Austria will introduce a national vaccine mandate for all adults from February 2022. The corresponding legal basis does not yet exist. The constitutional legality of this regulation is also doubted by some legal experts.

What do Austria and the Vatican City State have in common? At first glance, not too many similarities can be found with the smallest country in the world. However, if you look at the measures that both states are taking to combat the Corona Pandemic, you will find a great deal in common, the compulsory Corona-Vaccination. Compulsory vaccination is a novelty in Western Europe, because apart from Austria and the Vatican City State, no European state has yet considered such a measure.

In Austria, people are to be obliged to be vaccinated against the Coronavirus from 1 February 2022. This measure includes a mandatory booster vaccination for people who have already been vaccinated. Compulsory vaccination is nothing new in Austria, as the Federal Act on Smallpox Vaccination of 30 June 1948 was accompanied by a measure that sanctioned non-compliance with vaccination with an administrative fine. Administrative penalties are also foreseen with regard to the Corona-Vaccination obligation 2022. Fines of up to EUR 3.600,-- are foreseen for vaccination refusers and up to EUR 1.450,-- for people who do not attend a booster vaccination. Furthermore, vaccination refusers face prison sentences of up to four weeks if they do not comply with the new Federal Law. 

The legal basis for compulsory vaccination in 2022 is still being debated in parliament, but approval of the new law seems certain. Concerns about the compatibility of compulsory vaccination with fundamental rights arise with regard to the European Convention on Human Rights (“ECHR”). According to Art 8 (1) ECHR, compulsory vaccination would constitute an interference with fundamental rights based on the integrity and self-determination of the individual with regard to medical interventions. In contrast, Art 8 (2) ECHR imposes a positive duty on the state to take appropriate measures to protect the health of the general public. Whether compulsory vaccination is justified must be determined on the basis of the proportionality test. Here, it is first examined whether the vaccination obligation is suitable for achieving the protection goal, and then whether it is necessary or other more lenient means are available. In the last step, the adequacy test is carried out, i.e. it is examined whether the corresponding measure is appropriate with regard to the private interests of the persons concerned and the state.

According to the current state of affairs, the majority considers that the Covid-Vaccine-Mandate is legally innocuous. Although the compulsory vaccination interferes with the body integrity and the right to privacy of the individual, this interference can be justified if the advantage for the population outweighs the disadvantages for the individual. Compulsory vaccination is therefore permissible if it is necessary to stop the pandemic. In assessing compulsory vaccination, the factors that matter include how contagious and dangerous the disease is and whether, without compulsory vaccination, there is a risk of overcrowding in intensive care units. The effectiveness of the vaccination is also an important factor. The lack of success of voluntary vaccination can also justify compulsory vaccination.