Relaxation of coronavirus restrictions – risk of a regulatory patchwork and unequal treatment
***** Update on 12 June 2020: Most coronavirus restrictions in Germany lifted – companies should prepare for a possible second wave *****
The federal and state governments have now eased most of the coronavirus restrictions of recent months. For example, shops may reopen without restrictions, provided they comply with social distancing and hygiene requirements and have implemented a sufficient hygiene policy. The restaurant and accommodation industry can now also continue to operate to a large extent, subject to strict hygiene conditions.
However, contact restrictions , including rules on social distancing and hygiene, remain probably the most important limitation on public life. In addition, large-scale events will be prohibited until 31 August 2020 and in some cases beyond that date.
The federal states are deciding on the further gradual opening up of public life under their own responsibility, taking into account hygiene and social distancing concepts. This is resulting in differences between the federal states. Thuringia was the first federal state to end legally binding contact restrictions as of 9 June 2020, converted the former rules into recommendations and announced further opening up of facilities. Despite the easing, restrictions remain in most federal states, in particular as to the number of participants at open-air gatherings and indoor events such as church services or university lectures.
In particular, the organisers of large-scale cultural and sporting events as well as organisers of public festivals will continue to be severely affected by the restrictions imposed due to the pandemic. For the travel industry, in particular long-distance bus travel companies and airlines, too, the regulatory and physical constraints imposed due to coronavirus are continuing for the time being. However, the federal government has lifted the travel warning for most EU Member States as well as the United Kingdom, Switzerland, Norway, Iceland and Liechtenstein and has issued individual travel advice with effect from 14 June.
In order to avoid a sharp increase in infection rates as a result of the easing, the federal and state governments have adopted a joint emergency mechanism requiring immediate regional restrictions if the rate reaches 50 new infections per 100,000 inhabitants within 7 days in districts or urban areas. This system has already been applied in individual cases.
In any case, we recommend that companies prepare for a possible second wave of infections with immediate regional restrictions. In particular, adequate and well-documented infection control, including a hygiene policy, as well as good communication and close coordination with the competent authorities, are essential.
Many businesses are still being severely affected by the economic consequences of the restrictions imposed due to coronavirus. Whether claims for compensation can be enforced in the future, especially in the most hard-hit sectors, such as the tourism, travel or event industry, is conceivable in principle, but cannot be conclusively assessed due to the very complex legal situation (see our News on 9 June 2020).
***** Update on 4 May 2020: Retail space restriction to 800m² still highly controversial – Restrictions lifted in some federal states ****
The legal dispute over the admissibility of limiting retail space to 800m² for the vast majority of retailers continues.
Last week, more courts decided in expedited legal proceedings on the question of whether the 800m² retail space restrictions on store openings provided for in the federal states’ coronavirus regulations are likely to be lawful and can be upheld. The image of conflicting higher court decisions has thereby been consolidated.
Berlin-Brandenburg Higher Administrative Court considered such restrictions in Brandenburg to be admissible. According to the court, the retail space limit is an appropriate criterion to justify the restrictions (decisions of 28 and 29 April, case OVG 11 S 28/20 et al.). In the view of Hamburg Higher Administrative Court, too, the restriction of retail space in stores to 800m² is lawful. The court overturned the deviating decision by Hamburg Administrative Court with its ruling of 30 April (case 5 Bs 64/20). Magdeburg Higher Administrative Court (decision of 27 April, case 3 R 52/20), North Rhine-Westphalia Higher Administrative Court (decision of 29 April, case 13 B 512/20.NE) and Bremen Higher Administrative Court (decision of 23 April, case 1 B 107/20) also provisionally held the 800m² restriction to be lawful.
In contrast, the 800m² restriction is being challenged by other courts. Berlin Administrative Court considers that the restriction breaches the principle of equal treatment, in that shopping centres in Berlin are allowed to open as long as the sales outlets inside limit their retail space to 800m², while large department stores are not allowed to do so (decision of 30 April, case VG 14 L 49/20). The extent to which this will apply to other large-scale retail stores remains to be seen. In the same vein, Baden-Württemberg Supreme Administrative Court considers that the 800m2 restriction constitutes unjustified discrimination (decision of 30 April, case 1 S 1101/20). Similarly, Schleswig-Holstein Higher Administrative Court (decision of 24 April, case 3 MR. 9/20) and Saarland Higher Administrative Court (decision of 27 April, case 2 B 143/20) consider the 800m2 restrictions to be in violation of the principle of equal treatment and to be disproportionate. In particular, they consider that subjecting large retailers to detailed infection control concepts is less infringing and equally sufficient to addressing Covid-19 risks.
The Federal Constitutional Court issued an expedited decision on 29 April, ruling that the chances of success of the legal proceedings against the 800m² restrictions, in this case in Bavaria, were not yet foreseeable. However, balancing the conflicting legal interests carried out in expedited proceedings would continue to turn out in favour of the protection of health and life (case 1 BvQ 47/20). Further applications for expedited proceedings are expected to be decided upon in the coming weeks.
In any case, the continuing burden on retailers and the related serious infringements of fundamental rights indicate that the already dubious acceptability of the 800m² restriction continues to decrease every day.
Meanwhile, several federal states have announced (partly in response to court decisions) that they will abandon the retail space limit of 800m². These include Baden-Württemberg, Mecklenburg-Western Pomerania, Saarland, Schleswig-Holstein and Thuringia.
We will keep you up to date.
***** Update on 27 April 2020: Administrative courts debate legality of 800m² retail space restriction *****
Several German administrative courts have sissued decisions addressing the legality of restricting the opening of businesses to a retail space of 800m².
