Germany, Administrative Court Gießen, 2 May 2022, No. 3 L 793/22.GI
Case overview
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Link to the full text of the decision
General Summary
In March 2022 the Land Hessen issued the COVID-10 Basic Protection Measures Regulation (Corona-Basisschutzmaßnahmenverordnung - CoBaSchuV). This regulation contained provision on the obligation of wearing face masks. This obligation was limited to specific areas. The Land’s regulation mirrored the federal law’s provision. The Claimant is a university student.
In April 2022 the University’s Dean issued a general order for the prevention of COVID-19. This general order contained a general obligation to wear a face mask in university buildings. The Claimant alleged an infringement on the principle of legality because the general order was neither based on the Federal Infection Protection Law nor on the Land’s regulation.
The Claimant sought a temporary injunction, in order to get the suspension of the challenged provision’s implementation. The Court has upheld the claim.
Facts of the case
The Claimant is a university student, enrolled in a Master Philosophy Courts. The University’s Dean issued a general order, according to which the wearing of a face mask was mandatory within the university’s buildings. The Claimant raised objections pointing out that a legal basis for such a general order was missing. At the same time, the Claimant filed an application for a temporary injunction.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court began its reasoning recalling the features of a temporary injunction which may be granted behind a balance of the contraposed interest if the Claimant’s interest outweighs the public interest in enforcing the administrative act.
The Court has recognized the interest of the University to avert the dangers of the spread of COVID-19 among students and employees.
However, the social code and the COVID-19 Occupational Health and Safety Regulation were not a sufficient legal basis to issue the challenged measures. Indeed, the former, did not authorize the University to provide such an obligation. The social code authorizes it to issue accident prevention regulations.
The Occupational Health and Safety Regulation, was not an appropriate legal basis because it concerns employment relationships under private law and does not necessarily include any authority to issue administrative acts towards students.
According to administrative laws, a Court is called to examine to what extent the challenged provision can be upheld under another legal basis.
The Federal Infection Protection Law specifies the obligation to wear masks in selected areas, such as doctors' surgeries, hospitals, nursing homes or also public transport vehicles. The University had been excluded from this list.
Further, the Land Hessen with its Land regulation (CoBaSchuV) did not integrate the federal law provision and repeated the listed areas, where the obligation to wear a face mask is mandatory. The powers to order further-reaching infection control measures is reserved for the public health authorities and does not lie within the competence of the Respondent.
The Hessen Higher Education Law did not provide a legal basis for the challenged measures. according to this provision the University’s Dena maintains the order at the university and decides on the exercise of domiciliary rights. However, the Court has left open the question whether this provision is a power norm, which allows the University’s Dean, despite the restrictive interpretation of the Federal Infection Protection Law, to order an encroachment on fundamental rights, such as the obligation to wear a mask.
Even if this provision was considered suitable, the change of the legal basis of the challenged order would fail because it would lead to a change in the order’s nature. Indeed, such a change occurred when an administrative act is based on the discretion of the issuer. The exercise of discretion must be guided by the scope of the legal basis and must be known. However, the Court has been persuaded that the exercise of domiciliary rights belongs to different areas of law and so it is unsuitable to provide a legal basis.
Finally, the Court has expressed its doubts on the formalities of the act. Though the order was signed by the Dean, it is stated in the application’s reply that the order was issued "on the basis of the decision of the presidency" and it was impossible to determine whether the order was made public. A publication in internet does not replace the conventional publication.
Conclusions of the deciding body
The Court has concluded that the university’s general order lacked legal basis. Accordingly, the temporary injunction to suspend the general order’s implementation has been granted.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its decison the Court has applied the rule of law. The Court has focused its attention on examining whether the challenged order had a legal basis and evaluated the different alternatives.
Other notes
This case is linked to another similar case decided by the same Court, VG Gießen Beschluss vom May 16, 2022 - 3 L 998/22.GI whose outcome has been different: https://openjur.de/u/2396317.html The decision is available in German
