Austria, Constitutional Court, 23 June 2022, G37/2022, V137/2022-11
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Outcome of the decision
Link to the full text of the decision
General Summary
The case concerned mandatory vaccination as provided by the Covid-19 mandatory vaccination Act published in Federal Gazette BGBl. I 4/2022 (COVID-19- Impfpflichtgesetz – COVID-19-IG). The rule provided mandatory vaccination for all persons over 18 years of age and who were living in Austria. However, compulsory vaccination could not be implemented by coercive means. The law provided exceptions: for example, pregnant women or persons whose immune system would not provide an expected reaction to the Covid-19 vaccination were excluded from compulsory vaccination. Those who wanted to take advantage of the provided exceptions were required to provide a medical certificate. The law also authorized the competent Minister to issue further secondary regulations, the Covid-19 mandatory vaccination regulation, as published in Federal Gazette BGBl. II 52/2022 (=COVID-19-Impf- pflichtverordnung – COVID-19-IV ): among the rules, the regulation included other categories of persons who could be exempted from the general rule.
The claimant was a private person who, according to the legal requirements, was subject to mandatory vaccination. The claimant alleged an infringement on their private life, an infringement to bodily integrity, and an infringement to equal treatment before the law because vulnerable and non-vulnerable persons were treated equally though they had health-related differences.
The claimant sought to ascertain whether the law and regulation providing for mandatory vaccination and the linked fines were constitutionally unlawful.
The Constitutional Court rejected the claim.
Facts of the case
On February 4, 2022 the Parliament issued mandatory vaccination fo Covid-19: according to this law, people resident in Austria and adults 18 years old and over were subject to mandatory vaccination. The law provided fines for those who did not comply with this rule. The law authorized the competent Minister to issue a regulation in order to implement the law.
On February 7, 2022 the Minister issued the Covid-19 mandatory vaccination regulation.
On March 11, 2022 the Minister took advantage of the Covid-19 no implementation regulation as published in the Federal Gazette BGBl. II 103/2022 as amended by BGBl. II 198/2022 ( COVID-19-Nicht- anwendungsverordnung ) and suspended mandatory vaccination from March 12 to August 31, 2022.
The claimant was 18 years old and lived in Vienna: according to the law he was subject to compulsory vaccination. The claimant submitted a claim to the Constitutional Court because no other remedies were available to him.
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 began its reasoning by recalling the necessary requirements for an individual to submit a complaint procedure: there must be a direct infringement to the claimant’s right and a direct interference in the claimant’s legal sphere by the challenged rules.
The Court summarized the features of the Covid-19 mandatory vaccination law and the linked regulations, so the Court delimited the rules on which its assessment was to be addressed. The Court recalled the pandemic’s history and the legislature’s reaction with the implementation of the Covid-19 Measures Law and its issued regulations: exit restrictions, entry bans, the obligation to wear masks and social distance, and PCR tests were all measures that sought to tackle with the spread of Covid-19 . Once vaccines were available, a sufficient vaccination rate was not achieved, so in the autumn of 2021, due to an exponential infection rate and the linked risk of overloading the health system, a “lockdown for unvaccinated persons” was issued. With this background, in December 2021 a legislative initiative concerning a vaccination law as created with the scope of enhancing the vaccination rate.
The Court pointed out that the mandatory obligation was effective but its implementation was suspended by the competent Minister by a regulation issued in March 2022.
Vaccination represents a significant interference with physical integrity which requires the consent of the concerned person, in order to safeguard the right to self-determination. Accordingly, compulsory vaccination should be qualified as a serious interference because the addressees of the rules have the option to live outside the Austrian territory or to accept the risk of being fined. The encroachment’s intensity was recognized by the Court. However, the Court pointed out that there were rules which mitigated the encroachment, such as the exemptions provided and the legal duty of the competent Minister to evaluate the suitability and necessity of compulsory vaccination. This legal provision was to be understood in compliance with the constitution, so the Minister was legally obliged to conduct a continuous and strict control and reaction to further developments of the disease . Accordingly, this flexible system determined whether, how, when, as well as who would be subject to compulsory vaccination.
