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Let’s twist again

22. September 2021
From Probandt
Reading time: ca. 3 Minuten

Component of the Corona regulations is since March 2020 in all federal states a ban on commercial dance events in closed rooms. The ban is regulated in each case in the Infection Protection Measures Ordinance of the state, in Berlin this is currently § 34 para 1 of the 3rd SARS-CoV-2 Infection Protection Measures Ordinance of 17 August 2021. This affects in particular the operators of clubs and discos massively. Legally, they are massively restricted in their freedom to exercise their profession (Art. 12 para. 1 GG) by the dance ban, the businesses were the first to be closed and are probably the last to be allowed to reopen. The loss of income as a result of the closures was and is massive. Even generous Corona aid was often unable to compensate for them. Although the establishments are now allowed to reopen, they are in fact only allowed to operate as "alternative uses," for example as a restaurant or lounge in compliance with strict hygiene regulations - and not as a dance club. The opening under the alternative operating concept could also (especially considering the operating and personnel costs then incurred) not compensate for the losses, most operators have therefore refrained from reopening.

A club from Berlin, still the leading party capital, has now successfully overturned the dance ban for the first time in interim legal protection proceedings before the VG Berlin: The VG Berlin ruled in its decision of 20.08.2021 (Az. VG 14 L 467/21, not yet final): since the risk of infection for vaccinated and recovered persons attending a dance event is to be classified as very low, the general ban on commercial dance events in closed rooms  according to § 34 Ab. 1 of the 3rd SARS-CoV-2-InfektionsschutzmaßnahmenVO as "disproportionate" and therefore incompatible with Article 12 GG. According to the VG, the "epidemic situation of national scope" required for the issuance of Corona protection measures still existed and the dance ban was also fundamentally suitable and necessary to contain the spread of the viral load. However, the low risk of infection for vaccinated and recovered persons would be out of proportion to the losses that club operators would have to accept if the ban on dance events were to continue. Nor can these income losses be absorbed or even adequately mitigated by the alternative operation of the discotheque.

The VG emphasizes i its - not yet legally binding - decision that the admission may be granted only recovered and vaccinated, also the mask obligation remains. For tested ones the granting of entrance and stay are not justifiable, since the test always represents "only a snapshot", tested ones have however no increased protection against infection and heavy courses. For them, therefore, the current risk situation persists unchanged, so that the ban on participation in indoor dance events is also still justified with respect to them.

The decision is to be welcomed. Based on the standard of Article 12 (1) of the Basic Law, it is worked out that the freedom of occupation for club operators can not be "endlessly" further restricted in time, if the actual circumstances have actually long changed since March 2020 due to vaccinations and / or overcome contagions. As a result of these actual changes, the operators' right to open their establishments for dance events now prevails again, which previously had to take a back seat in the weighing process against the background of the general risk of infection. In view of the increase in the number of vaccinations, it is now possible for operators to reopen their establishments with access for the two risk groups "vaccinated/genetically infected" and cover their costs. It should be emphasized that the decision of the Berlin Administrative Court makes a groundbreaking (and legally correct) distinction between the different risk groups: Tested persons bear a disproportionately higher risk of falling ill themselves and infecting others than vaccinated and recovered persons. Since the groups of vaccinated and recovered persons have grown significantly, it is no longer justifiable to burden all risk groups with the same strict prohibition requirements. At the same time, this points the direction in which the measures - which will probably continue to be necessary - will develop in the fall/winter of 2021/2022.

Dr. Cathrin Correll

"Germany's best lawyers 2021" - PROBANDT recommended by Handelsblatt