OVG Bautzen - 3 B 357/20

OVG Bautzen - 3 B 357/20
Court:	OVG Bautzen (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 5 GDPR Article 6(1)(c) GDPR Article 6(1)(e) GDPR Article 6(2) GDPR Article 6(3) GDPR
Decided:	11.11.2020
Published:
Parties:	Freistaat Sachsen
National Case Number/Name:	3 B 357/20
European Case Law Identifier:
Appeal from:
Appeal to:
Original Language(s):	German
Original Source:	Sächsisches Oberverwaltungsgericht - Entscheidungssammlung (in German)
Initial Contributor:	Agnieszka Rapcewicz

The Superior Administrative Court of Bautzen (OVG Bautzen) found that although the Saxon Corona Protection Regulation restricted an applicant's freedom of occupation and in general the right to private undertakings, which are guaranteed by the Constitution, it is justified by the protection of life and health of a large number of people.

The Court also held that the collection of contact data as a basis for contact tracing is an essential contribution to combating the spread of the pandemic and to prevent significant risks to life and health of people. It therefore serves the interests of the community, which take precedence over the interests of the applicant who does not want her data to be collected.

English Summary

Facts

With effect from 2 November 2020, the State Ministry of Social Affairs and Social Cohesion has ordered the defendant to adopt the Saxon Corona Protection Regulation. According to this regulation, it is prohibited to open and operate, with the exception of permitted online offers of, among others, establishments providing body-care services, with the exception of medically necessary treatment and hairdressers.

The applicant runs a nail studio and cosmetics company, trades in cosmetic products and holds seminars. The applicant considered that the defendant's legislation was discriminatory, violated the Constitution and personal data protection regulations. Therefore, she lodged a complaint with the Court.

Dispute

Did the defendant have the power to pass the legislation in question, which interferes with the economic life and privacy of citizens? Has the regulation violated the rules of the GDPR, especially the priciple of proportionality?

Holding

The complaint was rejected.

Comment

The main reason for lodging the complaint was the exclusion of the applicant's beauty salon from normal operation. She claimed that the rules introduced by the Saxon Corona Protection Regulation are discriminatory and, moreover, such restrictions and interference with citizens' privacy can only be introduced by rules issued by Parliament and not by the defendant (Freistaat Sachsen). Additionally, the applicant also complained of a breach of the GDPR, in particular, the principle of data minimisation laid down in Article 5 GDPR.

The Court, referring to the alleged violation of the provisions of the GDPR, pointed out that Article 6(1)(c) GDPR and Article 6(1)(e) GDPR allow processing of personal data, if the processing is necessary to fulfil a legal obligation. Furthermore, the processing of personal data is permitted to the extent necessary for the performance of a task in the public interest or in the exercise of official authority. In turn, Article 6(2) GDPR empowers Member States to adopt more detailed rules in this regard. Article 6(#0 GDPR further provides that the legal basis for processing operations under Article 6(1)(c) GDPR and Article 6(1)(e) GDPR shall be determined by Union law or by the law of the Member State to which the person responsible is subject. The purposes of the processing must be laid down in that legal basis or, in respect of processing under Article 6(1)(e) GDPR - it must be necessary for the performance of a task which is in the public interest or in the exercise of official authority vested in the person responsible. This legal basis may include specific provisions aimed at adapting the application of the provisions of the GDPR, including those concerning the general conditions governing the lawfulness of data processing by a Member State.

The Court held that the Saxon Corona Protection Regulation is indeed a sector-specific national law of the Land legislature concerning the processing of personal data which contains more detailed provisions in accordance with Article 6(2) GDPR and Article 6(3) GDPR for adaptation to the application of Article 6(1)(c) GDPR and Article 6(1)(e) GDPR.

The court stressed that national legislation must comply with constitutional requirements. Whether or not it was possible to regulate the processing of personal data in the area of contact tracing by means of a regulation is an open-ended question, and this is a matter of dispute in the case-law.

The Court stated that provisions of the regulation meet the specific data protection requirements. They define in concrete and normative terms who is to collect and store the data, for which reason data must be collected, which data to collect, and, where appropriate, to be communicated to the competent authorities (name, telephone number or e-mail address and postcode of visitors and the period of the visit), how long the data must be stored (for one month after the end of the visit) and that they must subsequently be deleted, the purpose for which the data must be deleted, who is responsible for the transmission of these data (the authorities responsible for infection control), the purpose for which this transmission may be requested (to track infections) and how misuse of the data is prevented (by order of the protection against inspection by third parties and by prohibition of processing for other purposes, unless otherwise provided for by federal law).

The Court found that the collection and processing of contact details also complies with the principle of proportionality. It is suitable and necessary to enable the tracing of contacts of corona infected persons and thus make a significant contribution to prevent the transmission of the virus.

The Court pointed out that the applicant complaint of a breach of the requirement to minimise data has not been further explained. Which of the data to be collected should not be necessary for contact tracing is not apparent in any other way either. Doubts may arise in this respect with regard to the visitor's postcode, which may, however, also be relevant for identification purposes if e-mail or phone number should be illegible.

In the end, the Court found that the collection of contact data as a basis for contact tracing is an essential contribution to combating the spread of the pandemic and to prevent significant risks to life and health of people. It therefore serves the interests of the community, which take precedence over the interests of the applicant, who does not want her data to be collected, even if it may be illegal.

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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.

SAXONIAN

HIGHER ADMINISTRATIVE COURT

Decision

In the administrative law case

the

- Applicant -

authorised to bring proceedings:

against

the Free State of Saxony

represented by the Saxon Ministry of State

for social affairs and social cohesion,

Albertstrasse 10, 01097 Dresden

- Defendant -

authorised to bring proceedings:

for

SaxonyCoronaSchVO of 30 October 2020

here: Application according to § 47 Abs. 6 VwGO

the 3rd Senate of the Saxonian Higher Administrative Court by the Chairman

Judge at the Oberverwaltungsgericht Dr Freiherr von Welck, the judge at the Oberverwaltungsgericht Kober and the judges at the Oberverwaltungsgericht Nagel

Schmidt-Rottmann and Dr. Helmert

on 11 November 2020

decided:

The request is rejected.

Orders the applicant to pay the costs.

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

Grounds

A.

The applicant's urgent application pursuant to § 47 (6) VwGO pursues the following objective

by way of interim measures, Article 4(1)(19), Article 2(1), Article 3 and Article 5

(6) and (7) of the Saxon CoronaSchVO.

The applicant runs a nail and cosmetic studio in the defendant's territory, trades in cosmetic products and holds seminars.

With effect from 2 November 2020, the State Ministry of Social Affairs and Social Cohesion has issued the Saxon Corona Protection Ordinance to the defendant with the following wording - insofar as it is the subject of the dispute

adopted. The ordinance was adopted on 31 October 2020 in the Saxon Law and

Ordinance sheet (SächsGVBl. p. 557):

" § 2 Contact restriction, distance regulation

(1) The stay in public is only permitted with members of the own

and a further household up to a maximum of ten persons. Private gatherings, meetings, events and celebrations in

of their own domesticity are with members of their own and another

Household up to a maximum of ten persons or with a maximum of five persons.

…

(4) Paragraph 1 shall not apply to meetings in churches and premises of religious communities for the purpose of religious worship, nor to funerals.

(5) Sub-Clause 1 shall not apply to meetings of the Diet, the State Government

and local representative bodies as well as authorities, courts

public prosecutors' offices or other bodies performing public functions and measures that are relevant to the supply or health care of the

population, as well as meetings of local councils and of the

their committees and bodies, as well as nomination meetings of political parties and voters' associations and necessary committee meetings of legal entities under private and public law, works meetings

and events organised by the social partners.

§ 3 Mouth and nose covering

(1) A mouth-nose cover shall be worn:

1. when using public transport for the transport of persons,

including taxis, or regular transport services for the purpose of transport between the place of residence and human facilities

with disabilities, people in need of care or patients for their treatment,

2. when staying in wholesale and retail shops and shops,

3. when staying in health care facilities in accordance with § 23 paragraph 3 sentence 1 of the

Infection Protection Act and by employees of outpatient care services

in the exercise of care. Exceptions are the actual treatment rooms and the patients admitted to the hospital at their seat for the reception of food and beverages and in their rooms,

4. when visiting facilities in accordance with § 36 paragraph 1 number 2 of the Infection Protection Act,

5. when staying in any premises open to the public

with regular public traffic:

(a) in shopping centres, accommodation establishments (circulation and common areas, dining areas until the square is reached) and public administrations

(b) in banks, savings banks and insurance companies,

(c) in all catering establishments, including snack bars and cafés, for and at the time of delivery and collection of takeaway meals

and drinks,

d) in churches and rooms of religious communities, with the exception of the ritual reception of food and drink

(e) in education and training establishments providing vocational, school or academic training and on their premises, with

Exception to the teaching in music and dance colleges or if the

a minimum distance of 1.5 metres is maintained,

6. when staying in school buildings, on the premises of schools and

school events; this does not apply,

a) if the minimum distance of 1.5 metres is observed,

(b) for the primary level,

(c) for shelters,

(d) in education for pupils in lower secondary education,

(e) in the teaching of special needs schools at lower secondary level, also for teachers; and

other staff employed in the classroom,

f) in the teaching of the Werkstufe of special schools with the focus on

mental development,

g) in inclusive teaching for the hearing and language specialisation

and

(h) to receive food and drink in the school building; and

7. when staying at bus stops, in railway stations, in pedestrian zones, on

areas dedicated to sport and games (except for children under 10 years of age), at weekly markets and at external sales stands. This applies from 6:00 to 24:00 hours. Excluded are the movement without stopping with means of transport and sporting activities.

(2) Children up to the age of six years are exempt from the obligation under subsection 1. Subsection 1 shall not apply to personnel, provided that

other protective measures have been taken or no customer contact exists.

§ Section 1 (2) sentences 4 and 5 shall apply accordingly. To substantiate an exemption from the obligation under subsection 1, it is sufficient to grant access to a severely disabled person's pass or a medical certificate. In this respect

may not be refused use and residence under paragraph 1 for reasons relating to the protection against infection. Persons who, contrary to the obligation under subsection (1), do not wear a mouth-nose-cover without having

exception under sentences 2 to 4, use under paragraph 1

sentence 1 number 1 alternative 1 and the stay in accordance with paragraph 1 sentence 1

points 2 to 7 are prohibited.

