View source for VGH Baden-Württemberg - 1 S 1739/20

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|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=VGH Mannheim
|Court_With_Country=VGH Mannheim (Germany)

|Case_Number_Name=1 S 1739/20
|ECLI=

|Original_Source_Name_1=Landesrechtsprechung Baden-Württemberg
|Original_Source_Link_1=http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/document.py?Gericht=bw&GerichtAuswahl=Verwaltungsgerichte&Art=en&Datum=2020&nr=31735&pos=0&anz=206
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE

|Date_Decided=25.06.2020
|Date_Published=
|Year=2020

|GDPR_Article_1=Article 5 GDPR
|GDPR_Article_Link_1=Article 5 GDPR
|GDPR_Article_2=Article 6(1) GDPR
|GDPR_Article_Link_2=Article 6 GDPR#1
|GDPR_Article_3=Article 9(1) GDPR
|GDPR_Article_Link_3=Article 9 GDPR#1


|National_Law_Name_1=Article 2 (2) Grundgesetz (GG)
|National_Law_Link_1=https://www.gesetze-im-internet.de/gg/BJNR000010949.html
|National_Law_Name_2=Artikle 2 (1) i.V.m. Artikel 2 (2) Grundgesetz (GG)
|National_Law_Link_2=https://www.gesetze-im-internet.de/gg/BJNR000010949.html
|National_Law_Name_3=§ (1) Verordnung der Landesregierung über infektionsschützende Maßnahmen gegen die Ausbreitung des Virus SARS-CoV-2 (Corona-Verordnung - CoronaVO)
|National_Law_Link_3=https://www.baden-wuerttemberg.de/en/service/aktuelle-infos-zu-corona/aktuelle-corona-verordnung-des-landes-baden-wuerttemberg/
|National_Law_Name_4=§ 2 (3) Corona-Verordnung Gaststätten - CoronaVO Gaststätten
|National_Law_Link_4=https://www.baden-wuerttemberg.de/en/service/aktuelle-infos-zu-corona/verordnung-gastronomie/
|National_Law_Name_5=§ 47 (6) Verwaltungsgerichtsordnung (VwGO) - Code of Administrative Court Procedure
|National_Law_Link_5=https://www.gesetze-im-internet.de/englisch_vwgo/index.html
|National_Law_Name_6=§ 32, § 28 (1) Infektionsschutzgesetz (IfSG) - Law on the Protection of Infections
|National_Law_Link_6=https://www.gesetze-im-internet.de/ifsg/

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|Initial_Contributor=Maria Lohmann
|
}}

The court holds that the obligation to provide contact details in restaurants during the corona pandemic is legitimate in summary review.

== English Summary ==

=== Facts ===
Due to the Corona pandemic, the Land Baden-Württemberg issued a regulation with measures to contain the Corona virus as well as a special regulation for restaurants and alike.

According to these regulations, one has among others, the obligation to leave contact details when visiting a restaurant.

=== Dispute ===
A data subject complaint about the obligation of these regulations to provide contact details when visiting a restaurant, stasting that the purpose to process special categories of data according to Article 9 (1) GDPR is not proportional and necessary, as there are less restrictive measures like shorter opening hours and restrictions on how many people can be in a restaurant at the same time and the voluntarily provision of data for contract tracing.  Moreover, it has been claimed that there is not enough protection for the personal data as personnel is not trained and changes a lot. Additionally, the data retention period of four weeks is too long.

=== Holding ===
The obligation to provide contact details when visiting restaurants, as regulated in § 2 (3) CoronaVO Gaststätten, is likely to be constitutional and compatible with the provisions of the basic data protection regulation.

== Comment ==
The holding of this case is the one for the request for an interim measure according to Article 47 (6) Code of Administrative Court Procedure. It might be the case that a decision on a control request of the disputed legal basis will be taken in the main proceedings.

== Further Resources ==
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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

<pre>

VGH Baden-Württemberg Decision of 25.6.2020, 1 S 1739/20

The obligation to wear masks and to provide contact details in restaurants during the corona pandemic is clearly legitimate in summary review

Guiding Principles

The obligation to provide contact details when visiting restaurants, as regulated in § 2 (3) CoronaVO Gaststätten, is likely to be constitutional and compatible with the provisions of the basic data protection regulation.

Tenor

The motion is defeated.

The applicant is ordered to pay the costs.

The amount in dispute is fixed at EUR 10,000.

Reasons
 	
I.
1 
	
In the present proceedings, the applicant objects, pursuant to Paragraph 47(6) of the VwGO (German Rules of the Administrative Courts), - if interpreted correctly - to the third sentence of Paragraph 3(1) of the Ordinance of the Land Government on infection-protection measures against the spread of the SARS-CoV-2 virus (Corona Ordinance - CoronaVO) of 9 March 2003, which was adopted by the Commission on 9 March 2003. May 2020 (in the version valid from 15 June 2020), last amended by Article 1 of the Third Ordinance of the Federal State Government amending the Corona Ordinance of 9 June 2020, according to which persons aged six or over must be protected against the spread of the SARS-CoV-2 virus (1st pillar - Corona Ordinance - CoronaVO) from 9 May 2020 (in the version valid from 15 June 2020) in order to protect other persons against the spread of the SARS-CoV-2 virus (1st pillar - Corona Ordinance - CoronaVO). ) in public transport, on train and bus platforms, in the waiting area of passenger ship landing stages as well as in airport buildings and (2.) in the salesrooms of shops and generally in shopping centres must wear a non-medical everyday mask or a comparable mouth and nose cover, unless this is unreasonable for medical or other compelling reasons or unless there is no other at least equivalent structural protection (so-called mask obligation).
2 
	
Furthermore, the applicant contests Section 2(3) of the Ordinance of the Ministry of Social Affairs and the Ministry of Economic Affairs on the containment of transmissions of the corona virus (SARS-CoV-2) in restaurants (Corona Ordinance Restaurants - CoronaVO Restaurants) of 16 May 2020 (in the version applicable from 2 May 2020). Last amended by the Ordinance of the Ministry of Social Affairs and the Ministry of Economics amending the Corona Ordinance on Restaurants of 28 May 2020, according to which guests may only visit restaurants if they provide the operator with complete and accurate personal contact data.
3 
	
The applicant submits that the obligation to wear a mouth and nose protector infringes her right to physical integrity under Article 2.2 sentence 1 of the Basic Law; after only a short time she suffers health impairments in the form of headaches and dizziness, and is deprived of the air she needs to breathe. The obligation was unlawful, since it was not based on a suitable basis for authorisation and was otherwise disproportionate. Furthermore, for the same reasons, her fundamental right to personal freedom (Article 2.2 sentence 2 of the Basic Law) and her general right of personality (Article 2.1 of the Basic Law in conjunction with Article 1.1 of the Basic Law) were violated.
4 
	
The obligation to collect and store data when visiting restaurants or the ban on visiting restaurants if the data is not provided violates their fundamental rights to informational self-determination, to personal freedom and to freedom of occupation. § 28, Subsection 1, Sentence 1, IfSG was not a suitable basis for authorization in this regard either. Furthermore, the fundamental rights may not be restricted by a statutory instrument. There was an encroachment on the freedom of occupation, since the applicant was professionally self-employed, depended on constant contact with her business partners throughout Germany and undertook permanent business trips. Meetings often took place in restaurants.
5 
	
