View source for VGH München - BeckRS 2021, 36742

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|Court_Abbrevation=VGH München
|Court_With_Country=VGH München (Germany)

|Case_Number_Name=25 NE 21.2634
|ECLI=

|Original_Source_Name_1=Bayern.Recht
|Original_Source_Link_1=https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-2021-N-36742?hl=true
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE

|Date_Decided=04.11.2021
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|GDPR_Article_1=Article 9(2)(i) GDPR
|GDPR_Article_Link_1=Article 9 GDPR#2i
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The Higher Administrative Court of Bavaria held that the obligation for unvaccinated students in schools to present a test certificate or to get tested on-site is justified by [[Article 9 GDPR#2i|Article 9(2)(i) GDPR]].

== English Summary ==

=== Facts ===
A student applied to the Higher Administrative Court of Bavaria (Bayerischer Verwaltungsgerichtshof - BayVGH) seeking a suspension of the laws mandating verification of the Covid-19 vaccine and testing certificates in schools. The student claimed that she did not consent to the processing of her personal health data, and as only unvaccinated persons are tested, her vaccination status gets known to students as well as teachers. She claimed that considerable social pressure is being put on unvaccinated persons and in such circumstances, voluntary consent as per Article 9(2)(a) and 7 GDPR, does not remain meaningful. On the basis of low incidence and hospitalization risks, the student claimed that there was no cross-border health risk, and [[Article 9 GDPR#2i|Article 9(2)(i) GDPR]] could not be applied in the present case.

=== Holding ===
Rejecting the application, the Higher Administrative Court of Bavaria held that Art. 9(2)(i) GDPR applies. For the definition of “serious cross border threats” the court referred to Art. 168 TFEU and Decision No 1082/2013/EU of the European Parliament and of the Council. Art. 3(g) Decision No 1082/2013/EU defines “serious cross-border threat to health” as a life-threatening or otherwise serious hazard to health of biological, chemical, environmental or unknown origin which spreads or entails a significant risk of spreading across the national borders of Member States, and which may necessitate coordination at Union level in order to ensure a high level of human health protection.

Due to the latest developments of the pandemic the requirements of this definition are fulfilled.

With regard to the argument of social pressure on unvaccinated students the court was of the opinion that the burdens imposed by the processing of personal data are not disproportionate to the benefits accruing to the general public. The risk of stigmatisation may be countered with educational measures. 

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

<pre>
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Title:
Corona pandemic, compulsory testing in schools
chains of standards:
VwGO § 47 paragraph 6
14. BayIfSMV § 13 paragraph 2
IfSG § 28
IfSG § 28a
tags:
Corona pandemic, compulsory testing in schools
Source:
BeckRS 2021, 36742


tenor


I. The application is rejected.



II. The applicant bears the costs of the procedure.



III. The value in dispute is set at EUR 10,000.00.

reasons


1
1. The applicant is in the 10th grade of a grammar school in Bavaria and applies for Section 3 Paragraph 1 Sentence 2 in conjunction with Section 3a of the Fourteenth Bavarian Infection Protection Measures Ordinance (14th BayIfSMV of September 1st, 2021, BayMBl. 2021 No. 615) in the version of Amendment Ordinance of October 27, 2021 (BayMBl. 2021 No. 757), to be temporarily suspended by issuing a temporary order, insofar as the obligation to check the vaccination, recovery and test evidence to be submitted is ordered for providers, organizers and operators, as well as (by analogy) § 13 Paragraph 2 Clause 5 of the 14th BayIfSMV to be temporarily suspended by issuing an interim order, insofar as the processing of the test result is to be carried out in accordance with § 13 Paragraph 2 Clause 1 and Clause 2 of the 14th BayIfSMV testing is ordered.


