Judgement against German quarantine regulation: Arguments not only for water sports, but also for winter sports

Winter sports Austria Coronavirus: Long traffic jams at the entry to Austria in summer
Long traffic jams, caused by travel returnees from Croatia due to sudden travel warnings from Austria and threats of quarantine were the excitement of late summer. Now winter sportsmen from Germany (incidence 304.2) are to travel to Austria (incidence 843.1). A German court ruling could provide surprising support for Austrian winter sports tourism.

The topic of travel in times of the Corona pandemic has become a bone of contention for some European countries in recent months: In the summer Austria’s government punished travel returnees from Croatia with following quarantine, now Germany wants to place travel returnees from Austrian skiing areas under quarantine because of the COVID 19 Pandemic. Croatia suffered a bitter financial loss by the short term measures of the Austrian government, Austrians had to hold out for hours in the traffic jam, because the short term travel warning led to the fact that most Austrian holiday-makers in Croatia had to start the journey home hastily.

Now it hits Austria, if the skiers from Germany do not populate the Austrian runways, also a substantial financial damage threatens the tourism industry. A judgement from Germany, on which Seahelp already reported, could in the present situation both the winter sports places in Austria and the water sportsmen in Austria and Germany in the future as argumentation assistance these. Therefore the SeaHelp editorship requested and analyzed the judgement 13 B 1770/20.NE from 20 November 2020 of the higher administrative court Münster.

Initial situation: Application for protection against quarantine regulations

The applicant first stayed in his vacation apartment on the Balearic island of Ibiza, then traveled on to Tenerife, where he stayed for a total of nine days before returning to Germany. Still from his vacation spot in Spain, he contacted a German lawyer, who filed an application for legal protection against the quarantine measures ordered by the state of North Rhine-Westphalia on his behalf. He should have been isolated for ten days after his return to Germany, as it is called in official German, or had a COVID-19 test performed after five days. He is applying for a temporary injunction to suspend these measures until a decision is reached on a standards control procedure in the matter.

Violation of the principle of equal treatment

His reasoning: “One cannot be qualified as suspected of infection based on a stay on the Balearic Islands if the 7-day incidence there is significantly lower than at home. There is a violation of article 3 paragraph 1 GG (principle of equal treatment), since travel returnees have to go into quarantine, although those who stayed at home – measured by the 7-day incidence – are subject to the same or even a higher risk of corona infection. A different assessment does not result from the infection prevention measures taken in Spain. These are different, but no less effective. An unequal treatment exists also in relation to owners of vacations real estates within Germany. These can make vacation, without having to go after return to their residence into quarantine.

Court gives right to applicant

The court grants the applicant justice. In the statement of grounds it says among other things “The pandemic situation is currently characterized by the fact that the state of North Rhine-Westphalia and a large part of the rest of the Federal Republic of Germany are also to be classified as corona risk areas according to the criteria specified in § 1 para. 4 Corona EinrVO. In Germany there are currently 279,800 active corona cases with a 7-day incidence of 139 cases/100,000 inhabitants. In North Rhine-Westphalia, the 7-day incidence is 167 cases/100,000 inhabitants. This is largely a diffuse infection with no detectable initial events.

Against this background, persons who have not left North Rhine-Westphalia or who have stayed in another federal state with comparable incidence values are just as likely, or even more likely, to have picked up the corona virus and can be regarded as suspected of infection. However, unlike people who have only temporarily travelled abroad, those who have stayed at home are not required to separate themselves from the rest of the population.”

No higher risk of infection abroad than at home

“The risk of infection from returnees, however, is no different at comparable incidence rates than if they had stayed at home. This represents an objectively unjustified unequal treatment of comparable facts and thus a violation of the principle of equality in Article 3 (1) GG. A different treatment of returnees from abroad may be justified in principle if and to the extent that there is an objective reason for differentiation in view of the lack of clarity of travel routes, the encounter of a large number of unknown travellers or unclear infection situations in third countries.

The assumption that the risks of infection emanating from these travelers must therefore always be rated higher than those emanating from travelers within the Federal Republic of Germany or from persons who have not traveled, may, however, no longer apply in a situation in which the health authorities are no longer able to trace contacts even within the Federal Republic of Germany due to high incidence values and the occurrence of infection is diffuse, at least not in this general rule.”

Federal state suspended corona regulation

In plain language this means: If the corona incidence values in the vacation country are as high as at home, the order of a quarantine is not legal. Mind you, this judgement applies to Germany and only in the federal state of North Rhine-Westphalia, but it led to the state of North Rhine-Westphalia initially overturning the quarantine rule for travel returnees from corona risk areas.

Croatia, Spain or Austria makes no difference

Figuratively speaking, Spain could be replaced by Croatia, the arguments remain the same. This means: Austrian courts would also have to consider whether they would not have to grant possible plaintiffs the quarantine ruling of the German Higher Administrative Court. At least the judgement from Germany supplies quasi “court-proof” arguments. It remains to be seen whether these arguments would then stand up in an Austrian court.

Steep draft for Austria’s skiing areas?

Differently the situation looks however in view of the German travel warnings for Austria and its skiing regions: This judgement could serve for the Austrian skiing regions quasi as steep collecting main, in order to prevent the blanket prohibition of German skiers visiting with following quarantine after an Austria vacation.

Does Austria catch up the quarantine for travel returnees from Croatia

What is missing, is a fact-based, pan-European solution, which guarantees planning security for holiday-makers and tourist equally and is designed with normal common sense, no blanket travel warnings with quarantine threats from economic, and/or national interests. They catch up quickly, see the example of Austria: First the tourists should spend their vacations in their own country for better or worse, now they are courting winter sports enthusiasts from Germany. Thought too “short”…

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