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BVerfGE 125, 260 – Data Retention (Vorratsdatenspeicherung)

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– 1 BvR 256/08 – – 1 BvR 263/08 – – 1 BvR 586/08 –

Headnotes to the judgment of the First Senate of 2 March 2010

  1. Precautionary storage of telecommunications traffic data without cause for six months by private service providers as provided by Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006 (OJ L 105 of 13 April 2006, p. 54; hereinafter: Directive 2006/24/EC) is not in itself incompatible with Article 10 of the Basic Law (Grundgesetz – GG); any potential priority of the Directive is therefore not relevant to the decision.
  1. The principle of proportionality requires the formulation of the legislation on such storage to take appropriate account of the particular weight of the encroachment upon fundamental rights constituted by the storage. Sufficiently sophisticated and well-defined provisions are required with regard to data security, to the use of the data, to transparency and to legal protection.
  1. The guarantee of data security and the restriction of the possible use of the data, in well-defined provisions, are, as inseparable elements of legislation creating a duty of data storage, the responsibility of the Federal legislature, under Article 73.1 no. 7 of the Basic Law. In contrast, the responsibility for creating the retrieval provisions themselves and for drafting the provisions on transparency and legal protection depends on the legislative competence for the respective subject-matter.
  1. With regard to data security, there is a need for statutory provisions which lay down a particularly high security standard in a well-defined and legally binding manner. It must be ensured by statute, at all events fundamentally, that this standard is oriented to the state of development of the discussion between specialists, constantly absorbs new knowledge and insights and is not subject to a free weighing of interests against general business considerations.
  1. The retrieval and the direct use of the data are only proportionate if they serve overridingly important tasks of the protection of legal interests. In the area of the prosecution of criminal offences, this requires the suspicion of a serious criminal offence based on specific facts. For warding off danger and for performing the duties of the intelligence services, they may only be permitted if there is actual evidence of a concrete danger to the life, limb or freedom of a person, to the existence or the security of the Federation or of a Land or to ward off a danger to public safety.
  1. A merely indirect use of the data by the telecommunications service providers to issue information with regard to the owners of Internet Protocol addresses is permissible, even independent of restrictive lists of legal interests or criminal offences, for the prosecution of criminal offences, for warding off danger and for carrying out intelligence-services duties. For the prosecution of regulatory offences, such information can only be allowed to be given in cases of particular weight expressly named by the legislature.

Pronounced

on 2 March 2010

Kehrwecker

Amtsinspektor 

Registrar

of the Court Registry

FEDERAL CONSTITUTIONAL COURT

– 1 BvR 256/08 –

– 1 BvR 263/08 –

– 1 BvR 586/08 –

IN THE NAME OF THE PEOPLE 

In the proceedings
on
the constitutional complaints

I.

1.of Prof. Dr. G…,
2.of Dr. G…,
3.of Mr. K…,
4.of J… GmbH,
represented by its managing director,
5.of Mr. U…,
6.of Mr. R…,
7.of Mr. Z…,
8.of Dr. B…,

– authorised representative:

  1. Mr. Meinhard Starostik, lawyer
    Schillstraße 9, 10785 Berlin –
against§§ 113a and 113b of the Telecommunications Act (Telekommunikationsgesetz – TKG ) as amended by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC (Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG) of 21 December 2007 (Federal Law Gazette (Bundesgesetzblatt – BGBl) I 2007, p. 3198)

– 1 BvR 256/08 –, 

II.

1.of Dr. Dr. h.c. H…,
2.of Dr. S…,
3.of Ms L…,
4.of Mr. B…,
5.of Ms P…,
6.of Mr. K…,
7.of Dr. L…,
8.of Dr. W…,
9.of Prof. Dr. S…,
10.of Ms S…,
11.of Mr. F…,
12.of Mr. S…,
13.of Mr. V…,
14.of Mr. W…,

– authorised representative:

  1. Dr. Dr. h.c. Burkhard Hirsch, lawyer,
    Rheinallee 120, 40545 Düsseldorf –
againstthe Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198)

– 1 BvR 263/08 –, 

III.

1.of Ms A…,
2.of Ms B…,
3.of Mr. B…,
4.of Ms B…,
5.of Ms B…,
6.of Mr. B…,
7.of Mr. D…,
8.of Dr. D…,
9.of Dr. E…,
10.of Mr. F…,
11.of Mr. G…,
12.of Ms G…,
13.of Ms H…,
14.of Ms H…,
15.of Ms H…,
16.of Mr. H…,
17.of Mr. H…,
18.of Mr. W…,
19.of Mr. W…,
20.of Mr. T…,
21.of Dr. T…,
22.of Mr. S…,
23.of Dr. S…,
24.of Ms S…,
25.of Ms S…,
26.of Ms S…,
27.of Ms S…,
28.of Ms P…,
29.of Mr. N…,
30.of Mr. N…,
31.of Ms M…,
32.of Mr. M…,
33.of Ms M…,
34.of Ms L…,
35.of Ms K…,
36.of Mr. K…,
37.of Mr. K…,
38.of Ms K…,
39.of Ms K…,
40.of Dr. H…,
41.of Ms H…,
42.of Ms H…,
43.of Ms H…,

– authorised representative:

  1. Prof. Dr. Jens-Peter Schneider,
    Lürmannstraße 10, 49076 Osnabrück –
againstthe provisions on data retention in the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198)

– 1 BvR 586/08 – 

the First Senate of the Federal Constitutional Court,

with the participation of

Justices Papier (President),

Hohmann-Dennhardt,

Bryde,

Gaier,

Eichberger,

Schluckebier,

Kirchhof, and

Masing

issued the following

Judgment on the basis of the oral hearing of 15 December 2009:

  1. §§ 113a and 113b of the Telecommunications Act as amended by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette part I 2007, p. 3198) infringe Article 10 subsection 1 of the Basic Law and are hence void.
  1. § 100g subsection 1 sentence 1 of the Code of Criminal Procedure (Strafprozessordnung – StPO) as amended by Article 1 number 11 of the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette part I page 3198) infringes Article 10 subsection 1 of the Basic Law to the extent that it permits the collection of traffic data stored pursuant to § 113a of the Telecommunications Act and is void to that extent.
  1. The telecommunications traffic data collected on the basis of the temporary injunction issued on 11 March 2008 in the proceedings 1 BvR 256/08 (Federal Law Gazette part I page 659), repeated and extended by an order of 28 October 2008 (Federal Law Gazette part I page 2239), last repeated by an order of 15 October 2009 (Federal Law Gazette part I page 3704) by providers of publicly available telecommunications services under requests for information made by competent authorities, but provisionally not transmitted to the requesting authorities, which are stored, must be deleted without delay. They may not be transmitted to the requesting agencies.
  1. The Federal Republic of Germany is ordered to reimburse the complainants their necessary costs in the constitutional complaint proceedings.

Reasons:

A.

1

The subject-matter of the constitutional complaints are provisions of the Telecommunications Act (hereinafter: TKG) and of the Code of Criminal Procedure (hereinafter: StPO) that provide a precautionary storage for six months of telecommunications traffic data by the providers of publicly available telecommunications services and the use of such data.

I.

2

The challenged provisions were inserted or amended by the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC of 21 December 2007 (Federal Law Gazette I p. 3198; hereinafter: Act for the Amendment of Telecommunications Surveillance (Gesetz zur Neuregelung der Telekommunikationsüberwachung )); pursuant to its Article 16.1, they have entered into force on 1 January 2008. They serve to implement Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ L 105 of 13 April 2006, p. 54; hereinafter: Directive 2006/24/EC).

3

1. All constitutional complaints directly challenge §§ 113a and 113b TKG, which have been inserted into the Telecommunications Act by Article 2 no. 6 of the Act for the Amendment of Telecommunications Surveillance. Apart from this, the constitutional complaints in the proceedings 1 BvR 263/08 and 1 BvR 586/08 directly challenge § 100g StPO as amended by Article 1 no. 11 of the Act for the Amendment of Telecommunications Surveillance to the extent that it permits the collection of data stored pursuant to § 113a TKG.

4

a) § 113a TKG aims, with regard to all publicly available telecommunications services, at storing, for six months, traffic data which provide information on the lines involved in a telecommunications connection and about the time and the locations at which an act of telecommunication has taken place and to keep them available for the state’s performance of its duties. In doing so, the Act takes up demands which had been made by the Bundesrat for an extended period of time (see Bundestag printed paper (Bundestagsdrucksache – BTDrucks) 14/9801, p. 8; Bundesrat printed paper (Bundesratsdrucksache – BRDrucks 755/03 (resolution), p. 33 et seq.; BRDrucks 406/1/04; BRDrucks 406/04 (resolution); BRDrucks 723/05 (resolution), p. 1), with which the German Bundestag concurred in 2006, making reference to the respective initiatives on the European level. The German Bundestag requested the Federal Government to approve the draft Directive 2006/24/EC and to immediately submit a draft of an implementing Act (see Bundestag printed papers 16/545, p. 4; 16/690, p. 2; Minutes of plenary proceedings of the Bundestag (BTPlenarprotokoll) 16/19, p. 1430). The Federal Government complied with the request by submitting the draft Act for the Amendment of Telecommunications Surveillance (see Bundestag printed paper 16/5846).

5

§ 113a.1 sentence 1 TKG obliges the of publicly available telecommunications services to store, for a period of six months, the telecommunications service data listed in § 113a.2 to 113a.5 regarding fixed network, internet and mobile communications, the transmission of text, multi-media and similar messages, email connections and Internet access. According to § 113a.1 sentence 2 TKG, a person who provides such services without himself creating traffic data shall ensure that the data are stored, and shall inform the Federal Network Agency (Bundesnetzagentur ) as to who is storing these data. Apart from this, a person who provides telecommunications services and in doing so alters the information to be stored pursuant to § 113a TKG is obliged to store the original and the new information. According to § 113a.11 TKG, the data are to be deleted within one month after the end of the storage period. Pursuant to § 113a.8 TKG, the contents of the communication and data on Internet sites visited may not be stored. As regards data security, § 113a.10 TKG makes reference to the care necessary in the area of telecommunications and demands that access to the stored data be exclusively possible to persons specifically authorised for this purpose.

6

Apart from data storage according to § 113a TKG, the providers of telecommunications services retain, pursuant to § 96 TKG, the possibility of storing and using telecommunications data to the extent necessary for the purposes specified therein. After the end of a telecommunications connection, these data may essentially be used pursuant to § 96.2 sentence 1 to the extent that this is necessary for charging and invoicing the parties (§ 97.1 sentence 1 TKG), for itemised billing (§ 99.1 sentence 1 TKG), to the extent necessary for recognising, locating or eliminating faults or deficiencies of telecommunications equipment (§ 100.1 TKG), and to give information about the owners of lines from which threatening or malicious calls have been made (§ 101.1 sentence 1 TKG).

7

§ 113a TKG reads as follows:

9

§ 113a 

Duties to store data 

10

(1) A person who provides publicly available telecommunications services for end users shall store traffic data produced or processed by him in the use of his service pursuant to subsections 2 to 5 for six months in Germany or in another Member State of the European Union. A person who provides publicly available telecommunications services for end users without himself creating or processing traffic data shall ensure that the data are stored pursuant to sentence 1 above, and shall inform the Federal Network Agency at its request as to who is storing these data.

11

(2) The providers of publicly available telephone services store:

12

1. the telephone number or other identification of the calling and called line, and in the case of call transfer or forwarding of every additional line involved,

13

2. the beginning and the end of the connection, with date and time and stating the relevant time zone,

14

3. in cases in which different services may be used as part of the telephone service, information on the service used,

15

4. in the case of mobile telephone services in addition:

16

a) the International Mobile Subscriber Identities of the calling and called lines,

17

b) the International Mobile Equipment Identity of the calling and called terminal device,

18

c) the identification of the radio cells used by the calling and the called lines at the beginning of the connection,

19

d) in the case of prepaid anonymous services, in addition the initial activation of the service, with date, time and identity of the radio cell,

20

5. in the case of Internet telephone services, in addition the Internet Protocol address of the calling and the called lines.

21

Sentence 1 applies with the necessary modifications to the transmission of a text, multi-media or similar message; in this case, in place of the information under sentence 1 no. 2, the times of the sending and the receipt of the message shall be stored.

22

(3) The providers of electronic mail services store:

23

1. when a message is sent, the identity of the electronic mailbox, the Internet Protocol address of the sender and the identity of the electronic mailbox of every receiver of the message,

24

2. when a message is received in an electronic mailbox, the identity of the electronic mailboxes of the sender and the receiver of the message and the Internet Protocol address of the sending telecommunications equipment,

25

3. in the event of access to the electronic mailbox, the identification of the mailbox and the Internet Protocol address of the person retrieving,

26

4. the points of time of the uses of the service set out in nos. 1 to 3 above with date and time, stating the relevant time zone.

27

(4) The providers of Internet access services store:

28

1. the Internet Protocol address allocated to the subscriber for use of the Internet,

29

2. a clear identification of the access line through which the use of the Internet is made,

30

3. the beginning and the end of the use of the Internet from the allocated Internet Protocol address with date and time, stating the relevant time zone.

31

(5) To the extent that providers of telephone services store or record the traffic data named in the present provision for the purposes set out in § 96.2 even if the call is not answered or is unsuccessful as the result of a network management intervention, the traffic data shall also be stored pursuant to the present provision.

32

(6) A person who provides telecommunications services and in doing so alters the information to be stored pursuant to the present provision shall store the original and the new information and the time of the alteration of this information with date and time, stating the relevant time zone.

33

(7) A person who operates a mobile telephone network for the public shall also retain, in addition to the identities of the radio cells stored pursuant to the present provision, data which reveal the geographic locations of the radio antennae supplying each radio cell and their main beam direction.

34

(8) The contents of the communication and data on Internet sites visited may not be stored under the present provision.

35

(9) The storage of the data under subsections 1 to 7 above shall be effected in such a way that requests for information made by the agencies entitled may be responded to without delay.

36

(10) The provider with obligations under the present provision shall observe the care necessary in the area of telecommunications with regard to the quality and the protection of the traffic data stored. In this connection it must ensure by technical and organisational measures that access to the stored data is exclusively possible to persons specifically authorised by it for this purpose.

37

(11) The provider with obligations under the present provision shall delete or ensure the deletion of the data stored solely pursuant to the present provision within one month after the end of the period stated in subsection 1.

38

b) § 113b TKG sets out the purposes for which the data stored pursuant to § 113a TKG may be used. In doing so, it distinguishes between transmission to authorities in order to make it possible for them to use the data to perform their duties, and use by the telecommunications service providers themselves in order to give information pursuant to § 113 TKG, in particular about the owners of Internet lines.

39

aa) § 113b sentence 1 half-sentence 1 TKG sets out the purposes for which the telecommunications enterprises may transmit the data to public authorities. The prerequisites under which such authorities, for their part, may use the data are intended to be provided in provisions under Federal or Land (state) law of the respective area of non-constitutional law. § 113b sentence 1 half-sentence 1 TKG provides that the provider obliged to store data may transmit the data stored solely pursuant to the duty of retention under § 113a to the competent agencies exclusively for the prosecution of criminal offences (no. 1), to ward off substantial dangers to public security (no. 2) and to perform intelligence-service duties (no. 3).

40

Pursuant to § 113b sentence 1 half-sentence 1 TKG, data may be transmitted to the respective competent authorities at their request only if this is explicitly provided in the relevant statutory provisions of non-constitutional law referring to § 113a and the transmission has been ordered in the individual case.

41

The basis under non-constitutional law for the authorisation to use the data stored pursuant to § 113a TKG for the prosecution of criminal offences is § 100g StPO, which is challenged in the proceedings 1 BvR 263/08 and 1 BvR 586/08. As regards the warding off of dangers and the intelligence services’ performance of their duties, § 20m of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz , hereinafter: BKAG) as amended by the Act on Prevention by the Federal Criminal Police Office of Threats from International Terrorism (Gesetz zur Abwehr von Gefahren des internationalen Terrorismus durch das Bundeskriminalamt ) of 25 December 2008 (Federal Law Gazette I p. 3083) and various provisions under Land law meanwhile make reference to § 113a TKG and thus make it possible for the competent authorities to avail themselves of the data stored according to this provision.

42

However, it was possible even before the entry into force of § 113a TKG to consult telecommunications traffic data stored in a permissible manner for the prosecution of criminal offences, to ward off danger or to perform intelligence-service duties. For example, § 100g.1 StPO as amended by Article 1 of the Act Amending the Code of Criminal Procedure (Gesetz zur Änderung der Strafprozessordnung ) of 20 December 2001 (Federal Law Gazette I p. 3879; hereinafter: § 100g StPO, old version) provided for an obligation of the service providers to give information on telecommunications connection data, on the basis of a judicial order, where there was a suspicion of a criminal offence of substantial importance or of a criminal offence committed by means of a telecommunications terminal device. In the same manner, for example Article 34b.2 no. 1 of the Act on the Duties and Competences of the Bavarian State Police (Gesetz über die Aufgaben und Befugnisse der Bayerischen Staatlichen Polizei (Bavarian Police Duties Act – Polizeiaufgabengesetz ; hereinafter: BayPAG)) as amended by the Act Amending the Bavarian Police Duties Act and the Parliamentary Control Panel Act (Gesetz zur Änderung des Polizeiaufgabengesetzes und des Parlamentarischen Kontrollgremium-Gesetzes ) of 24 December 2005 (Bavarian Law and Ordinance Gazette (GVBl) p. 641) or § 8a.1 sentence 1 no. 4 of the Act Regulating the Cooperation between the Federation and the Federal States in Matters Relating to the Protection of the Constitution and on the Federal Office for the Protection of the Constitution (Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des Verfassungsschutzes und über das Bundesamt für Verfassungsschutz (Federal Act on Protection of the Constitution –Bundesverfassungsschutzgesetz ; hereinafter: BVerfSchG) as amended by the Act Amending the Counter Terrorism Act (Gesetz zur Ergänzung des Terrorismusbekämpfungsgesetzes ) of 5 January 2007 (Federal Law Gazette I p. 2) provided authorisations to retrieve information on existing telecommunications connection data to ward off danger or to perform duties of the authority for the protection of the constitution.

43

bb) It is true that § 113b.1 half-sentence 2 TKG excludes, in principle, the use of the data stored pursuant to § 113a TKG for other purposes than those mentioned in § 113b sentence 1 half-sentence 1 TKG. However, it admits of an exception to the effect that they may also be used by the service providers to give information pursuant to § 113 TKG.

