(Dec. 29, 2020) On November 20, 2020, the Higher Administrative Court for the State of North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen, OVG NRW) struck down most provisions of a regulation requiring all people returning from a “COVID-19 risk area” to North Rhine-Westphalia to enter a mandatory quarantine for 10 days. The court held that a general requirement to quarantine violated the principle of equality and was not proportional. The Robert Koch Institute (RKI), Germany’s public health institute, publishes a list of all areas that are classified as “presenting an increased risk of infection with SARS-CoV-2” (risk areas).
Facts of the Case
On November 6, 2020, the State Ministry of Labor, Health, and Social Affairs of North Rhine-Westphalia adopted the Ordinance to Protect against New Infections with the Coronavirus SARS-CoV-2 with Regard to People Entering or Returning from Travel (Corona Entry Ordinance). Among other things, the Corona Entry Ordinance mandated that persons entering North Rhine-Westphalia who had been present in a risk area within the last 10 days before entering had to immediately quarantine for 10 days upon entering. (Corona Entry Ordinance § 1.) The quarantine period could be shortened on receiving a negative COVID-19 test result; however, the test could not be performed earlier than five days after entering Germany. (§ 3.) The Corona Entry Ordinance was based on the amended Model Federal Ordinance that the federal government and state governments had agreed upon in October. It entered into force on November 9, 2020. (§ 5; OVG NRW paras. 4–17.)
The applicant is a resident of Bielefeld in the state of North Rhine-Westphalia and owns an apartment on the island of Ibiza, Spain. He stayed on Ibiza until November 13, 2020, and travelled to Tenerife from there. He was planning on returning to Germany on November 22, 2020. (OVG NRW para. 3.) The Balearic Islands are classified as a risk area according to the RKI. On November 10, 2020, the applicant asked the court to issue a preliminary injunction against the quarantine requirements, stating that someone should not be considered as presenting a high risk of infection just because that person stayed on the Balearic Islands, where the seven-day incidence is lower than at his residence. He alleged that such a general requirement violated the principle of equality codified in article 3 of the German Basic Law and was not proportional. (Para. 18.)
The court granted the preliminary injunction of the plaintiff. (Para. 25.) It agreed with the applicant and held that sections 1 and 3 of the Corona Entry Ordinance violated the principle of equality and were not proportional. (Para. 39.) It stated that the Corona Entry Ordinance applied indiscriminately to all people that were traveling from a risk area and that it did not take into account whether entering Germany constituted an additional risk factor for these people. The court explained that North Rhine-Westphalia and a majority of the rest of Germany could also be classified as risk areas according to the criteria set out in section 1 of the Corona Entry Ordinance. It therefore concluded that people who did not leave North Rhine-Westphalia or who travelled to another German state with comparable COVID-19 infection rates had a similar or possibly even higher possibility of being infected with the coronavirus and could be considered as “presenting an increased risk of infection” within the meaning of the Infectious Diseases Protection Act. However, people who stayed in Germany were not required to quarantine. The court held that this unequal treatment violated article 3 of the Basic Law. (Paras. 40–43.)
It further noted that the different treatment of travelers might generally be justified due to unknown risk factors in third countries but that such a determination cannot be made in such a general way—one must differentiate and determine whether a specific area presents a higher risk of infection. The Corona Entry Ordinance was therefore also not proportional, in the opinion of the court. (Para. 44.)
Related Decisions in Other German States
Courts in other German states have had to deal with similar challenges against the duty to quarantine. The courts in Bremen, Sachsen, Baden-Württemberg, Bavaria, Berlin-Brandenburg, and Niedersachsen cited the decision from the Higher Administrative Court for the State of North Rhine-Westphalia and discussed its reasoning, but refused to grant a preliminary injunction. Unlike the court in North Rhine-Westphalia, which had considered it likely that the applicant would prevail in the main proceedings because a general quarantine requirement clearly violated the principle of equality and is not proportional, the other courts stated that the likelihood of the applicants prevailing was not at all certain. In particular, they pointed out that courts are split on the criteria to determine whether a person returning from a risk area presents an increased risk of infection. Such a question must therefore be resolved in the main proceedings, and not with a preliminary injunction, in their opinion.