Federal Constitutional Court (Bundesverfassungsgericht) – Decision of the First Senate of the 6th June 1989 – 1 BvR 921/85
This case is first published in the German Law Archive courtesy of:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mr Raymond Youngs, Southampton Institute
Facts: § 14 of the Federal Forest Act (BWaldG) of the 2nd May 1975 provides:
“(1) Walking in the forest for the purpose of recreation is permitted. Cycling, travelling in invalid carriages and riding in the forest are only permitted on roads and tracks. Use takes place at one’s own risk.
(2) The states are to regulate the details. They can limit walking in the forest for substantial reasons, in particular protection of the forest, management of woodland and game, protection of forest visitors, avoidance of significant damage or safeguarding other interests of forest owners which are worthy of protection; and treat other forms of use entirely or partially in the same manner as walking”.
§ 27 of the Federal Nature Protection Act of the 12th March 1987 (BNatSchG) contains similar provisions for roads and tracks in the open countryside.
The state of North Rhine Westphalia created a regime in § 50 para 2 sentence 1 Countryside Act of the 26th June 1980 which permitted riding in the forest on the private roads and tracks designated as bridleways by the Road Traffic Order. The complainant unsuccessfully applied for, amongst other things, a declaration by the administrative courts that he could ride on certain tracks in a forest area without being subject to the Countryside Act.
The constitutional complaint against the court decisions rejecting the claim (and indirectly also against § 50 para 2 sentence 1 of the Countryside Act) was dismissed.
The complainant’s basic right under Art 2 (1) GG has not been violated by the decisions under challenge and the provisions of § 50 para 2 sentence 1 LG 1980 which is the basis of them.
1. a) According to the principles developed in the case law of the Federal Constitutional Court, Art 2 (1) GG guarantees general freedom of action in a comprehensive sense (constant case law since BVerfGE 6, 32 ; in more recent times, for instance [references omitted]. This does not only protect the limited area of development of the personality. It protects every form of human activity regardless of the weight attaching to it in the context of development of the personality (see for instance the decision of a preliminary examination committee in [reference omitted] – feeding pigeons). Apart from a core area of the structure of private life which is absolutely protected and excluded from the operations of public authority [reference omitted], general freedom of action is only guaranteed within the limits of the second half sentence of Art 2 (1) GG and is therefore in particular subject to the reservation of the constitutional legal order [references omitted]. If an act of public authority affecting freedom of action is based on a legal norm, the constitutional complaint can test by reference to Art 2 (1) GG whether this norm belongs to the constitutional order, that is to say is formally and materially in harmony with the norms of the constitution (constant case law since (BVerfGE 6, 32).
Accordingly, the norm is not only to be measured materially against Art 2 (1) GG, but it is also to be investigated for its constitutionality in another way. In this respect it must in particular be examined whether the regime corresponds to the competence provisions of the Constitution [references omitted]. Insofar as it concerns a norm of state law, it must, besides the competence questions, be examined whether, in view of Art 31 GG, the content of the state norm is reconcilable with federal law (which for its part must be competently made) and also with federal framework law [reference omitted].
In a material sense, the principle of proportionality offers a yardstick by which the general freedom of action may be limited [references omitted]. If an existing authorisation is subsequently set aside, the protection of trust required by the principle of the rule of law (Rechtsstaatgrundsatz) must be preserved [reference omitted]. Besides this, the requirements which arise from the principle of the statutory proviso [reference omitted] must be satisfied [references omitted].
b) Doubts have been raised in the [academic] literature right up to the present day in respect of the case law of the Federal Constitutional Court set out above [references omitted]. They are directed in particular against the unlimited inclusion of every form of human activity into the protective area of the basic right, which in comparison to the other areas protected by the basic rights would lead to protection “over and above the value system” [reference omitted]. On the other hand it empties the basic right protection [of its content] because broadening of the area of protection opens up the possibility of extensive limitation [reference omitted]. The narrowing of the area of protection under Art 2 (1) GG which is accordingly recommended could acquire significance in the present case, because it is doubtful whether riding on private forest tracks could be included in development of the personality understood in a narrow sense.
