On 27 April 2021, the city of Constance issued a police regulation (PolVO MusSpV), which ordered a ban on music and games from 10 pm to 6 am in large parts of the public city area. Since LAW & LAKE doubted the legality of the PolVO MusSpV, some of our legal advisors filed a complaint against the city. Norm control application to the VGH Baden-Württemberg to suspend the ban on music and gambling at night.
The application resulted in the Illegality of the ban on gamblingwhich was suspended by decision of 5.8.2021. The pleasing result is a success of our applicants, their legal representative Andreas Hennemann and the law firm Rechtsanwälte Rohrer & Kollegen.
The Senate stated that the clear wording of § 3 PolVO MusSpV covered games of all kinds. It was not limited to drinking games such as "beer-pong" and "flunkyball", as the administration intended. Also prohibited are parlour games (card games, board games, etc.), games of movement (tag, hide-and-seek, etc.) as well as sports in certain forms (badminton, table tennis, etc.). The VGH emphasised that games of any kind are generally prohibited. no abstract danger . There was no factual forecast that the prohibited conduct would regularly and typically lead to damage to police property. There were no ascertainable facts that games that were not drinking games had led to disturbances of the night's rest. The VGH concluded that our applicants did not have to accept these restrictions on their general freedom of action.
In our opinion, the VGH wrongly applied the ban on music in § 2 PolVO MusSpV not out of execution.The VGH failed to recognise that this, like a precautionary measure, covers behaviour that is abstractly dangerous to health as well as abstractly harmless and socially acceptable - both loud and quiet music listening - in an undifferentiated manner. It is equally unconvincing that the VGH took into account the applicants' concretely asserted conduct in its consideration of fundamental rights, although the abstract review of standards represents an objective objection procedure. Nor is it convincing that the VGH took into account the applicants' concretely asserted conduct in its consideration of fundamental rights, although the abstract standards review constitutes an objective objection procedure.