The Court recalled the importance of social solidarity according to which each individual may be required to accept a low health risk associated with vaccination in order to provide protection for vulnerable people (ECHR, Case of Vavřička and Others). Another important aim was to preserve the functioning of the health infrastructure in order to protect the health of all citizens.
With regard to the alleged infringement on the right to private life, the Court recalled that interference was allowed when provided for by law and when the measure was proportional, i.e. necessary to protect health or national security for example. The legislature’s aim was the prevention of the spread of Covid-19 by way of a higher vaccination rate and to maintain the functioning of the health system. In this context, mandatory vaccination could be justified because it was absolutely necessary for achieving the aim.
The need for the obligation was also proportionate because it was subject to monitoring by the Minister of Health. Based on this continuous monitoring, in fact, the vaccination requirement was temporarily suspended by ministerial regulation (COVID-19-Nichtanwendungsverordnung, BGBl. II 103/2022, idF BGBl. II 198/2022).
Conclusions of the deciding body
The Court concluded that the mandatory Covid-19 vaccination law with its system of authorization by the competent Minister to issue further regulations did not infringe upon the principle of legality. Indeed, the law provided the essential elements for issuing further regulations by the Minister. Furthermore, the law obliged the Minister to continuously assess and evaluate the appropriateness and necessity of compulsory vaccination.
With regard to the point on the infringement of bodily integrity, the Court recognized the severe encroachment on the claimant’s right but pointed out the provisions which mitigated the intensity of the challenged rule.
Implementation of the ruling
The claim was rejected.
Fundamental Right(s) involved
- Right to bodily integrity
- Right to private and family life
- No-discrimination; No excess of legislative powers by the ordinance-issuer
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to integrity, art. 2, Austrian Constitution
- Principle of equal treatment, art. 7, Austrian Constitution
- Principle of legality, art. 18, Austrian Constitution
- Right to private and family life, art. 8, ECHR
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. private life
- Health v. legislative power (no excess of legislative powers by Ministers); Health v. principle of equal treatment; Health v. bodily integrity
General principle applied
- Rule of law
- Proportionality
- State of emergency or necessity
- Solidarity
Balancing techniques and principles (proportionality, reasonableness, others)
The Constitutional Court applied two principles: the rule of law and the principle of proportionality, in particular, as a necessity. The former was applied once the Court examined whether the law and resultant authorizations to issue regulations complied with the principle of legality.
Once the Court examined the core matter, id est the infringement to bodily integrity, the Court recognized the severe encroachment of the challenged measure. However, the Court considered compulsory vaccination to be a necessary measure because of the historical background of the pandemic evolution in Austria and because there was no further milder means available to reach the legislature’s scope.
Additionally, the monitoring system created by the government to suspend compulsory vaccination by ministerial regulation as soon as the measure was no longer necessary, was deemed adequate.
Judicial dialogue
- ECHR, Case of Vavřička and Others v. The Czech Republic, 8 April 2021;
- ECHR, Solomakhin v. Ukraine, 15 March 2012, Appl. 24.429/03;
- ECHR, Fall Salvetti v. Italy, 9 July 2002, Appl. 42.197/98;
- ECHR, Kopetzki v. Austria, Unterbringungsrecht I, 1995, 407 ff.;
- ECHR, Fall Herczegfalvy v. Austria, 4 October 1989, Appl. 10.533/83;
- ECHR, Acmanne and others v. Belgium, 10 December 1984, Appl. 10.435/83
Other notes
On "type of measure challenged": the rules challenged were 1) Covid-19 mandatory vaccination law and 2) Covid-19 mandatory vaccination regulation.
On "reasoning": the Court did not provide further reasoning concerning the alleged infringement to equal treatment before the law: the Court simply referred to the reasoning concerning the alleged infringement to private life.
