Corona closings: 191 minutes of freedom for retailers

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The new freedom lasted a good three hours - 191 minutes to be precise.

Then there was an end to the easing of the retail trade in North Rhine-Westphalia.

After the Higher Administrative Court (OVG) Münster suspended large parts of the corona protection ordinance of the most populous federal state for trade on Monday morning after a so-called norm control procedure, the state government already reported revised regulations on Monday afternoon.

And they have it all: Because the previous obligation to meet deadlines as well as restrictions, for example with regard to the number of customers permitted, not only remain in place, they are now also being expanded to other retail formats.

"The state government consistently implements the requirements of the court," comments NRW Health Minister Karl-Josef Laumann (CDU).

The OVG had previously complained that the provisions in the regulation violate the constitutional principle of equal treatment - because the rules are not uniform for everyone.

Bookstores, stationery shops and garden centers, for example, have been able to visit supermarkets and drugstores without prior appointment and by significantly more people at the same time than other shops since they reopened on the Rhine and Ruhr on March 8th.

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Purchases in fashion stores or in branches of electrical retailers, for example, were more strictly regulated, for example with an appointment requirement and with an access limit to one person per 40 square meters of sales area.

For comparison: the other better-off retailers have ten or 20 square meters per customer.

But the court is bothered by this: The judges of the 13th Senate said there is scope for action when it comes to fighting pandemics.

"However, the legislator exceeds his leeway where there is no plausible reason for further differentiation." And because all shops are allowed to open according to the legal situation, the criterion whether a range of goods is a basic requirement can no longer justify an improvement, the court stated his decision.

Many a retailer reacted immediately on Monday morning and announced the court's decision via loudspeaker and at the same time abolished entry controls, as reported by customers at the short message service Twitter.

The joy of the legal success, in this case after a lawsuit by the electronics chain MediaMarkt, and the associated return to more normalcy was short-lived.

Industry representatives are beside themselves

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"For reasons of equality, appointment arrangements are also provided for stationery stores, bookstores and garden centers," announces the Ministry of Labor, Health and Social Affairs of the black and yellow state government in Düsseldorf.

The German Trade Association (HDE) and affected companies had previously hoped that the NRW ruling would send a signal to other federal states as well.

Especially since corresponding lawsuits are pending across the country, for example from MediaMarkt, but also from fashion chains such as Breuninger and P&C and from the DIY chain Obi.

"The decision of the OVG North Rhine-Westphalia proves that the legislature may not proceed arbitrarily when the corona restrictions for the retail trade are loosened," says a statement by the association, which has also renewed its long-standing demand, "the whole To allow non-food retailers to open their stores as before to DIY stores, garden centers and bookshops ”.

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HDE Managing Director Stefan Genth believes that things have developed surprisingly quickly in the other direction is fatal.

"The state government in North Rhine-Westphalia missed an opportunity to make fact-based politics," criticized the industry representative.

Even the Robert Koch Institute see the risk of infection when shopping as low.

"That is why it would have been good to take the court ruling as a turning point in the corona policy and to reopen the shops," says Genth.

“The measures must finally be based on the actual risk of infection and get away from the symbolic closure of the retail trade.

NRW could have set an example for the other federal states. "

It cannot be ruled out that the hitherto slight easing will be turned back in view of the course of the pandemic with the number of infections that have been rising sharply for days.

In any case, Minister Laumann refers to the recent Prime Minister's Conference and the decisions to be taken afterwards.

Politicians would have the backing of the courts.

Decision is "headless"

Because even if the OVG Münster has declared parts of the old corona protection ordinance to be ineffective due to a lack of equal treatment - the judges have confirmed the fundamental proportionality of lockdown measures at the same time.

"In particular, the restriction of the basic rights of retailers in view of the serious consequences that a renewed uncontrolled increase in new infections would have on the life and health of a large number of people is likely to be justified."

However, this should also be checked intensively in the coming years.

The current urgent proceedings will be followed later by so-called main proceedings, as an OVG spokeswoman confirmed.

And, according to lawyers, the result is not always congruent with the initial urgent decisions.

In any case, Patrick Zahn is confident.

The current ruling finally makes it clear how headless and how arbitrarily the decisions to combat corona were made, says the head of the textile discounter KiK.

Therefore, there will probably be another wave of lawsuits after the pandemic in which retailers will demand compensation for the inappropriate closings.

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