H e a d n o t e s

to the Order of the First Senate of 21 July 2022

- 1 BvR 469/20 -

- 1 BvR 470/20 -

- 1 BvR 471/20 -

- 1 BvR 472/20 -

Proof of vaccination (measles)

1. The right of parental care (Art. 6(2) first sentence of the Basic Law) is a fundamental right of parents vis-à-vis the state. The state may not interfere with the parents’ right to raise their children without constitutional justification. This notwithstanding, in the relationship between parent and child, parents must be guided by the child’s best interests when exercising parental care.

2. Where children are not yet capable of making their own decisions, given their stage of development, the decision on whether to vaccinate a child is an essential element of the exercise of parental care in health matters and falls within the scope of protection of Art. 6(2) first sentence of the Basic Law. When exercising parental care in health matters, parents must be guided by the child’s best interests. They are afforded less freedom to make decisions that run counter to what is considered reasonable from a medical perspective than they would be afforded under their right to self-determination for decisions regarding their own physical integrity.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 469/20 -

- 1 BvR 470/20 -

- 1 BvR 471/20 -

- 1 BvR 472/20 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

- 1 BvR 469/20  -,

- 1 BvR 470/20  -,

- 1 BvR 471/20  -,

- 1 BvR 472/20  -,

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Harbarth,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 21 July 2022:

1. The constitutional complaints are rejected. However, § 20(8) third sentence of the Protection Against Infection Act, inserted by the Protection Against Measles Act of 10 February 2020 (Federal Law Gazette I page 148), must be interpreted in conformity with the Constitution as set forth in the reasons of this decision.

R e a s o n s:

A.

The constitutional complaints are directed against provisions inserted into the Act on the Prevention and Control of Infectious Diseases in Humans (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen, Infektionsschutzgesetz , Protection Against Infection Act – IfSG) by the Act to Protect Against Measles and to Promote Vaccination (Gesetz für den Schutz vor Masern und zur Stärkung der Impfprävention , Masernschutzgesetz, Protection Against Measles Act) of 10 February 2020 (Federal Law Gazette I, Bundesgesetzblatt I – BGBl I, p. 148), which came into effect on 1 March 2020. § 20(8) first sentence no. 1 IfSG establishes a requirement that certain persons must be vaccinated or have immunity against measles. § 20(9) first sentence no. 1 IfSG requires that proof of vaccination or immunity against measles must be provided, in the form specified in the law, for children attending communal day care in a day care centre or with an independent day care provider. Such proof of vaccination or immunity […] must be submitted to the local public health authority (Gesundheitsamt ) upon request. If no proof is provided, this authority can issue a ban on entering certain communal facilities. In accordance with § 20(13) first sentence IfSG, responsibility for ensuring compliance with this obligation […] falls to the parents of the complainants who are minors – the parents themselves also act as complainants in the present proceedings.

The complainants who are minors claim a violation of their fundamental right to physical integrity under Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG), the other complainants claim a violation of their right of parental care under Art. 6(2) first sentence GG. Moreover, the complainants assert a violation of the general guarantee of the right to equality under Art. 3(1) GG.

I.

[...]

II.

[...]

III.

1. The measles virus has been known for a long time. A vaccine against measles has been available since the 1960s. There is extensive scientific research on the effects of an infection with measles and on the effectiveness of vaccination, adverse reactions and complications following vaccination.

By assigning specific tasks [regarding the prevention and monitoring of communicable diseases] to the Robert Koch Institute (RKI) in accordance with § 4(1) IfSG, the legislator in principle took the necessary institutional steps to ensure that the information required for the assessment of measures to combat communicable diseases is collected and evaluated. One of the Robert Koch Institute’s tasks is to continuously update the information available on such diseases by analysing and publishing data on infection rates in Germany and by evaluating any relevant studies published worldwide, processing them for the Federal Government and the general public (cf. Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 178 – Federal pandemic emergency brake I ; Order of 27 April 2022 - 1 BvR 2649/21 -, para. 138 – Proof of vaccination (COVID-19) ). […]

Measles is considered to be one of the most contagious infectious diseases in humans. [...] Almost all people who are not immune will become infected if they come into contact with the virus. [...]

According to estimates by the World Health Organization (WHO), more than 140,000 people died of measles worldwide in 2018. In the 1950s and 1960s, before the vaccine was introduced, between 50 and 470 people in Germany died as a result of measles every year. Today, the death rate for measles in high-income countries is between 0.01 and 0.1% of those who contract the disease. Measles can lead to serious complications, especially in children under five; such complications are less common in adults but do occur in rare cases. The most common complications of acute measles infections in industrialised countries are ear infections (7 to 9%), bacterial pneumonia (1 to 5%) and diarrhoea (8%). About one patient out of every 1,000 to 2,000 (0.05 to 0.1%) will go on to develop acute or post-infectious encephalitis. As a long-term complication, some patients will develop subacute sclerosing panencephalitis (SSPE), a usually fatal brain disorder, which may develop years after the patient recovered from a measles infection. According to the World Health Organization, four to eleven per 100,000 patients infected with measles are affected by SSPE. On average, SSPE develops about seven years after an acute infection with measles (cf. RKI, Epidemiological Bulletin 10/2015, p. 72 f.).

Children have a significantly higher risk of serious complications. […] For children below the age of one, the risk of complications from measles is particularly high; at the same time, children in this age group are also the most likely to contract measles. Persons who are immunocompromised have a particularly high risk of developing severe organ complications and/or having a fatal outcome. Findings from controlled studies conducted in the context of measles outbreaks indicate that pregnant women also face a higher risk of suffering complications from measles. At the same time, measles vaccination is contraindicated for these three groups with a higher risk of complications (cf. RKI, Epidemiological Bulletin 10/2015, p. 72 f.; Epidemiological Bulletin 2/2020, p. 5).

[...]

2. There is no specific treatment for measles. Drugs can only alleviate symptoms such as fever and pain. […]

3. a) The measles vaccine is safe and effective at preventing acute measles infection. Vaccination induces an immune response comparable to that following natural infection. According to calculations by the Robert Koch Institute, confirmed by the World Health Organization, two doses of the measles vaccine are 95 to 100% effective on average (RKI, Epidemiological Bulletin 2/2020, p. 10, cf. also WHO, Weekly epidemiological record, No. 17, 2017, 92, p. 202 <213 ff.>). Successful vaccination with the live vaccine is assumed to afford lifelong protection against measles (RKI, Epidemiological Bulletin 2/2020, p. 10, WHO, Weekly epidemiological record, No. 17, 2017, 92, p. 202 <213 ff.>).

b) According to experts, no vaccine against measles should be administered if there is no sufficient data on vaccination for a certain group or if a contraindication is present, i.e. if the vaccine is likely to have adverse consequences.

There is no comprehensive data on the safety and effectiveness of the vaccine for infants under nine months. […] The Standing Committee on Vaccination (Ständige Impfkommission – STIKO) therefore recommends administering the first dose of the measles vaccine at the age of eleven to fourteen months. According to the immunisation schedule recommended by the Standing Committee on Vaccination, basic immunisation with two vaccine doses can be completed at the earliest at the age of 15 to 23 months (RKI, Epidemiological Bulletin 34/2019, p. 316).

The Standing Committee on Vaccination is an expert committee affiliated with the Robert Koch Institute that was established in 1972 and is a politically and ideologically neutral body (cf. § 2(1) second sentence of its Rules of Procedure; Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 - para. 139). Its role is to provide guidance on the best use of available vaccines. Experts from the health ministries of the Federation and the Länder , from the Federal Joint Committee (Gemeinsamer Bundesausschuss der Krankenkassen ), from the Robert Koch Institute and from the Paul Ehrlich Institute participate in its meetings in an advisory capacity. Using criteria of evidence-based medicine, the Standing Committee on Vaccination takes into account vaccine safety assessments undertaken by the Paul Ehrlich Institute and receives expert and administrative support from the Robert Koch Institute. Its recommendations are not primarily based on an economic cost-benefit analysis, but on a risk-benefit analysis that weighs the effectiveness of vaccines against potential risks. The Standing Committee on Vaccination does not just look at the benefits of a vaccine for the individual, but also considers the benefits for the overall population (cf. § 1(3) of its Rules of Procedure). According to § 20(2) third sentence IfSG, the Committee’s core task is to issue recommendations regarding vaccinations and other measures to prevent the spread of communicable diseases and to develop criteria to distinguish common reactions to vaccination from vaccine damage that goes beyond such adverse reactions. Its recommendations are considered the medical standard; they also form the basis for health insurance coverage of the costs of vaccination […]. § 20(3) IfSG provides that the top health authorities of the Länder are to make public recommendations regarding vaccination on the basis of the recommendations issued by the Standing Committee on Vaccination.

Vaccination against measles is not recommended during pregnancy or for severely immunocompromised persons (cf. RKI Advice on Measles, last updated 23 July 2021). The measles vaccine contains live viral strains that have been attenuated but can replicate in an uncontrolled manner in patients with certain types of primary or acquired immunodeficiency and can lead to severe disease in these patients. However, immunocompromised patients can also have a higher risk of severe complications from measles infection and may benefit particularly from vaccination. For patients with certain types of immunodeficiency, vaccination can only be considered after individual consultation if the benefits outweigh the risks ([…]). Allergies against components of the vaccine are also a medical contraindication to vaccination.

c) In Germany – just as in North America and large parts of Europe (cf. Misin et al., Microorganisms 2020, 8, 276, p. 9) – individual vaccines that only target measles have not been available on the market for some time, and lost approval in September 2020. The only vaccines against measles available are combination vaccines against measles, mumps and rubella (MMR) or against measles, mumps, rubella and varicella (MMRV) ([…]). However, finished medicinal products for human use that are not licensed in Germany may […] be imported by pharmacies for individual use if the medicinal products in question are licensed in the exporting state and no medicinal products with a comparable active substance and strength is available in Germany. An individual vaccine targeting measles […] is currently licensed in Switzerland. This vaccine can be imported into Germany at one’s own expense and used for vaccination against measles ([…]).

d) Like any vaccine, the measles vaccine produces direct reactions, and in rare cases can lead to complications . […]

Serious adverse effects following vaccination are rare. A usually self-limiting low platelet count (thrombocytopenia) or an immune thrombocytopenic purpura (an autoimmune disorder with a low platelet count) occurred in three of 100,000 vaccinated persons (0.03‰) within two months after receiving the first vaccine dose. For children between ten and 24 months, measles vaccination increases the risk of febrile seizures by a factor of two to three. One to four patients per one million vaccinated persons (0.001 to 0.004‰) develop anaphylaxis (an acute allergic reaction of the immune system) following vaccination. There are differing views on whether measles vaccination can cause encephalitis (inflammation of the brain). Some sources cite an incidence of one per one million vaccinated persons (0.001‰). However, case reports indicate that this was caused by primary or acquired immunodeficiency. Rare cases of severe complications, such as measles inclusion body encephalitis or pneumonia, were reported in patients with suppressed immune systems. Measles vaccination is therefore contraindicated for persons with severe immunosuppression. By contrast, measles vaccination is not linked to inflammatory bowel disease, autism or aseptic meningitis (RKI, Epidemiological Bulletin 2/2020, p. 11; [...]).