44

§ 113.1 TKG permits authorities to retrieve what is known as customer and contract data pursuant to §§ 95 and 111 TKG, in particular of telephone numbers, line identifications and names and addresses of line owners. § 113b 1 half-sentence 2 TKG thus makes it possible for the service providers to give information concerning the owners of what is known as “dynamic” Internet protocol addresses (hereinafter: IP addresses). According to the present state of development, IP addresses are, as a general rule, not permanently assigned to a line as so-called “static” IP addresses but are only assigned to the respective Internet user as dynamic IP addresses for the duration of the respective access to the Internet. Information about the owner of a line from which a particular dynamic IP address has been used at a particular point in time can therefore only be given if the traffic data can be evaluated which provide information about the line to which the IP address in question was assigned at the material time. This is made possible by § 113b sentence 1 half-sentence 2 TKG with regard to the data stored according to § 113a TKG.

45

According to the prevalent view, traffic data were permitted to be used to give information about the owners of dynamic IP addresses pursuant to §113.1 TKG even before the entry into force of §§ 113a and 113b TKG (see for example Stuttgart Regional Court (Landgericht – LG), order of 4 January 2005 – 13 Qs 89/04 –, Neue Juristische Wochenschrift – NJW 2005, p. 614 (614-615); Hamburg Regional Court, order of 23 June 2005 – 1 Qs 43/05 –, MultiMedia und Recht – MMR 2005, p. 711 (712-713); Sankol, MMR 2006, p. 361 (365); a different view is held by the Bonn Regional Court, order of 21 May 2004 – 31 Qs 65/04 –, Datenschutz und Daten – DuD 2004, p. 628 (628-629); the Karlsruhe Higher Regional Court (Oberlandesgericht – OLG), judgment of 4 December 2008 – 4 U 86/07 –, MMR 2009, p. 412 (413-414); Bär, Handbuch zur EDV-Beweissicherung , 2007, p. 148, marginal no. 212; Bock, in: Geppert/Piepenbrock/Schütz/Schuster, Beck’scher Kommentar zum TKG (commentary), 3rd ed. 2006, § 113 , marginal nos. 23-24). However, only traffic data stored pursuant to § 96 TKG could be used. The possibility of identifying the owner of a dynamic IP address via information according to § 113.1 TKG therefore depended on whether such data were still stored at the point in time of the request for information.

46

The identification of the owner of an IP address is of significance for example for copyright protection. If the copyright owners succeed in identifying the IP addresses under which copyright violations are committed in the Internet, the criminal prosecution authorities can identify, by means of a request for information pursuant to § 113.1 TKG, the owners of the respective lines, against whom the copyright owners can bring civil action after inspecting the files of the criminal proceedings. It is true that § 101.2 sentence 1 no. 3 of the Copyright Act (Urheberrechtsgesetz – UrhG) as amended by Article 6 no. 10 of the Law on the Improved Enforcement of Intellectual Property Rights (Gesetz zur Verbesserung der Durchsetzung von Rechten des geistigen Eigentums ) of 7 July 2008 (Federal Law Gazette I p. 1191) now grants persons whose copyright has been violated also a civil-law right to information vis-à-vis the telecommunications service providers. Pursuant to § 101.9 of the Copyright Act, the latter may give the information on the basis of a court order also by using telecommunications traffic data. It is, however, excluded to use the data stored pursuant to § 113a TKG (see Frankfurt am Main Higher Regional Court, order of 12 May 2009 – 11 W 21/09 –, MMR 2009, p. 542 (544), with further references; Hoeren, Neue Juristische Wochenschrift 2008, p. 3099 (3101); Bäcker, in: Rensen/Brink, Linien der Rechtsprechung des Bundesverfassungsgerichts , 2009, p. 99 (111-112), footnote 49).

47

Information pursuant to § 113.1 sentence 1 TKG is to be given to the extent necessary for prosecuting criminal or regulatory offences, to ward off dangers to public security or public order or for performing intelligence-service duties.

cc) § 113b TKG reads:

50

§ 113b 

Use of the data stored pursuant to § 113a 

51

The provider with obligations under § 113a may transmit the data stored solely pursuant to the duty of retention under § 113a

52

1. for the prosecution of criminal offences,

53

2. to ward off substantial dangers to public security, or

54

3. to perform the statutory duties of the authorities of the Federation and the Länder (states) for the protection of the constitution, of the Federal Intelligence Service (Bundesnachrichtendienst ) and of the Military Counterintelligence Service (Militärischer Abschirmdienst )

56

to the competent agencies at their request, to the extent that this is provided for in the relevant statutory provisions referring to § 113a and the transmission has been ordered in the individual case; it may not use the data for other purposes, with the exception of giving information pursuant to § 113. § 113.1 sentence 4 applies with the necessary modifications.

The provision of § 113 TKG to which § 113b TKG makes reference reads in part:

57

§ 113 

58

Preparation by hand of information 

59

(1) Any person who, in a business capacity, provides telecommunications services or assists in providing such services shall in the individual case give, without delay, information to the competent agencies at their request about the data collected pursuant to §§ 95 and 111 to the extent that this is necessary for the prosecution of criminal or regulatory offences, to ward off dangers to public security or order or to perform the statutory duties of the authorities of the Federation and the Länder for the protection of the constitution, of the Federal Intelligence Service and of the Military Counterintelligence Service. The person obliged to give information pursuant to sentence 1 shall give information about data which protect the access to terminal devices or to storage systems employed in such devices or in the network, in particular PINs or PUKs, on the basis of a request for information made pursuant to § 161.1 sentence 1, § 163.1 of the Code of Criminal Procedure, to the provisions on data collection of the police laws of the Federation or of the Länder to ward off dangers to public security or order, to § 8.1 of the Federal Act on Protection of the Constitution, to the relevant provisions of the Land Acts on Protection of the Constitution, to § 2.1 of the Federal Intelligence Service Act or § 4.1 of the Military Counterintelligence Service Act; these data may not be transmitted to other public or non-public agencies. Access to data which are subject to the secrecy of telecommunications is only possible under the prerequisites of the statutory provisions which are relevant in this respect. The person obliged to give information shall observe secrecy about the provision of information towards his customers and towards third parties.

60

(2) …

61

c) § 100g.1 sentence 1 StPO provides for the collection of telecommunications data for purposes of the prosecution of criminal offences. According to the provision, the criminal prosecution authorities can in the first instance access traffic data which the telecommunications enterprises have stored on the basis of § 96 TKG; this was already possible according to § 100g StPO, old version. Apart from this, § 100g StPO now also permits the collection of the data stored by way of precaution pursuant to § 113a TKG. This is challenged by the constitutional complaints in the proceedings 1 BvR 263/08 and 1 BvR 586/08.

62

In detail, § 100g.1 sentence 1 StPO permits the criminal prosecution authorities, with reference to § 113a TKG to collect traffic data without the knowledge of the person concerned to the extent that this is necessary for the investigation of the facts or the establishment of the whereabouts of the suspect. This, however, only applies if specific facts create the suspicion that a person, as perpetrator or accessory, has committed a criminal offence that even in an individual case is of substantial importance, in particular a criminal offence listed in § 100a.2 StPO, or has committed a criminal offence preparatory thereto or, as perpetrator or accessory, has committed an offence by means of telecommunications.

63

Pursuant to § 100g.2 sentence 1 in conjunction with § 100b.1 sentences 1 and 2 StPO, the data collections may only be ordered by a judge unless in case of imminent danger. According to § 100g.2 sentence 1 in conjunction with § 100a.3 StPO, the order may only be directed against the accused or against persons of whom it must be assumed due to specific facts that they receive or transmit specific messages directed to the accused or originating from him or that the accused uses their line.

64

In case of offences committed by means of telecommunications, the collection of traffic data is, pursuant to § 100g.1 sentence 3 StPO, permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect would be impossible in another way and the collection of the data is in a reasonable proportion to the importance of the matter. The legislature regarded this restriction as necessary for reasons of proportionality because it took the view that all in all, the intensity of the encroachment resulting from the collection of traffic data had increased due to the expansion of the data volume in connection with the obligation to store data pursuant to § 113a TKG (see Bundestag printed paper 16/5846, p. 52).

65

Pursuant to § 101.4 sentence 1 StPO, the person affected by measures according to § 100g.1 sentence 1 StPO shall be notified of them. The person affected may apply for the judicial review of such measures within two weeks following their notification (§ 101.7 sentence 2 StPO). In certain cases, notification may be dispensed with (§ 101.4 StPO), in other cases it may be deferred (§ 101.5 StPO). Unlike the dispensation of notification pursuant to § 101.4 StPO, a long-term deferral according to § 101.5 StPO requires the approval of the court.

66

§ 100g StPO reads as follows:

67

§ 100g 

68

(1) If specific facts create the suspicion that a person, as perpetrator or accessory,

69

1. has committed a criminal offence that even in an individual case is of substantial importance, in particular a criminal offence listed in § 100a.2 above, or, in cases in which attempt constitutes an offence, has attempted to commit such an offence, or has committed a criminal offence preparatory thereto or

70

2. has committed an offence by means of telecommunications,

71

then, even without the knowledge of the person concerned, traffic data (§ 96.1 and § 113a of the Telecommunications Act) may be collected to the extent that this is necessary for the investigation of the facts or the establishment of the whereabouts of the suspect. In the case of sentence 1 no. 2, the measure is permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect would be impossible in another way and the collection of the data is in a reasonable proportion to the importance of the matter. The collection of location data in real time is permissible only in the case of sentence 1 no. 1.

72

(2) § 100a.3 and § 100b.1 to § 100b.4 sentence 1 apply with the necessary modifications. Notwithstanding § 100b.2 sentence 2 no. 2, in the case of a criminal offence of substantial importance it is sufficient to adequately determine the place and time of the telecommunications if the investigation of the facts or the establishment of the whereabouts of the suspect in another way would be impossible or considerably more difficult.

73

(3) If the collection of traffic data is not made on the responsibility of the telecommunications service provider, then after the end of the communications process it is governed by the general provisions.

74

(4) In accordance with § 100b.5, a summary of measures under subsection 1 shall be prepared annually; this shall state:

75

1. the number of proceedings in which measures under subsection 1 have been taken;

76

2. the number of orders for measures under subsection 1, classified according to original orders and renewal orders;

77

3. the criminal offence that occasioned the order in each case, classified according to subsection 1 sentence 1 nos. 1 and 2;

78

4. the number of past months for which the traffic data under subsection 1 was requested, starting at the time when the order was made;

79

5. the number of measures that have produced no results because the data retrieved were in whole or in part not available.

80

2. Directive 2006/24/EC of the European Parliament and of the Council, whose implementation the challenged provisions serve to the extent that they concern the prosecution of criminal offences, was adopted by the Council on the basis of Article 95 EC against the votes of Ireland and Slovakia (see Council document 6598/06 ADD 1 of 27 February 2006, p. 4), after the European Parliament had rejected an initiative for a Draft Framework Decision (see Council document 8958/04 of 28 April 2004) by the French Republic, Ireland, Sweden and Great Britain on the retention of telecommunications data which relied on Article 31.1 letter c and Article 34.2 letter b of the Treaty on European Union in its version applicable until the entry into force of the Treaty of Lisbon (hereinafter: Treaty on European Union, old version)  (see European Parliament document P 6 TA[2005]0348).

81

a) The Directive takes up the considerations that telecommunications traffic data are a valuable tool in the prosecution of criminal offences, in particular in the areas of organised crime and terrorism (see Recitals 7 to 10 of Directive 2006/24/EC) and that several Member States have adopted legislation providing for the retention of such data whose provisions vary considerably (see Recital 5 of Directive 2006/24/EC). It works on the assumption that the legal and technical differences created thereby present obstacles to the internal market for electronic telecommunications, since service providers are faced with different requirements regarding the types of data to be retained and the periods of retention (see Recital 6 of Directive 2006/24/EC).

82

b) The validity of Directive 2006/24/EC is doubted regarding its compatibility with the fundamental rights of the European Community (see Klesczewski, in: Festschrift für Gerhard Fezer zum 70. Geburtstag , 2008, p. 19 (24-25); Klug/Reif, Recht der Datenverarbeitung – RDV 2008, p. 89 (91 et seq.); Rusteberg, Verwaltungsblätter für Baden-Württemberg – VBlBW 2007, p. 171 (176); Westphal, Europäische Zeitschrift für Wirtschaftsrecht – EuZW 2006, p. 555 (558 -559); Zöller, Goltdammer’s Archiv für Strafrecht – GA 2007, p. 393 (410  et seq.); Advocate General Kokott, opinion delivered on 18 July 2007 – Case C-275/06 –, ECR 2008, I-271 (276), marginal no. 82 – Promusicae –) as well as regarding the foundation on which the European Union bases its competence (see Gitter/Schnabel, MultiMedia und Recht 2007, p. 411 (412-413); Jenny, Computer und Recht – CR 2008, p. 282 (285); Klesczewski, in: Festschrift für Gerhard Fezer zum 70. Geburtstag , 2008, p. 19 (22 et seq.); Klug/Reif, RDV 2008, p. 89 (91); Leutheusser-Schnarrenberger, Zeitschrift für Rechtspolitik – ZRP 2007, p. 9 (11 et seq); Rusteberg, VBlBW 2007, p. 171 (173-174); Westphal, EuZW 2006, p. 555 (557-558); Zöller, GA 2007, p. 393 (407-408)).

83

By its judgment of 10 February 2009, the Court of Justice of the European Communities rejected an action for annulment under Article 230 EC brought by Ireland (see ECJ, judgment of 10 February 2009 – Case C-301/06 –), which relied on the main or predominant purpose of the Directive being to facilitate the prosecution of criminal offences and its only permissible legal base therefore being the provisions of the EC Treaty, old version, on police and judicial cooperation, which require unanimity, in particular Article 30, Article 31.1 letter c and Article 34.2 letter b of the EC Treaty, old version (see action of 6 July 2006 – Case C-301/06 –, OJ C 237 of 30 September 2006, p. 5). In its judgment, the Court of Justice explicitly stated that the action did not relate to any possible infringement of fundamental rights of the Community (see ECJ, judgment of 10 February 2009 – Case C-301/06 –, marginal no. 57).

84

c) According to Article 1.1 of Directive 2006/24/EC, the Directive aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of telecommunications data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. On the occasion of the adoption of the Directive, the Council declared that in defining “serious crime”, the Member States shall have due regard to the crimes listed in Article 2.2 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JI) (OJ L 190 of 18 July 2002, p. 1) and crime involving telecommunication (see Council document 6598/06 ADD 1, p. 4). The Directive does not contain provisions on the use of the data for duties involving the warding off of dangers or intelligence-service duties.

85

Pursuant to Article 3.1 of Directive 2006/24/EC, Member States shall ensure that the data specified in Article 5 of Directive 2006/24/EC are retained; according to Article 6 of Directive 2006/24/EC, periods of not less than six months and not more than two years from the date of the communication are to be set down. Pursuant to Article 4 of Directive 2006/24/EC, Member States shall ensure that the data retained are provided only to the competent national authorities in specific cases and in accordance with national law. The procedures to be followed and the conditions to be fulfilled in order to gain access to retained data in accordance with necessity and proportionality requirements shall be defined by each Member State.

86

Article 7 of Directive 2006/24/EC obliges the Member States to ensure that certain minimum requirements as to data security are respected with regard to the data being retained. Apart from this, the provisions of Directives 95/46/EC and 2002/58/EC are fully applicable (see Recitals 15 and 16 of Directive 2006/24/EC). According to Article 8 of Directive 2006/24/EC, the Member States shall ensure that the data retained and any other necessary information can be transmitted upon request to the competent authorities without undue delay. Pursuant to Article 13 of Directive 2006/24/EC, the Member States shall furthermore ensure that the national measures implementing Chapter III of Directive 95/46/EC providing for judicial remedies, liability and sanctions are fully implemented with respect to the processing of data under Directive 2006/24/EC. The Directive does not make provision on who is to cover the costs of data storage.

87

3. Furthermore, § 100g StPO is significant for the Convention on Cybercrime of the Council of Europe (Federal Law Gazette II p. 1242; hereinafter: Convention on Cybercrime) (see Federal Law Gazette 16/5846, pp. 27-28 and 50). The Convention not only establishes an obligation to adopt substantive criminal law in order to fight cybercrime but also an obligation to adopt specific provisions under the law of criminal procedure. In particular, according to Article 16 of the Convention, the competent authorities must be enabled to order the expeditious preservation of traffic data. It must be made possible to oblige persons who are in control of such data to preserve and maintain the integrity of those computer data at short notice to enable the competent authorities to seek their disclosure (so-called quick freeze). The legislature, however, regarded it as dispensable to adopt a provision to this effect because the data to be frozen had to be retained anyway due to the comprehensive storage ordered pursuant to § 113a TKG (see Bundestag printed paper 16/5846, p. 53).

88

4. By its order of 11 March 2008, the Federal Constitutional Court, upon the application made by the complainants in the proceedings 1 BvR 256/08, issued a temporary injunction according to which § 113b sentence 1 no. 1 TKG may only be applied in a restricted manner until the decision in the main action (see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE 121, 1). By its order of 28 October 2008, it extended the temporary injunction to the effect that until the decision in the main action, also § 113b sentence 1 nos. 2 and 3 TKG could only be applied with restrictions (see BVerfGE 122, 120). Apart from this, the Federal Government was ordered to report [to the Federal Constitutional Court] for consecutive periods of several months on the practical effects of the data retention measures provided in § 113a TKG and of the temporary injunction on the prosecution of criminal offences. The Federal Government complied with this order with regard to the periods lasting from 1 May 2008 to 31 July 2008, from 1 August 2008 to 1 March 2009 and from 1 March 2009 to 1 September 2009.

II.

89

1. The complainants in the proceedings 1 BvR 256/08 challenge §§ 113a and 113b TKG. They challenge the violation of Article 10.1, Article 12.1, Article 14.1, Article 5.1 and Article 3.1 GG. In the proceedings conducted under the case number 1 BvR 508/08, approximately 34,000 other complainants concurred with this, making the same submissions.

90-116

[…]

117

2. The complainants in the proceedings 1 BvR 263/08 challenge not only §§ 113a and 113b TKG but also § 100g StPO to the extent that it concerns the collection of the data stored pursuant to § 113a TKG. They challenge a violation of Article 1.1, Article 2.1 in conjunction with Article 1.1, Article 10.1 and Article 19.2 GG.

118-133

[…]

134

3. The complainants in the proceedings 1 BvR 586/08 also challenge §§ 113a and 113b TKG and § 100g StPO. They challenge the violation of Article 10.1 and Article 2.1 in conjunction with Article 1.1 GG.

135-145

[…]

III.

146

Opinions on the constitutional complaints were submitted by the Federal Government, the Federal Administrative Court (Bundesverwaltungsgericht ), the Federal Court of Justice (Bundesgerichtshof ), the Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragter für den Datenschutz und die Informationsfreiheit ) and, on behalf of the commissioners for data protection of the Länder , by the Commissioner for Data Protection and Freedom of Information of the Land Berlin.

