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BaWü Retailers Anti 2G Case

Re: the Legality, fairness & confusion of 2G rules that apply for some retailers but not for others

 

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Facts of the Case

  • Dates: January 25, 2022
  • Location: Baden-Württemberg, Germany
  • Court: Verwaltungsgerichtshof
  • Case #:
  • Plaintiff: Stationary Store
  • Defendant: Government of Baden-Württemberg
  • Trial Type:
  • Judge:
  • Status: Decided
  • Verdict: for the Plaintiff

*updated: Jan 26, 2022

Background

A woman from the Ortenau district in Baden-Württemberg, challenged the 2G regulation. She runs a small stationery store, which according to the current regulation, unlike a flower store, is not considered to be  an essential needs business. She argues that this is unequal treatment, since the 3G rule applies in a flower store despite the alert level II. [1]

This is one of many such cases now being filed in courts throughout Germany. Five days prior, the regulations for 2G in the Free State of Bavaria had been overruled by the Administrative Court. [1]

Similarly in the judges in Mannheim had ruled in favor of an un-vaccinated student in a similar case. This had been excluded by the regulations of the alarm stage II to a large extent from attendance meetings. The judges overruled the Corona ordinance, which applied to study sessions. [1]

 

Significance

This case is one of now many cases challenging the restrictive 2G rule for every shop and retailer.

 

Plaintiff’s Argument

According to the current Baden-Württemberg Ordinance on Protection against Infection, only vaccinated and recovered persons may enter retail stores. Stores catering to essential needs are exempted. The applicant considered this to be a violation of her freedom of occupation and of the principle of equal treatment. [1]

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

  • In December, a Higher Administrative Court (Oberverwaltungsgericht) of Lower Saxony in Lüneburg (Case # Az.: 13 MN 477/21) [3] overturned the 2G rule in retail. After the judgment, the German Retail Association called for the 2G rule in retail to be abolished nationwide. [2]
  • On Jan 21, 2022, The Higher Administrative Court of Saarland also overturned the 2G rules for retail citing similar reasons and conditions. [3]
  • In Baden-Württemberg, the 2G regulation at universities will be suspended as of next week (week of Jan 24, 2022). This was decided by the VGH in Mannheim.  [4]

 

Decision

The court has overturned the 2G rule for retail. The Administrative Court considers the freezing of alert level II by the Corona Ordinance to be probably unlawful. [1]

Un-vaccinated people are once again allowed to go shopping with an up-to-date test, effective immediately. The currently applicable 2G rule is thus off the table for the time being. This means that, in addition to those who have been vaccinated and those who have recovered, those who can present a current test may also go shopping in stores again until further notice. [1]

Concerned about the emerging omicron variant, the green-black state government had maintained Alert Level II in Baden-Württemberg’s Corona ordinance. Thus, by the end of the month, the limits on hospital exposure have been suspended. The judges criticized that far-reaching access restrictions for the un-vaccinated, which are not dependent on the 7-day hospitalization incidence, are not in line with the requirements of the Infection Protection Act. [1]

the court’s notice states that significant restrictions on fundamental rights “are not disassociated from the seven-day hospitalization incidence.” This incidence is used to indicate hospitals’ burden of Corona-infected persons per 100,000 population. [1]

 

Aftermath

  • This is already the second setback for the government of Prime Minister Kretschmann within just a few days. [1]
  • This week, therefore, the government intends to reinstate the tier system that has been practiced until now. However, according to the prime minister’s assessment, these will be adjusted once again. The Omikron variant makes these adjustments necessary, he said. [1]
Other Rulings
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Further Research

Court Documents:
  • Read the Court Ruling
In the news:

 

Media

Prof Bhakdi: 2G & Impfpflicht

source: orangetower

„2G Plus” für Gastronomie soll kommen

source: Bild

Bayerischer Einzelhandel kippt 2G-Regeln

https://youtu.be/FCP10q4xu-s

source: DE Nachrichten

 

References

  1. Baden-Württemberg: Gericht kippt 2G-Regel
  2. Bayerischer Gerichtshof kippt 2G-Regel im Einzelhandel
  3. Oberverwaltungsgericht kippt 2G-Regel für Einzelhandel im Saarland
  4. VGH-Beschluss: 2G-Regel an Hochschulen in BW wird außer Vollzug gesetzt

 

Keyword

2G, 2g-Regel, Baden-Württemberg, Bavaria, BaWü, Germany, Lüneburg, Munich, Niedersachsen, Restrictions, Retail, Saxony, Shops, Soeder, Verwaltungsgerichtshof, VGH

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