Regarding individual measles vaccines and combination vaccines, the Paul Ehrlich Institute and the German Medical Association (Bundesärztekammer ) submitted statements in the present proceedings in which they ultimately concur, based on the analysis of three studies conducted between 1981 and 2001, that there are no significant differences in terms of adverse reactions and side effects between the two types of vaccines examined.

e) The share of the population that is vaccinated against measles is lower in Germany than in many other countries, particularly in Europe. According to a study on the health of children and youths in Germany carried out by the Robert Koch Institute […], 93.6% of three to seventeen-year-olds (born between 1985 and 2013) in Germany have received two vaccine doses against measles.

The vaccination rates achieved so far fall short of the targets that Germany has committed to in the context of international cooperation. Since 1984, the Member States of the WHO European Region have pursued the goal of gradually eliminating measles, since 2005 they also seek to eliminate rubella. Germany has long been committed to these goals and reaffirmed this commitment on numerous occasions. In order to prevent the spread of measles, more than 95% of the overall population must be vaccinated. Population immunity of 95% or higher provides effective protection against infection, including for persons who cannot (yet) be vaccinated (cf. RKI, Epidemiological Bulletin 10/2020, p. 3). The 53 Member States of the WHO European Region have therefore agreed on a strategy to eliminate measles and rubella. According to this strategy, at least 95% of each population should be immune from the virus, either because they have received two vaccine doses or because of previous infection, thus protecting all members of the community and in particular vulnerable groups. Whereas 37 of the 53 Member States succeeded in eliminating measles by 2017, and another six Member States were at least able to interrupt endemic transmission of measles over a period of one to two years, Germany was still classified as a state with endemic measles transmission by the World Health Organization in 2019 – as one of only five states in the European Union (European Centre for Disease Prevention and Control, Who is at risk for measles in the EU/EEA? Identifying susceptible groups to close immunity gaps towards measles elimination, 2019, p. 3 f.)

IV.

The four constitutional complaints all challenge the same provisions in the Protection Against Infection Act, which make vaccination against measles mandatory in certain communal facilities.

1. The complainants consider the challenged provisions to be unconstitutional on the grounds that they result in disproportionate interferences with both the fundamental right to physical integrity (Art. 2(2) first sentence GG) of the complainants who are minors and the right to exercise parental care (Art. 6(2) first sentence GG) of the other complainants; they also claim that the challenged provisions violate the rights of all complainants under Art. 3(1) GG.

a) Complainants nos. 1 and 2 in proceedings 1 BvR 469/20 are the parents, with joint custody, of complainant no. 3, who was born in April 2019 and was supposed to attend a municipal day care centre from April 2020. […]

Complainants nos. 1 and 2 in proceedings 1 BvR 470/20 are the parents, with joint custody, of complainant no. 3, who was born in January 2019. He was supposed to be looked after by a registered independent day care provider […] from May 2020 […].

Complainants nos. 1 and 2 in proceedings 1 BvR 471/20 are the parents, with joint custody, of complainant no. 3, who was born in April 2017. The child was supposed to attend a municipal day care centre from May 2020. […]

Complainants nos. 1 and 2 in proceedings 1 BvR 472/20 are the parents, with joint custody, of complainant no. 3, who was born in April 2018. He was supposed to be looked after by a registered independent day care provider […] from May 2020 […].

Those complainants who are minors have not been vaccinated against measles and do not have immunity either. Nor do they have a medical contraindication to vaccination against measles.

b) […]

2. The Bundestag , the Bundesrat , the Federal Government and all Land governments were notified of the constitutional complaints and of the opportunity to submit statements in the proceedings.

[…]

3. On the basis of § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), the Court invited expert third parties to submit statements on the constitutional complaints; the Court also invited selected research and expert organisations to submit statements in response to the following questions:

Question 1: What are viable options to raise the share of persons aged two and over who have received two doses of the measles vaccine or have acquired immunity through previous infection to 95% or more of the overall population?

Question 2: Do the risks of suffering adverse reactions and undesired side effects following measles vaccination differ when individual vaccines targeting only measles are used from the risks that arise when combination vaccines are used? If so, to what extent?

Question 3: an you provide information on the strategies used in other European countries to combat measles and to reach measles vaccination rates (with two vaccine doses) or immunity through previous infection of at least 95% of the overall population?

The following organisations have submitted statements: the Association of Doctors for Personal Autonomy in Vaccination Decisions (Verein der Ärztinnen und Ärzte für individuelle Impfentscheidung e.V. ), the Federal Working Group of the Youth Welfare Services of the Länder (Bundesarbeitsgemeinschaft Landesjugendämter ), the German Medical Association (Bundesärztekammer ), the Federal Association Representing Parents (Bundeselternvertretung ), the Professional Association of Doctors for Microbiology, Virology and Infectious Disease Epidemiology (Berufsverband der Ärzte für Mikrobiologie, Virologie und Infektionsepidemiologie e.V. ), the Federal Association of Doctors Working in Public Healthcare (Bundesverband der Ärztinnen und Ärzte des Öffentlichen Gesundheitsdienstes e.V. ), the Federal Association of Private Organisations of Child and Youth Welfare (Bundesverband privater Träger der freien Kinder-, Jugend- und Sozialhilfe e.V. ), the German Academy of Paediatrics (Deutsche Akademie für Kinder- und Jugendmedizin e.V. ), the German Society for General and Family Practice (Deutsche Gesellschaft für Allgemeinmedizin und Familienmedizin e.V. ), the German Society for Occupational and Environmental Health (Deutsche Gesellschaft für Arbeitsmedizin und Umweltmedizin e.V. ), the German Society of Virology (Deutsche Gesellschaft für Virologie e.V. ) – including on behalf of the German Association to Combat Viral Diseases (Deutsche Vereinigung zur Bekämpfung der Viruserkrankungen e.V. ) –, the National Association of Public Health Insurance Funds (Spitzenverband Bund der Krankenkassen ) and the Standing Committee on Vaccination at the Robert Koch Institute, which makes reference to a statement of the Paul Ehrlich Institute.

B.

The constitutional complaints are admissible.

I.

All complainants are fundamental rights holders and thus have legal ability to lodge a complaint. Like all individuals, the children who lodged constitutional complaints are afforded protection by the fundamental right to physical integrity under Art. 2(2) first sentence GG. Children are holders of fundamental rights (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 121, 69 <92>; regarding human dignity and the right to the free development of one’s personality, see also BVerfGE 47, 46 <73 f.> and BVerfGE 57, 316 <382>), even if they cannot necessarily exercise the full extent of these rights from the outset ([…]). Likewise, children can also invoke the constitutionally protected right to equal treatment following from Art. 3(1) GG (cf. BVerfGE 151, 101 <126 para. 61>).

Legal representation of children lies in the hands of the respective parents with custody (cf. § 1629(1) first sentence of the Civil Code, Bürgerliches Gesetzbuch – BGB). Parents thus have the authority to lodge a constitutional complaint and to represent their children in constitutional complaint proceedings when children do not yet have capacity to take legal action because of their age (cf. BVerfGE 72, 122 <133>). […]

II.

[...]

III.

The complainants also have standing to challenge all provisions at issue here. They are individually, presently and directly affected by these provisions. They also sufficiently demonstrated the possibility that their fundamental rights have been violated.

1. [...]

2. Complainants nos. 1 and 2 in the four proceedings sufficiently demonstrated and substantiated the possibility that their right of parental care under Art. 6(2) first sentence GG has been violated, while complainants no. 3 in the four proceedings, who are all minors, sufficiently demonstrated and substantiated the possibility that their fundamental right to physical integrity under Art. 2(2) first sentence GG and their right under Art. 3(1) GG have been violated.

IV.

[...]

V.

[...]

C.

The constitutional complaints are unsuccessful. It is true that the challenged provisions affect the parents’ fundamental right under Art. 6(2) first sentence GG, which protects the exercise of parental care in health matters, and – most notably – the children’s right to physical integrity guaranteed by Art. 2(2) first sentence GG. The fundamental rights interests protected by these two fundamental rights are interdependent in the present case (see I. below). However, both the interference with the fundamental right of parental care and the interference with the fundamental right to physical integrity are justified under constitutional law (see II. below). The challenged provisions also do not violate the children’s right to equal treatment under Art. 3(1) GG (see III. below).

I.

The challenged provisions in the Protection Against Infection Act adversely affect the children’s physical integrity (Art. 2(2) first sentence GG) and their parents’ right under Art. 6(2) first sentence GG. These impairments cannot be considered in isolation; rather, they are interdependent due to the way the contested provisions are designed. The actual intrusion upon the children’s physical integrity that occurs when the vaccine is administered depends on the parents exercising their right of parental care in health matters in a specific way. The challenged provisions serve to provide enhanced protection against measles infections. They are not just aimed at protecting the individual from contracting the disease (individual protection), but also at preventing the spread of the disease through the population (community protection), which is contingent upon sufficient vaccination rates (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 19/13452, p. 16). In order to achieve these purposes, the challenged provisions interfere with both the children’s and the parents’ fundamental rights. Given that the law is designed in such a way that the use of certain facilities for early childhood and preschool education requires proof that children have been vaccinated against measles […], the children’s fundamental rights interests and those of their parents are intertwined in the present case. The legislator can only achieve the desired individual and community protection in this area if parents, in the exercise of their parental right of care in health matters under Art. 6(2) first sentence GG, have their children vaccinated. In order to create a strong incentive and to put pressure on parents to have their children vaccinated, the law provides that failure to provide proof of vaccination on the part of parents […] leads to a ban on their children attending the facilities in question.

II.

