View source for VG Frankfurt am Main - 5 L 623/21.F

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|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=VG Frankfurt am Main 
|Court_With_Country=VG Frankfurt (Germany)

|Case_Number_Name=5 L 623/21.F
|ECLI=ECLI:DE:VGFFM:2021:0316.5L623.21.F.00

|Original_Source_Name_1=Bürgerservice Hessenrecht 
|Original_Source_Link_1=https://www.lareda.hessenrecht.hessen.de/bshe/document/LARE210000491
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE

|Date_Decided=16.03.2021
|Date_Published=
|Year=2021

|GDPR_Article_1=Article 23 GDPR
|GDPR_Article_Link_1=Article 23 GDPR


|National_Law_Name_1=§ 123 VwGO
|National_Law_Link_1=https://www.gesetze-im-internet.de/vwgo/
|National_Law_Name_2=Article 3(1) GG
|National_Law_Link_2=https://www.gesetze-im-internet.de/gg/BJNR000010949.html

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|Initial_Contributor=Agnieszka Rapcewicz
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The Administrative Court Frankfurt am Main (VG Frankfurt am Main) held that acts of European legislation have uniform and direct effect. The Government of the Land Hessen is therefore not entitled to declare acts of European legislation wholly inapplicable. 

==English Summary==

===Facts===
The applicant operates a sales outlet for the display and sale of barbecues, barbecue accessories and products relating to barbecuing. In line with the special regulations associated with the coronavirus pandemic, restrictions had been imposed on him in his shop in relation to the need to use certain hygiene measures. The applicant considered that he remained in a worse situation than garden, biulding and DYI markets to which customers would have barrier-free acces. 

The applicant's activity was subject to the restriction that the customer had to make a prior appointment in the shop and provide personal data for this purpose: name, address and telephone number. The trader was obliged to record personal data for the purposes of tracing infections. The outlet was obliged to store this personal data for a period of one month after the appointment of the individual customer, secure it against access by third parties, for the competent authorities and to transmit the data upon request of these authorities, as well as to delete or destroy it immediately after the expiry of the above period in a secure manner and in accordance with data protection legislation. A specific provision of the regulation issued in connection with the coronavirus pandemic has excluded the application of [[Article 13 GDPR]], [[Article 15 GDPR]] [[Article 18 GDPR]] and [[Article 20 GDPR]] concerning the obligation to inform and the right of access to personal data. Customers were to be informed of these restrictions.

Therefore, the applicant applied to the Administrative Court Frankfurt am Main for a temporary injunction to regulate the operation of its sales outlet so that it would not be subject to any special restrictions.

===Dispute===

Is the contested provision in Paragraph 3a(1), second sentence, No 22 of the CoKoBeV lawful?
===Holding===
The Court found that the exemption to provide information if and to the extent that the data subject already has the information ([[Article 13 GDPR|Article 13 (4) GDPR]]), it does not provide for the power of a public authority to exempt information. While, in the light of recital 62 of the GDPR, exemption from the obligation to inform is possible 'where the storage or disclosure of personal data is expressly laid down by law', this applies to the data controller (in this case the applicant) and does not entitle it to suspend the requirements of European law on the basis of national law. The Court also held that the entrepreneur is provisionally authorised to operate its sales outlet without further restrictions in accordance with § 3a (1), second sentence, No 22 of the Ordinance of the Land Hessen on contact and activity restrictions in relation to the coronavirus pandemic. In the Court's opinion, the normative injunction of § 3a (1) sentence 2 No. 22 of the CoKoBeV violates the requirements of European law as well as the principle of equal treatment, and a reduction that preserves the validity of the provision does not appear to be possible.

==Comment==
The court emphasised that insofar as the provisions of [[Article 13 GDPR]], [[Article 15 GDPR]] [[Article 18 GDPR]] and [[Article 20 GDPR]] concerning the duty to provide information and the right of access to personal data were considered in § 3a (1) sentence 2 no. 22 sem. 3 CoKoBeV declared inapplicable in a blanket manner, it is not clear on what basis this entitlement is based. 

