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
Since January 2022 the federal regulation on the relief and exemptions from safeguards to prevent the spread of COVID-19 (COVID-19-Schutzmaßnahmen-Ausnahmenverordnung- SchAusnahmV) has been implemented. This regulation was amended by the protective measures’ exemption ordinance and the coronavirus entry ordinance, issued in January of 2022 (Banz. AT 14.01.2022 V1). According to this regulation the recovery status validity should be reduced from six months to 90 days. A scientific institute was named by the legislature to regulate the details related to the recovery certificate.
The Claimant tested positive for COVID-19 in December of 2021. After 90 days, and in absence of a vaccination certificate, the Claimant, a dentist, could not continue to exercise her professional activities.
The Claimant alleged an infringement on her right of self-determination because she considered a vaccination in March 2022 as premature. She wanted to decide the vaccination’s timing. Further, she alleged an infringement on her right to exercise her professional activity. The reduction of the validity of a recovery certificate to 90 days, would imply that in absence of a 2G (recovered or vaccinated) proof, she could not carry out her work.
The Claimant sought a temporarily injunction. The Court of first instance has rejected the claim, while the Court of Appeals has upheld it. The Court of Appeals granted the injunction because of an infringement on the principle of legality.
Facts of the case
The Claimant, a dentist tested positive for COVID-19 in the middle of December of 2021. The Claimant had not been vaccinated against the COVID-19 disease. In the meantime, the federal regulation on relief and exemptions from safeguards to prevent the spread of COVID-19, provided that the validity of the recovery period was shortened from 6 months to 90 days.
The competent health authority issued a recovery certificate in the middle of January 2022. The certificate was valid until the middle of June 2022. Though the validity period of six months was expressly noted on the certificate, the issuing authority informed the Claimant that the time validity would expire sooner, after only 90 days. The Claimant turned to the Administrative Court looking for an injunction order, whose purpose was to get an ascertainment about the expiration date, June 2022, of the recovery certificate.
The first instance Court had rejected the claim for two reasons. On one hand, the legal requirements for an injunction were not met and there was no legal basis under federal nor Land law for issuing the requested confirmation. On the other hand, the Claimant’s professional activities were included in those, which were subject to the Federal Infection Protection Law for mandatory vaccination. It was true that a recovered person was equated to a vaccinated person but the Claimant would postpone the vaccination of a couple of months, instead of March to June 2022, according the first instance Court.
Against this decision the Claimant submitted an appeal to the competent Administrative Court.
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 has begun its reasoning recalling that its review had been initially limited to the ascertainment whether the appeal was suitable to quash the first instance decision. If the outcome was positive, the Court should examine ex officio the merits of the case.
The Court has summarized the position of the lower Court. The legislature provided mandatory vaccination for a listed group of professions. The Claimant’s profession was including in one of these groups. Accordingly, the Claimant’s vaccination was a question of time. However, the Claimant argued an infringement to her freedom to self-determination because she should decide the vaccination’s timing.
The Court of Appeals has not shared the lower Court’s reasoning. The reduction of the validity period of the recovered certificate would determine severe disadvantages, which may justify the request for a temporarily order. The mandatory vaccination, which would be implemented from March 2022, was linked to the period of validity of the recovery certificate because it would affect the Claimant’s freedom to exercise her profession and the freedom of self-determination.
The Court has also disagreed on other points of the first instance decision. According to the administrative code, a legal relationship results from a concrete factual situation based on a public-law provision. In this case, the exercise of the State’s powers and the fulfilment of State’s tasks is a matter of the Länder, so the Länder are called to administratively implement the federal laws. Therefore, a legal relationship is established between the Claimant, as rule addressee, and the Defendant, as an enforcement authority.
In the common language, the recovered status is merely the property of a person and not a legal relationship to another person or thing. Consequently, legally relevant characteristics are not ascertainable, only the rights and duties associated with them. The challenged regulation provided only definitions. A legal relationship was indirectly created with the interaction with federal or Land legislation related to the 2G rule (recovered or vaccinated) or the exemption regulation.
According to the Court the only rights and obligations linked to the challenged provision and capable of creating a legal relationship, was the authorization to continue to exercise the profession. Understood in these terms, a temporarily injunction is admissible.
However, the recovery certificate is an official declaration of knowledge and not an administrative act. According to the administrative law an act is any order, decision, or other measure under public law that an authority takes to regulate an individual case in the field of public law and that is aimed at having a direct legal effect on the outside.
However, the entitlement to an injunction derives from the challenged regulation. The Court has been persuaded that the regulation in its version of January 2022, infringed on the principle of legality because the specifications to determine the validity of a recovery certificate should be determined by the scientific institute.
Conclusions of the deciding body
The Court has delimited the terms according to which a request for a temporarily injunction was admissible, in cases when the Claimant asked an ascertainment about her recovery status.
The Court has granted the injunction and has ascertained that the Claimant should be considered as recovered until June of 2022.
Fundamental Right(s) involved
- Right to an effective remedy
- Freedom of self-determination, right to exercise a profession
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of self-determination, Art. 2, German Constitution
- Right to exercise a profession, Art. 12, German Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
Throughout its decision the Court has applied the rule of law. The Court has examined whether the reasons on appeal were founded to reverse the decision of the court of first instance. The rule of law has been applied to the further legal points, such as the existence of a legal administrative relationship between the Claimant and the Defendant.
However, the Court has been sparing in its reasoning when it came to argue its position on the infringement to constitutional granted rights, for example, the infringement to the principle of legality was summarized in a few sentences.
The link to the sentence of the first instance Court, VG Oldenburg, 04.03.2022 - 7 B 401/22, is not available.