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Compulsory protective vaccination SK 81/19

On 9 May 2023, the Constitutional Tribunal publicly delivered its ruling issued in the case of Ms A. D.’s constitutional complaint pertaining to compulsory protective vaccination.

The Constitutional Tribunal adjudicated that:

I. Article 17(11) of the Act of 5 December 2008 on preventing and counteracting infections and infectious diseases among people in conjunction with § 5 of the Regulation of 18 August 2011 by the Minister of Health with regard to compulsory protective vaccination – insofar as the due date of compulsory protective vaccination as well as the number of doses of particular compulsory protective vaccines are set out in the Protective Vaccination Programme (hereinafter: the PVP) for a given year, announced by the Chief Sanitary Inspector (hereinafter: the CSI), in the form of a communiqué, and not by the competent minister responsible for health by regulation – is inconsistent with Article 47 in conjunction with Article 31(3) in conjunction with Article 87 of the Constitution of the Republic of Poland.

II. The provisions set out in Part I, within the scope indicated therein, will cease to have effect after the lapse of 6 (six) months from the day of the publication of the judgment in the Journal of Laws of the Republic of Poland.

The Tribunal discontinued the proceedings as to the remainder.

The ruling was adopted by a majority vote.

In its jurisprudence, the Constitutional Tribunal has indicated that it has jurisdiction to assess the conformity to the Constitution of such acts as ‘communiqués’ if they comprise general and abstract wording which is of an autonomous law-making character, i.e. constitutes ‘normative novelty’. However, the evaluation of the PVP had to be carried out indirectly – namely, in the course of arriving at the interpretation of the subject of the review, i.e. Article 17(11) of the Act on preventing and counteracting infections and infectious diseases among people in conjunction with § 5 of the Regulation. The complainant had not indicated the PVP for a given year as the subject of the review, and hence the Tribunal did not evaluate the PVP alone. However, the CSI’s communiqué is issued on the basis of the Act (Art. 17(11)), and § 5 of the Regulation stipulates that compulsory protective vaccination is carried out in accordance with the said communiqué.

In the jurisprudence of courts and in the works of legal scholars, it is stated that the PVP is merely technical in character and comprises no normative content. Such a thesis would be justified if the PVP in no way affected the obligations of the individual. Yet, the Tribunal noted that, indeed, the PVP had had an impact on the obligations of the complainant, which in practice was manifested in relevant rulings issued by administrative courts. The PVP indicates the age of the child, the time when the child is to be subjected to compulsory vaccination against a specific disease/specific diseases as well as the number of doses of the vaccine. When the child attained a certain age, the complainant’s obligation actualized, and thus this led to the imposition of a fine for the purpose of inducing the fulfilment of the non-pecuniary administrative obligation consisting in subjecting a minor to vaccination. Indeed, pursuant to § 5 of the Regulation, the compulsory protective vaccination is carried out in compliance with the PVP for a given year. The CSI’s communiqué indicates the date when the compulsory protective vaccine is due as well as the number of doses of specific vaccines. For that reason, it ought to be stated that the PVP comprises normative novelty, in the form of content that is present neither in the Act on preventing and counteracting infections and infectious diseases among people nor in the aforementioned Regulation.

The Tribunal indicated that it is admissible to specify the scope of the individual’s obligation, provided that there is relevant statutory delegation, i.e. the prerequisites set out in Article 92 of the Constitution are fulfilled. In the context of the present case, there is a certain paradox, namely: unintentionally, there was the sub-delegation of competence – the deadline for the obligatory protective vaccination as well as the number of doses of particular vaccines are indicated by the CSI in the PVP for a given year, and the competent minister responsible for health requires that compulsory protective vaccination be carried out in accordance with the PVP. By contrast, Article 17(11) of the Act on preventing and counteracting infections and infectious diseases among people provides that the CSI’s communiqué is supposed to take account of the provisions of the Regulation. The CSI’s communiqué is to have merely a technical character and is to contain instructional rules addressed to persons who are organizationally subordinate to the CSI, e.g. medical personnel. The details of the obligation of protective vaccination imposed on the individual are to be exclusively regulated in a relevant regulation. However, in reality, the CSI’s communiqué has an impact on the individual’s rights. Such two directions are not admissible at the level of the communiqué. This could appear at the level of a relevant regulation constituting the basis for the CSI to formulate instructional rules as well as for specifying the obligation imposed on the individual. By reading the challenged provisions in conjunction, as the subject of the review, allowed the Tribunal to reconstruct the legal norm in such a way that a ruling on unconstitutionality within a certain scope could be issued, for the unconstitutionality became apparent only when the aforementioned provisions were read in conjunction.

The Tribunal did not accept the argument that the content of the communiqué had been addressed exclusively to medical personnel, and that, due to the statutory obligation of compulsory preventive vaccination, the instrumental rules addressed to the personnel would still have to be interpreted from other sources. The intensity of interference with a subjective right must be controlled by citizens, i.e. it must follow from universally binding law. Imposing the obligation of protective vaccination on the individual, or – in the circumstances of the present case – bearing the liability for the non-fulfilment of the obligation (Art. 47 of the Constitution). Failure to fulfil the said obligation was linked with serious consequences for the individual, thus the individual must be able to precisely determine the content of that obligation. From that point of view, the situation in which the substance of that obligation is partly shaped by the CSI’s communiqué, which does not constitute an act of universally binding law (a contrario Art. 87 of the Constitution), is inadmissible. Therefore, in the Tribunal’s view, Article 17(11) of the Act on preventing and counteracting infections and infectious diseases among people in conjunction with § 5 of the Regulation – insofar as the deadline for compulsory preventive vaccination as well as the number of doses of particular compulsory preventive vaccines, are specified in the PVP for a given year and are announced by the CSI in the form of a communiqué – is inconsistent with Article 47 in conjunction with Article 31(3) in conjunction with Article 87 of the Constitution.

The Tribunal’s judgment necessitates the adjustment of the legal situation by the competent public authority. The said obligation lies both with the legislator as well as with the competent minister responsible for health. The Tribunal’s judgment does not deprive the CSI of the competence to announce in the form of a communiqué, published in the official journal of the competent minister responsible for health, the PVP for a given year; nor does it limit the scope of the content that may be included in the aforementioned communiqué. The CSI’s communiqué may not, however, constitute the basis for reconstructing the scope of requirements arising from the obligation of compulsory protective vaccination imposed on the individual by statute. Pursuant to Article 190(3) of the Constitution, a ruling of the Constitutional Tribunal takes effect as of the day of its publication, however, the Constitutional Tribunal may specify another date when a normative act is to cease to have effect. The setting of another date when a normative act ceases to have effect is indispensable to ensure the continuity of the fulfilment of the obligation of compulsory preventive vaccination. The Tribunal deemed that the period of 6 months would be sufficient for the relevant changes to take place. As to the remainder, the Tribunal discontinued the proceedings on the basis of Article 59(1)(2) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal, since the issuance of a ruling was inadmissible.

The adjudicating bench of the Constitutional Tribunal in the case was composed of: the President of the Constitutional Tribunal – Judge Julia Przyłębska as the Presiding Judge; Judge Justyn Piskorski – Judge Rapporteur; Judge Zbigniew Jędrzejewski; Judge Krystyna Pawłowicz; Judge Bogdan Święczkowski.