2
2. The contested regulations, which will expire on November 24, 2021 (§ 20 14. BayIfSMV), have the following wording:


3
"§ 3 Vaccinated, recovered, tested (3G)


4
(1) 1If the number of new infections with the coronavirus SARS-CoV-2 per 100,000 inhabitants within seven days (7-day incidence) exceeds 35 in the area of a district administrative authority, access to closed rooms may be restricted


5
1. Public and private events for up to 1,000 people in non-private premises, sports facilities and practical sports training, fitness studios, the cultural sector with theatres, operas, concert halls, stages, cinemas, museums, exhibitions, memorials, objects belonging to the Bavarian administration of state palaces, gardens and Lakes, gastronomy, accommodation, universities, conferences, congresses, libraries and archives, extracurricular educational opportunities including vocational training, further education and training as well as music schools, driving schools and adult education, zoological and botanical gardens, as well as leisure facilities including swimming pools , thermal baths, saunas, solariums, cable cars and excursion boats, guided tours, show caves and visitor mines, amusement parks, indoor playgrounds, amusement arcades and banks, betting shops, tourist train and coach traffic and infectious diseases comparable areas,


6
2. Services for which physical proximity to the customer is essential and which are not medical, therapeutic or nursing services,


7
subject to more specific provisions of this ordinance, only by providers, organizers, operators, visitors, employees and volunteers, insofar as they are vaccinated, recovered or are tested. 2For this purpose, providers, organizers and operators are obliged to store their own test certificates for two weeks and to check the vaccination, convalescence or test certificates to be submitted. 3Unvaccinated or recovered providers, organizers, operators, employees and volunteers must have proof of testing on at least two different days per week.



9
§ 3a Ease of access restrictions that go further voluntarily (voluntary 2G, voluntary 3G plus)


10
(1) 1Providers, organizers or operators of facilities or events to which access restrictions exist in accordance with Section 3 (1) and (2), Sections 4, 12 or may exist with a corresponding 7-day incidence can voluntarily provide for access only allow the persons named in Section 3 (1) sentence 1 if they have been vaccinated or have recovered within the meaning of Section 2 No. 2 and 4 SchAusnahmeV or have not yet reached the age of twelve (voluntary 2G); § 3 paragraph 1 sentence 4 applies accordingly. 2In this case


11
1. clearly indicate this access restriction to guests, visitors or users,


12
2. to ensure through effective access control including identification of each individual that access is only granted to the persons named in sentence 1, and


13
3. notify the competent district administrative authority in advance of the intention to restrict access accordingly.


14

3If the requirements of sentences 1 and 2 are met, Section 2 Paragraph 1 Clause 1 and Paragraph 2, Section 4 Paragraph 1 and Paragraph 2 No. 2 and Section 12 do not apply; occupational health and safety regulations remain unaffected. 4Providers, event organizers or operators can accredit persons who cannot be vaccinated for medical reasons and prove this on site, in particular by submitting an original written medical certificate containing their full name and date of birth, upon submission of a test certificate in accordance with Section 3 para. 4 allow No. 1 as an exception; § 3 paragraph 1 sentence 2 and 3 applies accordingly.


15
(2) 1para. 1 applies accordingly if access also


16
1. Pupils according to § 3 Para. 5 No. 2 after the age of twelve and


17
2. such persons who have a test certificate according to § 3 paragraph 4 number 1,


18
is permitted (voluntary 3G plus). 2 Section 3 (1) sentences 2 and 3 applies accordingly.


19
(3) 1The competent district administrative authority can prohibit the application of paragraph 1 or 2 in individual cases if there are indications that call into question the reliable compliance with its requirements. 2The general reliability under commercial law always remains to be assessed separately.





23
(2) 1Pupils are only allowed to take part in face-to-face classes, other school events or school holiday courses in attendance, as well as lunchtime and emergency care, if they provide proof of a test three times a week in accordance with Section 3 (4) No. 1, 2 or have carried out a self-test provided by the school and to be used there under supervision at school with a negative result. 2Sentence 1 applies to primary school pupils and pupils at special schools with a focus on mental development, physical and motor development as well as vision, with the proviso that two weekly PCR pool tests can take the place of three weekly self-tests according to the decision of the State Ministry for Education and Culture . [...] 5The school processes the test result for the purposes of sentences 1 and 2. [...]"


