Natural Immunity Case

Natural Immunity Case

Natural Immunity Case

Re: the Legality of the RKI reducing covid recovered status from 6 to 3 months

 

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Facts of the Case

  • Dates: Feb 4, 2022
  • Location: Osnabrück, Lower Saxony, Germany
  • Court: Administrative Court
  • Case #: Az. 3 B 4/22
  • Plaintiff:
  • Plaintiff’s Lawyer:
  • Defendant:
  • Trial Type:
  • Judge:
  • Status: decided
  • Verdict: for the Plaintiff


*updated Feb 9, 2022

 

Background

The plaintiff challenged the updated decision by the RKI as announced on its website on Jan 14, 2022 to change the status of “covid recovered” or “Genesen” from 6 months to 3 months.

This change was made suddenly and without warning. Also it was not decided on by any legislative decision.

Germany is the only country in which people after a corona infection are only considered to have recovered 90 days. Throughout the EU, the six months are still used, in Switzerland even twelve. [2]

 

Since Feb 1, 2022, vaccinated people in Austria lose their vaccination status after six months, unless they extend it with the booster vaccination. [4]

In Germany, individuals are considered fully vaccinated if the last vaccine dose with an EU-approved Covid 19 vaccine was at least 14 days ago. Depending on the vaccine, one or two vaccine doses have been necessary to date to obtain complete vaccination protection. [4]

 

New RKI guideline: Who is considered recovered?

Convalescents (Recovered or in German: “Genesen) are persons whose Corona infection, proven by PCR test, did not occur more than three months ago. In January, the RKI had shortened the convalescent status from six to three months. After that, a booster vaccination is recommended. This is according to the institute’s new guidelines effective January 15. In addition, those who have been vaccinated once and subsequently contracted corona – before the second dose of vaccine was administered – are included in the group of recovered persons. In this case, too, the infection must have occurred less than three months previously. [4]

Most recently, it became known that the deadline of six months continues to apply in the Bundestag. The reason is the currently valid general decree, which among other things regulates the access to buildings of the Bundestag and so far assumes a convalescent status of six months. Specifically affected by this are the participants in the plenary and the committees, a spokesman reported. Meanwhile, this is causing criticism. [4]

 
Future of the “2G” rule

Most experts agree that in the long run, immunization after the second vaccination is incomplete (does not last). The numerous reported vaccine breakthroughs based on declining immune protection speak a similar language (confirms this). As early as last May 2021, Thomas Mertens, chairman of the Standing Commission on Vaccination (Stiko), announced in an interview with Funke [4]Mediengruppe, “The virus will not leave us again. The current Corona vaccinations will therefore not be the last.”

Meanwhile, the “2G-plus rule” prevails in many areas of public life. That means only vaccinated and recovered people who also have a negative Corona test are allowed into events or indoor areas. If people are already boostered, they do not need to be additionally tested. [4]

 

EU Covid Pass

The EU Commission has decided that the validity period of the Corona vaccination certificate should be reduced to nine months from February 1, 2022. This will affect people who have not yet received a booster vaccination. They will then only be considered fully vaccinated for a period of nine months after basic immunization. There is currently no expiration date for booster vaccination. For the time being, the vaccination status is valid without restriction. [4]

What some do not know: The digital vaccination certificate – for example in the CovPass app – already has an expiration date that occurs exactly twelve months after the second vaccination dose. According to the Robert Koch Institute (RKI), however, this is a technical expiration date, which does not mean that there is no longer any vaccination protection. According to the institute, those affected then only need a new digital proof. [4]

 

Science continues to show Natural Immunity is better than medically “induced” immunity

On Feb 3, 2022, John’s Hopkins University scientists published a paper that showed for 99% of the participants (who all had covid) Natural Immunity lasted at least 650 days and has not vanished.

 

Significance

This case challenges the authority of a non-elected agency to legislate rules for the populace and also questions its science

 

Plaintiff’s Argument

This change by the RKI violates the plaintiff’s fundamental rights.