The challenged provisions regarding proof of measles vaccination and the legal consequences if parents fail to provide such proof interfere with the parents’ fundamental right under Art. 6(2) first sentence GG (see 1.a) below) and with their children’s physical integrity (Art. 2(2) first sentence GG); they also restrict the children’s right to the free development of their personality under Art. 2(1) GG (see 1.b) below). However, this interference can only be justified if § 20(8) third sentence IfSG is interpreted in conformity with the Constitution.

1.a) The right of parental care (Art. 6(2) first sentence GG) of complainants nos. 1 and 2 in the four proceedings is affected in various ways by the challenged provisions.

aa) Art. 6(2) first sentence GG guarantees parents the right to care for and raise their children. It is for parents to decide how to care for and raise their children, and thus exercise their parental responsibility as they see fit; they are in principle afforded freedom from state influence and interference in this regard (cf. BVerfGE 107, 104 <117; 121, 69 <92>). However, the right of parental care differs from other fundamental freedoms enshrined in the Basic Law in that it does not afford parents freedom for the purposes of exercising their personal self-determination, but freedom that serves to protect the child with the child’s best interests in mind (cf. BVerfGE 121, 69 <92>). At its core, it rests on the notion that parents will usually prioritise their child’s best interests more than any other person or institution. The right of parental care is a fundamental right of parents vis-à-vis the state. The state may not interfere with the parents’ right to raise their children unless there are reasons justifying such interference under constitutional law. This notwithstanding, in the relationship between parent and child, parents must be guided by the child’s best interests when exercising parental care (cf. BVerfGE 103, 89 <107>; 121, 69 <92>; 133, 59 <77 f. para. 49>).

The right of parental care is comprehensive in nature. Parents and other persons who bear parental responsibility within the meaning of Art. 6(2) GG are afforded constitutionally protected influence on all matters relating to the life and development of their child, including outside family life (cf. BVerfGE 107, 104 <120>). The parental right guaranteed by Art. 6(2) first sentence GG must be further fleshed out in statutory law – this has mainly been done in §§ 1626 ff. BGB […]. Yet this does not mean that all ordinary law provisions on parental custody are part of the constitutional guarantee of the right of parental care (cf. BVerfGE 84, 168 <180>). Rather, the constitutional right of parental care protects the essential elements of custody that are indispensable for the exercise of parental responsibility (cf. BVerfGE 84, 168 <180>; 107, 150 <173>).

In principle, this includes care for the child’s physical well-being, which encompasses all health matters and thus also extends to decisions regarding medical measures ([…]). Given the potential implications for the further development of the child (cf. Federal Court of Justice, Order of 3 May 2017 - XII ZB 157/16 - para. 20), the parents’ decision on whether to have their child vaccinated is an essential element of parental custody. This parental decision therefore falls within the scope of protection guaranteed by the right of parental care under Art. 6(2) first sentence GG. This applies at least to the extent that parental decision-making in health matters concerns children who, given their stage of development, are not yet capable of making their own decisions on medical treatments or of being involved in such decisions (see § 630d(1) second sentence BGB regarding capacity to consent) ([…]). In this respect, too, parents must be guided by the child’s best interests when exercising their right of parental care under Art. 6(2) first sentence GG. If a child has not yet developed the necessary mental capacity to exercise self-determination regarding their physical integrity (Art. 2(2) first sentence GG), the right of parental care must be guided by the child’s best interests and is subject to limitations in cases where the child’s welfare is at risk ([…]).

Moreover, the right of parental care encompasses the responsibility to ensure that the child, in the exercise of their own right to the free development of their personality following from Art. 2(1) GG, can develop into a self-reliant person within society (cf. BVerfGE 133, 59 <73 f. para. 42>; Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 971/21 inter alia -, para. 45 – Federal pandemic emergency brake II ). In particular, Art. 6(2) GG guarantees parents the right to decide, in the context of their responsibility for raising their child, whether and at what development stage the child is primarily cared for by one parent alone, by both parents together or by third parties (cf. BVerfGE 99, 216 <231>; 130, 240 <251>).

bb) […]

(1) [...]

(2) In several respects, the challenged provisions of the Protection Against Infection Act amount to targeted indirect interferences with the parents’ fundamental right under Art. 6(2) first sentence GG. When parents, in the exercise of their right of care in health matters protected by Art. 6(2) first sentence GG, choose not to vaccinate their children, they face negative consequences (regarding this criterion cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 - para. 114; cf. also ECtHR <GC>, Vavřička and Others v. the Czech Republic, Judgment of 8 April 2021, no. 47621/13, § 263) as restrictions arise from the law in terms of access to communal day care within the meaning of § 33 nos. 1 to 3 IfSG; without these legal restrictions, access to such day care would be available to the parents concerned, allowing them to promote the free development of their children, which is protected by Art. 2(1) GG and for which parents are responsible in the context of the care provided by them. These adverse consequences for the right to exercise parental care in health matters are of such nature and weight that, in terms of their objective and effects, they are equivalent to a direct state interference with Art. 6(2) first sentence GG.

[…] 

b) The challenged provisions also interfere, in a targeted indirect manner, with the children’s fundamental right to physical integrity protected by Art. 2(2) first sentence GG. Alternatively, depending on their parents’ decision for or against vaccination, they impair the children’s right to the free development of their personality (Art. 2(1) GG).

aa) The fundamental right under Art. 2(2) first sentence GG protects the physical integrity of the fundamental rights holder (cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 - para. 111). This right is afforded to “every person”, and thus also to small children (cf. regarding the right to life BVerfGE 115, 118 <139>).

Moreover, children are afforded a right to the free development of their personality (Art. 2(1) GG). But they require protection and assistance to develop into self-reliant persons in society. Given the children’s right to the free development of their personality, it is incumbent upon the legislator to ensure that the necessary prerequisites for such development are in place. This special responsibility of the state to protect children, deriving from the constitutionally protected right of children to free development, extends to all aspects of children’s life that are essential for their personality to develop. The Basic Law divides the responsibility to protect the personality development of children between parents and the state, leaving further details to be specified by the legislator. Yet in accordance with Art. 6(2) first sentence GG, this responsibility primarily falls to the parents (cf. on all of the foregoing BVerfGE 133, 59 <73 ff. para. 42 f.; Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 971/21 inter alia -, para. 45 f.).

bb) The challenged provisions result in targeted indirect interferences with the children’s physical integrity.

The challenged provisions have implications for children’s physical integrity, for which parents bear responsibility. These implications are of such nature and weight as to amount to a targeted indirect interference with the children’s right under Art. 2(2) first sentence GG. Receiving a vaccine against measles affects a child’s physical integrity given that a substance is introduced into the child’s body and given the side effects that may occur. It is true that the Protection Against Infection Act does not prevent parents from choosing not to vaccinate their children against measles, in which case the children’s physical integrity would not be affected. However, this parental choice regarding the children’s physical integrity entails considerable disadvantages for the children. Normally, children are entitled [by law] to a day care place offering early childhood or preschool education […]. However, given that § 20(9) sixth sentence IfSG imposes a ban on attending day care facilities for unvaccinated persons, children who remain unvaccinated forfeit their statutorily guaranteed right to a day care place, or at the very least they can no longer assert and enforce this right […]. At the same time, the legislator itself regards early childhood and preschool education as crucially important for the development of children’s personality protected by Art. 2(1) GG. If parents – like in the present case – want their children to receive such education and day care, the consequences they face if they do not provide proof of vaccination create a strong incentive to have their children vaccinated. This in turn affects the physical integrity of the children when the vaccine is administered. It was the legislator’s intent to put pressure on parents to choose, in the exercise of their parental care in health matters, to vaccinate their children. In terms of its effects, this legislative decision is equivalent to a direct interference with Art. 2(2) first sentence GG. Given that the legislator intended to put pressure on parents to choose to have their children vaccinated by imposing a ban on attending day care facilities, this likewise amounts to a targeted indirect interference with the children’s physical integrity.

c) […]

2. The interferences with the complainants’ fundamental rights must be justified under constitutional law. The right of parental care (Art. 6(2) first sentence GG) is guaranteed without an express limitation clause; an interference with this right can only be justified if this is required to give effect to conflicting constitutional law, and must be based on legislation that is formally and substantively constitutional (cf. BVerfGE 98, 218 <244 f.>; 107, 104 <118 und 120>). According to the simple limitation clause contained in Art. 2(2) third sentence GG, the fundamental right to physical integrity can be restricted by or pursuant to a law; therefore, interferences with this right can only be justified if they are the result of legislation that is formally and substantively constitutional (cf., fundamentally, BVerfGE 6, 32 <41>).

3. The challenged provisions are formally constitutional.

[...]

4. The interferences with the fundamental right of parents under Art. 6(2) first sentence GG and with children’s physical integrity under Art. 2(2) first sentence GG are only justified on condition that § 20(8) third sentence IfSG is interpreted in conformity with the Constitution. Based on a constitutionally sound interpretation, the contested provisions adhere to the requirement that interferences be based on a statutory provision (see a) below) and satisfy the principle of proportionality under constitutional law (see b) below).

a) The challenged provisions only satisfy the requirement that interferences be based on a statutory provision if § 20(8) third sentence IfSG is interpreted in conformity with the Constitution. The provision must be interpreted in conformity with the Constitution as follows: in a situation where merely combination vaccines are available that also contain vaccine components other than those against measles, the obligation to provide proof of vaccination pursuant to § 20(8) first sentence IfSG only remains applicable on condition that these combination vaccines do not contain vaccine components other than those against measles, mumps, rubella or varicella.

aa) The principles of democracy (Art. 20(1) and (2) GG) and the rule of law (Art. 20(3) GG) require that the legislator itself decides essential matters. Firstly, “essential” means “essential for the exercise of fundamental rights”. In certain situations, it may be incumbent upon the legislator itself to provide the necessary guidance for the area of life in question. This may be the case, for example, where competing freedoms conflict with one another and their boundaries are fluid and difficult to discern. Secondly, the legislator is required to determine those matters that are of great significance for state and society (cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 125 with further references). These requirements serve to ensure that decisions that have considerable implications are made on the basis of a process that allows the general public to form and express opinions and that requires Parliament to hold a public debate on the necessity and scope of the envisaged measures. However, the Basic Law does not give rise to an absolute reservation of parliamentary decision-making in the sense of parliamentary monism. Under the conditions set out in Art. 80(1) GG, an executive authority can participate in the exercise of legislative powers by issuing statutory instruments like ordinances – yet any determinations regarding essential matters must still be made by the parliamentary legislator (cf. BVerfGE 157, 30 <172 f. para. 260 with further references).

bb) (1) If the only vaccines available in Germany were combination vaccines with further vaccine components in addition to those available on the market when the law was adopted, and if § 20(8) third sentence IfSG were understood to also be applicable in that scenario, the provision would not meet these requirements ([…]). The wording in § 20(8) third sentence IfSG does not expressly limit the vaccine components “targeting other diseases” that may be contained in a combination vaccine against measles. If [the provision] were understood without such a limitation to combination vaccines existing at the time of adoption, it would be similar to a dynamic reference extending the obligation to provide proof of measles vaccination to future situations where only combination vaccines are available that could have any number of vaccine components against diseases other than measles. The actual conditions that must be met to fulfil the obligation to provide proof of vaccination would then be contingent on which vaccines containing what vaccine components were available on the market at a given time. In consequence, the actual options available to addressees of the law to fulfil the obligation imposed by § 20(8) first sentence IfSG would then no longer be sufficiently rooted in the law (regarding a dynamic reference with similar effects cf. Federal Constitutional Court, Order of the First Senate of 10 February 2022 - 1 BvR 2649/21 - para. 14; see also Bundesrat document, Bundesratsdrucksache – BRDrucks 358/1/19 p. 32). The weight of the interference with the affected fundamental rights of children and their parents is in part determined by the number of vaccine components contained in a combination vaccine. Which vaccines are available to fulfil the obligation to provide proof of measles vaccination is therefore an essential question with regard to fundamental rights and must in principle be determined by the legislator. To what extent the legislator can involve an executive authority in this decision is determined by Art. 80(1) GG.