§ 4 Closure of facilities and services

(1) It is prohibited to open and operate, with the exception of permitted online offers of:

1. education and training establishments which do not provide vocational, school or academic training

2. outdoor pools, indoor swimming pools, spas, thermal baths unless they are rehabilitation facilities,

3. steam baths, steam saunas and saunas,

4. fitness studios and similar facilities, unless they are medically

necessary treatments,

5. amusement arcades, casinos, betting shops and similar establishments,

6. facilities and equipment for leisure and amateur sports, with the exception of individual sports alone, in pairs or with one's own household

and school sports. This does not apply to training organised for individual sports and their competitions without an audience, nor to sportsmen and sportswomen,

(a) who are covered by an employment contract which obliges them to perform a sporting activity in return for remuneration, the main purpose of which is to earn a living; or

b) the national squad (Olympic squad, perspective squad, junior squad 1)

and junior squad 2 of the German Olympic Sports Federation or the

top squad of the German Disabled Sports Association or the

Squad in a junior performance centre in the Free State of Saxony,

7. leisure parks, amusement parks, botanical and zoological gardens, animal parks,

Offer of leisure activities,

8. folk festivals, fairs, Christmas markets,

9. discotheques, dance parties,

10. trade fairs, conferences and congresses,

11. museums, music schools, cinemas, theatres, opera houses, concert halls,

concert venues, music theatres, clubs and music clubs and appropriate facilities for audiences,

12. libraries, with the exception of media lending and with the exception of

Specialist libraries and libraries at the universities, the Saxon State and University Library and the German National Library

13. offers of child and youth welfare services without socio-educational support,

Facilities and offers for children and youth recreation,

14. circuses,

15. prostitution centres, prostitution events, prostitution agencies, prostitution vehicles,

16. bus trips and accommodation for tourist purposes, and

School trips,

17. events that provide entertainment,

18. catering establishments and bars, pubs and similar establishments

Excluded is the delivery and collection of take-away food

and beverages as well as the operation of canteens and refectories,

19. establishments providing body-care services, with the exception of medically necessary treatment and hairdressers

20. all other institutions and bodies involved in the organisation of leisure

serve.

(2) Entering and working by operators and employees are not covered by the prohibition under paragraph 1.

§ 5 Facilities, businesses and offers with hygiene concept and contact data collection

(1) Facilities, establishments and tenders not prohibited under Section 4(1) shall, in compliance with the hygiene rules laid down in paragraphs 2 to 4

and the collection of contact details in accordance with paragraph 6.

…

(6) Personal data for tracing infections are

Organisers and operators of facilities, offers and businesses that

not prohibited under section 4 paragraph 1, with the exception of the area of wholesale and retail shops, shops and stalls and the delivery and collection of take-away food and beverages.

For this purpose, the following personal data must be processed: the name, telephone number or e-mail address and postcode of visitors, and

Period of the visit. These data are, protected from inspection by

third parties, and for a period of one month after the end of the visit for

the competent authorities. Upon request, they must be sent to them

processing for other purposes is not permitted if it is necessary for the purpose of

nothing else results from federal regulations. The data must be deleted or destroyed immediately after expiry of the deadline.

(7) If a digital collection of contact data is provided for under paragraph 6

is additional

1. a similar collection of contact data of the visitor

and

2. barrier-free data collection

to make this possible."

The applicant applied to the Saxon Higher Administrative Court for interim measures

Legal protection according to § 47 para. 6 VwGO (German Rules of the Administrative Courts) requested. In support of its application for legal protection, the applicant submits the following summary: The statutory instrument is unconstitutional because it is contrary to the reservation of the law and the parliamentary reservation

violated. The requirements of the citation requirement were not met with regard to Article 12 of the Basic Law

done. In addition, the requirements of § 32 IfSG with regard to

of the applicant is not satisfied. There is no scientific evidence that

the incidence figure is relevant for assessing the risks of the pandemic. The

The first "lockdown" had had no effect on the development of the pandemic.

The infection figures are not reliable and therefore do not prove the existence of a risk situation. This is particularly true because of the high number of false positive tests. Therefore, no increase in the total number of

intensive care beds and inpatient SARI cases. A milder

means compared to the restrictions provided for in the Regulation, the

Building health capacity and protecting vulnerable groups

represented. The closure of the plant infringes their fundamental right under Article 12 of the Basic Law. It pursues no legitimate purpose and is inappropriate, as there is no evidence that cosmetic institutes are among the drivers of the infection. As long as there are no reliable findings to that effect, a closure of a cosmetic institute

cannot be arranged. The defendant has the opportunity to

not used. The applicant is discriminated against compared with hairdressing establishments which remain open. The selection of the establishments to be closed is made in the

Regulation arbitrarily according to the "watering can principle". It has also always complied with the hygiene standards in force; according to that criterion, it has differentiated

have to be. Obedience to the law should not be sanctioned, and the applicant should not be

be taken into "clan custody". She is already through the first "lockdown".

on the verge of ruin; it was threatened with the loss of its business. The ban on contact violates

it in its fundamental right under Article 6 of the Basic Law. The provision was arbitrary, since it was not possible to see on what basis the concrete numerical determinations were based.

In addition, it was necessary to differentiate between family members and foreigners

will be. Evidence suggests that contact between family members is particularly

to the situation of the infection is not apparent. Also

it is not clear why the number of households should be significant. Moreover, the measures are also disproportionate, since the human being, as a social The human being depends on its integration into the community. The state intervenes in

the core area of private life. The comprehensive

Contact tracing violates the fundamental right to informational self-determination. The collection of contact data concerns the theory of materiality and thus the

Parliamentary reservation, as this would enable the state to draw up movement and personality profiles (reference to SaarlVerfGH, decision of 28 August 2020 - LV

15/20 -). Such a far-reaching decision could only be taken by the parliamentary legislator. Citizens like the applicant could be prevented from exercising their fundamental rights because they had to fear that they would be prevented from visiting any institution of the

of everyday life and thus become a "transparent citizen". Under the guise of infection protection and contact tracing, the

If a state obliged to spy on each other and to collect personal data from each other, the total surveillance state and thus the uncontrolled police state had become a cruel reality. Moreover, the regulation also infringes the principle of data minimisation, Article 5 of the DSGVO. The obligation to wear everyday masks infringes the applicant's

Basic right to physical integrity under Article 2 (2) sentence 1 of the Basic Law. Covering the nose and mouth was not effective, as the increase in the number of infections showed,

and, moreover, endanger the institution itself, which cannot be required of it.

The applicant therefore requests the Court to rule accordingly,

§ Section 4 (1) No. 19, Section 2 (1), Section 3 and Section 5 (6) and (7) of the Saxon CoronaSchV

of 30 October 2020 to be temporarily suspended.

The defendant claims that the Court should

reject the application.

It shall oppose the request. It shall give a summary of the grounds for its opposition,

that infection rates have increased since the end of the summer holiday period - most recently

exponentially - and this also due to increased selective restrictions

could not have been successfully countered. The sources of the new infections are

hardly recognizable. The concept of contact tracing of infected persons could

can no longer be achieved. There is a risk that further such measures could5

6

7

8

This would quickly lead to overburdening of the health care system, particularly in terms of intensive care. The Regulation proves

to be lawful thereafter. A breach of the constitutional requirement that

There were no essential decisions, particularly in the area of fundamental rights, which had to be taken by the parliamentary legislature itself. The restrictions in question undoubtedly constitute measures which are structurally permissible in the given pandemic situation. Anything else would be subject to the constitutional

obligation to protect the life and physical integrity of persons residing in the territory of the State to the best of its ability. Open for discussion

could at best be when exactly these measures could be taken; this could be

However, it is not for the parliamentary legislature to regulate such matters. In the present situation

Moreover, only a comprehensive and global package of measures is possible,

as it has now been done in the contested regulation,

the exponential increase in the number of infections currently underway with all

to stop its effects. It could therefore not be a question of examining the measures imposed by Land law in isolation to determine whether the type of facilities, events or behaviour specifically affected, which is now largely or even completely prohibited for four weeks, was in

the recent past, the available evidence suggests that there is a particularly

relevant source of infection. Rather, personal encounters

be reduced as far as possible to the absolutely necessary minimum,

to break the second wave of the pandemic which has now arrived. Only the

indispensable personal activities, on the one hand to obtain the goods and services necessary for living, and on the other hand to maintain professional activities and to keep schools and day-care facilities open and family life close, should be continued in the next four

weeks still be possible. The criterion of legal verification could be

the status of the pandemic does not (no longer) indicate the extent to which a causality of a certain type of institution, event or behaviour for the spread of infection actually exists, but only the reverse, i.e. the extent to which such a causality can be clearly denied in a certain concrete context. A

Such a denial of causality could not be made for nail studios. It is in

the pandemic situation, which has now worsened considerably, is no longer only about preventing infection risks in the specific facilities, but also about preventing the spread of the disease,  that as few people as possible are still on the public roads with the corresponding risk of infection, unless the latter is of particular

He said it was important for the continuation of social and societal life.

Such special importance cannot, however, be attributed to nail and beauty salons. This was also true in comparison with hairdressing salons. Hairdressers must inevitably visit people at regular intervals if they do not want to fall below the minimum requirements for a socially acceptable appearance, not to mention hygiene problems. In contrast, I have the need to use a nail or cosmetic service and I would like does not constitute an equally objectively urgent request. The obligation

on the wearing of masks, on the basis of scientific evidence is covered by the assessment prerogative of the legislator and is proportionately structured. This also applies to the outdoor locations mentioned in Section 3 (1) no. 7 of the Saxon CoronaSchV, since even there, people may be standing close to each other and the risk of infection would therefore exist without masks. There were no health risks from wearing masks. The contact restrictions

are not objectionable, because it is precisely in the context of private meetings that contagions had come. The collection of contact data is necessary to identify and trace chains of infection.

B.

The application is admissible under § 47 (1) No. 2 VwGO in conjunction with § 24 (1) SächsJG.

According to this, the Saxon Higher Administrative Court decides on the validity of the decisions made in the legislation ranked below the Land law. These include regulations issued by the State Government. The Senate decides on them in accordance with § 24 para. 2 SächsJG by appointing five professional judges.

The application for review of the statute under § 47 (6) VwGO is admissible. An application for a decree interim measures are admissible where a judgment on the substance of the case is sought or an application for review of a statute still to be filed under Article 47(1) VwGO is likely to be admissible (cf. Ziekow, in: Sodan/Ziekow, VwGO, 5th edition 2018, Article 47 marginal no. 387) and the admissibility requirements for the procedure for interim relief under Section 47 (6) of the German Rules of the Administrative Courts (VwGO) are met. Both are the case here.

The applicant is authorised to file an application within the meaning of Paragraph 47(2), first sentence, of the VwGO, since it

can claim that his rights have been infringed. It is the holder of a

nail and cosmetic studios located in the Free State of Saxony are affected by the closure order in § 4 (1) no. 19 of the Saxon CoronaSchVO. According to this provision

the opening up of establishments in the field of personal services, with the exception of medically necessary treatments and hairdressers, prohibited. In this sense, a service provided close to the body in this sense means any service provided to a person in which the distance of 1.5 m from person to person cannot be complied with. Since both cosmetic treatments and If nail care is also carried out directly on the body of a person, these are body-related services within the meaning of Section 4 (1) No. 19 of the Saxon CoronaSchV. The closure thus ordered makes it seem possible that

the applicant's right under Article 12(1) of the Basic Law (freedom of occupation) has been infringed.

A violation of the principle of equal treatment as laid down in Article 3 (1) of the Basic Law appears in relation to the industries excluded from the closure order

in the field of body related services, such as hairdressing. In addition, the applicant may also claim that there is a possibility that Specifications of § 2 para. 1 SächsCoronaSchV on contact restriction and § 3 SächsCoronaSchVO to wear a mouth-nose cover they - in any case - violate their basic right to general freedom of action (Article 2(1) of the Basic Law) and the provisions on contact data collection in Article 5(6) and (7) of the SächsCoronaSchVO they violate their basic right to informational self-determination.

The application under Section 47 (6) VwGO is unfounded.

According to § 47 (6) VwGO, the Higher Administrative Court may refuse to apply the

defendant's order temporarily suspending enforcement if this would lead to

averting serious disadvantages or for other important reasons is urgently required.