It also makes daily life and work difficult (which again, is also a violation of fundamental rights)

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

…More information is needed…

 

Decision

The Osnabrück Administrative Court considers the shortening of the corona recovery status to be unconstitutional. It finds fault with the announcement on the RKI website and also speaks of a “high relevance to fundamental rights”. [3]

The administrative court in Osnabrück, declared the reduction from nine to six months invalid. [1]

“It was obvious that the exclusion of the individual from participation in social, cultural and economic life had a high fundamental rights relevance for the individual, in particular with regard to the general freedom of action under Article 2 (1) of the Basic Law, the physical integrity of Article 2 (2) of the Basic Law from the point of view of mental health and to the freedom to exercise one’s profession under Article 12 (1) of the Basic Law – as well as to other fundamental rights positions.” [5]

 The judgment -apparently-  does not apply to the general public, but only to the applicant. [1] who is entitled to the convalescent certificate for a period of 6 months [5]. It said the administrative court should not rule for itself that the standard should not be applied in principle. Other convalescents who did not want to accept their abbreviated proof would therefore have to go to court themselves. [3]

The court decided that he (the plaintiff) should now receive a six-month comprehensive proof of recovery from his district. [1] 

The applicant is entitled to the issue of a convalescent certificate for the period from February 11 to July 13, 2022, i.e. for the period resulting from Section 2 No. 5 SchAusnahmV as amended on May 8, 2021 [6]

Instead of the ordinance that has been in effect since mid-January, the county should apply the version from May of last year in the case, the court explained. [3]

Further progress at the federal level remains to be seen. [1] The judgement can still be appealed to the Higher Administrative Court in Lüneburg within two weeks. [3]

the judges referred to a conflict with the Basic Law: the reduction of the convalescence status had been put into effect by the RKI. [1]

But there are doubts about this approach: the judges explained that there was no legal basis for delegating this decision to the RKI. [1]

the legislator is, as it were, sub-authorizing the authority, which is not covered by the ordinance authorization. With this regulation, the federal government, as the issuer of the ordinance, has passed on its own tasks to the RKI without having been authorized to do so. This procedure violates the provisions of Article 80 (1) sentence 4 of the Basic Law. [6]

The reference to a constantly changing RKI website was intransparent and also vague. In addition, the RKI had not sufficiently scientifically investigated whether it had been proven that the protection of convalescents (recovered) against infection ends after 90 days. [3]

the dynamic reference to the website of the RKI violates the requirement of legislative act. A simple reference to an Internet page does not satisfy the requirements of Article 82 (1) of the Basic Law, in particular due to the fact that the content of this page can change virtually every second. [6]

The court also pointed out

In contrast (to the RKI’s 3 listed sources that it used to justify the change), there are a large number of renowned voices from science and practice that consider a shortening of this status to three months to be incomprehensible and superfluous

(see, by way of example, https://www.aerztezeitung.de/Politik/BAeK-Praesident-Reinhardt-unterstuetzt-Verkuerzung-des-Genesenenstatus-426411.html; https://www.focus.de/gesundheit/news/immun-status-gilt-nur-noch-drei-monate-daten-rechtfertigen-keine-verkuerzung-experten-zerlegen-verkuerzte-genesenen-regel_id_44524051.html; https://www.spiegel.de/wissenschaft/medizin/coronavirus-carsten-watzl-kritisiert-neue-dauer-des-genesenenstatus-a-16b8846c-09cc-4283-9850-85188b9680c8; https://www.deutschlandfunk.de/verkuerzung-des-genesenenstatus-100.html, each accessed February 2, 2022).

