Administrative Court of Bayreuth upholds general order by Bavaria's State Ministry of Health and Care

Industry: healthcare Author: Year:
Dr. Carlo Piltz

Facts of the case

The petitioners, who are themselves parents of two children, filed an action on 9 March 2020 challenging the Ministry's general order and seeking a temporary injunction. The general order provides e.g. that students and children who have been to an at-risk region as currently defined by the Robert Koch Institute in the last 14 days may not enter any school, nursery school, day care center or special-needs school for a period of 14 days after their return from the region. The child's parents or guardians are required to ensure compliance with the above obligation.

In the parents' view, the general order is clearly unlawful.

Content of the decision

After summary review, the court found that an action challenging the general order would be unsuccessful. It therefore ruled that the motions in summary proceedings for a temporary injunction against the general order of 6 March 2020 are unfounded.

The legal basis for the general order is § 28(1) Sentence 1 of the Protection against Infection Act, which requires the competent authorities to take necessary protective measures if an illness or suspected illness or infection is found to the extent necessary to prevent the spread of communicable diseases. Insofar as the petitioners doubt that this statute even applies in the case of coronavirus, the court has no doubt that COVID-19 is a communicable disease, so that this case does fall within the scope of the Protection against Infection Act.

The court also states that the general order is not likely to be found disproportionate in the main proceedings. It notes that, in the current situation, in which most cases are related to a stay in an at-risk region or have emerged in local clusters, a strategy of containment should be pursued. This involves taking measures to break the chain of infection as quickly as possible so as to slow the spread of the disease and curb its growth.

Based on summary review, the court finds that the general order does not violate European law. In accordance with Article 21(1) of the TFEU, every citizen of the Union has the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. It notes that the provisions of the general order which has been challenged by the petitioners do not directly restrict free movement; in particular, they do not prohibit travel to at-risk regions. But even if a de facto restriction of free movement were assumed, such a restriction would be objectively justified by overriding needs of general welfare: the protection of public health.

Conclusion

Given the present coronavirus crisis, private interests, primarily financial and intangible interests, generally have to take a back seat to public interests in the preservation of life and physical well-being. As a result, the courts have been giving the competent authorities extensive leeway in deciding which measures are necessary to combat coronavirus, so that it may be assumed that most of the measures which have been ordered in an effort to curb the spread of coronavirus are lawful. However, if measures by the authorities prove to be unlawful, or cease to be lawful, companies have the option of taking legal action to contest the relevant measures and restrictions, provided the action meets the requirements for admissibility.

[March 2020]