147

1. The Federal Government regards the constitutional complaints as inadmissible in part, at any rate as unfounded.

148-164

[…]

165

2. The Federal Administrative Court considers the challenged provisions an encroachment upon Article 10.1 GG whose justification is doubtful. […]

166

3. Through the Chairman of its First Criminal Senate and one of the pretrial judges, the Federal Court of Justice points out that to date in the case of criminal offences committed by means of telecommunications, data which would have allowed an identification of the perpetrator had normally already been deleted when the request for information was made. […]

167

4. The Federal Commissioner for Data Protection and Freedom of Information regards the storage of data without cause pursuant to § 113a TKG as unconstitutional. […]

168-170

[…]

171

5. The Commissioner for Data Protection and Freedom of Information of the Land Berlin considers the essence of the secrecy of telecommunications violated by §§ 113a and 113b TKG. […]

172

6. The experts Ms Constanze Kurz, Prof. Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr. Alexander Roßnagel, Prof. Dr. Christoph Ruland, the Federal Commissioner for Data Protection and Freedom of Information, the Commissioner for Data Protection and Freedom of Information of the Land Berlin, the Federal Ministry of Justice assisted by the Federal Ministry of Economics and Technology and by the Federal Ministry of the Interior, the complainants in the proceedings 1 BvR 256/08 and 1 BvR 263/08 as well as the Bundesverband Informationswirtschaft, Telekommunikation und neue Medien e.V. (BITKOM), the Verband der deutschen Internetwirtschaft e.V. (eco) and the Verband der Anbieter von Telekommunikations- und Mehrwertdiensten e.V. (VATM) have made statements regarding technical, factual and legal questions of the Court. They concerned the telecommunications traffic data, the persons obliged to perform data retention, the crimes committed by means of telecommunications, the giving of information pursuant to § 113 TKG, the securing of the retained data against unauthorised access and the possible legal provisions on the use of such data. In the drafting of the opinion by the Federal Ministry of Justice, the Federal Network Agency (Bundesnetzagentur ) cooperated via the Ministry of Economics and Technology; the Federal Criminal Police Office (Bundeskriminalamt ); the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz ) and the Federal Public Prosecutor General (Generalbundesanwältin ) cooperated through the Federal Ministry of the Interior.

173

7. Apart from this, opinions were submitted by the Verband der Anwender geschäftlicher Telekommunikation e.V. (TELECOM e.V.), the Börsenverein des Deutschen Buchhandels e.V. and the Bundesverband Musikindustrie e.V.

IV.

174

In the oral hearing, statements were made by: the complainants, the Federal Government, the Federal Criminal Police Office, the Federal Network Agency, the Government of the Free State of Bavaria, the Federal Commissioner for Data Protection and Freedom of Information, the Commissioner for Data Protection and Freedom of Information of the Land Berlin; as experts, Prof. Dr. Dr. h.c. Hans-Jörg Albrecht, Ms Constanze Kurz, Prof. Dr. Felix Freiling, Prof. Dr. Andreas Pfitzmann, Prof. Dr. Alexander Roßnagel, Prof. Dr. Christoph Ruland, the Bundesverband Informationswirtschaft, Telekommunikation und neue Medien e.V. (BITKOM), the Verband der deutschen Internetwirtschaft e.V. (eco), the Verband der Anbieter von Telekommunikations- und Mehrwertdiensten e.V. (VATM), the Börsenverein des Deutschen Buchhandels e.V. and the Bundesverband Musikindustrie e.V. were heard.

B.

175

The constitutional complaints are admissible.

I.

176

1. The complainants admissibly challenge a violation of Article 10.1 GG. They use different telecommunications services such as in particular telephone services, electronic mail and Internet services for private and business purposes, and they put forward that the storage and intended use of their connection data violates their fundamental right to respect of the secrecy of telecommunications. As Article 10.1 GG also protects the confidentiality of the circumstances of acts of telecommunication (see BVerfGE 67, 157 (172); 85, 386 (396); 120, 274 (307); established case-law), such a violation by the challenged provisions is possible.

177

The challenged provisions also affect the complainants directly, personally and presently. It is true that the obligation to store data under § 113a TKG does not address the complainants, who are affected as users, but the service providers. The latter, however, are unconditionally obliged, without any margin for decision, to store the complainants’ data (see BVerfGE 107, 299 (313-314)). § 113a TKG thus directly and presently results in the storage of data of the complainants for the purposes provided for in § 113b sentence 1 TKG.

178

It also cannot be maintained that the complainants are not affected directly and personally with regard to § 113b TKG und § 100g StPO merely because the provisions only have an effect on the basis of further acts of execution and because it is not yet certain whether and to what extent data of the complainants will be affected. If the person affected does not gain knowledge of the acts of execution, it is sufficient to submit that he or she will with some probability be affected by such measures. What is decisive in this context is whether the measures have a wide range and can cover third parties incidentally (see BVerfGE 109, 279 (307-308); 113, 348 (363); 120, 378 (396-397)). Accordingly, the complainants have sufficiently shown that they are personally and directly affected. With regard to the considerable length of storage of six months, and the wide range of the collected data, it is not improbable that the transmission and the use of the data according to § 113b TKG and § 100g StPO also affects persons who have not given occasion to such measures. Statements by which the complainants themselves would have to charge themselves with a criminal offence are thus not necessary to substantiate their being personally affected (see BVerfGE 109, 279 (308); 113, 348 (363); 120, 378 (396-370)). They also do not have to state that they are responsible for substantial dangers to public security or engage in activities that affect the duties of the intelligence services.

179

2. The constitutional complaint of the fourth complainant in the proceedings 1 BvR 256/08 is also admissible with regard to Article 12.1 GG to the extent that it is directed against the technical and financial burdens which result from the duties of storage. As the provider of an anonymisation service, which also operates a publicly accessible server, the complainant is in principle submitted to the duties under § 113a TKG, without indemnification or compensation being provided for this. As sanctions of administrative fines exist for non-observance of these duties (see § 149.1 no. 36, 149.2 TKG), it is also unreasonable to expect the complainant to first await acts of execution, while infringing § 113a TKG in the meantime, and then to seek recourse before the non-constitutional courts against such acts (see BVerfGE 81, 70 (82)). Thus, the complainant is itself affected directly and presently as regards its occupational freedom,

II.

180

The constitutional complaints are not inadmissible to the extent that the challenged provisions have been enacted implementing Directive 2006/24/EC.

181

The Federal Constitutional Court, however, in principle does not exercise its jurisdiction to decide on the applicability of Community law, now Union law, that is relied on as a legal basis for any acts of German courts or authorities by German courts and authorities in the sovereign territory of the Federal Republic, and does not review such legislation by the standard of fundamental rights contained in the Basic Law, as long as the European Communities (or today the European Union), in particular the case-law of the European Court of Justice, generally ensure effective protection of fundamental rights which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Basic Law, and in so far as they generally safeguard the essential content of fundamental rights (see BVerfGE 73, 339 (387); 102, 147 (162-163)). These principles also apply to domestic legal provisions that implement mandatory requirements of a directive in German law. Constitutional complaints which challenge the application of European Union law which is binding in this sense are in principle inadmissible (see BVerfGE 118, 79 (95); 121, 1 (15)).

182

However, the complainants can rely on the fundamental rights contained in the Basic Law to the extent that the legislature has discretion regarding the implementation of European Union law, i.e. that the legislature’s action is not determined by European Union law (see BVerfGE 121, 1 (15)). Apart from this, the present constitutional complaints are also admissible to the extent that the challenged regulations are based on provisions of the Directive which have a mandatory character. The complainants assert that Directive 2006/24/EC lacks a competence basis in Community law and that it infringes European fundamental rights guarantees. They therefore seek inter alia a referral by the Federal Constitutional Court to the European Court of Justice so that the latter may, by means of a preliminary ruling according to Article 267 TFEU (formerly Article 234 TEC), declare the Directive void and thus open the way for a review of the challenged regulations against the standard of the German fundamental rights; they were not able to assert this before the non-constitutional courts because their constitutional complaints directly challenged the implementing Act. At any rate, a review of the challenged regulations against the standard of the fundamental rights contained in the Basic Law according to the relief sought by the complainants is not excluded from the outset.

C.

183

The constitutional complaints are essentially well-founded. The challenged provisions violate the complainants’ fundamental right under Article 10.1 GG. A referral to the European Court of Justice is out of the question, since any potential priority of Community law is not relevant. The constitutional guarantees of the Basic Law are not an obstacle to an implementation – in a different form – of Directive 2006/24/EC.

184

The constitutional complaint of the fourth complainant in the proceedings 1 BvR 256/08 is unfounded to the extent that it challenges a violation of Article 12.1 GG.

I.

185

The constitutional complaints give no occasion for referral for a preliminary ruling before the European Court of Justice under Article 267 of the Treaty on the Functioning of the European Union. It is true that such proceedings instituted by the Federal Constitutional Court (see BVerfGE 37, 271 (282)) might particularly come into consideration when it is necessary to answer questions on the interpretation or the validity of Community or European Union law, which has priority over domestic law and whose implementation the Federal Constitutional Court in principle does not review by the yardstick of the fundamental rights of the Basic Law. However, such a referral is only admissible and appropriate when the crucial factor is the interpretation or validity of European Union law. That is not the case here.

186

The validity of Directive 2006/24/EC and a priority of Community law over German fundamental rights which might possibly result from this are not relevant to the decision. The contents of the Directive leave to the Federal Republic of Germany a broad discretion in shaping the storage of telecommunications traffic data for which it provides. The Directive imposes on the Member States an obligation to require the operators of publicly accessible electronic communications networks and communications services to store virtually all telecommunications traffic data for a period of at least six months (Articles 1, 3, 5 and 6 Directive 2006/24/EC). But in doing this, its provisions are essentially limited to the duties of storage themselves, and do not govern access to the data or the use of the data by the Member States’ authorities. In particular, they harmonise neither the issue of access to data by the national authorities competent for criminal prosecution nor the issue of the use and the exchange of those data between those authorities (cf. ECJ, judgment of 10 February 2009 – C-301/06 –, 83). Proceeding on the basis of the minimum requirements of the Directive (Articles 7 and 13 Directive 2006/24/EC), it is also for the Member States to take the necessary measures to guarantee data security, transparency and legal protection.

187

With these contents, the Directive can be implemented in German law without violating the fundamental rights of the Basic Law. The Basic Law does not prohibit such storage in all circumstances. On the contrary, even independent of any priority of Community law, it may permissibly be ordered in compliance with the fundamental rights enshrined in the Basic Law (see IV below). A review of the challenged provisions as a whole by the yardstick of German fundamental rights is therefore not in conflict with Directive 2006/24/EC, and therefore the validity and priority of the latter is not relevant.

II.

188

The challenged provisions encroach upon Article 10.1 GG.

189

1. Article 10.1 GG guarantees the secrecy of telecommunications, which protects the incorporeal transmission of information to individual recipients with the aid of telecommunications traffic (see BVerfGE 106, 28 (35-36); 120, 274 (306-307)) against the taking of notice by state authority (see BVerfGE 100, 313 (358); 106, 28 (37)). In this connection, this protection does not only relate to the contents of the communication. On the contrary, the protection also covers the confidentiality of the immediate circumstances of the process of communication, which include in particular whether, when and how often telecommunications traffic occurred or was attempted between what persons or telecommunications equipment (see BVerfGE 67, 157 (172); 85, 386 (396); 100, 313 (358); 107, 299 (312-313)); 115, 166 (183); 120, 274 (307)).

190

The protection of Article 10.1 GG applies not only to the first access by which state authority takes notice of telecommunications events and contents. Its protective effect also extends to the information and data processing procedures which follow the taking of notice of protected communications events, and to the use that is made of the knowledge obtained (see BVerfGE 100, 313 (359)). An encroachment upon fundamental rights includes every taking of notice, recording and evaluation of communications data, and every analysis of their contents or other use by state authority (see BVerfGE 85, 386 (398); 100, 313 (366); 110, 33 (52-53)). The recording of telecommunications data, their storage, their comparison with other data, their evaluation, their selection for further use or their transmission to third parties are therefore each an individual encroachment upon the secrecy of telecommunications (see BVerfGE 100, 313 (366-367)). Consequently, an order to communications enterprises to collect and store telecommunications data and to transmit them to state agencies is in each case an encroachment upon Article 10.1 GG (see BVerfGE 107, 299 (313)).

191

The right arising from Article 2.1 in conjunction with Article 1.1 GG to informational self-determination does not apply in addition to Article 10 GG. In relation to telecommunications, Article 10 GG contains a special guarantee which overrides the general provision and which gives rise to special requirements for the data that are obtained by encroachments upon the secrecy of telecommunications. In this context, however, the requirements which the Federal Constitutional Court has developed from Article 2.1 in conjunction with Article 1.1 GG may largely be transferred to the more special guarantee of Article 10 GG (see BVerfGE 100, 313 (358-359)).

192

2. a) The storage of telecommunications traffic data imposed on the service providers under § 113a.1 TKG encroaches upon the secrecy of telecommunications. In the first instance, this applies to the duties of storage relating to telecommunications services under § 113a.2 to 113a.5 TKG and in conjunction with this under § 113a.6 and § 113a.7 TKG. The information to be stored under this provision indicates whether, when, where and how often connections were established or there was an attempt to establish connections between what telecommunications installations. In particular, this also applies to the storage of data in the service of electronic mail under § 113a.3 TKG, whose confidentiality is also protected by Article 10.1 GG (see BVerfGE 113, 348 (383); 120, 274 (307)). The fact that it is technologically easy to intercept emails does not alter their confidential character and their need for protection. In this connection, storage of the data relating to the Internet connection under § 113a.4 TKG is also an encroachment upon Article 10.1 GG. Internet access enables not only communication between individuals, which is protected by the secrecy of telecommunications, but also participation in mass communication. But since it is not possible to distinguish between individual and mass communication without referring to the contents of the information transmitted in each case, which is contrary to the protective function of the fundamental right, the very storage of the data relating to the Internet access as such is to be seen as an encroachment, even if they do not contain information on the Internet pages visited (see Gusy, in: v. Mangoldt/Klein/Starck, GG, vol. 1, 5th ed. 2005, Art.10 , marginal no. 44; Hermes, in: Dreier, GG, vol. 1, 2nd ed. 2004, Art. 10 , marginal no. 39).

193

The encroaching nature of § 113a TKG is also not called into question by the fact that the storage prescribed by this provision is made not by the state itself, but by private service providers. For these service providers are merely used by the state authorities as helpers to carry out their duties. § 113a TKG obliges the private communications enterprises to store data solely in order to carry out the tasks of state authorities for purposes of the prosecution of criminal offences, the warding off of danger and the performance of intelligence tasks under § 113b TKG. Under these provisions, the state directly orders the impairment of fundamental rights associated with the storage, and the enterprises with a duty of storage have no room for manoeuvre in this connection; the data are to be stored in such a way that requests for information from the public authorities entitled under § 113a.9 TKG can be complied with without delay. Under these conditions, the storage of the data is to be legally attributed to the legislature as a direct encroachment upon Article 10.1 GG (see BVerfGE 107, 299 (313-314)).

194

b) The provisions on data transmission in § 113b sentence 1 half-sentence 1 TKG also constitute encroachments upon fundamental rights in Article 10.1 GG. Admittedly, in itself this provision does not permit a use of the data stored under § 113a TKG, but refers to further statutory retrieval provisions which are to be separately created. However, it does contain the fundamental specification of the purposes for which the data may be used. In this respect, it releases the telecommunications enterprises from the duty of confidentiality to which they are otherwise subject. Ultimately, the final overall regulation of the use of the data is created only by the graduated meshing of provisions on various levels of legislation, but this does not alter the fact that the definition of the purposes of use and the permission to transmit data are part of the regulation of use and thus have the nature of an encroachment. Here too it is irrelevant that § 113b TKG relates to transmission of the data by private service providers. The transmission provided for is based on a statutory arrangement and therefore directly on an act of state authority, which under Article 1.3 GG is bound by fundamental rights, requires a sovereign order in the individual case, and is made to authorities. It is therefore to be seen in law as an encroachment by the state.

195

c) § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG also creates an encroachment upon Article 10.1 GG. It provides that authorities may demand from the service providers information on contract and customer data under §§ 95, 111 TKG; the service providers can only determine these by using the data stored under § 113a.4 TKG. Independently of the question as to whether and how far information under § 113 TKG is in general an encroachment upon Article 10.1 GG or whether fundamentally it is only the right to informational self-determination under Article 2.1 in conjunction with Article 1.1 GG that is affected here, at all events information under § 113b sentence 1 half-sentence 2, § 113.1 TKG is certainly an encroachment upon the secrecy of telecommunications of Article 10.1 GG. For the provision relates to the use of the data which are stored under § 113a TKG and thus acquired by an encroachment upon Article 10.1 GG. Every following use of data which were once obtained in the form of an encroachment upon Article 10.1 GG must always be measured against this fundamental right (see BVerfGE 100, 313 (359); 110, 33 (68-69)); 113, 348 (365)). Here too it must be immaterial that this use, provided by statute, is made not by state authority itself, but by private suppliers, complying with the request for information.

196

d) Finally, § 100g StPO is also an encroachment upon Article 10.1 GG. It enables the criminal prosecution authorities to have the data stored under § 113a TKG transmitted to themselves by the persons obliged to store them, and to use these data. § 100g.1 sentence 1 StPO itself and the exercise of this authorisation, therefore, as acts of public authority, also encroach upon the area of protection of Article 10.1 GG.

III.

197

Formally, there are no objections to the challenged provisions. They fulfil the requirement of a statutory basis under Article 10.2 sentence 1 GG, and they fall under a competence of the Federation.

198

1. Under Article 10.2 sentence 1 GG, restrictions of the secrecy of telecommunications may be imposed only on the basis of a statute. Firstly, there are no doubts in this connection with regard to § 113b TKG and § 100g StPO, which – if necessary in conjunction with other provisions – are a statutory basis for individual judicial orders, on the basis of which access to the data takes place. § 113a TKG is also constitutionally unobjectionable in this respect; for the storage of data, it does not refer to individual judicial orders but directly orders storage itself. Article 10.2 sentence 1 GG also does not prevent restrictions of the secrecy of telecommunications that are made directly by statute (see BVerfGE 85, 386 (396 et seq.)).

199

2. The Federation does not lack legislative competence. The legal basis of §§ 113a, 113b TKG is Article 73.1 no. 7 GG; that of § 100g StPO is Article 74.1 no. 1, Article 72.1 GG.

200

However, Article 73.1 no. 7 GG only directly authorises legislation on the technical aspect of the installation of a telecommunications infrastructure and of the transmission of information with the aid of telecommunications equipment. This Article does not cover provisions which are focused on the contents transmitted or the nature of the use of the telecommunications (see BVerfGE 113, 348 (368); 114, 371 (385)) and which, for example, provide for telecommunications surveillance for the purpose of acquiring information for tasks of criminal prosecution or warding off danger. With regard to legislative competence, each such provision is to be assigned to the area of law for whose purposes the surveillance is provided (see BVerfGE 113, 348 (368)).

