Natural Immunity Case

Natural Immunity Case

Re: the Legality of the RKI reducing covid recovered status from 6 to 3 months

Facts of the Case

Dates: Feb 4, 2022
Location: Osnabrück, Lower Saxony, Germany
Court: Administrative Court
Case #: Az. 3 B 4/22
Plaintiff:
Plaintiff’s Lawyer:

Defendant:
Trial Type:
Judge:
Status: decided
Verdict: for the Plaintiff

*updated Feb 9, 2022

Background

The plaintiff challenged the updated decision by the RKI as announced on its website on Jan 14, 2022 to change the status of “covid recovered” or “Genesen” from 6 months to 3 months.

This change was made suddenly and without warning. Also it was not decided on by any legislative decision.

Germany is the only country in which people after a corona infection are only considered to have recovered 90 days. Throughout the EU, the six months are still used, in Switzerland even twelve. [2]

Since Feb 1, 2022, vaccinated people in Austria lose their vaccination status after six months, unless they extend it with the booster vaccination. [4]

In Germany, individuals are considered fully vaccinated if the last vaccine dose with an EU-approved Covid 19 vaccine was at least 14 days ago. Depending on the vaccine, one or two vaccine doses have been necessary to date to obtain complete vaccination protection. [4]

New RKI guideline: Who is considered recovered?

Convalescents (Recovered or in German: “Genesen) are persons whose Corona infection, proven by PCR test, did not occur more than three months ago. In January, the RKI had shortened the convalescent status from six to three months. After that, a booster vaccination is recommended. This is according to the institute’s new guidelines effective January 15. In addition, those who have been vaccinated once and subsequently contracted corona – before the second dose of vaccine was administered – are included in the group of recovered persons. In this case, too, the infection must have occurred less than three months previously. [4]

Most recently, it became known that the deadline of six months continues to apply in the Bundestag. The reason is the currently valid general decree, which among other things regulates the access to buildings of the Bundestag and so far assumes a convalescent status of six months. Specifically affected by this are the participants in the plenary and the committees, a spokesman reported. Meanwhile, this is causing criticism. [4]

Most experts agree that in the long run, immunization after the second vaccination is incomplete (does not last). The numerous reported vaccine breakthroughs based on declining immune protection speak a similar language (confirms this). As early as last May 2021, Thomas Mertens, chairman of the Standing Commission on Vaccination (Stiko), announced in an interview with Funke [4]Mediengruppe, “The virus will not leave us again. The current Corona vaccinations will therefore not be the last.”

Meanwhile, the “2G-plus rule” prevails in many areas of public life. That means only vaccinated and recovered people who also have a negative Corona test are allowed into events or indoor areas. If people are already boostered, they do not need to be additionally tested. [4]

EU Covid Pass

The EU Commission has decided that the validity period of the Corona vaccination certificate should be reduced to nine months from February 1, 2022. This will affect people who have not yet received a booster vaccination. They will then only be considered fully vaccinated for a period of nine months after basic immunization. There is currently no expiration date for booster vaccination. For the time being, the vaccination status is valid without restriction. [4]

What some do not know: The digital vaccination certificate – for example in the CovPass app – already has an expiration date that occurs exactly twelve months after the second vaccination dose. According to the Robert Koch Institute (RKI), however, this is a technical expiration date, which does not mean that there is no longer any vaccination protection. According to the institute, those affected then only need a new digital proof. [4]

Science continues to show Natural Immunity is better than medically “induced” immunity

On Feb 3, 2022, John’s Hopkins University scientists published a paper that showed for 99% of the participants (who all had covid) Natural Immunity lasted at least 650 days and has not vanished.

Significance

This case challenges the authority of a non-elected agency to legislate rules for the populace and also questions its science

Plaintiff’s Argument

This change by the RKI violates the plaintiff’s fundamental rights.

It also makes daily life and work difficult (which again, is also a violation of fundamental rights)

Defendant’s Argument

…More information is needed…

Relevant Prior Judgements/ Cases

…More information is needed…

Decision

The Osnabrück Administrative Court considers the shortening of the corona recovery status to be unconstitutional. It finds fault with the announcement on the RKI website and also speaks of a “high relevance to fundamental rights”. [3]

The administrative court in Osnabrück, declared the reduction from nine to six months invalid. [1]

“It was obvious that the exclusion of the individual from participation in social, cultural and economic life had a high fundamental rights relevance for the individual, in particular with regard to the general freedom of action under Article 2 (1) of the Basic Law, the physical integrity of Article 2 (2) of the Basic Law from the point of view of mental health and to the freedom to exercise one’s profession under Article 12 (1) of the Basic Law – as well as to other fundamental rights positions.” [5]

The judgment -apparently- does not apply to the general public, but only to the applicant. [1] who is entitled to the convalescent certificate for a period of 6 months [5]. It said the administrative court should not rule for itself that the standard should not be applied in principle. Other convalescents who did not want to accept their abbreviated proof would therefore have to go to court themselves. [3]