In addition, Paragraph 2(3) of the CoronaVO infringes the provisions of the Basic Data Protection Regulation (DSGVO). Art. 9 para. 1 DSGVO stipulates that the processing of personal data from which, inter alia, racial and ethnic origin is derived is prohibited. The surname/first name and address of persons regularly reveal such data. Furthermore, there was a violation of Article 5 of the DPA, the measure was not necessary and appropriate for the purpose. The storage period was too long and the persons concerned had no security whatsoever with regard to their personal data. Finally, the conditions for the processing of data under Article 6(1) of the DPA were not fulfilled. There was no consent of the applicant, the measure was neither necessary nor appropriate. There were milder means, e.g. notification to public authorities of visits to restaurants, voluntary submission of data, the insertion of partitions, shorter opening hours for restaurants, a minimum number of persons, the other hygiene and distance requirements under the CoronaVO. In addition, the four-week deletion period is too long. The SARS-CoV-2 virus is no more serious than the influenza virus. Moreover, collateral damage, especially in the catering and hotel industry, must be avoided by ensuring that guests do not stay away. Especially the leaving of personal data in restaurants could not only allow conclusions to be drawn about the individual person, but also about sensitive networks of people, which would increase criminal energy. Due to the high fluctuation of personnel in the catering industry, a large number of people could gain access to the data. The restaurant staff is not trained in data protection and is completely inexperienced, so that there is not sufficient protection of personal data.
6 
	
The defendant opposed the application for interim measures. Among other things, he asserts, with more detailed reasons in each case, that, contrary to the submissions made in the application, the provision of the order on the so-called duty to wear a mask does not encroach in an unconstitutional way on the fundamental rights to general freedom of action and physical integrity. In particular, there is a sufficient basis for authorisation that satisfies the parliamentary reservation. The obligation to wear a mouth-nose cover was also proportionate.
7 
	
The obligation to provide personal data when entering a restaurant under Section 2(3) of the CoronaVO Gaststätten was not objectionable. The provision was based on a sufficient basis of authorisation, was compatible with Union law from the Basic Data Protection Regulation and was constitutionally unobjectionable. In particular, the interference with the applicant's right to informational self-determination was justified, since it served to contain the corona virus and thus to protect the life and health of the population.
8 
	
Reference is made to the pleadings exchanged and the annexes for further details of the facts of the case and the dispute.
II.
9 
	
The Senate shall decide on the application for a temporary injunction pursuant to § 47.6 VwGO with three judges (§ 9.3 sentence 1 half-sentence 1 VwGO). The composition rule in § 4 AGVwGO is not applicable to decisions under § 47.6 VwGO (VGH Bad.-Württ., decision of 15 December 2008 - GRS 1/08 - ESVGH 59, 154).
10 
	
1. the application under Article 47(6) of the VwGO is admissible
11 
	
An application pursuant to Article 47 (6) VwGO is admissible if an application for review of a statute which has been or is to be filed in the main proceedings is likely to be admissible pursuant to Article 47 (1) VwGO (cf. on this requirement Ziekow, in: Sodan/Ziekow, VwGO, 5th ed., Article 47 marginal no. 387) and the separate requirements for admissibility of the application pursuant to Article 47 (6) VwGO are fulfilled.
12 
	
a) The admissibility of the application in the main proceedings follows from § 47 (1) no. 2 VwGO, § 4 AGVwGO. According to this, the Administrative Court also decides outside the scope of application of § 47.1 No. 1 VwGO on the validity of legal provisions ranking below the Land law. These include ordinances of the state government.
13 
	
b) The one-year period of § 47 Para. 2 Sentence 1 VwGO has been observed.
14 
	
(c) The applicant is entitled to file an application. Any natural or legal person who can claim that their rights have been infringed or will be infringed in the foreseeable future by the legal provision or its application has the right to file an application pursuant to § 47 (2) sentence 1 VwGO. It is sufficient if the asserted violation of rights appears possible (see Senate, Urt. v. 29.04.2014 - 1 S 1458/12 - VBlBW 2014, 462, with numerous proofs). According to this standard, the authority to file an application exists. It is possible that the applicant has violated her general right of personality and her right to informational self-determination (Article 2.1 in conjunction with Article 1.1 of the Basic Law).
15 
	
(d) there is an interest in bringing proceedings If her application is successful, the applicant could improve her legal position.
16 
	
2. however, the application under Article 47(6) of the VwGO is not justified.
17 
	
Pursuant to § 47 (6) VwGO, the Administrative Court may, upon application, issue a temporary injunction if this is urgently required to ward off serious disadvantages or for other important reasons. The standard of review in proceedings under § 47 Para. 6 VwGO is first of all the prospects of success of the application for review of the statute in the main proceedings, insofar as these can already be foreseen in proceedings for interim relief. If the application for a review of a statute is thereafter likely to be inadmissible or unfounded, the issuance of an interim injunction is not urgently required within the meaning of § 47 (6) VwGO to avert serious disadvantages or for other important reasons. If this examination shows that an application for a review of a statute is likely to be well-founded in the main proceedings, this is an essential indication that the execution of the statute or legal provision in dispute is to be suspended. In this case, a temporary injunction may be issued if the (further) execution of the legal provision prior to a decision in the main proceedings gives rise to the fear of disadvantages which, taking into account the interests of the applicant, affected third parties and/or the general public, are so important that a provisional regulation cannot be postponed with regard to the effectiveness and practicability of a decision in the main proceedings which is favourable to the applicant. If the prospects of success of the review proceedings cannot be assessed, a decision on the issue of a temporary injunction applied for must be made by way of a weighing of consequences: The consequences which would occur if a temporary injunction were not issued but the application for review of the statute would be successful must be compared with the disadvantages which would arise if the requested temporary injunction were issued but the application under § 47 (1) VwGO remained unsuccessful. The considerations in favour of issuing the temporary injunction must clearly outweigh the conflicting interests, i.e. be so serious that the issuing of the temporary injunction is urgently required - despite the open prospects of success in the main case (BVerwG, decision of 25 February 2015 - 4 BoD 5.14 -, ZfBR 2015, 381; decision of 16 September 2015 - 4 BoD 2/15 -, juris; VGH Bad. Württ., resolution of 09.08.2016 - 5 S 437/16 -, juris with further details; resolution of 13.03.2017 - 6 S 309/17 - juris). With these prerequisites, § 47.6 VwGO sets considerably stricter requirements for the suspension of the enforcement of a sub-statutory provision than § 123 VwGO otherwise sets for the issuing of a temporary injunction (BVerwG, decision of 18 May 1998 - 4 VR 2/98 - NVwZ 1998, 1065).
18 
	
Measured against these standards, the applicant's application for immediate exemption from the obligation to use a mask pursuant to Section 3(1) sentence 3 CoronaVO (see a)) and the obligation to provide personal data when visiting a restaurant pursuant to Section 2(3) CoronaVO Gaststätten (see b)) was unsuccessful.
19 
	
a) With resolutions of 13 May 2020 - 1 S 1314/20 - and of 18 May 2020 - 1 S 1417/20 - the Senate rejected applications under § 47.6 VwGO, which were also directed against § 3.1 sentence 3 CoronaVO, and explained the reasons for its rejection:
20 
	