201

However, §§ 113a and 113b TKG, as part of the provisions on data protection law, are also, by virtue of a factual connection, covered by the competence to pass telecommunications legislation. In the absence of express assignment of competence, the law of data protection is fundamentally in the competence of the Länder . But by virtue of a factual connection, the Federal legislature is competent to legislate on data protection, in that the Federation cannot sensibly legislate on a subject-matter allocated to it for legislation without legislating on the data protection provisions at the same time (see BVerfGE 3, 407 (421); 98, 265 (299); 106, 62 (115); 110, 33 (48); established case-law; on data protection law see Simitis, in: Simitis, BDSG , 6th ed. 2006, § 1 , marginal no. 4). This is the case with regard to §§ 113a, 113b TKG. These sections are connected to the provisions of the Telecommunications Act on data protection, and linked to the law on the technical conditions of the transmission of information they regulate the requirements to be observed in each case for handling the data created or processed in the provision of telecommunications services. They therefore link directly to facts that fall under the area of legislation of telecommunications. On account of this close connection between the technical transmission process and the data arising in this process, the necessary data-protection legislation for their use may only be passed uniformly by the Federal legislature, which has the competence to legislate on the transmission process. Otherwise there would be the danger that the technical and data-protection provisions on data processing would diverge, and this would be incongruous. Accordingly, in addition to the provisions of §§ 113a and 113b TKG and on the secrecy of telecommunications in §§ 88 et seq. TKG, the Telecommunications Act also contains, in §§ 91 to 107 TKG, extensive provisions on data protection that are specific to this area; as far as can be seen, their lawfulness from the point of view of competence has to date not seriously been called into question.

202

The scope of its competence allows the Federation to pass the provisions necessary to create legislation on the use of the data which is in conformity with fundamental rights. In particular, it may draft the provisions which are necessary in order that the data storage provided for in § 113a TKG and the transmission of the data to criminal prosecution authorities, authorities competent to ward off danger, and to intelligence services and the use of the data to issue information under § 113 TKG comply with the constitutional standards of Article 10.1 GG. Since it is a requirement of encroachments upon Article 10.1 GG that their purpose is determined in an area-specific and precise manner and is contained in well-defined provisions (see BVerfGE 100, 313 (359-360); 110, 33 (53); 115, 320 (365); 118, 168 (187-188)), this implies the competence to pass legislation on the purpose of the storage that is area-specific and precise and consists of well-defined provisions. However, in this connection the legislative competence of the Federation only extends as far as is required under data-protection aspects and the associated constitutional requirements. The Federation may therefore not base the authorisations for data retrieval itself on Article 73.1 no. 7 GG. It needs a separate legal basis for this, or else it must leave the decision on it to the Länder .

203

§§ 113a, 113b TKG fundamentally take this into consideration. They are exclusively restricted to creating the conditions for access to the data by the state through storage duties and provisions on transmission. But filling in the details is left to separate provisions on data retrieval. Notwithstanding the question of substantive law as to whether the Federation has sufficiently restricted the purposes of use here (see below C V 5 and VI 3 b), there are no objections to this on the grounds of competence.

IV.

204

The encroachments upon the secrecy of telecommunications are substantively constitutional if they serve legitimate purposes in the public interest and apart from this comply with the principle of proportionality (see BVerfGE 100, 313 (359)), i.e., are suitable, necessary and appropriate to fulfil the purposes (see BVerfGE 109, 279 (335 et seq.); 115, 320 (345); 118, 168 (193); 120, 274 (318-19)); established case-law).

205

Storage of telecommunications traffic data without cause for six months for qualified uses in the course of prosecution, the warding off of danger and intelligence service duties, as is provided by §§ 113a, 113b TKG, is therefore not in itself incompatible with Article 10 GG. The legislature may in such a provision pursue legitimate purposes to attain which such storage is suitable and necessary within the meaning of the principle of proportionality. Nor is such storage unjustifiable from the outset in relation to proportionality in the narrow sense. If legislation is drafted in a way that takes sufficient account of the encroachment contained in this, storage of telecommunications traffic data without cause is not as such automatically covered by the strict prohibition of data retention within the meaning of the case-law of the Federal Constitutional Court (see BVerfGE 65, 1 (46-47). 115, 320 (350); 118, 168 (187)).

206

1. Making criminal prosecution, warding off danger and performing the tasks of the intelligence service more effective is a legitimate purpose, which can in principle justify encroachment upon the secrecy of telecommunications (see BVerfGE 100, 313 (373, 383-384); 107, 299 (316); 109, 279 (336); 115, 320 (345)). In this connection, the fact that the telecommunications traffic data are to be secured without cause by way of precaution does not automatically constitute an illegitimate objective which cancels the very principle of liberty of Article 10.1 GG. Article 10.1 GG does not prohibit every collection and storage of data whatsoever, but gives protection against a disproportionate organisation of such data collections, and in this connection in particular against boundary-expanding objectives. Only the precautionary storage of personal data for purposes that are indefinite and cannot yet be determined is strictly prohibited (see BVerfGE 65, 1 (46); 100, 313 (360)). However, only exceptionally is the precautionary storage of data permissible. Both its justification and its formulation, in particular also with regard to the envisaged purposes of use, are subject to especially strict requirements.

207

2. The legislature may regard as suitable to obtain its objective a precautionary storage of telecommunications traffic data without cause for later transmission with cause to the authorities responsible for criminal prosecution or warding off danger or to the intelligence services. This creates possibilities of detection which would otherwise not exist and in view of the increasing importance of telecommunications are promising in many cases also for the preparation and commission of criminal offences. It is irrelevant whether the provisions created by the legislature are capable of seamlessly reconstructing all telecommunications connections. Even though such a storage of data cannot ensure that all telecommunications connections can reliably be assigned to specific users, and it may be possible for criminals to circumvent storage by using Wi-Fi hotspots, Internet cafés, foreign Internet telephone services or prepaid mobile telephones registered under a false name, this cannot be cited to show that such a provision is not suitable. Suitability does not demand that the goal of the legislation is actually attained in every single case, but merely requires that the attainment of the goal is facilitated (see BVerfGE 63, 88 (115); 67, 157 (175); 96, 10 (23); 103, 293 (307)).

208

3. The legislature may also treat a six-month storage of the telecommunications traffic data as necessary. There are no less drastic means apparent that would enable similarly broad detection possibilities. In particular, the procedure known as data preservation or quick freeze is inferior with regard to effective detection; in this, the general storage of telecommunications data without cause is replaced by storage only in the individual case, which is not ordered until the date when there is concrete cause for it, for example on the basis of a particular suspicion of a criminal offence. Such a procedure, which can only cover data from the time before they were ordered to be stored if they are still available, is not as effective as continuous storage, which guarantees the existence of a complete set of data for the last six months.

209

4. Nor is storage of telecommunications traffic data for six months to an extent as provided in § 113a TKG disproportionate in the narrow sense from the outset.

210

a) Admittedly, such storage constitutes a particularly serious encroachment with a broader range than anything in the legal system to date: throughout the whole six-month period, virtually all telecommunications traffic data of all citizens are stored, without a connection to culpable conduct attributable to them, or to a dangerous situation – even a merely abstract one –, or to a situation otherwise qualified. This storage relates to everyday actions which are a basic part of day-to-day interaction and which are now indispensable for taking part in social life in the modern world. Fundamentally, no form of telecommunications is as a matter of principle excluded from storage. Admittedly, the provision ultimately leads to occasional gaps, which prevent every telecommunications connection without exception from being reconstructed with individual details, for example in certain circumstances in the use of Wi-Fi hotspots, complex private networks or service providers outside the EU. However, this does not give the citizen a regular possibility of avoiding storage. Instead, the legislature attempts fundamentally to provide for all telecommunications connections in such a way that the users can be determined as extensively as possible.

211

The informative value of these data is extremely broad. Depending on the use of the telecommunications services by the persons affected, a high degree of knowledge of the social environment and the individual activities of each citizen may be obtained even from the data themselves – and all the more if the data are used as starting points for further investigations. Admittedly, storage of telecommunications traffic data, as provided for in § 113a TKG, records only the connection data (time, duration, connections involved and – in the case of mobile telephony – location), but not in addition the contents of the communication. However, it is possible to draw conclusions with regard to contents that extend into the private sphere even from these data, if they are subjected to comprehensive and automated analysis. If recipients (the particular occupational groups, institutions or interest groups they belong to or the services they offer), dates, times and places of telephone conversations are observed for a long period of time, then in combination they permit detailed conclusions on social or political affiliations and personal preferences, inclinations and weaknesses of the persons whose connection data are analysed. There is no protection of confidentiality in this connection. Depending on the use of the telecommunications, and in future with increasing frequency, such storage can make it possible to create meaningful personality profiles and mobility profiles of virtually all citizens. In relation to groups and associations, the data also, in certain circumstances, may make it possible to reveal internal influence structures and decision-making processes.

212

Storage which fundamentally makes such uses possible and in particular cases is intended to make them possible constitutes a serious encroachment. In this connection, it is also significant that, independent of a legislative approach to the use of data of whatever nature, the risk of citizens considerably increases of being exposed to further investigations without themselves having given occasion for this. For example, it is enough to have been in a particular radio cell, or to have been contacted by a particular person, at an inconvenient time, for a person to be exposed to wide-ranging investigations and to come under pressure to give explanations. In addition, the possibilities of abuse that are associated with such a collection of data aggravate its burdensome effect. This is particularly the case in view of the large number of varying private providers which store telecommunications data. Merely in view of the number of persons with duty of storage, the number of those who have and need to have access to such data is large. Since the duty of storage also affects small service providers, protection against abuse, notwithstanding all possible and necessary efforts of the legislature, has structural limits in view of the economic efficiency of those service providers. This is aggravated by the fact that the standards imposed on data management and the transmission of the data to the authorities require a high degree of technological competence and sophisticated software, and this inevitably entails the danger of weak points and the risk of manipulation by interested third parties. Particular weight also attaches to the storage of the telecommunications data because the storage itself and the intended use of the stored data are not directly noticed by the persons affected, but at the same time they include connections which are engaged in with an expectation of confidentiality. As a result of this, the storage of telecommunications traffic data without cause is capable of creating a diffusely threatening feeling of being watched which can impair a free exercise of fundamental rights in many areas.

213

b) Despite its extremely broad range and the weight of the encroachment associated with it, the legislature is not absolutely prohibited under constitutional law from introducing a six-month duty of storage, as provided for in § 113a TKG. However, under the established case-law of the Federal Constitutional Court, the state is strictly prohibited under constitutional law from creating a collection of personal data by way of precaution and retaining it for purposes that are indefinite or that cannot yet be determined (see BVerfGE 65, 1 (46); 100, 313 (360); 115, 320 (350); 118, 168 (187)). The precautionary storage without cause of telecommunications connections data is not in every case such a form of data collection forbidden from the outset. Instead, if it is done for specific purposes, such a storage, as part of a statutory structure which is adequate to the encroachment (see V below), may also satisfy the requirements of proportionality in the narrow sense.

214

aa) The first relevant factor for this is that the storage of the telecommunications traffic data provided is realised not directly by the state, but by a duty imposed on the private service providers. In this way, the data are not yet combined at the time of storage itself, but remain distributed over many individual enterprises and are not directly available to the state in their entirety. In particular, the state has no direct access to the data; this must be ensured by appropriate legislation and technical precautions. The retrieval of the data by state agencies is done only in a second stage, and then related to a specific occurrence, in accordance with criteria to be legally defined in more detail. In this connection, the formulation of the provisions giving permission for retrieval and further use of the stored data may ensure that the storage is not made for purposes that are indefinite or cannot yet be determined. Thus, if such a duty of storage is imposed, it can and must be guaranteed that an actual taking notice and use of the data remains limited by well-defined provisions in a manner that takes account of the weight of the extensive collection of data and that restricts the retrieval and the actual use of the data to the part of the data pool that is absolutely necessary. At the same time, the separation of storage and retrieval structurally promotes the transparency and supervision – to be guaranteed in more detail by legislative drafting – of the use of the data.

215

bb) Nor does a six-month storage of the telecommunications traffic data in itself cancel the principle of Article 10.1 GG; it violates neither that Article’s core of human dignity (Article 1.1 GG) nor its essence (Article 19.2 GG). Despite its extraordinary breadth, it remains effectively limited. Thus, for example, the contents of the telecommunications events are excluded from the storage, which is restricted to the traffic data. In addition, the duration of the storage is restricted. Admittedly, a period of six months’ storage is very long, in view of the extent and informative value of the stored data, and it is at the upper limit of what can be justified from the point of view of proportionality. After the end of this period, however, citizens may rely on their data being deleted – unless they have exceptionally been retrieved for cause – and no longer being reconstructible by anyone.

216

cc) Nor does storage of the telecommunications traffic data for six months appear to be a measure directed towards total recording of the citizens’ communications or activities as a whole. Instead, it takes up, in a manner still limited, the special significance of telecommunications in the modern world and reacts to the specific potential danger associated with this. The new means of telecommunications overcome time and space in a manner that is not comparable with other forms of communication, and that fundamentally excludes public awareness. In this way, at the same time, they facilitate concealed communications and actions of criminals and also enable scattered groups of only a few persons to form and to cooperate effectively. The communication, which is virtually without resistance, enables knowledge, readiness to act and criminal energy to be combined in a way that confronts warding off danger and criminal prosecution with novel tasks. Some criminal offences are committed directly with the help of the new technology. Integrated into a conglomeration of computers and computer networks which communicate with each other only through technology, such activities largely escape observation. At the same time, they can create new kinds of dangers, for example by attacks on third-party telecommunications. For effective criminal prosecution and warding off of danger, therefore, a reconstruction of telecommunications connections is of particular importance.

217

Another problem is that because telecommunications data are not publicly perceptible, there is also no social memory, unlike in other areas, which would permit past events to be reconstructed on the basis of chance memories. Telecommunications data are either deleted, after which they are completely lost, or stored, after which they are completely available. Consequently, in the decision as to how far such data are to be deleted or stored, the legislature may undertake a balancing of interests and take account of the concerns of state performance of duties. In this process, it may also include in its considerations the fact that the popularity of particular forms of contract used by telecommunications services providers (such as the increase of flat-rate services) reduces the availability of such data where there is a strict duty of deletion of telecommunications traffic data which are not needed for the performance of the contract. In this respect too, the precautionary storage of telecommunications traffic data may be based on aspects which have a specific foundation in special features of modern telecommunications.

218

Conversely, the storage of the telecommunications traffic data may not be seen as a step in the direction of legislation aiming at as comprehensive as possible a storage by way of precaution of all data useful for criminal prosecution or the prevention of danger. Regardless of the structure of the provisions on use, such legislation would from the outset be incompatible with the constitution. For precautionary storage of telecommunications traffic data without cause to be constitutionally unobjectionable, this procedure must, instead, remain an exception to the rule. Nor may it, in interaction with other existing files, lead to virtually all activities of the citizens being reconstructible. It is therefore in particular essential for the justifiability of such storage that it is not made directly by state agencies, that it does not also contain the contents of the communications, and that commercial service providers are in principle prohibited from also storing details of the Internet sites visited by their customers. The introduction of the storage of telecommunications traffic data may therefore not serve as a model for the precautionary creation without cause of further data pools, but forces the legislature to exercise greater restraint in considering new duties or authorisations of storage with regard to the totality of the various data pools already in existence. It is part of the constitutional identity of the Federal Republic of Germany that the exercise of freedom of its citizens may not be totally be recorded and registered (on the constitutional identity retention principle, see BVerfG, judgment of the Second Senate of 30 June 2009 – 2 BvE 2/08 and others –, juris, marginal no. 240), and the Federal Republic of German must endeavour to preserve this in European and international contexts. Precautionary storage of telecommunications traffic data also considerably reduces the latitude for further data pools created without cause, including collections by way of European Union law.

219

dd) To summarise, a six-month storage of telecommunications traffic data to the extent provided by the legislature in § 113a.1 to 8 TKG is not disproportionate from the outset in the present circumstances. However, in order for it to be constitutionally unobjectionable, it is necessary for the formulation of the legislation on the storage and the use of the data to take appropriate account of the particular weight of such storage.

V.

220

The formulation of the legislation on a precautionary storage of telecommunications traffic data, as provided in § 113a TKG, is subject to specific constitutional requirements, in particular with regard to data security, to the extent of the use of the data, to transparency and to legal protection. Only if sufficiently sophisticated and well-defined provisions are drafted is the encroachment constituted by such storage proportionate in the narrow sense.

221

1. Storage of telecommunications traffic data in the extent of § 113a TKG requires the statutory guarantee of a particularly high standard of data security.

222

In view of the extent and the potential informative value of the retained data gathered by such storage, data security is of great importance for the proportionality of the challenged provisions. This applies in particular because the data are stored by private service providers which act under the conditions of profitability and cost pressure and in doing so have only limited incentives to guarantee data security. They act in principle in their private interest and are not bound by specific official duties. At the same time, the danger of illegal access to the data is great, for in view of their broad informative value, these data may be of interest to the most varied actors. A particular high standard of security is therefore necessary, which extends beyond the degree generally required under constitutional law for the storage of telecommunications data. Such requirements of data security here apply both to the storage of the data and to their transmission; similarly, effective safeguards are necessary to guarantee that the data are deleted.

223

In the statements in the oral hearing and in the written submissions to the present proceedings, experts referred to a broad spectrum of instruments to increase data security. For example, there was reference to separate storage of the data to be stored under § 113a TKG on computers which are also physically separate from each other and not connected to the Internet; an asymmetrical cryptographic encryption with keys stored separately; the requirement of the four-eyes principle for access to the data, combined with progressive methods of authentication for access to the keys; revision-proof recording of the access to the data and their deletion; and the use of automated error-correction and plausibility procedures. Supplementing such technologically oriented instruments, reference was also made to the creation of duties to provide information in the case of violations of data protection; the introduction of no-fault liability; or a strengthening of the claims to compensation for intangible damage, in order in this way to create an incentive to implement effective data protection.

224

The Basic Law does not lay down in detail what specific security measures are required. Ultimately, however, a standard must be guaranteed which, specifically taking into account the special features of the data pools created by precautionary storage of telecommunications traffic data, guarantees a particularly high degree of security. In this connection, it must be ensured that this standard – for example by recourse to legal concepts of non-constitutional law such as the state of the art (see Heibey, in: Roßnagel, Handbuch Datenschutzrecht , 2003, p. 575, marginal no. 19, p. 598, marginal no. 145; Tinnefeld/Ehrmann/Gerling, Einführung in das Datenschutzrecht , 4th ed. 2005, p. 628) – is oriented to the state of development of the discussion between specialists and constantly absorbs new knowledge and insights. It must therefore be provided that the enterprises with a duty of storage must adapt their measures to this in a verifiable manner, for example on the basis of security policies which are to be renewed periodically. By reason of the potential danger that follows from the data pools in question, it is not possible to subject the security requirements described to a free weighing of interests against general business considerations. If the legislature provides for comprehensive storage of telecommunications traffic data without exceptions, it is part of the necessary requirements that the providers affected can not only perform their duty of storage, but also comply with the corresponding data security requirements. Taking up the expert opinions, it is natural to conclude that in the present state of discussion, it is in principle necessary for the data to be stored separately, and for there to be sophisticated encryption, a secured access regime, using, for example, the four-eyes principle, and revision-proof recording, in order to adequately guarantee the security of the data under constitutional law.

