Bonn, 26 October 2020. In an injunctive judicial review procedure, 19 operators of restaurants in Bonn, Cologne and the county Rhein‑Sieg‑Kreis took action against the curfew and ban on sales of alcohol. Münster Superior Administrative Court upheld the prohibitions in a decision handed down on 22 October 2020 (case no.: 13 B 1581/20.NE).
Since 17 October 2020, the North Rhine‑Westphalian Corona Protection Regulation requires that wherever more than 50 new infections per 100,000 people have been registered in the previous seven days, all catering establishments (restaurants, pubs and cafés) must close between 11:00 p. m. and 6:00 a. m. (so‑called curfew). The sale of alcohol is also prohibited.
As more and more local communities are exceeding the threshold of 50 new infections, the curfew now applies in many parts of North Rhine‑Westphalia. This includes large cities such as Cologne, Düsseldorf, Dortmund, Essen, Bielefeld, Bonn and Aachen. Counties Düren, Gütersloh, Olpe and Recklinghausen are also classified as “hotspots”.
In the opinion of Münster Superior Administrative Court, prohibition of the operation of catering establishments and the sale of alcoholic beverages in the period from 8 p. m. to 6 a. m. is presumably lawful and capable of contributing to containment or slowing down the spread of the infection. The curfew for the time after 11 p. m. contributes to a reduction of contact by preventing fluctuating guests or groups of guests from entering the facilities after 11 p. m. or crossing paths on their way to and from restaurants and pubs. This objective, according to the high court, could not be achieved as effectively with a ban on the mere serving of alcohol.
The prohibition against the sale of alcohol at night also contributes to a reduction of possibly infectious contacts, as intended by lawmakers. It is aimed at alcohol's effect of lowering inhibitions, thereby reducing observation of minimum distances and protective hygiene rules. Existing hygiene and infection protection standards do not alter the fact that, without the curfew, a large number of people would continue to meet in confined spaces over more than a brief period of time on a regular basis and – especially in the winter months – in poorly ventilated rooms.
While the high court conceded that the measures significantly interfered with the professional freedom of operators of catering establishments, developments over the past few days give rise to the fear that, without suitable countermeasures, incidences of infection could take on a dangerous dynamic which would push even the most efficient health system to the limits of its capacity and beyond. In view of their duty to protect the lives and health of the population, lawmakers must not wait for such a trajectory, nor are they obligated to accept an increase in the number of cases, which in their view would then require more drastic interventions in wide areas of private, social and public life. Ultimately, in the opinion of the high court, such measures are also in the interests of operators of pubs and restaurants in the “hotspots” concerned, which currently (still) have the option of operating between 6 a. m. and 11 p. m.
The Land of North Rhine‑Westphalia is being advised and counselled by the law firm Redeker Sellner Dahs in this and other proceedings concerning Corona. These proceedings for the Land of North Rhine‑Westphalia are being conducted by the attorneys Dr Marco Rietdorf and Dr Moritz Gabriel.