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Bavaria 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 19, 2022
  • Location: Munich, Germany
  • Court: Bayerische Verwaltungsgerichtshof
  • Case #:
  • Plaintiff: Lamp Store
  • Defendant:
  • Trial Type:
  • Judge:
  • Status: Decided
  • Verdict: for the Plaintiff

*updated: Jan 26, 2022

 

Background

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. [1]

According to the 15th Bavarian Ordinance on Infection Protection Measures [4], the 2G rule in retail demands that only vaccinated and recovered people would have access to the shops. [1]

Now an urgent application against the 2G rule in Bavaria has also been heard. [1]

The complaint was filed by the owner of a lighting store in Upper Bavaria that was affected by this policy. Shops that cover daily needs, however are excluded. [1] for example grocery stores, pharmacies, gas stations, bookstores, flower stores, hardware stores, garden markets and Christmas tree sales. [2] In mid-December, the court had already ruled that toy stores also fall under daily needs and are therefore not subject to the 2G rule. At the end of December, clothing stores were additionally exempted. [2] The applicant saw this as a violation of her professional freedom and the principle of equal treatment. [1]
 
In shopping streets, given the many exceptions, only very few stores ended up applying the 2G rule, for example stores for jewelry, watches, electronics or household goods. “In some areas, the demarcations of what is daily necessities and what is not were barely understandable. Then, for example, the 2G rule applied to haberdashery and suspenders, but not to the pants themselves,” says Gärtner (managing director of the trade association in Swabia). [2]
 
“The lack of understanding on the part of customers has therefore recently increased considerably,” Gärtner observed. [2]

 

Significance

This case undoes the restrictive 2G rule for every shop and retailer. It is a major blow to the Covid regime. It is also significant in that Bavaria’s Governor Markus Soeder (CSU) is one of the strictest and most vocal supporters of Lockdowns, Track and Trace and Mandatory Vaccinations.

 

Plaintiff’s Argument

According to the current Bavarian Ordinance on Protection against Infection, only vaccinated and recovered persons may enter retail stores. Stores catering to daily needs are exempt. 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

…More information is needed…

 

Decision

“We are completely suspending 2G in retail in Bavaria and thus ensuring a quick and practicable implementation of the VGH decision,” Head of the State Chancellery (CSU) announced immediately after the decision became known. [1]

The judges have struck down the entire regulation: they see the Infection Protection Act as a sufficient legal basis for 2G restrictions in retail. However, the Bavarian Ordinance must state clearly and conclusively to which transactions the Regulation specifically applies. [4]

The criterion of “daily need” is explained in the Infection Protection Measures Ordinance by an – exhaustive – list of examples, the Administrative Court explained. Thus, it is not possible to determine with sufficient certainty from the ordinance which business is covered by the access restriction and which is not. [1]

According to the court, however, there must then be “sufficient clarity from the regulation itself” as to exactly which areas the 2G rules apply to and which do not. The government should not hand over this task to offices and courts. [2]

There is no right of appeal against Wednesday’s decision. [1]

 

Aftermath

  • The CEO of the German Retail Association, Stefan Genth, said, “Bavaria and Lower Saxony are leading the way for the other states. 2G in retail makes no sense and must be quickly abolished.” Since the beginning of the pandemic, he said, the food trade has shown that purchasing with a mask, distance and hygiene concept is safe. [1]

“Policymakers in all states and the federal government need to correct themselves and quickly repeal 2G in shopping.” [1]

  • Head of the State Chancellery Herrmann (CSU) also emphasized, “The FFP2 mask requirement in retail continues to apply and provide protection.” [1]
  • We unreservedly welcome this ruling,” says Wolfgang Puff, General Manager of the Bavarian Trade Association. “We hope that sales and frequencies in the retail sector will now pick up again, as many people have recently been very unsettled,” [2]

“We would be happy not to have to make any limitations and control 2G obligations in the future,” he adds. [2]

Puff now hopes that more customers will return to the stores after the ruling. [2]

“Higher retail visitation figures are urgently needed, as Christmas sales have fallen through the cracks for the second time,” he says. “We have to get back to normal at some point, because at some point retailers’ reserves will be exhausted,” Puff warns. [2]

  • The Bavarian Trade Association has welcomed the end of the 2G rule in stores. “We hope the topic is finally out of the picture,” said managing director Bernd Ohlmann. The decision of the administrative court was awaited by many traders. “Now we have clarity.”

    Ohlmann complained that the state government-ordered 2G rule “ruined Christmas business” for retailers. Restricted access did not lead to notorious vaccination refusals, they bought online – as did many vaccinated people who were deterred by queues outside checks in stores. [4]

  • Economy Minister Hubert Aiwanger (Free Voters) welcomed the Administrative Court’s decision. “Retail has been calling for this relaxation for a long time, as 2G screening for the affected ranges required a lot of effort and there is no particular risk of infection in retail due to FFP2 masks,” a- he told the “Passauer Neue”. Press”. It is a relief for traders to be able to work without 2G in the future. [4]
Other Rulings
  • On Jan 21, 2022, The Higher Administrative Court of Saarland also overturned the 2G rules for retail citing similar reasons and conditions. [5]
  • 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.  [6]
  • On Jan 25, 2022, also in n Baden-Württemberg, the Verwaltungsgerichtshof (The Administrative Court) overturned the 2G rule for retail. The Court considers the freezing of alert level II by the Corona Ordinance to be probably unlawful. [7]

 

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. Bayerischer Gerichtshof kippt 2G-Regel im Einzelhandel
  2. 2G-Regel im Handel fällt: Was gilt jetzt in bayerischen Geschäften?
  3. Niedersachsen kippt 2G-Regel im Einzelhandel
  4. 2G rule overturned in Bavarian retail
  5. Oberverwaltungsgericht kippt 2G-Regel für Einzelhandel im Saarland
  6. VGH-Beschluss: 2G-Regel an Hochschulen in BW wird außer Vollzug gesetzt

Keyword

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

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