(2) Nevertheless, § 20(8) third sentence IfSG ultimately does not violate the requirement that interferences be based on a statutory provision, and does thus not violate constitutional law in this respect. The provision satisfies this requirement if it is interpreted in conformity with the Constitution.

§ 20(8) third sentence IfSG can be interpreted in conformity with the Constitution to the effect that, in a situation where merely combination vaccines are available, the obligation imposed by § 20(8) first sentence IfSG continues to apply but only on condition that these combination vaccines do not contain vaccine components other than those against measles, mumps, rubella or varicella. When enacting the Protection Against Measles Act, the legislator’s assessment of affected fundamental rights only took into account existing combination vaccines against these four diseases (cf. BTDrucks 19/13452 p. 28).

This reading of the law is within the limits of an interpretation in conformity with the Constitution. The fact that the wording of the law does not expressly limit or specify the vaccine components that may be contained in a combination vaccine for the purposes of that law does not merit a different conclusion. An interpretation that limits the clause governing combination vaccines to the aforementioned vaccine components neither conflicts with the purpose of the law nor does it fundamentally change the substantive contents of the provision or jeopardise the legislative objective in any material respect (in greater detail cf. BVerfGE 149, 126 <154 f. para. 73 ff.> with further references). The provision’s legislative history provides sufficient indications that the legislator intended to limit the vaccines used to fulfil the obligation under § 20(8) first sentence IfSG to the aforementioned combination vaccines if only combination vaccines are available. The explanatory memorandum to the draft act only makes reference to combination vaccines with vaccine components targeting measles, mumps and rubella or measles, mumps, rubella and varicella (cf. BTDrucks 19/13452, p. 28), suggesting that § 20(8) first sentence IfSG was only meant to be applicable to those types of combination vaccines. […]

[...]

The legislator also emphasised that the legal provisions were enacted in the context of the goal adopted by the Member States of the WHO European Region to gradually eliminate measles – a fact that is expressly referred to in the explanatory memorandum (cf. BTDrucks 19/13452, p. 1). This also suggests that the scope of the legislative measure was meant to be limited to the aforementioned combination vaccines, as a long-standing practice of using such vaccines exists in these states (see para. 26 above). The combination of vaccine components and the effects of the vaccines have been unchanged and proven for years, and their use has been recommended by the Standing Committee on Vaccination for many years as well. The list of approved combination vaccines maintained by the Paul Ehrlich Institute also shows that combination vaccines targeting measles exclusively contain other vaccine components targeting mumps, rubella and varicella, and that this has been the case for a long time. There is nothing to suggest that the legislator assumed that this situation, which has been the status quo for years, could change and that vaccine components other than those targeting mumps, rubella and varicella could be added to the measles vaccines approved in Germany in the foreseeable future.

[...]

b) When interpreted in this manner, the challenged provisions also satisfy the principle of proportionality under constitutional law. The provisions pursue legitimate purposes (see aa) below). They are suitable (see bb) below) and necessary (see cc) below) to achieve these purposes. Despite their considerable weight of interference, the provisions do not place unreasonable (unzumutbar ) burdens on affected children and their parents in terms of fundamental rights. They are proportionate in the strict sense (appropriate) to protect particularly vulnerable groups from contracting measles (see dd) below).

aa) The obligations […] to be vaccinated against measles and to provide proof of such vaccination for access to certain communal day care facilities and the ban on attending such facilities if no proof is provided […] pursue a purpose that is legitimate under constitutional law. The same applies to assigning responsibility for ensuring compliance with the obligation to provide proof to parents, rather than to the children themselves.

(1) Where statutory provisions result in an interference with fundamental rights, such interference can only be justified if the legislator is pursuing constitutionally legitimate purposes. For laws that the legislator adopts with the aim of tackling risks to the general public or the legal interests of individuals, the assumptions made by the legislator must be based on sufficiently robust foundations. Depending on the nature of the subject matter in question, the significance of the affected legal interests, and the means available to the legislator to draw sufficiently reliable conclusions, the Court’s review can range from a mere review of evident errors to a review of reasonableness or even to a substantive review that is more comprehensive in scope. The greater the fundamental rights impairment resulting from the statutory provisions at issue, the higher the intensity of judicial review. However, depending on the seriousness of the risks the legislator seeks to avert and the weight of the endangered legal interests the legislator intends to protect, the legislator may also have a greater margin of appreciation (cf. Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 781/21 -, para. 169 ff. with further references; Order of 27 April 2022 - 1 BvR 2649/21 - para. 151 f.).

(2) With the challenged provisions, the legislator intends to protect vulnerable groups from contracting measles, a disease that is dangerous for them, and thus pursues a constitutionally legitimate purpose (see (a) below). The legislator assumed that persons who have not been fully vaccinated against measles and do not have immunity could pose a risk to the life and health of persons who cannot sufficiently protect themselves against measles through vaccination. This assumption has a reliable basis and stands up to strict constitutional review (see (b) below).

(a) The challenged provisions of the Protection Against Measles Act serve to provide enhanced protection from contracting measles, in particular for persons who regularly come into contact with other persons in communal and healthcare facilities (cf. BTDrucks 19/13452, p. 16). They are not just aimed at protecting the individual from contracting the disease, but also at preventing the spread of the disease through the population, which is contingent upon achieving sufficient vaccination rates. This serves to protect people who cannot be vaccinated for medical reasons and at the same time are at risk of serious illness if they contract the virus. In particular, this concerns people with a weakened or compromised immune system, but also infants. In general, infants can only be vaccinated from the age of nine months at the earliest. Yet the immune protection they have acquired from their mothers is already waning at this point. They are reliant on all people around them being vaccinated, thus protecting them from contracting measles. There is therefore great public interest in immunisation of the population in line with the recommendations issued by the Standing Committee on Vaccination. Moreover, the legislator wants to support the World Health Organization’s goal of gradually eliminating measles in its Member States in order to ultimately eradicate the disease worldwide (cf. BTDrucks 19/13452, p. 26).

According to the explanatory memorandum to the draft act, the provisions of the Protection Against Measles Act at issue here are aimed at preventing infections with the highly contagious measles virus and the severe complications that may occur, including fatal outcomes (cf. BTDrucks. 19/13452, p. 16). It is evident that the legislator enacted the law to fulfil its duty of protection arising from Art. 2(2) first sentence GG. Protecting life and health are exceptionally significant interests of the common good in their own right, and are thus constitutionally legitimate legislative objectives. The state’s duty of protection arising from Art. 2(2) first sentence GG does not take effect only after violations have already occurred. It is also oriented towards the future. Therefore, Art. 2(2) first sentence GG – which encompasses the protection of individuals against impairments to their physical integrity and health – can impose a duty of protection on the state, including a duty to take precautionary measures against health impairments (cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 155 with further references). This duty also encompasses the duty to protect those who cannot protect themselves from the risks of measles infection by getting vaccinated. The protection of the life and health of vulnerable groups required by Art. 2(2) first sentence GG is a constitutional interest that is in principle capable of justifying restrictions of the right of parental care under Art. 6(2) GG, which is not subject to a limitation clause, and of the children’s fundamental right to physical integrity under Art. 2(2) first sentence GG.

(b) The legislator’s assessment that measles is one of the most contagious infectious diseases in humans, and that the number of cases that lead to severe complications is far from negligible (cf. BTDrucks 19/13452, pp. 16 and 26), is based on reliable foundations. The same holds true regarding the legislator’s assessment that vaccination rates were not high enough to ensure community protection when the Protection Against Measles Act entered into force, and that vulnerable groups were at risk of contracting measles in communal and healthcare facilities (cf. BTDrucks 19/13452, pp. 1 f. and 16). A strict standard of review arises in the present case given that reliable scientific findings are available to the legislator and given the weight of the fundamental right interferences, both factors that considerably limit the legislator’s margin of appreciation. Yet in assuming that measles pose a risk to vulnerable persons, in particular to infants and others who cannot sufficiently protect themselves through vaccination, the legislator was within the limits of this narrow margin and in keeping with constitutional law.

(aa) According to reliable scientific findings, measles is one of the most contagious infectious diseases, and no treatment is available ([…]). Transmission of measles can occur without direct contact with an infectious person (e.g. by being in a room previously used by a person infected with measles). Virtually all non-immune persons who are directly exposed to conditions under which the virus is transmitted contract the disease, given that the virus is highly transmissible and that it is highly likely that persons infected with it will develop symptoms. Measles can lead to complications that are in part severe (including bacterial pneumonia and encephalitis), especially in children under five and in adults. Moreover, persons who have a medical contraindication for measles vaccination (infants under nine months, pregnant women, severely immunocompromised persons) cannot effectively protect themselves by getting vaccinated. At the same time, if these groups do contract measles, they have a higher risk of severe complications. Children under the age of one – with a particularly high incidence of measles in their age group – have the highest age-specific risk of contracting measles (RKI, Epidemiological Bulletin 10/2015, 9 March 2015, p. 72 f.; see also […] para. 16 f. above).

