governments throughout Germany closed businesses with public traffic by issuing ordinances or generally applicable administrative orders.
Against this background businesses in other sectors – particularly in highly regulated sectors, such as life sciences – ask how to proceed if a regulator threatens to close a facility by an administrative order targeted at the individual business.
Measures in the run-up to an impending closure of a facility
An order to close a facility can be based on various legal grounds, inter alia the Infection Protection Act (Infektionsschutzgesetz) or sector-specific legal provisions (e.g. for food manufacturing and distribution). Most of the relevant regulations allow the competent authorities to issue orders to avert dangers to the public health and the health of its employees.
As the protection of health is of highest importance, it seems conceivable that the authorities might intervene even if the operation of a business facilities poses only a slight risk with regard to the coronavirus.
Whether the order to close a business facility is legal and permissible depends in particular on the extent of the risk caused by the operations. As the Federal Institute for Risk Assessment (BfR) states in a preliminary assessment, a transmission of coronaviruses via shipped products is unlikely. The coronaviruses are too unstable to survive for long in the environment. Even if an infected employee has introduced viruses to the products, an infection is only conceivable in a short period of time. The World Health Organization (WHO) makes a similar point in its publicly available Q&As.
While these assessments should be carefully taken into consideration by an authority (because of the special expertise of the organizations), they are not binding for the authorities.
Against this background, it is advisable to implement risk minimization measures well in advance of possible official orders, with which every conceivable risk can be further reduced, if possible. The measures, both implemented and planned, should already be documented now: In urgent cases, the authorities can refrain from hearing the company before an order is issued. In this case, it is helpful to be able to make such information available as soon as there are first signs of an official intervention.
Legal protection against order
Following the issue of an order for closure of a business facility, a preliminary injunction is the primary remedy available. In this case, the order remains in force, but it cannot be enforced for the time being if the preliminary injunction has been granted by the administrative courts.
In order to act quickly, it is advisable to collect information all relevant aspects (especially the actual risk and risk minimization measures) in advance and to have them ready to hand.
Any questions? Please contact: Evelyn Schulz
Practice groups: Healthcare, Regulatory