Mandatory test in the gym and 2-G rule: termination / closure / contribution payment

The 3G rule (recycled-tested-vaccinated) has been in force in Germany since 23 August. Thereafter, only vaccinated, healthy or tested persons will be allowed to visit fitness centers. People who are neither fully vaccinated nor healthy need 3G rule at least one rapid antigen test (max. 24 hours old) or a PCR test for a 3G + rule. In addition, some federal states are considering introducing a 2-G regulation. According to this, only vaccinated and healthy people may use leisure facilities (eg fitness studios).

From October 11, 2021 to November 12, 2021, the free antigen tests for certain groups of people were abolished. The cost of rapid antigen testing was around € 15, depending on the provider. The 3G + rule even required a PCR test, which cost between € 50 and € 100 per second. test. DThe following statements reflect the legal status of tests that are subject to a fee. A fee for antigen testing was abolished nationwide with effect from 13 November 2021.

3G / 3G + Rule / 2-G +: Do I still have to pay contributions, or can I give extra notice if I have neither recovered nor been vaccinated?

If the antigen rapid tests are no longer free, it means a significant cost burden for the members who are neither vaccinated nor healthy. With a 3G + rule, a single PCR test would also significantly exceed the cost of a monthly fee to the gym. This raises the question of whether the consumer in these circumstances can be expected to adhere to the unchanged gym contract in such a case.

The Act provides for a possible contract regulation in section 313, subsection 1 BGB:

If circumstances on which the contract is based have changed significantly after the conclusion of the agreement, and if the parties had not entered into the contract or had entered into it with other content if they had foreseen this change, the contract may be adjusted, insofar as a part takes into account all the circumstances of the individual case, in particular the contractual or legal risk allocation, that compliance with the unchanged contract can not reasonably be expected.

While free trials can probably lead to unchanged compliance with the contract (arguably in individual cases), the situation is different with paid trials.

In the absence of vaccination or improvement, the introduction of the obligation to pay for samples can be seen as a change in circumstances which both Contracting Parties could not have foreseen when the contract was concluded. The gymnast would not have signed such a contract given the significant additional cost of testing. The member can not be expected to comply with the unchanged contract, as the cost of samples will exceed the contingent many times.

Potential consequence: Possible closure / suspension of the contract (without payment of contributions).

If the contract is not adjusted at the request of the member (eg after the gym has rejected the adjustment), or if the contract adjustment is unreasonable, then there may be a basic possibility of termination, as the member can not be expected to comply with the contract, § 313 para. 3 BGB.

Potential consequence: Any extraordinary termination option on the part of the member.

Note: There is (yet) no court decision on this, as the tests will not be chargeable until October 11, 2021.

Note: Many gyms offer a (free) self-test (only) under supervision. Depending on the Corona Regulation, this may be suitable for complying with the 3-G rules. For example, the Corona rules in Lower Saxony.

Unvaccinated people have not had access to the gym since mid-November due to the 2-G / 2-G + Regulation. This raises the question of whether unvaccinated persons may terminate termination without notice in accordance with section 313 (1). 3 of the German Civil Code, as the fitness centers have not been able to be used within the last 24 months due to two closures and have not been possible since November. In future, no opening may be assumed for unvaccinated persons, which is why the question arises to what extent compliance with the contract pursuant to section 313, subsection 3 BGB, can not be expected. Due to the timeliness of developments, there is also no case law on this issue.

2G rule: Unvaccinated people are denied access to the fitness center (corona lockdown only for unvaccinated people)

If access to the gyms is denied, it is not possible for the gym to provide services to unvaccinated persons due to an official order, § 275, para. 1 BGB.

If the fitness center is unable to provide the due service due to impossibility, the members’ obligation to pay compensation will also lapse, ie the obligation to pay pursuant to section 326 (1). 1, HS. 1 BGB. We have already described the legal consequences of this in another article.

2G + rule: Access for vaccinated and healthy people only with a (free) fast antigen test

Even with a 2G + rule, unvaccinated people are denied access to the gym. The same legal consequences apply here as would apply to unvaccinated persons under a 2G regulation. It is not (yet) clarified to what extent a renewed entry ban for unvaccinated persons can be seen as an extraordinary ground for termination.

In addition, there is a test obligation for vaccinated and healthy people. In our opinion, a free test obligation for vaccinated and healthy persons is reasonable for the respective member – however, due to the timeliness of the situation, there is no case law from the courts. It is doubtful whether the test stations’ time-limited opening hours have an impact on the access option and the gym contract.

Lawyer Felix Kushnir works nationwide and specializes in civil and commercial law. Further information and contact information: www.fk-kanzlei.de or directly here.

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