Germany, Federal Constitutional Court, 27 April 2022, No. 1 BvR 2649/01
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)
- State Court
- Federal Court
Instance
Area
Vulnerability groups
Outcome of the decision
Link to the full text of the decision
General Summary
In December 2021 the German Parliament approved amendments to the Federal Infection Protection Law. According to the amended provisions, from the 15th of March 2022, persons working in healthcare and nursing facilities had to be vaccinated or recovered and should provide the vaccination or recovered certificate to the employers. If vaccination or recovered proof was not submitted by the deadline or if doubts arose of their authenticity, the employers must immediately inform the Public Health Department would could then impose a ban on entry into the employers’ facilities or the exercise of the work activity for the persons who failed to submit the requested proof within a reasonable period of time. The Claimants worked in the healthcare system as medical doctors or in the nursing services. Several Claimants submitted an application to the Constitutional Court for a review of the challenged provision. They alleged an infringement on the right of human dignity, the right of conscience, the right of bodily integrity, and the right to exercise their chosen profession. They also alleged an infringement on the principle of legality because the challenged provision would require the German Senate’s approval because of its legally binding effect on Länder, towns. Finally, the Claimants alleged an infringement on privacy, as the challenged provision did show how personal data would be handled. The Court has rejected the claim.
Facts of the case
Close to the end of 2021, the spread of COVID-19 worsened in Germany. The rate of infections, as well as, infection-related number of severe illnesses and deaths increased. At the same time the intensive medical treatment capacities were largely strained and at Land’s level had already been exceeded, so the transfer of patients to other parts of Germany was necessary.
The Claimants worked in the health care and nursing system. Some of them were neither vaccinated nor recovered, while others refused to be boosted or expressed fears about the potential side effects of the vaccine. As a result of the issued amendments, they were obligated to provide either proof of vaccination, recovery, or exemption from vaccination, to carry out their professional activities. In case of failed compliance with this requirement, the Claimants would be prohibited from carrying out their work activities.
Several Claimants submitted separately an application to the Constitutional Court for a constitutional review of the challenged provision. Some Claimants were linked in a request for a temporary injunction.
In February 2022, the Constitutional Court rejected an application for a temporary injunction, in order to get the suspension of the challenged provision’s implementation.
In March 2022, during the constitutional proceeding, the German legislature introduced changes linked to the definition of complete vaccination.
The Constitutional Court asked the German Government, Parliament, Länder and other third-party experts to submit their comments and opinions.
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 Constitutional Court began its reasoning by defining the extent of its decision. Several claims have been rejected because the alleged infringement, as for example to the privacy right, were not sufficiently motivated. Consequently, the Court has focused its attention on two alleged infringements, the right of bodily integrity and the right to exercise a profession.
The challenged provision encroached on the right of bodily integrity. This right encompasses the right to decide which medical treatment a person decides to take advantage of, according to the Court.
The COVID-19 vaccination requires a prior informed consent and a self-determined decision. Such an encroachment requires constitutional justification and at least the compliance of the challenged provision with the principle of legality. The Court has not shared the Claimant’s argument on this point. The law complied with legislative procedures, so no approval of the German Senate was necessary, and the law clearly defined the room for secondary legislation.
The legislature pursued a legitimate purpose to protect the health and life of vulnerable groups against COVID -19 infection. The need of further precautionary measures were justified by the figures of infections and intensive care patients and by the experts’ reports. The vaccination or recovered certificate aimed to ensure that medical and nursing employees were sufficiently immunized, so COVID-19 could not spread among vulnerable groups.
The legislature did not provide a compulsory vaccination but left up to the employees of health care facilities, the decision to provide the vaccination or recovered certificate.
However, employees are put in front of the decision to give up their professional activity or to consent to the impairment of their physical integrity. This circumstance was evident for those persons active in the medical and healthcare sector. The restriction’s intensity was increased by the prohibition to enter in the employers’ facilities and to carry out their professional activities.
The Court has recognized the restriction to the right to exercise a profession. T his right protects against impairments linked to professional activity by directly preventing or restricting it.
The effects of the law’s implementation depend on the type of professional activity performed. The restriction’s severity is higher for those employees, such as doctors or nurse, who cannot avoid the challenged requirement. I n the absence of a recovered or vaccination certificate, it would be largely impossible to carry out their professional activities . By contrast, administrative or cleaning staff, for example, may be covered by the challenged requirement if their workplace is in a health care facilities. However, these persons can continue their chosen occupational activities if they change jobs.
In its reasoning, the Court has focused on the milder points of the challenged law, the exemption from vaccination due to medical contraindication, the limited addressee of this provision, and that the prohibition to exercise the professional activities is subject to an individual case decision by the public health authority. Accordingly, automatism is foreseen between the absence of a recovered or vaccinated certificate and the prohibition to carry out the professional activities .
Conclusions of the deciding body
The Court has rejected the Claimant’s application because the Court has recognized the legitimate interest pursued by the legislature to protect the life and health of vulnerable groups. The health protection of vulnerable groups prevails over the Claimants’ rights.
Fundamental Right(s) involved
- Right to bodily integrity
- Human dignity, right to exercise the profession, freedom of profession
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to human dignity, Art. 1, German Constitutional law
- Right of bodily integrity, Art. 2, German Constitutional law
- Exercise of the profession, Art.12, German Constitutional law
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Proportionality
- Precautionary
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the rule of law, once it defined the grounds of its decision. The applications were not sufficiently motivated and have been rejected.
On the merits of the decision the Court applied the precautionary principle once it had examined the alleged infringements to fundamental rights.
The scope to protect vulnerable groups lead them to take the precautionary measure to require a vaccination or a recovered certificate. The decision to comply with this rule was up to the employees and professionals. Though the encroachments to their right was recognized as severe, the Court has pointed out those details of the challenged provision, which mitigated the law.
The encroachment on the physical integrity of the persons concerned is to be balanced with constitutional interests of enormous importance and the Court found the balancing to be proportionate.
Judicial dialogue
ECHR Decision, Vavřička and others v. the Czech Republic.
Other notes
This decision is linked to the decision of the Constitutional Court concerning the temporarily injunction, which was decided on February 2022. Link to the sentence, which is available in German: Bundesverfassungsgericht - Entscheidungen - Erfolgloser Eilantrag zur Außervollzugsetzung der “ einrichtungs- und unternehmensbezogenen Nachweispflicht" nach § 20a Infektionsschutzgesetz