For example, virologist Prof. Dr. Hendrik Streeck, a member of the German government’s expert council, points out that people who have recovered have just as good protection against re-infection as those who have been vaccinated, so unequal treatment is therefore not appropriate

(cf. https://www.welt.de/vermischtes/article236476819/Markus-Lanz-Koennen-die-Pandemie-nicht-wegimpfen-warnt-Hendrik-Streeck.html, accessed February 3, 2022

The costs of the proceedings shall be borne 2/3 by the applicant and 1/3 by the defendant.The amount in dispute is set at €15,000. [6]

 

Aftermath

A Bundestag report had also had strong doubts about the decision-making power of the (RKI) institute – and also cited the German constitution against the procedure. [1]

It seems possible that the traffic light will now be readjusted. [1]

The conference of health ministers called on Monday to put the decision on the convalescent statute back in the hands of politicians. [1]

Justice Minister Marco Buschmann (FDP) supported the demand, as reported by the Augsburger Allgemeine. [1]

  •  

the virologist Hendrik Streeck said:  [1]

The RKI decision to shorten the (immunity) convalescent status to three months “to put it mildly, annoyed him,” Streeck told Focus

The virologist criticized that the reason given was “science”.

He was “not aware of any study that could justify this decision”.

Quite the opposite: according to Streeck’s knowledge, all studies indicate that those who have recovered are just as well or even better protected than those who have been vaccinated.

  •  

the FDP is now distancing itself from RKI boss Lothar Wieler. [1]

The designated FDP General Secretary Bijan Djir-Sarai told Spiegel [1]

“I have great respect for the achievements of the RKI boss Lothar Wieler in the past two years during the pandemic.” He added: “Mr. Wieler can trust the FDP but due to this recent misconduct, which unfortunately is not an isolated case, we can no longer be sure.”

He further said: “The RKI cannot casually determine the shortening of the recovery period with the stroke of a pen and without any announcement.

When asked about Wieler’s future at the head of the RKI, the FDP politician said: “It is up to the Federal Minister of Health to decide on the personnel at the top of his sub-authorities.”

  •  

Even if the verdict is not yet valid nationwide, one thing is clear: Lauterbach was at least steering in legally tricky waters. [4]

The fact that Corona decisions are stopped by a court speaks in principle for the separation of powers in Germany, but is always to be understood as a reprimand for those responsible…And Lauterbach appears as such when the RKI, a federal authority subordinate to the Ministry of Health, makes far-reaching decisions for millions of people. [4]

 


Further Research

Court Documents:
In the news:
  • …More information is needed…

 

Media


Verkürzter Genesenenstatus

source: BILD


RKI-Chef-Kritik: Wieler hat zu viel Macht!

source: BILD


Genesenen-Status nur noch 3 Monate gültig

source: BILD.


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Hessen Anti 2G Case

Hessen Anti 2G Case

Hessen Anti 2G Case

Re: the Legality of 2G rules to prohibit entry into shops & hospitality venues

 

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Facts of the Case

  • Dates: Jan 31, 2022
  • Location: Hessen, Germany
  • Court: Frankfurt Administrative Court
  • Case #:
  • Plaintiff: Fashion Store Owner
  • Plaintiff’s Lawyer:
  • Defendant: State of Hessen
  • Trial Type:
  • Judge:
  • Status: Decided
  • Verdict: for the Plaintiff


*updated Feb 4, 2022

Background

The German state of Hessen’s 2G rules allow only vaccinated or recovered people access to stores and venues except for shops for daily/ essential needs such as supermarkets or pharmacies [1]

An operator of three fashion stores challenged this rule before the Frankfurt Administrative Court. [1]

 

Significance

This is one several states now overturning this rule that indicates a shift in support for the 2g rules as well as other corona measures

 

Plaintiff’s Argument

…More information is needed…

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

Similar cases have also overturned this rule in Bavaria, Baden-Württemberg

 

Decision

 a court spokeswoman explained on Monday, she can conduct her business without applying the 2G rule for the time being. [1]

 

Aftermath

Shortly thereafter, the city of Hanau was the first city in Hesse to decide to no longer impose the 2G rule for retail. For reasons of equal treatment, 2G can hardly be mediated after the court ruling. Hanau’s Lord Mayor Claus Kaminsky said: [1]

