FEDERAL CONSTITUTIONAL COURT

- 1 BvR 2649/21 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Harbarth,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 10 February 2022:

1. The application for preliminary injunction is rejected.

R e a s o n s :

The constitutional complaint, lodged together with an application for preliminary injunction, is directed against amendments to the Protection Against Infection Act. The challenged amendments are set out in Art. 1 nos. 4 and 9(a)(aa) nos. 7e to 7h of the Act to Promote Vaccination Against COVID-19 and to Amend Other Provisions in the Context of the COVID-19 Pandemic (Gesetz zur Stärkung der Impfprävention gegen COVID-19 und zur Änderung weiterer Vorschriften im Zusammenhang mit der COVID-19-Pandemie ) of 10 December 2021 (Federal Law Gazette I, Bundesgesetzblatt I – BGBl I, p. 5162), which took effect on 12 December 2021. These amendments inserted § 20a and § 73(1a) nos. 7e to 7h into the Act on the Prevention and Control of Infectious Diseases in Humans (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen , Infektionsschutzgesetz , Protection Against Infection Act – IfSG). The newly inserted provisions impose an obligation on staff of certain institutions and organisations [in the health and care sectors] to provide proof of vaccination, recovery or contraindication to vaccination against COVID-19, with non-compliance punishable by fine.

I.

1. Pursuant to § 20a(1) first sentence IfSG, persons working in certain healthcare or care institutions and organisations must be vaccinated or have recovered from COVID-19 as of 15 March 2022. They must therefore provide proof of vaccination or recovery from COVID-19, or a medical certificate indicating that they have a medical contraindication, to the head of their institution or organisation by 15 March 2022 (cf. § 20a(2) first sentence IfSG). Proof of vaccination or recovery must satisfy the requirements of § 2 nos. 3 and 5 of the COVID-19 Ordinance on Exemptions from Protective Measures (Ordinance Governing Allowances and Exemptions from Protective Measures to Prevent the Spread of COVID-19, COVID-19-Schutzmaßnahmen-Ausnahmenverordnung – SchAusnahmV) of 8 May 2021 (Federal Gazette Official Publications, Bundesanzeiger Amtlicher Teil – Banz AT of 8 May 2021 V1, last amended by the Ordinance Amending the COVID-19 Ordinance on Exemptions from Protective Measures and the Ordinance on COVID-19 Entry Regulations of 14 January 2022, BAnz AT of 14 January 2022 V1), in the version in force at the relevant time. For specifying these requirements, the Ordinance in turn makes reference to details published on the websites of the Paul Ehrlich Institute and of the Robert Koch Institute.

If no proof of vaccination or recovery is submitted by 15 March 2022 or if there are doubts as to its authenticity or accuracy, the management of the respective institution or organisation must inform the local public health authority (Gesundheitsamt ) without undue delay (cf. § 20a(2) second sentence IfSG). Where persons concerned then fail to comply with a demand by the public health authority to submit the required proof within a reasonable deadline, the authority can issue an order banning them from entering the relevant institutions and organisations, or from working there (cf. § 20a(5) third sentence IfSG). Persons who only start to work at the institutions or organisations in question from 16 March 2022 onwards must submit proof pursuant to § 20a(2) first sentence IfSG before taking up their work (cf. § 20a(3) first sentence IfSG). Otherwise, they may neither be employed nor work at such institutions or organisations from the outset (cf. § 20a(3) fourth and fifth sentence IfSG). Proof that expires from 16 March 2022 must be replaced with new proof within one month of expiry (cf. § 20a(4) first sentence IfSG). Non-compliance with various rules in § 20a IfSG is punishable by fine (cf. § 73(1a) nos. 7e to 7h IfSG). § 20a IfSG and the provisions governing fines cease to have effect on 1 January 2023.

2. Most of the complainants in the present proceedings work for healthcare or care institutions and organisations covered by § 20a(1) first sentence IfSG, either as self-employed practitioners or as employees or civil servants. They are mostly unvaccinated, or refuse to receive further vaccinations; some of them have already recovered from a COVID-19 infection. Other complainants include heads of institutions or organisations within the meaning of § 20a(1) first sentence IfSG who want to continue to employ unvaccinated persons. The remaining complainants are patients of unvaccinated doctors, dentists and other medical professionals.

