The corona measures are gradually falling away, but the obligation to vaccinate comes as planned: This is the current corona strategy of the turquoise-green federal government. But by lifting the measures, doesn’t it also make the obligation to vaccinate vulnerable to challenge before the Constitutional Court?
“Medically, these are different measures that cannot be treated in the same way legally,” says constitutional and medical law expert Karl Stöger from the University of Vienna. The lockdown, the 2G rule and the curfew are short to medium-term measures, while compulsory vaccination is intended for the long term: “It has a different time horizon and a different goal.” This goal is primarily to prevent next autumn and winter “short-term measures such as a lockdown from being necessary again,” says Stöger, who is also a member of the national Covid crisis coordination Gecko.
According to Stöger, it will therefore be “whether compulsory vaccination is permissible and necessary for this longer horizon”: “I don’t think it can be denied at the moment.” Because a number of questions are still open – such as the question of what immunity an omicron disease actually provides. German virologists and epidemiologists doubted on Monday that the corona infection process after the omicron wave would come much closer to an endemic state. “It is absolutely possible that after the current wave flattens out, delta will come back,” said Ulrike Protzer, head of the Institute of Virology at the Technical University of Munich.
Balance in actions
The constitutional lawyer Christoph Bezemek from the University of Graz also denies that the lifting of the corona restrictions in February will automatically make vaccination compulsory. “You can think of it like a beam balance. In one bowl are the public interest and the question: How traumatic are the consequences if nothing is done?” The restrictions and encroachments on freedom would take place in the other shell. That has to be balanced.
“At the same time, the restrictions weigh on each other: the more the situation relaxes, the more measures have to be withdrawn. At some point you can no longer leave compulsory vaccination, the 2G rule and the lockdown for unvaccinated people in at the same time,” says Bezemek. The removal of some restrictions, therefore, makes the stress in the bowl lighter and can help maintain balance overall.
In the coming months, the Constitutional Court (VfGH) will decide whether the right balance has been struck with all the measures. Several complaints against the recent lockdown and the 2G rule have been received by the Supreme Court. The first individual applications against compulsory vaccination could be submitted as early as February. In the course of examining the corona measures, the supreme court sent a catalog of questions to the health department. The Constitutional Court requires a more detailed explanation of the restrictions by February 18. He wants information and exact figures on whether the health system has ever been threatened with overload. He also asks to what extent the lockdown for the unvaccinated had an impact on the burden in the hospitals.
justification is crucial
“It was already the case that the Constitutional Court took a very close look at the technical justifications for the measures,” says Stöger. The current test is probably also so sharp and precise “because the restrictions were once again a lockdown”. Especially in the case of such serious, long-lasting and repeated measures, the supreme court demands particularly good technical justification.
Due to the lifting of the corona restrictions, the areas in which 2G will apply in the future are rare. The Vienna University of Economics and Business (WU) will be using 2G from the summer semester. From March 1st, only vaccinated or recovered employees and students will be allowed to enter the university. All courses and examinations take place in attendance. There are no compensations or online offers for students without 2G proof. You can take a semester’s leave of absence. In addition to the WU, the University of Klagenfurt has introduced the 2G rule for courses. At the University of Vienna, on the other hand, the 2.5G rule (recovered, vaccinated, PCR-tested) will continue to apply in the future – just like at the University of Linz and the University of Graz.
2G at Unis questionable
The constitutional lawyers consider the 2G rule at the universities to be delicate. The 2.5G rule is currently the way to go, says Bezemek. A 2G rule does not necessarily have to conflict with the right to education. However, due to the current legal framework and the epidemiological situation, a strict 2G rule cannot be enforced: “In terms of labor and study law, there will not be any problems,” says the constitutional lawyer.
The universities are basically free to decide such questions due to their autonomy, explains Stöger. However, there is a recent decision by the European Court of Human Rights that must be taken into account. The court judged the proportionality of compulsory vaccination “rather critically” if it prevented training opportunities. The present case concerned elementary school students. Legally, the universities are on the safer side with 2.5G – “in view of the fact that this is about access to training,” says Stöger.