On 16 May 2023, the Federal Administrative Court held in two cases that the closure of gastronomy establishments at the end of October 2020 based on the general clause of Infection Control Law was lawful.
The Court overturned previous rulings by the Higher Administrative Court of Saarland that declared the closure order of restaurants invalid. The Higher Administrative Court had found that the legal basis for the closure did not meet constitutional requirements.
However, the Federal Administrative Court concluded that the closure of gastronomy establishments could be considered a necessary protective measure under the Infection Control Law. The Court stated that the legislature had the authority to regulate the closure of gastronomy establishments during the pandemic, and while clearer guidelines could have been established, the legislature had a margin of discretion in this regard. The question of whether the closure was proportionate and complied with the principle of equal treatment was not sufficiently addressed by the Higher Administrative Court, so the cases were referred back to the lower court for further examination.
Reference: BVerwG 3 CN 5.22 - Judgment of 16 May 2023 and BVerwG 3 CN 4.22 - Judgment of 16 May 2023.
