People have probably just gotten used to the fact that Bavaria, always referred to as the Free State in this context, likes to go its own way. They do some things better in Bavaria than anywhere else. Other extra tours are highly controversial, such as the 10H rule, which inhibits the expansion of wind power. In any case, it could be related to this pronounced tendency to take a different path that Markus Söder’s recent advance was often accepted as an unfavorable but also inevitable fate. Bavaria and its Prime Minister are suspending the facility-related vaccination requirement – there’s nothing you can do about it.
The legal position is actually clear. Regardless of the Free State, Bavaria belongs to the Federal Republic of Germany, which is why its laws apply between Rosenheim and Schweinfurt. One of these federal laws states that by March 15, employees in medical facilities and nursing homes “must” be vaccinated or recovered. “Must” does not mean “should” or “could”. Vaccination is compulsory in Germany. And in Bavaria.
All of this is in paragraph 20a of the Infection Protection Act. A law that, of course, suffers from mostly hasty changes. Some formulations have therefore failed, and then the basic rule of every legal interpretation comes into play: the darker the text, the more imaginative the interpretation.
In paragraph 20a there is a paragraph 5, which – if you absolutely want to read it like that – could open a door for the countries to not implement the vaccination obligation so hard, maybe not at all. There it is about the role of the health authorities in dealing with people who do not present proof of vaccination. In this case, the health department “can” prohibit employees from entering the respective facility. “Can” does not mean “must”; here, too, the law must be taken at its word. This means that the health department has a discretion here.
What lawyers mean by “discretion”.
Can the offices and thus the countries do what they want? Only impose activity bans if the number of staff is really good, but also allow unvaccinated staff to the nursing ward until further notice?
That’s just not what lawyers mean by “discretion”. Rainer Schlegel, President of the Federal Social Court, had already said on Tuesday that the ban on working for non-immunized staff resulted directly from the law, without a decision by the office. “The law says in the first paragraph that nobody is allowed to work there if they are not vaccinated or have not recovered.” He could therefore not imagine that this would be reserved for the authorities in each individual case.
Andrea Kießling from the Ruhr University Bochum, a much sought-after specialist on infection protection law, sees it similarly. The obligation to vaccinate applies by law. “The countries don’t have to implement anything, transition periods are not provided for in paragraph 20a.” In exceptional cases, the health authorities could also allow unvaccinated staff: “If there is really a serious exceptional situation in an individual facility, it may be justifiable not to immediately issue a ban on activities in this facility.”
The states must implement federal laws
However, from their point of view, the agencies have little room for manoeuvre, because they always have to exercise their discretion in a way that corresponds to the purpose of the law. And there really is no doubt about the purpose of compulsory vaccination. “It’s about protecting the residents or those being cared for in the facilities, and for this the entire staff of the facilities should be vaccinated,” says Kießling. The vulnerable groups should be protected from infection and illness, not the administration from the difficulties of law enforcement. “A comprehensive exercise of discretion to the effect that no activity bans are issued anywhere in a federal state contradicts the purpose of the norm in every respect,” summarizes the lawyer.
And what if countries like Bavaria remain stubborn? The rules are clear, the states have to implement federal laws. “The disregard of federal law is incompatible with the constitutional obligation of the states to be loyal to the federal government,” writes lawyer Patrick Heinemann in the specialist portal “Legal Tribune Online”. Theoretically, there is even an instrument of “federal coercion” – which has never been used in the Federal Republic: a federal commissioner could take over executive power in Bavaria. But that is only a power of greatest need. In 1923, the Reich sent troops to Saxony and Thuringia against the then revolutionary SPD-KPD governments. And referred to the federal coercion, which at that time was still called “Reichsexecution”.