To depart from the case law so far by narrowing the protective area of Art 2 (1) GG is not however justified. Not only would the history of the origin of the basic right norm stand in the way of this [reference omitted]. The comprehensive protection of human freedom of action (alongside the designated rights to freedom) fulfils a valuable function in securing freedom, because in spite of the wide possibilities for limiting it, the basic right guarantees protection of substantial weight in accordance with the standards explained. Any attempt to limit the area of protection by reference to values would accordingly lead to a loss of freedom for the citizen. This cannot be required simply because other basic rights have a protective area which is narrower and of a higher quality. No compelling grounds are otherwise evident for it. For instance limiting it to a guarantee of some narrower personal sphere of life (even though not to purely spiritual and moral development) or according to similar criteria, would bring with it difficult demarcation problems which could hardly be satisfactorily resolved in practice.
2. Riding as a form of human activity falls within the protective area of Art 2 (1) GG but does not belong to the core area of control of one’s private life. It is accordingly not in principle immune from statutory limitations. The provisions of § 50 para 2 sentence 1 LG 1980 which have been indirectly challenged limit the authorisation to ride in the forest in a manner consistent with the Constitution.
As a norm of state law, the provisions are not in contradiction to the federal law provisions of § 14 BWaldG and § 27 BNatSchG.
a) In deciding this question, the Federal Constitutional Court is not limited to testing the interpretation of the federal law provisions by the specialist courts in the initial proceedings according to the principles which have been developed for constitutional court control of application of simple law in judicial decisions [reference omitted]. It would follow from these principles that the testing of the validity of the norm of state law, which must indirectly occur in the decision, could only be undertaken conditionally. If in a further case a specialist court were to interpret the federal norm differently (which it could not be prevented from doing insofar as the Federal Constitutional Court does not itself have to decide on the interpretation) the norm of state law must then be measured against it again, possibly with another result. That would not be reconcilable with the purpose of norm control, even when indirect. The decision as to whether the norm of state law is valid or not must be final; along with this, the standard for testing – here the content of the federal law regime – must also be established. The Federal Constitutional Court has accordingly always, when testing state law against the standard of federal law, within the framework of Art 100 (1) sentence 2 (second alternative) GG, interpreted the federal law norms itself [references omitted]. No objective reason is evident for proceeding otherwise in connection with incidental norm control.
Even within the framework of constitutional complaint proceedings, when the compatibility of a state law norm has indirectly to be tested with a federal law provision, the norm of federal law must be interpreted by the Federal Constitutional Court to determine the standard for the test [reference omitted].
b) The literal meaning of § 14 BWaldG could be understood to the effect that walking in the forest is already in principle permitted by para 1 sentence 1 of this provision; and according to para 2 the states should only be allowed to set limitations to the principle in a normative way for important reasons. The same would have to apply in relation to riding if it were to be seen as a sub-category of walking. But even if riding were to be regarded as an “other type of use” in the sense of § 14 para 2 sentence 2 BWaldG, there would be no change in principle to the outcome. The “equalisation” of other types of use in accordance with § 14 para 2 sentence 2 BWaldG would then refer to the permission in principle as well as to the authority of the states to make exceptions. It could certainly not sensibly mean that the rules in relation to all the types of use would have completely to coincide insofar as other types of use are included. But as far as the systematology of regulation is concerned, the provisions about walking and those about other forms of use ought to correspond with one another.
Such an interpretation of § 14 BWaldG – which is not necessitated by the wording of the provision – is however ruled out by consideration of the framework law character of the provision and the history of its origin.
aa) § 14 BWaldG does not contain any legal norms directly binding on the citizen; the addressees of the norm are the states alone, who are obliged to make corresponding legal norms for the external world. [Details follow].
It is not inconsistent with this that the concept of framework provisions in Art 75 GG ought not be understood in this narrower technical sense, because the federal legislator may also (availing himself of the competence thereby granted to him) make individual directly applicable provisions in addition to the guidelines for the state legislator [reference omitted]. The fact that the provisions of § 14 para 1 BWaldG should apply merely as a guideline for the state legislator is separately emphasised by the wording of § 14 para 2 sentence 1 BWaldG by which the states are to regulate the details. If the content of § 14 para 1 BWaldG was to be directly applicable law, its formulation would have needed to allow the states to make supplementary provisions…
cc) The character of a norm as a framework provision argues in case of doubt that it is calculated to be supplemented and that the legislative competence of the states is not to be thereby limited to any greater extent than the wording of the framework provision conclusively requires [references omitted]. According to this rule of interpretation, § 14 para 1 sentence 2 BWaldG in combination with para 2 sentence 1 of this provision is to be understood as saying that the state legislator may permit riding in the forest only on roads and tracks but within this framework he can regulate the details himself. In a regime which limits riding within the framework provided he must confine himself to the considerations listed for this purpose in § 14 para 2 sentence 2 BWaldG, as the provision in this respect forms a guideline for him. It cannot however be deduced from the framework provision that he is bound to a certain system of regulation, in particular in the sense of a rule-exception relationship. It is accordingly not inconsistent with a regime which, for the protection of visitors to the forest, separates recreational riders from others who seek recreation and allocates the riders to special bridleways, as occurs in § 50 para 2 sentence 1 LG 1980…
3. The provisions of § 50 para 2 sentence 1 LG 1980 further satisfy the standards which arise directly from the Constitution for limitations of the general freedom of action under Art 2 (1) GG.
