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Germany, Administrative Court Schleswig-Holstein, 13 June 2022, 1 B 28/22

Case overview

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Country
Germany
Case ID
1 B 28/22
Decision date
13 June 2022
Deciding body (English)
Administrative Court Schleswig-Holstein
Deciding body (Original)
Verwaltungsgericht Schleswig Holstein
Type of body
Court
Type of Court (material scope)
Administrative Court
Type of jurisdiction
Double jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
1st Instance
Area
Vaccination
Further areas addressed
  • Sanctions and remedies
  • Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_DE available on gesetze-rechtsprechung.sh.juris.de

Case analisys

General Summary

The claimant worked in a dental practice as a treatment assistant. According to the federal protection infection law (Infektionsschutzgesetz, IfSG), persons working in the medical sector must provide proof of vaccination, proof of recovery, or a medical certificate stating that they cannot be vaccinated against the coronavirus due to a medical contraindication. Because the claimant did not provide such proof, the competent authority was informed which then set a compliance deadline for the claimant, who was ordered to submit the requested proof by the date indicated. If the claimant did not comply with the authority's request she could be fined with an administrative sanction up to € 2,500 and would be prohibited from carrying out her professional activity. The claimant submitted an appeal against the decision and sought interim relief in order to get the authority's order suspended. The claimant alleged an infringement of the principle of legality because the law did not provide the communication of the certificate through a formal administrative act. The Court upheld the claim.

Facts of the case

The federal infection protection law was amended and by March 15, 2022, specific categories of workers were to provide a certificate of vaccination, proof of recovery. or a medical certificate stating that they could not be vaccinated against the coronavirus due to a medical contraindication, in order to continue to carry out their professional activity. The applicant's employer informed the competent authority that the applicant had not provided the requested certificate. The competent authority requested that the claimant submit the certificate as provided by law. If the claimant failed to comply with the authority's request, an administrative sanction of up to € 2,500.00 could be issued and the claimant would be prohibited from entering and working in the dental practice.

Type of measure challenged
Federal government measure
Measures, actions, remedies claimed
Ascertainment of the lawfulness of the means of communicating a vaccination certificate to the requesting authority
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Ordinary procedures
Reasoning of the deciding body

The Court began its reasoning by focusing on the administrative procedural rules, according to which the Court may restore suspensive effects when the immediate execution of an administrative act has been specifically ordered in the public interest by the authority which issued the administrative act.

A comprehensive weighing of interests was to be carried out: on the one hand were the private interests in obtaining a postponement of the administrative act's implementation and on the other, the public interest in obtaining its immediate enforcement. In this context, the question of the lawfulness of the act played an important role. If the unlawfulness of the challenged decision was apparent, the authority's order would be suspended, because there can be no public interest in the immediate execution of an unlawful decision. On the contrary, if the contested decision proved to be manifestly lawful, immediate enforcement may coincide with the interest in issuing the order.

According to the Court, the public interest in obtaining an immediate enforcement of the authority's order did not outweigh the private interest of obtaining a postponement of its enforcement. Therefore, the challenged order to produce proof of vaccination, proof of recovery, or a medical certificate stating a medical exception was manifestly unlawful.

The challenged decision was unlawful because the authority was not allowed to order submission in the form of an administrative act. The lawfulness of an administrative act requires, in addition to the lawfulness of its content, that the authority may proceed in the form of an administrative act. Therefore, the principle of the reservation of the law requires that action by administrative act is provided by law if a decision is to be taken which is unfavorable to the addressee. The possible validity of an administrative act imposes the burden of raising objections to the addressee, so that the use of the form of action as such already encroaches upon its rights.

According to the Court, the interpretation of the federal infection protection law alone did not permit the conclusion that the authority could enforce the obligation to submit certain evidence by administrative act. This interpretation of the rule was reinforced by the history of the rule's origin, by the meaning and purpose of the provision. Accordingly, the authority's obligation to provide evidence, established in this provision, should not be substantiated by an administrative act before the prohibition of entry or activity is pronounced by administrative act.

The public health authority may prohibit persons who do not present proof of vaccination, despite being requested to do so, from entering or working in corresponding facilities or enterprises. This is a discretionary decision by the public health authority. However, the Court pointed out that the federal infection protection law did not impose a direct obligation to be vaccinated, which can be enforced by administrative coercion: failed compliance led to occupational disadvantages. The right of self-determination continued to exist according to the Court.

Conclusions of the deciding body

The Court upheld the claim and granted the injunction because the multi-stage procedure with successive administrative decisions, as designed by the legislature, would be thwarted. Therefore, it would be contrary to the law that an order to submit evidence would be immediately enforceable, whereas the prohibition to enter or to carry out work, was not provisionally enforceable by law.

Implementation of the ruling

The claim was upheld.

Balancing Fundamental Rights and Fundamental Freedoms

Fundamental Right(s) involved
  • Right to private and family life
  • Right to work
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
  • Right to self-determination, Art. 2.1, German Constitution
  • Right to work, Art. 12, German Constitution
  • Principle of legality/reservation, Art. 20, German Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
  • Health v. private life
  • Right to carry out a professional activity
General principle applied
Rule of law
Balancing techniques and principles (proportionality, reasonableness, others)

Throughout the sentence the Court applied the rule of law because it examined whether the issuing authority had issued an order in compliance with the principle of legality and reservation. Therefore, in its reasoning the Court pointed out that the German legislature, with the federal infection protection law, had introduced an encroachment upon the constitutional granted right to exercise a profession, in order to exert pressure on people to vaccinate. However, the right of self-determination still continued to be applied.

Additional notes

Additional resources
Link_DE to gesetze-im-internet.de
Author of the case note
Dr. Rebecca Berto, Researcher assistant , IBA member
Published by Marco Nicolò on 11 November 2022

More cases from Germany

  • Germany, Federal Constitutional Court, 18 October 2022, BVerfG 1 BvN 1/21
    Area: Scope of powers of public authorities (legislative, executive etc.)
    Outcome: Claim inadmissible or rejected
  • Germany, Administrative Court Münster, 19 May 2022, 5a K 854/21
    Area: Freedom to conduct a business
    Fundamentals rights involved: Freedom to conduct a business; Right to an effective remedy
    Outcome: Claim upheld
  • Germany, Federal Administrative Court, 7 July 2022, BVerwG 1 WB 2.22
    Area: Vaccination
    Fundamentals rights involved: Right to bodily integrity; Right to good administration
    Outcome: Claim inadmissible or rejected
  • Germany, Administrative Court of Appeals of Lüneburg, 25 January 2022, No. ‎14 MN 121/22‎
    Area: Freedom of movement of people
    Fundamentals rights involved: Freedom of movement of people, goods and capital; Other (Self-determination, non-discrimination)
    Outcome: Claim partially upheld
  • Germany, Constitutional Court, 16 December 2020, No. ‎1 BvR 1541/2020‎
    Area: Public health and access to healthcare (not Covid-related diseases)
    Fundamentals rights involved: Other (Right to access health services, principle of equality)
    Outcome: Claim upheld
  • Germany, Administrative Supreme Court of Munich, 3 March 2022, No. ‎20 CE 22.536‎
    Area: Multilevel government and allocation of powers
    Fundamentals rights involved: Freedom of movement of people, goods and capital; Other (Allocation of administrative power, health and life)
    Outcome: Claim upheld
  • Load 6 more
List all available cases from Germany

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