225

There is a need for statutory provisions which lay down such a particularly high security standard in a qualified manner and are at all events fundamentally well-defined and legally binding. In this connection the legislature is free to entrust a regulatory agency with the technicalities of putting the prescribed standard into concrete terms. In this process, however, the legislature must ensure that the decision as to the nature and degree of the protective precautions to be taken does not ultimately lie without supervision in the hands of the respective telecommunications providers. The requirements to be made must either be laid down in sophisticated technical provisions – possibly graduated on various levels of legislation – or in a general manner and then be put in specific terms in a transparent manner by a binding individual decision of the regulatory authorities addressed to the individual enterprise. In addition, there is also a constitutional requirement of monitoring which is comprehensible to the public and which involves the independent data protection officer (see BVerfGE 65, 1 (46)) and a balanced system of sanctions which also attaches reasonable weight to violations of data security.

226

2. Storage of telecommunications traffic data as provided by § 113a TKG also requires statutory provisions on the use of these data. The drafting of these provisions on use, in a manner that is not disproportionate, thus not only decides on the constitutionality of these provisions, which in themselves constitute an encroachment, but also has an effect on the constitutionality of the storage as such. Under the case-law of the Federal Constitutional Court, the greater is the weight of the encroachment constituted by the storage, the more narrowly the requirements for the use of data and their extent must be defined in the relevant basic statutory provisions. The occasion, purpose and extent of the given encroachment and the corresponding thresholds of encroachment must here be defined by the legislature in a manner that relates to a specific area and is precise and consists of well-defined provisions (see BVerfGE 100, 313 (359-360); 110, 33 (53); 113, 29 (51); 113, 348 (375); 115, 166 (191); 115, 320 (365); 118, 168 (186-187)).

227

The use of the data pools obtained from systematic storage without cause of virtually all telecommunications traffic data is therefore subject to particularly strict requirements. In particular, this use is not constitutionally permissible to the same extent as the use of telecommunications traffic data which the service providers are permitted to store under § 96 TKG, depending on the given operational and contractual circumstances, which can in part be influenced by the customers. In view of the systematic precautionary storage of traffic data for six months, which is unavoidable and complete and thus results in increased informative value, their retrieval is incomparably weightier. Since an analysis of these data permits conclusions that reach deep into private lives, and in certain circumstances makes it possible to make detailed personality profiles and track users’ movements, it cannot automatically be assumed in this connection that recourse to these data carries fundamentally less weight than the content-based monitoring of telecommunications (on retrieval under the old law see BVerfGE 107, 299 (322)). Instead, the use of such data can also only be seen as proportionate if it serves particularly high-ranking reasons of public interest. A use of the data may therefore only be considered for overridingly important tasks of the protection of legal interests, that is, to punish criminal offences which threaten legal interests of paramount importance or to ward off dangers to such legal interests.

228

a) From this it follows for the prosecution of crimes that if the data are to be retrieved, there must at least be the suspicion of a serious criminal offence, based on specific facts. Together with the obligation to store data, the legislature must provide an exhaustive list of the criminal offences that are to apply here. In this, it has scope for assessment. It may either have recourse to existing lists or create its own list, for example in order to include criminal offences for which telecommunications traffic data are particularly important. However, if a criminal offence is to be categorised as serious, this must be objectively expressed in the statutory definition, in particular, for example, by the range of punishment provided (see BVerfGE 109, 279 (343 et seq., in particular 347-348). But a blanket clause or a mere reference to criminal offences of considerable significance is not sufficient.

229

In addition to laying down such a list of criminal offences in abstract terms, the legislature must ensure that recourse to the telecommunications traffic data stored by way of precaution is permissible only if the criminal offence prosecuted is also serious in the individual case (see BVerfGE 121, 1 (26) and the use of the data is proportionate; on criminal offences of considerable significance, see BVerfGE 107, 299 (322); on particularly serious criminal offences within the meaning of Article 13.3 GG, see BVerfGE 109, 279 (346)).

230

b) The use of the data in question must also be effectively restricted for the purpose of warding off danger. In this connection, permitting access to data with reference to lists of specific criminal offences which the use of the data is intended to prevent (see BVerfGE 122, 120 (142)) is not a suitable legislative approach. It removes the clarity from the requirements of the degree of endangerment to legal interests and leads to uncertainty where the definitions of legal offences penalise even acts preparatory to the commission of an offence and mere endangerments of legal interests. Instead, a solution might be for legislation to refer directly to the legal interests whose protection is to justify a use of the data, and to the degree of danger to these legal interests that must be attained as a threshold of encroachment. Such an approach corresponds to the character of warding off danger as the protection of legal interests and guarantees a direct connection to the main objective which is intended to justify the encroachment upon fundamental rights.

231

It follows from weighing the encroachment constituted by the storage and use of data and the importance of effective warding off of danger that retrieval of the telecommunications traffic data stored by way of precaution may only be permitted to ward off dangers to the life, limb or freedom of a person, to the existence or the security of the Federation or of a Land or to ward off a danger to public safety (see BVerfGE 122, 120 (141 et seq.)). In this connection, the enabling statute must at least require actual evidence of a concrete danger to the legal interests to be protected. This requirement means that presumptions or general principles derived from experience are not sufficient to justify access to the data. On the contrary, specific facts must have been established which support the prognosis of a concrete danger. Here, the facts of the case must be such that there is sufficient probability in the individual case that specific persons will cause damage to the interests protected by the legislation in the foreseeable future, if the state does not intervene. The statements by the Senate in this connection on the requirements for online searches apply here with the necessary modifications (see BVerfGE 120, 274 (328-329)). The concrete danger is defined by three criteria: the individual case, the imminence of the time when a danger will become actual damage, and the relationship to individual persons who are likely to cause the damage. Admittedly, the retrieval of the data stored by way of precaution may already be justified at a time when it is not yet possible with sufficient probability to establish that the danger will arise in the near future, provided that particular facts indicate the threat of a danger to a legal interest of paramount importance. On the one hand, the facts must allow events to be identified, and it must at least be possible for the nature of these events to be put into concrete terms and for the time of their occurrence to be foreseeable, and on the other hand, the facts must indicate that particular persons will be involved, and at least enough must be known of their identity to allow the measure to be specifically targeted at them and concentrated on them. In contrast, insufficient account is taken of the weight of the encroachment upon fundamental rights if the actual occasion of the encroachment is located far in advance of a concrete danger to the interests protected by the legislation, and this concrete danger cannot yet be foreseen in concrete terms.

232

c) The constitutional requirements for the use of the data to ward off danger apply to all authorisations to encroach whose objective is preventive. They therefore also apply to the use of the data by the intelligence services. Since in all these cases the adverse effect of the encroachment is the same for those affected, there is no occasion to create different rules depending on the authority involved, for example to distinguish between police authorities and other authorities which have preventive duties, such as authorities for the protection of the constitution. The fact that police authorities and authorities for the protection of the constitution have difference duties and powers and may consequently undertake measures with different degrees of encroachment is in principle irrelevant to the weighting of a use of telecommunications traffic data stored by way of precaution comprehensively and for a long time (see BVerfGE 120, 274 (329-330)). Admittedly, differentiations between the authorisations of the various authorities with preventive duties may stand up to constitutional review (see BVerfGE 100, 313 (383); 120, 274 (330)). However, when the legislature provides for the individual powers of security authorities whose duty is advance intelligence, it is bound by the constitutional requirements which follow from the principle of proportionality (see BVerfGE 120, 274 (330-331)). In the present case, these lead to the conclusion that particular requirements must be imposed for the use of data both with regard of the legal interests to be protected and with regard to the threshold of encroachment to be observed in this connection.

233

There is no reason why these requirements should not apply to the intelligence services’ performance of their tasks. Admittedly, the tasks of the intelligence services are fundamentally restricted to the collection of information to be supplied to the government. This reduces the weight of the encroachment in that the danger that the individual citizen is observed is not compounded by the danger of further measures following on this. At the same time, however, the weight needed to justify such encroachments is reduced, for mere information given to the government cannot prevent violations of legal interests. Preventing violations of legal interests is only possible as a result of subsequent measures taken by the authorities responsible for warding off danger, whose constitutional restrictions in the use of the data may not be circumvented by more extensive powers of use granted in advance. Apart from this, there is a particularly burdensome effect of such encroachments upon the citizens in that not only the given encroachment upon the secrecy of telecommunications as such is normally hidden, but virtually all the activities of the intelligence services are carried out in secret. The powers given to these services to use the telecommunications traffic data which have been comprehensively stored by way of precaution thus particularly encourage the sense of being observed in a manner that cannot be monitored, and develop persistent intimidating effects on the exercise of freedom.

234

The Senate is aware that as a result of this, use by the intelligence services of the telecommunications traffic data stored by way of precaution will in many cases be impossible. However, this results from the nature of their tasks in advance intelligence and does not create a constitutionally acceptable occasion to relax the requirements for an encroachment of this kind that arise from the principle of proportionality (see BVerfGE 120, 274 (331)).

235

d) It must also be ensured that the restriction of the use of data to specific purposes also applies to the use of the data after they are retrieved and transmitted to the retrieving authorities, and there must be procedures in place to support this. In this respect it must be guaranteed by statute that after transmission the data are analysed without delay and, where they are irrelevant to the purposes of the collection, are deleted (see BVerfGE 100, 313 (387-388)). Apart from this, it must be provided that the data are destroyed as soon as they are no longer necessary for the purposes laid down, and that a record is made of this (see BVerfGE 100, 313 (362); 113, 29 (58)).

236

The telecommunications traffic data do not lose the protection given them by Article 10 GG as a result of the fact that a state authority has already obtained knowledge of them. The fundamental right’s requirement that the use be clearly limited to specific purposes therefore also applies to the transmission of the data and information to further authorities. However, this does not exclude changes of purpose. But these require their own statutory basis, which in its turn must comply with constitutional requirements (see BVerfGE 100, 313 (360); 109, 279 (375-376)). In consequence, there may only be a provision for the transmitted telecommunications traffic data to be passed on to further agencies where as this is done to carry out duties for which direct access to these data would also be permissible (see BVerfGE 100, 313 (389-390); 109, 279 (375-76)); 110, 33 (73)). This must be recorded by the authority passing the data on (see BVerfGE 100, 313 (395-396)). Here, the limitation to specific purposes can be guaranteed only if it is still discernible after the collection that these are data which were stored without cause by way of precaution. Accordingly, the legislature must provide for an obligation to label these data (see BVerfGE 100, 313 (360-361)).

237

e) Finally, there may also be constitutional limits with regard to the extent of the data to be retrieved. Thus, for example, from the point of view of proportionality, many gradations can be identified within the various requests for information, for example depending on whether they relate only to one single telecommunications connection, whether they are directed at the transmission of data from one single radio cell at a particular time, whether they relate only to the communication between individual persons – possibly restricted to a particular period of time or a particular form of communication – and at the same time either include or exclude the location data, or whether they aim at a complete transmission of the data of a person to track that person’s movements or create a personality profile of that person with as much detail as possible. With regard to the weight of the encroachment, it may also make a difference whether, when the data are transmitted, filters are used to screen out specific telecommunications connections to protect particular confidential relationships.

238

But in view of the high thresholds which under the above standards already apply fundamentally to the use of telecommunications traffic data stored by way of precaution, the legislature has legislative discretion when it provides in more detail for the scope of the use of data. In particular, the legislature is fundamentally also at liberty to leave such considerations of proportionality to the judge appointed to decide whether to order a retrieval of data, in the review of the individual case. As a product of the principle of proportionality, it is, however, constitutionally required that there should be a fundamental prohibition of transmission of data, at least for a narrowly defined group of telecommunications connections which rely on particular confidentiality. These might include, for example, connections to persons, authorities and organisations in the social or ecclesiastical fields which offer advice in situations of emotional or social need, completely or predominantly by telephone, to callers who normally remain anonymous, where these organisations themselves or their staff are subject to other obligations of confidentiality in this respect (see § 99.2 TKG).

239

3. In addition, precautionary storage of telecommunications traffic data without cause and the use of these data are only proportionate if the legislature takes sufficient precautions to ensure the transparency of the use of data and to guarantee effective legal protection and effective sanctions.

240

a) The requirements of the constitutionally unobjectionable use of data obtained by such storage include requirements as to transparency. As far as possible, the use of the data must be open. Failing this, it is in principle necessary for the persons affected to be informed, at least subsequently. If, exceptionally, even this subsequent notification is not made, there must be a judicial decision with regard to the non-notification.

241

aa) Precautionary storage without cause of all telecommunications traffic data for a period of six months is such a serious encroachment inter alia because it can create a sense of being permanently monitored; in an unforeseen manner, it permits a high degree of knowledge of private life, without the recourse to the data being directly perceptible by or visible to the citizen. The individual does not know which state authority knows what about him or her, but knows that the authorities may know a great deal about him or her, including highly personal matters.

242

By effective provisions on transparency, the legislature must counteract the diffuse sense of threat which may attach to data storage as a result of this. Provisions on information for the persons affected by the collection or use of data are generally among the elementary instruments of constitutional data privacy (see BVerfGE 100, 313 (361); 109, 279 (363-364)); 118, 168 (207-208)); 120, 351 (361-361)). In this respect, strict requirements must be imposed on the use of the data pools resulting from precautionary storage of telecommunications traffic data without cause, which are extensive and offer a variety of information. On the one hand, these requirements must reduce a sense of threat, which arises from ignorance as to the factual relevance of the data, must counteract speculations which create a sense of insecurity, and must make it possible for those affected to address such measures in public discourse. On the other hand, such requirements may also be derived from the precept of effective legal protection under Article 10.1 GG in conjunction with Article 19.4 GG. Without knowledge, those affected may assert neither unlawful official use of the data nor any rights to deletion, correction or legal redress (see BVerfGE 100, 313 (361); 109, 279 (363); 118, 168 (207-208)); 120, 351 (361)).

243

bb) The requirements for transparency include the principle that the collection and use of personal data should be open. Use of the data without the knowledge of the person affected is constitutional only if otherwise the purpose of the investigation served by the retrieval of data would be frustrated. The legislature may in principle assume that this is the case for warding off danger and carrying out the duties of the intelligence services. In contrast, in criminal prosecution there is also the possibility that data may be collected and used openly (see § 33.3 and 33.4 StPO). In this connection, investigation measures are sometimes also taken in other matters with the knowledge of and in the presence of the suspect (see for example §§ 102, 103, 106 StPO). Accordingly, persons affected must as a general rule be notified before the retrieval or transmission of their data. There may only be a provision for secret use of the data here if such use is necessary and is ordered by a judge in the individual case.

244

Insofar as the use of the data is secret, the legislature must provide for a duty of information, at least subsequently. This must guarantee that the persons to whom a request for data retrieval directly applied – whether as suspects, as persons endangering public security, or as third parties – are in principle informed, at least subsequently. The legislature may provide for exceptions in weighing the notification against constitutionally protected legal interests of third parties. However, these must be restricted to what is absolutely necessary (see BVerfGE 109, 279 (364)). It is conceivable that there may be exceptions to the duties of notification in connection with the prosecution of criminal offences, for example where knowledge of the encroachment upon the secrecy of telecommunications would result in it failing to achieve its objective, if the notification cannot be made without endangering the life and limb of a person or if the concerns of an affected person which carry more weight conflict with it, for example because the notification of a measure that has had no further consequences would increase the encroachment upon fundamental rights (see BVerfGE 100, 313 (361); 109, 279 (364 et seq.)). If there are compelling reasons which also exclude subsequent notification, this must be judicially confirmed and reviewed at regular intervals (see BVerfGE 109, 279 (367-368)). In a corresponding manner, it is also necessary to structure the duties of notification with regard to the use of the data for purposes of warding off dangers or of intelligence service duties.

245

In contrast, it is not constitutionally required to provide for comparably strict notification duties for persons whose telecommunications traffic data were only by chance collected together with others and who are not themselves the target of the actions of the authority. There may be a large number of such persons involved in the analysis of telecommunications traffic data, but knowledge of their data for a short period of time may not leave traces or have consequences for the persons involved. On the contrary, in an individual case a notification may aggravate the encroachment upon their fundamental rights (see BVerfGE 109, 279 (365); Chamber Decisions of the Federal Constitutional Court (Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK) 9, 62 (81)). In these cases, it is in principle possible for a notification to be withheld even if the persons involved were affected by the measure, but only trivially, and it is to be assumed that they have no interest in the notification. There is no need for judicial confirmation of this decision on the weighing of interests.

246

b) In addition, the proportionate formulation of precautionary storage of telecommunications traffic data and of their use requires that effective legal protection and adequate sanctions are guaranteed.

247

aa) In order to guarantee effective legal protection, a retrieval or transmission of these data must fundamentally be made subject to judicial authority.

248

Under the case-law of the Federal Constitutional Court, in the case of investigation measures which create a serious encroachment upon fundamental rights preemptive supervision by an independent instance may be constitutionally required. This applies in particular if the encroachment upon fundamental rights is made secretly and is not directly perceptible by the person affected (see BVerfGE 120, 274 (331)). This may be the case with regard to the retrieval and transmission of telecommunications traffic data. In view of the weight of the encroachment constituted by this, the discretion of the legislature is reduced insofar as such measures must fundamentally be subjected to judicial authority. Because they are independent from a personal and factual point of view and because they are bound solely by the law, judges can best and most reliably protect the rights of the person affected in the individual case (see BVerfGE 77, 1 (51); 103, 142 (151); 120, 274 (332)). Under Article 10.2 sentence 2 GG, there is an exception for the supervision of encroachments upon the freedom of telecommunications by the intelligence services. Here, a preemptive judicial supervision may be replaced by supervision – equally relating specifically to the measure in question – by an agency or auxiliary agency appointed by parliament (see BVerfGE 30, 1 (21)).

249

The legislature must make provisions defining the requirement of preemptive judicial review in a concrete form with well-defined provisions, and must combine this with strict requirements as to the contents and the grounds on the judicial order (see BVerfGE 109, 279 (358-359)). At the same time, it follows from this that there must be a sufficiently substantiated justification and restriction of the retrieval of the data requested; it is only this that enables the court to exercise effective supervision (see BVerfGE 103, 142 (160-161)). It is only on this basis that the court making the order can and must on its own responsibility form an assessment as to whether the use of the data applied for complies with the statutory requirements. Part of this is a careful review of the requirements of the encroachment, including in particular the threshold of encroachment laid down by statute. The court must justify its order with substantial detail. In addition, the data to be transmitted, in compliance with the principle of proportionality, must be defined sufficiently selectively and clearly (see BVerfGE 103, 142 (151)), in order that the service providers do not have to undertake their own examination of the matter. These service providers may be required and permitted to transmit data only on the basis of clear orders on data transmission.