a) The rule under challenge corresponds with the principle of proportionality.
It aims at a complete separation of “recreational traffic” in the forest in such a way that riders on the one hand and others seeking recreation (especially walkers and cyclists) on the other hand are each allocated to separated ways. As the state government has explained, the legislator wished thereby primarily to avoid the dangers and other interferences which arise for recreational ramblers from encounters with horses and from the breaking up of the ground in the forest associated with riding. He has thereby pursued an aim which is not only legitimate in constitutional law as being for the common good, but the justification for which can also be derived directly from Art 2 (1) GG. In trying, by separating riders and others seeking recreation, to bring different forms of activity of the general freedom of action into an orderly juxtaposition, he has undertaken a task which is founded in the basic right norm itself and is described in Art 2 (1) GG by the reference to the rights of others.
It cannot be established that the legislator in setting this goal has succumbed to any obvious misjudgement. He could rely on experiences obtained when the earlier regime applied. The state government has coherently explained in this connection that encounters with horses cause many people seeking recreation to feel threatened and that situations of serious danger can arise for pedestrians from riders, especially on the narrower forest tracks. The complainant himself has in the end admitted this when he assumes conflicts of interest between riders and others seeking recreation in the neighbourhood of conurbations. His claim that for most people seeking recreation it is a joy to see horses in motion in the open countryside can in any case not apply to a meeting in a narrow space.
The regime is obviously appropriate to attain the protective purpose which it pursues. By allocating riders to special tracks, the communal use of forest tracks by ramblers and riders and the dangers and disadvantages arising from this for ramblers are avoided from the outset.
The division of riding traffic and other “recreational traffic” in the forest also satisfies the requirement of necessity. The Federal Constitutional Court can limit itself here to testing whether the alternatives shown by the complainant and the other alternatives discussed in specialist circles could attain the desired goal in a simpler, equally effective manner but which would restrict the basic rights less perceptibly [reference omitted]. A less severe method by which the two aims pursued (protection of ramblers from danger from animals and maintenance of tracks in an appropriate condition for ramblers) could be attained in an equally effective manner has neither been described by the complainant nor is otherwise evident.
Finally, the regime is proportionate in the narrower sense. In this connection it is of special importance that the two groups whose competing use interests the statute seeks to balance, namely ramblers and riders, can rely equally on Art 2 (1) GG. In the division of recreational traffic the legislator had to regulate the competing claims to use of the available track network in a manner which does justice to the interests of all the participants. It is not open to objection that in doing so he has effected this separation by excluding bridleways from the totality of available private forest tracks and not for instance the opposite: excluding special ramblers’ tracks. In view of the smaller number of riders in comparison with ramblers, and the more intensive use of the ground claimed by the former, no omission can be detected here of the just balancing of interests which the legislator is required to carry out. That applies so much the more as the countryside authorities are expressly required in accordance with § 50 para 7 LG 1980 to provide for a sufficient and appropriate bridleway network.
b) The provision under challenge satisfies the requirements which arise from the principle of the statutory proviso.
A provision which limits freedom of action may not, according to the principle of the legality of administration, be so uncertain that prohibition of an activity is put for practical purposes within the discretion of the administration without possibility of review [reference omitted]. The Federal Constitutional Court in its judgment on the Meetings Act [reference omitted] has stated on the subject of this principle that the legislator may supervise the exercise of authorisations to act by introducing a prohibition with a proviso for permissions [reference omitted]. But he would then have to lay down the prerequisites for the granting of a permission and allow the person entitled to the basic right a legal claim to a permission on the fulfilment of these; because he would himself have to delimit the legal sphere which is open to the possibility of state intervention within the area of exercise of the basic right. He could not leave this to the discretion of the administrative authority [reference omitted]. The principle of legality of administration from the point of view of the statutory proviso [reference omitted] is affected here.