24
3. With its urgent application of October 22, 2021, the applicant essentially argues that the contested regulations violate data protection law. She is unwilling to disclose her vaccination/zero status to the school. She did not agree to the processing of her personal health data. Since only unvaccinated students are tested, the vaccination status can be seen by both the classmates present in the classroom while the test is being conducted and the teachers. In the long term, the applicant fears exclusion and psychosocial disadvantages.


25
Section 3 (1) sentences 2 and 3 in conjunction with Section 3a of the 14th BayIfSMV violate the requirement of certainty (Article 20 (3) GG). No statements were made about the way in which the obligation to check the vaccination, convalescence or test evidence was carried out. The encroachment on the right to informational self-determination caused by the review is disproportionate. Providers, organizers and operators - especially the schools - carried out a review of the evidence in violation of the General Data Protection Regulation (GDPR). The control leads to a considerable stigmatization in the context of school operations. There is considerable social pressure to vaccinate. As a result, children and young people are exposed to extreme psychological stress. With regard to § 3a 14th BayIfSMV, the regulatory character of § 3 14th BayIfSMV is tightened.


26
Section 13 (2) sentence 5 14. BayIfSMV also illegally interferes with the general personality rights (Article 2 (1) in conjunction with Article 1 (1) GG) of the applicant and violates Article 9 (1) GDPR. Voluntary consent (Art. 9 Para. 2 Letter a in conjunction with Art. 7 GDPR) without any pressure and coercion does not exist for the unvaccinated. Due to the general compulsory education, the applicant has to take part in face-to-face classes, which requires her consent to the test. With regard to the meanwhile severely limited test options, the weekly multiple provision of test evidence in the pharmacy, test centers or at doctors (cf. § 13 paragraph 2 sentence 1 in conjunction with § 3 paragraph 4 No. 1 and No. 2 14th BayIfSMV) no real alternative. A simple self-test is not enough to provide evidence.


27
The processing of health data is also not justified under Art. 9 (2) (i) GDPR because there is no serious cross-border health risk. This was shown by the low incidences and hospitalization rates. Although the incidence values increased, they were well below those of the second or third wave and late summer. The so-called hospital traffic light is green in Bavaria. The occupancy of the intensive care bed capacity increased only moderately (by 9.6%). There are no other indications that the situation would worsen again due to the hospitals being overburdened with COVID-19 patients. The federal government recently emphasized that medical care is adequately secured (see report in the Ärztezeitung of October 4th, 2021). As part of school operations, masks are still compulsory. The fact that masks are no longer compulsory in class (since October 1st, 2021) does not change anything, as there is a significantly reduced risk of infection in the classroom if the minimum distance is observed. Children and young people are not carriers of the pandemic (explained in detail with reference to various publications).


28
The encroachment on the right to informational self-determination is disproportionate. The obligation to test in schools and the processing of the test results did not serve the purpose stated in the justification for the amending ordinance of October 1, 2021 (BayMBl. 2021 No. 711), to protect the health of each individual and the health system in general, as well as serious illnesses caused by SARS -CoV-2 to minimize. Since neither those who have been vaccinated nor those who have recovered are tested, the probability of uncontrolled spread by precisely these groups of people increases. Vaccine breakthroughs and studies show that vaccinated people are just as infectious as unvaccinated people. Since there is no time limit for the processing of the test results, it is unreasonable. Due to the pandemic situation, the challenged standard, which is basically limited in time, can be expected to be extended again and again. The obligation to test also exists regardless of the pandemic situation and current case numbers.


29
For further details, reference is made to the contents of the file.



30
A. The application to temporarily suspend implementation of Section 3 (1) sentence 2 in conjunction with Section 3a of the 14th BayIfSMV by issuing an interim order, insofar as the obligation to check the vaccination, recovery and test certificates to be submitted for providers, organizers and operators ordered is not permitted.


