General compulsory vaccination: where the legal hurdles lie

While the Bundestag is discussing the general obligation to vaccinate, many legal questions are still open. What are the hurdles – and how does the omicron variant affect it?

Orientation – that is the purpose of the current Bundestag debate on compulsory vaccination. In addition to the political assessment of whether one considers compulsory vaccination to be correct, the question arises: Would compulsory vaccination be legally permissible?

There isn’t just one crystal clear answer. On the one hand, this is due to the fact that the legal assessment can change depending on the current situation. On the other hand, there is leeway in the examination. This is particularly evident in the central concept of “proportionality”. Any intervention by the state in a fundamental right must be proportionate – here it is the right to physical integrity. However, there is no machine into which you throw a case and the “one” result comes out.

Final court decisions are not yet available. It is therefore up to the legislature to make its legal assessment.

proportionality is crucial

Proportionality means, as in other cases: the law must pursue a legitimate aim and it must be suitable, necessary and proportionate. A legitimate goal could be, for example, the protection of particularly endangered (i.e. vulnerable) groups or the protection of the healthcare system from overload. It is important that politicians define their goal precisely.

Effects of omicron?

Because the compulsory vaccination must be “suitable” to achieve the defined goal. So what exactly will compulsory vaccination bring? The specific situation in which it is issued, applies and, above all, is intended to take effect is also relevant. It is therefore currently being discussed whether the Omikron variant could lead to a different assessment, because it is associated with milder disease progression and the vaccinations in Omikron offer less protection.

However, Omicron is also considered to be much more contagious than previous virus variants. In addition: Against the acute omicron wave, a general vaccination will not be effective in time, but only for the situation from summer or autumn. This must be considered. Here the legislator will be particularly dependent on input from science.

Are there milder means?

“Necessary” means: There must be no milder means that are equally suitable. Here one must therefore examine possible alternatives to compulsory vaccination. It can be relevant, for example, that the state wants to start another vaccination campaign with a lot of advertising; So at least try to continue to exploit milder means. In addition, one could argue, for example: Compared to hard, long restrictions in everyday life for society as a whole, compulsory vaccination is the milder means if the vaccination rate does not continue to increase.

Overall consideration of all circumstances required

After all, compulsory vaccination should also be “reasonable”. In the end, you have to weigh up: what weighs heavier? The physical integrity of those who do not want to be vaccinated, or the fundamental rights of those who depend on a functioning health system or belong to the vulnerable groups. The legislator must weigh the benefits and risks against each other. Even with this criterion of proportionality, there shouldn’t be just one correct result. How a general obligation to vaccinate would be structured also plays a role.

There are now initial proposals for this in the Bundestag. Important questions include: Does it only apply to older people? Is it temporary? Is there a transition period? How many vaccinations are required? What exceptions are there?

Legislative discretion

Overall, the Federal Constitutional Court grants the legislature a wide scope of assessment in such cases. With a view to the uncertainties of the corona pandemic, Karlsruhe emphasized this in the decisions on the federal emergency brake just a few months ago. In the case of a law on compulsory vaccination, it could become important for the legislature to justify its decision in detail and disclose the facts on which it is based in order to facilitate judicial control. There is also a lot to suggest that compulsory vaccination would have to be reviewed on an ongoing basis and, if necessary, adjusted or even abolished if the facts changed accordingly.

fines as sanctions

The plans from the Bundestag that have become known so far provide for fines as a sanction for violating the vaccination requirement. Just like Austria has just regulated in its law on general vaccination. For example, it was also stipulated there that you would not go to jail if you did not pay the fine over the long term.

Before the fine, however, would be the control. A practically important question is therefore how intensively the authorities will – and can – control people’s vaccination records. There is currently no political majority for the introduction of a vaccination register, and it would take time. This would not be impossible per se in terms of data protection law if the aims and purposes of the register were clearly defined.

Previous court decisions

In the end, the Federal Constitutional Court will probably have to decide whether and to what extent compulsory vaccinations are legally permissible. As early as December, a first lawsuit against the corona vaccination requirement for health and nursing staff was filed there. A final decision must also be made there about compulsory measles vaccination in certain facilities such as daycare centers. In an urgent decision, however, Karlsruhe did not stop the measles vaccination requirement for the time being, and in the justification also took up the state’s duty to protect the life and limb of its citizens.

In spring 2021, the European Court of Human Rights had approved in principle a fairly extensive vaccination requirement for children in the Czech Republic against various diseases. However, Strasbourg also stated that any sanctions such as fines should not be too drastic. German courts will at least take a close look at the arguments in this decision.