From November 2, 2020, numerous new bans in the private and business sector will apply. The Federal Government and the Prime Minister’s Conference have agreed on a so-called partial lockdown. There are primarily the following legal options:
Prohibitions regulated in state regulations
The measures announced in the media by the federal government and state ministers are expected to be implemented by ordinances of the state government. In North Rhine-Westphalia, the regulation on protection against new infections with the coronavirus SARS-CoV-2 (Coronaschutzverordnung – CoronaSchVO) was announced on October 30th.
You can find this here: https://www.land.nrw/sites/default/files/asset/document/2020-10-30_coronaschutzverordnung_vom_30._oktober_2020.pdf
Which court should I go to?
Since the measures are regulated in regulations of the state governments, you have to Oberverwaltungsgericht an application for an interim order by way of Standards control procedure put. Attention: Depending on the federal state, there may also be other jurisdictions. Discuss this with an attorney.
Which is the Right Remedy?
The correct type of procedure is the standards control procedure. The type of procedure sounds complicated. Put simply, you are applying in an urgent procedure to determine that a certain regulation may no longer be applied with immediate effect. If the court issues this order, the prohibition no longer applies. The implementation of the regulation is suspended until the main issue has been decided.
Attention: The local regulatory authorities, i.e. the districts and cities, are authorized to issue even stricter bans by way of general decrees and individual administrative acts. You must file applications against these measures at the local administrative courts. It must therefore always be checked exactly on what basis something is prohibited.
Who can sue?
Basically, you have to be affected yourself if you want to object to a certain ban. This applies to almost all legal remedies. Almost everyone will be restricted in their general freedom of action by the corona measures. However, there are better chances of success if your occupational freedom (Art. 12 GG) or your property (Art. 14 GG) is encroached upon. For example because your company is being closed.
Can I go directly to the Federal Constitutional Court or the State Constitutional Court?
These questions are controversial. In principle, however, the simple legal process must always be exhausted before the Federal Constitutional Court can be appealed to. The same applies to the constitutional courts of the federal states. For the state of North Rhine-Westphalia, the state constitutional court (decision of June 5, 2020 Az. 74 / 20.VB-2) in connection with corona restrictions has expressly decided that a state constitutional complaint is inadmissible, as a norm control procedure is possible.
What will legal proceedings cost me?
Read my legal tip on this: What does a lawsuit against the Corona measures (CoronaSchVO) cost?
What are the chances of success?
This is difficult to assess. The longer the measures last and the more intensive they are, the higher the chances of success. There are numerous points of criticism from well-known constitutional lawyers. The virologists are divided anyway. There have also been many different court decisions in the past year. It will certainly also depend on the individual case. The more weighty restrictions on fundamental rights you can assert, the better your chances of success are.
Dr. Olaf Hiebert
Lawyer
Specialist lawyer for insolvency law
Lecturer at the University of Police and Public Administration in North Rhine-Westphalia
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