Since the wording of the provision is based on § 32 of the BVerfGG, the principles developed by the Federal Constitutional Court in this regard (BVerfG, Beschl. v.

8 November 1985 - 1 BvR 1290/85 -, juris recital 10 and of 8 November 1994 - 1 BvR

1814/94 -, juris para. 21) also be applied to § 47 (6) VwGO. The prospects of success of a pending or possibly pending case are used as a yardstick for decision-making.

subsequent main proceedings. If the examination shows that the standards control body If it is expected that the decision on the application for interim measures will be inadmissible or unfounded, the issuance of a temporary injunction pursuant to § 47 (6) VwGO is not required. If, on the other hand, the application for review of a statute is likely to be successful, the challenged

the provision must be suspended if there is a fear that the (further) enforcement of the challenged provision will be disadvantageous until a decision on the merits of the case is taken

which, taking into account the interests of the applicant, interested third parties

and/or the general public are so important that a provisional arrangement with

the effectiveness and feasibility of a system that is favourable to the applicant

the main decision cannot be postponed. If the prospects of success prove to be

of the substance of the case, the consequences which would arise if an interim measure were not granted but a main action were successful must be weighed against the disadvantages which would arise if the interim measure sought were granted

a pending or possibly subsequent request for review of standards

but the success would be to fail. The measures necessary for the adoption of the interim measures

The conflicting interests must clearly outweigh the conflicting considerations, i.e. be so serious that the interim injunction is urgently required - despite the open prospects of success in the main case (SächsOVG, Beschl. v.

15 April 2020 - 3 B 114/20 -, juris recital 11 and decision of 15 March 2018 - 3 B 82/18 -,

juris recital 16 m. w. N.). With these requirements, § 47 (6) VwGO states

suspension of the enforcement of a sub-statutory provision considerably stricter requirements than those laid down in Paragraph 123 of the VwGO, which otherwise requires the adoption of a provisional measure

(BVerwG, decision of 18 May 1998 - 4 VR 2/98 -, juris para. 3).

Applying these principles, the application for provisional non-enforcement of § 4 (1) No. 19, § 2 (1), § 3 and § 5 (6) and (7) of the Saxon CoronaSchV is unsuccessful, since the challenged provisions are likely to stand up in the course of the procedure for review of the legislation or, in any event, the prospects of success of a procedure for review of the legislation are only open, without the considerations in favour of issuing an interim injunction outweighing the conflicting interests.

I. The challenged Section 4(1) No 19 of the Saxon CoronaSchV is likely to stand up to scrutiny in the course of the procedure for review of the rules.

1 The legal basis of the closure complained of is, as can be seen from the preamble to the

Saxon Corona Protection Ordinance of 30 October 2020 § 32 sentence 1 i. in conjunction with

§ Section 28 (1) sentences 1 and 2 of the Infection Protection Act of 20 July 2000 (BGBl. I S.

1045), of which section 28 (1) sentences 1 and 2 are replaced by Article 1 number 6 of the Act

of 27 March 2020 (BGBl. I p. 587) (in future: IfSG).

At any rate, the Senate has not yet performed the required summary review.

that the aforementioned provision is a sufficient authorisation for the encroachment on fundamental rights by the Saxon Corona Protection Regulation and that it is also, in particular

the principle of materiality and the requirement of certainty in Article 80 (1), second sentence

GG is sufficient (so also NdsOVG, decision of 29 October 2020 - 13 MN 393/20 -, juris

para. 24; Berlin-Brandenburg Higher Administrative Court, decision of 4 November 2020, loc. cit. para. 29 ff.)

The principle of the rule of law and the requirement of democracy require that the legislature

the rules governing the implementation of fundamental rights are essentially themselves

and does not leave them to the action and decision-making power of the executive. Regulations are to be understood as essential, which are necessary for the realisation of

fundamental rights are of considerable importance and affect them particularly intensively. The

Materiality theory therefore does not only answer the question of whether a certain matter can only be regulated by law. Rather, it is also decisive for how

must be precisely the regulations in detail. The fact that an issue is politically controversial, on the other hand, does not in itself mean that it must be understood as essential. In principle, laws - such as the Infektionsschutzgesetz in § 32 IfSG - which can be enacted pursuant to Art. 80 (1) GG can be

of legal ordinances to meet the requirements of the reservation of the law

but here, too, the essential decisions must be taken by the parliamentary legislature itself (cf. BVerfG, resolution of 21 April 2015 -

2 BvR 1322/12, 2 BvR 1989/12 -, juris recital 52 m. w. N.; SächsOVG, decision of 29.

April 2020 - 3 B 144/20 -, juris recital 18).

The requirement that the basis for authorisation must be sufficiently specific in the case of delegation of a decision to the legislature under Article 80 (1) sentence 2 of the Basic Law,

according to which the content, purpose and extent of the authorisation is determined by law is in this respect a necessary complement and concretisation of the legal reservation and the principle of administrative legality. Art. 80

Paragraph 1 sentence 2 of the Basic Constitutional Law (GG) states that the

governmental intervention by the executive branch can be traced back to a parliamentary

expression of will back. An authorisation must therefore not be so vague,

that it is no longer possible to foresee in which cases and with which tendency it will be used and what content the

(BVerfG, decision of 26 September 2016 - 1 BvR 1326/15 -, juris marg. 26; decision of 21 April 2015 - 2 BvR

1322/12 and Others -, juris, paragraphs 54 et seq. 19 September 2018 - 2 BvF 1/15 and others -, jurisprudence

recital 198 et seq.; SächsOVG, decision of 29 April 2020 (see recital 19).

Under section 32 of the IfSG, the Länder governments are also authorised, under the conditions governing measures under sections 28 to 31 of the IfSG, to

to issue appropriate commandments and prohibitions for the control of communicable diseases. If sick persons, suspected illnesses, suspected infections or dropouts are detected or if it transpires that a deceased person is ill,

was suspected of being ill or a dropout, the competent authority shall take the necessary measures in accordance with § 28

(1) sentence 1 IfSG, the necessary protective measures, in particular those in §§ 29

up to 31 IfSG, insofar and for as long as it is necessary to prevent and of communicable diseases is required.

The Senate has so far taken the view that there is much to be said for the

Closure of establishments ordered by regulation from the general clause in

§ Section 28 (1) sentence 1 IfSG, according to which the competent authority must provide the "necessary

protective measures" (cf. exemplary SächsOVG, decision of 29 April

2020 op. cit.). In the above-mentioned decision, the Senate has, inter alia, called for

the following:

"In addition to the power to issue prohibitions of entry and exit regulated in § 28 (1) sentence 1 half-sentence 2 IfSG, the legislator has, inter alia

already with the only exemplary list in § 28 (1) sentence 2 IfSG, according to which events or other gatherings of people are restricted

or banned and bathing establishments or parts thereof referred to in § 33 IfSG or community facilities mentioned in § 33 IfSG may be closed,

that in concretising the scope for action opened up by the general clause the applicant's own interests, and thus also those of the the main measures - to be taken towards the general public in can be considered. In principle, this also includes the closure of businesses as possible protective measures. Because retail businesses with public transport similar to the events expressly mentioned

and other gatherings in so far as, like these, they attract people to a limited location and thus pose a particular risk of spreading a human-to-human transmission of a represent disease. Ultimately, the fact that the legislator and the infectious disease control authorities in the fight against infectious diseases the legislator's intention was to open up the widest possible range of appropriate protection measures. This is based on the consideration that it is not possible to determine in advance the range of protective measures that may be considered in the event of the occurrence of a communicable disease (BVerwG, Urt. v. 22 March 2012 - 3 C 16.11 -, juris para. 24; SächsOVG, decision of 29 April 2020, recital 21; OVG NRW, decision of 6.

April 2020 - 13 B 398/20.NE -, juris recital 44; OVG Berlin Brandenburg, decision of 6 April 2020

of 17 April 2020 - 11 S 22/20 -, juris recital 21; OVG Bremen, decision of 9 April

2020 - 1 B 97/20 -, juris recital 34). The question may be raised in the proceedings of the provisional

legal protection cannot, however, be conclusively assessed (this also applies to VGH BW,

Decision of 9 April 2020 - 1 S 925/20 -, juris recital 37 ff).

The above considerations are limited to the provision of body related services

such as cosmetics and nail care are transferable, because the corresponding studios

are in principle open to the public and thus also justify a

risk for the spread of human-to-human coronavirus (so

also OVG Berlin-Brandenburg, decision of 4 November 2020, recital 32, in relation to

at tattoo studios).

After in spring 2020 the higher court jurisdiction was largely unanimous in assuming that the requirements of Article 80 of the Basic Law were at least not obviously missing (BayVGH, decision of 30 March 2020 - 20 CS 20.611 -,

juris para. 17; VGH BW, decision of 9 April 2020 - 1 S 925/20 -, juris para. 37 ff.; OVG

Bremen, decision of 9 April 2020 - 1 B 97/20 -, juris recital 24 et seq.; ThürOVG, decision of 9 April 2020 - 1 B 97/20 -, juris recital 24 et seq.

8 April 2020 - 3 EN 245/20 -, juris recital 36; OVG LSA, decision of 20 May 2020 - 3 R

86/20 -, juris recital 42 et seq.; OVG Saarland, decision of 27 April 2020 - 2 B 141/20 -, juris

marginal no. 21 ff.), was published in legal literature (Volkmann, NJW 2020, 3153; Brocker,

NVwZ 2020, p. 1485; Paper, DRiZ 2020, 180, 183; Baker,

https://verfassungsblog.de/corona-in-karlsruhe/) Criticism voiced. In its decision of 29 October 2020, the Administrative Court of the Free State of Bavaria has now

(- 20 NE 20.2360 -, ju-ris), in view of the fact that the grounds in question right interventions "their scope, intensity and duration (in terms of) meanwhile

(see recital 30) "considerable doubts" as to whether they are still compatible with the requirements of the parliamentary reservation and the requirement of certainty.

Against this background, on 3 November 2020, the German Bundestag

the governmental groups represented in the European Parliament from their right of legislative initiative under Article 76(1)

GG (Basic Law) and the draft of a third law for the protection of the population in the event of an epidemic situation of national importance (BT-Dr. 19/23944)

was submitted. The bill was debated by the German Bundestag in its first reading on 6 November 2020. The legal policy spokesman of the SPD parliamentary group had previously told dpa that the

legislative process is to be carried out rapidly and completed by November 2020 (cf. https://www.zeit.de, "SPD campaign wants clear legal framework for

Corona measures", contribution of 1 November 2020, 12:59).

Among other things, the draft bill provides for the introduction of a new § 28a IfSG, in

the first sentence of Section 28(1) IfSG is supplemented by special protective measures to combat the coronavirus SARS-CoV-2. The draft of the

§ Section 28a (1) no. 9 IfSG also includes prohibitions of operations or trade or the closure of retail or wholesale trade or restrictions and conditions on operations,

trade, retail and wholesale trade as necessary protective measures. The explanatory memorandum to this draft law also states that at least the parliamentary groups in the German Bundestag which are responsible for the government assume that the current

measures taken in Germany to contain the coronavirus pandemic

were covered both by the parliamentary reservation and the requirement of certainty

corresponded. The explanatory memorandum to the introduction of Paragraph 28a of the IfSG states

"Paragraph 1 clearly extends the examples of rules in § 28 (1) sentences 1 and 2 IfSG specifically for the SARS-CoV-2 pandemic and corresponds to the system of § 5

following the identification of a pandemic situation of national significance by

the Bundestag" (Bundestag printed paper 19/23944, p. 27). For the fact that the legislature

now seems to consider it necessary to act only for the sake of clarification,

also speaks of the fact that, despite the fact that it has even been

Revision of the Infection Protection Act and the measures already adopted in spring 2020 by the Länder had refrained from making the measures restricting fundamental rights provided for in Paragraph 28(1) of the IfSG more specific.