(bb) At the time the Protection Against Measles Act was adopted, the legislator’s assumption that herd immunity had not yet been achieved and that measles infections occurred in the communal and healthcare facilities covered by the Act was based on reliable findings. From 2014 to 2018, the Robert Koch Institute received reports of 430 measles outbreaks, with a total of 3,178 infected persons. Outbreaks are defined as two or more related measles cases. About 21% of these outbreaks occurred in medical facilities, communal facilities for day care, education and assisted living and facilities for asylum seekers. About 28% of all measles cases occurred in these settings (RKI, Epidemiological Bulletin 2/2020, p. 8 and para. 19 above). According to scientifically validated findings, 95% of the population must be vaccinated or have otherwise acquired immunity against measles in order to guarantee the desired community protection (cf. RKI, Epidemiological Bulletin, 10/2020, 5 March 2020, p. 3). This rate has not been reached in Germany, neither in the overall population nor in the age groups attending the communal facilities at issue in the present proceedings (see para. 30 f. above for more details).

(cc) After the Act was adopted, the factual basis of the legislator’s assumption that persons who have no immunity against measles are at risk has not changed in a way that would call into question the constitutional legitimacy of the purposes pursued. While 2020 saw a significant reduction in reported measles cases compared to previous years – with just 76 cases reported to the Robert Koch Institute (cf. RKI, Epidemiological Bulletin 15/2021, 15 April 2021, p. 6) –, this drop can be attributed to the temporary measures taken to curb the spread of SARS-CoV-2. Given that most of these measures have been lifted and a rise in cases of infectious diseases, including measles, can be expected ([…]), the assumption that vulnerable groups are at risk still holds. In promoting individual protection against measles through vaccination of persons who can be vaccinated, and in promoting community protection to protect those who cannot protect themselves against measles through vaccination, the legislator therefore pursues legitimate aims.

bb) Imposing an obligation to provide proof of vaccination as a prerequisite for access to certain communal day care and healthcare facilities, together with the ban on attending such facilities in case of non-compliance (§ 20(9) sixth sentence IfSG), is suitable under constitutional law to achieve the purposes pursued by the Protection Against Measles Act.

(1) The suitability requirement under constitutional law is satisfied if there is a possibility of achieving the legislative objectives with the statutory provisions. A provision can only be found unsuitable if it cannot further the legislative purpose in any way or if it counteracts this purpose (cf. Federal Constitutional Court, Order of the First Senate of 27 July 2022 - 1 BvR 2649/21 -, para. 166; established case-law).

(2) Based on these standards, the challenged provisions are suitable for protecting vulnerable groups from contracting measles, and thus from severe complications that may result from measles infections. They can help increase vaccination rates both in the overall population and in facilities that either provide care to vulnerable people or that vulnerable people frequent regularly or whose staff or occupants they come in contact with on a regular basis. If only children who have been vaccinated or have immunity against measles attend such facilities, this – just as the ban on attending the facilities for children without such vaccination or immunity […] – will help reduce the risk of contracting measles. […]

According to validated scientific findings, measles vaccination is 95 to 100% effective if two vaccine doses are administered, which is also the standard required by § 20(8) second sentence IfSG. This is also the case when a combination vaccine as set out in § 20(8) third sentence IfSG is used (cf. on both points RKI, Epidemiological Bulletin 2/2020, 9 January 2020, p. 10 f.; see also Measles vaccines: WHO position paper – April 2017, Weekly epidemiological record, No. 17, 2017, 92, pp. 205, 210, 213 ff.). Vaccination confers lifelong protection.

cc) The obligation to provide proof of vaccination against measles in certain facilities, and the ban on attending such facilities if no proof is provided […], are necessary under constitutional law for protecting individuals and the overall population from measles. Taking into account the margin of appreciation afforded to the legislator, it is not ascertainable that other means were available that would have been as clearly effective while at the same time restricting the affected fundamental rights of children and their parents to a lesser extent.

(1) Interferences with fundamental rights must not go further than is necessary to achieve the legislative purpose. A measure falls short of this standard if an equally effective means is available to achieve the legislative objective that would be less intrusive for fundamental rights holders and would not entail greater burdens for third parties or the general public. In this regard, it must be clearly established that the alternative measure is equally effective for achieving the purpose pursued. In principle, the legislator has a margin of appreciation, including when assessing the necessity of a law. This margin of appreciation includes, among other things, appraising the effects of the chosen measures in comparison with other, less intrusive measures. The margin may be narrower depending on the fundamental right affected or the severity of interference. Conversely, the more complex the matter addressed by the legislator, the broader the margin. Where measures entail serious interferences with fundamental rights, it is not in principle permissible for uncertainties in the assessment of facts to simply be interpreted to the detriment of fundamental rights holders. But if the interferences serve to protect significant constitutional interests, and if the means available to the legislator to draw sufficiently reliable conclusions are limited in view of factual uncertainties, the Federal Constitutional Court’s review is in turn limited to assessing whether the legislator’s prognosis is tenable (cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 187 with further references).

(2) Based on these considerations, the legislator had a margin of appreciation for assessing the viability of alternative means, despite the severity of the interference with the fundamental rights of children and parents. Unlike the legislator’s assessment that vulnerable groups are at risk from measles (see para. 107 above), the determination that the measures provided for by the legislator are more effective than alternative measures is less certain. In particular, there is uncertainty as to whether vaccination rates sufficient to reach herd immunity in the group affected by the challenged provisions could also be achieved by providing better information, greater outreach and increased monitoring. The expert third parties heard in the present proceedings come to different conclusions with regard to the effectiveness of such measures, which would restrict the affected fundamental rights of children and their parents to a lesser extent.

[...]

Based on the standards set out above, it can therefore be concluded: when the effectiveness of the measures chosen by the legislator to achieve the legislative aim is uncertain and other measures exist that might also be sufficiently effective for achieving this aim, the legislator is afforded a margin of appreciation if its legislative actions serve to protect particularly significant constitutional interests such as the life and health of vulnerable groups. This is the case here. The Federal Constitutional Court is therefore limited to conducting a review as to whether the legislative assessment regarding viable alternative means is tenable (cf. Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 185; Order of 27 April 2022 - 1 BvR 2649/21 -, para. 187).

(3) On this basis, it is not objectionable under constitutional law for the legislator to assume that no alternative means were available which would clearly be equally effective in protecting the individual and society. The legislator’s assumptions in this regard are based on sufficiently robust foundations.

(a) It was tenable for the legislator to assume that other measures to raise measles vaccination rates, measures that would not entail an obligation to provide proof of vaccination leading to exclusion from (early) childhood education facilities in the event of non-compliance, are not clearly equally effective for achieving the legislative aims. Given the available findings on vaccine take-up and the underlying causes – even though there are differing views on these findings –, the legislator could assume, in view of its margin of appreciation, that the necessary vaccination rates could not be reached without putting pressure on parents.

There are reliable indications for this. Since 1972, the Standing Committee on Vaccination has issued public recommendations for vaccination. The significance of these recommendations was strengthened considerably by the Act to Increase Competition Among Public Health Insurance Schemes (Gesetz zur Stärkung des Wettbewerbs in der Gesetzlichen Krankenversicherung ) of 26 March 2007 (BGBl I 2007, 378), which incorporated recommended vaccinations into the catalogue of services that must be covered by public health insurance schemes […]. Vaccination programmes were further promoted by a number of statutory measures contained in the Act to Promote Health and Prevention (Gesetz zur Stärkung der Gesundheitsförderung und der Prävention ) of 17 July 2015 (BGBl I 2015, 1368). The Federal Centre for Health Education (Bundeszentrale für gesundheitliche Aufklärung ) launched public information campaigns ([…]), routine checks of vaccination status were introduced for all health check-ups for children, youths and adults, and company doctors received the right to administer general vaccines. In addition, a requirement was introduced that parents had to provide proof of a vaccination consultation with a doctor as a precondition for their child attending a day care centre (§ 34(10a) IfSG). Moreover, the law was amended to make it possible to temporarily exclude unvaccinated children from communal facilities if measles cases occurred (§ 28(2) IfSG). However, these measures failed to boost vaccination rates to the levels required for protecting the population through herd immunity.

In view of the validated scientific findings available, the legislator was therefore allowed to conclude, despite the differing assessments put forward by some of the expert third parties heard in the present proceedings, that these measures have been insufficient to achieve herd immunity against measles. Another aspect in favour of the legislator’s assessment is that, following a brief marked increase, vaccination rates have been stagnating for years despite the incentives provided (cf. RKI, Epidemiological Bulletin 18/2019, 2 May 2019, p. 150). […] Based on this information, the legislator could tenably assume that intensifying outreach and public information measures addressing the purpose of measles vaccination would not clearly be equally effective in achieving the legislative aims pursued.

(b) The challenged provisions do not fail to meet the necessity test on the grounds that the obligation to provide proof of measles vaccination pursuant to § 20(8) third sentence IfSG is also applicable if only combination vaccines are available, as is the case in Germany as no approved individual vaccines have been available for some time. […]

Limiting the legal framework to only requiring proof of measles vaccination if individual vaccines are available does not constitute an equally effective means […]. This is precisely because there are currently no individual vaccines targeting only measles available in Germany, and individual vaccines that were offered in the past are no longer approved for circulation as they were not sufficiently used. In light of this, the purpose of the law would be harder to achieve if the obligation to provide proof of vaccination was contingent on the availability of individual vaccines – in that scenario, all children whose parents do not voluntarily consent to the use of combination vaccines would remain unvaccinated. Imposing a statutory obligation on the competent state authorities to have such vaccines produced or otherwise ensure their availability in Germany would also not be equally effective and fail to meet the constitutional necessity test. It is true that it might be possible to enact statutory provisions on the central procurement or production and placing on the market of individual vaccines (cf., e.g., Ordinance to Ensure Medical Supplies for the Population in the Context of the Epidemic Caused by SARS-CoV-2, Medizinischer Bedarf Versorgungssicherstellungsverordnung , issued 25 May 2020 in the context of the pandemic). An individual vaccine targeting measles is currently available in Switzerland. However, it appears that there is no market for such individual vaccines in Germany or the other EU Member States – probably because the manufacturers focus on the recommendations of the respective vaccination committees, which recommend combination vaccines for protection against measles ([…]). Therefore, state-controlled procurement of the vaccine would impose a greater burden on the general public. Yet where alternative measures would impose additional burdens on third parties or the general public, such measures [do not constitute less intrusive means and thus] cannot call into question the necessity of the challenged measures (cf. BVerfGE 113, 167 <259>; 148, 40 <57 para. 47>).

