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Corona: OVG Münster rejects lawyer from Cologne’s lawsuit
“Access only for vaccinated persons and genesis”: The 2G rule remains in place, an urgent application was rejected by the OVG Münster. Photo: Stefan Kuhn
The Higher Administrative Court of Münster (OVG) rejected an urgent application on Thursday (December 23, 2021), which was directed against access and contact restrictions for non-immunized people.
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The applicant, a lawyer from Cologne who neither recovered from a previous infection with the SARS-CoV-2 coronavirus nor had been vaccinated against it, claimed that he wanted to visit Christmas markets in his hometown, as well as cafes and restaurants, and also to play golf outdoors with other players pursue. The Corona Protection Ordinance interferes in a disproportionate manner with his basic rights.
From his point of view, the only effective and proportionate measures are the ordering of the wearing of FFP2 masks indoors and the protection of the vulnerable risk groups, which in particular included people aged 60 and over.
Often the minimum distance cannot be maintained
The OVG did not follow this. The 13th Senate stated that the attacked access restriction for visiting Christmas markets is unlikely to be objectionable. The risk of infection is generally much lower in outdoor areas. However, the SARS-CoV-2 coronavirus also spreads outdoors, namely where people – as is typically the case at Christmas markets – come together and the distance of 1.5 meters cannot be safely maintained. In addition, an FFP2 mask must necessarily be removed while drinking or eating.
With the restriction of access to outdoor sports facilities, the legislator has not yet clearly exceeded the wide scope of assessment to which it is entitled. In or on sports facilities, a plurality of changing people typically meet each other for the purpose of doing sports alone or together. This harbors the risk of longer encounters even if the minimum distance is not observed. Furthermore, the severity of the intervention is relativized by the fact that in any case, individual outdoor sports outside of sports facilities, such as jogging, are still unrestrictedly permitted.
The access restrictions for gastronomic offers are also likely to be proportionate. In catering facilities, which are mainly operated in closed rooms in the winter months, a large number of changing people come together for a longer period not only to eat and drink – this necessarily without a mask – but also to socialize.
Despite hygiene concepts, there is a risk of spread
Even if existing hygiene concepts are taken into account, there is therefore a particular risk of the coronavirus SARS-CoV-2 being spread by or to non-immunized guests. The severity of the violation of fundamental rights is not disproportionate to the intended purpose of the ordinance, especially since those affected can continue to be supplied with food and the out-of-home sale of food is still possible.
Finally, the contact restrictions in public and private space that apply to non-immunized persons are also likely to be proportionate on a preliminary assessment. A significant reduction in social contacts is appropriate and necessary in order to slow down the spread of the virus in the population. In the current situation, direct and long-term contacts, especially in closed private rooms, harbor a high risk of infection. In view of the current infection situation, the considerable scope of the intervention can still be accepted.
The decision is final. File number: 13 B 1901 / 21.NE
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