31
In this respect, the applicant does not already have the right to make an application under Section 47 (2) sentence 1 VwGO. This presupposes that the applicant presents sufficiently substantiated facts that make it at least possible that the challenged legal provision or its application violates its own rights (BVerwG, Bv 17.7.2019 - 3 BN 2.18 - NVwZ-RR 2019 , 1027 - juris para. 11). With regard to the assertion of the infringement, the applicant alone is initially required. It is up to you to demonstrate the infringement yourself (cf. VGH BW, U.v. 17.2.2014 - 5 S 3254/11 - juris; Hoppe in Eyermann, VwGO, 15th edition 2019, § 47 marginal number 41). Based on this standard, there is no indication that the applicant is affected by Section 3 (1) sentence 2 in conjunction with Section 3a of the 14th BayIfSMV.


32
The applicant has not stated that it is itself a provider, organizer or operator within the meaning of Section 3 (1) sentence 2 14th BayIfSMV. § 3 Paragraph 1 Sentence 2 14. BayIfSMV, however, only obliges them to store their own test certificates for two weeks and to check the vaccination, convalescence or test certificates to be submitted. The applicant cannot derive her concern from the fact that she does not want to disclose her health data through the check. In this respect, there is no presentation as to whether and, if so, at what point in time she intends to attend corresponding events or facilities during the period of validity of the contested regulation. The applicant incorrectly assumes that “operator” within the meaning of Section 3 Paragraph 1 Sentence 2 14th BayIfSMV is to be understood as her school. Due to the systematic connection to sentence 1 and the special provision on schools in Section 13 (2) 14th BayIfSMV, this is out of the question.


33
B. The further application to temporarily suspend enforcement of Section 13 (2) sentence 5 of the 14th BayIfSMV by issuing an interim order, insofar as this includes the processing of the results of the measures pursuant to Section 13 (2) sentences 1 and 2 of the 14th BayIfSMV is ordered to carry out tests, remains unsuccessful.


34
The requirements of Section 47 (6) VwGO, according to which the norm control court can issue an interim order if this is urgently required to avert serious disadvantages or for other important reasons, are not met. A norm control application in the main against § 13 para. 2 sentence 5 14th BayIfSMV using the applicable examination standard in the procedure according to § 47 para. 6 VwGO (I.) with a summary examination has no thorough chance of success (II.).


35
I. The standard of examination in the procedure pursuant to Section 47 (6) VwGO is primarily the prospects of success of the main pending or still to be raised application for norm control, insofar as this can already be foreseen in the procedure for interim legal protection (BVerwG, Bv 25.2.2015 - 4 VR 5.14 et al - ZfBR 2015, 381 - juris para. 12; approving OVG NW, Bv 25.4.2019 - 4 B 480/19.NE - NVwZ-RR 2019, 993 - juris para. 9). The prospects of success of the application for the review of norms become all the more important for the decision in the urgent procedure, the shorter the period of validity of the norms that are mainly challenged and the lower the probability that a decision on the application for the review of norms can be made before the norms expire.


36
If the examination of the prospects of success shows in the main that the application for a legal review will probably be inadmissible or unfounded, the issuance of an interim order is not urgently required to avert serious disadvantages or for other important reasons. If, on the other hand, it turns out that the application will be admissible and (probably) justified, this is a key indication that execution must be suspended until a decision has been made on the main issue. In this case, a temporary injunction can be issued if the (further) enforcement before a decision in the main proceedings gives rise to fears of disadvantages which, taking into account the interests of the applicant, affected third parties and/or the general public, are so important that a provisional regulation with a view to the effectiveness and feasibility of a main decision favorable to the applicant cannot be postponed (BVerwG, Bv 25.2.2015 - 4 VR 5.14 et al. - ZfBR 2015, 381 - juris para. 12).


37
If the chances of success cannot be foreseen, a decision must be made by weighing the consequences. A comparison must be made between the consequences that would occur if the requested exemption from enforcement were not issued but the application for regulatory control was later successful, and the consequences that would arise if the requested exemption from enforcement were issued but the application for regulatory control was later unsuccessful. The considerations in favor of a temporary suspension must clearly outweigh the conflicting interests, i.e. weigh them so heavily that - despite open prospects of success in the main case - it is urgently required (cf. BVerwG, Bv 25.2.2015 - 4 VR 5.14 et al. - juris para. 12; Ziekow in Sodan/Ziekow, VwGO, 5th edition 2018, Section 47 marginal number 395; Hoppe in Eyermann, VwGO, 15th edition 2019, Section 47 marginal number 106).


