Unsuccessful constitutional complaints challenging statutory obligations to provide proof of measles vaccination in day care settings

Press Release No. 72/2022 of 18 August 2022

Order of 21 July 2022
1 BvR 469/20, 1 BvR 472/20, 1 BvR 471/20, 1 BvR 470/20

Proof of vaccination (measles)

In an order published today, the First Senate of the Federal Constitutional Court rejected several constitutional complaints challenging provisions in the Protection Against Infection Act (Infektionsschutzgesetz – IfSG). The challenged provisions set out a mandate requiring that certain persons be vaccinated against measles and an obligation to provide proof of such vaccination; the law also specifies the consequences of non-compliance, such as the exclusion of children from certain childcare facilities or services. While the Court rejected the constitutional complaints directed against these provisions, it also held that the provisions at issue must be interpreted in conformity with the Constitution with regard to the vaccines available for vaccination against measles. If only combination vaccines are available – as is presently the case in Germany – constitutional law requires that § 20(8) third sentence IfSG be interpreted to the effect that the obligation to provide proof of vaccination is only applicable if the available combination vaccines do not contain vaccine components other than those against measles, mumps, rubella or varicella.

The constitutional complaints were filed by several parents with joint custody and their minor children who were to attend communal childcare in municipal day care facilities or with a registered independent day care provider pursuant to § 43 of the Eighth Book of the Code of Social Law (Achtes Buch Sozialgesetzbuch – SGB VIII). The complainants essentially challenge the provisions in the Protection Against Infection Act that restrict access to such childcare facilities and services to children that have been vaccinated against measles and can provide proof of such vaccination.

The challenged provisions affect the parents’ fundamental right under Art. 6(2) first sentence of the Basic Law (Grundgesetz – 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. The interferences with both the fundamental right of parental care and the fundamental right to physical integrity are justified, provided that the provisions at issue are interpreted in conformity with the Constitution. The legislator’s decision to accord precedence to the protection of vulnerable persons from measles over the interests of the complainants is not objectionable under constitutional law.

Facts of the case:

1. Pursuant to § 20(8) first sentence no. 1 IfSG, persons who attend communal day care within the meaning of § 33 nos. 1 and 2 IfSG (e.g. in a day care centre or with a registered independent day care provider) must be vaccinated or have immunity against measles. The requirement to be vaccinated against measles also applies if the only vaccines available are combination vaccines that also contain vaccine components against diseases other than measles (§ 20(8) third sentence IfSG).

For children from the age of twelve months who are to attend relevant forms of day care, proof of sufficient vaccination or immunity against measles or proof of a medical contraindication to vaccination must be provided to the management of the facility before they start attending (§ 20(9) first sentence IfSG). If no such proof is provided, they may not attend communal day care (§ 20(9) sixth sentence IfSG). A minor’s legal guardian is responsible for ensuring compliance with this obligation in accordance with § 20(13) IfSG.

2. 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.

The constitutional complaints are directed against provisions of the Protection Against Infection Act (§ 20(8) first to third sentence, § 20(9) first and sixth sentence, § 20(12) first and third sentence and § 20(13) first sentence IfSG) that impose a vaccination mandate for measles and an obligation to provide proof of such vaccination, and restrict access to certain types of day care in case of non-compliance. The complainants assert that the vaccination mandate for measles and the obligation to provide proof of vaccination give rise to disproportionate interferences with the fundamental right to physical integrity (Art. 2(2) first sentence GG) on the part of those complainants who are minors. They argue that, in particular, the law not only requires them to receive a vaccination against measles, but to take vaccines against other diseases as well given that individual vaccines that only target measles are not available at present. The complainants also claim that the provisions result in disproportionate interferences with the fundamental right of parental care (Art. 6(2) first sentence GG).

Key considerations of the Senate:

The constitutional complaints are admissible but ultimately unsuccessful.

I. 1. a) 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, which protects the exercise of parental care in health matters. When parents, in the exercise of this constitutionally protected right of care in health matters, choose not to vaccinate their children, negative consequences arise from the law regarding access to certain forms of communal day care; without these legal restrictions, access to such day care would be available to the parents concerned, allowing them opportunities for the free development of their children, which is protected by Art. 2(1) GG and also forms part of the care provided by parents. 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 comparable to a direct interference with Art. 6(2) first sentence GG. The effects brought about by imposing an obligation to provide proof of vaccination against measles on the one hand, and restricting access to public day care services by making it contingent upon such proof on the other hand – rendering affected persons unable to assert their claim to a day care place in a facility offering early childhood and preschool education to which they would otherwise be legally entitled – are largely equivalent to the effects that would be brought about by compulsory vaccination that would allow the vaccination of children to be carried out against the will of their parents.

b) The challenged provisions likewise 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, they impair the children’s right to the free development of their personality (Art. 2(1) GG). The challenged provisions have implications for parental decisions regarding the physical integrity of their children. 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. However, in view of the restricted access to communal day care resulting from the ban on unvaccinated persons entering childcare facilities imposed by § 20(9) sixth sentence IfSG, they then forfeit the right to a day care place in certain facilities offering early childhood education to which they would be entitled under § 24 SGB VIII, or at the very least they can no longer assert and enforce this right. If parents – like in the present case – want their children to receive early childhood or preschool 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, which then affects the physical integrity of their 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.