The court decided that he (the plaintiff) should now receive a six-month comprehensive proof of recovery from his district. [1]

The applicant is entitled to the issue of a convalescent certificate for the period from February 11 to July 13, 2022, i.e. for the period resulting from Section 2 No. 5 SchAusnahmV as amended on May 8, 2021 [6]

Instead of the ordinance that has been in effect since mid-January, the county should apply the version from May of last year in the case, the court explained. [3]

Further progress at the federal level remains to be seen. [1] The judgement can still be appealed to the Higher Administrative Court in Lüneburg within two weeks. [3]

the judges referred to a conflict with the Basic Law: the reduction of the convalescence status had been put into effect by the RKI. [1]

But there are doubts about this approach: the judges explained that there was no legal basis for delegating this decision to the RKI. [1]

the legislator is, as it were, sub-authorizing the authority, which is not covered by the ordinance authorization. With this regulation, the federal government, as the issuer of the ordinance, has passed on its own tasks to the RKI without having been authorized to do so. This procedure violates the provisions of Article 80 (1) sentence 4 of the Basic Law. [6]

The reference to a constantly changing RKI website was intransparent and also vague. In addition, the RKI had not sufficiently scientifically investigated whether it had been proven that the protection of convalescents (recovered) against infection ends after 90 days. [3]

the dynamic reference to the website of the RKI violates the requirement of legislative act. A simple reference to an Internet page does not satisfy the requirements of Article 82 (1) of the Basic Law, in particular due to the fact that the content of this page can change virtually every second. [6]

The court also pointed out

In contrast (to the RKI’s 3 listed sources that it used to justify the change), there are a large number of renowned voices from science and practice that consider a shortening of this status to three months to be incomprehensible and superfluous
(see, by way of example, https://www.aerztezeitung.de/Politik/BAeK-Praesident-Reinhardt-unterstuetzt-Verkuerzung-des-Genesenenstatus-426411.html; https://www.focus.de/gesundheit/news/immun-status-gilt-nur-noch-drei-monate-daten-rechtfertigen-keine-verkuerzung-experten-zerlegen-verkuerzte-genesenen-regel_id_44524051.html; https://www.spiegel.de/wissenschaft/medizin/coronavirus-carsten-watzl-kritisiert-neue-dauer-des-genesenenstatus-a-16b8846c-09cc-4283-9850-85188b9680c8; https://www.deutschlandfunk.de/verkuerzung-des-genesenenstatus-100.html, each accessed February 2, 2022).
For example, virologist Prof. Dr. Hendrik Streeck, a member of the German government’s expert council, points out that people who have recovered have just as good protection against re-infection as those who have been vaccinated, so unequal treatment is therefore not appropriate
(cf. https://www.welt.de/vermischtes/article236476819/Markus-Lanz-Koennen-die-Pandemie-nicht-wegimpfen-warnt-Hendrik-Streeck.html, accessed February 3, 2022

The costs of the proceedings shall be borne 2/3 by the applicant and 1/3 by the defendant.The amount in dispute is set at €15,000. [6]

Aftermath

A Bundestag report had also had strong doubts about the decision-making power of the (RKI) institute – and also cited the German constitution against the procedure. [1]

It seems possible that the traffic light will now be readjusted. [1]

The conference of health ministers called on Monday to put the decision on the convalescent statute back in the hands of politicians. [1]

Justice Minister Marco Buschmann (FDP) supported the demand, as reported by the Augsburger Allgemeine. [1]

the virologist Hendrik Streeck said: [1]

The RKI decision to shorten the (immunity) convalescent status to three months “to put it mildly, annoyed him,” Streeck told Focus
The virologist criticized that the reason given was “science”.
He was “not aware of any study that could justify this decision”.
Quite the opposite: according to Streeck’s knowledge, all studies indicate that those who have recovered are just as well or even better protected than those who have been vaccinated.

the FDP is now distancing itself from RKI boss Lothar Wieler. [1]

The designated FDP General Secretary Bijan Djir-Sarai told Spiegel [1]

“I have great respect for the achievements of the RKI boss Lothar Wieler in the past two years during the pandemic.” He added: “Mr. Wieler can trust the FDP but due to this recent misconduct, which unfortunately is not an isolated case, we can no longer be sure.”
He further said: “The RKI cannot casually determine the shortening of the recovery period with the stroke of a pen and without any announcement.
When asked about Wieler’s future at the head of the RKI, the FDP politician said: “It is up to the Federal Minister of Health to decide on the personnel at the top of his sub-authorities.”

Even if the verdict is not yet valid nationwide, one thing is clear: Lauterbach was at least steering in legally tricky waters. [4]

The fact that Corona decisions are stopped by a court speaks in principle for the separation of powers in Germany, but is always to be understood as a reprimand for those responsible…And Lauterbach appears as such when the RKI, a federal authority subordinate to the Ministry of Health, makes far-reaching decisions for millions of people. [4]