Decision of the Constitutional Court on the compliance of the Recovered-Vaccinated (RV) condition with the Constitution

08 December 2021

After the Constitutional Court decided at the end of September that the implementation of the governments Ordinance (according to which employees in State Administration Authorities wishing to work on the employer's premises should meet either the condition of morbidity or vaccination, while the possibility of testing is excluded from the so-called RVT) is suspended until final decision (we have already written about this on our website - the link to the article can be found here), it now judged, with six votes in favour and three against, that the aforementioned Article of the Ordinance was inconsistent with the Constitution.

According to the Court, the contested Article 10.a of the Ordinance required the fulfillment of the RV condition as a labour law condition for performing work in the State Administration Authorities, otherwise the head of Authority could act in accordance with the regulations governing employment relationships. Since the condition of morbidity cannot be considered to be the subject of freedom of choice, the situation that arose was essentially comparable to situations where vaccination is defined as a labor law condition for performing various types of work or professions.

The legal basis for regulating such vaccinations is Article 22 in connection with Article 25 of the Communicable Diseases Act, which regulates various types of (compulsory) vaccinations. Article 22 thus requires compulsory vaccination against certain explicitly mentioned diseases and against other infectious diseases if there are certain epidemiological reasons and if so determined in the program referred to in Article 25 of the Act, i.e. the annual vaccination and chemoprophylaxis program proposed by the National Institute of Public Health (NIJZ) and determined by the Minister of Health. The vaccination program is divided into 7 programs, wherein the third program titled 'Employees' determines vaccination, based on a safety statement with a workplace risk assessment, against diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, hepatitis B , hepatitis A, tick-borne meningoencephalitis, meningococcal infections, rabies, typhoid, chickenpox, influenza, yellow fever, but not against Covid-19 (and as such cannot be a requirement for a particular group or groups of employees exposed to infectious diseases, and persons who may transmit the infection to other persons at work).

In view of the above, the Constitutional Court ruled that the contested measure, adopted by the government with an Ordinance for employees in the State Administration Authorities was not adopted in accordance with legal requirements or conditions set by the Communicable Diseases Act (ZNB) for determining vaccination of employees. It therefore ruled that Article 10.a of the Ordinance was inconsistent with the second paragraph of Article 120 of the Constitution.

However, the Constitutional Court did not rule on the issue as to whether the measure in question, if ordered on an appropriate legal basis, would be constitutionally permissible from the point of view of the proportionality principle and the principle of equality before the law. As they point out in the Constitutional Court, their decision does not mean that vaccination of employees as a condition for performing certain activities or professions is a disproportionate measure, it means that this measure should be regulated in accordance with the Communicable Diseases Act which specifies rules and procedure for vaccination.

The full text (in Slovene) of the decision can be found here: