NEW - Germany: Higher Administrative Court in Lower Saxony rules that it is unlawful to allow only vaccinated and recovered persons to enter retail stores.
— Disclose.tv (@disclosetv) December 16, 2021
Source: Oberverwaltungsgericht Niedersachsen
Published: 16.12.2021
By: Higher Administrative Court Press Office
Published: 16.12.2021
By: Higher Administrative Court Press Office
Provisional suspension of the 2-G regulation in retail
The 13th Senate of the Lower Saxony Higher Administrative Court, with a ruling dated today, has § 9a Paragraph 1 and Paragraph 2 Clause 1 to 3 of the Lower Saxony Ordinance on Infection Preventive Protective Measures to Contain the Coronavirus SARS-CoV-2 and its variants of November 23, 2021, last amended by the ordinance amending the Lower Saxony Corona Ordinance of December 13, 2021 (hereinafter: Corona Regulation), provisionally suspended (Ref .: 13 MN 477/21). In certain retail establishments and establishments, this legal provision prohibits access for customers who have neither a vaccination certificate nor a health certificate (so-called 2-G regulation in retail).
An applicant, who also runs a mixed assortment of retail outlets in Lower Saxony, had objected to this regulation with a standard control application and asserted that the infection protection measure was not necessary and also incompatible with the general principle of equality.
The 13th Senate essentially followed suit. The 2-G regulation in retail in the specific form according to § 9a Paragraph 1 and Paragraph 2 Clause 1 to 3 of the Corona Regulation is currently not a necessary protective measure. The suitability for achieving the infectious goals is already reduced by the - unquestionably necessary - numerous exceptions in Section 9a, Paragraph 1, Clause 2 of the Corona Regulation. The vast majority of daily customer contacts take place in the food retail trade that is not covered by the 2-G regulation.
The necessity is also doubtful. The Senate has already repeatedly objected to the lack of reliable and comprehensible findings on the actual infection relevance of what is happening in retail. It is not apparent that the research into infectious environments would also have been intensified by the state of Lower Saxony in order to increase the accuracy of the protective measures.
A simple transfer of knowledge about what is happening in closed rooms of sports and leisure facilities (see press release No. 62 of December 10, 2021) is not necessary in view of the considerable differences to what is happening in retail. In any case, the latter appears to be regularly characterized by a shorter length of stay by customers, a lower customer density, a lower number of direct personal contacts (face-to-face), less physical activity and better enforcement of hygiene concepts. In addition, as in many other everyday situations, customers could also be required in retail to wear an FFP2 mask.
According to more recent findings, respiratory masks of this level of protection - provided that the mask is used correctly in businesses and retail establishments - should lower the risk of infection to such an extent that it can almost be neglected. Even the Robert Koch Institute does not provide for the exclusion of unvaccinated customers from retail in its ControlCOVID strategy in preparation for autumn / winter 2021/22, even for the highest warning level.
The Corona-VO, on the other hand, orders the 2-G regulation from warning level 1, which is characterized by a mild infection process. Even with the currently applicable warning level 2, the regulator considers the infection process to be manageable. The 2-G regulation in its specific form through Section 9a (1) and (2) sentences 1 to 3 of the Corona Regulation makes only a very small contribution to reducing such an infection occurrence. This can be reduced to a level that is irrelevant for the infection process by requiring an FFP2 mask.
In contrast, there would be considerable interference with the basic rights of unvaccinated customers and business owners. In this relation - controllable infection processes, low effectiveness of the infection protection measure and considerable encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate. The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony. 2 sentences 1 to 3 Corona-VO only make a very small contribution.
This can be reduced to a level that is irrelevant for the infection process by requiring an FFP2 mask. In contrast, there would be considerable interference with the basic rights of unvaccinated customers and business owners. In this relation - controllable infection processes, low effectiveness of the infection protection measure and considerable encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate.
The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony. 2 sentences 1 to 3 Corona-VO only make a very small contribution. This can be reduced to a level that is irrelevant for the infection process by requiring an FFP2 mask. In contrast, there would be considerable interference with the basic rights of unvaccinated customers and business owners.
In this relation - controllable infection processes, low effectiveness of the infection protection measure and considerable encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate. The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony. This can be reduced to a level that is irrelevant for the infection process by requiring an FFP2 mask. In contrast, there would be considerable interference with the basic rights of unvaccinated customers and business owners. In this relation - controllable infection processes, low effectiveness of the infection protection measure and considerable encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate.
The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony. This can be reduced to a level that is irrelevant for the infection process by requiring an FFP2 mask. In contrast, there would be considerable interference with the basic rights of unvaccinated customers and business owners. In this relation - controllable infection processes, low effectiveness of the infection protection measure and considerable encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate.
The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony. Little effect of the infection protection measure and significant encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate. The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony.
Little effect of the infection protection measure and significant encroachments on fundamental rights - the 2-G regulation in retail is currently proving to be inadequate. The new Omikron variant does not require a different assessment - with an objective consideration of the current state of knowledge known to the Senate or presented by the State of Lower Saxony.
The 2-G regulation in retail in the specific form according to § 9a Paragraph 1 and Paragraph 2 Sentences 1 to 3 Corona-VO is unlikely to be compatible with the general principle of equality. Comprehensible factual reasons why, for example, gardening market goods, goods from the flower trade including goods from specialist horticultural retailers and goods for the repair and maintenance of electronic devices are counted among the "goods for daily needs or basic supplies for the population" excluded from the 2-G regulation , but DIY stores remained fully subject to the 2-G rule, are not recognizable.
Serious public interests that would prevent the provisional suspension of the presumably illegal regulation are not given. Taking into account the infection protection measures taken in the previous Corona ordinances and the current infection situation, including in the state of Lower Saxony, the 2-G regulation in retail is not an essential component in the strategy of fighting pandemics in the state of Lower Saxony. This does not follow from the decisive political determination in the meeting between the Chancellor and the heads of government of the federal states on December 2, 2021.
The suspension of the so-called 2-G regulation in retail does not only work in favor of the applicant in this procedure. Rather, it is generally binding throughout Lower Saxony.
The decision is final.
The decision will be published promptly in the jurisdiction database of the Lower Saxony Justice (www.rechtsprechung.niedersachsen.de/), which is accessible free of charge. Against this background, we ask you to refrain from making individual inquiries about the transmission of the resolution.
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