"(a) The application for review of a statute directed against Section 3 (1) sentence 3 CoronaVO is unlikely to succeed (aa). The issue of a temporary injunction is also not required in the above sense (bb).
21 
	
aa) The application for a review of the law directed against Section 3 (1) sentence 3 CoronaVO will in all probability remain unsuccessful. The provision is likely to be consistent with higher-ranking law.
22 
	
§ Article 3 paragraph. 1 sentence 3 CoronaVO stipulates that persons from the age of six years or older must wear a non-medical everyday mask or a comparable mouth-nose cover to protect other persons against the spread of the SARS-CoV-2 virus (firstly) in public transport, on railway and bus platforms and in airport buildings and (secondly) in the salesrooms of shops and generally in shopping centres, unless this is unreasonable for medical or other compelling reasons or unless there is no other at least equivalent structural protection. The applicant has not raised any serious objections to the legality of this provision and no such objections are apparent.
23 
	
(1) For the regulation in Section 3 (1) sentence 3 CoronaVO there is probably a sufficient legal basis in Section 32 sentence 1 in conjunction with § Section 28(1) IfSG. If - as is indisputably the case with the coronavirus - a transmissible disease has been identified, then according to § 32 sentence 1 in conjunction with § 28 para. 1 IfSG. § 28 para. 1 IfSG, the necessary protective measures to prevent the spread of the disease can be taken by a decree of the state government. There are no serious objections to the definiteness of this standard.
24 
	
(2) The basis of authorization in § 32 sentence 1 in conjunction with § Section 28(1) IfSG should also satisfy the reservation of the Act in its manifestation as a parliamentary reservation for the fundamental requirement of wearing mouth and nose covers in certain public areas regulated in Section 3(1) sentence 3 CoronaVO (for the requirements, cf. BVerfG, Order of 14 March 1989 - 1 BvR 1033/82 and others - BVerfGE 80, 1, 20; Order of 21 April 2015 - 2 BvR 1322/12 and others - BVerfGE 139, 19; also drawn up by the Senate, Order of 9 April 2020 - 1 S 925/20 - with further references). For the legislature itself has expressly provided in § 28.1 sentence 1 half of the second half of the IfSG that the competent authority, under the preconditions of half-sentence 1, may in particular oblige persons to enter places or public places designated by it only under certain conditions (see on a prohibition under ordinance of gatherings and all gatherings of persons that favour the spread of pathogens, cf. Senate, decision of 09.04.2020, loc. cit.)
25 
	
(3) Probably without success, the applicant submits that the Infection Protection Act contains only general clauses which do not cover measures against - as in her case - (presumably) healthy persons.
26 
	
As the Senate has already decided (resolution of 23.04.2020 - 1 S 1046/20 - und ausf. Beschl. v. 09.04.2020, loc.cit.), § 28 para. 1 IfSG authorises, according to its wording, its meaning and purpose and the will of the legislator, to take measures also against non-disturbing persons. This is also assumed by the highest court rulings (see BVerwG, judgment of 22 March 2012 - 3 C 16/11 - BVerwGE 142, 205, 213). It is beyond question that there are people suffering from the coronavirus at all and that the requirements of § 28.1 IfSG are met in this respect. Moreover, it should be noted that a large number of transmissions of the SARS-CoV-2 virus can already take place in the pre-symptomatic phase or even by completely symptom-free carriers. Therefore, the question arises whether a differentiation between interfering and noninterfering agents in the case of SARS-CoV-2 is at all appropriate (see Senate, decision of 23.04.2020, ibid., etc., at https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Steckbrief.html#doc13776792bodyText20 [No. 20]). Nor does Section 28 para. 1 IfSG contain a limitation to short-term measures only. An interpretation to this effect would be incompatible with the wording of the provision and with the purpose of combating - often not short-term - infections.
27 
	
Nor can the applicant successfully argue that the Infektionsschutzgesetz does not in any event provide a legal basis for imposing a so-called mask obligation on all citizens, because under Paragraph 20(6), first sentence, IfSG 'even' compulsory vaccination cannot be ordered for the entire population, but only for 'threatened parts' of it. The first-right conclusion drawn by the applicant does not bear. It overlooks the fact that compulsory vaccination is associated with a serious encroachment on the fundamental right to physical integrity (Article 2.2 sentence 1 of the Basic Law) of the persons affected (see accordingly § 20.14 IfSG). The encroachments on the fundamental rights of the norm addressees associated with § 3.1 sentence 3 CoronaVO, namely on their general right of personality and general freedom of action (see below (4)), do not weigh more heavily in comparison, as the applicant suggests ("even"), but less lightly. Irrespective of this, the applicant's assumption that § 28.1 IfSG does not permit orders under infection protection law - in this case for the wearing of a mouth-nose cover - to be issued to all members of the population, even if the factual requirements in the first half of the first sentence are fulfilled, is fundamentally incompatible with the wording of the provision and its meaning and purpose, if this measure proves to be proportionate.
28 
	
(4) The fundamental requirement to wear mouth and nose covers in certain public areas, as regulated in § 3 para. 1 sentence 3 CoronaVO, is presumably also in accordance with constitutional law and, in particular, currently satisfies the principle of proportionality.
29 
	
(a) There is in all probability no unconstitutional encroachment on the applicant's general right of personality protected by fundamental rights (Article 2.1 in conjunction with Article 1.1 of the Basic Law).
30 
	
The general right of personality protects in particular the individual's right of self-determination with regard to the presentation of his or her personal image of life and character (BVerfG, decision of 14 January 2020 - 2 BvR 1333/17 - NJW 2020, 1049). The individual should be allowed to decide for himself or herself how he or she wishes to present himself or herself to third parties or the public and what should constitute his or her claim to social validity (BVerfG, resolution of 14 January 2020, loc. cit., and of 3 November 1999 - 2 BvR 2039/99 - NJW 2000, 1399). The defendant encroaches on this scope of protection by means of § 3.1 sentence 3 CoronaVO. This is because the applicant is thereby required to partially conceal her face behind a mask in certain public areas. This affects her decision, which is to be respected as an expression of her personal identity, not to cover her face in public either wholly or in part (see BVerfG, Order of 14 January 2020, loc. cit.
31 
	
However, this encroachment on the applicant's general right of personality is in all likelihood justified, in particular proportionate.
32 
	
(aa) Section 3(1) sentence 3 CoronaVO serves a legitimate purpose. The legislature thus pursues the objective of protecting the life and physical integrity of a potentially very large number of people and thus fulfilling the state's duty of protection under Article 2.2 sentence 1 of the Basic Law by preventing new infections with the corona virus as far as possible and at least slowing down the spread of the virus (see Senate, decision of 23 April 2020, loc. cit.)
33 
	
(bb) In order to achieve this objective, the means chosen by the legislature to require the wearing of a mouth-nose cover in the public areas mentioned in Section 3(1) sentence 3 CoronaVO, namely in public transport and in salesrooms, is likely to be suitable.
34 
	
