Commercial Ban on Large Stores Is Unconstitutional

The Bavarian Administrative Court found the ban on commercial activity by stores larger than 800 square metres to be unconstitutional. According to the court, the rule prohibiting the opening of shops larger than 800 square metres as part of the measures against the coronavirus violates the principle of equality enshrined in the Basic Law, because it differentiates between small and large stores. At the same time, referring to the state of emergency, the court did not annul the provision. Instead, the decision of the 20th Senate was limited to establishing that the provision is incompatible with the Basic Law. The court published its finding upon the application of a retailer with department stores in Bavaria, Berlin and Hamburg, while the final judgment is still pending.

In Bavaria, discussions on further easing measures are taking place this week; larger stores and hospitality establishments are expected to be allowed to reopen at the end of May.

The decision nevertheless clearly shows that judicial review of administrative action in Germany continues to function despite the state of emergency.