The Schleswig-Holstein Administrative Court has made a nationwide decision on facility-related compulsory vaccination. According to this, the previous procedure of the health authorities is unlawful to demand vaccination certificates from nurses and to threaten fines. FOCUS Online explains what the judges complained about and the consequences of this decision.
The Schleswig-Holstein administrative court has made a far-reaching decision on facility-related vaccination requirements. It declared the previous practice of the health authorities to be “unlawful” to demand proof of vaccinations from nurses and to threaten them with fines. The still unpublished decision (Ref.: 1 B 28/22) was issued on June 13, 2022 and is exclusively available to FOCUS Online.
With its decision, the court agreed with a dental assistant from Flensburg who does not want to be vaccinated against Covid-19. In a decision dated April 28, 2022, the responsible health authority asked the woman to submit proof of vaccination or recovery or a medical certificate by the beginning of June stating that she should not be vaccinated against corona for medical reasons.
If she does not comply with the request, she can be punished with “a fine of up to 2500 euros”. Furthermore, it is intended to prohibit the woman from entering and working in the dental practice.
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In the letter, the health department ordered the “immediate execution” of the administrative act. This means that an objection and an action against the decision would not have a “suspensive effect”. With this clause, the authorities want to ensure that the process is accelerated and not bogged down by lengthy legal remedies.
The dental assistant appealed against this decision and on May 24, 2022 sought temporary legal protection. In it, she requested that her objection – contrary to what the health department intended – have a suspensive effect.
The Schleswig-Holstein Administrative Court has now agreed with her: “The admissible application for the granting of provisional legal protection has been successful in this matter”. With the decision, the suspensive effect of the objection is “restored”. As justification, the First Chamber referred to a “comprehensive weighing up of interests”. This showed that the “private interest in deferring” the dental assistant was to be rated higher than the “public interest in the immediate execution of the administrative act”.
The detailed justification makes you sit up and take notice: “The order given in the contested decision to present proof of vaccination … is obviously illegal,” according to the court. Because the health department should not have ordered the inspection of the vaccination status documents “in the form of an administrative act”. Quote from the decision: “The legality of an administrative act requires, in addition to the legality of the content, that the authority may proceed in the form of an administrative act.”
In this context, the court based in Schleswig refers to the provisions of the Infection Protection Act. According to this, the legislator has left it up to the health authorities whether they prohibit unvaccinated nurses and doctors from entering or working in their facilities. These are always “discretionary decisions”.
According to the court, this regulatory structure indicates that the facility-related obligation to vaccinate “does not establish an immediate obligation to vaccinate that can be enforced with administrative coercion if necessary,” the court said. Instead, the threat of professional disadvantages for unvaccinated health care workers should only create “indirect vaccination pressure”.
Friederike Lange, spokeswoman for the Schleswig-Holstein administrative court, classifies the decision as far-reaching. “The decision concerns a question of the interpretation of federal law and is also of national importance,” she said on Wednesday to FOCUS Online. The decision applies “in principle only to individual cases”. However, other people affected could “refer to case law” towards the health department. If the authorities still don’t give in, those affected could “put an application to the court themselves,” says Lange.
Regarding the specific case, she said: “The applicant initially only achieved that the ordered submission of a vaccination certificate, a certificate of recovery or a medical certificate of inability to be vaccinated for health reasons cannot be enforced by an administrative act with subsequent administrative coercion.” Nevertheless, the unvaccinated dental assistant must expect sanctions. Friederike Lange: “The authorities can no longer order such a submission through an administrative act. In principle, however, you still have the option of issuing a ban on entry or activity to those affected, provided that the legal requirements for this are met.
In the opinion of the chamber, the decisions issued so far by the health authorities are “illegal and therefore contestable”, emphasized the spokeswoman. At the same time, she points out that only those who object to the immediate enforcement of the decision can avoid it. In addition, the suspensive effect of the objection must be confirmed by a court. “Otherwise, the decision must be followed by those affected in each individual case.”
The health department can lodge a complaint with the Higher Administrative Court in Schleswig within two weeks against the decision in the case of the dental assistant.
The Dresden lawyer Frank Hannig, through whose team the dental assistant took action against the design of the institution-related compulsory vaccination, speaks of a “surprisingly clear success”. Hannig on FOCUS Online: “The court order means that the letters and threats of fines from the health authorities are illegal. No healthcare worker currently has to be afraid of the threatened fine – at least not if other courts see it the same way.”
In the past few weeks, tens of thousands of carers, nurses, doctors, paramedics, midwives and people caring for the disabled have received letters from the health authorities across Germany. With their decision against a Covid-19 vaccination, they violate the facility-related vaccination requirement that has been in force since mid-March 2022 and which the Federal Constitutional Court recently declared to be legal.
