VfGH: Compulsory Vaccination Act Is Constitutional

Jul 22, 2022 Benn-Ibler Rechtsanwälte

The Austrian Constitutional Court (Verfassungsgerichtshof, VfGH) has declared the COVID 19 Compulsory Vaccination Act to be in conformity with the Austrian Constitution.

An appellant from Vienna argued in summary that the available vaccines were unsuitable to bring about herd immunity. Moreover, vaccination was not the most effective means to protect other persons in the long-term, as tests and masks would not only prevent infection more effectively, but would also be less invasive. The appellant also argued that compulsory vaccination was disproportionate, as there was no current evidence of a threat to the health system. The COVID 19 Compulsory Vaccination Act (specifically Section 1(1) and Section 10(1)) would therefore be unconstitutional in the light of Article 8 of the European Convention on Human Rights (ECHR).

The Austrian Federal Government submitted a comprehensive rejoinder.

The Constitutional Court does not have any constitution-based objections and essentially justifies its decision as follows:

Vaccination represents a considerable encroachment on physical integrity, which in principle requires the consent of the person affected. A statutory duty to get vaccinated is a particularly severe encroachment. However, the Constitutional Court concedes that Section 3 of the Compulsory Vaccination Act provides for exceptions mitigating such an encroachment.

However, there are justifying reasons for such serious encroachment.

The European Court of Human Rights has previously pointed out that social solidarity towards persons who can only be protected by herd immunity is of special importance. In order to protect such groups, each individual can be required to accept a low health risk associated with vaccination. Moreover, it has been scientifically proven that vaccinated persons have a significantly lower risk of a severe course of disease. This serves the legitimate goal of maintaining the functioning of the health system.

In addition, Section 19 (2) of the COVID 19 Compulsory Vaccination Act allows for flexible responding to volatile pandemic and scientific developments. Also, the Austrian Minister of Health is under obligation to review the effectiveness and necessity of compulsory vaccination on an ongoing basis. As a result, compulsory vaccination has been suspended since 12 March 2022.

In view of this, there are no constitutional concerns.

Austrian Constitutional Court (VfGH) G 37/2022 (23 June 2022)