So far eight federal states have allowed businesses and event organisers to adopt the so-called 2G option – that is to allow entry only to the vaccinated (geimpft) and people who’ve recovered from Covid-19 (genesen) – and not unvaccinated people who’ve tested (getestet) negatively for Covid.
Across these states – Hamburg, Hesse, Saxony-Anhalt, Berlin, Brandenburg, Saxony, Lower Saxony and Baden-Württemberg – the 2G option can only apply to places like restaurants, cinemas, bars, gyms, brothels and events, but not retailers.
Under state regulations, retailers have to stick to the 3G rule, which also allows unvaccinated people to enter with a negative test.
But a ruling last week by a court in Frankfurt is raising the possibility of non-essential retailers allowing entry to vaccinated and recovered people only, reported German daily Welt.
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The judges issued a temporary injunction to allow a retailer for barbecues and other grilling accessories to only let customers into her shop who have been vaccinated or have recovered from Covid-19 (the 2G option).
In justification, the court wrote on Thursday that it had “considerable legal reservations about the exclusion of sales outlets and similar establishments from the so-called 2G rule”.
Customers with only a negative test result can now be barred by the trader from entering her shop. With 2G there is no longer a mask requirement or distance rules for staff and customers, and there are no capacity restrictions.
The ruling comes despite the fact that the Hesse Covid Protection regulations explicitly exclude the 2G option for the retail trade.
The unequal treatment of the retail trade compared to other businesses and events that are allowed to exclude the unvaccinated is not sufficiently justified, the court said. The Hesse Covid Protection Ordinance does not match up with the principle of equality under Article Three of the Basic Law, the court said.
And without the relevant factual reasons, it isn’t clear why the retail trade should be excluded from also being allowed to use the 2G model.
The state has 14 days to appeal the decision.
The retailer in Gründau (Main-Kinzig district) had asked the court to rule that her shop should have the 2G option as part of entrepreneurial freedom and that she be allowed to adopt the restriction “voluntarily”.
Trade experts welcomed the court’s decision.
The Hesse Trade Association said the 2G rule gives retailers in the so-called “non-food sector” the opportunity to bring in more normality.
“The ruling leaves retailers the choice of whether they want to apply a 2G regulation or not,” said the German Trade Association (Handelsverband Deutschland, HDE).
However, industry representatives do not want this to be enforced nationwide – because they say it should be about choice.
“It is important that such regulations do not become a legal obligation for retailers,” HDE CEO Stefan Genth told Welt.
From the trade association’s point of view, the 2G option should be allowed for some retailers, but not for others.
“The easiest place to implement the regulation is certainly at retailers with low frequency and a high level of personal support, such as jewellers or bridal fashion shops,” said Genth. He said in these settings it is fairly easy to check vaccination or recovery certificates.
Essential shops like supermarkets and petrol stations, for instance, should never have entry restrictions.
“Checking vaccination passports and tests would certainly lead to long queues in front of shops in the food, clothing or furniture sectors,” he said. “But that is also to be avoided at all costs for pandemic reasons.”
Could 2G lead to conflict?
The association of medium-sized businesses ZGV (Der Mittelstandsverbund) says allowing 2G in shops could split society and make it risky for retail owners.
“Entry control can lead to conflicts with people who are turned away,” said chief executive Ludwig Veltmann, whose organisation represents the interests of around 230,000 medium-sized companies with around 2.5 million employees.
“This is not only an image issue, but a tangible burden and even physical danger for the employees at the entrance – or even for the owner,” said Veltmann, referring to the Idar-Oberstein case, where a cashier in a petrol station was recently shot dead by a customer who was angry about being asked to wear a Covid mask.
Veltmann says 2G also excludes customers from countries whose vaccinations are not recognised in Germany. “In locations with an international audience, this can be detrimental to business and lead to resentment,” he said.
The HDE also fears boycotts. “In the end, the voluntary implementation of 2G or 3G in retail is always a personal and business decision of the companies,” said Genth. “In most cases, of course, there is a risk that fewer customers will come as a result.”
As other regions in Germany are considering the 2G option, states – as well as shop owners – will be watching this Hesse ruling closely.