PC rule for state administration quashed by top court

Ljubljana – The Constitutional Court has found the government’s regulation imposing Covid-19 recovery or vaccination mandate (PC) on state administration employees at work place in contravention with the constitution for not being aligned with the relevant law. The court already stayed the regulation in late September.

The new rule was to come into effect starting from 1 October, but was suspended by the court after it had been challenged by several groups of state administration employees, including a police trade union.

It was at the initiative of the latter that the court now found that a PC mandate would be comparable to imposing mandatory vaccination as a condition for certain jobs or professions, something that the court said would have to be tackled in accordance with the communicable diseases act.

The government wanted to impose the new rule on employees in the state administration, including various government departments and affiliated bodies, inspection services, police force, armed forces and administrative units, rather than the whole public sector.

Although the relevant government regulation is no longer valid as it has since been replaced by another one, the court took a substantive decision on it.

It noted that the legal basis for mandatory vaccination were articles 22 and 25 in the communicable diseases act which prescribe various (mandatory) vaccinations, but that the government regulation was not aligned with the conditions set therein.

Hence, the court found that the contentious rule runs against article 120 of the constitution, which provides that administrative authorities perform their work independently within the framework and on the basis of the constitution and laws.

The court did not say whether the measure, had it been imposed based on appropriate legal basis, would be constitutionally acceptable from the aspects of proportionality and equality before the law.

The court made a point of saying its decision did not mean vaccination of employees as a condition to perform certain jobs or professions would be a disproportionate measure, but said such a measure would have to be prescribed based on the communicable diseases act.

The court also noted that the challenged rule could not be compared to the PC measure introduced in Austria as the Austrian legislator had passed a law in which it created explicit and specific legislative basis to impose such measures.

It also notes that the Austrian solution is different in that in Austria the PC rule was restricting mainly certain public life, while in Slovenia the PC rule was imposed by a regulation issued by the executive exclusively to determine access to workplace and even that only for employees in state bodies.

The court took its judgement by six votes against three. Judges Klemen Jaklič and Rok Svetlič submitted separate dissenting opinions and Špelca Mežnar, Katja Šugman Stubbs, Rok Čeferin, Rajko Knez and Marijan Pavčnik passed assenting positive opinions. Also voting against was Marko Šorli.

Both Svetlič and Jaklič argued the government measure sought to protect human life and health as a fundamental constitutional right with Jaklič saying that “formalism should not be set above human lives”.

Jaklič also argues there are plenty of legal bases for the government to impose the PC measure, including the government act and the occupational safety and health act, while even in their absence the right to life and health guaranteed by the constitution is sufficient.

Čeferin rejected the allegation that the court had put legitimacy above protection of lives, saying that “no matter how daring legal acrobatics, they cannot lead to a conclusion that the government has complied with the legal basis to prescribe mandatory vaccination for employees in state bodies”.

Public Administration Minister Boštjan Koritnik responded by saying the court’s decision did not mean the measure would be disproportionate or not useful. He added: “We will have to find some common solutions and find them quickly.” He is happy the court took a substantive decision, but he would be happier had it done it earlier.

The PSS trade union of police officers, which challenged the PC rule, hailed the court’s decision as a victory for the rule of law on its Twitter profile.

The law firm representing the union, Pirc Musar & Lemut Strle, noted the court’s making a point of the case being a major precedent-setting constitutional issue as similar issues could be raised concerning acts of similar nature.

Meanwhile, Prime Minister Janez Janša re-twitted a post by judge Jaklič as well as one by economist Matej Lahovnik saying: “The difference between Austria and Slovenia is obvious and it is called Constitutional Court.”