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Lawyer and tax consultant Dr. Dr. Bernd Josef Fehn

19. December 2022

According to the #Bundesverwaltungsgericht (#BVerwG), the #exit restriction based on the Bavarian #Infection Protection Measures Ordinance of March 27, 2020, as amended by the Amendment Ordinance of March 31, 2020 (#BayIfSMV) was disproportionate. This follows from the press release No. 70/2022 of 22.11.2022. In order to achieve the legitimate goal of reducing physical contact with people outside one’s own household to an absolute minimum (§ 4 para. 1 sentence 1 #BayIfSMV), milder measures such as #contact restrictions, which would have allowed staying outdoors with members of one’s own household, would have been available. Therefore, the severe encroachment on the #fundamental rights of the addressees, namely the all-day ban on leaving one’s own home to spend time outdoors, was unlawful. The fact that leaving one’s own apartment was permitted for valid reasons according to § 4 para. 2, 3 #BayIfSMV does not change this. Cogent in this sense were e.g. occupational activities, #doctor’s visits, shopping, the exercise of custody and contact rights, accompaniment of minors, #escorting, #funerals in the closest family circle as well as #sports and exercise in the fresh air alone or with members of the own household and without any other #group formation. Meanwhile, one was not even allowed to sit alone on a park bench to read a book, as this was not associated with #sport or exercise. For the supervision of the observance of the #exit restriction the #police was appointed.

Already the lower court, the Bavarian #Verwaltungsgerichtshof (#BayVGH) had considered the #exit restriction as too narrow and therefore disproportionate. The fact that the #executive tends to overshoot the mark during the #pandemic has already been pointed out by attorney Prof. Dr. Dr. Karsten Fehn and attorney and tax advisor Dr. Dr. Bernd Josef Fehn in their specialist paper

“Measures for #pandemic control and the principle of #proportionality using the example of amateur equestrian sports, SpuRt – #Sport und #Recht 2022 (Issue 2/2022), p. 86 to p. 91”

pointed out. Once again, blind actionism especially of #health policy proves to be wrong.