While, according to [[Article 23 GDPR]], restrictions of obligations and rights under [[Article 12 GDPR]] - [[Article 22 GDPR]] [[Article 34 GDPR]] and [[Article 5 GDPR]], insofar as its provisions correspond to the rights and obligations under Articles 12-22 GDPR, appear to be possible by legislative means under certain conditions, this would first require a sectoral regulation on public security infection protection law. Provisions on data protection can be found in § 28a (1) No. 17, (4) IfSG, but they do not contain any reference to the General Data Protection Regulation (as e.g. § 27-29, 32, 34, 85 BDSG in relation to Articles 13, 15, 18, 20 DSGVO), nor do they indicate why and to what extent a departure from its provisions is necessary. However, the restriction must be justified by the situation, whereby a general connection to a specific task is not sufficient.

While [[Article 13 GDPR|Article 13 (4) GDPR]] on the obligation to provide information when collecting personal data from the data subject allows for an exemption from the previous obligation to provide information if and to the extent that the data subject already has the information, it does not provide for the power of a public authority to exempt information. While, in the light of recital 62, exemption from the obligation to inform is possible 'where the storage or disclosure of personal data is expressly laid down by law', this applies to the data controller (in this case the applicant) and does not entitle it to suspend the requirements of European law on the basis of national law.

Acts of European legislation have uniform and direct effect. The Government of the Land Hessen is therefore not entitled to declare acts of European legislation wholly inapplicable. That finding is so general as an acte clair that, notwithstanding the fact that it was made in the context of interlocutory proceedings, it does not require referral to the European Court of Justice.

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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>
Guiding principle
(1) The government of the Land of Hesse is not authorised to declare acts of European legislation inapplicable across the board.
declare.
-
2) The normative distinction between garden centres, flower shops, DIY shops and the applicant with its range of barbecues is not comprehensible.
with its range of barbecues is not comprehensible.

Course of proceedings
Previous VG Frankfurt am Main, 16 March 2021, 5 L 623/21.F, Decision
Tenor
It is determined that the applicant is temporarily entitled to operate its sales outlet/branch in X-Straße, Y, without the additional restrictions pursuant to § 3a para. 1 sentence 2 no. 22 of the Corona Contact and Operation Restriction Ordinance of the State of Hesse of 26 November 2020 (GVBl. p. 826) as amended on 4 March 2021 (GVBl. p. 142).

The defendants shall each bear half of the costs of the proceedings.

The amount in dispute is fixed at EUR 5 000.

Reasons
I.

Paragraph 1
The applicant operates a branch in X Street in Y and thus a sales outlet for the display and sale of barbecues, barbecue accessories and products relating to barbecuing. Consultations on this subject as well as goods for stationary sale to consumers are offered at the location. The sales area is approx. 280 square metres. For the operation of the shop, the applicant has drawn up a comprehensive hygiene concept which includes the wearing of a mouth-nose covering which meets the requirements for a medical mask (surgical masks or protective masks of the standards FFP2, KN95, N95 or comparable without exhalation valve). In the immediate vicinity of the applicant's sales outlet there is a garden/building/home improvement market (graphic representation, p. 33 of the application). The applicant considers itself to be at a competitive disadvantage, ultimately irreversible and lasting for weeks or months, compared to garden, building and DIY markets to which customers would have barrier-free access (with the exception of the general restrictions pursuant to § 3 CoKoBeV) due to special restrictions pursuant to § 3a para. 1 sentence 2 no. 22 of the Corona Contact and Operating Restrictions Ordinance (hereinafter "CoKoBeV"; also "CoronaVKBBeschrV HE 2020b").

Paragraph2
On 10 March 2021, the applicant applied to the Frankfurt am Main Administrative Court for a temporary injunction against both the Main-Kinzig district and the municipality of Y to regulate the operation of its sales outlet so that it would not be subject to any special restrictions. In addition, reference is made to the decision of the Higher Administrative Court of Saarland of 9 March 2021 - 2 B 58/21 - by which the applicant sees itself confirmed.

The applicant applies for,

to declare that the applicant is temporarily entitled to operate its sales outlet/branch in X-Straße, Y, without the additional restrictions pursuant to § 3a para. 1 sentence 2 no. 22 of the Corona Contact and Operating Restrictions Ordinance of the State of Hesse of 26 November 2020 as amended on 8 March 2021,

in the alternative,

to provisionally prohibit the respondents from prohibiting the applicant from operating the sales outlet/branch designated in the main application without observing the additional restrictions pursuant to section 3a (1) sentence 2 no. 22 of the Corona Contact and Operation Restriction Ordinance of the State of Hesse of 26 November 2020 as amended on 8 March 2021.

