In Germany, anti-virus measures stumble in courts

A Berlin court on Friday overturned an order for restaurants and bars to close early, the latest in a slew of legal rulings upending measures taken by Germany’s national and local governments to fight coronavirus transmission.

The latest judicial setback for authorities in the German capital came on the heels of other court challenges over another controversial measure banning hotel and holiday home stays for domestic travellers from regions with high infection rates.

The legal tangle added another layer to confusion over rules agreed between states and Chancellor Angela Merkel’s federal government but which are in reality left up to regional authorities of Germany’s 16 states to implement.

On Friday, Berlin authorities’ order for restaurant and bars to close from 11pm to 6am became the latest to fail before the court, a ruling that could have a huge impact on a sector severely hit by the pandemic.

The German capital’s administrative court noted that new infections in Germany currently mostly stem from private gatherings of family and friends, at community facilities, meat-processing plants, religious gatherings or in connection with travel.

“It was not apparent” that closing food and drink establishments early would help fight contagion, the court found in the case brought by 11 restaurant and bar owners.

The measure, which came in force on October 10, was therefore a “disproportionate encroachment on the freedom” of the industry, the court said.

Health Minister Jens Spahn said he was “very disappointed” at the ruling, saying the logic behind the measure was right because “there is no doubt that in big cities… especially in the late hours, what is happening in private and public places is a driver of current infections”.

The capital, known for its vibrant nightlife, had imposed the curb as new daily infections in Germany soared past 7,000—a record since the pandemic started.

Under rules agreed by premiers of Germany’s 16 states and Merkel, local authorities are required to impose early closing hours for restaurants or bars once new infection numbers climb above the threshold of 35 per 100,000 people in seven days.

More drastic restrictions are imposed when the daily caseload climbs to 50 per 100,000 people.

Economic capital Frankfurt as well as western city Cologne have also put in place early closure hours for restaurants and bars.

Berlin currently has a rate of 73.9 new cases per 100,000 people.

‘Rebel who saved autumn holidays’

At Merkel’s latest talks with state premiers on Wednesday, a slew of other curbs were agreed for so-called corona hotspots, including caps on the number of people gathering indoors and a ban on late-night alcohol sales.

But Germany’s federal system means that states have the freedom to implement what they wish.

With the new round of restrictions meeting with greater resistance than in March and April when whole industries were ordered shut to fight transmission, some states where infection rates are comparatively low have simply chosen to ignore measures agreed with Merkel’s government.

Elsewhere, measures that are being imposed are being challenged in court.

A restriction that has particularly angered holidaymakers and guesthouse owners is a ban on hotel or holiday home stays on domestic travellers from zones where infection levels are high.

Up and down the country, individuals have taken legal action against the measure.

An administrative court in Baden-Wuerttemberg on Thursday overturned the ban in the state, in a case brought by a family from North Rhine-Westphalia who had made a vacation booking in the southwestern German state.

Finding that it was a violation of the freedom of movement, the court said Baden-Wuerttemberg authorities failed to provide proof that hotels were fuelling contagion.

The ruling was swiftly followed by a similar one in Lower Saxony, where guesthouse manager Jens Lutz brought a case against the ban imposed by the state.

The Bild daily labelled him the “rebel” who “saved autumn holidays”.

Several states including Bavaria and Hesse have since said they would cancel the ban.

Only the northern state of Schleswig-Holstein has so far managed to score a win in court, with the judge ruling that the ban on holiday stays by travellers from risk zones was necessary to bring contagion under control.

The tangle of rules has left Germans perplexed.

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