Why a Berlin court deemed the new rent freeze law ‘unconstitutional’

According to one of Berlin’s district courts, the rental cap law (Mietentdeckel) violates Germany’s constitution and should therefore be examined in the country’s supreme court. Three urgent requests were unsuccessful.

Why a Berlin court deemed the new rent freeze law 'unconstitutional'
Source: dpa

Berlin’s district court considers the Berlin Rent Cap Law (Mietendeckel) to be unconstitutional. As part of an appeal procedure on Thursday, the 67th Civil Chamber, one of Berlin’s three district courts, ruled for it to be examined by the constitutional court in Karlsruhe.

The rent cap  – decided by Berlin’s House of Representatives – entered into force in mid-February and is the only one of its kind in Germany.

READ ALSO: Berlin to freeze rent for five years: What you need to know

According to the new law, rents will initially be frozen at the June 2019 level and may not increase by more than 1.3 percent annually from 2022. This does not include new apartments that were ready for occupancy from January 1st, 2014.

The Chamber considers the rental cap law to be unconstitutional because it is of the opinion that the State of Berlin did not have the legal authority to pass such a law.

How did the dispute start?

The district court of Spandau in the north of the city had ordered the tenants in a rental increase dispute to consent to an increase from €895 to €964.61 in rent from June 1st, 2019. 

The tenants appealed and referred to the Rent Cap Law, which introduced a freeze on rental prices in Berlin for a period of five years and could be applied retroactively. 

However, in its decision, the 67th Civil Chamber of the regional court took the view that the legal provisions of the rent cap are unconstitutional.

READ ALSO: Berlin rent freeze: 340,000 tenants paying too much for housing

Old or new – the rental cap act freezes all rents in Berlin. Source: DPA

In the meantime, Berlin landlords have been unsuccessful in bringing their case to Karlsruhe, where the Federal Constitutional Court rejected an urgent application for a provisional suspension of the fine regulations in the Rental Cap Law. 

The applicants wanted to ensure that charging high rents would not be considered administrative offenses and thus punishable with high fines. 

In its decision, which was published on Thursday, the court stated that the disadvantages arising from fines imposed by the Rental Cap Law will be of particular importance, should the law prove to be unconstitutional.

“However, they do not clearly outweigh the disadvantages that would arise if the regulations on fines expired, should the law later prove to be constitutional.”

The Federal Constitutional Court also rejected another application for an interim order and did not accept an appeal for a re-decision. The court in Karlsruhe already rejected an initial urgent request from landlords against the rental cap in February, for formal reasons. 

The constitutional court in Karlsruhe will rule on the rental cap act. Source: dpa

The question of whether the State of Berlin had the legislative competence to regulate the rent cap is still up in the air, according to the Karlsruhe judges.

“The Federal Constitutional Court should only exercise its power to suspend the enforcement of a law that has entered into force with great caution,” they wrote.

The decision was made by the 3rd chamber of the First Senate; the constitutional court is made of up two senates and the first deals with constitutional complaints. In its decision, the court stated that landlords had sufficient time to familiarize themselves with the new requirements – and thus avoid fines.

Berlin's Senator for Urban Development and Housing, Katrin Lompscher, said that the court's decision to refuse or not to approve the applications came as no surprise to her.

“We continue to assume that the law drawn up by the Senate and the Berlin House of Representatives will also withstand future reviews.”

Translated by Sarah Magill

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EXPLAINED: Berlin’s latest Covid rules

In response to rapidly rising Covid-19 infection rates, the Berlin Senate has introduced stricter rules, which came into force on Saturday, November 27th. Here's what you need to know.

A sign in front of a waxing studio in Berlin indicates the rule of the 2G system
A sign in front of a waxing studio indicates the rule of the 2G system with access only for fully vaccinated people and those who can show proof of recovery from Covid-19 as restrictions tighten in Berlin. STEFANIE LOOS / AFP

The Senate agreed on the tougher restrictions on Tuesday, November 23rd with the goal of reducing contacts and mobility, according to State Secretary of Health Martin Matz (SPD).

He explained after the meeting that these measures should slow the increase in Covid-19 infection rates, which was important as “the situation had, unfortunately, deteriorated over the past weeks”, according to media reports.

READ ALSO: Tougher Covid measures needed to stop 100,000 more deaths, warns top German virologist

Essentially, the new rules exclude from much of public life anyone who cannot show proof of vaccination or recovery from Covid-19. You’ll find more details of how different sectors are affected below.

If you haven’t been vaccinated or recovered (2G – geimpft (vaccinated) or genesen (recovered)) from Covid-19, then you can only go into shops for essential supplies, i.e. food shopping in supermarkets or to drugstores and pharmacies.

Many – but not all – of the rules for shopping are the same as those passed in the neighbouring state of Brandenburg in order to avoid promoting ‘shopping tourism’ with different restrictions in different states.

2G applies here, too, as well as the requirement to wear a mask with most places now no longer accepting a negative test for entry. Only minors are exempt from this requirement.

Sport, culture, clubs
Indoor sports halls will off-limits to anyone who hasn’t  been vaccinated or can’t show proof of recovery from Covid-19. 2G is also in force for cultural events, such as plays and concerts, where there’s also a requirement to wear a mask. 

In places where mask-wearing isn’t possible, such as dance clubs, then a negative test and social distancing are required (capacity is capped at 50 percent of the maximum).

Restaurants, bars, pubs (indoors)
You have to wear a mask in all of these places when you come in, leave or move around. You can only take your mask off while you’re sat down. 2G rules also apply here.

Hotels and other types of accommodation 
Restrictions are tougher here, too, with 2G now in force. This means that unvaccinated people can no longer get a room, even if they have a negative test.

For close-contact services, such as hairdressers and beauticians, it’s up to the service providers themselves to decide whether they require customers to wear masks or a negative test.

Football matches and other large-scale events
Rules have changed here, too. From December 1st, capacity will be limited to 5,000 people plus 50 percent of the total potential stadium or arena capacity. And only those who’ve been vaccinated or have recovered from Covid-19 will be allowed in. Masks are also compulsory.

For the Olympic Stadium, this means capacity will be capped at 42,000 spectators and 16,000 for the Alte Försterei stadium. 

3G rules – ie vaccinated, recovered or a negative test – still apply on the U-Bahn, S-Bahn, trams and buses in Berlin. It was not possible to tighten restrictions, Matz said, as the regulations were issued at national level.

According to the German Act on the Prevention and Control of Infectious Diseases, people have to wear a surgical mask or an FFP2 mask  on public transport.

Christmas markets
The Senate currently has no plans to cancel the capital’s Christmas markets, some of which have been open since Monday. 

According to Matz, 2G rules apply and wearing a mask is compulsory.

Schools and day-care
Pupils will still have to take Covid tests three times a week and, in classes where there are at least two children who test positive in the rapid antigen tests, then tests should be carried out daily for a week.  

Unlike in Brandenburg, there are currently no plans to move away from face-to-face teaching. The child-friendly ‘lollipop’ Covid tests will be made compulsory in day-care centres and parents will be required to confirm that the tests have been carried out. Day-care staff have to document the results.

What about vaccination centres?
Berlin wants to expand these and set up new ones, according to Matz. A new vaccination centre should open in the Ring centre at the end of the week and 50 soldiers from the German army have been helping at the vaccination centre at the Exhibition Centre each day since last week.

The capacity in the new vaccination centre in the Lindencenter in Lichtenberg is expected to be doubled. There are also additional vaccination appointments so that people can get their jabs more quickly. Currently, all appointments are fully booked well into the new year.