The legislature's assessment of the standard may not constitute a breach of Article 80

(1) of the Basic Constitutional Law, but it is an indication that should not be neglected in the question,

whether the filling out of its power to issue ordinances by the Länder, which it has taken note of, still corresponds to its legislative will. Against the background of the doubts expressed in case law and literature, the legislative procedure now initiated can only be based on the following

be understood that, given the enormous scope of the

the non-implementation of safeguard measures due to a possible inadequate

legal basis, the safest way forward should be taken.

Against this background, the Senate sees no reason at present to depart from its

to move away from the view taken. In this respect, however, the limited period of validity of the Saxon Corona Protection Ordinance of only

one month. Should this be followed by comparable or more extensive interventions in fundamental rights, for which, in view of the current infection situation in

Saxony, the Senate will, however, have to re-evaluate whether the

moment of time requires a different assessment.

The fact that Article 12 (1) of the Basic Constitutional Law lists in the list contained in Article 28 (1) sentence 4 IfSG

Basic rights which are restricted by measures under Section 28 (1) sentences 1 and 2 IfSG are not mentioned does not lead to a violation of the requirement to cite in Article 19 (1) sentence 2 of the Basic Law. Insofar as a right guaranteed by the Basic Law

fundamental right can be restricted by law or by virtue of a law,

the law must then mention the fundamental right, specifying the article. The citation requirement applies only to fundamental rights which may be restricted by the legislator 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. The fundamental right of freedom of occupation (Article 12 (1) of the Basic Law) is referred to in Article 19

(1) sentence 2 of the Basic Law therefore does not apply (BVerfG, decision of 4 May 1983 - 1 BvL

46/80, 1 BvL 47/80 -, juris recital 25 ff; SächsOVG, decision of 29 April 2020, loc. cit.

marginal no. 22; Remmert, in: Maunz/Dürig, commentary on the Basic Law, as of 89th EL October

2019, Article 19 of the Basic Law marginal no. 54 m. w. N.).

2. there are no concerns about the formal legality of the Saxon Corona Protection Regulation. The citation requirement of Article 80 (1) sentence 3 of the Basic Law, Article 75

Paragraph 1, sentence 3 of the SächsVerf was complied with, as shown in its preamble. It was duly promulgated in the Sächsisches Gesetz- und Verordnungsblatt.

3 The provision in Paragraph 4(1)(19) of the SächsCoronaSchVO is also likely to prove to be materially lawful and is therefore not appropriate,

infringe the applicant's rights.

The substantive requirements of the authorization to issue a statutory instrument (§ 32 sentence 1 i.

in conjunction with section 28 (1) sentence 1 IfSG) are met, so that the Free State of Saxony is authorised,

to regulate the protective measures required under section 28(1) sentence 1 IfSG. As such, the ordered closure of establishments in the field of bodyrelated services proves to be proportionate and also in the light of the protection measures imposed by

(Article 12 (1) GG, Article 3 (1) GG) as justified.

3.1 According to Article 32 sentence 1 IfSG, the Länder governments may, under the conditions

which are decisive for measures in accordance with §§ 28 to 31 IfSG, by means of ordinances, corresponding regulations and prohibitions to combat communicable diseases

adopted.

3.1.1 The requirements of section 28 subsection (1) sentence 1 IfSG are met (for details see also NdsOVG, resolution of 29 October 2020 - 13 MN 393/20 -, juris marg. no. 41 et seq.

If sick persons, suspected sick persons, suspected infectious diseases or dropouts

it is established or appears that a deceased person is ill, suspected of being ill or

the competent authority shall take the necessary steps to ensure that the person concerned is in a position to

necessary protective measures, in particular those referred to in §§ 29 to 31 IfSG, to the extent and for as long as necessary to prevent the spread of communicable diseases; it may in particular oblige persons to

not to leave, or only to leave under certain conditions, or to be removed by it

certain places or public places not or only under certain conditions

enter.

(a) For the coronavirus SARS-CoV-2 (Severe acute respiratory syndrome coronavirus

type 2) is a communicable disease within the meaning of § 2 No. 3 IfSG.

The disease caused by the coronavirus SARS-CoV-2 manifests itself as

Infection of the respiratory tract with the leading symptoms of fever and cough. The course is mild in 81% of patients, severe in 14% and critical in 5% of patients

sick. For admission to the intensive care unit, dyspnoea with increased

Respiratory frequency (> 30/min), with hypoxaemia being the main symptom. Possible

Forms of progression include the development of acute respiratory distress syndrome (ARDS) and, more rarely to date, bacterial coinfection with septic shock. Other complications described are

rhythm disturbances, myocardial damage and the occurrence of a

acute kidney failure (for more details on the clinical picture, see also further evidence: Kluge/Janssens/Welten/Weber-Carstens/Marx/Karagiannidis, recommendations

on the intensive medical therapy of patients with COVID-19, in: InFO Haematology + Oncology 2020, p. 17, published at: https://link.springer.com/article/

10,1007/s15004-020-8072-x, as of 20 April 2020 and Robert Koch Institute, SARSCoV-2 Coronavirus Disease Profile 2019 [COVID-19], published at:

https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Steckbrief.html,

As of 30 October 2020).

Although severe courses also occur in people without previous illness and also

have been observed in younger patients, older people (with a steadily increasing risk of a severe course from around 50 to 60 years of age), men, smokers

(with weak evidence), severely obese people, people with certain pre-existing conditions of the cardiovascular system (e.g. coronary heart disease and high blood pressure) and the lungs (e.g. COPD) as well as patients with chronic kidney and

Liver diseases, with diabetes mellitus (diabetes), with a cancerous disease or with a weakened immune system (e.g. due to a disease associated with

immunodeficiency, or by taking medication that reduces the

weaken immune defences, such as cortisone) an increased risk of severe courses of disease. A vaccination or specific medication is not currently available.

The disease is very infectious. The incubation period averages five to six

days with a span of one to fourteen days. The proportion of infected persons who actually fall ill (manifestation index) is up to 85%. The exact period during which contagiousness exists is not yet clearly defined. As

It is certain that the ability to contract the disease is reduced in the period around the onset of symptoms on

and that a significant proportion of infections occur before the onset of

first clinical symptoms. The main transmission pathway for SARS-CoV-2 is

the respiratory absorption of virus-containing particles that are produced when breathing, coughing, speaking, singing and sneezing. Smaller aerosols produced in this way can also

float in the air for long periods of time and spread in closed rooms.

In principle, the probability of exposure to infectious particles is increased within a radius of 1-2 m around an infected person. With longer

Staying in small, poorly ventilated or unventilated rooms can increase the probability of transmission by aerosols, but also over a longer distance.

than 1.5 m, especially if an infectious person has a particularly high

emits aerosols, stays in the room for long periods and exposed persons inhale particularly deeply or frequently. Contact transmission cannot be ruled out either (cf. the above in detail and with further evidence: Robert Koch Institute, SARS-CoV-2 Profile of coronavirus disease-2019 [COVID-19] loc. cit.)

b) Numerous patients, suspects of disease or infection or

Separators (cf. the definitions in § 2 no. 3 ff. IfSG) within the meaning of § 28

(1) sentence 1 IfSG. The worldwide spread of the diseases caused by the coronavirus

SARS-CoV-2 as a pathogenic agent was adopted on 11 March 2020

declared a pandemic by the WHO. Worldwide, more than 50,200,000 people are currently infected with the pathogen and more than 1,254,000 people have died in connection with the disease (cf. WHO, Coronavirus disease [COVID-19] Pandemic, published at: www.who.int/emergencies/diseases/novelcoronavirus-2019, as of 10 November 2020).

According to the Robert Koch Institute, there are currently approx. 246,000

People infected. More than 11,500 people have died in connection with the disease (Daily situation report of the RKI on coronavirus disease-2019

COVID-19], as of 10 November 2019, p. 1, published at:

https://www.rki.de/DE/Content/InfAZ/N/Neuartiges_Coronavirus/Situationsberichte/

Nov_2020/2020-11-10-de.pdf?__blob=publicationFile). In Saxony there are currently around

13,000 people infected and 408 people died as a result of the disease

(https://www.coronavirus.sachsen.de/infektions-faelle-in-sachsen-4151.html, booth:

11 November 2020). In the past seven days, 168 people per 100,000 inhabitants have been infected. In some districts of Saxony, however, this incidence value is significantly higher. In the district of Bautzen, for example, it amounts to

321.3 people per 100,000 inhabitants. This puts the district of Bautzen in third place nationwide (Daily situation report of the RKI on coronavirus disease-2019

COVID-19] loc. cit. p. 3, whereby the RKI assumes an incidence of only 316.9). At present, 1,278 people suffering from COVID-19 in Saxony are in

in-patient treatment, of which 266 persons receive intensive medical care

need (https://www.coronavirus.sachsen.de/infektionsfaelle-in-sachsen-4151.html,

Status: 5 November 2020). On 20 October, 314 patients were still undergoing inpatient treatment and 45 of these were receiving intensive care

(https://www.mdr.de/sachsen/corona-virus-sachsen-ticker-dienstag-zwanzigster-oktober100.html).

In its risk assessment of 26 October 2020 (https://www.rki.de/

DE/Content/InfAZ/N/Neuartiges_Coronavirus/Risikobewertung.html), the Robert Koch Institute assumes that a very dynamic

and serious situation exists. In this context, an increasing proportion of

of the cases the source of infection is unknown. The number of patients who have to be treated in an intensive care unit has increased by more than

doubled. Moreover, there would still be no approved vaccines. The therapy

severe diseases is complex and protracted. It therefore continues to regard the risk to the health of the population in Germany as high,

for risk groups as very high. In the vast majority of cases, the

Mild disease. The probability of serious and even fatal disease progression increases with age and existing pre-existing conditions. It

However, it can also occur without known pre-existing conditions and in young people with severe or even life-threatening disease progressions. Long-term consequences, also

after slight developments, cannot yet be estimated.

In Germany, the assessment of the Robert Koch Institute is based on a

importance. According to § 4 (1) sentence 1 IfSG, this is the national authority for the prevention of communicable diseases and for early detection and prevention of

the spread of infections. In accordance with § 4 para. 2 no. 1 IfSG, it prepares the following in consultation with the competent federal authorities for specialist groups as a measure

of preventive health protection Guidelines, recommendations, leaflets and

other information for the prevention, detection and avoidance of the further spread of communicable diseases and, pursuant to § 4 para. 2 no. 3c IfSG, provides it to

Ministry of State for Social Affairs and Social Cohesion as the supreme

State Health Authority in the Free State of Saxony.

