Germany, Administrative Court Schleswig-Holstein, 13 June 2022, 1 B 28/22
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
Further areas addressed
- Sanctions and remedies
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Link to the full text of the decision
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
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 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.
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
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.