250

The effectiveness of the supervision also requires that the data, on the basis of the order, must be filtered out by the telecommunications enterprises as third parties with a duty of storage, that is, that the authorities are not given direct access to the data. In this way, the use of the data is referred to the cooperation of a number of actors and thus to decision-making structures which mutually supervise each other.

251

bb) It is also constitutionally required that a legal protection procedure is available to subsequently review the use of the data. Where persons affected had no opportunity before the measure was carried out to defend themselves against the use of their telecommunications traffic data, they must be given the possibility of subsequent judicial review.

252

cc) Finally, a legislative formulation that is not disproportionate also requires effective sanctions for violations of rights. If even serious breaches of the secrecy of telecommunications were ultimately to remain without sanction, with the result that the protection of the right of personality, even in its specific manifestation in Article 10.1 GG, atrophied in view of the intangible nature of this right (see BVerfG, order of the First Chamber of the First Senate of 11 November 2009 – 1 BvR 2853/08 –, juris, marginal no. 21; BGHZ 128, 1 (15)), this would contradict the duty of the state to enable individuals to develop their personality (see BVerfGE 35, 202 (220-221); 63, 131 (142-43)); 96, 56 (64)) and to protect them against third-party threats to the right of personality (see BVerfGE 73, 118 (210); 97, 125 (146); 99, 185 (194-195)); BVerfGK 6, 144 (146)). This might in particular be the case if data obtained without authorisation were permitted to be used without hindrance, or an unauthorised use of the data were routinely to remain without compensation to satisfy the persons affected, for lack of tangible damage.

253

However, in this connection the legislature has a wide legislative discretion. Here, it can in particular consider how far corresponding provisions might be incorporated into the general structure of the law of criminal procedure or into current liability law. In this respect it may also take account of the fact that in the case of serious violations of the right of personality, the current law may already provide both for prohibitions of use on the basis of a weighing of interests (see BVerfGE 34, 238 (248 et seq.); 80, 367 (375-376)); 113, 29 (61); BVerfGK 9, 174 (196); Decisions of the Federal Court of Justice in Criminal Matters – Entscheidungen des Bundesgerichtshofes in Strafsachen (BGHSt) 34, 397 (401); 52, 110 (116)) and for liability for intangible damage (see BVerfGE 34, 269 (282, 285-286); BVerfGK 6, 144 (146-147); BVerfG, order of the First Chamber of the First Senate of 11 November 2009 – 1 BvR 2853/08 –, juris, marginal no. 21; Decisions of the Federal Court of Justice in Civil Matters – Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) 128, 1 (12)). For the decision as to whether more extensive provisions are needed in this connection, the legislature is not prevented by this from initially considering whether case-law on the basis of applicable law possibly takes sufficient account in the constitutionally required manner of the particular severity of the violation of personality which the unauthorised acquisition or use of the data in question here usually constitutes.

254

4. Less stringent constitutional standards apply to a use of the data stored by way of precaution which is only indirect, in the form of official rights to information from the service providers with regard to the owners of particular IP addresses which the service providers are to identify by use of the stored data. The creation of such rights to information is permissible, independent of restrictive lists of legal interests or criminal offences, to a greater extent than the retrieval and use of the telecommunications traffic data themselves.

255

a) When information on the owners of particular IP addresses can only be determined by resorting to telecommunications traffic data stored by way of precaution, it is not constitutionally necessary to satisfy the particularly stringent requirements which otherwise apply to the use of such data.

256

It is important on the one hand for this purpose that the authorities do not themselves acquire any knowledge of the data to be stored by way of precaution. In connection with such rights of information, the authorities do not themselves retrieve the data that have been stored by way of precaution without cause, but are merely given personal information as to the owner of a particular connection, who is determined by the service providers by recourse to these data. In this connection, the informative value of these data is strictly limited. The use of the data stored by way of precaution only provides the information as to what owner was registered on the Internet with regard to an IP address that is already known, for example where the address has been determined by other investigations. The formal structure of such information is similar in certain respects to the retrieval of the name of the owner of a telephone number. Its informational value is limited in range. It is not possible to carry out systematic investigation over a long period of time or to prepare personality profiles and track people’s movements on the basis of such information alone.

257

It is also crucial that for such information only a small section of the data, which is determined in advance, is used; the storage of these particular data in itself could therefore be ordered subject to far less strict requirements. If solely the Internet access data necessary for such information were stored in order to identify dynamic IP addresses, this would be considerably less burdensome than the virtually complete storage of the data of all telecommunications connections. It follows from considering the combination of these aspects that the requirements which otherwise apply to telecommunications traffic data stored for use by way of precaution do not apply in the same way to such information.

258

b) However, creating official rights to information in order to identify IP addresses is also of substantial weight. In doing this, the legislature influences the conditions of communication in the Internet and limits its anonymity. On this basis, in conjunction with the systematic storage of Internet access data, it is possible to a great extent to establish the identity of Internet users. Where private persons who find that they are injured on the Internet register the relevant IP address and make a criminal complaint, or where the authority itself traces IP addresses, these addresses can be connected to specific owners, and the communication processes of this IP address can be attributed to individuals with substantial probability.

259

But despite a certain similarity, attributing an IP address to the owner of a connection cannot be equated to the identification of a telephone number with regard to its weight for the person affected. Telephone numbers are permanent identifiers, which are exchanged between the users, and therefore it is possible to retrieve the details of their owners even independently of specific telecommunications acts. In contrast, information on the owner of a dynamic IP address necessarily also contains the information that this IP address was used at a particular time, and from what connection it was used. In addition, the telephone number may easily be concealed from private persons, whereas the IP address can basically be concealed only by the use of anonymisation services. The potential relevance to the right of personality of a retrieval of the identity of the owner of an IP address is also different from that of the owner of a telephone number. On the mere basis of the large number of new connections which are made in each case by visiting Internet sites, it has more informative value than a retrieval of telephone numbers. The knowledge that contact to an Internet site has been established also has a different substantive meaning: since the contents of Internet sites, unlike the spoken word in telephone conversations, are electronically fixed and can be retrieved again for a long period, they may often reliably be used to reconstruct the subject with which the communicating person was dealing. The connecting of the IP address to an individual as that person’s “Internet telephone number” thus at the same time gives information on the contents of the communication. The distinction between external connection data and contents of a conversation, which applies to a telephone call, is broken down here. If a visitor to a specific Internet site is identified by information via an IP address, not only is it known with whom the visitor had contact, but normally also what were the contents of the contact.

260

Conversely, admittedly, there is also increased interest in the possibility of being able to attribute communication connections in the Internet to the relevant actors, in order to protect legal interests or to safeguard the legal order. In view of the increasing importance of the Internet for the most varied areas and events of everyday life, the danger increases that it will be used for criminal offences and violations of rights of many kinds. In a state under the rule of law, even the Internet may not be a legal vacuum. It is therefore a legitimate concern for the legislature, where relatively serious violations of rights occur, to be able to relate Internet contacts to individuals. To the extent that telecommunications traffic data must be analysed by the service providers in order to give such information in the current technological conditions, in which IP addresses are predominantly allocated only for an individual session (“dynamically”), this therefore encounters no fundamental objections. In addition, in order to guarantee reliable attribution of these addresses for a certain period of time, the legislature may provide for the relevant data to be retained or for comprehensive recourse to be permitted to data retained in this way by the service providers. In this connection, the legislature has legislative discretion.

261

c) Accordingly, the legislature may permit such information, even independently of restrictive lists of legal interests or criminal offences, for the prosecution of criminal offences, for warding off danger and for the intelligence services to carry out their duties, on the basis of general authorisations to encroach provided by specific branches of law. (see Bock, in: Geppert/Piepenbrock/Schütz/Schuster, Beck’scher Kommentar zum TKG , 3rd ed. 2006, § 113 , marginal no. 7; Graulich, in: Arndt/Fetzer/Scherer, TKG , 2008, § 113 , marginal no. 8). Admittedly, with regard to the thresholds of encroachment, it must be ensured that information may not be obtained at random, but only on the basis of a sufficient initial suspicion or of a concrete danger on the basis of facts relating to the individual case. In this connection, the requirement of a concrete danger based on factual evidence applies to the intelligence services just as to all authorities competent to ward off danger to public security and order. The legal and factual basis of such requests for information must be placed on the record. For information of this kind, however, it is not necessary to provide for a requirement of judicial authority.

262

But the substantial weight of the encroachment made by such information does not permit it to be made available generally and without restrictions to prosecute or prevent every regulatory offence whatsoever. For anonymity in the Internet to be lifted, there must at least be an adverse effect on a legal interest, and the legal system must accord particular significance to this adverse effect in other contexts too. This does not completely exclude such information being given to prosecute or prevent regulatory offences. But they must be regulatory offences that are particularly serious – even in the individual case – and they must be expressly named by the legislature.

263

Nor is there any reason to revoke the principle of transparency (see C V 3 above) for the identification of IP addresses. The person affected, who may as a rule assume that he or she is using the Internet anonymously, has, in principle, the right to learn that this anonymity has been removed, and why. Accordingly, the legislature must at all events provide for duties of notification, insofar as and as soon as this does not frustrate the purpose of the information or other predominant interests of third parties or of the persons affected themselves do not conflict with this. Where, in exceptional cases, in accordance with statutory provisions to this effect, there is no notification, the reason for this must be put on record. However, in this case there is no need for judicial confirmation of the failure to notify.

264

5. The constitutionally required guarantee of data security and of a restriction of the use of data, in well-defined Federal provisions, which satisfies the requirements of proportionality, is an inseparable element of legislation creating a duty of data storage, and it is therefore the responsibility of the Federal legislature, which imposes the duty. In contrast, the responsibility for creating the retrieval provisions themselves and for drafting the provisions on transparency and legal protection depends on the legislative competence for the respective subject-matter.

265

a) Under Article 73.1 no. 7 GG, where questions of data security need to be decided in connection with the duty of the service providers to store telecommunications traffic data by way of precaution without cause, this, as an immediate component of the duty of storage and of the consequences legally associated with this, is the responsibility of the Federation. This includes not only the provisions on the security of the stored data, but also the provisions on the security of the transmission of the data, and in this connection the guarantee of protection of confidential relationships (see above C V 1 and C V 2 e).

266

In addition, the Federation must also ensure that there is a sufficiently precise restriction of the purposes of data use served by the storage which satisfies constitutional requirements. The reason for this lies in the indissoluble constitutional connection between data storage and purpose, as is held in established case-law of the Federal Constitutional Court: Data may from the outset be stored only for particular purposes, relating to a specific area, in precise and well-defined provisions, and it is therefore sufficiently guaranteed at the time of storage that the data will be used only for such purposes as justify the weight of the storage. There can be no abstract justification of storage in itself; it can be justified only where it serves sufficiently important and concretely named purposes (see BVerfGE 65, 1 (46); 118, 168 (187-188)). In contrast, it is not permissible to create a data pool in advance, independent of such purposes, whose use is left to later decisions of various state instances, depending on their requirements and political discretion. In such a case, the constitutionality of the storage could not yet be assessed, for lack of sufficiently foreseeable and restricted purposes, at the date of the encroachment constituted by the storage. In addition, its scope would be neither foreseeable to citizens nor restricted in accordance with the principle of proportionality. In the interaction of the Federation and the Länder too, this substantive connection between storage and purpose of use of the data as the crucial link between encroachment and justification may not be severed. The competence to guarantee this link accrues to the Federation under Article 73.1 no. 7 GG by virtue of factual connection (see above C III 2).

267

The provisions to be made by the Federation in this regard in connection with the storage include drafting the qualified requirements for use of the data for the purpose of criminal prosecution, warding off of danger or preventing danger by the intelligence services under the conditions developed above. They also include the necessary provisions to ensure that the further use of the data remains limited to specific purposes, in particular in the form of duties of labelling and recording.

268

b) In contrast, when the Federation passes provisions on the duty of storage, it does not automatically also have the responsibility as to whether and to what extent the data may be resorted to in connection with the purposes to be provided by the Federation. The passing of provisions governing the retrieval of data itself is no longer fundamentally the responsibility of the Federation, but follows the general rules on legislative competence. According to these, the authorisation to retrieve the data cannot be based on Article 73.1 no. 7 GG, but is to be granted in each case on the basis of the rule on jurisdiction which governs the legislation on the tasks for which the data is to be used (see BVerfGE 113, 348 (368); 114, 371 (385)). In the area of warding off danger and of the duties of the intelligence services, the responsibility is thus largely with the Länder . The constitutionally required restriction of the purposes of use must be provided for concurrently with the storage, by reason of the link between encroachment and justification under data protection law; unlike this, not only the authorisation of retrieval, but also the further constitutional requirements of the formulation of the data use, such as in particular the provisions on the notification of the persons affected and the guarantee of effective legal protection, can and must be left to later acts of legislation of the Länder . In this connection, the Länder themselves bear direct responsibility for the constitutionality of these provisions.

VI.

269

The challenged provisions do not satisfy these requirements. Admittedly, the reason why § 113a TKG conflicts with the fundamental right to protection of the secrecy of telecommunications under Article 10.1 GG is not simply that the scope of the duty of storage under §§ 113a.1 to 113a.7, 11 TKG would have to be considered disproportionate from the outset. But the provisions on data security, on the purposes and the transparency of the use of data and on legal protection do not satisfy the constitutional requirements. In consequence, the whole legislation lacks a structure complying with the principle of proportionality. §§ 113a, 113b TKG and § 100g StPO, insofar as the latter permits the retrieval of the data to be stored under § 113a TKG, are therefore incompatible with Article 10.1 GG.

270

1. § 113a TKG is not unconstitutional merely because of its scope. The legislature may deem the duty of storage created by § 113a TKG, which under § 113a.1 to § 113a.7 extends without cause to virtually all traffic data of publicly accessible telecommunications services, to be suitable, necessary and proportionate in the narrow sense to increase the effectiveness of criminal prosecution and the prevention of danger (see above C IV). Despite its scope, the provision is still sufficiently restricted with regard to the extent of the data covered. As § 113.8 TKG expressly states, the contents of telephone conversations, faxes and emails may not be stored, nor may the websites or service providers which a user has contacted on the Internet. In addition, in § 113a.1, 11 TKG the legislature has provided for a period of storage which is still constitutionally acceptable, given a duration of six months and a period of one month for deletion immediately following this. Similarly, at the present time it cannot be determined that the provision, in combination with other provisions, aims at or results in the creation of a general comprehensive data pool for the greatest possible reconstruction of all activities whatsoever of the citizens. In this connection, importance attaches to the application of the principle of data economy, which in other respects pervades data protection law, and to a large number of duties of deletion, with which the legislature fundamentally endeavours to prevent the creation of avoidable data pools. In this connection, the relevant factors for this assessment are in particular, for example, §§ 11 et seq. of the Telemedia Act (Telemediengesetz – TMG), which fundamentally subject services providers under the Telemedia Act to an obligation to delete data which are not necessary for the statement of costs (see § 13.4 no. 2, § 15 TMG) and in this way, against private-sector incentives too prevent the contents of the use of the Internet from being recorded in general commercial data pools and thus remaining reconstructible. § 113a TKG can therefore not be understood as the expression of a general public provision of data for the future for purposes of criminal prosecution and prevention of danger, but despite its breadth remains a limited exception which attempts to take account of the particular challenges of modern telecommunications for criminal prosecution and prevention of danger.

271

2. In contrast, the guarantee of a particularly high standard of security, which is constitutionally necessary for such a data pool, is missing. In this respect, § 113a.10 TKG only provides the duty, which remains undefined, to ensure by technical and organisational measures that access to the stored data is possible solely for persons who are specially authorised, and apart from this refers only to the care which is necessary in general in the area of telecommunications. There is therefore no provision which takes account of the particularly strict standards required of the security of the extensive and informative data pool under § 113a TKG. §§ 88 and 109 TKG, which are referred to with regard to their contents, do not guarantee such a particularly high security standard, but permit a wide range of relative degrees, corresponding to their wide area of application. This applies in particular to § 109 TKG. Thus, for example, under § 109.1 TKG every service provider must take appropriate technical precautions or other measures to protect the secrecy of telecommunications and the telecommunications and data processing systems against unauthorised access. In this connection, in order to determine the appropriateness, § 109.2 sentence 4 TKG is referred to (see Klesczewski, in: Säcker, Berliner Kommentar zum TKG , 2nd ed. 2009, § 109 , marginal no. 12). This provides that the measures are appropriate if the technical effort and economic expense are in an appropriate proportion to the importance of the rights to be protected. Taking as a basis the standards developed above, these do not sufficiently guarantee the specific requirements of the protection of the data stored under § 113a TKG. The standard laid down by statute of “appropriate technical precautions or other measures” merely requires that “account should be taken” of the state of technological development (see § 109.2 sentence 2 TKG; Klesczewski, in: Säcker, Berliner Kommentar zum TKG , 2nd ed. 2009, § 109 , marginal no. 13), and in doing so qualifies the security requirements in a way that remains undefined by introducing general considerations of economic adequacy in the individual case. In addition, putting this standard in more specific terms is left to the individual telecommunications service providers, which in turn have to offer their services subject to the conditions of competition and cost pressure.

272

Nor is it ensured by statutory orders or by orders of the regulatory authorities that these standards are put into specific terms. In particular, § 110 TKG does not guarantee that adequate security standards apply. Admittedly, the delegated legislation to be passed under this statute (see § 110.2 and 3 TKG) may include aspects of data security. However, this statute – which is primarily determined by technical objectives – neither contains substantive standards, nor does it otherwise take up the aspect of data security. Apart from this, even two years after the duty of storage of § 113a TKG entered into force, the Telecommunications Interception Order (Telekommunikationsüberwachungsverordnung – TKÜV) has not been adapted to take account of the reform of the law. Correspondingly, under § 110.3 TKG, the Technical Guideline for the Implementation of Statutory Measures to Monitor Telecommunications and for Requests for Information for Traffic Data (technische Richtlinie zur Umsetzung gesetzlicher Maßnahmen zur Überwachung der Telekommunikation und zum Auskunftsersuchen für Verkehrsdaten – TR-TKÜV) – published in December 2009 under § 110.3 sentence 3 TKG on the website of the Federal Network Agency (see Federal Network Agency, Amtsblatt 2009, p. 4706) – will come into effect only one year after this adaptation (see Inhaltsangabe 1 (Regelungsbereich) TR-TKÜV; Teil B 1 (Grundsätzliches) TR-TKÜV).

