Suspension of the partial vaccination requirement: is Bavaria allowed to do that at all?

Bavaria does not want to implement partial vaccination for the time being. But is that possible? The federal system provides that the states implement federal laws. What happens if a country doesn’t comply?

In December, the Bundestag decided that facility-related vaccinations would be compulsory for employees in the healthcare sector – with the votes of the Union faction. On the same day, the Bundesrat agreed unanimously – also with the votes of Bavaria.

Three months later, CSU Prime Minister Markus Söder announced that he would not implement partial vaccination in Bavaria until further notice. Is it that easy?

States obliged to implement federal laws

The vaccination obligation for health care workers is regulated in a federal law – the Infection Protection Act. According to the Basic Law, the federal states are responsible for implementation. This corresponds to the federal system in Germany. All federal states, including Bavaria, are therefore obliged to implement the law.

How the implementation is organized in detail is initially the responsibility of the federal states.

discretion in individual cases

Paragraph 20a of the Infection Protection Act stipulates that healthcare workers must either be vaccinated or have recovered. In practice, however, what is decisive is that when it comes to the consequences for the unvaccinated, the health authorities can issue entry and activity bans on unvaccinated people.

That means the authorities have discretion. You do not necessarily have to react immediately with bans on entry and activities. But your discretion has limits. It must be exercised dutifully, i.e. above all not arbitrarily.

When deciding for or against an activity ban, the circumstances of the individual case can and must be taken into account. For example, whether proof of vaccination only has to be submitted later or whether an employee is about to be vaccinated.

Short-term care bottlenecks could also be taken into account at this point. However, it must not be forgotten that vaccination is not compulsory for its own sake. Its purpose and justification is also to protect vulnerable groups.

But when it comes to not implementing the law in general, things get difficult.

If in doubt: federal supervision

The Basic Law regulates in detail what the federal government can do together with the Bundesrat if laws are not implemented or are implemented insufficiently. This is the so-called federal supervision.

In a first step, administrative regulations could be enacted with which, for example, content-related criteria could be defined for the discretionary decisions of the health authorities.

In case of doubt, a dispute between the federal and state governments about the implementation of federal laws can be taken to the Federal Constitutional Court.

In practice, the procedure of federal supervision has so far been of little practical relevance. This suggests that the federal system works in principle – as a rule, the states adhere to their obligation to implement federal law.