From the restaurateur to the brothel operator, from the travel-loving privateer to the “lateral thinker” – they all went to the Kadi in 2020 against Corona rules. Resistance to the ordinances of the Baden-Württemberg state government is primarily a concern of the administrative court in Mannheim. “The topic has kept us very busy in 2020,” said spokesman Matthias Hettich in a balance sheet. The VGH has received almost 330 proceedings, the majority of which are standards control proceedings. The judges check whether legal norms such as statutes and ordinances are compatible with higher-ranking law – such as the Basic Law.
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But there is a ray of hope for the judges in Mannheim, who were already heavily stressed because of the asylum procedure before Corona. “I hope that an additional Senate will be set up in the first quarter of 2021,” says Hettich. In the opinion of Justice Minister Guido Wolf (CDU), the VGH is currently particularly challenged. “It is not only an increased number of asylum procedures that are now reaching the second instance, the court is currently also dealing with a large number of procedures in connection with the corona-related restrictions.” This will soon be remedied with an additional senate – a chairman and two adjunct judges. “Especially in such very dynamic times as we are currently experiencing, the importance of effective legal protection by independent courts is once again made clear to us,” said Wolf.
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Above all, the 1st Senate, which is responsible for infection protection law, is currently in demand. At the beginning of August 2020 he had already handed over gun law and animal welfare law to the 6th Senate. The new 16th Senate should primarily deal with asylum matters – and thus help other Senates not to drown in the wave of Corona lawsuits.
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97 main and 198 urgent proceedings in connection with Corona have been decided or are still pending at the highest administrative court in the country; some applicants were or are on both routes. In addition, there are almost 30 proceedings on the complex of freedom of assembly, an issue for which the VGH has second instance responsibility. Example: He recently confirmed the decision of the Freiburg Administrative Court to prohibit a “lateral thinking” demo with several thousand participants in Weil am Rhein (Lörrach district) because of a very likely high risk of infection.
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Of the almost 200 urgent proceedings, 188 have already been decided – with a success rate of the applicants of “significantly less than 10 percent”, according to Hettich. In the case of urgent applications against the mask requirement and against company closings in the first lockdown, the applicants were subject. In October, however, the VGH decided, in the interests of the applicant, that the closure of prostitution facilities, which had been ongoing since March 2020, was now disproportionate. The court also overturned the ban on accommodation for guests from German regions with a 7-day incidence of more than 50 newly reported corona cases per 100,000 inhabitants.
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60 of the main proceedings are still pending. The remaining 37 were dealt with, be it applications being withdrawn or rejected, or applicants lacking a lawyer. A lawyer is required before the VGH. Or the contested standard has since been repealed, as Hettich explained. Substantive decisions in main proceedings on the “big questions” have not yet been made.
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In the upcoming oral negotiations, it should be discussed whether Parliament should not be much more involved in the decisions in the fight against the pandemic. It also needs to be clarified, according to Hettich, whether less drastic rules than those adopted could not have achieved the same effect without pulling the rug from under the feet of restaurateurs and retailers.
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