273

Nor does § 109.3 TKG guarantee sufficient data security. Admittedly, the statute provides that operators of telecommunications equipment must appoint security officers and prepare a security policy, which must be submitted to the Federal Network Agency. In addition, the policy must be adjusted and resubmitted later if the “circumstances” on which it is based are changed. However, this does not reliably guarantee a particular high security standard. Thus, for example, the provision only applies to equipment operators, but not to all the persons targeted by § 113a TKG, which also applies to other service providers. In addition, § 109.3 TKG refers substantively only to the insufficient requirements of § 109.1 and 109.2 TKG. Nor is a continuing and verifiable adaptation of the security standard to the state of the art in technology guaranteed by well-defined provisions. In this connection, it is not clear whether § 109.3 sentence 4 TKG also requires an adaptation to the technological development of protective measures and to developing legal security standards. At all events, there is no obligation for a periodical updating of the security policy which could enable effective supervision in this respect.

274

Nor can § 9 of the Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG) in conjunction with the relevant schedule compensate for the absence of adequate security standards in the Telecommunications Act. Notwithstanding its high standards, some of which are abstract, this provision, which in any case may only be applied in the alternative (see Fetzer, in: Arndt/Fetzer/Scherer, TKG , 2008, before § 91, marginal no. 10; Klesczewski, in: Säcker, Berliner Kommentar zum TKG , 2nd ed. 2009, § 91 marginal no. 15), is too general to ensure in a sufficiently specific and reliable manner the particularly high security standards with regard to the data to be stored under § 113a TKG.

275

All in all, therefore, there is no guarantee in a binding form and in well-defined provisions of a particularly high security standard for the data to be stored under § 113a TKG. Neither are the instruments cited by the experts in the present proceedings as central elements (separate storage, asymmetric encryption, the four-eyes principle in conjunction with advanced authentication procedures for access to the keys, revision-proof recording of access and deletion) imposed on the persons with a duty of storage in an enforceable manner, nor are other precautions which guarantee a comparable level of security imposed on them. Nor is there a balanced system of sanctions that attributes no less weight to violations of data security than to violations of the duties of storage themselves. The range of administrative fines for non-compliance with the duties of storage is markedly broader than that for the violation of data security (see § 149.2 sentence 1 in conjunction with § 149.1 nos. 36 and 38 TKG). The current legal situation therefore does not satisfy the constitutional requirements of the security of a data pool as is created by § 113a TKG.

276

3. The provisions on transmission and use of the data under § 113b sentence 1 half-sentence 1 TKG do not satisfy the constitutional requirements.

277

a) Firstly, the provisions on the use of the data for criminal prosecution are incompatible with the standards developed from the principle of proportionality.

278

aa) § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO does not satisfy the particularly stringent requirements which must be satisfied for access to the data stored under § 113a TKG to be permitted. Admittedly, in these provisions the legislature has laid down a sophisticated objective of data use for criminal prosecution which is also, pursuant to Article 74.1 no. 1 and Article 72.1, final. Here, however, the legislature permits similar standards to apply for the use of the data as have applied until now for the collection of telecommunications traffic data which the service providers were entitled to store under § 96 TKG depending on their operational and contractual requirements to a more limited extent and in such a way that the individual could in part contract out of this. This does not take sufficient account of the particularly serious encroachment constituted by the systematic precautionary data storage without cause of § 113a TKG.

279

Even § 100g.1 sentence 1 no. 1 StPO does not ensure that in general and also in the individual case only serious criminal offences may be the occasion for collecting the relevant data, but – independently of an exhaustive list – merely generally accepts criminal offences of substantial weight as sufficient. § 100g.1 sentence 1 no. 2, sentence 2 StPO satisfies the constitutional standards even less, in that it accepts every criminal offence committed by means of telecommunications, regardless of its seriousness, as the possible trigger for data retrieval, depending on a general assessment in the course of a review of proportionality. This provision makes the data stored under § 113a TKG usable with regard to virtually all criminal offences. As a result, in view of the increasing importance of telecommunications in everyday life, the use of these data loses its exceptional character. Here, the legislature no longer confines itself to the use of data to prosecute serious criminal offences, but goes far beyond this, and thus also beyond the objective of data storage specified by EU law, which also in turn is restricted to the prosecution of serious criminal offences, without including the prevention of danger. Admittedly, a use of these data can be very useful, especially for the prosecution of criminal offences committed by means of telecommunications, and therefore restricting it may in some cases make their successful investigation more difficult or even impossible. However, it is in the nature of the guarantee of Article 10.1 GG and of the proportionality standards associated with this that not every measure that is useful, and in the individual case may also be necessary, for criminal prosecution is constitutionally permissible. Conversely, as a consequence of the standards that are decisive here, telecommunications do not in their entirety become a legal vacuum, even in the area of less serious criminal offences: the legislature may provide that information under § 113.1 TKG – including information indirectly using the data stored under § 113a TKG – is available for the investigation of all criminal offences (see above C V 4 c). Similarly, as a result of this, recourse under § 100g StPO to telecommunications traffic data stored otherwise than under § 113a TKG remains possible.

280

bb) In addition, § 100g StPO fails to comply with the constitutional requirements in that it fundamentally permits retrieval of data even without the knowledge of the person affected (§ 100g.1 sentence 1 StPO). The constitutional requirements of the transparency of use of data only permit the data stored under § 113a TKG to be collected secretly if this is necessary for reasons carrying more weight which must be more precisely defined by statute, and if it is judicially ordered.

281

cc) Nor does the formulation of the duty of notification in every respect comply with the standards developed above. However, the extent of the duties of notification provided for is not as such open to any constitutional objections. §§ 101.1, 101.4 and 101.5 StPO, in conformity with the case-law of the Federal Constitutional Court (see BVerfGE 109, 279 (363 et seq.)), provides for complex provisions which balance the principle of subsequent notification of the person affected, in a manner which is constitutionally workable, with predominant concerns which exceptionally arise in the individual case. Another aspect which is unobjectionable in this context is the fact that under § 101.4 sentence 4 StPO, persons affected to whom the retrieval of data did not apply are not to be notified in every case, but only in accordance with a weighing of interests. In this weighing of interests, the interests of persons indirectly affected can and must be taken sufficiently into account.

282

In contrast, the provisions on judicial review for cases in which a notification may be omitted are inadequate. § 101.6 StPO provides for judicial review only when notification is deferred under § 101.5 StPO, but not when there is no notification, under § 101.4 StPO. This does not take sufficient account of the high value of the notification for transparent use of the data stored under § 113a TKG. Where data retrieval relates directly to traffic data of a specific person, that person absolutely must be subsequently notified unless there is a judicial review of the relevant grounds for an exception. Such a judicial review is missing in the cases in which there is to be no notification under § 101.4 sentence 3 StPO by reason of predominant concerns of a person affected.

283

dd) In contrast, the judicial review of data retrieval and data use is itself guaranteed in a manner that complies with constitutional requirements. Under § 100g.2 sentence 1, § 100b.1 sentence 1 StPO, the collection of the data stored under § 113a TKG requires a judicial order. Nor does the judicial order authorise the authorities to have direct access to the data; instead, it obliges the service providers to filter them out and transmit them, in a separate intermediate process in compliance with the order. In addition, under § 101.1, 101.7 sentences 2 to 4 StPO there is the possibility subsequently to arrange a judicial review of the lawfulness of the measure. It is not apparent that these provisions do not, as a whole, guarantee effective legal protection.

284

However, the statutory provisions on the formal requirements of the judicial order are not formulated in sufficiently well-defined provisions. § 100g.2 in conjunction with § 100b.2 StPO merely lays down the minimum requirements of the operative part of the order; apart from this, the general obligation to give reasons for a decision applies to decisions under § 34 StPO. In revising the legislation, the legislature should consider whether it would be appropriate to emphasise the strict requirements of a substantiated justification of judicial orders (see BVerfGE 103, 142 (151); 107, 299 (325); 109, 279 (358-359)) by way of a special and tailor-made provision. At all events, it must be ensured by statute that the extent of the data to be transmitted is described in the judicial order sufficiently selectively and unambiguously for the service providers, in a manner that satisfies the principle of proportionality.

285

b) The challenged provisions also fail to satisfy the constitutional requirements with regard to the retrieval and use of the data stored under § 113a TKG for warding off danger and for the tasks of the intelligence services. The very structure of § 113b sentence 1 nos. 2 and 3 TKG does not satisfy the requirements of sufficient limitation of the purposes of use. In this provision, the Federal legislature contents itself with sketching in a merely general manner the fields of duty for which data retrieval is to be possible, without stating the purposes of use in concrete terms. Instead, it leaves the purposes of use to be defined in concrete terms by later legislation, including in particular Länder legislation. In this way the Federal legislature does not satisfy its responsibility for the constitutionally required limitation of the purposes of use. If it orders that telecommunications traffic data are to be stored, it is at the same time obliged to lay down additionally in a binding form the purposes of use and thresholds of encroachment that are necessary to constitutionally justify the storage, and to bindingly lay down the consequential provisions that are necessary to guarantee that the use is limited to specific purposes. § 113b half-sentence 1 TKG contains no such provisions. Instead, because the service providers have a duty of precautionary storage of all telecommunications traffic data, and at the same time these data are released to be used by the police and the intelligence services as part of almost all their tasks, a data pool is created open to manifold and unlimited uses to which – restricted only by broad objectives – recourse may be had, in each case on the basis of decisions of the Federal and Länder legislatures. The supply of such a data pool with an open purpose removes the necessary connection between storage and purpose of storage and is incompatible with the constitution (see above C V 5 a).

286

In contrast, there is no objection to the fact that § 113b TKG contains no comprehensive provisions on duties of notification or on judicial review for the case where data stored under § 113a TKG are used to the purposes of warding off danger and of the carrying out of their duties by the intelligence services. Admittedly, such provisions are constitutionally essential. However, the Federal legislature was entitled to leave these provisions connected with the retrieval of the data to be formulated in each case by the specialised legislation and thus, where appropriate, also by Land legislation.

287

c) Another aspect under which the formulation of the use of data stored under § 113a TKG is disproportionate is that there is no protection whatsoever of confidential relationships with regard to the transmission. At least for a narrowly defined group of telecommunications connections which rely on particular confidentiality, such a protection is fundamentally required (see above C V 2 e, at the end).

288

4. Finally, § 113b sentence 1 half-sentence 2 TKG, which provides for an indirect use of the data stored under § 113a TKG for information of the service providers under § 113.1 TKG, also does not satisfy the requirements of proportionality in every respect.

289

By the standards developed above, however, there are no constitutional objections to the fact that in § 113b sentence 1 half-sentence 2 TKG the legislature does not subject information on the owners of particular IP addresses already known to the authorities to the particularly stringent requirements which have to be satisfied for a direct retrieval of the data stored under § 113a TKG. It is therefore unobjectionable that under § 113b sentence 1 half-sentence 2 TKG in conjunction with § 113.1 TKG such information is permissible, without a prior judicial order, for the prosecution of criminal offences of every kind and in general for the tasks of warding off danger and of the intelligence services. However, the provision is not quite unambiguous with regard to the necessary encroachment thresholds. But when it is interpreted in conformity with the Basic Law, it can be understood to the effect that § 113.1 TKG refers to the relevant bases for encroachment in the specialised legislation, and that for access to the data it requires at least sufficient probable cause under §§ 161, 163 StPO or a concrete danger within the meaning of the blanket clauses in Länder police law (see Bock, in: Geppert/Piepenbrock/Schütz/Schuster, Beck’scher Kommentar zum TKG , 3rd ed. 2006, § 113 , marginal no. 7; Graulich, in: Arndt/Fetzer/Scherer, TKG , 2008, § 113 , marginal no. 8). For information requests by the intelligence services too, the encroachment threshold of the concrete danger must be derived from the provision, interpreted in conformity with the Basic Law.

290

Any abuse of the provision to circumvent § 100g StPO may also be countered by the way of interpretation in conformity with the Basic Law. Understood in the sense of the Basic Law, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG does not authorise open retrieval by the authorities of the names of owners whose telecommunications connections are not known to them. Instead, corresponding to its objective as expressed in the legislature’s statement of intention, it permits only information on individual IP addresses already known to the authorities (see Bundestag printed matter 16/6979, p. 46). In the necessary reform of the law, the legislature may review whether it finds occasion to clarify this by statute. In this connection, however, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is not found to be unconstitutional.

291

Nevertheless, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is too broad from the aspect of proportionality in that in general it regards the punishment of regulatory offences too as sufficient to justify such retrieval. Admittedly, under the standards developed above, the legislature is not as a matter of principle prevented from employing such information even in the field of regulatory offences in particularly important cases (see above C V 4 c). However, this requires special well-defined provisions, which are lacking in the present statute. In addition, § 113b sentence 1 half-sentence 2 in conjunction with § 113.1 TKG is also unconstitutional in that there are no provisions for notification of the persons affected. Under § 113.1 sentence 4 TKG, the persons with a duty to give information must observe secrecy towards the persons affected, and there is also no guarantee that the authorities seeking information will be notified. This does not satisfy the constitutional requirements of transparent use of the data stored under § 113a TKG (see above C V 3 a).

292

5. In summary, neither the framework established by law for data security nor the provisions on the use of data under § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO, § 113b sentences 1 nos. 2 and 3 TKG and § 113b sentence 1 half-sentence 2 TKG satisfy the constitutional requirements. Consequently, the duty of storage under § 113a TKG itself also lacks a constitutionally workable justification. The challenged provisions are therefore in their totality incompatible with Article 10.1 GG.

VII.

293

In contrast, the challenged provisions do not give rise to any constitutional objections with regard to Article 12.1 GG, to the extent that a decision has to be made in these proceedings in this respect. The occupational freedom of the fourth complainant in the proceedings 1 BvR 256/08 is not violated by the challenged provisions and the associated financial burden.

294

1. However, the imposition of duties of storage which affect the complainant at least insofar as it itself operates a publicly accessible anonymisation service, is an encroachment upon its occupational freedom. As the commercial supplier of an anonymisation service, it may invoke occupational freedom under Article 12.1 GG. In addition, the provision has an objective tendency to regulate an occupation or profession. The duties of storage are addressed to such service providers as generally offer publicly accessible telecommunications services for end users in return for payment (see § 113a.1, § 3 no. 24 TKG) and therefore to service providers which at all events typically offer the services for commercial purposes.

295

The encroachment is the regulation of the practice of an occupation or a profession. § 113a TKG provides for a duty of storage, and in § 113b sentence 1 half-sentence 1 TKG for a duty of transmission; these duties are presented as technical requirements for the provision of telecommunications services. In contrast, when it is submitted that the duty of storage has the effect of the regulation of a choice of occupation on anonymisation services because it is no longer possible to offer absolute anonymisation, this is mistaken. It is true that the regulation of a choice of occupation comes into consideration not only when access to an occupation or profession is legally restricted, but also when the meaningful exercise of an occupation or profession is effectively made impossible (see BVerfGE 30, 292 (313)). However, the duty of storage under § 113a.6 TKG does not result in it being fundamentally no longer possible to operate anonymisation services. The anonymisation services may continue to offer their users the possibility of surfing the Internet without the possibility of their IP addresses becoming known to private persons. In this way they make it possible for users who have a static (and therefore open) IP address to conceal their identity, and they protect other users against hackers or other illegal access. The anonymity is only lifted vis-à-vis the state authorities, and here only if a retrieval of data is exceptionally permitted under the narrow requirements for the direct use of the traffic data stored under § 113a. This therefore only deters customers whose interest in anonymisation is directed towards the authorities which conduct investigations in particularly serious cases. This does not vitiate the offer of an anonymisation service in its entirety.

296

2. The encroachment created by the imposition of the duties of storage is constitutionally justified. It is not disproportionate, either with regard to the technical effort or with regard to the associated financial burdens.

297

Encroachments upon the freedom to practise an occupation or a profession must be justified by sufficient reasons of the public interest (see BVerfGE 94, 372 (390); 101, 331 (347); 121, 317 (346)). Here, in principle, rational reasons of general welfare are sufficient (see BVerfGE 7, 377 (405-406); 16, 286 (297); 81, 156 (189); established case-law). Here too the requirements of the principle of proportionality apply, that is, the encroachment must be suitable to achieve the objective of the encroachment, necessary and proportionate in the narrow sense. These requirements are satisfied in the present case.

298

a) The duties of storage and transmission are also justified with regard to the encroachment upon occupational freedom by the objective of increasing the effectiveness of criminal prosecution, of warding off danger and of the duties of the secret services. They are thus based on rational reasons of general welfare, which they are suitable to promote. A less encroaching provision that is as effective and is cost-effective for the state is not apparent. Since the privatisation of the telecommunications sector, telecommunications traffic data are no longer collected by the state, and therefore the state itself is not in the position to store data directly. A transmission of all connection data to the state in order that the state itself stores them is out of the question, in the first instance because of the risks entailed both for the protection of telecommunications secrecy and for the security and completeness of the data. In addition, when there are adverse effects on an occupation as the result of the imposition of cost burdens or costly obligations, the necessity does not cease to apply simply because financing the relevant task from public funds would be a more lenient means for those affected (see BVerfGE 81, 156 (193-194); 109, 64 (86)). More lenient means are not those which merely shift a cost burden (see BVerfGE 103, 172 (183-184); 109, 64 (86)).

299

b) The imposition of a duty of storage is not typically excessively burdensome for the service providers affected.

300

aa) The duty of storage does not cross the boundary of permissibility by reason of the technical effort it requires from the service providers. Since the service providers in question are actors on the telecommunications market, they must in any case display a high degree of mastery of technology in the area of the collection, storage and processing of telecommunications data. Even small enterprises in this sector must have these abilities. In addition, at all events a large part of the data to be stored under § 113a TKG are in any case temporarily stored by the relevant telecommunications enterprises for their own purposes. Exacting organisational requirements for the guarantee of data security do not arise merely from the duty of storage of § 113a TKG, but independently of this from the subject matter of the services offered by the relevant enterprises. In this respect, the imposition of the specific duties under § 113a TKG is not disproportionate from a technical and organisational point of view.

301

bb) Nor is the duty of storage disproportionate with regard to the financial burdens incurred by the enterprises as a result of the duty of storage under § 113a TKG and the duties consequential on this, such as the guarantee of data security. In particular, this is not unreasonable because as a result private enterprises would impermissibly be entrusted with state functions. A categorical separation of “state functions” and “private functions”, with the result that it would be impermissible to commission private persons for the purposes of public interest at their own cost, cannot be derived from the Basic Law. On the contrary, the legislature has a broad discretion as to what duties to ensure public interests it will impose on private persons in their work (see BVerfGE 109, 64 (85)). In principle, it may impose burdens and measures to safeguard public interests for which legislation is necessary as a result of commercial activities on the relevant actors in the market, in order in this way to integrate the associated costs in the market and the market price. Here, the legislature is not restricted to engaging private persons only if their occupation may directly cause dangers or if they are directly liable for these dangers. Instead, it is sufficient in this connection if there is a close relationship in subject-matter and in terms of responsibility between the person’s occupation and the duty imposed (see BVerfGE 95, 173 (187)).

