Corona and exit restrictions in Bavaria

19th December 2022

Author/s:
Attorney-at-law and tax consultant Dr. Dr. Bernd Josef Fehn

According to the Federal Administrative Court - #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 (section 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. It does not change anything that the leaving of the own #apartment was permitted for valid reasons according to section 4 para. 2, 3 #BayIfSMV. Valid in this sense were e.g. professional activities, #doctor visits, shopping, the exercise of custody and right of access, accompaniment of minors, #bereavement accompaniment, #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. The #police was appointed to monitor compliance with the exit restriction.

Already the lower court, the Bavarian Administrative Court - Bayerische #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 demonstrated by attorney Prof. Dr. Dr. Karsten Fehn and attorney and tax advisor Dr. Dr. Bernd Josef Fehn in their specialist article

"Measures to combat the #pandemic and the principle of #proportionality using the example of amateur equestrian sports, SpuRt - #Sport und #Recht (#Sports and #Law) 2022 (Issue 2/2022), p. 86 to p. 91".

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