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Vaccinations should start soon. Are the restrictions for vaccinated people still legally allowed? Would compulsory vaccination be possible? Claudia kornmeier and Candid boyfriend on legal issues that arise now.
By Claudia Kornmeier and Frank Bräutigam, ARD Legal Editor
Who will get vaccinated first?
There is a legal regulation that regulates who should be vaccinated first. It distinguishes between three groups, which will be vaccinated one after another with priority – “within the framework of the availability of available vaccines”. The first thing to do, for example, are people over the age of 80, as well as people who live or work in nursing homes, or who work in intensive care units, emergency rooms or emergency services. This prioritization is based on a recommendation from the Permanent Commission on Vaccination; however, it is not a 1: 1 implementation of the recommendation. The latest to come are those who are under 60 years of age, have no previous illnesses or contact with risk groups and also do not come into contact with many people for professional reasons or work in relevant positions in state institutions.
Doesn’t Parliament have to adopt such rules?
An important principle is: The legislature must regulate essential questions of fundamental rights itself, it cannot leave that to the government. The basis of the Corona Vaccination Ordinance is a legal provision in the Social Security Code 5. There, a certain sequence is specified for certain groups. However, this regulation is actually about the takeover of health insurance companies. So it’s a pretty unusual place to prioritize vaccination.
Is that enough as a legal basis?
“What is available now is not completely insufficient,” says law professor and German Ethics Council member Steffen Augsberg on the ARD podcast “Die Justizreporter * innen.” “That is sufficient in a technical sense.” However, he would have liked a separate standard in the Infection Protection Act and a debate on it in parliament. “This is a wasted opportunity … because we could have brought an even stronger public discussion to parliament.”
Constitutional lawyer Andrea Kießling from Bochum sees it in a similar way. It is not a question of the legislator regulating in detail who should be vaccinated and when. Rather, it suggests that it is legally stipulated what objective is pursued with prioritization: “Do we (want) to take an individual perspective and protect people at high risk first? Or do we want to have a view of the entire population and see what it would have the effect faster than the total number of infections is decreasing? “
Can I claim that I get it faster?
In a constitutional state, you can sue if you are not satisfied with a state decision. Another question is what chances of success such a claim would have in the specific case. It is about the distribution of a scarce resource. Therefore, people must be treated differently when it comes to vaccinating. To justify unequal treatment, there must be “factual reasons”. The government has a margin of maneuver. The limit would be exceeded if the prioritization were completely arbitrary. The order specified by the Corona Vaccination Ordinance is not out of nowhere, it is based on the recommendation of the Permanent Commission on Vaccination. But it is quite possible that someone will file a lawsuit and the courts will take a closer look at the prioritization that has been done.
Is it necessary to relax measures against vaccinated people?
The corona measures restrict the basic rights of citizens. The starting point now could be: if a person no longer poses any danger, the state may no longer limit their rights. At the moment, this remains a theoretical question because it is not clear whether people who have been vaccinated are still contagious or not. The same is true of people who have survived an infection. However, the so-called immunity and vaccination cards are already being discussed.
The federal Minister of Health, Jens Spahn (CDU), already came up with the idea in spring and asked the Ethics Council for an opinion. Attorney Steffen Augsberg is a member of the Ethics Council and was present during the discussion: “There is concern that the immunity test or vaccination cards actually provoke the two-class society, that it has a discriminatory effect, that it is a privilege for which there is no justification. “However, he himself thinks that it is permissible for someone who demonstrably does not endanger himself or others, is no longer subject to certain restrictions.” That is a factual reason for unequal treatment. “To illustrate it with an example: Why should vaccinated people go into quarantine after returning from a risk area if it can be contagious?
Because these questions represent entirely new legal territory, they are yet to be definitively clarified.
Can restaurants decide that only vaccinated people enter?
Except for exceptions, for example in the field of services of general interest, individuals are free to decide with whom they enter into contracts. “We cannot force them to do business with unvaccinated people,” says constitutional lawyer Kießling. It remains to be seen whether innkeepers or concert organizers really want to differentiate between vaccinated and unvaccinated people and therefore also want to carry out proper checks.
Will there be a general mandatory vaccination?
There is also a great discussion on the subject of mandatory vaccination: there are people who fear that they will be forced to vaccinate. Politicians have repeatedly emphasized that there will be no general mandatory vaccination. During the Bundestag debate on changes to the Infection Protection Law in November, Minister Spahn emphasized: “I give you my word. There will be no mandatory vaccinations in this pandemic.”
The introduction a general vaccination requirement is highly unlikely.
Would compulsory vaccination be legally possible?
A mandatory vaccination for certain professional groups would be conceivable, says law professor Augsberg. For example, when the infection control process at trouble spots like intensive care units can only be controlled if everyone who works there has been vaccinated. However, it assumes that that “area related” vaccination requirement is still a long way off.
Isn’t there already a mandatory measles vaccination?
Before Corona, mandatory vaccination for measles was discussed and introduced in certain areas. People who work in day care or schools, for example, must show that they have been vaccinated. And the children who are cared for there. This is because there have been many outbreaks of measles again in recent years. The disease is highly contagious and can have serious consequences. There is also no general mandatory vaccination against measles.
Rather, it is linked to regular attendance at certain facilities. Constitutional complaints against the law have yet to be resolved. The Federal Constitutional Court has rejected urgent requests. But that says nothing about the chances of success of constitutional complaints in general.