A law is suitable if it can be used to promote the desired success, whereby the legislature has a margin of discretion in assessing suitability (see BVerfG, Order of 20 June 1984 - 1 BvR 1494/78 - BVerfGE 67, 157, 173 et seq.; Order of 9 March 1994 - 2 BvL 43/92 and others - BVerfGE 90, 145, 172 et seq.)
35 
	
This requirement is likely to be met by the so-called mask requirement in Section 3(1) sentence 3 CoronaVO. The spread of the novel corona virus has been classified as a pandemic by the WHO. Experience in other countries shows that the exponential spread of the virus, which is particularly easy to transmit from person to person, especially by droplet infection, can only be contained by strictly minimising personal contact between people. As has been shown, the imperative in § 3 (1) sentence 3 CoronaVO aims to slow down the spread of the corona virus by preventing new infections. The obligation to wear a mouth-and-nose covering in the public areas mentioned can probably contribute to achieving this goal.
36 
	
Without success, the applicant submits that at present it has not been 'proven' that - and is doubted by well-known representatives of the medical profession whether - the wearing of simple mouth and nose covers (MNB, also known as everyday masks) is at all suitable for reducing new infections. The legislature probably did not leave the scope for assessment to which it was entitled when creating § 3.1 sentence 3 CoronaVO if it assumed that the requirement laid down in it contributed to preventing new infections. The Robert Koch Institute, which is appointed pursuant to § 4 IfSG for the early detection and prevention of the further spread of infections and the corresponding analyses and research, has reached the following summarising assessment in knowledge of the differences between MNBs on the one hand and medical oral hygiene products (MNS) on the other hand, also taking into account the fact that the effectiveness of the masks is currently assessed in detail in the professional world, in part differently, against the background of the still limited empirical findings, and after an assessment of the studies currently available:
37 
	
As observations from outbreak investigations and modelling studies show, the rapid spread of SARS-CoV-2 is due to a high proportion of diseases that initially start with only mild symptoms without restricting the patients in their daily activities. Already 1 - 3 days before the onset of symptoms, high virus quantities can be excreted. A partial reduction of this unnoticed transmission of infectious droplets by carrying MNB could contribute to a further slowing down of the spread at population level. This applies to transmission in public places where several people meet and stay for a longer period of time (e.g. workplace) or where the physical distance of at least 1.5 m cannot always be maintained (e.g. shopping situation, public transport). Activities involving many or closer contacts are of particular importance here. Since the source of infection is unknown in many cases, unnoticed excretion of the virus in these cases can be detected neither by a change in behaviour (such as self quarantine) nor by early testing, since the beginning of infectivity is unknown. For this reason, the wearing of MNBs in public places can be effective in reducing transmissions, especially if as many people as possible participate. It must be taken into account that there are people who cannot tolerate the higher breathing resistance when wearing masks due to previous illnesses.
38 
	
In order to achieve a sustainable reduction in the rate of spread of COVID-19 in the population and a decrease in the number of new cases as quickly as possible, it is necessary to use several components that complement each other (see 2nd Strategy Update). The effectiveness of the measures taken and their undesirable effects must always be carefully weighed against each other. In the system of different measures, a situation-dependent general carrying of MNBs (or of MNS if production capacity allows) in the population is another component to reduce transmissions'. (RKI, Epidemiologisches Bulletin 19/2020 of 14.04.2020, p. 4 f.; in the same vein, "Does it make sense to wear a mouth-nose cover in the public to protect against SARS-CoV-2?", FAQ at https://www.rki.de, last accessed on 13.05.2020).
39 
	
Against the background of this assessment, which takes into account the current state of knowledge and research and is justified in a comprehensible manner, the legislator can currently, without legal error, regard the order of a so-called mask obligation for public passenger transport and sales outlets as a suitable means of preventing chains of infection (as a result, BayVGH, Beschl. of 07.05.2020 - 20 NE 20.926 - [PM]; HessVGH, decision of 06.05.2020 - 8 B 1153/2020.N - [PM]; VG Saarland, decision of 30.04. 2020 - 6 L 452/20 - juris; VG Mainz, decision of 28.04.2020 - 1 L 276/20.MZ - juris; left open by NdsOVG, decision of 05.05.2020 - 13 MN 119/20 - juris).
40 
	
Nor is the applicant able to call into question the suitability of Paragraph 3(1), third sentence, of the Corona Ordinance to achieve the abovementioned objective by its objections that wearing the mask does not prevent the spread of the corona virus but, on the contrary, on the contrary, promotes it, inter alia, by creating a deceptive feeling of safety and the risk of the virus collecting on the mask and spreading further if used improperly. These concerns can be countered by providing information on the proper use of mouth and nose covers (see BayVGH, decision of 07.05.2020, loc. cit.; VG Saarland, decision of 30.04.2020, loc. cit.) A similar information campaign is (also) already being carried out by state agencies (cf. only - with numerous further references - RKI "Does it make sense to wear a mouth and nose cover in public to protect against SARS-CoV-2?) It is possible and reasonable for the norm addressees to obtain information on the correct handling of the norm from generally accessible sources (see VG Mainz, decision of 28 April 2020, loc. cit.)
41 
	
Also unsuccessful in this connection, in all likelihood, are the applicant's objections that the imposition of the so-called mask requirement in Paragraph 3(1)(3) of the Corona Ordinance would lead to considerable negative effects in other areas, such as a higher climate impact if people switched to their cars or regress in video surveillance of public places. In this line of argument, the applicant loses sight of the legitimate objective pursued by the legislature. As has been shown, this consists in protecting the life and physical integrity of a potentially very large number of people and thus fulfilling the state's duty of protection under Article 2.2 sentence 1 of the Basic Law by preventing new infections with the coronavirus as far as possible. The suitability of the so-called mask obligation to achieve this objective is not called into question by the fact that the measure may entail disadvantages in other areas of life.
42 
	
The applicant's supplementary objection, which is probably also raised against the suitability of the measure, that there would be dangers in road traffic if people there wore a mask, is also unsuccessful. This argument already misses the provision challenged by the applicant. For Paragraph 3(1), third sentence, of the CoronaVO does not contain a requirement to wear a mouth-nose cover when driving a motor vehicle.
43 
	
(cc) In order to achieve the above-mentioned objective, the means chosen by the legislator of a general requirement to wear mouth and nose covers in the public areas mentioned is likely to be necessary.
44 
	
A statute is required if the legislature could not have chosen another equally effective means that would not have restricted the fundamental right or would have restricted it to a lesser extent, whereby the legislature also has a margin of discretion in this respect (see BVerfG, decision of 20 June 1984, loc. cit. and of 9 March 1994, loc. cit.) The applicant has not shown such equally effective but less restrictive means, and it is unlikely that such means are recognisable in any other way.
45 
	
Without success, the applicant submits in particular that the health care system in Germany is no longer in any concrete danger of being overburdened by a large number of people who fall ill at the same time. In making this objection, it overlooks, first, the fact that the legitimate aim of the legislature is not only to avoid overburdening the health system, but also to reduce the number of new infections, irrespective of that, because of the potentially fatal course of the disease and the current lack of medicinal treatment options. Irrespective of this, the Senate does not currently share the applicants' assessment of the risks to the health care system. In its most recent risk assessment (management report of 12.05.2020, last accessed on 13.05.2020, emphasis in original), the RKI arrives at the following - comprehensibly justified - opinion:
46 
	
