Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
The Claimant, a private person, was neither vaccinated nor had the person recovered from COVID-19. The Claimant submitted a claim against the rules contained within the 5th COVID-19 protection regulation, COVID-19-SchuMaV, BGBl II 465/2021. According to that regulation, starting November 15, 2021, all persons without a 2G certificate, showing that they were either vaccinated or had recovered from COVID-19, could only leave their home for purposes linked to basic personal needs or for work purposes, where no other option is available. Those departures from the general prohibition were called “exit rules.”
The Claimant alleged four infringements. First that the principle of legality would be violated because of an excess of powers committed by the issuing authority about the “exit rules” and that the legislator did not address the issue concerning the reliability of data about the incidences among vaccinated persons. Second, they alleged that the infringement restricted family and private life. Third, that the challenged provision would infringe the right of self-determination. Fourth, that the Claimant that the principle of equality was infringed upon because the challenged provision would differentiate between vaccinated or recovering form COVID-19 people and non-vaccinated or people not recovering from COVID-19. The former group was not subject to the same encroachments as the latter group.
The Claimant requested for a finding that the challenged provision was unlawful.
The Constitutional Court has rejected the claim.
Facts of the case
The Claimant had neither recovered from the COVID-19 nor been vaccinated. Therefore, the Claimant did not have a 2G certificate.
From November 15, 2021, the precautionary measures, as provided by the 5th COVID-19 protections regulation, were implemented. According to those rules, persons without a 2G certificate could only leave their homes to satisfy basic needs or for work purposes.
Due to the regulation, the Claimant's contacts with her family were reduced. The Claimant could not attend or hold a birthday celebration for her brother and her mother. Moreover, the Claimant's leisure and cultural activities, such as visits to museums, theatres, or thermal baths were no longer possible. Further, a short holiday to Salzburg could not be booked because without a 2G certificate the Claimant could not find accomodations.
The Claimant argued that her rights ere directly infringed by the challenged provisions because she was no longer allowed to do various activities, such as cut her hair or go to the beauty salon.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court begun its reasoning recalling that it must exclusively assess whether the challenged provisions are unlawful for the reasons set out in the claim.
Regarding the alleged infringement of the principle of legality, the Claimant argued that the “exit rules” were not based on a provision of law. The Court did not agree with the Claimant's arguments. According to the Court, the “exit rules” were legally based on §1 para 5b COVID-19-MG Measure law, COVID-19-Maßnahmengesetz. This provision is applicable in connection with the exit laws, §6 COVID-19-MG. §Section 1(5b) in conjunction with section 1(5) and (5a) of the COVID-19-MG). In this context, a regulation should provide the documents on which it is based. In this case, the challenged regulation was based on scientific data and information according to the Court.
On the infringement to the right of family and private life, the Court has been aware of the severe encroachment of this right, which protects contacts with relatives, friends, and acquaintances. However, interferences with the exercise of this right are allowed insofar they are provided by law and are necessary to protect other constitutional granted rights. The decrease in the spread of COVID-19 and the prevention of the breakdown of the medical care system are public objectives. At the time of the challenged provisions’ implementation, the spread of COVID-19 showed an increase in the infection rate. consequently, no milder restriction was effective in limiting the spread according to the Court. For this reason, the Court has evaluated the restriction as proportionate to the scope pursued by the legislature. Similar considerations have been carried out regarding the alleged infringement on the right of self-determination.
Finally, regarding infringement on the principle of equality, the Claimant argued that the risk of the spread of COVID-19 is basically the same for vaccinated and recovered people as for non-vaccinated or non-recovered people. However, the challenged provisions assumed a lower risk of bieng infected for recovered and vaccinated persons. According to the Claimant this assumption is wrong because asymptomatic cases often remain undetected. for this reason, it could not be said that an untested vaccinated or a recovered person posed a lower risk compared to a currently tested unvaccinated person.
The Court did not agree with the Claimant’s arguments. The legislature expressly authorized differentiations between persons who pose a low epidemiological risk, those who are vaccinated or have recovered and tested and those persons with proof of antibodies and those who do not. Depending on the epidemiological situation, the provision allow a further differentiation within the group of persons with a low epidemiological risk. This differentiation assumes that the probability of a further COVID-19 spread among this group of persons is significantly reduced.
The legislature grounded its decision on scientific information and statistics. Therefore, the empirical data on which the regulations were based showed that the intensive care units dealt significantly with more non-vaccinated or non-recovered persons than with vaccinated or recovered persons. According to the Court this is a significant difference, between merely tested people and those who have recovered or been vaccinated, in the spread of COVID-19.
Conclusions of the deciding body
The Court has rejected all of Claimants’ arguments.
Though the encroachments of private life right are severe, the Court has found that health reasons prevail.
Regarding the alleged discrimination between recovered or vaccinated people and non-recovered or nom-vaccinated, the Court did not agree with the Claimants argument because the scientific data and information available, at the time of the regulation, showed a lower COVID-19 spread amongst the former categories. The legislature did not act in an unobjective manner because a negative test result was not suitable to avert the predicted collapse of the healthcare system, according to the Court.
Implementation of the ruling
The claim has been rejected.
Fundamental Right(s) involved
- Right to private and family life
- Principle of equality; Right of self-determination; Scope of powers
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Art.7 Austrian Constitution: principle of equality;
- Art.18 Austrian Constitution: principle of legality;
- Art.8 EMRK: right of family and private life
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. right to privacy (private and family life)
- Health v. right of self-determination; Health v. no-discrimination
General principle applied
- Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)
The Constitutional Court has applied three principles including the the rule of law and the proportionality and precautionary principles, in order to balance the constitutional granted rights.
The rule of law has been applied by the Court, when it decided on the correct exercise of power by the authority, which issued the challenged regulation. The same principle was also applied when the Court ruled on the alleged infringement to the principle of equality.
About the infringement of the right to private and family life, as well as, on the right of self-determination, the Court applied the principles of proportionality and the precautionary measures. Though the encroachments on the rights for non-recovered or non-vaccinated were severe, the Court has argued that health reasons prevails and at the same time judged the issued measure as proportional to the scope pursued by the legislature.