VG Braunschweig, press release dated 06.08.2024 on the judgment 4 A 129/20 dated 06.08.2024 (nrkr)
On August 6, 2024, the 4th Chamber of the Braunschweig Administrative Court dismissed a driving school’s lawsuit seeking a subsequent determination that a measure taken by the Goslar district to contain the corona virus was unlawful.
In the “early phase” of the Corona pandemic, on March 17, 2020, the defendant district of Goslar issued a general decree which, among other things, prohibited “taking advantage of offers in adult education centers, music schools and other public and private educational institutions in the extracurricular area” for a period of one month. On this basis, the district also considered driving school lessons to be prohibited and informed the plaintiff of this. On March 23, 2020, a state regulation applicable throughout Lower Saxony came into force which, among other things, expressly prohibited driving school lessons. With the so-called Corona Ordinance of the State of May 5, 2020, the provisions were amended to the effect that theoretical lessons, preparation for and conduct of the theoretical test and practical lessons with motorized vehicles driving ahead or behind were permitted provided the minimum distance of 1.5 m and other hygiene measures and contact tracing measures were observed.
The driving school continued to pursue its request to declare the complete ban on driving lessons in the Goslar district, which came into force at the end of March 2020, unlawful, even after the regulations had expired and after the end of the pandemic.
In its ruling, the chamber pointed out that the assessment of legality depended solely on the facts and scientific findings that were available at the time the district issued the ban. The chamber then considered the ban by the general decree of March 2020 to be justified. From the perspective of the time, an unchecked wave of illness could have led to an overload of the health system, even with only a small proportion of serious illnesses. The “early stage” of the pandemic in March 2020 was an exceptional situation in which the administration had to react to a sudden, very dynamic infection event with extremely short notice. In order to slow down the dynamic spread of the disease in Germany and worldwide as much as possible, to spread the wave of illness over a longer period of time and thus also to cope with the burden on the health system, the Robert Koch Institute (RKI), which is responsible under the Infection Protection Act, recommended “population-based contact-reducing measures” at the time.
The court found that maintaining the efficiency of the health care system and in particular of hospitals for the treatment of seriously and severely ill people, which the district had intended at the time with its general decree, represented an overriding public interest. Protecting the lives and health of those directly endangered by the health care system being overwhelmed is a constitutional duty of the state. In the “early phase of the pandemic” in question here, the driving school’s fundamental rights should have taken a back seat.
The argument that an undifferentiated, complete ban on driving lessons was disproportionate did not convince the chamber. The plaintiff driving school had objected during the trial, among other things, that during practical motorcycle lessons, students and teachers drive different vehicles 50 meters apart. This view was too simplistic, according to the court. It failed to recognize that before starting the journey in practical motorcycle lessons, explanations from the driving instructor and assistance in preparing the motorcycle were necessary, and that such a large distance could not be maintained. In addition, based on the knowledge available at the time, it was also unclear whether the use of the same driving school motorcycle by successive students could have led to an increase in smear infections.
In addition, due to the great time pressure to take immediate measures to contain the exponentially spreading virus, it was simply impossible for the district to draft differentiated regulations for every possible situation. Therefore, in order to ensure effective protection against infection, it had to initially resort to more general provisions that could be implemented quickly and easily. This is because a regulation that takes individual peculiarities into account, as well as exemptions, would have led to an unmanageable and unaffordable administrative, enforcement and control effort. It should also be taken into account that the public sector had tried to avert threats to livelihoods through aid programs and at least to reduce financial losses for those affected, for example by making it easier to access short-time work benefits and emergency corona aid.
The judgment is not yet final. Those involved can apply for leave to appeal to the Lower Saxony Higher Administrative Court in Lüneburg.
Source: Administrative Court of Braunschweig