This is a very dynamic and serious situation worldwide and in Germany. In some cases the course of the disease is severe, even fatal. The number of newly transmitted cases in Germany is declining. The risk to the health of the population in Germany is currently estimated to be high overall and very high for risk groups. The probability of severe disease progression increases with increasing age and existing pre-existing conditions. This risk varies from region to region. The burden on the health care system depends largely on the regional spread of the infection, the available capacities and the countermeasures taken (isolation, quarantine, physical distance) and can be very high locally. This assessment may change in the short term due to new findings'.
47 
	
Also unsuccessful is the applicant's objection that there are milder means in comparison to the so-called mask obligation regulated in Section 3 (1) sentence 3 CoronaVO, such as a ban on mass events, compliance with the rules on distance and hygiene, as well as targeted measures to protect the risk groups and self-protection of the latter. These measures may also be suitable to contribute to the achievement of the objective pursued by the legislator. However, the legislature does not exceed its scope of assessment if it assumes that such measures - and the other measures currently ordered in the Corona Ordinance - are not as effective on their own as the additional order of an obligation to wear mouth and nose covers in public areas where people typically gather in large numbers and in close proximity to each other and in which they therefore give rise to particular risks of infection and may be exposed to such risks.
48 
	
(dd) At the time of the present Senate decision, the means chosen by the legislature to achieve the aforementioned objective, a so-called mask obligation, is also still deemed to be proportionate in the narrower sense (appropriate).
49 
	
The encroachment on the applicant's general right of personality under Article 2 para. 1 in conjunction with Article 1.1(1) of the Basic Law is of certain weight. Because of the challenged provision of the ordinance, she cannot enter some important public areas without first putting on a mouth-and-nose cover and thus covering her face. She has credibly and comprehensibly demonstrated that she thereby sees her personal identity - which is to be respected in the court proceedings - subjectively considerably impaired.
50 
	
However, this is in contrast to the equally serious consequences for life and limb of a large number of people affected by the coronavirus and the associated maintenance of the efficiency of the German health care system. Even after the restriction measures that have been in place since mid-March and a noticeable decrease in the rate of infection, there is still the danger that without contact restrictions the rate of infection will increase again very quickly and that the health care system will be overloaded (see above (bb) and in addition Senate, decision of 09.04.2020 - 1 S 925/20 -, of 28.04.2020 - 1 S 1068/20 -, and of 30.04.2020 - 1 S 1101/20 -, each m.w.N.). In view of this, the provision in Section 3 (1) sentence 3 CoronaVO on the so-called mask obligation is likely to be proportionate in the narrower sense. This applies all the more so as the adverse consequences for the persons affected are somewhat mitigated by the fact that the provision contains a reservation of reasonableness and exceptional provisions ("if this is not unreasonable for medical reasons or other compelling reasons or if there is no other at least equivalent structural protection"). In addition, the measure only affects a spatially and temporally limited part of public life and the persons affected can to a certain extent avoid the interventions in a reasonable manner, for example by temporarily refraining from using public transport in favour of other means of transport, as the applicant also considered, and by reducing personal purchases by reducing the frequency and using long-distance trade offers (similar to the decision of the Mainz Administrative Court of 28 April 2020, loc. cit.) The order of the so-called mask obligation is also subject, as a permanent intervention measure, to the obligation of the federal state government to continuously review, in particular, how effective the measure is with regard to slowing down the spread of the coronavirus and what effect it has on those affected. It is in no way apparent that the state government has not yet complied with this obligation (similar to other company closure orders OVG Bln.-Bdbg., resolution of 23.03.2020 - 11 S 12/20 - juris; BayVGH, resolution of 30.03.2020 - 20 CS 20.611 - juris). With the entry into force of the Fifth, Sixth and Seventh Corona Ordinance and the new ordinance adopted on 9 May 2020 by way of a de facto eighth amendment, the state government, in response to the lower numbers of new infections, has made possible initial relaxation of the overall package of measures initially taken from March 2020 (see already Senate, decision of 28 April 2020 - 1 S 1068/20 -).
51 
	
(b) The applicant's human dignity, which is inviolable under Article 1 (1) of the Basic Law, is also not violated by Section 3 (1) sentence 3 of the Corona Regulation.
52 
	
Starting from the idea that man determines and develops himself in freedom (see BVerfG, Urt. v. 30 June 1999 - 2 BvE 2/08 et al. - BVerfGE 123, 267 <413> with further references), the guarantee of human dignity includes in particular the preservation of personal individuality, identity and integrity (cf. BVerfG, judgment of 17 January 2017 - 2 BvB 1/13 - BVerfGE 144, 20 <207>). This is associated with a social claim to value and respect, which prohibits making the person a "mere object" of state action or exposing him or her to treatment that fundamentally calls into question his or her subject quality (see BVerfG, Urt. v. 17.01.2017, loc. cit.) The applicant is not exposed to such treatment, which degrades her to an object, by the requirement to put on a mouth-nose cover in certain public areas to protect others from a potentially fatal disease.
53 
	
(c) An unconstitutional encroachment on the applicant's fundamental right to life and physical integrity (Article 2.2 sentence 1 of the Basic Law) is in all probability also not present.
54 
	
Without success, she claims that the use of mouth-nose covers poses health risks because viruses and other pathogens can collect on them. It is neither stated in her unfounded submission in this regard nor is it otherwise apparent that the use of the above-mentioned covering, which as a rule will be for short periods of time in each case, could, if used properly, give rise to serious health risks for healthy norm addressees. Each wearer should be able to sufficiently influence the hygiene concerns that may arise from the use of his or her own mouth and nose cover (cf. in this respect NdsOVG, decision of 5 May 2020, loc. cit.) Insofar as it is unreasonable for norm addressees to wear a mouth and nose cover in individual cases, for example due to previous illness-related strain on the airways, they are already excluded from the scope of application of § 3.1 sentence 3 CoronaVO (see again the last half sentence: "if this is not unreasonable for medical reasons or other compelling reasons").
55 
	
(d) An unconstitutional encroachment on the applicant's general freedom of action (Article 2.1.1 of the Basic Law) is also unlikely to exist.
56 
	
The scope of protection of this fundamental right includes the right to determine one's own external appearance at one's own discretion (see BVerfG, decision of 10 January 1991 - 2 BvR 550/90 - NJW 1991, 1477; BVerwG, judgment of 2 March 2006 - 2 C 3.05 - BVerwGE 125, 85 with further references). This scope of protection is encroached upon by the fundamental requirement to wear a mouth-and-nose covering in certain public areas, which is regulated in § 3.1 sentence 3 CoronaVO. This encroachment is, however, in all probability constitutionally justified, in particular for the reasons stated above (see (a)), proportionate.
57 
	
bb) The issue of a temporary injunction is also not required under Section 3(1) sentence 3 CoronaVO within the meaning of Section 47(6) VwGO.
58 
	