Paragraph4
The respondent to 1. requests that

to reject the application.

Paragraph 5
He does not consider a declaratory application such as the present one to be admissible. The declaration that § 3a para. 1 sentence 2 no. 22 CoKoBeV is unlawful is to be pursued in the proceedings for the control of norms pursuant to § 47 VwGO. The applicant sought not only interim but also preventive legal protection, but did not have a special need for legal protection; it could be expected to wait for official measures. Furthermore, the application was also unfounded, as the challenged provision of § 3a (1) sentence 2 no. 22 CoKoBeV was not unlawful but justified by reasonable considerations of the public interest and, in particular, proportionate. Unlike the shops privileged under § 3a para. 1 sentence 2 nos. 1 to 21 CoKoBeV, the applicant did not offer goods for daily needs. The encroachment on the freedom of occupation was considerably mitigated by the fact that sales could already be made again within the framework of the "click & meet". Due to the infection situation, an opening of the retail trade was only possible gradually and with strict caution. The different treatment applied by the Land of Hesse was not manifestly unobjective.

Paragraph 6
The 2nd respondent points out that no special ordinance has been passed by it and that the current Corona Contact and Operating Restriction Ordinance of the Hessian state government applies.

II.

Paragraph7
The court can decide through the reporting presiding judge, as the parties have declared their agreement to this (pp. 4, 57, 56 of the original). The application for an interim injunction is admissible (A.) and well-founded (B.), which is why the costs of the proceedings are to be imposed on both defendants (C.) and the amount in dispute is to be set at the standard amount in dispute (D.).

A.

Paragraph8
The application is admissible and also admissible in other respects. In particular, § 47 VwGO does not have a blocking effect on a (negative) application for a declaratory judgement which asserts subjective legal positions and which is not directed at the determination of the validity or invalidity of a provision (see BVerwG, judgement of 28 January 2010 - 8 C 19.09 -, BVerwGE 136, 54 <57>= NVwZ 2010, 1300 <1301 f.> = juris, marginal no. 24 et seq. with further references). Necessary, but also sufficient, is a disputed concrete legal relationship, i.e. it must be disputed in the application of a legal norm to a certain already manageable factual situation. That is the case here. The applicant seeks clarification of how the Corona Contact and Operation Restriction Ordinance regulates the operation of its sales outlet. The application of this ordinance is a matter for the lower health and regulatory authorities and thus for the respondent. Since the Corona Contact and Operating Restrictions Ordinance is self-executing, i.e. it is not designed to be concretised by an intermediary administrative act against which legal remedies would be available, but compliance with it is enforced by fines pursuant to § 8 nos. 8a, 8b CoKoBeV - not primarily by way of administrative coercion - the applicant cannot be expected to seek clarification in the otherwise remaining administrative offence proceedings (cf. BVerfG, Order of the First Senate of 18 December 2018 - 1 BvR 2795/09 -, BVerfGE 150, 309 <327 f.> = NJW 2019, 842 <843> marginal no. 45). Due to the responsibility of the first defendant for the prosecution and punishment of administrative offences under § 5.4 of the Hessian Public Health Service Act (HGöGD) and of the second defendant under § 7 of the CoKoBeV for the enforcement of the Corona Contact and Operating Restrictions Ordinance, there is also an interest in a declaratory judgment (see BVerfGE loc. cit. <328> marginal no. 47).

B.

Paragraph9
The application is well-founded. Pursuant to § 123.1 sentence 2 of the Code of Administrative Procedure (VwGO), which is the only provision that comes into consideration here, the court may, upon application, issue an interim injunction to regulate a provisional situation with regard to a disputed legal relationship, even before the action has been filed, if this regulation appears necessary, especially in the case of permanent legal relationships, in order to avert substantial disadvantages or to prevent imminent violence or for other reasons. The factual prerequisites of the asserted claim and the reason for the necessary provisional regulation must be made credible (§ 123 (3) VwGO in conjunction with § 920 (2), § 294 ZPO). Accordingly, there are far-reaching doubts about the effectiveness of the normative order from § 3a.1 sentence 2 no. 22 CoKoBeV (1.), which justify the determination of its inapplicability both in the legal relationship of the applicant to the first respondent and to the second respondent (2.).

