Yesterday, artists affected by the theatre, opera and concert bans in Bavaria, especially at the Bavarian State Opera and Gasteig, on behalf of the supporters of the initiative Aufstehen für die Kunst (Standing Up for the Arts), filed an urgent application with the Bavarian Administrative Court against the blanket ban on concerts and performances in the 12th Bavarian Infection Protection Measures Ordinance (12. Bayerische Infektionsschutzmaßnahmenverordnung).

In a press release the organization says that the applicants are firmly convinced that the current Bavarian Infection Protection Measures Ordinance violates the freedom of the arts, which is unconditionally guaranteed in Article 5 of the Constitution, and that it also does not meet the obligation to provide specific reasoning in relation to artistic freedom prescribed by the Infection Protection Act in November 2020. This was also very critically stated nationwide by the Deutsche Orchestervereinigung in its letter, dated 19 March 2021, to all state chancelleries of the 16 federal states.

The text says: « The amendment to the 12th Bavarian Infection Protection Measures Ordinance, which was published on 25 March 2021, continues the systematic marginalisation of the performing arts and even expands it. Since 01.03.2021 and 08.03.2021 respectively, parts of the non-essential retail trade, hairdressers and certain body-related services have been opened, independent of incidence. The rest of the retail trade as well as museums, etc. up to an incidence of 100 are open. From 12.04.2021 even further restrictions on retail trade will be lifted and shopping with appointment booking will be allowed up to an incidence of 200. For theatres and concert halls, however, the incidence must be stable or even declining below 100 in order to be able to open – and then only after 12.04.2021 and after a corresponding decision by the District Administration Department (Kreisverwaltungsreferats). From an incidence value of 100, cultural institutions may only apply for individual « limited pilot trials » that may still have to be approved. Apparently, having been stable below 100 for weeks was not enough of a prerequisite for the performing arts to be open from the originally planned 22 March 2021.

In contrast, houses of worship have already been open since June 2020, with only a 1.5 m distance and hygiene concept, and religious communities have rightly insisted on the fundamental right enshrined in religious freedom and unanimously rejected the suspension of attendance services at Easter 2021, although they do not have ventilation systems comparable to theatres, opera houses and concert halls, which are scientifically considered the decisive criterion for risk assessment in comparable hygiene concepts.

We have also added several expert studies to our urgent application that can scientifically justify why it was no coincidence that there was not a single verifiable case of transmission in the audience in all German theatres, opera houses and concert halls during the short months of the openings in September/October 2020. Due to superior ventilation systems, hygiene concepts, mandatory masks, abolition of theatre catering, crowd management and spacing of auditorium occupancy, the risk is minimal and is also considered by relevant studies to be the lowest risk indoors. According to these studies, the risk of already open retail is at least twice as high, that in schools at least five times as high and in open-space offices even up to 16 times as high. In contrast to schools and day-care centres, there are also no contradictory studies or studies that question the basic findings.

According to the scientific findings, even the mutations do not change this finding; on the contrary, those social areas with ventilation systems that are not comparable to theatres are potentially even more dangerous. A functioning test system for staff safety has been in place since September 2020, developed and supervised by the Klinikum rechts der Isar at the Bavarian State Opera and continuously evaluated according to scientific criteria. Industry, which has also been open continuously since June and continues to operate with only marginal restrictions, could not even be forced into a testing obligation for employee safety from April 2021.

This continued discrimination of the performing arts, which in our opinion is contrary to the Constitution, is neither scientifically nor infectiously indispensable or even necessary. It has caused immense material and immaterial damage to the arts. This in a country that has anchored artistic freedom in a particularly strong position in the Constitution, unlike all other European countries. Germany has, for more than a year, in no way lived up to its historical responsibility towards artistic freedom.

That is why this situation needs to be legally clarified, as politically no sufficient will is apparent to restore the artistic freedom of the performing arts to its right and to end the discrimination against areas that are not nearly as protected under fundamental law. »

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