According to the court, there was no legal basis for establishing the vaccination obligation with domestic law and the vaccination obligation could not be considered a proportionate measure either. Thus the court annulled the directive of the head of the defense forces, with which he established the vaccination obligation by 31 August 2021.
In its decision, the Court explained that, although the obligation established by the Directive cannot be considered a direct vaccination obligation, it is nevertheless equivalent to a vaccination obligation in terms of effect. The testing obligation essentially means a vaccination obligation for a healthy, disease-free person, since vaccination has become a prerequisite for continued employment.
To the extent that obtaining this certificate in a situation where the person had not suffered from the disease necessary for self-vaccination, the order was essentially a direct obligation to vaccinate.
According to the Court, the obligation of vaccination in the defense forces cannot be implemented by an internal act, since this undermines the physical integrity of the person and violates the person’s right to health protection. It would also violate the freedom to choose a field of activity, profession or job. The Court stated that, in essence, maintaining a job or job was contingent on meeting health requirements. The Court also drew attention to the fact that the conditions and the right to impose a vaccination obligation are not explicitly prescribed by the law or the regulation issued on its basis.
The general rules on health and safety at work do not oblige military personnel and defense force employees to be vaccinated, nor does the employer have the right to impose a vaccination obligation. Furthermore, there are no specific conditions under which such an obligation is permitted.
According to the court, the Occupational Health and Safety Act is clearly formulated too generally, so much so that it is possible to establish a vaccination obligation based on the results of a risk analysis. On the basis of this general authorization it is neither legitimate nor licit to impose a vaccination obligation that violates the fundamental rights of the person.
The Court also found that imposing a vaccination obligation is not a proportional measure in terms of content. According to the court, the compulsory vaccination seriously compromised people’s physical integrity.
The ruling has not entered into force.
2023-12-10 10:24:00
the-court-found-the-mandatory-vaccination-of-defense-personnel-illegal