Paragraph 10
(1) The Corona Contact and Operation Restriction Ordinance promulgated as Article 3 of the Twenty-Second Ordinance for the Adaptation of the Ordinances for the Control of the Corona Virus of 26 November 2020 (GVBl. p. 826), as amended by Article 3 of the Twenty-Eighth Ordinance for the Adaptation of the Ordinances for the Control of the Corona Virus of 4 March 2021 (GVBl. p. 142), which is the version at issue here, contains, inter alia, the following provision:

§ 3
Places of sale and similar establishments

1The operation of wholesale and retail establishments, including weekly markets and direct sales from the manufacturer or producer and shops of the food trade, as well as post offices, banks, savings banks, petrol stations, laundries and similar establishments shall be carried out in compliance with the recommendations of the Robert Koch Institute on hygiene, the control of access and the avoidance of queues. 2In the public area, it must be ensured that

1. the minimum distance of 1.5 metres required in accordance with Article 1 paragraph 1 sentence 2 can be maintained by means of suitable measures, in particular by controlling the number of visitors, if no suitable separating devices are available,

2. notices on the required distance and hygiene measures are displayed in a clearly visible manner, and

3. no more than one person per 10 square metres of sales area or part thereof is admitted to the first 800 square metres of sales area and no more than one person per 20 square metres or part thereof is admitted to the sales area exceeding 800 square metres; for shopping centres, the respective total sales area is decisive.

3The consumption of food and drink in the immediate vicinity of the sales outlet is prohibited.

§ 3a
Closure of retail sales outlets

(1) 1Retail sales outlets shall be closed. 2Sentence 1 does not apply to online retail and

...

18. garden centres, nurseries and flower shops,

...

20. bookshops,

21. building and DIY stores,

22. advice and sales by prior appointment, provided that no more than one person is admitted per sales area of 40 square metres or part thereof; the name, address and telephone number of customers shall be recorded by the point of sale solely to enable the tracing of infections; the point of sale shall keep the data for a period of one month after the individual customer appointment, protected from inspection by third parties, for the competent authorities and transmit it to them on request, as well as delete or destroy it immediately after expiry of the period in a secure manner and in accordance with data protection requirements; the provisions of Art. 13, 15, 18 and 20 of the General Data Protection Regulation on the obligation to provide information and the right of access to personal data shall not apply; the customers shall be informed of these restrictions.

3The decisive factor is the focus of the assortment; assortment extensions going beyond basic supply are not permitted.

(2) ...

margin no. 11
The normative command of § 3a para. 1 sentence 2 no. 22 CoKoBeV violates the requirements of European law (a.) as well as the principle of equal treatment (b.), whereby a reduction that preserves the validity of the provision does not appear possible (c.).

Paragraph 12
a. Insofar as the provisions of Articles 13, 15, 18 and 20 of the General Data Protection Regulation of 27 April 2016 (OJ L 119, 4.5.2016, p. 1; hereinafter "GDPR") on the duty to provide information and the right of access to personal data are declared to be inapplicable across the board in Section 3a (1) sentence 2 no. 22 half-sentence 3 CoKoBeV, it is not apparent on what basis the power to do so is based. The general justification according to Section 28a (5) sentence 1 IfSG contains nothing in this regard.

Paragraph 13
Insofar as, pursuant to Article 23 of the GDPR, restrictions of obligations and rights pursuant to Articles 12 to 22 and Article 34 as well as Article 5 of the GDPR, insofar as its provisions correspond to the rights and obligations provided for in Articles 12 to 22 of the GDPR, appear to be possible by way of legislative measures under certain conditions, this would first require a sector-specific regulation for infection control law as part of public safety. Data protection provisions can be found in § 28a para. 1 no. 17, para. 4 IfSG, but these do not contain any reference to the General Data Protection Regulation (as, for example, §§ 27 to 29, 32, 34, 85 BDSG do with regard to Art. 13, 15, 18, 20 DSGVO), nor do they indicate why and to what extent it is necessary to deviate from its provisions. However, the restriction must be justified on the basis of the situation, whereby a general link to a specific task is not sufficient (cf. Paal/Pauly/Paal, 3rd ed. 2021, DS-GVO Art. 23 marginal no. 9). Since the Federal Government has exercised its concurrent legislative competence under Article 74(1)(19) of the Basic Law conclusively with Section 28a(1)(17) and (4) of the IfSG, it is not relevant in this respect to Hessian Land law, which is independent of it.