3.1.2 As a consequence of the acceptance of the requirements of § 28 (1) sentence 1 IfSG, it is that

the competent authorities are obliged to act, which is already apparent from the

fundamental duties of protection under Article 2.2 sentence 1 of the Basic Law (BVerfG, Beschl.

of 13 May 2020 - 1 BvR 1021/20 -, jurisprudence para. 8; of 12 May 2020 - 1 BvR 1027/20 -, jurisprudence para. 6, and of 1 May 2020 - 1 BvR 1003/20 -, jurisprudence para. 7). The authority has therefore

to take the necessary protective measures to the extent and for the duration necessary to prevent the transmission of the disease. In this context, the authorities have a scope for assessment, evaluation and design (BVerfG, decision of 12 May

2020 loc. cit. recital 6 f.; SächsOVG, decision of 29 April 2020 - 3 B 144/20 -, juris recital 6 f.

61), which is limited by the necessity of the measure in the individual case

(OVG Berlin-Brandenburg, decision of 4 November 2020 - OVG 11 S 94/20 -, juris

recital 28 m. w. N.). If the needs for freedom and protection of the various holders of fundamental rights point in different directions, the legislator and also the

according to the established case law of the Federal Constitutional Court, the executive body authorised by it to enact regulations is constitutionally granted a margin of manoeuvre for the

Compensation for these conflicting fundamental rights. Moreover, this scope for assessment also exists in fact due to the ongoing discourse in the scientific field (BVerfG, decision of 13 May 2020 -

1 BvR 1021/20 -, juris para. 10). That on the basis of the general clause in § 28

(1) sentence 1 IfSG, plant closures may also be considered in principle,

has already been explained (see above under I.1). The decision, in the sense of a so-called

"Lockdown light" only certain specific areas with a particular risk of infection

or non-prioritised areas of life and economic activity and to transfer them to other areas of greater importance to the general public, such as schools,

the economy, the practice of religion or the exercise of the right of assembly

To tolerate contacts under special hygiene precautions is not fundamentally objectionable against the background of the authorities' scope for evaluation. Although

this room for manoeuvre may diminish over time, for example because of particularly heavy burdens on fundamental rights and the possibility of increasing knowledge,

but the legislator has already taken this into account by limiting the measure to one month from the outset in order to then review its necessity on the basis of the then current state of knowledge (cf. BVerfG, Beschl. v

13 May 2020, loc. cit.)

The Saxon Corona Protection Ordinance of 30 October 2020 contains the

Consultation of the Minister-Presidents with the Federal Chancellor on the concept of measures agreed on 28 October 2020 (https://www.bundesregierung.de/resource/blob/

997532/1805024/5353edede6c0125ebe5b5166504dfd79/2020-10-28-mpk-beschlusscorona-data.pdf?download=1) (https://www.coronavirus.sachsen.de/ amtliche-bekanntmachungen.html). According to this, "in order to avoid an acute national

health emergency (...) required, through a significant reduction in contacts

to halt the spread of infection among the population as a whole and to reduce the number of

reduce new infections to the traceable level of less than 50 new infections per 100,000 inhabitants in one week". For "without such restrictions, the further exponential growth in the number of infected persons would inevitably lead to an overtaxing of the health care system within a few weeks

and the number of serious courses of action and deaths would increase significantly". In a first complex, the concept provides for the exclusion or a significant reduction of personal contacts in areas that are not classified as social priorities through normative restrictions and behavioural appeals.

areas such as private meetings, leisure, tourism, entertainment, catering and

body care. To this end, financial aid is promised in return for those affected in their employment opportunities. In a second

The required protective measures and hygiene concepts for the areas designated as

areas such as trade, schools, day-care centres or companies which are given priority by society and are therefore excluded from closure

and will also try to avoid personal contact there as far as possible te. In a third area, the concept includes special protection for vulnerable groups and strengthening the capacity of hospitals

before. A core element of the measures adopted should therefore be a significant reduction in contact among citizens in order to break chains of infection. This corresponds to

also the current recommendation of the Robert Koch Institute, which urgently appeals for the entire population to commit itself to infection prevention, e.g. by consistently adhering to distance and hygiene rules - even outdoors. According to the RKI, gatherings of people - especially indoors - should be as

avoided (Daily Coronavirus Disease Situation Report of the RKI-2019

COVID-19], op. cit. p. 2). A significant reduction in contact also corresponds to the

joint recommendation of the President of the German Research Foundation

and the presidents of the Fraunhofer-Gesellschaft, the Helmholtz Association, the

Leibniz Association, the Max Planck Society and the National Academy

of the sciences Leopoldina (https://www.leopoldina.org/uploads/

tx_leopublication/2020_Common_Declaration_of_Coronavirus_Pandemic.pdf).

Against this background, this is not an arbitrary, but

a decision to reduce certain sectors of life and the economy on objective grounds in order to keep other sectors, which are understandably given greater weight, going. The Senate is also

aware that other measures to deal with the current pandemic situation

are recommended. In their joint position paper on the COVID 19 pandemic of 4 November 2020 (published in German), the National Association of Statutory Health Insurance Physicians and the virologists Prof. Hendrik Streeck and Prof. Jonas Schmidt-Chanasit recommend

at: https://www.kbv.de/media/sp/KBV-Positionspapier_Wissenschaft_Aerzteschaft

COVID-19.pdf), a different approach to the so-called "lockdown

light" is carried out. For example, resources should be concentrated on the protection of population groups at high risk of serious disease

will be. According to the virologist Sandra Ciesek, the following belong in Germany

26.4% of the population to the risk group (https://www.ndr.de/nachrichten

/info/Corona-Podcast-Man-not-all-risk-patient-way-lock, coronavirusupdate 130.html). Other estimates even assume that, due to their age alone, thirty to forty percent of the population belongs to the risk group

belong to (https://www.aerzteblatt.de/nachrichten/117985/Spahn-sichert-Gesundheitswesen-volle-Unterstuetzung-zu). However, given the scale of this support, it is at least

it is not evident that the efforts already made to achieve the special

protection of vulnerable groups, a purely risk group-based protection could be pursued with some prospect of success, and that this could be extended to the entire population

could also be achieved with less drastic measures. For the rest

the legislature is not constitutionally limited to the

to protect people at risk to their health and life solely by restricting their own freedom Rather, the state may make regulations,

which will also help the presumably healthier and less vulnerable people in some

scope of restrictions on freedom, if this is precisely what is required to protect the more vulnerable people who would otherwise have to remain completely outside the

If we had to withdraw from life in the Community, a certain degree of participation in society and freedom could be secured. In this respect, the legislator has a margin of assessment (BVerfG, decision of 13 May 2020 - 1 BvR

1021/20 -, juris para. 8 et seq.), which is not exceeded here.

That the above actual assessment of the current pandemic situation in the

Federal Republic and specifically the Free State of Saxony, on which the Regulation is based,

leaves the actual scope for assessment of the legislator, claims

the applicant, but does not set out this in a comprehensible manner. In the light of the foregoing, the considerations and conclusions it puts forward concerning the existence of a significantly lower risk situation contradict the findings and

Assessments by the Robert Koch Institute and other scientists. From those

However, in view of the inconsistent expert assessment of many aspects of the pandemic, the legislator was allowed to be guided in its assessment of the situation by its own prerogatives in the light of scientific knowledge and assessments.

Whether the legislator should be held responsible for failures in clarifying the means of spread of the pandemic

and infectious environments, as the applicant submits, is irrelevant to the decision. Even if that were to be assumed, it would not

have the consequence that infection protection measures have not been taken at all on the scant information available since the beginning of the pandemic

and the infection control authorities would be required to follow up the event

to run its course (NdsOVG, Decision of 6 November 2020 - 13 MN 433/20 -,

recital 50 et seq. juris). Such an understanding of norms would not be compatible with the fundamental rights protection obligations under Article 2.2 sentence 1 of the Basic Law.

It also corresponds to the prevailing opinion that § 28.1 IfSG also requires the adoption of a

of measures against so-called "non-disturbers", as the applicant

with the nail and beauty salon it operates, is applicable

(SächsOVG, Decision of 29 April 2020 - 3 B 144/20 -, juris with further reference).

3.2 The closure of service companies close to the body as a component of the regulatory concept just outlined, which is being challenged in the present case, is also proving

against this background, summary testing is not considered an a priori unsuitable or unnecessary means of reducing further cases of infection. Also a

There is no obvious breach of the principle of equality under Article 3(1) of the Basic Law

(see also OVG Berlin-Brandenburg, decision of 4 November 2020, recital 37 ff. in

reference to tattoo studios).

According to the principle of proportionality, restrictions on the freedom to exercise a profession are compatible with Article 12(1) of the Basic Law only if they are justified by sufficient grounds of

the general good, if the means chosen to achieve the objective of

are appropriate and also necessary for the purpose pursued and if, in an overall weighing of the gravity of the interference and the weight of the reasons justifying it, the limit of reasonableness (proportionality in the strict sense)

is still maintained (st. Rspr., cf. BVerfG, decision of 14 January 2015 - 1 BvR 931/12

-, jurisprudence paras 53 et seq.; decision of 11 February 1992 - 1 BvR 1531/90 -, jurisprudence paras 56). A

Law is suitable if it can be used to promote the desired success.

It is necessary if the legislator does not have another, equally effective, but

fundamental right could have chosen a less restrictive or non-restrictive means. At

the assessment of suitability and necessity, the legislator has a further

scope for assessment (prerogatives of assessment). As a result of this scope for assessment, measures which the legislature considers necessary to protect an important Community asset, such as the prevention of dangers, can only be objected to constitutionally if, according to the facts known to the legislature

and in the light of the experience gained so far, it can be concluded that restrictions which may be considered as alternatives are equally effective However, the burden on those affected is less (st. Rspr., cf. BVerfG, decision of 26.

March 2007 - 1 BvR 2228/02 -, juris recital 42 m. w. N.).

The general principle of equality under Article 3 (1) of the Basic Law requires the legislature to treat essentially equal things equally and essentially unequal things unequally (cf.

BVerfG, decision of 7 February 2012 - 1 BvL 14/07 -, juris para. 40; decision of 15 July

1998 - 1 BvR 1554/89 and others -, juris recital 63). These are not all differentiations

but they must be justified by objective reasons appropriate to the objective of differentiation and the extent of the difference in treatment. Depending on

The subject matter and differentiating features of the regulations set the limits for

Standardisation from a mere prohibition of arbitrariness to a strict commitment to proportionality requirements. In this respect, a stepless constitutional review standard based on the principle of proportionality applies, the content and

Limits cannot be determined in the abstract, but only according to the different subject and regulatory areas concerned (cf. BVerfG, Beschl. v. 18.

July 2012 - 1 BvL 16/11 -, juris nr. 30; Decision of 21 June 2011 - 1 BvR 2035/07 - juris nr. 65; Decision of 21 July 2010 - 1 BvR 611/07 and others -, juris nr. 79). It follows from this,

that the limits for the infection protection authority resulting from the general principle of equality are less strict in the case of regulations of a dynamic infection event

are strict (cf. OVG Berlin-Brandenburg, decision of 17 April 2020 - 11 S 22/20 -,

juris recital 25; SächsOVG, decision of 29 April 2020 (loc. cit. recital 49). Also a

strict adherence to the principle of internal consistency (cf.

OVG Hamburg, decision of 26 March 2020 - 5 Bs 48/20 -, juris para. 13).