This notwithstanding, once the immune protection mandated by § 20(8) first sentence IfSG has been acquired through an individual vaccine targeting only measles, for example […] by using a vaccine imported from abroad, this must generally be recognised as an equally suitable means for satisfying the legislative purpose ([…]). In these cases, it could no longer be considered necessary to require vaccination with a combination vaccine available in Germany, and doing so would no longer be in line with the principle of proportionality.

dd) The challenged provisions imposing an obligation to provide proof of vaccination against measles, and a ban on attending the facilities in question if no proof is provided, are also appropriate under constitutional law, and thus proportionate in the strict sense. Despite the considerable weight of the indirect interferences with the children’s fundamental right under Art. 2(2) first sentence GG and the parents’ fundamental right under Art. 6(2) first sentence GG, the provisions do not place unreasonable burdens on those affected when taking into account the weight attached to the interest in protecting the life and health of vulnerable people against measles.

(1) For a measure to be appropriate, and thus proportionate in the strict sense, the purpose pursued by a measure, and its likelihood of achieving that purpose, may not be disproportionate to the severity of the interference (cf. BVerfGE 155, 119 <178 para. 128>; established case-law). It is for the legislator to strike a balance between the extent and severity of the interference with fundamental rights, on the one hand, and the provision’s importance for achieving legitimate aims on the other (cf. BVerfGE 156, 11 <48 para. 95>). Particularly in cases of conflict between fundamental rights in their dimension as defensive rights against state interference on the one hand, and as rights giving rise to state duties of protection on the other, it is primarily for the democratically elected legislator to balance the conflicting constitutional interests against one another and to reconcile them using its margin of assessment and appreciation as well as its leeway to design. The prohibition of excessive measures (Übermaßverbot ) requires that the more severely individual freedom is restricted, the more significant the pursued interests of the common good must be. In this respect, the Federal Constitutional Court reviews whether the legislator has taken tenable decisions within its margin of appreciation. With regard to prognostic decisions, the legislator’s prognosis must be based on sufficiently reliable foundations (cf. Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 203 f. with further references).

(2) In light of the foregoing, the challenged provisions result in targeted indirect interferences of considerable weight with the parents’ fundamental right under Art. 6(2) first sentence GG and the children’s physical integrity under Art. 2(2) first sentence GG (see (a) below). However, these interferences must be weighed against the acute need to protect others from the risks of measles infection, and thus against high-ranking legal interests of others (see (b) below). The balancing of the fundamental rights impairments against the interest of the common good pursued with the challenged provisions stands up to constitutional review (see (c) below).

(a) The challenged provisions of the Protection Against Infection Act result in interferences with the right of parental care and the children’s physical integrity, but the manner and the severity by which the individual provisions interfere with these fundamental rights differ.

(aa) Considered in isolation, § 20(13) first sentence IfSG, which requires parents to ensure compliance with the obligations [to provide proof of vaccination or immunity against measles] as set out in § 20(9) to (12) IfSG, only results in minor interference with the right of parental care of complainants nos. 1 and 2 in the respective proceedings. In this respect, the provision merely reflects the parents’ responsibility for legal representation of their children under § 1629(1) first sentence BGB.

However, the weight of interference resulting from the obligation to provide proof pursuant to § 20(9) first sentence IfSG is greater given that it constricts parental decision-making with regard to their children’s early childhood and preschool education. The challenged provisions interfere with the right to exercise care in health matters, which is part of the right of parental care, since they compel parents to consent to having their children vaccinated. While the law does not impose an absolute requirement to consent and comply with the obligation to provide proof of vaccination, parents and their children face distinct disadvantages if parents decide against vaccination. Based on how the law currently shapes the essential elements of parental care, including the statutorily guaranteed entitlement of children [to early childhood education in day care centres and similar facilities] under § 24(2) first sentence and (3) first sentence of the Eighth Book of the Code of Social Law (Achtes Buch Sozialgesetzbuch – SGB VIII), the right of parental care under Art. 6(2) first sentence GG protects the options available to parents to choose a facility for early childhood and preschool education for their children. If they do so, they exercise their parental responsibility to support their children in their development into self-determined, self-reliant and socially competent persons. This was clearly also the assumption of the legislator when defining [the principles of early childhood education] in § 22(2) first sentence nos. 1 and 2 SGB VIII. By way of the challenged obligation to provide proof of vaccination, the Protection Against Infection Act narrows parents’ choices in a more than insignificant manner as they forfeit the right to a day care place, or at least can no longer assert and enforce this right, if they do not provide proof of vaccination (see para. 58 above). Early childhood and preschool education in dedicated facilities is thus only available in combination with proof that the children concerned have received two doses of the measles vaccine, which complainants nos. 1 and 2 oppose on principle. The obligation to provide proof of vaccination itself does not serve the aim of promoting the personality development of preschool children; rather, in addition to providing individual protection for vaccinated children, its purpose is to protect the community from the risks of measles infection (cf. BTDrucks 19/13452, pp. 1 f. and 26). This increases the severity of the resulting interference with the right of parental care given that affected parents are pressured into making a decision regarding their children’s physical integrity that runs counter to their own beliefs, and given that this is done for the purpose of protecting the population, and thus in the interest of others.

By essentially making the entitlement to a day care place under § 24(2) first sentence and (3) first sentence SGB VIII contingent upon measles vaccination and proof thereof (cf. § 20(9) sixth sentence IfSG), the challenged provisions also affect the right to exercise parental care in health matters. Decisions on whether to vaccinate a child form part of parental care in health matters, and are an essential element of the parental responsibility protected by Art. 6(2) first sentence GG (see para. 68 above). As in all other situations, however, it is the child’s best interests that must ultimately guide the exercise of the right of parental care (cf. BVerfGE 60, 79 <88>; 103, 89 <107>; 121, 69 <92>). In principle, it is primarily for the parents, in exercising parental care in health matters, to determine what is in the child’s best interests. Yet this principle does not preclude state measures to protect the child (cf. Art. 6(2) second sentence GG). The parents’ prerogative reaches its ultimate limits when the child’s best interests are (specifically) jeopardised.

For the provisions at issue here, the weight of interference with the right to exercise parental care in health matters is lessened by the fact that, according to medical standards, vaccination serves precisely to protect the health of affected children. According to the case-law developed by the ordinary courts, the recommendations on vaccination issued by the Standing Committee on Vaccination reflect medical standards, and the benefits of recommended “routine vaccinations” outweigh the risks (cf. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 144, 1 <9>; Federal Court of Justice, Order of 3 May 2017 - XII ZB 157/16 -, para. 25). The administration of recommended vaccines is thus generally in the child’s best interests. This is in line with the case-law of the ordinary courts with regard to custody decisions relating to disputes between parents with joint custody on whether their children should be vaccinated with recommended vaccines ([…]).

This does not undo the interference with the right to exercise parental care in health matters. In principle, parental decisions regarding their children’s health merit protection under constitutional law even if they conflict with medical assessments. However, since the Basic Law confers upon parents the responsibility to care for their children in health matters, this responsibility – just like all other aspects of parental care – must be exercised in the interest of the child, in this case in the interest of protecting the child’s health protected by Art. 2(2) first sentence GG. It is therefore significant for assessing the severity of interference that the challenged restrictions of parental care in health matters actually serve to promote the child’s health according to medical standards. It is true that the right to self-determination relating to one’s physical integrity in principle also protects the right to make decisions regarding one’s own health that are not reasonable from an objective perspective. This freedom is an expression of personal autonomy (cf. BVerfGE 142, 313 <339 para. 74>; Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 111). However, when exercising parental care in health matters, parents must be guided by the child’s best interests. They are afforded less freedom to make decisions that run counter to what is considered reasonable from a medical perspective than they would be afforded under their right to self-determination for decisions regarding their own physical integrity (see para. 68 above). The right of parental care is a fundamental right whose exercise must serve the child. An interference with the right of parental care in health matters that, by medical standards, promotes health is less serious than an interference that would impair a child’s health from a medical perspective. The objective benefit of vaccination for children therefore lessens the severity of the interference with the right of parental care in health matters resulting from the ban on attending communal day care facilities.

The fact that only combination vaccines with three or four different components are currently available in Germany, and that the obligation under § 20(8) IfSG extends to these vaccines according to the third sentence of that provision, only increases the severity of the interference to a limited extent. It is true that for parents who oppose vaccination, the exclusive availability of combination vaccines results in a greater impairment of their authority to make decisions regarding their children’s physical integrity than the impairment that would result from a decision to have their children vaccinated with an individual vaccine only targeting measles. However, the use of the aforementioned combination vaccines does not significantly increase the risk of undesirable side effects (see para. 29 above). […]

By contrast, the ban on attending communal day care facilities imposed by § 20(9) sixth sentence IfSG increases the severity of the interference in relation to a different aspect of the right of parental care. This ban has adverse effects on the compatibility of family and parenthood with the parents’ working life ([…]). The state’s duty of protection following from Art. 6(1) GG requires the state to create a framework for reconciling work and family life (cf. BVerfGE 99, 216 <234> with further references; […]). The ban on attending day care facilities has a considerable impact on children’s education because, without proof of measles vaccination, parents cannot assert the right to a day care place and early childhood education for their children in a facility pursuant to § 24(2) first sentence and (3) first sentence SGB VIII. Affected parents therefore either have to arrange childcare in settings other than the facilities set out in § 33 nos. 1 and 2 IfSG or adapt their professional life in order to take care of their children themselves. In view of parents’ freedom to plan and fulfil their family life according to their own wishes guaranteed by Art. 6(2) first sentence GG, the ban on attending communal facilities results in considerable interference.

The impairment of children’s corresponding legal positions increases the severity of the interference with this aspect of the parental right under Art. 6(2) first sentence GG. If parents choose, in the exercise of their parental care in health matters, not to have their children vaccinated as required by § 20(8) IfSG, the children are subject to a ban on attending day care facilities under § 20(9) sixth sentence IfSG as no proof of vaccination against measles can be provided in that case. The children’s statutory entitlement to early childhood and preschool education in a dedicated facility, guaranteed by § 24(2) first sentence and (3) first sentence SGB VIII, can then not be asserted and enforced (see para. 58 above). The legislator itself considers day care for preschool children to be a measure that promotes their personality development (see para. 80 above). It attaches great importance to early childhood education for children’s development given that such education lays the foundations for subsequent learning outcomes (cf. BTDrucks 19/26107, p. 54). However, the ban under § 20(9) sixth sentence IfSG bars affected children, including complainants no. 3 in the respective proceedings, from asserting their right to a day care place if their parents have made a decision in health matters that triggers the ban. This adds weight to the interference, not only because it concerns the statutorily guaranteed entitlement to a day care place but also because it concerns children’s fundamental right vis-à-vis the state to be supported and promoted in their development to become self-reliant persons within society, which follows from Art. 2(1) GG (cf. in this regard Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 971/21 inter alia -, para. 46 with further references, Federal pandemic emergency brake II ) and which is given specific shape in the provisions of ordinary law set out in § 24(2) first sentence and (3) first sentence SGB VIII.

