Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Freedom of movement of people
- No discrimination
Outcome of the decision
The case concerns the 2G rule (certificate of vaccination or recovery) encompassed in the COVID-19 protection measure published in the Federal Law Gazette (BGBl II 537/2021, idF BGBl II 24/2022). The purpose of the ordinance was to tackle the specific risk posed by persons, who were neither vaccinated nor recovered, but who had a high level of antibodies.
The Claimant, who was not vaccinated, got an antibodies’ test result: this test showed a high level of antibodies. However, due to the ordinance in force, the Claimant could no longer attend work meetings nor purchase a burial card. The Claimant submitted a claim with the Constitutional Court because no further remedies were available to her.
The Claimant alleged an infringement to the freedom of movement and the principle of equal treatment because the challenged measure had introduced differences among the low-risk group, vaccinated/recovered people, and those who tested with high level of antibodies. These differences were not objectively justified. The Claimant requested that the ordinance be found unlawful. The Constitutional Court has rejected the claim.
Facts of the case
The Claimant was a lawyer and was not vaccinated. Though she had recovered from COVID-19 more than 180 days ago, the Claimant had a high level of antibodies according to a test which had been carried out in December of 2021.
From October 2021 to December 2021 the competent Minister introduced changes to the COVID-19 opening ordinance, which restricted more and more the Claimant’s rights: in the last version, the claimant could no longer leave her home, so she could not purchase a burial card nor attend work meetings. Further, the claimant could no longer take go to the hairdresser nor receive other esthetic treatments.
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 began its reasoning recalling the requirements, which should be met, to submit an individual complaint. There must be a direct infringement to the Claimant’s right by the challenged ordinance, a direct interference in the Claimant’s legal sphere by the challenged ordinance and the ordinance must have been enforced without a court ruling.
The Court has noted that the effects of the challenged ordinance ended in January of 2022. The Court has recalled that at the time of the implementation of the challenged rules, they had had a significant impact over the Claimant’s right. The Court recalled the reasoning of the sentence V294/2020. The Court has focused its attention on the alleged infringement to the principle of equality.
The principle of equal treatment binds the legislature. It prohibits the creation of unobjective differentiations, which cannot be justified by actual differences and an unobjective equal treatment of unequal things, which cannot be objectively justified.
The COVID-19 Measure provided that the ordinance-issuer could introduce differences among epidemiological low risk groups, if there is scientific evidence that there is a connection to the prevention of the spread of COVID-19. If so, then secondary legislation could be proper.
The Court has noted that the COVID-19 Measure mentioned as possible evidence of a merely low epidemiological risk also a proof of neutralizing antibodies. However, this mention did not imply an unconditional requirement for the ordinance-issuer to consider this proof. This evidence was subject to the state of scientific knowledge. The Court has recalled the technical expert report attached to the challenged ordinance, according to which the naturally acquired immunity usually decreases six to eight months after recovery. The Court has noted the insufficient scientific data on neutralizing antibodies. As a consequence, it was within the discretion of the ordinance-issuer not to equate a combination of neutralizing antibodies with a negative test result to a vaccination or a recovery within the last six months.
Regarding the other alleged infringement, the Court expressly recalled its reasoning in the sentence V294/2021 and V23/2022. In the former sentence the Court argued that an interference in the private and family life is allowed insofar it is provided by law and is necessary to protect constitutional granted right. In V23/2022 the Court pointed out that the restrictions to family and private life was indispensable to prevent the covid-19 spread and lastly an imminent breakdown of the healthcare system.
Conclusions of the deciding body
The Court has rejected the claim because the ordinance-issuer did not infringe on the principle of equal treatment. The differentiation between vaccinated or recovered persons on the one hand and persons in whom (merely) neutralizing antibodies are detectable on the other hand was based on the available scientific data and scientific knowledge.
Implementation of the ruling
The claim has been rejected.
Fundamental Right(s) involved
- Right to private and family life
- Non-discrimination, no excess of legislative powers by the ordinance-issuer
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of movement, Art. 4, Austrian Constitution
- Principle of equal treatment, Art. 7, Austrian Constitution
- Principle of legality, Art. 18, Austrian Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. legislative power, health v. principle of equal treatment
General principle applied
- Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)
The Constitutional Court has applied the rule of law because the core question concerned the alleged infringement of the principle of equal treatment. Throughout the decision, the Court, in its reasoning, has recalled the records and the experts’ opinion on which the challenged ordinance and the precautionary measures were based. Accordingly, the Court has ascertained that the different treatment of persons belonging to an epidemiological low-risk group was based on the state of science. By recalling the sentences V23/2022 and V294/21 the Court reaffirmed that the restrictions to family and private life were necessary to protect the functioning of the public health system.