However, the objective justification of the measures ordered in the Saxon Corona Protection Ordinance cannot be assessed solely on the basis of the degree of risk of the activity concerned under infection protection law. Conflicting fundamental rights positions must be considered in their interaction and must be assessed in accordance with the principle

the practical concordance in such a way that it is balanced for all parties involved

as far as possible (BVerfG, decision of 30 January 2020 - 2 BvR

1005/18 -, jurisprudence para. 34, and of 6 November 2019 - 1 BvR 16/13 -, jurisprudence para. 76 m. w.

N.). Therefore, all other relevant interests must also be taken into account, such as

the economic and existential impact of the prohibitions and restrictions on the companies and citizens concerned, but also public interests in the unrestricted continuation of certain activities and areas.

On the basis of these standards, the applicant must comply with the requirements set out in § 4 (1)

No. 19 of the Saxon CoronaSchVO ordered the closure of her nail and cosmetics studio

accept. The applicant is not affected by the intervention in

their fundamental right to freedom of occupation (Article 12 (1) GG) or in Article 3 (1) GG

(general principle of equality). The measures are appropriate, necessary and

proportionate in the strict sense. This applies both to the intensity of the

fundamental rights as well as in terms of time.

3.2.1 The closures ordered in § 4 (1) No. 19 of the Saxon CoronaSchVO are

is not arbitrary, but is based on objective grounds as a whole. The measures pursue the legitimate objective of preventing the further spread of the virus

SARS-CoV-2 by reducing physical-social contact with others

people as members of their own household to an absolute minimum

and maintaining the necessary minimum distance from other persons (§ 1 para. 1 SächsCoronaSchVO).

The arranged closures are also suitable for preventing contact between people to

to prevent further infections with the highly infectious SARS-CoV-2

and thus maintain the efficiency of the health system

and in particular hospitals for the treatment of the most seriously and seriously ill

people (Article 2 (2) sentence 1 GG). Since the area of bodily

services is that at least two people are interested in a

the prohibition of such activities is an appropriate order to avoid contact. In addition, it also prevents contact opportunities which, on the way to the applicant's business

can take place.

As there is no less stressful intervention with the same suitability, the arranged

Closure also required. Hygienic measures such as mouth-nose covering

contribute to reducing the range of aerosol emissions, but do not fundamentally prevent them. Especially during longer stays in closed Therefore, infection can also occur when wearing a mouth-nose-cover.

In so far as the applicant points out that it has not been established that the virus has so far spread in connection with cosmetics and nail care, that does not preclude the need for the measure. It is

does not prove the contrary either, that is to say that there was no transfer of the

virus in connection with the above activities. Most recently

only about one fifth of the total number of reported COVID-19 cases

be assigned to a specific outbreak event (daily management report of

RKI on Coronavisus disease-2019, op. cit. p. 10). Also the extent of infection

shows that the virus has now penetrated the population to a point where

individual drivers of the infection can still be determined to a significant extent

could. Moreover, the plant closures also serve to prevent

Contacts during the visit of these offers, on which hygiene measures within the business premises have no influence.

For epidemiological reasons, the closures ordered are also proportionate in the strict sense.

In this respect, the Senate does not fail to recognise that the ordered closure of the

service companies seriously encroaches on the freedom of the tradesmen concerned to exercise their profession, which is protected by Article 12 (1) of the Basic Law. In the

In assessing the intensity of this intervention, account must also be taken of the fact that

these farms usually already benefit from the measures of the first lockdown in the

spring 2020, even though government support and funding may have

Relief measures tried to mitigate this.

On the other hand, it must also be taken into account that in the case of a

the unhindered progress of the infection, the protection afforded by Article 2 (2) sentence 1 of the Basic Law

The right to life and physical integrity, which the State is obliged to protect, would be seriously compromised. Although at present there are still

sufficient hospital and intensive care beds for the treatment of Covid-19- However, it is foreseeable that if the pandemic continues unabated, the capacity limit will be reached within a few weeks.

In this context, it must first be taken into account that the newly infected will only be able to

The patients have to come to the hospital after a delay of about fourteen days and may require intensive medical treatment. Therefore the necessity of individual

measures also from a correspondingly prognostic perspective.

There are currently around 1,700 intensive care beds in Saxony (https://www.

intensivregister.de/#/intensivregisterStand: 10 November 2020). Of these, currently

about 400 intensive care beds are still available. On the assumption that in Saxony alone

in the past two weeks at least 7,085 people (active infections on

23 October 2020: 4275 and on 6 November 2020: 11,360; cf. graph at

https://www.coronavirus.sachsen.de/infektionsfaelle-in-sachsen-4151.html) with the

coronavirus, a further 141 people are expected to be infected with the virus.

need an intensive care bed in the next few days, as the proportion of patients requiring intensive care

patients account for about 2% of the total number of people infected (https://www.aerzteblatt.

en/archive/216577/Intensive beds - the capacity is dwindling). The proportion of free

Intensive care beds will thus be reduced to 259 beds. Statistically speaking, only 12,950 people will be allowed to become newly infected with the virus,

so that this bed capacity is sufficient. Even if the infection level (7000 infected

in a fortnight), this limit would remain constant for the next fourteen

days, so that - including the delay until hospital treatment becomes necessary - after four weeks at the latest it can be expected that

the capacity limit of intensive care beds has been reached. Even if, despite the lengthy duration of intensive care treatment of many COVID-19 patients, it is taken into account that some patients will also be discharged from intensive care during this time or even die, these figures illustrate the dramatic nature of the situation. The fact that the intensive care register, in the sense of a cloverleaf principle

redistribution to less contaminated regions does not lead to a reduction in the number of infections, given the fact that infection rates are rising rapidly nationwide

different assessment of the situation. On the other hand, it must also be taken into account that such an extensive occurrence of infection will also lead to increased infection of clinical staff, so that in future not all bed capacities can be used, especially since intensive care of patients suffering from COVID-19 is particularly costly

is (https://www.aerzteblatt.de/archiv/216577/Intensivbetten-Die-Kapazitaetenschwinden). Therefore the available emergency reserve of

698 intensive care beds that could be set up within seven days

(https://www.intensivregister.de/#/intensivregister, as of 10 November 2020) none

fundamentally different assessment of the situation. It is therefore foreseeable that

Failure to achieve a significant reduction in infection rates in the very near future

to a health emergency with the very serious risk of not

more every person can receive optimal medical care, will come. At

In the worst case, triage will even have to be carried out. That an extensive

action by the State against this background is therefore a matter of urgency.

As there is still no vaccination or effective medication for

treatment is available, the only countermeasure is

the prevention of infections. The assessment of the legislator,

that under the current conditions of a rapid increase in the number of infections, this can be achieved with sufficient reliability and effectiveness, in particular

is that people are reducing their contacts is not objectionable. The same applies

for his assessment, given the dramatic nature of the situation and the need to

cases of infection by a multiple, these could only be extensive contact restrictions, which the Saxon Corona Protection Ordinance

seeks to achieve various individual measures as a whole. Since it is therefore

As a whole package of measures, it does not matter whether each individual measure makes a particularly large or small contribution.

In fact, it is already a question of reducing each individual contact that is not absolutely necessary. The only measures which are not necessary are those which do not reduce contacts from the outset. This is the case with

However, as stated above, the provision of body related services is not the case.

Against that background, it may be true that the applicant pursues high standards of hygiene, but even those standards cannot, because of the extremely easy transmissibility of the virus, prevent infection in connection with her

activities to be completely excluded. Regardless of these, the life and health of people must be taken into account

In the light of these considerations, the legislator was also allowed to consider the economic consequences of failing to bring the number of newly infected persons back within a tolerable range. In that case, as in many other European countries, a complete lockdown would have serious consequences

in the field of education and the economy is inevitable. Massive damage to the economy would be expected. Because of the expected job losses of many people, consumption would collapse and a downward spiral

in motion. Moreover, restrictive measures must be applied for a longer period of time

the later they are taken as part of the pandemic response.

This being said, the ordered closure is also proportionate in the strict sense of the term, as it is now limited to only four weeks, and above all because substantial state compensation for the loss of turnover has been announced for the affected companies. According to No 11 of the decision of the Federal Chancellor and the Heads of Government of

Länder of 28 October 2020 (loc. cit.), the Federal Government is to provide extraordinary economic assistance to companies with up to 50 employees in

75 per cent of the corresponding turnover in the same month of the previous year or

of the average weekly turnover in November 2019, in the case of larger companies, taking into account further requirements, will be paid out unbureaucratically. The applicant has not provided any concrete indications that the above-mentioned decision will not be implemented from the announcement made in this regard; nor are there any other apparent indications. In addition, support payments

from the Federal Government's "Überbrückungshilfe II" programme (https://www.ueber

de/UBH/Navigation/DE/Home/home.html)

and already applied for at the Sächsische Aufbaubank

(https://www.sab.sachsen.de/f%C3%B6rderprogramme/sieben%C3%B6tigen-hilfeum-ihr-unternehmen-oder-infrastruktur-wieder-aufzubauen/%C3%BCberbr%C3%

Cacking aid-f%C3%BCr-small and medium-sized%C3%A4ndish-company.jsp).

Finally, in view of the financial losses, the following must also be taken into account

that a proportion of potential customers would probably not use the service in question anyway in order to avoid an avoidable risk of infection (see also OVG Berlin-Brandenburg, decision of 4 November 2020, recital 51).

Even the applicant's objection that a milder remedy would be to create additional capacities in the health care system does not call into question the necessity of the plant closures as measures to restrict contacts. The State

levels have indeed made considerable efforts to bring the health sector, and hospitals in particular, up to the

prepare for the second wave of infections, build capacity for treatment and ensure effective distribution of patients when needed.

Moreover, it is clear from the above that, if

the rate of spread of the pandemic in October 2020 in the Federal Republic of Germany and in particular in the Free State of Saxony continues to exceed a

The Commission considers that, if this situation were to continue unchecked for a longer period of time, it would objectively not be possible under any circumstances to create sufficient material and personnel capacities for the number of hospitalisations and intensive medical care that would then be necessary, as forecast, even in an efficient industrialised country such as the Federal Republic of Germany. However, in so far as the applicant

If the state authorities fail to do so, this would, in view of the fundamental rights to the protection of life and limb under Article 2

(2) sentence 1 of the Basic Law, this would in any case not lead to the legislature

would now have to renounce fundamental rights interventions to contain the pandemic

and let things take their course.

3.2.2 The fact that hairdressing salons under Section 4 (1) No. 19 of the Saxon CoronaSchV

are excluded from the closure does not constitute a violation of the principle of equal treatment under Article 3 (1) of the Basic Law (cf. OVG Berlin-Brandenburg, loc. cit.

recital 52 et seq.) The different treatment of the two trades - the existence of a

is in any event justified by objective reasons which are also proportionate to the aim and extent of the difference in treatment.

One objective reason for differentiation lies in the fact that a visit to the hairdresser's

serves as a rule of personal hygiene. In particular, the older population It is also important to think of a woman who is no longer able to wash her hair and do her hair independently, sometimes because of physical ailments. Irrespective of this, however, visits to the hairdresser's cannot be postponed for all sections of the population because hair grows and requires regular care. On the other hand, neither cosmetics nor nail care are considered to require any further care beyond that specified in § 4 para. 1 no. 19

SächsCoronaSchVO does not cover medically necessary treatments

This is an urgent need that cannot be met by the company itself on a regular basis.

