For weeks lawyers have been discussing whether compulsory vaccination for everyone would be compatible with the Basic Law. Professor Walther Michl from the University of the Federal Armed Forces in Neubiberg has now taken a stand in the debate. Constitutional lawyer Michl sees such a compulsory vaccination as a less serious measure compared to a lockdown: “We have now reached a point where a renewed lockdown would restrict fundamental rights significantly more than a general vaccination requirement with proven low health side effects.”
The legal situation is just as dynamic as the pandemic itself. According to Michl, whether a general vaccination requirement is proportionate also depends on the course of the pandemic in the coming months. Anyone who wants to legally check the proportionality must ask whether a mandatory vaccination would be appropriate, necessary, appropriate and reasonable. A compulsory vaccination would be necessary if milder means could not prevent an overload of the health system. Michl refers to this constitutional principle of the Basic Law when he describes mandatory vaccination as the milder means.
SZ: Professor Michl, why, from a legal point of view, could another lockdown represent a more serious encroachment on the basic rights of the population compared to the compulsory vaccination?
Michl: We already have a quasi-lockdown for unvaccinated people. The new thing about this measure would be a lockdown for vaccinated people as well. That would represent a significant encroachment on the basic rights of the vaccinated and would be difficult to justify.
Which fundamental rights need to be weighed up when discussing compulsory vaccination?
On the part of the unvaccinated, above all the right to physical integrity, an undoubtedly valuable asset. On the side of the vaccinated, on the other hand, the freedom of occupation according to Article 12, especially for the self-employed, but also family life, derived from Article 6 and of course the general freedom of action, which is derived from Article 2. Depending on how strict the lockdown measures would be, freedom of assembly and freedom of religion could also be affected.
Would compulsory vaccination be suitable according to legal standards to bring the pandemic under control?
That is not beyond dispute. We don’t yet know how well the vaccinations against the new Omikron variant will work. Especially since it might be too late to break the fourth wave by now. We are talking more of a compulsory vaccination after the current wave. Then again the question of contamination has to be considered, which could make compulsory vaccination superfluous. That is why we need a new epidemiological assessment of how effective and necessary the vaccination obligation is.
Would compulsory vaccination be reasonable?
Based on the data we have so far about the vaccines: yes. The vaccination is safe and effective with reasonable side effects.
At this point, many people who refused to vaccinate would contradict you and insist on their right to physical integrity.
Exactly. But it’s not just about your own freedom. My freedom also restricts the freedom of the other. That has to be part of the balance.