The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig today dismissed the applications of two air force officers against the obligation to tolerate a Covid-19 vaccination as unfounded. The subject of these applications under the Military Complaints Ordinance (WBO, Wehrbeschwerdeordnung) is a General Regulation of the Federal Ministry of Defence (Bundesministerium der Verteidigung) of 24 November 2021, which included the vaccination against Covid-19 in the list of basic vaccinations binding on all male and female active-duty soldiers. The two applicants have argued that the vaccination with the mRNA vaccines used by the Bundeswehr was unlawful and unreasonably interfered with their rights. The risks associated with the vaccines would be disproportionate to their benefits.

The 1st Military Affairs Senate has regarded the General Regulation on the carrying out of the Covid-19 vaccination as a contestable official measure within the meaning of section 17 (3) first sentence WBO because it is binding on the executing military physicians and disciplinary superiors and has direct effects on the legal position of the soldiers concerned. The Senate therefore discussed the objections to the Covid-19 vaccination on four days of oral hearings and reviewed its content. In addition to experts from the applicants and the Bundeswehr, experts from the Paul-Ehrlich-Institut (Federal Institute for Vaccines and Biomedicines) and the Robert Koch Institute were consulted.

As a result, the General Regulation proved to be lawful both in formal and substantive terms. The Federal Ministry of Defence has issued the Regulation in a proper procedure and, in particular, involved the soldiers' representations. In the context of the authority conferred on the Federal Ministry according to section 10 (4) of the Legal Status of Military Personnel Act (SG, Soldatengesetz), it was entitled, at its discretion in accordance with legal obligation, to determine the range of necessary protective vaccinations by means of an administrative regulation. In section 17a S^* the Legal Status of Military Personnel Act contains an express provision that every soldier is obliged to keep himself or herself healthy in the interests of military mission accomplishment and to tolerate medical measures for the prevention of communicable diseases against his or her will. This is due to the fact that military service has always entailed the specific risk of spreading communicable diseases through working together in confined spaces (vehicles, ships, aircraft), exercises and operations in specific natural threat environments and community life in barracks. The law expects each soldier to contribute to his or her personal operational capability and thus to the functioning of the Bundeswehr (article 87a of the Basic Law (GG, Grundgesetz)) by tolerating protective vaccinations. Maintaining one's own operational capability is a central duty in the official relationship of service and loyalty of the soldier (article 33 (4) GG).

The legal design of the obligation to tolerate also meets the requirement of the rule of law principle obliging the legislature to take all the essential decisions itself. This is because it has determined the scope of the interference with the basic right to physical integrity in a general and sufficiently precise manner and has limited it to reasonable interferences. The exact definition of the individual vaccinations to be tolerated and vaccines to be used could be left to the employer, because male and female soldiers need different vaccinations depending on their operating location at home and abroad. In addition, for example, the emergence of new pathogens or new side effects of vaccines require flexible and rapid decision-making.

The Federal Ministry of Defence did not exceed the limits of its discretion when introducing the obligation to tolerate in November 2021. At that time, the Delta variant of the SARS-CoV-2 virus was significantly severe. While existing vaccines could only lower the risk of infection and transmission, they nevertheless could reduce the risk of severe courses by 90%. In its decision on an obligation on personnel of certain institutions and organisations in the health and care sectors to provide proof of vaccination, recovery or contraindication to vaccination against Covid-19, the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) confirmed the existence of an exacerbating pandemic situation in the winter of 2021 and further stated that, according to the predominant expert assessment at that time, it was assumed that the Covid-19 vaccination caused a significant reduction in the risk of infection and transmission (BVerfG, decision of 27 April 2022 - 1 BvR 2649/21 - para. 157 et seqq., 173 et seq.).

The 1st Military Affairs Senate has, after carrying out the expert consultation, also joined the assessment that vaccination still has a relevant protective effect in relation to the now prevailing Omikron variant in the sense of reducing infection and transmission (BVerfG, see above, para. 184 et seq.). In addition, it reduces the risk of severe courses over longer periods of time, especially after a booster, so that the positive effect of vaccination further clearly outweighs the risk associated with it. According to the current recommendations of the Robert Koch Institute, this also applies to the group of 18- to 59-year-olds, who account for the majority of military personnel. The Federal Ministry of Defence was entitled to make use of the security reports of the Paul-Ehrlich-Institut in its assessment of the risks of vaccination, even if that specialist authority had not yet received the data from the associations of statutory health insurance physicians contrary to section 13 (5) of the Protection Against Infection Act (IfSG, Infektionsschutzgesetz). The numerous objections raised by the applicants did not successfully shake the persuasiveness of the official information provided by the two specialist authorities.

However, the Federal Ministry of Defence is obliged to evaluate and monitor the maintenance of the Covid-19 vaccination. Permanent orders must always be reviewed to determine whether, in the light of changed circumstances, they continue to be proportionate and comply with the limits of discretion. The decrease of the severity of the SARS-CoV-2 virus and the reduction of the effectiveness of the currently available vaccines are circumstances that make it appear necessary to take a new discretionary decision before issuing an order of further boosters. In addition, an evaluation of the decision has been agreed with the General Spokespersons' Committee (Gesamtvertrauenspersonenausschuss) in the conciliation procedure.