3. With their constitutional complaint, the complainants claim a violation of their rights under Art. 1(1), Art. 2(1), Art. 2(1) in conjunction with Art. 1(1), Art. 2(1) in conjunction with Art. 103(2), Art. 2(2) first sentence, Art. 3(1), Art. 4(1), Art. 6(2), Art. 10(1), Art. 11(1), Art. 12(1), Art. 13(1) and (7), Art. 19(4) and Art. 33(2) and (5) of the Basic Law (Grundgesetz – GG).

With their application for preliminary injunction, they seek the provisional suspension of § 20a IfSG and of § 73(1a) nos. 7e to 7h IfSG. They assert that their constitutional complaint evidently has good prospects of success. In any case, the outcome of a weighing of consequences conducted in the preliminary injunction proceedings would be in their favour. The complainants submit that they would have to fear serious vaccine side effects and vaccine damage if the constitutional complaint were successful in the principal proceedings but the application for preliminary injunction were rejected in the meantime, given that vaccination is irreversible. They claim that dentists and doctors must “fear for their career”. Rejecting the application for preliminary injunction would lead to immense and irreversible fundamental rights violations. They assert that, by contrast, if the preliminary injunction were issued but the constitutional complaint proved unsuccessful in the principal proceedings, the risks to vulnerable groups would not be so great as to justify the rejection of the application for preliminary injunction.

4. The Bundestag , the Bundesrat , the Federal Chancellery, the Federal Ministry of the Interior and Community, the Federal Ministry of Justice, the Federal Ministry of Health as well as all Land governments were given the opportunity to submit statements in the proceedings, and asked to answer questions of fact raised by the Court. In accordance with § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the opportunity to submit statements on these questions of fact [as expert third parties] was also given to the German Medical Association (Bundesärztekammer ), the German Society for Epidemiology (Deutsche Gesellschaft für Epidemiologie e.V.), the Helmholtz Centre for Infection Research (Helmholtz-Zentrum für Infektionsforschung GmbH ), the German Society of Infectious Diseases (Deutsche Gesellschaft für Infektiologie e.V. ), the Society of Virology (Gesellschaft für Virologie e.V. ), the Paul Ehrlich Institute, the Robert Koch Institute and the Association of Doctors for Autonomy in Deciding on Vaccination (Verein der Ärztinnen und Ärzte für individuelle Impfentscheidung e.V. ). Moreover, the following associations were given the opportunity to submit statements, but did not do so: the Professional Association of Doctors for Microbiology, Virology and Infectious Disease Epidemiology (Berufsverband der Ärzte für Mikrobiologie, Virologie und Infektionsepidemiologie e.V. ), the Federal Association of Doctors Working in Public Healthcare (Bundesverband der Ärztinnen und Ärzte des Öffentlichen Gesundheitsdienstes e.V. ) and the German Interdisciplinary Association for Intensive Care and Emergency Medicine (Deusche Interdisziplinäre Vereinigung für Intensiv- und Notfallmedizin ).

II.

The application for preliminary injunction is unsuccessful.

1. Pursuant to § 32(1) BVerfGG, the Federal Constitutional Court may provisionally decide a matter arising in a dispute by way of a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good.

a) In assessing whether the requirements of § 32(1) BVerfGG are fulfilled, the Court must generally apply a strict standard, given the far-reaching consequences of a preliminary injunction. When the Court decides on an application for preliminary injunction, the reasons submitted for the unconstitutionality of the measures challenged by constitutional complaint are not to be taken into account unless the constitutional complaint to be decided in the principal proceedings is inadmissible from the outset or manifestly unfounded (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 143, 65 <87 para. 34 f.>; 157, 394 <401 para. 19> with further references; established case-law). If the outcome of the principal proceedings cannot be foreseen, the Federal Constitutional Court must, in the context of a weighing of the consequences, weigh the disadvantages that would arise if the preliminary injunction were not issued but the constitutional complaint were then successful in the principal proceedings, against the disadvantages that would arise if the preliminary injunction sought were issued, but the applications in the principal proceedings were unsuccessful (cf. BVerfGE 157, 332 <377 para. 73>; 157, 394 <401 f. para. 19>, each with further references; established case-law).

