Heuking supports retailers in constitutional complaint against Infection Protection Act

A team led by Michael Schmittmann, Partner at Heuking Kühn Lüer Wojtek, advises a retailer initiative on the intended constitutional complaint against the amendment of the Infection Protection Act, which is to be adopted in the German Bundestag today. The retailer initiative includes Ernsting’s family, Intersport, Rose Bikes, Tom Tailor, and ANWR shoe retail association. Many retailers’ livelihoods are now at stake. It is their objective to gain a perspective for their stores to be permitted to open under strict hygiene concepts.
The retailers argue that the Infection Protection Act is distorting competition if, for example, grocery stores are able to continue to sell shoes, clothing, or toys while specialty retailers have to keep their stores closed. This is all the more relevant since, according to several studies, the risk of infection in retailing is extremely low. In addition, retailers are uniquely burdened, as there is no general duty to work from home offices, but the retail sector is to predominantly remain banned. Employees, however, are to be tested weekly at the businesses’ expense. Not nearly enough compensation has been granted for the several months of lost sales. On the contrary, provisions for compensation that were proposed by the FDP party in November 2020 were explicitly rejected by the CDU/CSU/SPD majority in the Bundestag. The group calls for clear criteria as to when retailers are to be considered essential and are therefore allowed to remain open. It considers it legally questionable that the law allows bookstores and flower stores to open even at higher incidences, while refusing to open shoe or sports stores.
Schmittmann sees fundamental constitutional rules of the principle of equality and the proportionality of the encroachment on fundamental rights not met in the amendment. The protection of property under Article 14 Basic Law is also disregarded. The legal actions against the federal law will replace the previous abstract stature review proceedings directed against the corona protection ordinances of the German states, where preliminary injunctions are concerned. Schmittmann criticizes that the higher administrative courts have failed to rule on the preliminary injunctions, some of which had already been filed months ago. Complaints on the merits and actions for compensation are, however,  continuing. Finally, action is also being considered at the European level against the EU Commission’s State aid decisions. A group of companies intends to have the “November aid extra” and “Fixed cost aid” examined by the CJEU and/or the Commission. 

Counsel to Retailer Initiative
Heuking Kühn Lüer Wojtek:

Michael Schmittmann (Lead), Düsseldorf

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