Application for a preliminary injunction seeking to suspend the obligation to provide proof of vaccination or recovery from COVID-19 for staff in the health and care sectors pursuant to § 20a of the Protection Against Infection Act unsuccessful

Press Release No. 12/2022 of 11 February 2022

Order of 10 February 2022
1 BvR 2649/21

In an order published today, the First Senate of the Federal Constitutional Court rejected an application for preliminary injunction seeking the provisional suspension of § 20a and § 73(1a) nos. 7e to 7h of the Protection Against Infection Act (Infektionsschutzgesetz – IfSG), which impose an obligation on staff of certain institutions and organisations in the health and care sectors to provide proof of vaccination or recovery from COVID-19.

There are no major constitutional concerns regarding the imposition of an obligation to provide proof of vaccination, recovery or contraindication to vaccination on staff of certain institutions and organisations under § 20a IfSG per se. However, there are doubts as to the constitutionality of the legislative technique chosen in § 20a IfSG – a two-stage dynamic reference. The provision makes reference to the COVID-19 Ordinance on Exemptions from Protective Measures (COVID-19-Schutzmaßnahmen-Ausnahmenverordnung), which in turn makes reference to the websites of the Paul Ehrlich Institute and of the Robert Koch Institute. The final determination as to whether this is constitutional must, however, be left to the principal proceedings. The decision in the present preliminary injunction proceedings must be based on a weighing of consequences, which does not result in sufficient grounds for issuing a preliminary injunction in this case. 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.

Facts of the case:

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. 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 in the version in force at the relevant time. For specifying these requirements, the Ordinance in turn makes reference to the websites of the Paul Ehrlich Institute and of the Robert Koch Institute.

Most of the complainants work for healthcare and care institutions and organisations covered by § 20a(1) first sentence IfSG, either as self-employed providers or as employees or civil servants. They are mostly unvaccinated, or refuse to receive further vaccinations; some of them have already been infected with COVID-19. 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.

With their application for preliminary injunction, which they lodged together with a constitutional complaint, they mainly seek the provisional suspension of § 20a IfSG.

Key considerations of the Senate:

The application for preliminary injunction is unsuccessful.

I. Particularly strict standards apply where the suspension of a statute is sought given that such a suspension amounts to a considerable encroachment on the inherent powers of the legislator. Even 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.

II. Measured against these strict standards, the application for preliminary injunction is unsuccessful.

1. The constitutional complaint is not 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, at the time of decision, 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. 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. Even if they do have 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 to the aforementioned federal institutes, rather than having the authority responsible for issuing the ordinance determine them.

2. The decision in the present preliminary injunction proceedings must be based on a weighing of consequences, which does not provide sufficient grounds for issuing a preliminary injunction in this case.

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, vaccine side effects may occur, and may be fatal in extreme exceptional cases. Vaccination is irreversible even if the constitutional complaint is successful. However, the law does not inevitably require affected persons to get vaccinated. Persons who wish to avoid vaccination may have to temporarily change their job or workplace, or even give up their occupation. However, the complainants did not sufficiently demonstrate that the career-related disadvantages that might occur 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.

b) 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. The expert third parties heard in these proceedings 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 certain institutions and organisations were provisionally suspended, this would lead to lower vaccination rates in the institutions and organisations concerned, and thus to an increased risk of persons working there becoming infected and then transmitting the virus to vulnerable persons. As a consequence, it is 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.

c) 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. Based on current findings, serious side effects or consequences beyond the vaccine-induced immune response are very rare. This notwithstanding, persons affected by the obligation to provide proof of vaccination or recovery are free to choose not to take the vaccine. There is no reason to presume that the resulting career-related disadvantages occurring in the limited time period until a decision in the principal proceedings is rendered will be very severe.

By contrast, 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 in respect of 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 especially can generally only protect themselves against infection to a limited extent; in addition, they are reliant on services provided by healthcare and care institutions and organisations.

d) 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.