Germany, Administrative Court Gießen, 16 May 2022, No. 3 L 998/22.GI
Case overview
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Deciding body (English)
Deciding body (Original)
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Link to the full text of the decision
General Summary
In March 2022, the Land Hessen issued the COVID-19 Basic Protection Measures Regulation (Corona-Basisschutzmaßnahmenverordnung - CoBaSchuV). This regulation contained a 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 May 2022 the University’s Dean issued a general order for the pre-vention of COVID-19 (Allgemeinverfügung zur Infektionsvermeidung mit dem Coronavirus an der Philipps-Universität Marburg). 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 be-cause the general order was neither based on the Federal Infection Pro-tection Law nor on the Land’s regulation. Further, the Claimant alleged an infringement on the bodily integrity and freedom of action. The Claimant sought a temporary injunction, to get the suspension of the challenged provision’s implementation. The Court has rejected the claim.
Facts of the case
The Claimant is a university student, enrolled in the Philipps University of Marburg. The university 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 submitted an application for a temporarily 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 has begun its reasoning recalling the features of a temporary injunction. This one may be granted behind a balance of the contraposed interest and if the Claimant’s interest outweigh the public interest in enforcing the administrative act.
According to the Court the University’s Dean did correctly base its general order on the Hessen Higher Education Law, which provides the Dean's duty to maintain order at the university and to decide on the exercise of domiciliary rights. This provision is not merely a rule of competence, but a rule of authority. The decision on the exercise of domiciliary rights cannot be separated from the exercise of those powers which are necessary to ensure the operation of the University, without causing dangers to the members of the University.
The scope of the general order was to prevent and reduce the infection chain, which would hinder the teaching, research activities and the functioning of the entire university, such as the university's administration and committees.
Further, the exercise of powers under the Hessen Higher Education Law, is not precluded by the Federal Infection Protection Law or by the Land Hessen Regulation. The Federal Infection Protection Law specifies the obligation to wear masks in selected areas, such as doctors' surgeries, hospitals, nursing homes, or also on public transport vehicles. The university was included in 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 power to order further-reaching infection control measures is reserved for the public health authorities and does not lie within the competence of the Respondent.
However, the competence of the authorities does not automatically exclude the competence of another authority to enact "its own" measures within the framework of house rights. The purpose of the issued measure is compliant with the aim of the Federal Infection Protection Law.
The Court has recognized that the order to wear a face mask would encroach on the right of bodily integrity and the freedom of action. These encroachments are minor and justified by the aim to ensure the operations of classes and the university's functioning. Further, the enforcement of the challenged order is limited in time, it required the wearing a less disturbing surgical mask and if no minimum distance can be maintained and no ventilation is guaranteed.
The issued precautionary measures have been evaluated by the Court as necessary. According to the Court there were no milder means because the recourse of distance learning would imply an increase in efforts to adapt the actual face-to-face courses to distance-learning courses.
Conclusions of the deciding body
The Court, after the summary examination, has concluded that the chal-lenged measure to wear a face mask was legally based and was appro-priate and necessary to grant the running of the studies and the univesity’s administration. At the same time, the wearing of a face mask has been evaluated as suitable to protect the health of students and university's staff.
Fundamental Right(s) involved
- Right to bodily integrity
- Principle of legality, freedom of action
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right of bodily integrity and freedom of action, Art. 2, German Constitution
- Rule of law of administrations, Art. 28, German Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Proportionality
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its decision the Court has applied two principles, the rule of law and the principle of proportionality.
The former was applied once the Court had provided reasons on the legal basis of the issued order by the University’s Dean. The latter, the principle of proportionality, was applied once the Court had balanced the encroachment to bodily integrity and freedom of action. The Court has evaluated the encroachments as minor because the wearing of a face mask was limited to three weeks. The face mask had be worn only in certain circumstances, such as in unventialed rooms.
Other notes
This case is linked to another similar case decided by the same Court, VG Gießen Beschluss 02.05.2022 3 L 793/22.GI, whose outcome has been different: https://www.rv.hessenrecht.hessen.de/bshe/document/LARE220002771
