Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The Claimant addressed his claim against the COVID-19 Regulation of the Land Niedersachsen on the preventive infection measures to reduce the spread of COVID-19 and its variants (Niedersächsische Corona-Verordnung, über infektionspräventive Schutzmaßnahmen zur Eindämmung des Coronavirus SARS-CoV-2 und dessen Varianten (Niedersächsische Corona-Verordnung) vom 23. November 2021 (Nds. GVBl. S. 770). This regulation was amended on November 2021. A provision contained in the regulation provided restrictions in participating in outdoor sports for unvaccinated persons.
he regulation provided different levels of restrictions on the warning levels. Concerning warning level one and two, non-vaccinated persons could take advantage of open-air facilities to carry out sport activities. However, with warning level three non-vaccinated person could not do sport activities in open-air facilities. The Claimant looked for constitutional review of the challenged provision and looked for an injunction with the aim to suspend its implementation. She alleged an infringement on the freedom of movement and to the principle of equal treatment of law.
The Court has partially upheld the claim
Facts of the case
In November of 2021 the Land Niedersachsen issued the COVID-19 Regulation. This regulation included a rule, which restricted the outdoor sports for unvaccinated persons.
The Claimant was neither vaccinated nor had recovered from COVID-19. The Claimant was the member of a golf club. The challenged provision would prohibit her from practicing the sport once the level three warning was declared because she was not vaccinated.
By practicing golf with a maximum of three or four people in a single game: the golf facility should be booked in advance and the timespan was widened in order to prevent the gathering of larger group of people. The employment of facilities, such as changing rooms or showers, is not necessary for the practice of sports like golf.
From the 24th of December 2021, warning level three had been in place the Land Niedersachsen.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court began its reasoning defining the borders of its decision. The Court has limited its review to the claim concerning the prohibition to do open-air sport by non-vaccinated persons, once the third level warning applies.
The Court has recalled the legal requirements, which should be met, to issue a temporary injunction. It should be suitable and necessary to avert the threat of serious disadvantages or for other important reasons. The standard of review, which should be followed by a Court, is the protentional of success of the claim in the proceedings on the merit.
According to the Court, the prohibition of the use of open-air sports facilities by non-vaccinated/non-recovered persons, as provided in the challenged provision, was not a necessary protective measure within the meaning of the Federal Infection Protection Law. Therefore, the range of protective measure, which can be issued, were limited to the principle of necessity by the federal law, therefore, a Land could order binding measures that are objectively necessary to achieve legitimate goals, as provided by the federal law. A legitimate scope was the prevention of the spread of COVID-19, as well as the avoidance of overloading the healthcare system.
But effective means of self-protection were available to part of the population in the form of vaccination and supplementary basic protection measures. Accordingly, the first goal of a State should no longer be to prevent every single infection, but an overload of the healthcare system due to an unchecked increase in the number of cases, cases of illness and deaths. Logically, this goal requires secondary measures capable of preventing individual infections, according to the Court.
The challenged provision significantly encroaches on the freedom of movement of non-vaccinated/non0recovered persons, who were denied access to open-air sports facilities. Because the sport can be practiced at a sports facilities, as golf, this sport activity is in fact generally prohibited. The reference to the general possibility of practicing sports outside of sports facilities does not mitigate the depth of the encroachment.
Therefore, the Court has pointed out that an increased risk of infection cannot be identified in every sport activity. This may be true for those sports, where the compliance with the distance requirement is unreasonable, such as basketball. But there are sport activities, usch as tennis and golf, that can comply with the requirements. This simple differentiation between team sports and individual sports imposes a different evaluation with regard to the risk infection, so it would not be correct to adopt uniform protective measures.
Further the Court has expressed doubts about the principle of equality. Not all differentiations are prohibited, but they must be justified by the regulations’ objectives and the differentiation’s peculiarities. The limits for the setting standards range from arbitrary prohibition to a strict binding of proportionality requirements.
Accordingly, there is an unequal treatment of outdoor sports practiced by non-recovered/non-vaccinated persons at sports facilities and outside of sports facilities. The same challenged regulation did not prohibit the practice of sports outside of sports facilities.
Conclusions of the deciding body
The Court has concluded that the prohibition to practice sport at outdoor facilities was unlawful and should be declared invalid.
Implementation of the ruling
The temporarily order of non-enforcement was not only effective in favor of the Claimant, the Court has found it was generally binding, so the decision should be formally published on the Law and Regulation Gazette of Niedersachsen.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Self-determination, non-discrimination
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to self-determination, Art. 2, German Constitution
- Principle of equality/nondiscrimination, Art. 3, German Constitution
- Freedom of movement, Art. 11, German Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. self-determination
General principle applied
- Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its decision the Court has applied the rule of law when it delimited the examination of the claim and recalled the legal requirements, which should be met, to issue a temporary injunction. Further, the Court has applied this principle throughout the analysis of whether the principle of equal application of law was respected by the Land Legislator.
On the merits of the injunction the Court has applied the principle of proportionality. Though, the Court has shared the arguments, according to which the prohibition of the use of open-air sports facilities by non-vaccinated/non-recovered persons would help the legislator’s scope to reduce the COVID-19 spread because the observance of distance or the wearing of a face mask would be not guaranteed. Through these considerations, the Court has evaluated the challenged prohibition as disproportionate because they severely encroached on the freedom of movement of non-vaccinated/non-recovered persons.