38
II. According to these standards, the application is unsuccessful.


39
1. The Senate has already decided with a resolution of October 11, 2021 (Az. 25 NE 21.2525 - BeckRS 2021, 30069 - also available at https://www.vgh.bayern.de/media/bayvgh/presse/25_ne_ 21.2525. pdf) that there are probably no legal objections to compulsory testing in schools for the only possible but sufficient summary examination (cf. BVerwG, Bv 25.2.2015 - 4 VR 5.14 - ZfBR 2015, 381 - juris para. 14), if the absence from classes to avoid the tests is assessed by the school authorities as a breach of compulsory schooling, and that the public interest in a provisional further implementation of the regulation prevails in a weighing of consequences independent of the prospects of success in the main issue. The burden on those affected by the processing of personal data (cf. Art. 4 No. 2, Art. 9 Para. 1 and 2 Letters g and i GDPR) is not disproportionate to the benefits accruing to the general public when examined in summary. Although there is a high level of interest in prohibiting the processing of health data (cf. Art. 9 Para. 1 GDPR), the testing and isolation of sick people serves beyond general health protection (cf. Art. 9 Para. 2 Letter i DSGVO) the fulfillment of the state's constitutional obligation to protect life and physical integrity, which is of particular importance in view of the fundamentally existing compulsory school attendance and the right of the pupils to participate in lessons (BayVGH, Bv 11.10.2021 - 25 NE 21.2525 - BeckRS 2021 , 30069 para. 30).


40
2. The Senate also adheres to this view in the present proceedings and refers to the resolution mentioned in order to avoid repetition. The submissions of the applicant's representative do not justify a different decision.


41
Insofar as Section 13 Paragraph 2 Sentence 5 14th BayIfSMV affects the fundamentally protected general personality right of the applicant (Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 GG) in its expression as a right to informational self-determination, the interference with regard to the aim of using the tests to help reduce the risk of infection in schools can be justified.


42
2.1 The applicant's reference to Art. 9 Para. the processing of health data is prohibited, does not lead to a different evaluation. Because Art. 9 (2) GDPR contains - as shown - enumerated exceptions, of which Art. 9 (2) (i) GDPR is likely to be relevant in the present context. Whether, despite compulsory schooling, there is voluntary consent (Art. 9 Para. 2 Letter a in conjunction with Art. 7 GDPR) without any pressure and coercion does not require a decision in the proceedings for interim legal protection.


43
According to Art. 9 Para. 2 Letter i GDPR, Art. 9 Para law of a Member State providing for appropriate and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy. These requirements are met here (cf. also OVG NW, Bv 22.4.2021, 13 B 559/21.NE - juris marginal number 100; OVG Hamburg, Bv 21.6.2021 - 1 Bs 114/21 - juris marginal number 51; for an exception under Article 9 (2) (h) GDPR SächsOVG, Bv 9 April 2021 - 3 B 114/21 - juris marginal number 15; OVG Berlin-Bbg, Bv 23 April 2021 - OVG 11 S 56/21 - juris paragraph 69). Processing a positive test result is in the public interest of controlling the coronavirus pandemic. The respondent has also provided sufficient measures to protect the rights and freedoms of the persons concerned: the processing persons are subject to civil servants (§ 37 Para. 1 BeamtStG) or employees of the public service (§ 3 Para. 2 of the collective agreement for the public service). countries - TV-L) of confidentiality. In addition to the general provision of Art. 85 Para. 1 Sentence 1 BayEUG for data processing in the school sector, the legislator has also regulated in Section 13 Para. 2 Sentence 6 14th BayIfSMV that test data can be transmitted to third parties subject to reporting obligations does not take place according to the Infection Protection Act. In addition, the test result may be kept for a maximum of 14 days (§ 13 Para. 2 Sentence 8 14th BayIfSMV).