Paragraph14
Insofar as Article 13(4) of the GDPR on the obligation to provide information when collecting personal data from the data subject allows the preceding information obligations to be waived if and to the extent that the data subject already has the information, it does not provide for the authority of a public authority to waive the obligation to provide information. To the extent that, with regard to Recital 62, this can be dispensed with "if the storage or disclosure of the personal data is expressly regulated by law", this concerns the controller (in this case, the applicant) and does not authorise the suspension of European law requirements on the basis of national law.

Paragraph 15
Acts of European legislation have a uniform and direct effect. The Hessian state government is therefore not authorised to declare acts of European legislation inapplicable across the board. As an acte clair, this finding is so general that - irrespective of the fact that it is made here in only provisional legal protection proceedings - it does not require referral to the European Court of Justice.

Paragraph16
b. When comparing the groups of retail outlets formed by Article 3 no. 3 letter a double letter aa and cc of the Twenty-eighth Ordinance on the Adaptation of the Regulations for the Control of the Corona Virus in § 3a para. 1 sentence 2 nos. 18, 20 and 21 CoKoBeV on the one hand and § 3a para. 1 sentence 2 no. 22 CoKoBeV on the other hand, the differentiation made is not comprehensible. The general justification according to § 28a para. 5 sentence 1 IfSG notes that "due to the current epidemiological situation" - in addition to the previously privileged "sales outlets for cut and potted flowers as well as for flower arrangements and grave decorations" - "garden markets, nurseries as well as flower shops ... as well as do-it-yourself and home improvement stores" "are now included in the open retail trade and thus serve the extended supply needs of the population in view of the closure of the retail trade, which has now already lasted two and a half months".

In the Corona Contact and Establishment Restriction Ordinance, Hesse follows an approach that is not actually product-related, but rather establishment-related. This is not contradicted by § 3a para. 1 sentence 3 of the CoKoBEV, which refers to the "focus of the product range" and does not allow an extension of the product range beyond the - not further defined - basic supply; rather, the company-related approach is confirmed here. If, as is not disputed in the present case, the different regulations under the general provisions of § 3 CoKoBeV (for the beneficiaries under § 3a para. 1 sentence 2 nos. 18, 20 and 21 CoKoBeV) on the one hand and the more restrictive ones of § 3a para. 1 sentence 2 no. 22 CoKoBeV on the other hand result in a distortion of competition, since identical products are offered under different conditions, the possibility of successfully counteracting this with the private-law means of competition law must be denied. All the more it depends on the framework conditions set by the legislator.

Paragraph18
The deficient structure of the possible legal consequences under § 28a par. 1 nos. 1 to 17, par. 3 sentences 2, 4 to 7 IfSG, which lacks an allocation of the individually named measures to the levels of the threshold values, demands all the more coherent regulation when issuing legal ordinances under § 32 IfSG, in order to still meet general requirements under the rule of law. Only facts, circumstances and aspects relevant to the protection of infectious diseases can be taken into account when measuring the objective of preventing a further spread of the Corona virus (SARS-CoV-2) by means of the - temporary - opening bans at issue (cf. Higher Administrative Court of Saarland, decision of 9 March 2021 - 2 B 58/21 -, juris marginal no. 20 = BeckRS 2021, 4001 marginal no. 12). The principle of equal treatment under Article 3 (1) of the Basic Law does not require the legislature to choose the most expedient or even the "most reasonable" of several possible solutions. Rather, a violation of the general principle of equality is only to be assumed if no objective reason can be found for the challenged normative regulation and an unequal treatment brought about by it.

