What is equality and reservation

Corona - sales area regulation does not correspond to the principle of equality

Corona measures of the legislators and ordinance givers only in compliance with the fundamental rights of all fundamental rights holders

Bavarian Administrative Court, decision of April 27, 2020, Az. 20 NE 20.793

The corona pandemic prompted the state governments of the federal states to issue various ordinances on infection protection measures. On the other hand, the applications submitted by way of interim legal protection have been rejected by the administrative courts (including BayVGH, 20 NE 20.63, juris). The court decided in an urgent procedure that the challenged provisions were formally effective and would find an effective legal basis in Section 32 sentence 1 in conjunction with Section 28 paragraph 1 sentence 1 IfSG.

There were various changes due to the Second Bavarian Infection Protection Measures Ordinance of April 16, 2020. On April 27, 2020, the Bavarian Administrative Court (BayVGH) found a violation of Article 3, Paragraph 1 of the Basic Law (principle of equality). This commands all people to be treated equally before the law. The resulting requirement to treat essentially the same as / essentially unequal unequally applies to both unequal burdens and unequal benefits. Article 3, Paragraph 1 of the Basic Law does not deny the legislature any differentiation, but differentiations always require justification by factual reasons that are appropriate to the aim and extent of the unequal treatment.

The BayVGH determined that the exemption of bookstores / large-scale bicycle dealerships is objectively not justified from an infection protection point of view. If the ordinance (here: Bavaria) allows these shops to open, but not the other large-scale retail businesses, this represents an inappropriate unequal treatment general principle of equality by the ordinance by the fact that retail businesses with an area of ​​more than 800 m² may not be allowed to limit their area to 800 m² and thus to open the shop. In addition, with regard to the principle of equality, the court also complains that only certain retail establishments - i.e. not all - should be obliged to take suitable measures to ensure that a maximum of one customer is present for every 20 m² of sales area.

The BayVGH has announced that it may no longer consider the measures based on §§ 32, 28 IfSG to be compatible with the reservation of the law in the future. If it turns out that the pandemic measures that impair fundamental rights are no longer just short-term in nature, but last for a longer period of time, the BayVGH doubts whether the reservation of the law as an essential principle of a parliamentary form of government without the enactment of a law on measures as the legal basis for medium-term / long-term measures can be preserved.

Conclusion: The federal legislature should enact a federal law for future infection protection measures in order to design the legal ordinances of the federal states based on it in a legally secure manner. At the same time, legislators and regulators should strictly ensure that the fundamental rights of all persons involved are upheld. Because only in the case of interventions that are limited in time does the protection of life and physical integrity prevail in a follow-up assessment with the fundamental right of persons in need of treatment who are sometimes life-threateningly ill under Article 2 (2) sentence 1 of the Basic Law (as a result of the BVerfG, decision of April 10, 2020 , 1 BvQ 28/20).

The SARS-CoV-2 occupational health and safety standard requires all employers to develop a concept of measures for additional occupational health and safety measures. It would be fatal if the legislators and regulators ignored the legal "wave of the fence". All holders of basic rights have a constitutionally and administrative right to safeguard their rights. Only if all those affected by the pandemic pull together will it be we manage to save as many lives as possible without reducing other basic rights - such as the freedom to pursue a profession - to absurdity.