Germany, Federal Administrative Court, 7 July 2022, BVerwG 1 WB 2.22

The Court considered the claim admissible under Art. 13.3 of the Military Grievance Code because the challenged regulation was binding for troop doctors and disciplinary superiors. The challenged provision would include the Covid-19 vaccination among the list of mandatory vaccinations which soldiers should undergo.

With regard to the alleged infringement of the principle of legality, the Court ascertained that the challenged rule was issued following the procedures provided and with the involvement of soldiers' representatives. Therefore, according to the general regulation, the Minister was the competent authority to determine the necessity of the vaccination through an administrative act. Furthermore, the Soldiers' law includes a provision, according to which every soldier is obliged to keep themselves healthy in order to fulfill their military duties and to tolerate medical measures, capable of preventing communicable diseases, even if they are against their will. This rule is based on the consideration that military service entails the risk of spreading diseases due to the work carried out in limited spaces, like vehicles, ships, or aircrafts or due to deployments in conditions where natural hazards are present. In this sense, the law requires every soldier to provide a contribution to their own fitness, in order to permit the overall functioning of the German army, according to Art. 87 of the German Constitution. The Court added that preservation of a soldier’s individual operational capability is a central duty of the soldier, according to Art. 33 of the German Constitution.

The Court recognized the encroachment on the soldier’s physical integrity, however, this measure was considered reasonable because the individual soldier could determine which vaccine they preferred: soldiers were required to have different vaccinations depending on their place of deployment (at home or abroad).

Finally, with regard to the alleged excess of discretionary powers, the Court did not agree with the claimant's arguments. When the compulsory order was introduced the delta variant of Covid-19 posed a significant risk to human health. The German Federal Constitutional Court, in sentence 1 BvR 2649/21, also confirmed the existence of a worsening pandemic situation in the winter of 2021 and according to the prevailing expert assessment, vaccination would significantly reduce the spread of Covid-19 and, in case of infection, would diminish the risk of a severe course of the disease.

According to the Court, the Minister was entitled to rely on the reports of the federal scientific institution for vaccines and biomedical drugs (Paul-Ehrlich-Institute), in order to assess the risk of vaccination, and did not obtain data from the associations of statutory health insurance physicians.

Finally, the Court pointed out that the Minister of Defense was obliged to monitor and evaluate soldiers' compulsory vaccination because standing orders must always be reviewed to determine whether they continue to be proportionate and discretionary in light of changed circumstances.