Against this background, the assessment of the standard-setting body is that the visit to the hairdresser

part of the basic services for the population, is unobjectionable, and represents

constitutes a sufficient objective reason for the difference in treatment. That

Hairdressers in principle also carry out other activities such as dyeing hair or

Hair extensions can be against this background. It acts

These are additional services beyond regular hairdressing, which do not call into question the relevance of the universal service. It appears before

the background to the requirement of clarity and certainty of standards

For reasons of equality, it is necessary for the legislator to provide for the

the permitted services specifically specify which services are provided

be allowed. This would require a regular, in-depth look at the information provided by the individual

services offered to businesses, which is necessary given the complexity of the

of the standardisation does not appear affordable and also not necessary. Moreover, it would

for the citizen as a user of the law, it is also increasingly opaque as to which services are permitted in detail. This applies in particular with regard to the limited period of validity of the measures ordered.

II. also with regard to the challenged provision on contact restriction (§ 2 (1)

SächsCoronaSchVO), the application for a review of the legislation has no prospect of success.

1 With regard to the existence of a sufficiently specific power to issue ordinances, the conditions for which have been met, the following applies to contact restrictions

the above under no. B no. 1 and 3.1 accordingly.

2. the legislator has also made lawful use of the discretionary powers it has in the regulation with regard to contact restrictions for private meetings. In particular, the scheme satisfies the

proportionality and the principle of equal treatment.

As already stated, there is nothing to criticise the fact that the legislature did not

the current conditions of a very rapidly worsening pandemic situation

as part of its concept of measures, far-reaching contact restrictions in

for a few weeks in areas that appear to be of secondary importance to society or are particularly prone to infection, in order to interrupt chains of infection to the necessary extent and with the necessary speed. Nor is it objectionable that the prescribing body should in this case allow private meetings to be held for non-prioritised and

are also assigned to areas particularly susceptible to infection and therefore they are kept there until

30 November 2020 the restrictions on the number of participants regulated in Section 2 (1) of the Saxon CoronaSchV - up to ten participants from up to two households or

up to five participants from more than two households. Because just

According to the findings of the Robert Koch Institute, private celebrations have

has recently proven to be one of the drivers of the pandemic (Daily Situation Report of the RKI on Coronavirus Disease 2019 [COVID-19] of

20 October 2020). Larger private meetings do not appear to be of urgent necessity either.

The reduction in the number of groups that meet in individual cases is evidently suitable for minimising the risk of infection (cf. the presentation at https://www.rki.de/SharedDocs/FAQ/NCOV2019/gesamt.html "Which

Advantage brings distance or the restriction of social contacts?"). Concrete scientific evidence of the exact number of regulated restrictions on participation is not required for this. In view of the transmission routes

of the corona virus, it is obvious that the more the risk of infection is reduced

the smaller the number of participants in meetings. Under these conditions, it is the prerogative of the legislator to make an arrangement which reconciles the concerns of infection protection law with the interests of citizens, which are also worthy of protection, in a minimum level of social contact with a

brings balance. There is no concern that the legislator would

set the number of possible participants from two households at ten, which also

with larger households a meeting is allowed. The further limitation of the number from participants to only five if more than two households are involved

also suitable here to contribute to the reduction of further infections in

because it reduces the risk of contagion being spread by meeting participants to a larger number of other households, where

then often the protection of other members of the household from subsequent infection

does not succeed.

A milder, equally suitable means of preventing infections compared to contact restriction is not discernible.

The restrictions on the organisation of private meetings are also

proportionate. To the statements under B. No. I No. 3.2.1 is followed in this respect by

referred to. The applicant may, to a minimum extent, continue to meet family members, friends and acquaintances and thus maintain their family relationships and other social contacts. Her interest in larger private gatherings

also during the foreseeable period from 2 to 30 November 2020

In the current situation, the public interest in a rapid and efficient

effectively effective health and infection protection.

Finally, there is also no unjustified equal treatment of family members with other participants in private meetings. There are no differences between the two groups either in terms of the infection risks of a meeting or in terms of the need for personal contact on a larger scale.

weight that unequal treatment should have seemed imperative to the legislator.

III The obligation to wear a mouth-nose cover under Paragraph 3(1)

SächsCoronaSchVO is likely to stand up to scrutiny in the standards review procedure.

The Senate has already assumed that the order to wear a

Oral and nasal covering in public places as a further protective measure to avoid transmission of coronavirus likely to be of higher priority

(SächsOVG, decision of 29 April 2020 - 3 B 143/20 -, juris). This

is in line with the unanimous case law of other higher courts (cf. NdsOVG, decision of 28 October 2020 - 13 MN 390/20 -, juris para. 13; OVG Schleswig-Holstein, decision of 15 October 2020 - 3 MR 43/20 -, juris para. 31; OVG NW,

Decision of 24 September 2020, juris para. 7; BayVGH, decision of 8 September 2020 -

20 NE 20.2001 -, juris para. 34). The Senate continues to adhere to this. It corresponds to

in particular the current state of scientific knowledge and

in particular the recommendations of the Robert Koch Institute that mouth-nose covers are suitable for reducing the risk of infection by third parties

(https://www.rki.de/SharedDocs/FAQ/NCOV2019/FAQ_Mund_Nasen_Schutz.html;

cf. the detailed presentation of the NdsOVG, decision of 14 August 2020 - 13 MN

300/20 -, juris recital 22). The objections raised by the applicant do not call into question the power of the legislature to challenge this dominant

to base its regulation on the state of scientific opinion. From a

The Senate also assumes that the measure is suitable in particular for Section 3 (1) No. 7 of the Saxon CoronaSchVO, which requires the wearing of a mouth-nose cover even in certain

outside areas. Because even outdoors, contact between people

are not free of infection risks if the minimum distance between them is not reached (cf. https://www.rki.de/SharedDocs/FAQ/NCOV2019/FAQ_Mund

Noses_Protection.html). The arrangement, in areas to be covered by a mouth-nose

The use of a protective clothing system that has been shown to be effective in those areas where this occurs can also help to reduce the incidence of infection.

Nor does the obligation to wear a mouth-nose cover interfere disproportionately with the applicant's rights. Sufficiently reliable findings

that the wearing of the mouth-nose-covering would be suitable for the purposes of Article 2

(2) sentence 1 of the Basic Law, there are currently no relevant general health risks (cf. OVG Schleswig-Holstein, decision of 28 August 2020 - 3 MR

37/20 -, juris recital 21; OVG NW, decision of 20 August 2020 - 13 B 1197/20.NE -, juris

para. 89 f.); the Senate has therefore taken such health risks into account in its consideration

not to be assumed. If there is any reason to fear specific infection risks from improper use of the mouth-nose covering, it is up to the applicant to follow the instructions for use and thus minimise the risks (cf. https://www.bfarm.de/SharedDocs

/Risk information/medical devices/DE/protective masks.html). Traceable

Evidence for the health risks it fears go beyond this does not name them in its application. After all this, the question of wearing

of a mouth-nose covering even after the extension of the areas for which wearing is ordered in § 3 para. 1 SächsCoronaSchVO, the

as a relatively minor and in the interest of reducing the risk of infection

Overall, the impairment is reasonable.

IV. Nor is it likely that the application for a review of standards will be successful

in so far as the applicant objects to the provisions on the collection of contact data in Paragraph 5(6) and (7) of the SächsCoronaSchVO

The Basic Data Protection Regulation applies with priority to the processing of personal data. It contains with Art. 6 para. 1 letter c and e DSGVO, it contains general clauses which permit the processing of personal data if the processing

is necessary to comply with a legal obligation to which the person responsible

(c) or to the extent necessary for the performance of a task

which is in the public interest or in the exercise of official authority,

assigned to the person responsible (letter e).

Article 6(2) DSGVO authorises the Member States to adopt more specific provisions

adapting the application of the provisions of the basic data protection regulation in

Reference to the processing for compliance with Article 6(1)(a) c and e DSGVO

by defining more precisely specific requirements for processing and other measures to ensure that processing is lawful and in accordance with

to ensure processing in good faith. Art. 6 para. 3 DSGVO

also provides that the legal basis for processing operations under

Article 6(1)(b) (c) and (e) shall be determined by Union law or by the law of

Member State to which the responsible person is subject. The purpose of the processing

must be laid down in this legal basis or, as regards processing under

Article 6(1)(e) of the DSGVO must be necessary for the performance of a task which

is in the public interest or in the exercise of official authority vested in

was transferred to those responsible. This legal basis may contain specific provisions to adapt the application of the provisions of the basic data protection regulation, including provisions on the general conditions for regulating the lawfulness of processing by the The data controller must be informed of the types of data being processed, the persons concerned, the bodies to which the personal data may be disclosed, the purposes for which the data may be disclosed, the purposes for which the data may be used and

how long they may be stored and what processing operations and -

procedures, including measures to ensure that the

processing carried out lawfully and in good faith. Union law or the law of the Member States must pursue an objective in the public interest and be proportionate to the legitimate aim pursued.

Section 5 (6) and (7) of the Saxon CoronaSchV are sector-specific national regulations of the Land legislator for the processing of personal data, which contain more specific provisions under Article 6 (2) and (3) of the DSGVO on the

Adaptation of the application of the provisions of the basic data protection regulation in

Reference to the processing for compliance with Article 6(1)(a) c and e DSGVO

included. In addition to the requirements of the basic data protection regulation

Section 5(6) and (7) of the Saxon CoronaSchV must also comply with the national constitutional requirements for legislation by regulation, because (-

and insofar as -) the national legislator in implementing and concretising the

data protection basic regulation allows freedom of design and the definition of the

concrete sector-specific regulations are not determined by Union law

(see BVerfG, Urt. v. 2 March 2010 - 1 BvR 256/08 -, BVerfGE 125, 260, margin no. 182;

BVerfG, Decision of 11 March 2020 - 2 BvL 5/17 -, BVerfGE 153, 310, marginal 65; see

also recital 41 of the basic data protection regulation). The rules

are subject to the requirements of Article 80 of the Basic Law and the fundamental right to informational self-determination. It is open to question whether contact data processing itself, irrespective of its regulation by Land regulation, could be directly based on Article 6(1)(d) of the DSGVO, which, according to recital 46 of the basic data protection regulation, permits data processing precisely for the monitoring of epidemics, but is intended to intervene only subordinate to other legal bases (cf. Paal/Pauly/Frenzel, 2nd ed. 2018, DSGVO, Article 6 margin no. 22). The subject of the review procedure is not the data processing measures per se, but their abstract and general regulation in a

State regulation. According to the basic data protection regulation, however, this must be measured, as explained, against the standards of Art. 6 (2) and (3) DSGVO for the creation of specific national provisions.

1) The question of whether the first sentence of Article 32 of the Regulation contains provisions on the collection of contact data

i. in conjunction with § 28 (1) IfSG a sufficient legal basis in parliament

is judged by the Senate to be open.

