Overnight bans for travelers from risk areas are intended to curb the infection rate. But courts and countries overturn the ban.
KARLSRUHE taz | The wind has turned. At the beginning of this week there was still in most federal states Accommodation bans. But on Wednesday, at a meeting of the prime ministers, no agreement was reached and the topic was postponed. In the meantime, the countries with accommodation bans are in the minority.
The bans are aimed at hotels and other places where paid overnight stays such as holiday apartments and campsites are located. It is forbidden to accommodate guests from cities and districts in which the number of newly infected people within 7 days is above the threshold of 50 per 100,000 inhabitants. There are exceptions if you present a current certificate stating that you are not infected with Covid-19.
On Thursday the Administrative Court (VGH) Mannheim and the Higher Administrative Court (OVG) Lüneburg overturned the respective regulations in Baden-Württemberg and Lower Saxony, while the OVG Schleswig upheld the regulation in Schleswig-Holstein. So the trend is still not entirely clear.
The state governments in Saarland, Saxony, Hesse and Bavaria have now waived their bans on accommodation, partly under the influence of the court rulings. At the moment, however, four states – Brandenburg, Mecklenburg-Western Pomerania, Saxony-Anhalt and Schleswig-Holstein – are still adhering to their regulations.
A large patchwork quilt
It is not the first time since the beginning of the pandemic that there is a patchwork of different country regulations. The reason is always the same: the states are primarily responsible for combating corona. Their powers come from a federal law, the Infection Protection Act, but the state governments usually decide on the “necessary protective measures” by means of statutory instruments. Federal-state conferences like on Wednesday only serve for coordination, but can do not take any binding resolutions.
Because the states make the rules, state courts are primarily responsible for control. In most countries, OVGs and VGHe can even annul entire ordinances. Due to the vague legal requirements, the decisive test standard is usually that Principle of proportionality. The benefits and harm of government measures are weighed up. Here, too, different situations, but also different priorities of the judges can quickly lead to different regulations.
The VGH Mannheim did not see an increased risk of infection in hotels because you usually stay to yourself. The real drivers of the pandemic are celebrations in larger groups. It is also unreasonable for guests from risk areas to obtain a certificate of their safety, because this often takes too long in view of the limited test capacities. The OVG Lüneburg argued similarly.
The OVG Schleswig, however, saw the outcome of its process as open and therefore decided its urgent procedure on the basis of a weighing of the consequences. Without an accommodation ban, many people from risk areas could travel to Schleswig-Holstein who would otherwise not come, according to the judges. In view of the rapidly increasing number of infections, this is a danger to the health system.
Is a drastic measure proportionate?
All court judgments are only snapshots. Depending on the development of the pandemic, the behavior of the population and the duration of the measures, the judges’ assessments in the next month or even the next week can look different again. This flexibility to adapt to changing situations should not be seen as a disadvantage, but as an advantage of the principle of proportionality.