The regime which is being challenged does not correspond to the concept of a prohibition with a proviso for a permission (which the Federal Administrative Court has used in the initial proceedings in respect of the regime of § 50 para 2 sentence 1 LG 1980) at any rate in the sense developed by the Federal Constitutional Court. The goal of a separation of recreational traffic, which is legitimate in constitutional law, would not be attainable by way of a prohibition with a proviso for a permission. The classification of individual tracks presupposes on each occasion a decision of political regulation. This is not susceptible to concrete prior normative determination and to the granting of a legal claim to the allocation of certain tracks to riders. The eventual detailed decision as to which forest tracks should be available as bridleways on the basis of regulation of recreational traffic as a whole in the forest is shown (according to § 50 para 2 sentence 1 in combination with § 50 para 7 sentence 1 LG 1980) to be in the end an act of state (highway) planning. The state legislator has chosen for the regime relating to riding in the forest a basis which is already familiar for other norms for certain activities associated with the freedom of movement – as for instance vehicle traffic. Those kinds of planning acts cannot be normatively determined beforehand by way of a conditional programme. However, the requirement for a methodical balancing exercise offers in this respect a proper standard which permits the public interests arising from the actual relationships and the private interests of the owners affected to be brought into a just balance. The planning and realisation of a bridleway network is at issue here and this is expressly made the duty of the countryside authorities by § 50 para 7 sentence 1 LG 1980. No other considerations apply for it apart from those which apply for the planning of other traffic routes like for example public roads [reference omitted]. In deciding which private forest tracks should be identified as bridleways and therefore, according to the plan of the statute, at the same time withdrawn from ramblers, the authorities which are appointed for this purpose must look carefully at a multitude of legitimate interests. As a rule, at least the interest of riders in a bridleway network which is as comprehensive as possible, the interest of ramblers which is opposed to this and besides this the interest of the landowner in the maintenance and his own undisturbed use of his track will be affected; and they are currently to be balanced against each other. The relevant weight of each single one of these interests can show itself to be different from case to case.
Proper management of these conflicts is beyond detailed regulation by statute. Such regulation can accordingly not be required, even for constitutional reasons, from the point of view of the statutory proviso. This is because this principle ought not to lead to the legislator having to abandon a regime which he considers (and is permitted to consider) to be required for the attaining of a goal which is legitimate in constitutional law [reference omitted].
c) From the point of view of protection of trust, no constitutional law objections exist against the regime under challenge. The legislator is in principle authorised within the framework of what is proportionate to narrow already existing limits of the general freedom of action. The earlier regime of the LG 1975, which permitted riding on forest roads and tracks in principle, only applied for five years. It was preceded by a regime under which riding in the forest was forbidden in principle (§ 4 letter e of the State Forest Act, 1969). Even further back in time, no authority for riding in the forest was granted by statute. Nor can a customary law authorisation to ride – which incidentally the federal legislator as well as the state legislator would have been able to abolish within the framework of each of their competences in the matter – be established [reference omitted]. In the face of the disadvantages which mixed recreational traffic, including riders, brings with it, it has to be taken into account that the legislator, through the experiences obtained from the statute of 1975, could regard himself as obliged to alter the regime again to the disadvantage of the riders. Riders could not trust in the assured continued existence of this regime, in view of the short period during which all forest tracks were made available to them by statute. The grounds which legitimate the regime under challenge in constitutional law would anyway be sufficient to prevail over any possible need for protection of trust…
Dissenting judgment of Judge Grimm to the decision of the First Senate of the Federal Constitutional Court of the 6th June 1989 – 1 BvR 921/85 –
Riding in the forest does not enjoy any basic right protection. Basic rights distinguish themselves from the multitude of other rights by the fact that they protect the integrity, autonomy and communication of the individual in his basic relations. It is because of this fundamental importance of the subject matter of their protection for an order which is founded on human dignity that they are elevated above the mass of rights and furnished in constitutional law with increased guarantees against public authority and in particular have binding effect on the legislator. Views can change according to historical circumstances over what in detail deserves the increased protection of the basic rights. It is however neither historically nor functionally the purpose of the basic rights to put every conceivable kind of human conduct under their special protection.
