Retailers file constitutional complaints against federal emergency brake with Heuking

Supported by a team led by Michael Schmittmann and constitutional and administrative lawyer Michael Below, Partners at Heuking Kühn Lüer Wojtek, the pro bono initiative “Händler helfen Händlern“ [“Retailers are helping retailers”] filed ten constitutional complaints with the Federal Constitutional Court against the amendment of the Infection Protection Act, referred to as the “federal emergency brake.” The retailer initiative is represented by complainants Ernsting’s family, Engelhorn, ROSE Bikes, TOM TAILOR, INTERSPORT sports group represented by two of its member stores, Jeans Fritz, mister*lady, and Takko. One member company is a complainant on behalf of EK/servicegroup purchasing and marketing association and its 3,800 retail partners. In collaboration with constitutional law expert Prof. Dr. Josef Franz Lindner of Augsburg University, who is also a full professor for medical law, Heuking Kühn Lüer Wojtek drafted and filed the motions.
The retailers are filing the constitutional complaint to essentially challenge Section 28b (1) sentence 1 no. 4 Infection Protection Act, referred to as the federal emergency brake. It provides for prohibiting the opening of retail stores and markets that are open to customer for trading if the incidence of 100 is exceeded on three consecutive days. The complainants consider their fundamental rights to be directly infringed by this law. Primarily invoking a violation of the freedom of occupation (Article 12 Basic Law), the guarantee of property (Article 14 Basic Law) and the principle of equal treatment (Article 3 Basic Law), they are also submitting that the aforementioned statutory provision is indeterminate and has come into being without the required consent of the Bundesrat. 

In their view, the law severely restricts the retailers’ freedom of occupation while the objective of protecting the health of the population is not taken into account by closing retailers. According to studies by the Robert Koch Institute, the risk of infection is low due to the existing hygiene concepts in retailing. The retailers also see a violation of the right to property: the possibility of selling goods is impaired and in some cases made impossible by the ban on opening stores. It would not be possible to sell purchased goods and would have to be sold or even destroyed later, in some cases with a significant reduction in value. This would threaten the existence of numerous businesses. In their constitutional complaint, the retailers are also arguing that the principle of equal treatment has been violated in comparison to grocery retailers with mixed assortments who would be privileged since they were not affected by the closures and were allowed to cover their textile, sports, and equipment needs undisturbed. Finally, the guarantee of legal recourse would also be violated (Article 19(4) Basic Law). "It is unacceptable from the point of view of separation of powers for the Federal Chancellor to justify the measures law by arguing among others that the monitoring of the higher administrative courts in relation to the previous closing orders in the legal decrees issued by the German states should finally stop," explained Partners Schmittmann and Below, who consider the filing before the Federal Constitutional Court therefore, but also for the protection of possible claims for compensation of the individuals and entities concerned, indispensable.

Counsel to Retailer initiative
Heuking Kühn Lüer Wojtek:

Michael Schmittmann (Lead), Düsseldorf
Michael Below, Düsseldorf
Marion Gilcher, Frankfurt am Main
Sandra Janberg, Düsseldorf
Moritz Ahlers, LL.B., Hamburg
Dr. Cem Karaosmanoğlu, Stuttgart
Marco Warth, Munich

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