Bayern likes to present itself as a federal state where law and order still prevail. Whether in questions of preventive detention for dangerous people, which can be ordered there for longer than anywhere else, or with the powers of the protection of the constitution – one goes “to the limits” of the rule of law, as Interior Minister Joachim Herrmann (CSU) already said. And sometimes beyond.
With regard to the protection of the constitution, the Federal Constitutional Court attested to numerous violations of the Basic Law in the Free State in April. A correction of the Bavarian corona policy by the highest court followed on Tuesday.
This time the clarification came from Leipzig. There, the judges of the Federal Administrative Court ruled that the Bavarian curfews at the beginning of the pandemic seriously and disproportionately interfered with fundamental rights.
On March 24, 2020, the Bavarian state government issued strict exit restrictions to contain the incidence of infection, which applied retroactively from March 21 to April 19. According to the ordinance, only those who had a valid reason were allowed to leave their own home.
This could be the way to work or a visit to the doctor. Sport was also allowed, but only alone or with members of your own household. Simply staying out in the fresh air – for example to read a book on a bench – was forbidden. With the regulation, Bavaria went beyond the federal-state decision at the time.
Even leeway has limits
Last October, the Bavarian Administrative Court rejected the curfew as illegal. The state government left open why the exit restrictions also included behavior that was insignificant in terms of infection. Milder measures were also conceivable at the beginning of the pandemic and despite all the uncertainties.
The judges of the highest German administrative court followed suit. The Bavarian government did have a certain amount of discretion when the ordinance was issued. “However, such leeway has limits,” as the court said in the statement.
Bavaria’s Health Minister Klaus Holetschek (CSU) emphasized on Tuesday how important it was at the beginning of the pandemic “not to hesitate too long.” From the point of view at the time, the curfews were correct, said Holetschek. Even the judicial review does not change that. The decision will be respected nonetheless.
Saxon regulation was lawful
The applications of a man from Saxony were unsuccessful in Leipzig. He had opposed the contact restrictions in public spaces and the closure of restaurants and sports facilities – measures that the Saxon government enacted in spring 2020.
At that time there was no parliamentary law for the far-reaching rules on contact restrictions. Rather, all state governments issued regulations based on Section 28 of the Infection Protection Act. This was a general clause dating back to before the pandemic, which contained general protective measures. Paragraph 28a, which was tailored to the pandemic, was only passed by the Bundestag in November 2020.
Criticism of the state ordinances gradually grew at the time; Lawyers referred to the rule of law. It requires that the democratically legitimized legislature regulate all “essentials” themselves, not the government.
The Federal Administrative Court has now decided that the general paragraph 28 was still a permissible legal basis in spring 2020 in view of all the uncertainties about the corona virus. The judges consider the Saxon ordinance to be proportionate.