“Now the country is called upon to quickly provide legal clarity.” [1]

Hesse wants to lift the 2G rule for all retail in the state. Prime Minister Volker Bouffier (CDU) said on Wednesday in the state parliament in Wiesbaden that one must continue to act cautiously because the corona pandemic is not over yet. Therefore, in the future, wearing FFP2 masks will be mandatory for all retail trade in Hesse. [1]

Bouffier now decided that it no longer made sense to distinguish between basic necessities shops and other retailers. In addition, the industry is under enormous pressure. The Corona cabinet will now deal with the planned new regulations. The new regulations could come into force as early as next week. The federal and state governments had decided on the 2G rule for large parts of the retail trade in view of the increasing corona incidence figures at the beginning of December last year. In some federal states, shopping without 2G is already allowed again after courts overturned the rule. [1]

  •  

More and more federal states are saying goodbye to the 2G rule in retail on their own initiative. Schleswig-Holstein made the start, now another federal state Mecklenburg-Western Pomerania wants to follow the example of other federal states and relax the corona restrictions on trade. [2]

The spokesman for Prime Minister Manuela Schwesig (SPD) announced changes in Schwerin on Thursday. The 2G rule, intended as a nationwide uniform protective measure, is increasingly becoming a patchwork quilt and there is a risk of shopping tourism, he said. The cabinet will decide on the future regulations in the country on Tuesday. [2]

In several federal states, shopping without proof of vaccination or recovery is already allowed again because courts had overturned the corresponding 2G rule. [2]

Schleswig-Holstein’s Prime Minister Daniel Günther (CDU) announced on Wednesday that this rule would also be lifted in his state with effect from February 9th. [2]

  •  

Politicians from the coalition and opposition are now calling for such a step to be implemented nationwide. [2]

FDP leader Christian Lindner said in the RTL program “Guten Morgen Deutschland” that the 2G rule would cause economic damage without making an effective contribution to combating the pandemic. “And that’s why 2G is not required in retail, the mask is already there,” emphasized the minister on RTL and ntv.

The Bavarian Prime Minister/ CSU boss Markus Söder told the “Bild” newspaper: [2]

“With an FFP2 mask we can do without the 2G rule in retail. You only stay in shops for a short time. That could be implemented nationwide.” In gastronomy, the 2G rule can be retained, but there is no need for an additional test. In the RTL / ntv “early start” the Bavarian Prime Minister said: “We now need an entry point to the exit. The omicron wall is there now and will probably get a little bigger, but there are doors in the wall that we can see through be able.”

Deputy CDU chairman Carsten Linnemann also wants to overturn the 2G rule for retail. [2]

If you don’t have the acceptance of certain measures, people won’t participate either,” Linnemann told the magazine “Cicero” (online). It cannot be conveyed to anyone that the 2G rule in retail still applies in some federal states, while it has already been abolished a few kilometers away in neighboring federal states.

AfD parliamentary group leader Alice Weidel demanded on Thursday: [2]

The repeal of the discriminatory, unconstitutional and health-politically pointless 2G and 3G rules is overdue, and not step by step, but immediately and in all their absurd variations.” Referring to other European countries, Weidel called for a deadline for the complete lifting of all corona requirements. “And not someday, but very soon,” she added.

 


Further Research

Court Documents:
  • Read the Court Ruling
In the news:
  • …More information is needed…

 

Media


……

source: ….


….

source: ….


….

source: ….

 

References

  1. Hessen wants to lift 2G rule for retail — RT DE
  2. Corona rule in retail – third federal state wants to put an end to 2G

 

Keyword

Hessen, Germany, 2G, Regel, retail, Federal, State, Soder, Afd, Frankfurt, Administrative Court, essential needs, Prime Minister, CDU, CSU, Bouffier


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BaWü Anti 2G Case

BaWü Anti 2G Case

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
  •  

 


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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