The Lüneburg Higher Administrative Court accuses the medical representative Frank Ulrich Montgomery of questioning the separation of powers in Germany.

Court president Thomas Smollich told the FAZ that criticism of the jurisprudence of his court was legitimate.

The Council Chairman of the World Medical Association does not comment on individual decisions, but assumes that he will be able to influence future judgments.

That contradicts the separation of powers.

“The idea of ​​Mr. Montgomery that he could change court decisions with his provocations of the little judges is nonsense.

Apparently he lacks any knowledge of judicial decision-making, ”said Smollich.

Stephan Klenner

Editor FAZ objection.

  • Follow I follow

In the FAZ, Montgomery described the separation of powers as “indispensable”, but defended himself for calling the Lüneburg judges “little judges”. He justified his "provocation" by saying that he was dissatisfied with their judgment on the 2-G regulation in retail. He has set a "pressure point to make a difference".

The Lüneburg judges had rejected the Lower Saxony regulation in December. In Schleswig-Holstein, North Rhine-Westphalia and Brandenburg, however, the higher administrative courts confirmed the 2-G obligation in retail. Montgomery accused the Lüneburg judges of "going it alone" in the FAZ interview. However, the Lower Saxony court is not entirely alone: ​​In Saarland, the Higher Administrative Court also suspended the local 2-G obligation in retail. In Bavaria, the administrative court ruled that it did not apply to clothing stores and toy stores.

The Lüneburg Higher Administrative Court has repeatedly rejected individual corona rules in Lower Saxony since the beginning of the pandemic. In October 2020, it put the ban on accommodation for travelers from Corona hotspots out of force. Courts from other federal states followed. The Lüneburg court president Smollich does not see his court as exotic in the jurisprudence. “Even if it were, Mr. Montgomery would have to accept it. It is part of the essence of federalism that decisions can be made differently in individual federal states, ”said Smollich.

The different corona jurisprudence in the federal states repeatedly causes criticism.

It is due to the fact that disease control is subject to competing legislation according to the Basic Law.

Here, the states have legislative power, unless the federal government makes any regulation.

Each country currently decides for itself on access rules to retail trade. Resolutions of the Prime Minister's Conference are not legally binding.

In the FAZ conversation, Montgomery also took a position on the distribution of competencies within the Lüneburg Higher Administrative Court.

Responsibility for this area of ​​law has been "withdrawn" from the Senate, which was previously responsible for infection protection law.

In fact, a different senate will be responsible for this in Lüneburg in the future than before.

Court President Smollich assures that there is no connection between the new distribution of tasks and the 2-G judgment. "The reallocation of responsibilities was not - as Mr Montgomery suggests - a punitive action against the Corona case law of the previously responsible Senate. That is completely remote. It had absolutely nothing to do with the content of this case law, ”said Smollich of the FAZ. The redistribution had practical reasons: the judges had different levels of work in the past year. In addition, the state parliament approved money for a new senate. As early as the summer, he had discussed with his colleagues how to divide up responsibilities more fairly.

In German courts, which judge is responsible for which area of ​​law is regulated in business distribution plans. These are not decided by the court president alone, but annually by the court presidency. At the Lüneburg Higher Administrative Court, the Presidium has seven members - in addition to the President, six other judges who are elected by their colleagues. The division of responsibilities is therefore based on a decision by a self-governing body - usually unanimously.

If you compare the business distribution plans for 2021 and 2022, you can find a reason for the new tasks of the Senates that has nothing to do with Corona: The Senate, which was previously responsible for infection protection, has so far also negotiated the law on foreigners, but only partially. The other part had to be done by another Senate. This is an unfortunate situation for higher administrative courts. It can lead to the same court deciding differently on the same legal matter. The establishment of a new senate approved by the state parliament was used by the court presidium to bundle all immigration law in the previous "Corona Senate". Its responsibility for infection protection moved to the new Senate, which is responsible for social and health law. Both areas of law have thematic overlaps.