2. 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 (Gesetzesvorbehalt) and satisfy the principle of proportionality under constitutional law.

a) The challenged provisions only satisfy the requirement that interferences be based on a statutory provision if they are interpreted in conformity with the Constitution. If § 20(8) third sentence IfSG were understood to also be applicable in the event that the only vaccines available in Germany were combination vaccines with vaccine components other than those available when the law was adopted, the resulting obligation would no longer be covered by a sufficient statutory basis in violation of constitutional law. However, § 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 to provide proof of vaccination 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. This reading of the law is within the limits of an interpretation in conformity with the Constitution. The fact that the wording in § 20(8) third sentence IfSG 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.

b) When interpreted in conformity with the Constitution, the challenged provisions satisfy the principle of proportionality.

aa) The obligations set out in § 20(8), (9) and (12) IfSG as well as the ban on entering the childcare facilities in question in case of non-compliance (§ 20(9) sixth sentence IfSG) pursue a purpose that is constitutionally legitimate: they aim to protect persons that are vulnerable to health complications due to a measles infection from contracting the disease. It is also a legitimate legislative approach to assign responsibility for ensuring compliance with the obligation to provide proof to parents, rather than to the children themselves, as the legislator chose to do here with § 20(13) first sentence IfSG. 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 is based on reliable foundations and stands up to strict constitutional review. A strict standard arises in the present case given that reliable scientific findings are available 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.

bb) Imposing an obligation to provide proof of vaccination as a prerequisite for access to certain communal childcare and healthcare facilities and the ban on entering 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. It 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 see regularly.

cc) The obligation to provide proof of vaccination against measles in certain facilities, and the ban on entering 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 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. It is not objectionable under constitutional law for the legislator to assume that no alternative means were available which would certainly be equally effective in protecting the individual and society; these assumptions are based on sufficiently robust foundations.

dd) The challenged provisions imposing an obligation to provide proof of vaccination against measles and a ban on entering 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 (unzumutbar) 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) The challenged provisions result in targeted indirect interferences 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. These interferences are of considerable weight, although the manner and the severity by which the individual provisions interfere with fundamental rights differ. The weight of the interference with the children’s fundamental right under Art. 2(2) first sentence GG is equal to the weight of the interference with the right to exercise parental care in health matters.

(2) These interferences must be weighed against the purpose pursued by the legislator, which in the present case concerns the acutely merited protection of an exceptionally significant legal interest. The challenged provisions serve to provide protection from contracting measles. In this regard, they concern the fundamental right to life and physical integrity of many persons, especially vulnerable persons, who cannot effectively protect themselves by getting vaccinated. The protection of public health is a legal interest of significant weight. Therefore, Art. 2(2) first sentence GG can give rise to a duty of protection on the part of the state, including a duty to take precautionary measures against health risks. Given the very high transmission risk and the risk of severe complications following a measles infection, measles pose considerable dangers to the physical integrity of others. The legislator assumed that, in the absence of the contested legislative measures, vaccination rates would continue to stagnate and the number of measles outbreaks in day care centres and other communal childcare facilities might increase. This assumption is tenable and unobjectionable under constitutional law.

(3) In enacting the challenged obligations to provide proof of vaccination, and by 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 pursuant to § 24(1) to (3) SGB VIII, 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 childcare facilities in question, vaccination coverage in such facilities is not sufficient to protect the community. At the same time, children attending day care typically have contacts with especially vulnerable persons, including age groups that have a high incidence of measles and persons that are at higher risk of complications but who cannot effectively protect themselves against contracting measles by getting vaccinated due to a medical 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.

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) as an after-effect of measles. By contrast, vaccination generally only causes mild symptoms and side effects; real vaccine damage is extremely rare. 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 through high vaccination rates reinforces the state’s duty of protection. Therefore, even if the number of confirmed cases were to decline – which will likely occur the closer the population comes to the goal of herd immunity due to rising vaccination rates – the legislative objective of protecting the physical integrity of vulnerable fundamental rights holders who cannot be vaccinated themselves would still outweigh the complainants’ defensive right, 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 parents is not particularly severe. 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 the fundamental right of their parents are also not unreasonable insofar as § 20(8) third sentence IfSG provides for an obligation to provide proof of vaccination even if only combination vaccines are available for immunisation against measles. It is true that 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 components that are not necessary to comply with the obligation to provide proof of measles vaccination under § 20(8) and (9) IfSG and that provide protection against diseases not covered by the law. However, 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 (Ständige Impfkommission) 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 do not involve as high a risk of infection or as high a risk of severe complications as is the case for measles.

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. 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 child not receiving such vaccines.

II. Lastly, the challenged provisions of the Protection Against Infection Act imposing an obligation to provide proof of vaccination, and a ban on entering the facilities set out in § 33 nos. 1 and 2 IfSG if no proof is provided, do not violate the affected children’s right to equal treatment following from Art. 3(1) GG. The complainants assert that the differentiations resulting from the challenged provisions violate the right to equality. However, these differentiations are justified by factual reasons.