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A new decision must be made about store closures in Saarland

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A new decision must be made about store closures in Saarland

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The BVerwG decided in several cases: On the one hand, it concerned the closure of shops during the period February/March 2021. The Saarland regulation at the time to combat the corona pandemic generally prohibited shop openings, but also provided for exceptions, for example for grocery stores and drugstores. If the permitted range of products significantly outweighed the entire product range, these stores were also allowed to sell other ranges that they normally sold (“mixed range clause”).

An electronics store, non-food retail stores and furniture and furnishings stores saw this as unjustified unequal treatment. The Higher Administrative Court of Saarlouis also saw it this way and considered the regulations ineffective in response to their applications for regulatory review. The furniture and furnishings stores also complained about the “Click & Meet” regulation in later versions of the standard. Afterwards, non-privileged retail stores were only allowed to open on the basis of previously agreed customer appointments. The OVG also found this to be contrary to equality. It also complained about a disproportionate interference with fundamental rights.

Another procedure revolved around the Saarland 2G regulation in December 2021/January 2022. According to this, shops were only allowed to admit customers with 2G proof. Shops that cover daily needs were exempt from the access restriction. What was included was listed in a catalog, which was conclusive in the version dated December 22, 2021, but not conclusive in the versions dated December 30, 2021 and January 12, 2022. The OVG Saarlouis found the exception in the ordinance of December 22, 2021 in response to regulatory control applications from electronics stores to be contrary to equality. It considered the provisions in the following regulations to be too vague.

Factual basis too narrow

Saarland appealed against the OVG’s decisions. With regard to the shop closures, the BVerwG referred the matters back to the OVG, with regard to the 2G regulation only as far as the access restriction in the regulation of December 22nd, 2021 is concerned (BVerwG, judgments of April 19th, 2024 – 3 CN 7.22, 3 CN 8.22, 3 CN 11.22, 3 CN 12.22). In each case, there was a lack of sufficient factual basis for the assumption that the mixed product range regulations violated the principle of equality. The OVG’s findings were not sufficient to deny an objective reason for the alleged unequal treatment.

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Furthermore, the OVG did not take into account the legislator’s authority to categorize when it denied the necessity of the opening bans for furniture and furnishing stores. In addition, when examining hygiene measures as a milder means, it should also have taken into account the other furniture and furnishing stores, not just those of the plaintiffs.

As far as the 2G access restrictions in the regulations of December 30, 2021 and January 12, 2022 were concerned, the scope of application of the exception was unclear according to the OVG. According to the BVerwG, based on this binding interpretation of the state regulations, the OVG assumed that the regulation violated the clarity and specificity of the norms in Art. 20 Abs. 3 GG, not objectionable.

BVerwG, judgment of April 19, 2024 – 3 CN 7.22

Editorial team beck-aktuell, hs, April 19, 2024.

Related Links

From the beck-online database

OVG Saarlouis, Saarland legal regulation Corona, ban on opening in retail (here: electronics store), BeckRS 2022, 18512 (previous instance)

OVG Saarlouis, Saarland legal regulation Corona, 2G access restrictions in retail (here: electronics store), BeckRS 2022, 18515 (previous instance)

OVG Saarlouis, operating restrictions, Corona, retail, compensation, authorization basis, equality principle, mixed product range, furniture stores, regulatory control, proportionality, BeckRS 2022, 25643 (previous instance)

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