b) Particularly strict standards apply where the suspension of a statute is sought (cf. BVerfGE 140, 99 <106 f. para. 12>; established case-law). The Federal Constitutional Court must exercise the utmost restraint in using its power to provisionally suspend a law, or even to stay the entry into force of a law, as such action constitutes a significant encroachment upon inherent competences of the legislator (cf. most recently BVerfGE 157, 332 <374 para. 67>; 157, 394 <402 para. 20>; established case-law). Generally, the reasons in favour of the preliminary injunction sought must carry such weight that they render the issuing of the injunction indispensable. In the particular case where the suspension of a statute is sought, the underlying reasons must possess even greater weight; their extent and severity must clearly outweigh the disadvantages that would arise if the statute was provisionally suspended but later turned out to be constitutional (cf. BVerfGE 122, 342 <361 f.>; 157, 332 <374 para. 67> with further references; established case-law). In this respect, it is a decisive factor whether the disadvantages are irreversible or at least very difficult to reverse, as the interest in suspension might then take precedence. In the weighing of consequences, the Court must take into account the consequences for all those affected by the law, and not just the consequences for the complainants. If the disadvantages of the different consequences arising in each scenario are more or less equally weighty, the Federal Constitutional Court is precluded, in view of the restraint mandated by the separation of powers (Art. 20(2) second sentence GG), from suspending the challenged statute before it has been determined whether the statute is compatible with the Basic Law. Thus, the Federal Constitutional Court only provisionally suspends a statute pursuant to § 32 BVerfGG if the reasons for issuing the preliminary injunction clearly prevail (cf. BVerfGE 157, 394 <402 f. para. 20> with further references; established case-law).

2. Measured against these strict standards, the application for preliminary injunction is unsuccessful. The constitutional complaint lodged in the principal proceedings is neither inadmissible from the outset nor clearly unfounded (see a) below). The outcome of the required weighing of consequences is that the disadvantages that would arise if the preliminary injunction were not issued but the application were successful in the principal proceedings do not outweigh the disadvantages that would arise if the preliminary injunction sought were issued but the application in the principal proceedings were unsuccessful (see b) below).

a) At least to the extent that the complainants assert a violation of the fundamental right to physical integrity (Art. 2(2) first sentence GG), the fundamental right to occupational freedom (Art. 12(1) GG) and the fundamental right under Art. 2(1) in conjunction with Art. 103(2) GG, the constitutional complaint is not inadmissible from the outset.

Nor is it manifestly unfounded. In light of the statements submitted in the present proceedings, in particular the statements of expert third parties, there are no major constitutional concerns regarding the imposition of an obligation to provide proof of vaccination or recovery on staff of certain institutions and organisations under § 20a IfSG per se, at least not at the time of decision. However, there are doubts as to the constitutionality of the legislative technique chosen in § 20a IfSG. The legislator has used a two-stage dynamic reference, referring to the COVID-19 Ordinance on Exemptions from Protective Measures, which in turn makes reference to the websites of the Paul Ehrlich Institute and of the Robert Koch Institute to specify the requirements regarding the proof of vaccination or recovery to be provided. This gives rise to the question whether and to what extent the binding external effects of a dynamic reference to the rules of the aforementioned federal institutes have a sufficient legislative basis (cf. BVerfGE 129, 1 <22, 25 ff.>). Even if there is a sufficient basis, it must be further examined whether and to what extent there are tenable reasons for leaving the specification of the requirements for the proof of vaccination or recovery, and thus the determination which persons are considered to be vaccinated and recovered within the meaning of the law, to the aforementioned federal institutes, rather than having the authority responsible for issuing the ordinance determine them.

b) Nevertheless, the weighing of consequences in the present preliminary injunction proceedings does not provide sufficient grounds for issuing the preliminary injunction sought.

a) If the preliminary injunction were not issued yet the constitutional complaint were successful in the principal proceedings, the disadvantages resulting from the application of the challenged provisions would carry particular weight. If affected persons fulfil their obligation, imposed by § 20a(2) first sentence IfSG, to provide proof and consent to being vaccinated, this triggers physical reactions and can impair their physical well-being, at least temporarily. In individual cases, serious vaccine side effects may occur, which may be fatal in extreme exceptional cases (cf. Safety Report of the Paul Ehrlich Institute of 7 February 2022 – Suspected cases of adverse events and vaccine-related complications following vaccination against COVID-19 from 27 December 2020 (start of vaccination campaign) to 31 December 2021 – pp. 5, 8 f., 28 ff.). Vaccination cannot be reversed even if the constitutional complaint is successful.