Hamburg Administrative Court considered this restriction to be unlawful. The court handed down its decision last week, granting the emergency petition by a sporting goods department store (case no. 3 E 1675/20). The court ruled that the restriction to 800m² was not appropriate to serve the purpose of protecting against Coronavirus infections, because the necessary measures to protect against infection could be complied with in larger stores at least equally well as in smaller stores.
Whether the decision will be upheld remains to be seen. The appeals court, Hamburg Higher Administrative Court, set aside the decision of the Administrative Court by means of an interim order (case no. 5 Bs 64/20) and ordered the sporting goods department store to operate its retail outlets with maximum retail space of 800m² until 30 April. The Higher Administrative Court stated that while the prospects of the appeal succeeding could not yet be assessed, without the interim order serious and unavoidable disadvantages could occur. The Higher Administrative Court intends to rule on the appeal by 30 April.
The Bavarian Supreme Administrative Court also decided in a ruling today (27.04.2020) that the 800m² restriction is unlawful. The court stated that the 800m² restriction constituted discrimination against larger stores compared to smaller stores, in breach of the law on equal treatment and with no justification in constitutional law. The court held that the regulation was incompatible with the requirements of constitutional law, but as an exception it did not set aside the regulation due to the emergency pandemic situation.
In contrast, the Lower Saxony Higher Administrative Court dismissed in a ruling today an emergency petition by several department stores against the 800m² retail space restriction (case no. 13 MN 98/20). The senate considered the space restriction for certain large retail stores to be a necessary protective measure under the law on protection against infection, and rejected the use of less drastic but equally appropriate means.
Last week, Stuttgart Administrative Court upheld the closure of an outlet mall even though the individual retail units within it each had retail space of less than 800m². In contrast to Hamburg Administrative Court, Stuttgart Administrative Court appeared to harbour no doubts about the legality of the 800m² restriction. In its decision, however, it considered less drastic means than a closure of the outlet mall to be feasible, such as an appropriately detailed safety concept, but did not consider such a concept to be in place in the specific case (case no. 16 K 1975/20).
We will keep you up to date.
***** News published on 17 April 2020 *****
The federal government and the federal states have decided to ease the coronavirus restrictions, including the reopening of shops with retail space of up to 800m². The relaxations are to come into force gradually. At the same time, many establishments, especially restaurants and hotels as well as religious services and major events, remain prohibited from reopening until further notice. There are already signs of a patchwork of different detailed regulations by the federal states. With regard to bans on establishments, events and shops for which there are no signs of restrictions being eased for the time being, doubts are growing about the legality of the measures.
The main relaxation of restrictions is the opening of all types of shops with retail space of up to 800m². Irrespective of their retail space, car dealers, bicycle dealers and bookstores may also reopen. The previous exceptions to the closure of certain shops in order to supply the population, especially grocery stores, will also remain in place. Hairdressers will also be allowed to reopen under strict conditions from 4 May.
All shop owners must comply with requirements relating to hygiene, controlling access and preventing queues and in particular ensuring a safe distance of 1.5 metres between customers. The federal states are responsible for the concrete form of these requirements. It is to be expected that shop owners will predominantly have to draw up a protection and hygiene concept (e.g. access control, face masks, availability of hand disinfectant) and present it on request.
In addition, schools are to reopen in stages from 4 May onwards. The Conference of Education Ministers is to draw up a concept for this, including uniformly applicable hygiene measures.
Catering establishments of all kinds will remain prohibited from opening; the delivery and collection of takeaway food will remain permissible. The opening of hotels, lodging establishments and other accommodation for private tourist purposes is also prohibited. Religious events and celebrations of all religious communities, such as services in churches, mosques and synagogues, are also prohibited. Also prohibited are major events of any kind, at least until 31 August.
Regulatory patchwork to be expected from the federal states
The federal states have to implement the agreed relaxation measures. Even now, a confusing patchwork is emerging in the form of the relaxation measures. Such a regulatory patchwork already existed beforehand, especially because the federal states structured the exceptions to business closures differently, thereby creating a great deal of legal uncertainty for many businesses and retailers and sometimes unjustified unequal treatment.
There is currently a risk that this confusion will be repeated. A different treatment of shops located in shopping centres or shopping malls can already be seen for example: while in some federal states, shops with retail space of up to 800m² in shopping malls are allowed to open, other federal states want to limit the retail space of shopping centres and department stores to a total of 800m². We recommend that affected companies carefully examine the viability of the new regulations.
Doubts are growing about the legality of keeping individual restrictions in place
The relaxation measures that have now been announced cannot obscure the fact that a large number of establishments, events and businesses will remain prohibited from opening for the time being following the latest decisions by the federal government and the federal states. The approach is subject to increasing legal doubts.
Although protecting the health and lives of an unknown number of people from the consequences of overburdening the health system outweighs the restrictions on the basic rights of shop owners, event organisers and religious communities, no authority can be derived from this to maintain the corresponding restrictions for a longer period without any limitations. On the contrary, the effects of these severe restrictions of fundamental rights, in particular the consequences of the continued closure of businesses for the catering trade, the hotel industry, event organisers and cultural institutions, which threaten their existence, must be compensated in order to remain proportionate. Otherwise, restrictions which were legal at the outset may become illegal over time. Since statutory claims for compensation under the German Infection Protection Act do not apply in this case and no other effective compensatory measures on a broad basis are discernible, the federal government and the federal states must take other effective action to compensate for the restrictions on fundamental rights in order to avert the risk of many measures based on infection protection legislation becoming illegal (see also our news article of 9 April 2020).
We will keep you up to date.
Any questions? Please contact: Dr Holger Schmitz or Dr Carl-Wendelin Neubert
Practice Group: Regulatory