Art 2 (1) GG does not provide such a complete basic right protection for every kind of human activity. Art 2 (1) GG protects not the freedom of the individual to do or not to do what he wants but the free development of the personality. This basic right therefore certainly has a wide area of protection, but not a limitless one. Individual behaviour which, in the absence of special basic right guarantees, claims the protection of Art 2 (1) GG must possess a greater relevance for the development of the personality, comparable to the protected interests of the other basic rights. Where this relevance is lacking, the reason for the special protection effected by the basic rights is also lacking and it is left to the rules and remedies of ordinary law.
Contrary to the broad view, the history of the origin of the Basic Law does not indicate that anything else was intended by Art 2 (1) GG. It is true that the editorial committee of the Parliamentary Council following the formulation of the Herrenschiemsee draft had suggested the version: “Everyone has the freedom to act and not to act where the rights of others are not violated and the constitutional order and the moral law are not contravened”. This formula did not however become constitutional law. The unspecific freedom of action was abandoned in favour of the version of the principal committee in which conduct of any kind by the individual was replaced by the “right to free development of the personality”. This was because the formulation of the editorial committee did not, according to the view of the majority, express what was intended in appropriate linguistic terms [reference omitted].
When the Federal Constitutional Court in the Elfes judgment (BVerfGE 6, 32) changed this back into the authorisation to do and not to do what one wants, two motives seem to have been decisive for this. Firstly there was the circumstance that a decision had to be made about a claim to a significant freedom, which could not be classified under any special basic right – in particular not Art 11 GG – but which enjoyed basic right protection if atall only as part of the development of the personality. Secondly there was the circumstance that the court in interpreting Art 2 (1) GG saw itself as faced with the alternatives of understanding free development of the personality as covering either “human freedom of action in the widest sense” or “the protection of a minimum amount of this freedom of action…without which the human being cannot develop his essential nature as an intellectual and moral person” [reference omitted].
However, the interpretation options are not limited to these alternatives. The justified rejection of the so-called “personality kernel” theory (which was advocated at that time principally by Peters [reference omitted] and which largely approximated the protective area of Art 2 (1) GG to that of Art 1 (1) GG) is not automatically a decision in favour of the general freedom of action. Between the inviolable kernel of the personality on the one hand and the general freedom of activity on the other there is an area of freedom for activities which have not found the protection of special basic rights but are nevertheless of considerable importance for the development of the personality. Here Art 2 (1) GG finds its peculiar field of application [reference omitted].
The Elfes judgment itself gives an instance of this. For the court here it was not so much a question of using the general freedom of action as a basis. It was more a matter of derivation of a concrete freedom right, namely the freedom to travel abroad, and the general freedom of action only formed a necessary slogan on which to base it. In the subsequent case law, the court has filled Art 2 (1) GG little by little with a number of concrete guarantees of freedom which as a rule were not traced back to the general freedom of action but were obtained independently of this by reference to Art 1 (1) GG. It was here primarily a question of the general right of personality with its different areas of guarantee [references omitted]; later in further development of the right of personality, a question of the right to self-determination in relation to information [reference omitted] and most recently the right to knowledge of one’s own descent [reference omitted].
The Federal Constitutional Court has always taken into account the relevance of these concrete basic right situations derived from Art 2 (1) GG to the development of the personality when finding a basis for them [reference omitted]. In this way it succeeded in keeping abreast of new kinds of dangers for the development of the personality, in particular where they proceed from scientific and technical progress. Art 2 (1) GG shows itself here in its unspecific formulation as the basic right which is especially open for adapting the protection of the personality to changing conditions and which is therefore able to close gaps which remain inaccessible to the special freedom rights [reference omitted]. Art 2 (1) GG can in this respect be regarded as the “fall-back” basic right; but not as a fall-back basic right which places every imaginable human activity which is not already protected by a special basic right under basic right protection. It is only a fall-back basic right for the “constitutive elements of the personality” [reference omitted] which have not found the protection of special freedom rights.
Besides these concrete rights of personality, the Federal Constitutional Court held fast to the general freedom of action as an interest protected by Art 2 (1) GG, without always making clear that it is a question of two quite different strands of one and the same basic right. Of these two, only the concrete “personality right” strand deserves the description of basic right. The general freedom of action is in contrast not amenable to specifically basic right protection [reference omitted]. If every form of conduct enjoys basic right protection, without this meaning that it should be permitted without limits, the general guarantee of freedom changes into the right not to be unlawfully hindered by the state in doing what one wants to do. But in this character Art 2 (1) GG subjectivises the principle of the rule of law (Reschtsstaatprinzip) which is only objectively guaranteed in the Basic Law and becomes in truth a general freedom to interfere.
