Slovakia, The Supreme Court of the Slovak Republic, 10 October 2013 3Szd/1/2013

Identification of the case

• Family and professional life (art. 33 CFREU)
• Health care (art. 35 CFREU)

• Administrative Procedure Act No 71/1967 (Administrative Procedure Code)
• The Slovak Act on the Protection, Promotion and Development of Public Health No 355/2007
• Act of the Slovak National Council on Misdemeanours No 372/1990 (transposing Directive 2015/413)
• Decree of the Ministry of the Interior of the Slovak Republic establishing a lump sum for the costs of infringement proceedings No 150/2006
• Decree of the Ministry of Health of the Slovak Republic No 585/2008, which lays down details on the prevention and control of communicable diseases
• The Slovak Act on Healthcare and Services Relating to Healthcare No 576/2004
• The Slovak Act on Family No 36/2005
• Notice of the Ministry of Foreign Affairs of the Slovak Republic No 40/2000

• Article 35 CFREU
• Article 33 CFREU
• Article 168, particularly paragraphs 1, 4(c) TFEU
• Article 267 TFEU

Summary of the case

The applicant, Ms. B.J., received a €100 fine from the Regional Public Health Authority in Košice, for refusing to vaccinate her daughter against measles, mumps, and rubella; mandatory under Article 56(1)(k) of the Act on the Protection, Promotion and Development of Public Health that provides for the duty of parents/guardians to ensure the mandatory vaccination of their children. As the applicant’s lawsuit against this decision was dismissed at the Regional Court in Košice, she proceeded with an appeal at the Supreme Court, stating the following reasons: no sufficient information about side-effects were provided, therefore an informed consent could have not been given; the doctor did not follow the legal procedure for vaccination reporting under the Ministerial Decree No 585/2008; religious reasons due to diploid cells that are contained in the vaccines; and that her child is healthy and thus does not constitute a threat to anyone. Additionally, she stated that she was trying to protect her child as the risk when the vaccination is refused is much lower than the risk of receiving the vaccine.

Administrative decision annulled and referred back to the Regional Public Health Office for further proceeding.

1. Is Article 35 of the CFREU meant to be interpreted (in the spirit of the European Union legal tradition) so that every right holder is entitled to choose whether or not to refuse access to preventive healthcare, regardless of the ordering conditions laid down by national laws and procedures, or without consideration of the public interest in ensuring a high level of health protection?

2. Is Article 168 of the TFEU, and in particular paragraphs 1 and 4(c), meant to be interpreted in the spirit that the Union's objective, in particular, to prevent human diseases and illnesses and also to eliminate sources of danger to physical and mental health, precludes European citizens from rejecting compulsory vaccination, as this approach constitutes a threat to public health?

3. How is parental care for minors balanced with the public interest of the protection of health, within the meaning of article 33 CFREU in conjunction with article 6(3) of the TEU, balanced with the public interest in the protection of health in favour of parental care for minors?

The Supreme Court found that a child’s interest in compulsory vaccination can be objective. The refusal of compulsory vaccination of the child by the parent creates a conflict between the objective interest of the child and the interest of the parents arising from their beliefs. The Court then referred to Article 31(2) of the Act on Family which essentially provides that in case of conflict of interests between the child and the parents, the court shall appoint a guardian, who would represent the child. The parent is thus excluded from legal representation of the child ex lege, while the assigned guardian protects the objective interest of the child. As a result, the parent cannot be prosecuted as a legal representative for the misdemeanour, because the child's representative in this area is the guardian. It is therefore clear that parental responsibility did not arise.

In light of the above, the Supreme Court decided not to wait for the outcome of the preliminary ruling requested by the Supreme Court in case No. 1Szd/1/2013 or for the Constitutional ruling requested in the same case by the Regional Court in Nitra. The Court concluded further that both the proceedings initiated before the Constitutional Court of the Slovak Republic and the proceedings initiated before the Court of Justice of the European Union concern the actual performance of vaccination, not the imposition of sanctions on responsible persons.

The Court addressed the potential administrative proceeding in cases when a guardian is assigned to the child. It stated that the parent shall be present at this hearing as well, so that the decision of the guardian can be confronted. Additionally, due to the age of the minor in the present case, she shall be provided with the opportunity to express her opinion about the mandatory vaccination as well, as stipulated in Article 6(2) of the Biomedicine Convention transposed under the Ministerial Notice No. 40/2000. The age of the minor was, however, kept confidential in this ruling.

The Court stated that although the legal questions presented in the case could not be answered in full, the Court has no doubt that the offence of parental responsibility for not ensuring the mandatory vaccination of their child did not arise in the present case. Lastly, the Court emphasised that the imposition of fines does not provide a satisfactory solution for the current situation, nor does the imposition of fines address the matters of interest in protecting public health.

Not applicable as the Supreme Court decided not to wait for the CJEU’s decision since the questions referred concerned the actual act of vaccination, while this case regarded imposition of fines only.

Role of the Charter and role of the general principles on enforcement

The Charter was not found applicable as the Court stated that the current case does not concern the actual performance of vaccination, but the imposition of sanctions on responsible persons when mandatory vaccination of a minor is refused.

Additional notes on the decision

This case is the sole case in Slovakia where a court found that a fine against a parent that refused to vaccinate their child was imposed unrightfully. Vaccination cases are further resolved in the light of decision No. 1Szd/1/2013.