Corona rules in Hamburg: 2G instead of 3G – legally problematic?

Hamburg is the first federal state to introduce the 2G option model. Some football clubs only allow vaccinated and convalescents into the stadium. What is to be made of it legally?

In principle, private providers are free to decide who they want as customers and who they don’t. This applies to restaurateurs and hoteliers as well as to football clubs, hairdressing salons and club operators. And that applies completely regardless of the corona pandemic. The General Equal Treatment Act (AGG), which prohibits unequal treatment, for example because of gender, ethnic origin or age, offers limits. But not unequal treatment due to the vaccination status.

If entrepreneurs decide for themselves not to let unvaccinated people in or if clubs only let vaccinated and convalescent people into the stadium, they are allowed to do so according to the current legal situation.

2G option model in Hamburg offers incentives

Hamburg is now the first federal state decided on the so-called 2G option model. For entrepreneurs and organizers who decide to allow entry only to those who have been vaccinated and recovered, there are no restrictions on the number of guests or distance requirements. Only the mask requirement indoors remains for the time being. Prior registration and strict control of the guests are required. Children and young people up to the age of 18 are initially exempt from the regulation.

The Hamburg model therefore offers incentives not to let unvaccinated people in, even with a negative corona test. But: The decision on this remains with the entrepreneurs. You can still rely on the 3G rule. Then, however, with the restrictions as they previously applied.

Unequal treatment of companies

Of course, there is unequal treatment in this. Entrepreneurs who continue to use 3G will be more restricted than those who choose 2G. This is legally permissible if there is a legitimate goal for it and the restrictions are necessary and suitable to achieve this goal.

So there are two crucial questions the courts would ask themselves if someone sues. First, do vaccinated people pose less danger? Second, are the restrictions on the non-vaccinated really necessary to protect the health of the population?

“Wave of the Unvaccinated”

One thing is clear: vaccination does not offer one hundred percent protection either, and the risk that people who have been vaccinated will pass on the virus is not zero. There are repeated breakthroughs in vaccination and some studies say that vaccinated people also carry a high viral load, especially with the Delta variant. Other studies, however, show that the risk of infection is still lower. Above all, it has been shown that the risk of a severe course is minimized. The Robert Koch Institute continues to assume that the risk of virus transmission is also greatly reduced with the Delta variant.

Hamburg’s first mayor Peter Tschentscher tried to explain it with the incidence among the vaccinated. In Hamburg this would be 3.3. Overall, however, the incidence is almost 80. “The fourth wave is a wave of the unvaccinated,” said Tschentscher. The courts would take a close look at the figures and studies on this.

Proportionality depends on the infection rate

In addition, the restrictions on fundamental rights of entrepreneurs would only be legally permissible if they are necessary to protect the life and health of others. This depends on various variables such as the current incidence number, the death and hospitalization rates or the R-factor.

The courts would also ask themselves these questions if the state goes one step further and generally introduces a 2G rule. In other words, forbidding the non-vaccinated from entering without the intermediate step of entrepreneurs.