Below is the translation of a media release of a German court of 16 December 2021. The court stepped at least partially outside the official narrative by deciding to suspend a law (at last for now) that only allowed those vaccinated against Covid and those who can prove they have recovered from Covid enter non-food retail stores commencing on 2 December 2021.
This decision is significant, especially as Germany‘s legislature will soon discuss the introduction of compulsory Covid vaccination for the general public, something that has already been flagged by the Austrian government.
The decision will be published in full here. I used DeepL to translate the original text of the media release, with minor adjustments.
Temporary suspension of the 2-G regulation in the retail sector
The 13th Senate of the Lower Saxony Higher Administrative Court, in a decision issued today, provisionally suspended Section 9a (1) and (2) sentences 1 to 3 of the Lower Saxony Ordinance on Infection Prevention Protective Measures to Contain the Coronavirus SARS-CoV-2 and its Variants of November 23, 2021, as last amended by Ordinance Amending the Lower Saxony Corona Ordinance of December 13, 2021 (hereinafter: Corona Ordinance) (Ref.: 13 MN 477/21). This legal regulation orders a prohibition of access in certain businesses and facilities of the retail trade for customers who have neither a vaccination certificate nor a proof of health (so-called 2-G regulation in the retail trade).
An applicant, who also operates retail stores with a mixed range of products in Lower Saxony, objected to this regulation by filing a motion for a judicial review, claiming that the infection protection measure was not necessary and was also incompatible with the general principle of equality.
The 13th Senate essentially agreed with this. The 2-G-regulation in the retail trade in the concrete design according to § 9a para. 1 and para. 2 sentences 1 to 3 of the Corona Ordinance is currently not a necessary protective measure. The suitability for achieving the infectious disease objectives is already reduced by the numerous exceptions in Section 9a (1) sentence 2 of the Corona Ordinance, which are unquestionably necessary. In the retail food trade alone, which is not covered by the 2-G regulation, the vast majority of daily customer contacts take place. The necessity is also doubtful. The Senate had already complained several times that reliable and comprehensible findings on the actual infection relevance of the events in the retail trade were missing. It was not evident that research into infection environments had also been intensified by the state of Lower Saxony in order to increase the accuracy of the protective measures. A simple transfer of findings on the events in closed rooms of sports and leisure facilities (cf. press release No. 62 of 10.12.2021) does not suggest itself in view of considerable differences to the events in the retail trade. In any case, the latter would appear to be regularly characterized by a shorter dwell time of customers, a lower customer density, a lower number of direct personal contacts (face-to-face), lower physical activities and a better enforcement of hygiene concepts. In addition, as in many other everyday situations, customers could be required to wear FFP2 masks in retail settings. According to recent findings, respirators of this level of protection – assuming proper use of the mask, which can certainly be enforced in retail establishments and facilities – are likely to reduce the risk of infection to such an extent that it can almost be neglected. In its ControlCOVID strategy to prepare for the fall/winter of 2021/22, the Robert Koch Institute does not envisage the exclusion of unvaccinated customers from the retail trade, even for the highest warning level. The Corona Regulation, on the other hand, orders the 2-G regulation already from warning level 1, which is characterized by a mild infection incidence. Even at the currently applicable warning level 2, the legislator considers the incidence of infection to be controllable. The 2-G-regulation in its concrete formulation by § 9a para. 1 and para. 2, sentences 1 to 3 Corona-VO only makes a very small contribution to the reduction of such an infection. This could be reduced by a FFP2 mask obligation to a level irrelevant for the occurrence of infection. In contrast, there would be considerable interference with the fundamental rights of unvaccinated customers and business owners. In this relationship – controllable infection incidence, low effect of the infection protection measure and considerable encroachment on fundamental rights – the 2-G regulation in the retail trade currently proves to be inappropriate. The new Omikron variant also does not require a different evaluation – when objectively considering the current state of knowledge known to the Senate or presented by the state of Lower Saxony.
The 2-G-regulation in the retail trade in the concrete design according to § 9a para. 1 and para. 2 sentences 1 to 3 Corona-VO is also not compatible with the general principle of equality. There were no discernible objective reasons why, for example, garden center goods, floricultural goods including goods from the horticultural retail trade and goods for the repair and maintenance of electronic equipment should be included among the “goods for daily use or for the basic supply of the population” exempted from the 2-G rule, while DIY stores remained subject to the 2-G rule without restriction.
There are no serious public interests that would prevent the temporary suspension of the regulation, which is likely to be unlawful thereafter. Taking into account the infection protection measures taken in the previous Corona ordinances and the current infection situation in the state of Lower Saxony, the 2-G regulation in the retail sector is not an essential component in the strategy of the state of Lower Saxony to combat the pandemic. This also does not follow from the decisive political determination in the meeting of the Federal Chancellor with the heads of government of the federal states on December 2, 2021.
The abrogation of the so-called 2-G rule in the retail sector does not only work in favor of the applicant in these proceedings. Rather, it is generally binding throughout Lower Saxony.
The decision is non-appealable.