(bb) The challenged provisions in the Protection Against Infection Act amount to considerable interferences with the children’s fundamental right under Art. 2(2) first sentence GG. The weight of interference is equal to the weight of interference with the right to exercise parental care in health matters.

(α) The interference with the children’s fundamental right under Art. 2(2) first sentence GG is an indirect interference resulting from the impact of the provisions on the exercise of the right of parental care in health matters. If parents with custody decide to have their child vaccinated in order to avoid being subject to the ban on attending affected day care facilities pursuant to § 20(9) sixth sentence IfSG, this amounts to an impairment of the child’s physical integrity.

(β) Yet this interference is not especially serious, neither with regard to the actual impact on the children’s physical integrity, nor with regard to the impairment of personal autonomy in matters of their physical integrity. Even with tried and tested vaccines that for the most part do not lead to complications (see para. 9 above), vaccination cannot be considered a mere negligible medical interference for preventive purposes (for a differing view in past case-law of the ordinary courts, see Decisions of the Federal Court of Justice in Criminal Matters – Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 4, 375 <377 f.>). However, the risk of severe and possibly fatal complications following a measles infection is much higher than the risk of serious complications following vaccination. Harmless reactions after vaccination, which occur more frequently than severe complications, do not significantly increase the weight of the interference with physical integrity (regarding the medical foundations see para. 27 f. above).

The positive risk-benefit assessment for measles vaccination is relevant for determining the weight of interference with children’s physical integrity. It is true that the right to self-determination relating to one’s physical integrity in principle also protects decisions regarding one’s own health that are not reasonable from an objective perspective (cf. BVerfGE 142, 313 <339 para. 74>; Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, para. 111). However, young children have not yet developed the capacity to exercise this autonomy. In principle, the exercise of the right of parental care in health matters contrary to medical assessments is informed by a similar notion as the children’s right to self-determination and thus also merits protection under constitutional law. That being said, when exercising parental care in health matters, parents must be guided by the child’s best interests (see paras. 73 and 83 above). They enjoy a lesser degree of protection against state direction than they do for decisions regarding their own physical integrity in the exercise of their right to self-determination. The right of parental care is a fundamental right that serves the interests of the child, and is therefore subject to limitations. The fact that parents exercise their children’s right to self-determination as long as the latter are not capable of exercising this right themselves does not mean that parents can exercise this right on behalf of their children in such a comprehensive manner that it overrides the aforementioned limitations of the right of parental care. The children’s fundamental right under Art. 2(2) first sentence GG therefore does not give rise to a right to make decisions that are unreasonable from a medical perspective to the same extent as would be the case for adults, who are free to deal with their health as they see fit (cf. BVerfGE 142, 313 <339 para. 74>). When it comes to determining the best interests of the child, medical standards play a greater role. Usually, it is the decision in favour of administering recommended vaccines, rather than not administering them, that is in the best interests of the child. This also applies to combination vaccines (see para. 27 f. above). Therefore, the interferences with Art. 2(2) first sentence GG resulting from the challenged provisions, which create incentives to administer the recommended vaccines, are not of particularly great weight.

The weight of the interference with Art. 2(2) first sentence GG is also lessened by the fact that the challenged measures do not call into question the voluntary nature of parental vaccination decisions, as it is in principle still the parents who exercise care for their children in health matters. The law does not impose a vaccine mandate that is enforceable by coercive measures (cf. also § 28(1) third sentence IfSG). Rather, parents ultimately retain a considerable degree of freedom in the exercise of parental care in health matters (regarding the remaining scope of freedom cf. also Federal Constitutional Court, Order of the First Senate of 27 April 2022 - 1 BvR 2649/21 -, paras. 209, 221, 232). Parents can still decide not to have their child vaccinated. Yet they then have to accept the consequences in the form of having to find a different form of childcare (for example day care services that do not require a licence under public law).

(b) This must be weighed against the purpose pursued by the legislator: in the present case, this concerns an exceptionally significant legal interest meriting acute protection. The challenged provisions serve to ensure protection against measles. In this regard, they concern the fundamental right to life and physical integrity of a large number of persons, especially vulnerable persons, who cannot effectively protect themselves by getting vaccinated. The protection of public health is a legal interest of significant weight (cf. BVerfGE 110, 141 <163>; 121, 317 <356>). Therefore, Art. 2(2) first sentence GG may give rise to a duty of protection on the part of the state, including a duty to take precautionary measures against health risks (cf. BVerfGE 56, 54 <78>; 121, 317 <356>; Federal Constitutional Court, Order of the First Senate of 19 November 2021 - 1 BvR 781/21 inter alia -, para. 176). Given the very high transmission risk and the risk of severe complications following measles infection, measles poses considerable risks to the physical integrity of others. The legislator assumed that vaccination rates would continue to stagnate and the number of measles outbreaks in day care centres and other forms of communal day care might increase unless the measures provided for in the challenged provisions were imposed. This assumption is tenable and not objectionable under constitutional law.

(c) In enacting the challenged obligations to provide proof of vaccination, and imposing the consequences at issue in case of non-compliance, the legislator accorded precedence to the protection of vulnerable persons from measles over the interests of the complainants. This legislative decision does not violate constitutional law. As things currently stand, the considerable interferences with fundamental rights resulting from this legislative decision must be tolerated by the complainants for the sake of protecting the health of vulnerable persons, and thus for the sake of a high-ranking interest of the common good.

It is not objectionable under constitutional law that the legislator imposed the contested measures in relation to state-funded day care programmes, including for very young children, in order to prevent children from contracting measles or at least to significantly reduce transmission risks. In the balancing of interests, it must be taken into account that, based on the statistical vaccination rates in the age groups attending the day care facilities in question, vaccination coverage in such facilities is not sufficient to protect the community. At the same time, children attending such facilities typically have contacts with especially vulnerable persons in age groups that have a high incidence of measles and are at higher risk of complications if they do contract measles, but cannot effectively protect themselves by getting vaccinated due to a contraindication (e.g. children under the age of one, pregnant women). By linking the obligation to provide proof of measles vaccination to attendance of a communal day care facility within the meaning of § 33 nos. 1 and 2 IfSG, the legislator limited the scope of the challenged provisions. Moreover, failure to provide proof of measles vaccination as required by § 20(8) and (9) IfSG does not exclude children from any type of early childhood or preschool education outside the family. Other forms of day care in the age groups concerned remain permissible, including arrangements outside the child’s own family, provided that these are self-organised and private arrangements. These limitations of the scope of the challenged provisions show that the legislator has not lost sight of the right of parental care, which encompasses the freedom of parents to raise their children as they see fit, even though the exclusion from day care facilities, access to which is guaranteed by § 24(2) first sentence and (3) first sentence SGB VIII, can have considerable effects on family life and the compatibility of work and family life that differ from what parents might have envisaged.

Despite the resulting considerable interferences with the children’s fundamental right to physical integrity under Art. 2(2) first sentence GG, which confers a defensive right against state interference, and the parents’ fundamental right under Art. 6(2) first sentence GG, the legislator was allowed to give precedence to its duty to protect the physical integrity of vulnerable persons. The factors in favour of giving precedence to the duty of protection are the high transmissibility and risk of infection associated with measles as well as the risk, which is far from insignificant, of developing an often fatal disease (subacute sclerosing panencephalitis, SSPE) as an after-effect of measles. For children under the age of five, this risk is approximately 0.03%, while for children under the age of one, it is approximately 0.17% (RKI, Epidemiological Bulletin 10/2015, 9 March 2015, p. 72 f.; see para. 17 above). By contrast, vaccination only causes mild symptoms and side effects; real vaccine damage is extremely unlikely (see para. 29 above). The risk of unvaccinated persons contracting measles is considerably higher than the risk of developing comparably harmless side effects following vaccination. Moreover, the real possibility of eradicating measles reinforces the state’s duty of protection. Therefore, even if the number of cases started to decline – which will likely occur the closer society comes to the goal of herd immunity due to rising vaccination rates – the legislative objective of protecting the fundamental rights holders who cannot be vaccinated would still outweigh the complainants’ defensive right against state interference, which is indirectly affected by the obligation to provide proof of vaccination given that the complainants would still be burdened with less acute risks.

In the prognosis underpinning the law, the legislator found that the low residual risks associated with vaccination compared to the risks of contracting measles must stand back when taking into account the advantages of vaccination – which also benefit the affected children. Ultimately, vaccination against measles leads to much improved health and safety for children. The protection of the individual child through vaccination is also a significant factor in balancing the interests of persons whose health is at particular risk from measles on the one hand, and the right of parental care on the other. Given that the right of parental care in health matters under Art. 6(2) first sentence GG must be exercised in accordance with the child’s best interests, and that receiving recommended vaccines protects the health of the child concerned, the interference with the right of parental care is not particularly serious. It is therefore not objectionable under constitutional law that the outcome of the balancing gives precedence to protecting the health of persons who cannot protect themselves against measles by getting vaccinated and can therefore only be protected by way of herd immunity.

The interferences with the children’s fundamental right to physical integrity and their parents’ right to exercise care are also not unreasonable insofar as [the law] sets out an obligation to provide proof of vaccination even if only combination vaccines are available for immunisation against measles – as is currently the case in Germany ([…]). Whereas this de facto results in a situation where children, following a decision by their parents to vaccinate them, must tolerate receiving a vaccine with additional vaccine components […], it does not render the challenged provisions inappropriate under constitutional law. In cases where protection against measles was acquired through an individual vaccine targeting measles that was imported from another country [in accordance with the law], vaccination with a combination vaccine available in Germany is no longer necessary and cannot be imposed under the challenged provisions. But even in other cases, the arguments in favour of extending applicability to combination vaccines ultimately prevail. The other active ingredients presently contained in the available combination vaccines protect against diseases for which vaccination is similarly recommended by the Standing Committee on Vaccination and that therefore have a positive risk-benefit ratio. In principle, receiving these vaccines is also in the best interests of the child, even though the diseases they protect against only involve a lower risk of infection and of severe complications than measles. According to the statements by the Paul Ehrlich Institute and the Standing Committee on Vaccination, the side effects that may occur after receiving an individual measles vaccine do not differ significantly from the side effects that may occur after receiving one of the combination vaccines approved in Germany.

