Austria, Administrative Court Vienna, 11 November 2021, VGW-172/092/12967/2021
Case overview
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General Summary
The Claimant is a specialized medical doctor and is the head of a department. He does not treat patients.
The Claimant took part in a press conference of an association, where he expressed his critique of the health measures, issued by the Austrian Government. The Claimant also expressed his opinions to the press, on another occasion. Because of the expressed critiques, a disciplinary procedure was carried out by the medical doctor association against the Claimant.
The Claimant was fined Euro 5000 because he had infringed the medical practitioner’s law of 1998 (= Ärztegesetz 1998), according to which the Claimant had damage the reputation of the medical profession practising in Austria through his behavior towards the community, patients and colleagues.
Against this decision, the Claimant submitted an appeal to the administrative Court, alleging an infringement of his freedom of expression.
The Administrative Court has upheld the claim
Facts of the case
On October 2020, the Claimant took part in a press conference of an association. During the press conference he expressed severe criticism of the precautionary measures issued at that time by the Government, to tackle with the spread of COVID-19.
On another occasion, during a press interview, the Claimant expressed his criticism of the issued measure by the government on vaccination.
On January 2021 the medical doctor association initiated a disciplinary proceeding against the Claimant due to the alleged infringement of the medical practitioner’s law, through the publicly expressed critiques.
The Claimant was fined a sum of Euro 5000. Against this decision of the doctor medical association, the Claimant submitted an Appeal to the Administrative Court.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court has begun its reasoning recalling the Appeal’s peculiarities. The disciplinary decision represented the concretization of the emerged allegations during the disciplinary proceeding. The emerged allegations limit the Appeal’s subject matter and at the same time should concretely specify the conduct of the designated disciplinary offence.
The Court has summarized the charge in a few words. The Claimant’s publicly expressed criticism would infringe on his professional duty of information. According to the medical practitioner law, the term “information” should be broadly understood, so also value judgements are included. However, the medical practitioner law is applicable to information provided by doctors “in connection with the exercise of their profession.” The Court has noted a contradiction because in the disciplinary proceeding, the information provided by the Claimant was considered as "extra-professional misconduct."
According to the Court the Claimant did not express his critics during the exercise of his medical duties, so these statements were part of his non-professional conduct. Therefore the Claimant’s criticisms could not be attributable to an activity directed to humans, because the Claimant did not run a surgery and did not have patients.
The Court has expressed its doubts whether "information" which is not linked to the exercise of the medical profession, can impair the reputation of the medical profession within the meaning of the medical practitioner law. In this context, the Court has pointed out the rules’ gaps, but decided not to take a position on them because it would not be justified to interfere with the Claimant’s freedom of opinion.
The scope of protection of the freedom of opinion is to protect pure statements of opinion and statements of facts. The exercise of this freedom entails duties and responsibilities, so that formalities, conditions, restrictions or threats of punishment are necessary in a democratic society, in order to protect health, the reputation or the rights of others. A limitation of the freedom of expression must be provided by law, according to the Court.
If an expressed opinion under the medical practitioner law is punished by disciplinary action as a breach of professional duty, then it is an interference provided for by law. Another legitimate objective is the protection of the medical profession practicing in Austria. However, public health is not covered by this protective purpose, according to the Court.
The freedom of expression requires particular restraint in the assessment of a statement as a punishable disciplinary offence. It should also be recalled that the importance of freedom of expression for non-mainstream individuals and groups, who must be able to contribute to the public debate by disseminating information and ideas on matters of general interest in which there is a strong public interest.
According to the Court, the Claimant’s criticism was not derogatory, nor did it publicly disadvantage the position of professional colleagues, nor was it unobjective, because a criticism is not already unobjective because it "contradicts many existing medical findings". Objective criticism expressed in the required form is an indispensable right of everyone in a democratic community, arising from the freedom of expression.
Conclusions of the deciding body
The administrative Court has concluded that the Claimant did not exceed the permissible level of appropriate criticism, so the disciplinary punishment was unnecessary and unlawful.
The interference with the right to freedom of expression would also not be proportionate with regard to public health because the Claimant with his criticism contributed to a debate of particular general interest.
The Court declined the freedom of expression also as freedom of science.
Implementation of the ruling
The claim has been upheld.
Fundamental Right(s) involved
- Freedom of expression
- Freedom of science
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of expression, Art. 13, Austrian Constitution
- Freedom of science, Art. 10, ECHR
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of expression / right to information
- Health v. freedom of science
General principle applied
- Rule of law
- Proportionality
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout the sentence, the Court has applied two principles: the rule of law and the proportionality principle.
The rule of law has been applied throughout the reasoning concerning the limits of the subject matter at stake. The reasoning of the Court comprehended an analysis of the medical practitioner law and the disciplinary proceeding. Further, the Court has also recalled how the freedom of expression is implemented.
However, during the reasoning the Court has also applied a proportionality principle when assessing the concrete case. The Claimant’s statement has been evaluated as a criticism, which did not overcome the limits of the required form.