Paragraph19
In particular, the distinction between garden centres, flower shops, DIY shops and the applicant with its barbecue range is not comprehensible. The reference to the "current epidemiological situation" does not even begin to explain why, in the case of garden centres, flower shops, DIY shops, on the one hand, "a maximum of one person per 10 square metres of sales area or part thereof may be admitted to the first 800 square metres of sales area and a maximum of one person per 20 square metres or part thereof may be admitted to the sales area exceeding 800 square metres", while in the case of the applicant, on the other hand, "a maximum of one person per 40 square metres of sales area or part thereof" is to be granted access. The requirements for hygiene concepts are identical. It is not explained why the hygiene rules required in any case according to § 3 CoKoBeV should not be sufficient. The reference to the "already two-and-a-half-month closure of the retail trade" has no direct reference to infection protection law and thus contains an extraneous consideration for the distinction made here according to square metres. Moreover, the meaningfulness of the "click & meet" also appears questionable against the background that on-site registration is not excluded; only if the maximum number of permissible customers is exceeded could the principle of prior tempore potior iure associated with registration be invoked.

Paragraph20
Whether the basic assumption that the "current epidemiological situation" justifies a relaxation with regard to the fact that according to § 28a para. 3 sentence 10 IfSG "comprehensive protective measures aimed at an effective containment of the incidence of infection are to be striven for" remains unchanged is not to be decided here. In the Twenty-Eighth Ordinance on the Adjustment of the Ordinances on the Control of Corona, the Hessian state government assumes, according to its explanatory memorandum, that "the decline in the number of cases has not continued for a few days" and that "[a]ctually ... a renewed increase in the number of cases has been observed. a renewed increase in the number of cases", but that "[z]ow factors ... a significant change in the pandemic situation", namely "the increasing amount of vaccine and the availability of rapid and self-testing".

c. When considering the provisions in Section 3a (1) sentence 2 no. 22 CoKoBeV as a whole, a reduction that preserves their validity is not possible. Even if the order to collect data is considered compatible with Section 28a (1) no. 17, (4) IfSG and - with regard to Recital 62 - also with Article 13 of the GDPR, Section 3a (1) sentence 2 no. 22 CoKoBeV is inadmissible due to the blanket non-application of European law requirements, which is apparently aimed at relieving the burden on those responsible under Article 4 no. 7 of the GDPR, as it is based on a conception of the processing of personal data that is untenable. This affects the entire normative conception.

Paragraph22
(2) The applicant is correct in claiming against the second respondent via the first respondent, who, pursuant to Article 2(2)(1) of the HGöGD, is the public health authority responsible for implementing the Infection Protection Act pursuant to Article 5(1) of the HGöGD. The fact that there is also a reason for an order in this respect follows from § 7 CoKoBeV. According to this provision, in deviation from § 5 para. 1 HGöGD, the local public order authorities are responsible for enforcing the Corona Contact and Operating Restrictions Ordinance in addition to the public health authorities if the public health authorities cannot be reached or take action in time to avert an existing dangerous situation. Admittedly, there are also reservations about the effectiveness of this regulation, since a statutory instrument cannot regulate anything "in derogation" of a formal law, unless that law expressly provides for it. Section 22(1) of the HGöGD only authorises the Hessian state government to regulate the competences of the public health authorities by ordinance in derogation of this law. However, it does not matter here, since the prohibitions of the Corona Contact and Operating Restrictions Ordinance are part of the objective legal order and thus of public safety, so that their violation would in any case allow the public order authorities to take action - taking into account the delimitation of tasks according to § 2 of the Hessian Law on Public Safety and Order (HSOG) - via the general clause of § 11 HSOG. Therefore, the second respondent also has passive legitimacy for the requested determination.

3. C.

Paragraph23
As unsuccessful parties, the respondents have the right of appeal pursuant to § 154.1, 159 VwGO in conjunction with § 100.1 ZPO. § 100 (1) ZPO, the respondents are to bear the costs of the proceedings.

D.

Paragraph24
The determination of the amount in dispute is based on § 53.2 no. 1, § 52.1, 2 GKG. According to this, if the state of the facts and of the dispute does not provide sufficient indications for the determination of the amount in dispute, an amount in dispute of 5,000 euros is to be assumed. In view of the fact that the application for interim relief is directed towards anticipating the main action, the amount in dispute is not to be reduced according to no. 1.5 sentence 2 of the 2013 catalogue of amounts in dispute.

</pre>