44
The Senate does not share the applicant's view that there is currently no serious cross-border health risk pursuant to Article 9 (2) (i) GDPR in conjunction with Article 8 (1) No. 4 BayDSG.


45
From the reference to Regulation (EC) 1338/2008 it can be deduced that the exception provision according to Art. 9 Para. 2 Letter i GDPR primarily serves to enable measures to protect the health of the population. It is therefore related to the content of Article 168 TFEU, according to which the EU must work towards a high level of health protection in "all Union policies and measures". This includes improving the health of the population, preventing human disease and eliminating sources of threat to physical and mental health. Accordingly, one of the first health programs of the European Union included the establishment of a network for the surveillance of communicable diseases (Decision No. 2119/98/EC of the European Parliament and of the Council of 24 September 1998 on the creation of a network for epidemiological surveillance and the control of communicable diseases Diseases in the Community, OJ EC 1998 L 268/1). Protection against serious cross-border health risks is also to be understood in this sense (cf. Petri in Simitis/Hornung/Spiecker, data protection law 1st edition 2019, Art. 9 GDPR marginal number 94; Schulz in Gola, GDPR, 2nd edition 2018, Article 9 para. 40). The legal framework established by Decision No. 2119/98/EC was amended by Decision No. 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 (OJ L 293 of 5 November 2013, p. 1 to 15 ) extended to other hazards (Recital 3). Pursuant to Article 3(g) of Decision No. 1082/2013/EU, the term "serious cross-border health threat" means a life-threatening or otherwise serious health threat of biological, chemical, environmental or unknown origin that is spreading beyond the borders of Member States or at which presents a significant risk and which may require coordination at Union level to ensure a high level of public health protection.


46
Measured against this, COVID-19 represents a serious cross-border health hazard within the meaning of Art. 9 Para. 2 Letter i GDPR. The applicant's reference to allegedly low incidences and hospitalization rates as well as a (only) moderate increase in the occupancy of intensive care bed capacity is convincing in view of the recent Developments in the pandemic are not. The nationwide 7-day incidence in Bavaria is currently 249.6 (for unvaccinated people: 451.5 - as of November 2nd, 2021). The age groups of children and young people are at the top. The incidence of children from 6 to 11 years is 538, of young people from 12 to 15 years 425 and from 16 to 19 years 413. The 7-day R value in Bavaria is 1.19 (as of October 28, 2021; https https://www.lgl.bayern.de/gesundheit/infection-protection/infection-diseases_a_z/coronavirus/karte_coronavirus/index.htm).


47
The vaccination rate for children and adolescents aged 12 to 17 is 39%. There is currently no approved vaccine for children under the age of 12.


48
In the last few weeks in particular, a sharp increase in the number of COVID-19 patients treated as inpatients throughout Bavaria has been observed. The number has increased by 36.9% to 1,983 since last week. This development is also reflected in the field of intensive care medicine. Across Bavaria, 459 COVID-19 cases are currently being treated in intensive care (an increase of 30.4% compared to the previous week; cf. https://www.lgl.bayern.de/gesundheit/infection-protection/infection-diseases_a_z/coronavirus/karte_coronavirus/index.htm - As of November 2nd, 2021). In view of the increased occupancy of COVID-19 patients and the likewise increased incidence values, the situation in the Bavarian hospitals is becoming increasingly tense. Regional hospitals, especially in the intensive care area, are reporting very high levels of stress, which are unlikely to be the case in the next few weeks will subside and in some cases are already making national patient controls necessary again (cf. justification for the amending ordinance of October 27th, 2021 - BayMBl. 2021 No. 758).