The consequences of this understanding of the basic right exist principally in the area of constitutional procedure. If Art 2 (1) GG guarantees the general freedom of action within the framework of the constitutional order, a constitutional complaint based on this basic right has a tendency to widen to a general control of norms. Since the Elfes judgment, the Federal Constitutional Court includes within the constitutional order in the sense of Art 2 (1) GG every legal norm agreeing with the constitution (BVerfGE 6, 32 [37f.]). On this ground where there are interferences with the general freedom of action, the underlying norm in its full extent (and therefore including the setting of state goals, the remaining basic rights and all the provisions about competence and procedure) must be measured against the Constitution.
This kind of breadth of control occurs with every permissible constitutional complaint because the individual only needs to put up with interferences with basic rights which are based on statute; and only those statutes which are formally and materially in harmony with the Constitution count as a sufficient basis for interventions. But constitutional complaints outside Art 2 (1) GG can only be raised in defined, thematically limited areas and as a rule only cover statutes which have effect on the basic right concerned. In contrast, a basic right to do as one pleases which is unlimited as to its protected area does away with this limitation. It allows the fact that the complainant is personally affected by an onerous state act to suffice for the opening up of the full scope of norm control by means of the constitutional complaint.
This trivialisation of the basic rights which is not provided for by the Basic Law, and the associated escalation [in the use] of the constitutional complaint should not be made retrospective. That seems so much the more likely, as Art 2 (1) GG has been enlarged in the meantime with a number of concrete freedom guarantees and remains open for any necessary additional protection of freedom. There is no need to anticipate losses of freedom of the kind the Senate fears, because the general freedom of action only exists within the framework of the constitutional order and will thus not be able anyway to widen the area of individual freedom beyond the statutory limit in areas of activity which are without importance for the development of the personality. Thus there only arises for the complainant who alleges a violation of Art 2 (1) GG a burden of proving that he was limited not in relation to just any conduct but in relation to conduct relevant to the personality.
The determination of the boundary between freedom to engage in activities which are important for the development of the personality and those which do not form part of it then becomes of decisive importance. The fact that abandoning basic right protection for the general freedom of action makes this kind of boundary drawing necessary is certainly no objection to the respecifying of Art 2 (1) GG. This is because determinations of boundaries are necessary in relation to the area of protection of every basic right and can in certain circumstances cause substantial difficulties. The guarantee of artistic freedom in Art 5 (3) GG is not the only demonstration of this. If with precisely these difficulties in view and in the interests of an effective basic right protection, the definition of the protected area is handled liberally in the constitutional case law, there is nothing against proceeding in the same way in relation to Art 2 (1) GG. But there is no ground here for letting it completely drop.
Clues for the drawing of the boundary arise principally from the named freedom rights. The protected interests which are included in Art 2 (1) GG must be equal in significance for personal freedom to the protected subject matter to which these basic rights relate. In essence it will always be a question here of areas of life or types of conduct of the kind that, if the state could regulate them at will, the autonomy of the individual would be endangered and a system thereby fostered which could no longer claim to be founded on respect for human dignity. A definitive enumeration [of these] would founder if a change occurred in the conditions for development of the personality [reference omitted]. The fact that nevertheless no requirements are raised which are not fulfillable has been shown by the Federal Constitutional Court by the concretisations of Art 2 (1) GG which it has undertaken so far. Other claims to freedom which are to be brought within the protection of Art 2 (1) GG must also be measured by this standard for their basis.
Riding in the forest is as little able to fulfil these requirements as for instance feeding pigeons in public places [reference omitted]. It is true that the right to free development of the personality should doubtless not end where leisure time begins. It finds increasingly important possibilities of realisation here in the face of the shortening of the working week and the working life simultaneously with a lengthening of expectation of life. But this does not mean that every activity which can be classified under this sphere of life is under basic right protection. The development of the personality of the individual does not depend on the possibility of riding in the forest. The constitutional complaint is not therefore to be rejected because §§ 50 and 51 of the Countryside Act of North Rhine Westphalia, against which it is indirectly directed, are reconcilable with Art 2 (1) GG, but because they do not affect the protected area of this basic right at all.
©1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1998. HTML edition by Lawrence Schäfer, © 1999 Gerhard Dannemann.