This must be weighed against the acute need to protect, by way of herd immunity, the health of those who cannot be vaccinated. To achieve such community protection, vaccination rates must reach at least 95%. Such vaccination coverage has not been reached yet, especially not in the age groups attending the communal day care facilities in question. Restricting the obligation to provide proof of measles vaccination to situations where an individual vaccine targeting measles is available would be less effective in reaching the necessary vaccination rates. In an overall balancing, it is tenable that the legislator has accorded so much weight to the protection of vulnerable persons from measles that affected persons must tolerate impairments to their fundamental rights resulting from the obligation in § 20(8) third sentence IfSG and from the use of combination vaccines, which are the only vaccines against measles presently available. Given that such combination vaccines provide protection against other diseases due to the additional vaccine components, the interest in using combination vaccines in the absence of individual vaccines must be accorded greater weight than the interests of the affected children and their parents in the children not receiving such vaccines. In light of the interest in protecting vulnerable persons against measles, which clearly outweighs the impairments resulting for the complainants, it does not appear necessary for satisfying the constitutional requirement of appropriateness that the state guarantee the availability of individual measles vaccines, through procurement, production or market intervention.

This also applies insofar as the challenged provisions concern girls […]. […] According to the current state of scientific knowledge, the assumption that the use of combination vaccines entails considerable disadvantages for girls does not hold. While one study from 2010 suggested that inflammation of the parotid gland caused by mumps may lead to immune surveillance of ovarian cancer cells (Cramer et al., Cancer Causes Control, 2010, p. 1193), the significance of this study has been called into question given that a comparison with a higher share of vaccinated women in the control group did not reveal a difference in the rate of ovarian cancer (cf. Weigel, Deutsches Ärzteblatt International 2015, p. 402 <403>). The authors of the study themselves point out that the study has limitations since the sample size was small (cf. Cramer et al., Cancer Causes Control, 2010, p. 1193 <1199>). There are thus no sufficiently robust foundations for the assertion that girls should not be vaccinated against mumps.

III.

The challenged provisions of the Protection Against Infection Act regarding the obligation to provide proof of vaccination, and the ban on attending the facilities set out in § 33 nos. 1 and 2 IfSG if no proof is provided, also do not violate the affected children’s right to equal treatment following from Art. 3(1) GG.

1. The general guarantee of the right to equality (Art. 3(1) GG) requires that the legislator accord equal treatment to matters that are essentially alike, and unequal treatment to such matters that are essentially different (cf. BVerfGE 116, 164 <180>; 138, 136 <180 Rn. 121>; established case-law). This applies to both unequal burdens as well as unequal benefits (cf. BVerfGE 110, 412 <431>; 138, 136 <180 para. 121>; 145, 20 <86 f. para. 171>). The general guarantee of the right to equality imposes varying limits on the legislator depending on the matter addressed and on the criteria for differentiation; these range from the mere prohibition of arbitrariness to strict proportionality requirements (cf. BVerfGE 110, 274 <291>; 138, 136 <180 f. para. 122>; established case-law).

Unequal treatment must always be justified by objective reasons commensurate with its aim and extent. The standard of constitutional review applicable here is a fluid one that is based on the principle of proportionality. Its limits cannot be determined in the abstract but rather on the basis of the particular subject matter and areas affected. Depending on the matter addressed in legislation and the criteria for differentiation, the general guarantee of the right to equality results in different constitutional requirements regarding the objective reasons capable of justifying unequal treatment. The legislator may be subject to different constitutional limits depending upon the particular case, ranging from the mere prohibition of arbitrariness to strict proportionality requirements. Stricter constitutional requirements may apply, for instance, where unequal treatment affects specific fundamental freedoms. Moreover, the less the individual can influence the criteria on which the legislative differentiation is based, or the more such criteria resemble those listed in Art. 3(3) GG, the stricter the constitutional requirements (cf. BVerfGE 138, 136 <180 f. para. 121 f.>; established case-law).

2. In the present case, the unequal treatment challenged in the constitutional complaints is based more on criteria relating to a specific situation than on criteria relating to specific personal characteristics; the challenged provisions also do not contain criteria for differentiation resembling those listed in Art. 3(3) GG. While the legislator does therefore have greater leeway in the present case (cf. BVerfGE 88, 87 <96>; 124, 199 <220>; 129, 49 <69>; 130, 240 <254>; 138, 136 <180 f. para. 122>), the unequal treatment in question falls within the scope of application of the freedoms under Art. 2(2) first sentence GG and Art. 6(2) first sentence GG. When determining what requirements follow from the fluid standard of review, it is relevant whether affected persons, through their choices, have influence over whether a provision leading to unequal treatment applies to them, or can even evade it altogether. Moreover, the prerequisites for grounds capable of justifying statutory differentiations depend on the extent to which the unequal treatment of individuals or situations can affect the exercise of fundamental freedoms (cf. BVerfGE 112, 164 <174>; 138, 136 <180 f. para. 122>; 145, 20 <86 f. para. 171>; established case-law). Nevertheless, more precise standards and criteria for violations of the general guarantee of the right to equality cannot be determined in general and in the abstract, but only on the basis of the particular subject matter and areas affected (cf. BVerfGE 105, 73 <111>; 132, 179 <188 para. 30>; 138, 136 <180 para. 121>).

With regard to time limits and other transitional provisions, constitutional review must be limited to assessing whether the legislator has made adequate use of its leeway, whether the legislator has sufficiently appraised the factors that must be taken into consideration regarding the timeframe, and whether factual reasons exist that are capable of justifying the solution or if the solution, in view of the situation in question and the overall statutory framework, appears to be arbitrary (cf. BVerfGE 44, 1 <21 f.>; 136, 127 <143 f., para. 50>).

3. Based on these standards, the differentiations that the complainants consider to be in violation of the right to equality are justified by factual reasons.

a) The obligation to provide proof of sufficient measles vaccination […] only applies to day care that is subject to licensing under § 43(1) SGB VIII. […] There are, however, sufficient factual reasons to justify this differentiation.

There are various forms of day care that are not subject to licensing; these differ considerably from day care that requires a licence. For instance, there is no need for a special licence when someone takes care of children in the family’s home. In these settings, it can be assumed that the parents themselves ensure that their children are adequately taken care of and can influence the conduct of the childcare provider in the exercise of their custody rights.

The licensing requirement for certain day care services, and the regulatory reasons underpinning it, are a permissible criterion for differentiating regarding the obligation to provide proof of measles vaccination or immunity. When children are cared for at home, it is up to the parents to ensure, within the confines of their private home, that all other children taken care of in their home have been vaccinated and that sufficient protection is thus provided for all children. Insofar as this form of childcare is short-term and temporary or is provided for short weekly time slots only (for example just one day per week), different legislative treatment of these cases is based on comprehensible reasons. These types of childcare differ from those covered by § 20(8) first sentence no. 1 IfSG in that in the latter case, many children get together regularly and for many hours every week on a long-term basis, while their parents cannot directly control measures to protect against measles during this time. It is precisely the high number of children attending licensed day care and the typically higher number of contacts as well as the typically longer duration that lead to more frequent measles outbreaks. These differences in the factual circumstances of licensed day care on the one hand and day care not requiring a licence on the other justify the different rules regarding the obligation to provide proof of vaccination or immunity against measles.

b) The law sets out different legal consequences resulting from failure to provide proof of vaccination in licensed day care centres on the one hand and in schools on the other hand. […] While this affects children in day care centres and other types of licensed day care, it does not apply to children who attend school. However, these different rules are justified by the fact that school attendance is mandatory. As far as day care centres or other forms of day care (requiring a licence) are concerned, parents can avoid having their children vaccinated against measles by taking care of their children themselves or making use of other forms of childcare. However, if similar rules applied to children of mandatory school age, such courses of action would be in breach of the children’s obligation to attend school. Since the legislator did not wish to impose a vaccine mandate that is enforceable by coercive measures, intending to leave the ultimate decision on vaccination to the parents for the most part, it makes sense to give precedence to the obligation to attend school over the obligation to provide proof of measles vaccination.

c) The different time limits for providing proof of measles vaccination applicable to different groups also stand up to constitutional review; they do not violate the complainants’ right to equal treatment following from Art. 3(1) GG. This applies both to the different forms of communal facilities (see aa) below) and to the differences regarding time limits (see bb) below).

aa) While the obligation to provide proof of sufficient vaccination against measles applies from the first day children attend day care centres or other forms of licensed day care, children in children’s homes and asylum seekers in communal facilities […] only need to provide such proof once they have been in such facilities for longer than four weeks.

There are comprehensible objective reasons for this differentiation. The term ‘children’s homes’ also encompasses facilities where children and youths are sent after being taken into care by the youth welfare office if there is an acute need to protect a child or until a risk to the child’s welfare has been assessed. They also encompass facilities in which children and youths are raised if it cannot be ensured, including through measures such as home counselling and assistance for parents, that their parents raise them in line with their best interests. According to the legislator’s intent, the challenged provisions may not lead to a situation where children and youths are not taken into care if there is an acute need to do so to protect the children’s welfare simply because the affected children and youths are not sufficiently vaccinated (cf. BTDrucks 19/13452, p. 27). The legislator therefore provided for a transitional period of four weeks for persons in children’s homes, who must thus only provide proof of vaccination or immunity against measles after these four weeks. Moreover, the legislator wanted to refrain from making the communal accommodation in [designated] facilities for asylum seekers, refugees, foreigners who have been ordered to leave the country and ethnic German resettlers […] contingent upon vaccination against measles; these groups therefore only have to provide proof of vaccination or immunity against measles after a transitional period of four weeks (cf. BTDrucks 19/13452, p. 27).

The circumstances described concern different conditions and scenarios regarding care or accommodation in different communal facilities. The legislator did not accord unequal treatment to matters that are alike, but enacted different rules adapted to the respective circumstances for different constellations.

bb) This also applies to the different time limits that apply. […]

[...]

D.

With regard to the question whether § 20(8) third sentence IfSG is compatible with the principle of proportionality, the decision was taken with 6:1 votes.

E.

[...]