This already follows from the fact that, as has been shown, an application for review of a standard is probably unfounded. In such a case - as explained above - the issuance of a temporary injunction is not urgently required within the meaning of § 47 (6) VwGO to ward off serious disadvantages or for other important reasons. Irrespective of this, a considerable impairment of the applicant's interests, which outweighs the interests of the protection of life and limb put forward by the defendant, is not apparent. This is all the more true since, as shown, she can evade the interventions to a certain extent and thus limit the wearing of the mask to a few and manageable areas. The remaining restrictions are reasonable for her within the framework of the necessary consideration.
59 
	
After review, the Senate adheres to this, also in view of the objections of the applicant.
60 
	
aa) A violation of the reservation of the law in its manifestation as a parliamentary reservation and of Article 80.1 sentence 2 of the Basic Law is not likely to exist. The principle of the rule of law and the requirement of democracy oblige the legislature to make the regulations that are decisive for the realisation of fundamental rights essentially itself and not to leave them to the action and decision-making power of the executive. In the area relevant to fundamental rights, "essential" generally means "essential for the realisation of fundamental rights". An obligation for the legislature to take action exists in particular in multidimensional, complex fundamental rights constellations. In principle, laws that empower the legislature to issue ordinances pursuant to Article 80.1 of the Basic Law can also satisfy the requirements of the reservation of the right to legislate, but the essential decisions must be made by the parliamentary legislature itself. (see BVerfG, Order of 14 March 1989 - 1 BvR 1033/82 and others - BVerfGE 80, 1, 20; Order of 21 April 2015 - 2 BvR 1322/12 and others - BVerfGE 139, 19, with further references).
61 
	
According to this standard, there should be no objection to the fact that the obligation to wear masks has been regulated by the legislator. It is not a matter of a multi-dimensional complex constellation of fundamental rights, nor does the applicant claim this. The encroachment on fundamental rights by the obligation to wear a mask is - as explained - of a certain weight, but does not have a particularly pronounced depth of encroachment. In § 28.1 sentence 1 IfSG, the legislature of the parliament has already given the competent authorities the power to take the necessary protective measures, and in doing so has deliberately - as is evident from the history of legislation - included a general authorisation in the Act in order to be prepared for all eventualities (see already Senate, resolution of 09.04.2020 - 1 S 925/20 - juris).
62 
	
bb) In all probability, the obligation to wear a mouth-nose cover pursuant to § 3.1 sentence 3 CoronaVO also does not constitute an unjustified encroachment on the applicant's general right of personality (from Article 2.1 in conjunction with Article 1.1 of the Basic Law), the right to life and physical health (Article 2.2 sentence 1 of the Basic Law) and the fundamental right to personal freedom from Article 2.2 sentence 2 of the Basic Law.
63 
	
An encroachment on the applicant's general right of personality (Article 2.1 in conjunction with Article 1.1 of the Basic Law) is likely to exist, but according to the above (II. 2. a) "a) aa) (4) (a)') is likely to be justified and in particular proportionate.
64 
	
However, there is presumably no interference with the applicant's fundamental right to life and physical integrity (Article 2.2 sentence 1 of the Basic Law). With regard to the hygienic concerns that the applicant has with regard to the improper use of the masks, it is likely to be up to the wearer of the mask to decide whether the mask may pose a health hazard, e.g. due to contamination. Although the applicant has stated that she suffers health impairments, she is, however, free to claim the exemption under Section 3 (1) sentence 3 CoronaVO.
65 
	
It can remain open here whether the regulation on the obligation to wear a mask objected to by the applicant violates her fundamental right to personal freedom under Article 2.2 sentence 2 of the Basic Law. This fundamental right protects physical freedom of movement. In the present summary proceedings, no decision is required on the questions that are disputed in detail - because of the background of the provision in habeas corpus law and the connection of the provision with Article 104.2 of the Basic Law - whether this covers the freedom to move to any place without further preconditions (see on the state of opinion, Murswiek/Rixen, in: Sachs, GG, Eighth ed, Art. 2 marginal no. 228 et seq.; Lang, in: Epping/Hillgruber, BeckOK Grundgesetz, 42nd ed., Art. 2 marginal no. 84; in each case with further references), and under what conditions impairments of freedom of movement are to be regarded as encroachments (see Lang, loc. cit., Art. 2 marginal no. 86 et seq.) Even if the obligation to wear a mask in certain public places ordered by § 3.1 sentence 3 CoronaVO were to be classified as an encroachment on the applicant's fundamental right under Article 2.2 sentence 2 of the Basic Law, this encroachment would in all probability be justified, in particular on the basis of the above-mentioned (II. 2. a) "a) aa) (4)(a)'), and again on the basis of the reasons given, prove to be proportionate.
66 
	
cc) The issue of a temporary injunction is not required within the meaning of § 47 (6) VwGO. The provision of § 3.1 sentence 3 CoronaVO is in all probability already lawful. In addition, due to the low degree of intervention of the obligation to wear a mask, it is reasonable to expect the applicant to wear a mask in the areas laid down, after weighing the interests of the defendant in ensuring the protection of life and limb.
67 
	
b) The application for review of the standard against Section 2 (3) sentence 2 CoronaVO Gaststätten is also unlikely to be successful (aa)). The issue of a temporary injunction is also not required in this respect (bb)).
68 
	
aa) Section 2(3) of the CoronaVO Gaststätten is in all likelihood consistent with higher-ranking law.
69 
	
§ Section 3 (3) sentence 1 CoronaVO Gaststätten stipulates that the operator of the restaurant must collect and store the following information exclusively for the purpose of providing information to the public health department or the local police authority in accordance with Sections 16, 25 IfSG: surname and first name of the guest, date and beginning and end of the visit and the guest's telephone number or address. Under Section 2 (3) sentence 2 CoronaVO, guests may only visit restaurants if they provide the operator with complete and accurate data in accordance with Section 3 (3) sentence 1 CoronaVO Restaurants. The data must be deleted by the operator four weeks after being collected (§ 2 Para. 3 Sentence 3 CoronaVO Gaststätten), whereby the general provisions on the processing of personal data remain unaffected (§ 2 Para. 3 Sentence 4 CoronaVO Gaststätten). The applicant has not presented any fundamental legal objections to this provision and no such objections are apparent in any other way.
70 
	
For the regulation in § 2 (3) CoronaVO Gaststätten, there is probably a sufficient legal basis in § 32 sentence 1 in conjunction with § Section 28(1) IfSG and Section 4(5) CoronaVO (see (1)). It is also likely to be constitutional and, in particular, proportionate (see (2)) and consistent with the Basic Data Protection Regulation (DSGVO) under Union law (see (3)).
71 
	
(1) If - as is indisputably the case with the coronavirus - a transmissible disease has been identified, the following may be declared in accordance with § 32 sentence 1 in conjunction with § Section 28 para. 1 IfSG, the necessary protective measures to prevent the spread of the disease may be taken by a decree of the State Government. The state government has issued such a regulation in the CoronaVO of 9 May 2020 in the version applicable from 15 June 2020. This regulation provides - which § 32 sentence 2 IfSG permits - in § 4 para. 5 that the Ministry of Social Affairs and the Ministry of Economics are authorised to lay down hygiene requirements for [...] the catering industry which go beyond or deviate from § 4 para. 3 by means of a joint ordinance.
72 
	
