Germany, Administrative Supreme Court of Munich, 3 March 2022, No. 20 CE 22.536
Case overview
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Deciding body (Original)
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Link to the full text of the decision
General Summary
The case concerns the implementation of the federal regulation of the relief and exemptions from safeguards to prevent the spread of COVID-19 (COVID-19-Schutzmaßnahmen-Ausnahmenverordnung- SchAusnahmV). This regulation was amended by the protective measures’ exemption ordinance and the COVID-19 entry ordinance, issued on January 2022 (BAnz. AT 14.01.2022 V1).
According to these ordinances, proof of recovery was valid for 90 days. This proof should have to be set according to the guidelines of the federal scientific institution Robert Koch Institute.
The Claimant, who had recovered from the COVID-19 in September, lost his status as recovered person, so he was subject to the restrictions of the fifteenth Bavarian infection protection measures ordinance (15th BayIfSMV).
The Claimant addressed his claim against the amendments SchAusnahmV, alleging an infringement to the allocation of administrative powers and an infringement to the principle of legality because the introduced amendments did not have a legal basis in the federal infection protection law. The Claimant looked for an injunction with which his status as a recovered person was ascertained. The Court has upheld the claim.
Facts of the case
On September of 2021 the Claimant tested positive for COVID-19. The Claimant has not been vaccinated against COVID-19. According to the fifteenth Bavarian infection protection measures ordinance, the Claimant could only be considered as recovered until March 23, 2022.
In January of 2022, amendments to the federal regulation SchAusnahmV were enacted. According to this rule the validity period for proof of recovery changed to 90 days so the Claimant was no longer considered to be recovered.
The Claimant tried to get a certificate of his recovered status but the competent authority refused to issue a certificate due to lack of administrative authority.
The Claimant turned to the first instance Administrative Court looking for an order, addressed to the competent health authority, in order to get the proof of his status as a recovered person.
The first instance court shared the argument of the authority because there was no ascertainable legal relationship between the Claimant and the Respondent as the enforcement authority. Such a legal relationship exists only between the Claimant and the federal administration due to the federal regulation, SchAusnahmV.
Against this decision, the Claimant submitted an appeal to the Administrative Court of Munich.
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 reversing the first instance Court conclusion. Indeed, according to the Court there is a legal relationship between the Claimant and the Respondent, as the infectious control authority. A legal relationship within the meaning of the code of administrative procedure should be understood as the legal relations arising from a concrete factual situation on the base of a public law provision.
The circumstance that the Claimant’s application could be brought against the Federal State, because it had enacted the federal law and regulation, did not preclude the existence of an ascertainable legal relationship between the Claimant and the Respondent.
According to the German Constitution federal laws should be implemented by the Lander and the fulfillment of tasks is generally a matter of each Land. A legal relationship is normally established between the normal addressee and the normal user and in this case between the Claimant and the Respondent, according to the Court.
This legal relationship is also concrete because it relates to a specific set of facts, so the district administrative authority was liable for the enforcement of a set of provisions contained in the Federal Infection Protection Act, in the Bavarian Infection Protection Act (BayIfSG) and in the federal regulation on the relief and exemptions from safeguards to prevent the spread of COVID-19 (SchAusnahmV). Consequently, it was the authority’s responsibility to monitor the compliance with the mentioned laws and with the legal effects directly linked to the immunity status. Further, the recovery status was also linked to rights and duties directly established by federal law and by SchAusnahmV.
During the reasoning, the Court has argued the unlawfulness of the SchAusnahmV for its delegation to a scientific institute to provide guidelines. This delegation was formulated too broadly and did not have a sufficient legal basis in the Federal Infection Protection Law. Though the reference to sets of rules created by non-governmental standardization bodies is not generally excluded as long as the content of the regulations enacted by another regulator is essentially fixed, accordingly, the scope of the reference is decisive, as well as the subject matter and the involved fundamental rights, according to the Court. The reference of the SchAusnahmV did not meet this condition. Further, there is also a lack of specifications on precise criteria for consideration and decision-making, which should guide the decision on the period of validity of the proof of recovery.
The regulation on the validity of the recovered certificate was relevant to fundamental rights. It depended on this certificate to what extent a person was subject to access restrictions under the federal and Land law.
Conclusions of the deciding body
Considering the ineffectiveness of the SchAusnahmV, its original version from May of 2021 (BAnz AT 08.05.2021 V1) continues to be valid, which expressly provides a duration of the recovered status for a period of six months. The Claimant should be considered as recovered until March 2022.
Implementation of the ruling
The claim has been upheld.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Allocation of administrative power, health and life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Art. 2, German Constitution
- Land’s duty to implement federal tasks, Art. 30, German Constitution
- Land’s obligation to implement federal laws, Art. 83, German Constitution
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 decision, the Court has applied the rule of law. The Court has examined the challenged provision under the federal law on which it was based. The Court has concluded that the introduced amendments were unlawful because they did not have a sufficient legal basis, so the original version of the law remains into force. The delegation of administrative decision affecting fundamental rights was too wide.
