A hotel company from the Dahme-Spree district and a landlady of holiday apartments in the Ostprignitz-Ruppin district had sued. Among other things, they asserted that the aforementioned regulation would lead to considerable loss of income for them and violate their constitutionally protected occupational freedom.
The 11th Senate followed this line of argument. The ban on accommodation is likely to be disproportionate. The extent to which it is likely to help curb the occurrence of the infection is in no appropriate relation to the weight of the resulting restrictions on occupational freedom, but also the constitutionally protected general freedom of action of people from risk areas who are denied an overnight stay or vacation in Brandenburg. The infection rate could be significantly reduced within the accommodation establishments, for example through a hygiene concept.
In addition, guests in hotel rooms or holiday apartments would generally spend the night alone or with people in their own household. Visiting a hotel restaurant does not clearly differ from visiting gastronomic facilities outside the hotel, which is not prohibited. It should also be taken into account that the regulation does not exclude day visits to risk areas. For example, families with school-age children from the metropolis of Berlin could compensate for the failed vacation in Brandenburg with day trips, heading for different destinations and spreading the risk of infection across the area.
In addition, there is a significant proportion of commuters between Berlin and Brandenburg. Behind the associated risk of introducing infections to Brandenburg, the risk of infection, which is to be prevented with the attacked regulation, takes a back seat, according to the Higher Administrative Court. The disproportionate nature of the ban on accommodation does not disappear because potential guests can be exempted from the ban by presenting a negative corona test. On the one hand, such tests are associated with considerable, possibly deterrent costs, especially for families with several children, on the other hand, given the current utilization of the test capacities, it is doubtful whether a corresponding test result can be received on time.
The Robert Koch Institute has also already pointed out that negative virus detection is only a snapshot that should not lead to a false sense of security, and that the additional need for testing by holidaymakers has further exacerbated the stress situation in the laboratories (resolutions from October 16, 2020 ?? OVG 11 S 87/20 and 88/20).