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»Sputnik V« vaccine developed in Russia: vaccination without legal value?
Photo: Pavel Golovkin / dpa
The Corona vaccination certificate is like a ticket to another world: In more and more cases, due to the so-called 2G rule, a vaccination certificate is required in order to be able to participate in social life in Germany.
The left-wing politician and still a member of the Bundestag Diether Dehm has, as requested, already been vaccinated twice against the corona virus.
However, not with one of the vaccines approved in Germany, but with Sputnik V. He received the first vaccination in May of this year in Moscow and the second vaccination in July in San Marino.
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Left politician Dehm (in February 2021 in Braunschweig): "It's absurd"
Photo: Daniel Reinelt / Eibner-Pressefoto / imago images / Eibner
Dehm applied for a vaccination certificate from the health department of his district of Fulda.
However, this refused the application - and rightly so, as the Hessian Administrative Court (VGH) in Kassel decided on Friday in an urgent decision after the administrative court.
But Dehm doesn't want to accept that.
Especially since Sputnik V is approved and in use in some other EU member states.
"It is absurd," says Dehm, "that, for example, a Hungarian who has been completely vaccinated with Sputnik V is allowed to eat in a German restaurant that has committed to the 2G rule and a German - in this case me - not."
Is he right in this example?
Could it be that vaccination with Sputnik V has legal value for citizens of other EU countries, but not for people who live in Germany?
The most important questions and answers.
Why should there be no vaccination certificate for Sputnik V in Germany?
What a corona vaccination certificate requires is in the so-called Covid-19 Protective Measures Exceptions Ordinance of the federal government, more precisely in its Paragraph 3. After that, the "complete vaccination" must have taken place with one of the vaccines that the Paul Ehrlich Institute on the Internet is called.
And these include Biontech, AstraZeneca, Moderna, Johnson & Johnson, also in certain combinations.
But not Sputnik V.
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Hessian Administrative Court: "Not allowed in Germany"
Photo: Peter Hartenfelser / IMAGO
The VGH Kassel has confirmed that Dehm thus “does not meet the requirements for issuing a vaccination certificate” within the meaning of this regulation.
»The Russian vaccine« Sputnik V »is» not approved in the Federal Republic of Germany «.
The Higher Administrative Court also expressly states that an EU member state is “not obliged” to “issue a vaccination certificate for a Covid-19 vaccine that is not approved for use on its territory” according to the relevant EU regulation.
The VGH left it open whether the politician in this country could directly refer to his vaccination certificate from San Marino, because it was not clear in the present case whether this vaccination certificate should be regarded as "equivalent".
Why is Sputnik V not yet approved in Germany?
The vaccine developed in Russia is now approved in at least 70 countries around the world - but not in Germany, and not in most of the other EU countries. Background: Most EU countries would like to await official approval from the European Medicines Agency (EMA). The use of Sputnik V in Hungary is based on what is known as a preliminary approval. Although Slovakia received 200,000 doses, they have not yet been approved by the local national drug agency due to doubts about the batch.
At the beginning of April 2021, the EMA started a “rolling review” for Sputnik V, a kind of accelerated procedure in which not all the necessary data need to be available at the start of the procedure.
However, since then the manufacturer has apparently not been able to provide the data required for EU approval.
Can citizens of other EU countries claim a Sputnik vaccination in Germany?
Von Dehm's lawyer, the renowned Karlsruhe administrative lawyer Christian Kirchberg, assumes that vaccination certificates from Hungary, Slovakia and even San Marino would have to be recognized in this country, even if they are based on vaccinations with Sputnik V. Indeed, this corresponds to a common legal principle in the EU to protect the so-called fundamental freedoms, which also include the free movement of persons. The tiny state of San Marino on the Italian peninsula is not a member of the EU, but is treated like one in many cases.
However, as the VGH Kassel expressly pointed out, the member states of the EU can "take measures to restrict the free movement of persons on the basis of the protection of public health".
The Göttingen constitutional and European lawyer Frank Schorkopf even deduces from the EU regulation "that member states are not obliged to recognize a Hungarian vaccination certificate that was issued on the basis of a Sputnik V vaccination".
A landlord or waiter, for example, says Schorkopf, does not have to recognize a Sputnik certificate until further notice - if only because the express wording of the German legal provisions contradicts this and it is covered by EU law.
Could it even be that citizens of other EU countries have more rights in this country than Germans?
In principle, it is quite possible that so-called residents - i.e. Germans, or people without German citizenship who live in Germany - have fewer rights, or better: that stricter rules apply to them than to EU foreigners.
In order for the Europe of free borders to function, the principle applies that state permits and permits from one member state are also recognized in another member state - even if stricter rules apply there.
However, there can be exceptions to this - especially to protect public health.
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European Court of Justice in Luxembourg: "Principle of mutual recognition"
Photo: Arne Immanuel Bänsch / DPA
This "principle of mutual recognition" was laid down for the first time by the European Court of Justice (ECJ) in Luxembourg in a dispute over the French currant liqueur "Cassis de Dijon", which at the time should not have been exported to Germany because of its low alcohol content.
At the same time, a member state may in principle continue to apply its stricter rules to its nationals.
Such "national discrimination" rarely occurs - but in very important cases: Beer brewed and sold in Germany must comply with the German Purity Law;
However, this does not apply to beer from other EU countries - e.g. from Belgium.
The same applies to the so-called master craftsman compulsory - according to this, in Germany in many branches only master craftsmen and equals are allowed to run craft businesses;
Companies from other EU countries that want to operate across borders in this country, on the other hand, do not have to be master craftsmen.
Could Dehm still get it right?
The decision of the VGH Kassel is »incontestable«;
that is, it is not possible to go to the Federal Administrative Court - contrary to what Dehm had last announced.
However, he could still file a constitutional complaint with the Federal Constitutional Court.
The left-wing politician has now turned to the EU Commission in advance - with the question of whether he cannot derive the right from the EU regulations and commission decisions to invoke the certificate issued in San Marino in Germany.
According to Dehm's lawyer Kirchberg, the whole thing was "new territory in terms of procedure and content."
They are now waiting for an answer from the Commission and then a decision will be made on how to proceed.
