When the first Corona wave hit Germany in spring 2020, Bavaria’s Prime Minister Markus Söder (CSU) and his state government set particularly strict rules.

While the other federal states only introduced contact restrictions in public spaces, Bavaria went a step further and imposed a curfew: leaving your own home was only allowed for “essential reasons,” including going to work or to the doctor, shopping for groceries, and visiting a partner. “The police are required to check compliance of the population with the curfew,” said the Bavarian Corona Ordinance of March 31, 2020.

The 20th Senate of the Bavarian Administrative Court in Ansbach has now declared the relevant passages of the ordinance, which applied from April 1 to 19, 2020, retroactively to be unconstitutional and ineffective. 

The curfew was “basically suitable” to inhibit the transmission of the coronavirus. In its concrete form, however, it was “not a necessary measure”, according to the ruling. The curfew was therefore disproportionate. The “Münchner Merkur” reported first on the court decision.

Judge: Choose the milder remedy

The Higher Administrative Court’s decision contains a clear message to politicians: when selecting protective measures authorities must choose the one that puts the least burden on fundamental rights “from several equally suitable means”. 

“In the present case, a milder measure would be contact restrictions in public and private space, since these do not affect the movement of individuals in the public space,” said the judges.

Bavaria’s argument that the more restrictive restriction is always the “more appropriate” measure in comparison was not accepted by the judges: this statement is “incorrect” in its generality.

An appeal against the decision at the Federal Administrative Court is permitted, “because the legal matter is of fundamental importance”.