This question is controversial in case law. Insofar as the higher court

case law has so far dealt with this issue in summary proceedings, no

raised concerns. The basis for authorisation in § 32 sentence 1 in conjunction with § Section 28 (1)

IfSG is to satisfy the reservation of the Act as a parliamentary reservation (VGH BW, decision of 25 June 2020 - 1 S 1739/20 -, juris para. 72),

because it follows from the wording of the first sentence of Paragraph 28(1) of the IfSG that the term

"protective measures" is comprehensive and provides the infection control authority with a

wide range of suitable protective measures is opened up, which is limited by the necessity of the measure in individual cases (OVG Berlin-Brandenburg,

Decision of 27 May 2020 - OVG 11 S 43/20 -, juris para. 18 f.) and because the legislator

has itself expressly provided in § 28, Subsection 1, Sentence 1, Half-Sentence 2 IfSG that the competent authority, under the conditions of Half-Sentence 1, shall in particular

may oblige the holder to enter certain places or public places only under certain conditions (VGH BW, decision of 25 June 2020 - 1 S 1739/20

-, juris recital 72). The regulations on the traceability of chains of infection in

cases of coronavirus infection have been identified as protective measures within the meaning of

of section 28 (1) sentence 1 IfSG (OVG NW, resolution of 18 August 2020 - 13

B 847/20.NE -, recital 174 juris; Decision of 23 June 2020 - 13 B 695/20.NE -, juris recital

61). In contrast, the Saarland Constitutional Court assumes that

§ Section 32 sentence 1 in conjunction with § Sec. 28 (1) IfSG does not meet the requirements for an authorisation to issue ordinances for data protection encroachment regulations with the severity determined by it for the specific Saarland state law (SaarlVerfGH, decision of 28 August 2020 - Lv 15/20 -, juris). Although the regulation obliges the

It does not affect the fundamental right holder itself, but it affects the fundamental right to the protection of personal data in a way that amounts to a final interference. You

Moreover, there is a danger that movement and personality profiles of holders of fundamental rights could be drawn up without at the same time procedural rules being laid down to prevent abuse. Any interference with the fundamental right to the protection of personal data requires, as a rule, a formal investigation,

parliamentary authorisation to use the personal data to be collected as

such, the reason and specific purpose of the survey, the nature and duration of the

storage as well as their deletion is regulated in a clear and specific way and the principle of proportionality is respected. The IfSG contains no such authorisation. Only the power resulting from § 28, § 32 IfSG to "take the necessary protective measures" is - at any rate for the general-abstract encroachment on the law

on informational self-determination - too vague.

In view of this divergent case law, the question of whether the Regulation's authorisation to collect contact details is sufficiently precise cannot obviously be answered in either direction. In particular

the clarification must be reserved for a main proceedings, whether the necessary parliamentary provisions are not directly derived from the wording of the

the enabling rule, but by means of general rules of interpretation, in particular

from the purpose, the context and the history of the law, which meets the constitutional requirements of Article 80(1)

sentence 2 of the Basic Law (cf. BVerfG, decision of 14 March 1989 - 1 BvR 1033/82 -,

juris recital 58; decision of 28 April 2009 - 1 BvR 224/07 -, juris recital 14). According to this, here would be

for the interpretation of the regulation authorization § 32 sentence 1 i. in conjunction with section 28 (1) IfSG

to also consider whether, in any case, the settlement with section 5 (2) sentence 1 no. 2 c, d and e

IfSG is sufficiently clear in the standards and clearly shows that the legislator

as a protective measure in the event of epidemic situations of national importance, such as the

Bundestag for the corona epidemic (BT-PlPr 19/154, p. 19169C) also

considers it permissible, in order to clarify possible chains of infection, to require private individuals to collect and transmit data for a separate area where they enable or induce people to meet, from which

whether and how people come together and the contact details of these people.

2. the factual requirements of the authorisation to regulate protective measures by ordinance are fulfilled in the present case. Reference is made to the comments under B. No. I No. 3.1 is referred to.

3 The provisions of Section 5 (6) and (7) of the Saxon CoronaSchV satisfy the specific data protection requirements for interventions in the

Right to informational self-determination.

As far as the legislative competence of the state is concerned, they define in concrete and normative terms who is to collect and store the data (organisers and operators

of facilities, offers and operations not prohibited under Section 4(1) of the Saxon CoronaSchV, with the exception of the area of wholesale and retail shops, shops and sales stands and the delivery and collection of take-away food and beverages), for which reason data must be collected

(the visit of these facilities, offers and businesses), which data to collect,

and, where appropriate, to be communicated to the competent authorities (name, telephone number or e-mail address and postcode of visitors and the period of the visit), how long the data must be stored (for one month after the end of the visit) and that they must subsequently be deleted, the purpose for which the data must be deleted

(for the tracing of infections), who is responsible for the transmission of these

data (the authorities responsible for infection control), the purpose for which this transmission may be requested (to track infections) and how misuse of the data is prevented (by order of the

protection against inspection by third parties and by prohibition of processing for other purposes, unless otherwise provided for by federal law).

Possible changes in the use of the data, which result from federal law

standards, such as the access to such data by law enforcement authorities for the purposes of

prosecution, are not subject to the legislative competence of the state and are

therefore not the subject of the examination here. They must justify themselves independently by the yardstick that the corresponding data are newly processed according to constitutional standards.

may also be collected for the changed purpose with comparable serious investigative measures (BVerfG, decision of 18 December 2018 - 1

BvR 142/15 -, BVerfGE 150, 244, recitals 164 et seq.) The provisions of Article 5(6) and (7)

In this respect, the Saxon CoronaSchVO also satisfies the requirements of Article 6(2) and

3 DSGVO to adopt specific provisions to adapt the application of the

Provisions of the basic data protection regulation (including OVG NW, Beschl. v.

18 August 2020 - 13 B 847/20.NE -, juris marg. no. 174; VGH BW, decision of 25 June 2020 - 1 S 1739/20 -, juris recital 88 et seq.) In particular, the processing serves

of contact data with the infection control authorities of the fulfilment of a task which is in the public interest and is carried out by the infection control authorities in the exercise of official authority.

4) The collection and processing of contact data also complies with the principle of proportionality.

It is suitable and necessary to enable the tracing of contacts of Corona infected persons and thus make a significant contribution to the containment of

to help spread the corona virus by providing potentially relevant contact persons of the affected person during the previous

period for which a risk of infection must be assumed, easier

can be identified - even if they are not known to each other personally - and

subsequently quarantined and tested (temporarily) where necessary, or

can be sensitised at least with regard to possible infection,

so that further chains of infection can be interrupted (OVG NW, Beschl. v.

18 August 2020 - 13 B 847/20.NE -, juris marg. no. 174; VGH BW, decision of 18 August 2020 - 13 B 847/20.NE -, juris marg. no. 174; VGH BW, decision of 18 August 2020 - 13 B 847/20.NE -, juris marg. no. 174; VGH BW, decision of 18 August 2020

25 June 2020 - 1 S 1739/20 -, juris recital 78 et seq.)

Nor does the collection and processing of contact data inappropriately interfere with the

fundamental right to informational self-determination. The rules on transmission satisfy the requirement of proportionality in the strict sense if the purpose pursued and the expected achievement of the purpose are not disproportionate to the

severity of the intervention. The weight of the intervention is determined mainly by

the type, scope and conceivable use of the data and the risk of their misuse (BVerfG, decision of 27 May 2020 - 1 BvR 1873/13 -, juris para. 128).

Here it can be assumed that the intervention has considerable weight, because the legislator obliges private bodies to create a large number of data stocks on visitors which, although not isolated in themselves, nevertheless have a considerable impact when they are brought together by the authorities responsible under infection protection law.

scope can allow conclusions to be drawn about aspects that lead to a movement or

personality profile of the person concerned. However, in view of the a period limited to a few weeks, for each of which a request for the data collected to track infections may be considered

of data collection (shops as well as delivery and collection of take-away food and beverages) and even more so under the current conditions of complete closure of a large number of facilities and services, even if the data sets are merged with regard to

individual concerned neither fears a "transparent citizen" nor does it act

in view of the open collection of data, which the person concerned can also avoid by not visiting the facilities and services in question, there is a risk of mutual "spying" or "a total surveillance and police state".

The considerable knowledge of personal data that can be obtained from the infection protection authorities by merging the data files on individual data subjects is not disproportionate to the purpose pursued

and the expected achievement of the purpose. If, during the pandemic situation, parts

of the social and economic development based on personal contacts

In order to maintain the continuity of life, the possibility of retrospective contact tracing of infected persons is a key means of preventing outbreaks and infection chains of the frequently

to recognise mild or asymptomatic but nevertheless contagious diseases and to interrupt infection chains by means of quarantine measures.

This serves to protect life and limb of the population and to preserve the

efficiency of the German health care system and thus legal interests of

outstanding rank. Another, less burdensome form of contact tracing of infected persons in terms of data protection law than the disclosure of all personal

contacts or contact situations during the potentially infectious period

to the infection control authority is simply not possible. This revelation of one's own social life, which goes hand in hand with personal contacts

for a period limited to a few weeks, over which the information to be obtained from the compilation of the above-mentioned data sets will not be available

the seriousness of the problem is in proportion to the

the very important purpose of protecting the life and health of

Population.

Insofar as the applicant complains of a breach of the requirement to minimise data,

it does not provide any further explanation. Which of the data to be collected should not be necessary for contact tracing is not apparent in any other way either. Doubts may arise in this respect with regard to the visitor's postcode, which

may, however, also be relevant for identification purposes if e-mail or

phone number should be illegible.

V. With regard to the rules on the collection of contact details, in the absence of a clear forecast of the prospects of success

to decide by weighing up the consequences; this does not lead to a successful outcome of the application.

A non-enforcement of the objected regulations on the collection of contact data

would partially deprive the protection of outstanding public goods of a basis which far outweighs the data protection concerns at stake here. The collection of contact data as a basis for contact tracing contains an essential contribution to combating the spread of the pandemic and

to prevent significant risks to life, health and the environment

and freedom of all and the functioning of state and social institutions. It thus serves an overriding Community interest, over which

the applicant's interest in not collecting contact data, which may be unlawful, is withdrawn (SaarlVerfGH, Beschl. v.

28 August 2020 loc. cit.; BVerfG, decision of 7 July 2020 - 1 BvR 1187/20 -, juris

margin no. 7 f.; VGH BW, decision of 25 June 2020 - 1 S 1739/20 -, juris margin no. 94; OVG NW,

Decision of 23 June 2020 - 13 B 695/20.NE -, juris recital 116).

Moreover, the application would also otherwise be unfounded if the prospects of success of the application for review of the standards were to be regarded as open at the time of summary examination.

The weighing of consequences to be carried out in this case would be at the expense of the applicant according to the standards described above. The applicant is admittedly

seriously in their freedom of occupation protected by Article 12 (1) of the Basic Law, and

in their general freedom of action with regard to the organisation of private

On the other hand, while these interventions are brief in time and the special sacrifice made by the applicant with regard to her earning opportunities is affected by the announced

compensation payments largely compensated. This justifies their interests

behind the protection of the life and health of a large number of people (Art. 2

(Article 2 (2) sentence 1 of the Basic Law), which in view of the current incidence of infection

are at risk of being resigned.

The decision on costs follows from Paragraph 154(1) of the VwGO. The determination of the amount in dispute is based on Sections 53 (2) No. 2, 52 (2) GKG. Since the contested regulation was concluded with

which expires at the end of 30 November 2020, the content of the proposal aims at

anticipation of the main proceedings, so that a reduction in the amount in dispute for

the urgent procedure has not been initiated.

3, sentence 3 of the Basic Law (GKG)).