ΣτΕ: The mandatory vaccination for health professionals and EMAK is constitutional

The Plenary Session of the Council of State decided, in a conference, that the compulsory vaccination against covid-19 is constitutional and in accordance with the supra-legislative provisions. With regard to medical and nursing staff, it was considered that vaccination is a constitutional obligation to demonstrate social solidarity.

In particular, the Plenary Session of the CoC rejected all requests for annulment requested to be annulled by the relevant ministries, etc. decisions for the mandatory vaccination of employees, such as the firefighters of EMAK, doctors, nurses, staff of EKAB, POEDIN, etc.

It is noted that the president of the Court of Appeals, Dimitris Skaltsounis, made use for the first time of article 25 of law 4786/2021 which gives him the right to announce the result of the closed court conferences.

Specifically, Mr. Skaltsounis issued a statement today on the “for these” vaccination cases that the court ruled at a conference, while, as he states, the relevant decisions will probably be published next April, before his departure from the Judiciary due to retirement. next June.

The decisions on which the Plenary Session of the CoC decided at a conference (rapporteurs: State Counselors Vassilios Androulakis and Panagiota Karlis), concern the personnel of the Fire Brigade, which serves in the Special Units for Disaster Management (EMAK, paramilitary, medical health and other staff of health structures, the staff of EKAB, etc.

In detail, according to the announcement of Mr. Skaltsounis, on the request for cancellation of the staff of EMAK, the CoC ruled:

“1) Unanimously, that the contested act of the Chief of the Fire Brigade (PS), in part, provides that only vaccinated personnel serve in the EMAK and sets a deadline for the vaccination schedule of those who had not been vaccinated or have planned not to be vaccinated. these services, is a regulatory administrative act.

2) Unanimously that the above act was published on the internal website of the PS, but it should have been published in the Government Gazette.

3) Furthermore, the court, due to the importance of the issues raised, proceeded to examine them and ruled, inter alia (with a minority of 3 members), that the contested act was not contrary to the constitutional or supra-legislative provisions relied on, because

a) the vaccination is imposed on the employees of the PS who serve in EMAK in order to ensure the uninterrupted operational operation and the full service availability of the personnel of the said services, who have a special mission and special conditions of exercise of duties,

b) is provided by a substantive law and, in particular, by the contested regulatory act, which was issued by authorization of article 79 par. 13 of law 4662/2020 in combination with other provisions of the same law, which provide authorization to its Leader PS to validly introduce, as an additional temporary, in case of pandemic, a condition for the good health of the employees of EMAK, their vaccination against coronavirus covid-19,

c) is based on valid scientific data of official bodies in Greece (National Vaccination Committee, EODY) and internationally, according to which vaccination is the most effective way to control the spread of the disease, while the benefits of vaccines outweigh any side effects, which are exceptional rare.

4) It was also considered that the obligation to vaccinate does not violate the principles of equality and non-discrimination, because the different treatment based on the vaccination criterion is based on an objective criterion, mainly due to the reduced frequency and intensity, which is not disputed by the applicants. the vaccinated get sick and transmit the disease in relation to the unvaccinated.

5) Finally, the court, applying article 50 par. 3 par. a of p.d. 18/1989 and weighing the legal interests of the parties, decided (unanimously) to postpone the issuance of a final decision and to grant the Administration a period of one month from the notification of that decision of the Plenary, in order to proceed with the publication of the act of its Chairman PS in the Government Gazette “.

At the same time, according to the announcement, on the 9 cancellation applications concerning the medical, paramedical, nursing and other personnel employed in health structures (applications of POEDIN, EKAB employees’ union and obligated natural persons), the SC:

‘(1) Rejected some as inadmissible.

2) The other applications were rejected (by a minority of 3 members) on the grounds, inter alia, that compulsory vaccination (Article 206 of Law 4820/2021) is not contrary to the constitutional or supra-legislative provisions relied on, because, in this case, he:

(a) imposed on the specific professional group in the context of the constitutional obligation to demonstrate social solidarity, in particular as regards medical and nursing staff due to their increased responsibility for the protection of patients’ health;

b) provided by law,

c) is based on valid scientific data accepted by the vast majority of competent scientific bodies in Greece and internationally, according to which vaccination is a key tool for stopping the coronavirus covid-19 pandemic; and

d) according to existing scientific data, serious side effects of vaccination are extremely rare. Moreover, (with a minority of 5 members) it was considered that the suspension of work without the payment of all salaries is constitutionally tolerable.

It was also held that the obligation to vaccinate only medical, paramedical, nursing and other staff does not infringe the principle of equality with regard to other categories of workers and that the envisaged procedure for monitoring and controlling compliance with the legislation on the protection of personal data “.

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