The authorization basis in § 32 sentence 1 in conjunction with § Section 28(1) IfSG and Section 4(5) CoronaVO should satisfy the requirement set out in Section 2(3) CoronaVO Gaststätten for the complete and accurate provision of data within the meaning of Section 2(3) sentence 1 CoronaVO Gaststätten when visiting a restaurant with the reservation of the Act in its form as a parliamentary reservation (see Senate, decision of 09.04.2020 - 1 S 925/20 - with further details). For the legislature itself has expressly provided in § 28.1 sentence 1 half of the second half of the IfSG that the competent authority may in particular oblige persons under the conditions of half-sentence 1 to enter places or public places designated by it only under certain conditions (see on a prohibition under ordinance of gatherings and all gatherings of persons that favour the spread of pathogens, cf. Senate, decision of 09.04.2020, loc. cit.)
73 
	
(2) The obligation to provide certain personal data before entering restaurants, as regulated in Section 2(3) of the CoronaVO Gaststätten, is likely to be constitutional and in particular proportionate.
74 
	
(a) The encroachment on the applicant's fundamental right to informational self-determination under Article 2(1) in conjunction with Article 1.1 of the Basic Law is likely to be constitutionally justified and in particular proportionate.
75 
	
The obligation under Section 2(3) CoronaVO Gaststätten to provide personal data constitutes an infringement of the applicant's fundamental right to informational self-determination. As a manifestation of the general right of personality, the fundamental right to informational self-determination includes the right of the individual to decide on the disclosure and use of his or her personal data (cf. fundamentally BVerfG Urt. v. 15 December 1983 - 1 BvR 209/83 and others BVerfGE 65, 1 (43); BVerfG, Order of 6 November 2019 - 1 BvR 16/13 - juris marg. no. 83 et seq.) The possibility to invoke the right to informational self-determination does not depend on the possible sensitivity of the data concerned (see BeckOK GG/Lang, 43 Ed. 15.5.2020, GG Art. 2 marginal no. 45a), it generally protects against the state collecting and processing of personal data (BVerfG, Order of 9 March 1988 - 1 BvL 49/86 - juris marginal no. 29).
76 
	
Restrictions require a legal basis from which the conditions and the scope of the restrictions are clear. § Section 2(3) of the CoronaVO Restaurants, as a sub-statutory legal provision, constitutes a suitable basis for intervention in this respect (see II. 2. b) aa) above). (1 )), the intervention is likely to comply with the principle of proportionality.
77 
	
§ Paragraph 2(3) of the CoronaVO serves a legitimate purpose, namely to facilitate the tracing of contacts in the event of an occurrence of infection in the restaurant and thereby at least to slow down the spread of the corona virus, which is particularly easy to transmit by droplet infection and via aerosols. The Robert Koch Institute (RKI, cf. Senate, decision of 13 May 2020 - 1 S 1314/20 - juris), which was appointed in accordance with § 4 IfSG, among other things for the early detection and prevention of the further spread of infections and the corresponding analyses and research, continues to estimate the risk to the health of the population in Germany as high overall and as very high for risk groups (RKI, management report of 24 June 2020; https://www. rki.ene/EN/Content/InfAZ/N/New_Coronavirus/Situation Reports/2020-06-24-en.pdf? __blob=publicationFile) and continuously recommends to detect and isolate infected persons as early as possible and to trace contact persons (RKI, "COVID-19: Acting now, planning ahead - strategy supplement to recommended infection prevention measures and targets (2nd update)", Epidemiological Bulletin 12/2020 of 19.03.2020, p. 4).
78 
	
In order to achieve this objective, the means chosen by the legislator to oblige all guests to leave complete and accurate contact details in accordance with § 2(3) CoronaVO restaurants is likely to be suitable.
79 
	
A law is suitable if it can be used to promote the desired success, whereby the legislature has a margin of discretion in assessing suitability (see BVerfG, Order of 20 June 1984 - 1 BvR 1494/78 - BVerfGE 67, 157, 173 et seq.; Order of 9 March 1994 - 2 BvL 43/92 and others - BVerfGE 90, 145, 172 et seq.)
80 
	
The obligation to provide contact details when visiting a restaurant means that, in the event of an infection occurring in the guest rooms, it is always possible to trace who was there at the same time. In this way, potential risks of infection can be made transparent and even contact persons unknown to each other can be tracked and thus sensitised to possible infection. The commandment in § 2 para. 3 CoronaVO restaurants can therefore help to slow down the spread of the corona virus.
81 
	
In order to achieve the above-mentioned objective, the means chosen by the legislator, namely the mandatory provision of contact details during a visit to a restaurant, is likely to be necessary as well, since an equally suitable but milder means is not apparent. In this respect, the legislature has a margin of discretion (cf. BVerfG, decision of 09.03.1994, loc. cit.) Such an equally effective but less drastic means cannot be seen in the applicant's proposal to report visits to public places, to make the submission of data voluntary, to insert partitions, to shorten the opening hours of public places or to set a minimum number of persons. These may in turn help to slow down the spread of the coronavirus, but in any case, if the provision of data is voluntary, it must be assumed that not all restaurant visitors will provide their contact details. In the event of an infection, contact tracing would then only be incomplete and comparatively less effective. In its proposals regarding the shortening of opening hours, the setting of minimum numbers of persons and the erection of partition walls, the applicant fails to recognise that these pursue a different objective, namely to prevent infection. However, in the event that there is already an infected person in the guest rooms, they are not a suitable means of tracing contacts (people who do not know each other). The proposal to report visits to restaurants to public authorities appears to be much more complex in organisational terms, but would nevertheless require the provision of personal data.
82 
	
At the time of the Senate's decision, the ordered provision of personal data is still deemed to be proportionate in the narrower sense (appropriate) for achieving the stated objective.
83 
	
The encroachment on the applicant's right to informational self-determination is of some weight. She may only enter a restaurant if she provides her contact details correctly and completely in accordance with the challenged regulation. On the other hand, however, this is in contrast to the equally serious consequences for life and limb of a large number of people affected by the coronavirus and the associated maintenance of the efficiency of the German health care system. Even after the restrictive measures that have been in place since mid-March and a noticeable decrease in the rate of infection, there is still a risk that the incidence of infection will increase again very quickly due to individual undetected outbreaks - as is currently the case with outbreaks in the vicinity of meat processing companies - and that the health care system will be overloaded (cf. Senate, decision of 09.04.2020 - 1 S 925/20 -, of 28.04.2020 - 1 S 1068/20 -, and of 30.04.2020 - 1 S 1101/20 -, each with w.m.m.). In view of this, the provision in Section 2 (3) CoronaVO Gaststätten is probably proportionate in the narrower sense. The storage of data is limited in time, the purpose of data collection is clearly limited to providing information in accordance with Sections 16, 25 IfSG, and the operators of the restaurants and the health authorities and local police authorities are obliged to comply with data protection regulations via Section 2 (3) sentence 3 CoronaVO. The applicant can avoid the collection of the data at any time by avoiding restaurant visits, which are voluntary and dispensable in principle.
84 
	
(b) The provision in Section 2(3) of the Corona Ordinance objected to by the applicant does not in all probability also violate her fundamental right to personal freedom under Article 2(2) sentence 2 of the Basic Law.
85 
	