49
According to the current risk assessment of the RKI, whose expertise the legislator in the area of infection protection with § 4 IfSG attaches particular importance to (cf. BVerfG, Bv 10.4.2020 - 1 BvQ 28/20 - NJW 2020, 1427 - juris marginal number 13; BayVerfGH, Ev 26.3.2020 - Vf. 6-VII-20 - juris para. 16), from October 27, 2021 (available at https://www.rki.de/DE/Content/InfAZ/N/Neuartigs_Coronavirus/Risikobewertung.html ) the risk to the health of the not fully vaccinated population in Germany is still rated as high overall, and for fully vaccinated people as moderate. Since the end of September 2021, there has been an increasing trend in 7-day incidences, which became visible in all age groups in the last week. This year's case numbers are significantly higher than in the same period last year. The proportion of positively tested samples among the PCR tests carried out in the laboratories continues to rise (calendar week 42: 10.6%; week 41: 8.3%). It is to be expected that the number of cases will continue to increase in the further course of autumn and winter (cf. RKI, weekly report of October 28, 2021, https://www.rki.de/DE/Content/InfAZ/N /New_Coronavirus/Situation Reports/Total.html).


50
Against this background, the Senate does not share the applicant's view that there are no indications of an aggravation of the situation due to excessive capacity utilization of hospitals with COVID-19 patients.


51
2.2 Irrespective of the question as to what extent impairments caused by the processing of health data can already be avoided in part by testing in accordance with Section 3 (4) Nos. 1 and 2 14th BayIfSMV, the burden on those affected in the case of a summary test is not disproportionate in this respect either the benefits accruing to the community.


52
The risk of stigmatization, especially in the case of false positive results, can be countered in individual cases by means of educational measures and appropriate process design. The interest in being spared from this and the associated psychological stress must take priority over the interests of students and teachers in not coming into contact with people who have tested positive or who are ill, and the public interest in slowing down the further spread of the coronavirus disease - resign in 2019.


53
It is not a question of proportionality whether the unquestionably remaining (residual) risk of the virus spreading through vaccinated and recovered people could be further reduced at least in certain facilities and constellations through mandatory testing for these groups of people and, depending on the epidemic situation, would have to be further reduced the processing of health data to be assessed here for unvaccinated and non-recovered schoolchildren. This also applies to the applicant's objection that vaccinated people are just as infectious as unvaccinated people. Irrespective of this, this statement is not correct according to the findings of the RKI, which is also responsible for research on the cause, diagnosis and prevention of communicable diseases in accordance with Section 4 (1) sentence 2 IfSG. Rather, the overall risk of virus transmission is significantly reduced for vaccinated people (cf. in detail: RKI, COVID-19 and Vaccination: Answers to Frequently Asked Questions (FAQ), overall status October 29, 2021, https://www.rki.de /SharedDocs/FAQ/COVID-Vaccinations/entire.html). The so-called vaccination breakthroughs do not currently require a different assessment. These only show that (just like other protective measures) vaccination does not offer complete, one hundred percent protection. Measured by the total number of people vaccinated and the total number of newly infected people, the proportion of so-called vaccination breakthroughs is low and does not fundamentally question the effectiveness of the corona vaccination (cf. in detail: RKI’s weekly status report on coronavirus disease 2019 (COVID-19) from October 28th, 2021, p publicationFile).


54
Contrary to the representation of the applicant, the validity of the contested provision is also limited in time (until November 24, 2021; § 20 14. BayIfSMV). The extent to which the legislature will extend the validity of the contested regulation beyond this cannot be predicted at the time of the decision.


55
III. A weighing of the consequences that is largely independent of the prospects of success is also to the detriment of the applicant party according to the standards set out above. Because the expected consequences of an invalidation of the challenged norm outweigh the consequences of its temporary further enforcement, which the pupils affected by the regulation have to accept. In this regard, the considerations already made on proportionality in the narrower sense apply accordingly.


56
C. The decision on costs is based on Section 154 (1) VwGO. The determination of the object value results from Section 53 (2) No. 2 in conjunction with Section 52 (1) GKG. Since the ordinance challenged by the applicant party will expire on November 24, 2021 (§ 20 14. BayIfSMV), the content of the urgent application aims to anticipate the main issue, which is why a reduction in the object value for the urgent proceedings on the basis of para. 1.5 of the catalog of amounts in dispute for administrative jurisdiction 2013 does not seem appropriate here.


57
D. This decision is final, Section 152 (1) VwGO.

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