Munich

On 22 November 2022, the Federal Administrative Court ruled that the lockdown restrictions for people to leave their home under the Bavarian Infection Protection Measures Ordinance as amended on 31 March 2020 (BayIfSMV) was disproportionate. The Court confirmed the judgment of the Bavarian Administrative Court that had considered it disproportionate as well and rejected the appeal by the Bavarian government.

Under the relevant provisions of the Bavarian ordinance, leaving one's own home was only permitted if there were valid reasons. Some activities were allowed, including sports, and exercising in the fresh air, but alone or with household members, without mixing with other groups. The Court held that these restrictions were so narrowly designed that they were disproportionate.

A measure is necessary if there is no equally effective means of achieving the objective that is less burdensome for the holders of the fundamental rights. The lower court had rightly held that restrictions on contact in public and private spaces, which would not have prohibited spending time outdoors alone or exclusively with members of one's own household, could have been considered as an alternative measure in this case. Under the contested provisions, people could go out to exercise, but not spend time in the outdoors, for example reading a book on a park bench.

The Court held that the ban on leaving one's own home to spend time outdoors, which applied all day and thus also during daylight hours, was a severe encroachment on fundamental rights. For proportionality in the narrower sense, it would have had to be plausibly demonstrated in the factual instance that, beyond a restriction of contact, it could make a significant contribution to achieving the goal of reducing physical contact and thereby preventing the spread of COVID-19. This was not the case here.

Reference: BVerwG 3 CN 2.21 – Judgment of 22 November 2022.

Previous instance: VGH Munich, VGH 20 N 20.767 – Decision of 4 October 2021.

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