However, the law does not inevitably require affected persons to get vaccinated. It is true that persons who wish to avoid vaccination may have to temporarily change their job or workplace, or even give up their occupation. Yet the complainants did not sufficiently demonstrate that the career-related disadvantages that might occur in the limited time period until a decision in the principal proceedings is rendered are irreversible or at least very difficult to reverse or are otherwise particularly severe, nor is this ascertainable otherwise – at least for the time period in question. Economic disadvantages faced by individuals following the implementation of a law are generally not capable of justifying the suspension of said law (cf. Federal Constitutional Court, Order of the First Senate of 24 January 2022 - 1 BvR 2380/21 inter alia -, para. 39 with further references).

bb) If, by contrast, the preliminary injunction were issued but the constitutional complaint proved unsuccessful in the principal proceedings, the disadvantages resulting from not applying the challenged provisions would likewise carry particular weight. Until a decision on the constitutional complaint was rendered, elderly people and people with medical conditions, a weakened immune system or disabilities (vulnerable groups) would then be at considerably higher risk of contracting SARS-CoV-2 and becoming severely ill or even dying from the virus. According to the largely concurring opinions of the expert third parties heard in these proceedings, it must still be assumed – including with regard to the Omicron variant – that vulnerable persons generally become infected with COVID-19 more easily because – even if they are vaccinated – their immune protection is reduced from the outset and declines more quickly over time, and that they have a higher risk of severe illness or even death if they become infected.

Moreover, the expert third parties largely agree that vaccinations against COVID-19 confer protection – albeit one that wanes over time – against infection, including against the Omicron variant. If the obligation to provide proof of vaccination or recovery from COVID-19 for staff of the institutions and organisations listed in § 20a(1) first sentence IfSG were provisionally suspended, this would lead to lower vaccination rates in these institutions and organisations, and thus to an increased risk of persons working there becoming infected and then transmitting the virus to vulnerable persons. As a consequence, it would have to be expected that – even in the limited time period until a decision on the constitutional complaint is rendered – more people belonging to vulnerable groups irreversibly would become infected with the virus, become severely ill or even die than would be the case if the preliminary injunction were not issued.

cc) The extent and severity of the disadvantages faced by the complainants do not outweigh the disadvantages that might arise for vulnerable persons if the challenged provisions were provisionally suspended.

It is true that the persons covered by § 20a(1) first sentence IfSG would have to provide proof of sufficient vaccination as of 15 March 2022 – unless they have recovered from COVID-19 or have a contraindication to vaccination – if the challenged provisions remain applicable until a decision on the constitutional complaint has been rendered. However, despite the fact that vaccination is irreversible, this does not entail health risks for affected persons that are so great that they would clearly outweigh the risks arising for vulnerable persons in a weighing of consequences. Based on current findings, serious side effects or serious vaccine-related injuries beyond the vaccine-induced immune response are very rare (cf. Safety Report of the Paul Ehrlich Institute of 7 February 2022 – Suspected cases of adverse events and vaccine-related complications following vaccination against COVID-19 from 27 December 2020 (start of vaccination campaign) to 31 December 2021 – p. 4) Moreover, such effects are continually monitored and evaluated, in particular by the Paul Ehrlich Institute. This notwithstanding, persons affected by the obligation to provide proof of vaccination or recovery are free to choose not to take the vaccine. While such a decision would entail career-related disadvantages, there is no reason to presume that the disadvantages occurring in the limited time period until a decision in the principal proceedings is rendered will be irreversible, very difficult to reverse or otherwise very severe.

In light of the foregoing, the disadvantages to be expected if the challenged provisions were suspended until a decision in the principal proceedings is rendered ultimately prevail. The pandemic is still marked by particular transmissibility and high case numbers, which is associated with a high probability of contracting the virus and thus with a correspondingly high potential for risk to vulnerable persons. With regard to the Omicron variant, too, interrupting transmission chains as early as possible remains especially important to protect vulnerable groups. According to the largely concurring statements submitted by the expert third parties, vaccination against COVID-19 can to a relevant degree contribute to interrupting transmission. In this respect, it must also be taken into account that vulnerable persons can generally only protect themselves against infection to a limited extent; in addition, they are mostly reliant on services provided by the healthcare and care institutions and organisations listed in § 20a(1) first sentence IfSG. Given that these services typically concern essential basic needs, they can hardly avoid contact with those working in such institutions and organisations. If a preliminary injunction were issued, it would therefore have to be expected that, in the limited time until a decision in the principal proceedings is rendered, the contact of vulnerable groups with unvaccinated persons, which cannot be avoided for the most part, would increase the number of – irreversible – COVID-19 cases involving severe illness or even death.

The very low probability of serious consequences resulting from vaccination must be weighed against the significantly higher probability of harm to the life and limb of vulnerable persons. In the weighing of the disadvantages that are to be expected, the complainants’ interest in continuing to work without vaccination at the affected institutions and organisations until a decision in the principal proceedings is rendered must therefore stand back.