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Thoughts on the legal status of immunity

For some time now, the following text on the legal situation regarding immunity has been available at the top of our website:

Start on our website: https://bin-ich-schon-immun.de

The use of laboratory results, recognition as proof of immunity, and thus the entire legal situation on the subject of immunity, is a major concern of our website. And also the second website “ich-bin-schon-immun.de”, which will soon go online[kein Link – da noch offline] .

So it is time for some more thorough legal thoughts.

In 2012, the Federal Administrative Court in Leipzig issued a judgment on the ban on entering schools due to measles (3 C 16.11, 2). This judgment has been quoted a lot again since 2020. In the second guiding principle it says:

“A person is suspected of being contagious within the meaning of Section 2 No. 7 IfSG if the assumption that they have ingested pathogens is more likely than the opposite.”

This principle is still valid today and it is quoted many times: on dejure.org there are 670 court decisions that quote from the judgment.

A distinction between people according to simply “vaccinated, tested, recovered” cannot be reconciled with this principle. It is simply missing “healthy”! Either as an independent value (as was normal until 2019) or with the current restrictions, but then still in accordance with the principle demanded by the BVerwG that an assumption about the state of health must be “more likely than the opposite”.

And in all epidemiological phases of the last year and a half, it was epidemiologically more likely that everyone is healthy than that he is asymptomatic at any time and for any person.

On May 8th, 2021 the ‘Ordinance regulating the relief and exemptions from protective measures to prevent the spread of COVID-19’ (short: SchAusnahmV) came into force.

Right at the beginning, section 1, §1, paragraph 1, it says:

“The purpose of this ordinance is to regulate relief and exemptions from requirements and prohibitions […] for people who 1. who are expected to be immunized against the SARS-CoV-2 coronavirus, or 2. who can present a negative result of a test for an infection with the SARS-CoV-2 coronavirus “

The property that ‘immunization against the SARS-CoV-2 coronavirus can be assumed’ is a so-called indefinite legal term.

If the legislature, or here: the ordinance, uses a term that ‘needs to be filled in’, then “what matters to the legislature is not to exclude future concrete developments in everyday practice from the outset […] and / or the case law […] ] to leave the concretization of the indefinite terms. “

The legal term that ‘immunization against the SARS-CoV-2 coronavirus can be assumed’ does not appear again in the regulation. It is therefore unchallenged, not further interpreted, not defined and therefore, in the absence of further explanations, unreservedly at the beginning of the regulation.

However, it should be added that the term “supposedly immunized” no longer appears in the title of Section 3: “Equality of vaccinated persons and recovered persons with tested persons”.

We see ourselves – and all of you – facing the social task of ensuring that it is not ruled out that there are other health-related conditions than “vaccinated, tested” or “recovered”.

It is therefore important that the term “immunization” is given concrete form by adding “T-cell-based immunity”.

Argumentative support comes from the Robert Koch Institute, which published its’ Epidemiological Bulletin 23/2021 ‘on June 10, 2021, including the’ 6. Update of the COVID-19 vaccination recommendation ‘of the STIKO:

“Unvaccinated convalescent individuals show a broad B and T cell immune response that includes neutralizing antibodies as well as helper, effector and memory T cells, including against the spike and nucleocapsid protein of SARS-CoV -2 is directed and lasts for at least 9 months (longest reported observation period *). […] These findings indicate that a previous infection (plus, if necessary, a vaccination carried out at a later point in time) leads to a robust and broad SARS-CoV-2-specific immune response. “

Science knows that an infection with human coronaviruses (HCoVs, ie OC43, HKU1, NL63 and 229E), SARS, MERS or CMV or betacorana viruses also leads to broad and robust immunity – mediated by cross-reactive T cells. See the cross-immunity studies on our website.

It is these scientific findings that (according to the good tradition of case law) should find their way into the indefinite legal concept of immunization to be assumed.

We are working on that. Together with you.

As soon as there are more than the first single results of recognition of T-cell-based immunity, we will report on them. The first positive results are already available, but these are only anecdotal.

Outlook for pessimists:

“For the complainant, the exceptions according to the protective measures exception regulation do not apply. The fact that he still has sufficient neutralizing antibodies against the coronavirus in his blood and can prove this with current evidence does not change anything. “

– BVerfG, from the press release on the non-acceptance decision 1 BvR 1260/21 of a constitutional complaint

Outlook for optimists:

“The STIKO is explicitly against the fact that access to participation in education, culture and other activities of social life is made dependent on the presence of a vaccination.”

– 6. Update of the COVID-19 vaccination recommendation of the STIKO, in: Epidemiologisches Bulletin 23/2021, p. 29