This fundamental right protects physical freedom of movement. Even if the commandments (or prohibitions of admission) standardised by § 2.3 CoronaVO Gaststätten were to be classified as an encroachment on the applicant's fundamental right under Article 2.2 sentence 2 of the Basic Law, such encroachments would in all probability prove to be justified, in particular on the grounds mentioned above (II. 2.b)aa) (a)), which also apply accordingly here.
86 
	
(c) An encroachment on the freedom to choose an occupation under Article 12 of the Basic Law is unlikely to exist. The applicant has not explained why she should be affected in her freedom to exercise an occupation by the requirement to provide her contact details. It is not apparent to the Senate that and whether she would be dependent on meetings in restaurants alone to initiate business. If it were nevertheless to be assumed that the scope of protection had been opened, the possible encroachment would also be justified on the basis of the above considerations (II. 2.b)aa) (a)).
87 
	
(4) The authorization of § 32 sentence 1 in conjunction with § 28.1 sentence 1, 2 IfSG does not violate the requirement of Article 19.1 sentence 2 of the Basic Law to cite. This applies only to fundamental rights which may be restricted by the legislature on the basis of express authorisation and to laws which aim to restrict a fundamental right beyond the limits laid down in the law itself. A distinction is made between restrictions of fundamental rights, to which the citation requirement applies, and other regulations relevant to fundamental rights which the legislature makes in carrying out the regulatory duties incumbent on it and provided for in the fundamental right, provisions on content or the setting of limits. The citation requirement does not apply to these. Therefore, laws regulating the professions are not subject to the citation requirement (see already Senate, Decisions of 9 April 2020 and 23 April 2020, both loc. cit.), nor are laws that guarantee the right to informational self-determination (from Article 2.1 of the Basic Law in conjunction with Article 2.1 of the Basic Law). Art. 1 para. 1 GG, cf. OVG BBbg, decision of 27 May 2020 - 11 S 43/20 - juris nr. 17) and the freedom of the person.
88 
	
(3) Section 2(3) CoronaVO Restaurants is also not likely to infringe the provisions of the DSGVO.
89 
	
According to Art. 6 para. 1 DSGVO, the processing of data, which according to Art. 4 No. 2 DSGVO unproblematically includes the collection, storage and use of personal data, is only lawful under one of the conditions set out in Art. 6 para. 1 letters a) to f) DSGVO. In the case of data processing pursuant to Art. 2 Para. 3 CoronaVO Restaurants, it is likely that the elements of permission under Art. 6 Para. 1 lit. c) and e) apply. According to Art. 6 para. 1 lit. c) DSGVO, the processing of data is lawful if it is necessary to fulfil a legal obligation to which the person responsible (within the meaning of Art. 4 No. 7 DSGVO) is subject. Art. 6 para. 1 lit. e) DPA permits the processing of data if it is necessary for the performance of a task carried out in the public interest (Art. 6 para. 1 lit. c) DPA. Contrary to the applicant's view, if these elements of permission are present, it does not depend on the applicant's consent to the processing of its data.
90 
	
According to Article 6(3)(b) DPA, the legal basis for processing operations under Article 3(1)(c) and (e) DPA is determined by the law of the Member State to which the controller is subject. The fact that Article 2(3) CoronaVO Gaststätten, as a subordinate statutory instrument, may in principle constitute a suitable legal basis - contrary to what the applicant submits - is apparent from recital 41 in the preamble to the DSGVO. In all other respects too, Article 2(3) CoronaVO Gaststätten satisfies the requirements of Article 6(3) sentences 2 to 4 DSGVO. Accordingly, the purpose of the processing of the data must be specified in the legal basis or, with regard to processing pursuant to Paragraph 1 letter e) DSGVO, must be necessary for the performance of a task in the public interest. § Section 2 (3) sentence 1 CoronaVO Gaststätten expressly mentions the purpose of data collection ("for the purpose of providing information to the health authority or local police authority in accordance with Sections 16, 25 IfSG"). As described above (II. 2.b)aa) (a)), the collection of data is also in the public interest, namely to prevent the spread of the corona virus. By making it possible to trace infection chains, the life and health of a large number of people should be protected. Furthermore, the legislator expressly regulates which types of data (name, duration of the visit, telephone number or address), by which persons (guests of the restaurant) and for how long (four weeks) may be stored. The data processing clearly defined and limited in time in Section 2 (3) CoronaVO Gaststätten is also proportionate to this (Art. 6 (3) sentence 4 DSGVO).
91 
	
Contrary to the applicant's view, Article 9(1) of the DSGVO probably does not prohibit the collection of personal data either, since their processing would be permissible under Article 9(2)(h) DSGVO. Pursuant to Art. 9 para. 1 DSGVO, the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, as well as the processing of genetic data, biometric data for the unequivocal identification of a natural person, health data or data concerning the sexual life or sexual orientation of a natural person is prohibited. It is already doubtful here whether the data to be processed in Section 2 (3) sentence 1 nos. 1 to 3 CoronaVO Gaststätten constitute data types within the meaning of Art. 9 (1) DSGVO (on the difficulties of delimitation, see Ehmann/Selmayr/Schiff, 2nd ed. In any case, their processing would be permissible under Article 9(2)(h) DSGVO, as they are used for the purposes of health care and meet the other requirements of Article 9(3) DSGVO. The data processing pursuant to Art. 2 Para. 3 Sentence 1 CoronaVO Restaurants is carried out solely for the purpose of providing information to the Health Department or the local police authority for the performance of their sovereign duties pursuant to Arts. 16, 25 IfSG. These in turn are legally subject to professional secrecy (see § 203 Paragraph 2 Nos. 1 and 2 StGB).
92 
	
Nor does the Senate have any evidence to suggest that Section 2(3) of the CoronaVO Gaststätten infringes the general principles of Article 5 of the DSGVO. Insofar as the applicant has concerns about the trustworthiness of the restaurant staff in handling the data collected and thus refers to a possible infringement of Article 5 (1) (f) DSGVO, it is expressing these concerns in the blue. § Section 2 (3) sentence 3 CoronaVO Gaststätten explicitly points out that the general provisions on the processing of personal data remain unaffected, including in particular the provisions on the security and confidentiality of processed data under Art. 29 et seq. DSGVO, which must be observed by the operators of the restaurant as well as by the health authorities or local police authorities.
93 
	
(bb) In view of all the foregoing, there is no need to issue an injunction, even as regards the obligation to provide personal data when entering a restaurant.
94 
	
This already follows from the fact that the application for review of the standards is probably unfounded. In such a case - as explained above - the issuance of a temporary injunction is not urgently required within the meaning of § 47 (6) VwGO to ward off serious disadvantages or for other important reasons. Irrespective of this, a considerable impairment of the applicant's interests, which outweighs the interests of the protection of life and limb put forward by the defendant, is not apparent. Within the framework of the necessary weighing of interests, the restrictions are also reasonable for the applicant with regard to the restrictions of her fundamental right to informational self-determination.
95 
	
3. the decision on costs is based on Paragraph 154(1) of the VwGO. The determination of the amount in dispute is based on § 63.2 sentence 1, § 53.2 no. 2, § 52.2, § 39.1 GKG. There was no reason to halve the amount in dispute in the present proceedings for interim relief because the main proceedings were largely anticipated.
96 
	
This decision is final.

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