302

There are therefore no fundamental objections to the cost burdens incurred by the persons with a duty of storage. In this way, the legislature shifts the costs associated with the storage as a whole onto the market, corresponding to the privatisation of the telecommunications sector. Just as the telecommunications enterprises can use the new opportunities of telecommunications technology to make profits, they must also assume the costs of containing the new security risks that are associated with telecommunications and must include them in their prices. The duties imposed on the enterprises are closely connected to the services rendered by them and can as such only be performed by themselves. In addition, it is not the case here that special sacrifices are imposed on individual service providers, but instead the basic conditions of the provision of telecommunications services are structured in a general way. It is thus constitutionally unobjectionable if the enterprises then also in principle bear the costs incurred by this. Reimbursement is not required to be provided merely because the objective relates to the public interest (see BVerfGE 30, 292 (311)). A statute which governs the practice of an occupation in such a way that it imposes duties on private persons in the exercise of their occupation and in doing so normally affects a large number of persons is not disproportionate simply because it unreasonably burdens individual persons affected, but only if it violates the prohibition of disproportionate measures for a large group of persons affected (see BVerfGE 30, 292 (316)). As to the suggestion that the cost burdens arising in this manner have suffocating effects, this has neither been submitted with substantiation nor is it apparent.

303

It is therefore not necessary to review further whether with regard to particular groups of cases (see BVerfGE 30, 292 (327)) or special situations hardship provisions are necessary from the point of view of proportionality. For at all events the submissions of the fourth complainant in the proceedings 1 BvR 256/08 do not support this in any way. In particular, with regard to anonymisation services, the fourth complainant did not provide evidence of a burden exceeding that of the other telecommunications enterprises either for itself or for other providers of such services in a sufficiently comprehensible manner supported by specific figures. But it is only if this were done that it could be established that the scope of legislative discretion was exceeded when the anonymisation services were engaged. As long as the legislature’s assessment is called into question only by assumptions and allegations, the Federal Constitutional Court cannot pursue this question (see BVerfGE 114, 196 (248)).

304

Nor is the duty of transmission under § 113b sentence 1 no. 1 TKG in conjunction with § 100g StPO subject to any fundamental objections with regard to possible remaining cost burdens; the legislature has provided provisions on compensation in this connection (see § 23.1 Court Payment and Reimbursement Act (Justizvergütungs- und -entschädigungsgesetz – JVEG). the claims for reimbursement here provided are not the subject of the present proceedings.

VIII.

305

Apart from this there are also no more extensive requirements of the challenged provisions arising from the fundamental rights, insofar as the violation of those rights has been permissibly challenged.

IX.

306

The violation of the fundamental right to protection of the secrecy of telecommunications under Article 10.1 GG makes §§ 113a and 113b TKG void, as it does § 100g.1 sentence 1 StPO insofar as traffic data under § 113a TKG may be collected under this provision. The challenged norms are therefore to be declared void, their violation of fundamental rights having been established (see § 95.1 sentence 1 and § 95.3 sentence 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). Accordingly, the telecommunications traffic data collected by the service providers under requests for information on the basis of the temporary injunction of 11 March 2008 and 28 October 2008 but provisionally not transmitted to the requesting authorities, which are stored, must be deleted without delay. They may not now be transmitted to the requesting agencies.

307

The decision on the reimbursement of expenses is based on § 34a.2 of the Federal Constitutional Court Act.

308

With regard to the questions of European law, the formal constitutionality and the fundamental compatibility with the Basic Law of the precautionary storage of telecommunications traffic data, the decision is unanimous. With regard to the assessment of §§ 113a and 113b TKG as unconstitutional, it was passed by seven votes to one as regards its result, and with regard to further questions of substantive law it was passed by six votes to two, to the extent shown in the dissenting opinions.

309

The Senate decided by four votes to four that the provisions are to be declared void under § 95.3 sentence 1 of the Federal Constitutional Court Act, and not merely incompatible with the Basic Law. Accordingly, it is not possible for the provisions to continue in effect in a restricted scope; instead, the statutory consequence is an annulment.

PapierHohmann-DennhardtBryde
GaierEichbergerSchluckebier
KirchhofMasing

Dissenting opinion of Justice Schluckebier

to the judgment of the First Senate of 2 March 2010

– 1 BvR 256/08 –

– 1 BvR 263/08 –

– 1 BvR 586/08 –

310

Due to the considerations outlined below, I cannot agree with the decision as regards its result and large parts of its reasoning.

311

The Senate holds that the storage of the traffic data has the effect of a particularly serious encroachment upon the fundamental right under Article 10 GG. In my view, particular weight must indeed be attributed to such an encroachment; as compared to content-related surveillance measures, however, it proves to be considerably less serious (on this, see I.). In view of the objectives pursued by the legislature, in particular the investigation of criminal offences that even in an individual case are of substantial importance or have been committed by means of telecommunications but are difficult to investigate, I furthermore regard the encroachment caused by the storage of the traffic data and by the provisions on access under the law of criminal procedure as fundamentally justified under constitutional law. In my view, the provisions on which the encroachment is based essentially stand up to a review of proportionality in the narrow sense, and especially to a review of appropriateness and reasonableness (on this, see II.). Merely the requirements in terms of content placed on the guarantee of the data security of the telecommunications traffic data to be stored and transmitted are excluded from this; in this respect, I concur with the majority of the Senate, without taking up this aspect again in the following. As regards the pronouncement of the legal consequences, the challenged provisions should, on the basis of the Senate majority’s evaluation, not have been declared void in my view; in accordance with the temporary injunctions issued by the Senate, they should have been regarded as applicable until the adoption of new provisions (on this, see III.).

I.

312

The majority of the Senate considers the storage of the traffic data by the service providers for a period of six months as a particularly serious encroachment upon the fundamental right of Article 10.1 GG. I do not agree with this weighting.

313

The secrecy of telecommunications protects the contents and the circumstances of the act of communication against state authority gaining knowledge of them (see BVerfGE 100, 313 (358); 106, 28 (37); 107, 299 (312-313)). If the private service providers’ obligation to store data (§ 113a TKG) is ascribed the nature of an encroachment because the service providers are “helpers of the state” and the storage must therefore be attributed to the state, the circumstance that before a possible access by state agencies, the data exclusively remain in the sphere of the private service providers attains special importance for the assessment of the intensity of the encroachment. The data are in the hands of the party to the contract on which those who make use of the services place the fundamental confidence, which must be assumed where contracts of this kind are concluded, that this party will treat the data that arise for operational reasons and for billing with strict confidence and guarantee their protection. If, furthermore, an appropriate, state-of-the-art level of data security is guaranteed, there is thus also no objectifiable basis for the assumption that the citizen could feel intimidated as a result of the storage, which would increase the intensity of the encroachment, or, in the words of the judgment, of a “sense of being permanently monitored” and of a “diffuse sense of threat”. Moreover, storage does not take place secretly but on the basis of a law that has been made public. The object of the storage is not the contents of acts of telecommunication. Insofar as the traffic data, to a limited extent, also permit conclusions regarding such contents or even make it possible to track people’s movements or to create social profiles, this concerns the issue of the proportionality of the corresponding provisions on access and of the compliance with the requirements of proportionality on the level of the application of the law. The fact that such uses, which can constitute an intensive encroachment in individual cases, are possible if sufficiently weighty reasons exist does not justify attaching to such uses, which in an overall assessment prove to be exceptional cases, decisive importance in the weighting of the storage and to unrestrictedly base the weighting on them.

314

In its judgment of 12 March 2003 (BVerfGE 107, 299 (322)) on the delivery of telecommunications connection data which referred to telephone calls, the Senate already emphasised that the weight of the encroachment – in that case, of the encroachment caused by the data retrieval – was minor than that of telephone surveillance related to the contents of communication but that it was nevertheless high. It is true that the circumstances of the present case are special as regards the far-reaching effects and the precautionary character of the obligation to store data. However, when the encroachment is weighted, a perceptible distance must be observed to particularly serious encroachments such as those that occur in the acoustic surveillance of living quarters, in the online search of IT systems, but also in the monitoring of the contents of telecommunications and their evaluation by the direct access of state bodies ; in the case of these encroachments, there is a particular risk that the core area of private life, which enjoys absolute protection, is affected, something which is not the case with the encroachments dealt with here. However, from the perspective of the individual subject of fundamental rights who is affected, the collection of the traffic data of all telecommunications contacts by the private service providers without state authority gaining knowledge of them, and the possibility of their retrieval, which is provided separately under strict substantive preconditions, retrieval which, as a general rule, is revised, on the level of the application of the law, by the judge ordering the storage and is strictly limited, and takes place under procedural safeguards such as the ones provided for data collection pursuant to § 100g StPO, do not constitute an encroachment upon fundamental rights encroachment which is of such weight that it would be justified to classify it as “particularly serious” and thus as one of the greatest encroachments on the fundamental right which are imaginable. What remains, accordingly, is an encroachment due to the storage by the private service provider which can be characterised as particularly weighty. This differentiation attains its ulterior significance with regard to the review of the appropriateness of the challenged provisions.

II.

315

In derogation of the Senate majority’s assessment, the challenged provisions on the duty to store traffic data and to collect them for purposes of the prosecution of criminal offences are not inappropriate, and they are reasonable for the persons affected and thus proportionate in the narrow sense.

316

1. The provisions take sufficient account of the precept of appropriateness and of reasonableness as a result of the principle of proportionality. On the basis of an overall weighing of the seriousness of the encroachment upon Article 10.1 GG and the weight of the reasons that justify it, it becomes apparent that the legislature has respected the limits resulting from this precept.

317

The precept of proportionality in the narrow sense requires that in an overall assessment, the seriousness of the encroachment may not be out of proportion to the weight of the reasons justifying it (see BVerfGE 90, 145 (173); 92, 277 (327); 109, 279 (349 et seq.); 115, 320 (345)). In the conflicting relationship between the state’s duty to protect legal interests and the individuals’ interest in the safeguarding of their rights guaranteed by the constitution, it is the initial task of the legislature to proceed in an abstract manner and achieve a balance between the conflicting interests (see BVerfGE 109, 279 (350); 115, 320 (346)). In doing this, it has latitude for assessment and drafting, something the majority of the Senate also essentially assumes according to its choice of terminology.

318

When assessing the appropriateness of the provision under constitutional law, one has to consider, as a starting point, that the fundamental rights are not confined to warding off state encroachment. Due to their objective-law dimension, the duty of the state to protect the citizens from their rights being infringed results from them. This duty to protect includes the duty to take suitable measures in order to prevent injury to legal interests or to investigate such injury if necessary, to attribute responsibility for injuries to legal interests and to restore legal peace (see Jutta Limbach, Anwaltsblatt – AnwBl 2002, p. 454). In this sense, guaranteeing the protection of citizens and of their fundamental rights and the foundations of the community, and the prevention and investigation of serious criminal offences, are all among the requirements for peaceful coexistence and the citizens’ untroubled enjoyment of their fundamental rights. The effective investigation of crimes and effective warding off of danger are therefore not in themselves a threat to the freedom of citizens; they are however, impermissible without any restraints and limits. They are indicated within the bounds of what is appropriate and reasonable in order to secure that inter alia the fundamental rights are made use of and in order to protect the individual’s legal interests. In the state under the rule of law, the citizen must be able to rely on effective protection by the state just as much as on protection against the state (see Di Fabio, Neue Juristische Wochenschrift 2008, p. 421 (422)). Accordingly, the Federal Constitutional Court has described that state as power guaranteeing peace and stability under the constitution (verfasste Friedens- und Ordnungsmacht ) and has recognised the security of its citizens, which it must guarantee, as a constitutional value that is of equal rank with other such values and is indispensable because the state as an institution derives its justification inter alia from it (see BVerfGE 49, 24 (56-57); 115, 320 (346)).

319

As regards the balancing of the conflicting interests by the legislature, which must create the legal foundations for the investigation of criminal offences and for warding off danger, it must furthermore be taken into account that it is reasonable to expect the individuals, as regards their relation and their commitment to the community, to tolerate certain impairments which serve the protection of other citizens’ legal interests and fundamental rights, but also the individuals’ own protection (see BVerfGE 4, 7 (15); 33, 303 (334); 50, 166 (175)). Also with a view to this, the legislature must be granted discretion for the balancing which is its duty, so that it can protect, on the one hand, the liberty rights of the subjects of fundamental rights, while creating, on the other hand, the legal framework conditions which make it possible to ensure an effective legal protection of the citizen’s legal interests and fundamental rights against injury, and to investigate criminal offences, with appropriate and reasonable means.

320

2. In establishing the duty to store telecommunications traffic data for a period of six months, a provision as to the purpose of use and a criminal-procedure provision for collection of data, the legislature has remained within the legislative limits accorded to it under the constitution. With a view to the fundamental rights and legal interests to be protected, the impairment of the telecommunication participants affected by the storage of traffic data is not inappropriate and unreasonable; on the other side of the balance which must be found are the legislative weighting of the protection of the legal interests of individuals and of the general public which are injured by criminal offences and the warding off of dangers in this respect in an age of a very far-reaching expansion of the possibilities of electronic communication, which often leaves little or no trace. This view is basically held by the majority of the Senate as well; however, it only takes this aspect into account when evaluating the question of the suitability and necessity of the provisions without explicitly integrating it into a review of appropriateness which really sees the interests affected “in relation to each other”.

321

a) The latitude for drafting which the legislature primarily has when establishing a balance, in an abstract manner, between the legal and other interests in the conflicting relationship of “freedom and security” (see BVerfGE 109, 279 (350); 115, 320 (346)) is also influenced by the special character of the subject-matters which are to be regulated, and by the reality to which the provision must do justice. Therefore, the purpose and the effectiveness of the provisions must also be taken into account when assessing appropriateness and reasonableness.

322

Through the Act for the Amendment of Telecommunications Surveillance and Other Measures of Undercover Investigation and for the Implementation of Directive 2006/24/EC, the legislature fundamentally changed the system of the methods of undercover investigation under the law of criminal procedure. In doing so, it proceeded with great care, relying on expert opinions requested by it, on an extensive discussion among legal scholars, and also on empirical reports from the public prosecution authorities and police authorities (see Bill, Bundestag printed paper 16/5846, p. 1). Detailed hearings of experts took place in the parliamentary procedure (see the records of the 73rd and 74th meeting of the German Bundestag’s Committee on Legal Affairs, 16th electoral term, on 19 and 21 September 2007). Moreover, it was intended to implement the Federal Constitutional Court’s case-law existing to date. Finally, the Act was approved by a very broad majority (see Minutes of plenary proceedings of the German Bundestag, 16th electoral term, 124th session on 9 November 2007, p. 13009 (D); see also the speech by Federal Minister of Justice Brigitte Zypries introducing the bill, loc. cit. , Minutes of plenary proceedings pp. 12994-12995). The legislature intended to take new technical developments into consideration because it considered precisely the measures at issue here particularly effective in the investigation especially of crime that is difficult to investigate, of transaction crime, white-collar crime and criminal offences committed using modern communication technologies (see Bill, Bundestag printed paper 16/5846, p. 2). Furthermore, it was [the legislature’s] declared goal to take account of the irrefutable needs of an effective, constitutional administration of criminal justice, whose task it is to achieve justice and legal peace within the limits that are set to it. This goal cannot be achieved unless the facts necessary for the investigation can be ascertained (loc. cit. , p. 22). In this connection, the legislature assumed that telecommunications traffic data above all, because of the technical development towards more flat-rate connections – and unlike in the past, when especially call data regarding telephony were available for many months –are either not stored at all or are deleted before a judge’s order for the issuing of information can be obtained, or even before the information necessary for an application for such an order has been ascertained (loc. cit. , p. 27). Apart from this, it is generally known that criminal offences are committed on and through the Internet itself. Reality in society, which includes the existence of crime, is reflected also in this context in the different branches of telecommunication. If the legislature reacts on this, but if what is necessary according to its assessment is only possible in an efficient manner if the corresponding traffic data are subject to an obligation of storage for a certain period of time which the legislature imposes on the service providers, this is essentially not inappropriate, and it is reasonable for the subjects of fundamental rights whose data are concerned. Such provision exists in other areas of the legal system as well, for example, without this being directly comparable, in the field of the obligations of residents to register or as regards the retention of what is known as master account data by the banks (on this see § 24c of the Banking Act (Kreditwesengesetz – KWG); BVerfGE 118, 168).

323

The activity report 2008/2009 of the Federal Network Agency, which shows the development of the number of different types of access to voice and other data communication in recent years, confirms in a certain way that the approach chosen by the legislature is not unbalanced. The report impressively proves the enormous rates of increase of lines but above all of the volumes of speech and data exchanged in the network. It proves that a fundamental change of the communicative behaviour of people has taken place in recent years (see loc. cit., for example p. 38 on digital subscriber lines, p. 50 on the subscriber development in mobile telephone networks, p. 53 on the speech volume in mobile telephone communication and the rates of increase in flat rate billing, p. 59 on the volume of traffic via broadband lines).

324

Under these circumstances, the legislature, in order to protect the legal interests of the victims of criminal offences, essentially cannot be denied taking the effectiveness of the means provided by it into consideration and to adapt to the changed situation also by obliging the service providers to store and retain traffic data in their sphere for a certain period of time. In this context, the state bodies’ keeping pace with technical progress cannot merely be seen as something which rounds off the arsenal of methods of criminal investigation in a sensible manner, and which complements conventional investigation methods that remain effective; instead, it must be seen against the backdrop of the shift of conventional forms of communication towards electronic information traffic including its subsequent digital processing and storage. For the effective prosecution of criminal offences and warding off of danger not only in the area of serious crime but also for the investigation of criminal offences that even in an individual case are of substantial importance or have been committed by means of telecommunications but are difficult to investigate without access to traffic data, the availability of the traffic data for a period of six months is, according to the legislature’s unobjectionable assessment, of great importance (see BVerfGE 115, 166 (192 et seq.); see also BVerfG, First Chamber of the Second Senate, order of 22 August 2006 – 2 BvR 1345/03 –, Neue Juristische Wochenschrift 2007, p. 351 (355)).

325

Accordingly, also the majority of the Senate acknowledges that the increased use of electronic or digital means of communication and their invading virtually all areas of life makes the prosecution of criminal offences and also the warding off of danger more difficult and that modern communications technologies are increasingly used in connection with a wide variety of crimes and that they contribute to also making criminal acts more effective. In the review of proportionality in the narrow sense it does not attach this development the weight that is necessary in my view.

326

b) What is more, as regards the practical result, the majority of the Senate virtually completely restricts the legislature’s latitude for assessment and drafting, which would permit it to pass appropriate and reasonable provisions in the field of the investigation of crimes and the warding off of danger for the protection of the population. In this way it also fails to take sufficient account of the requirement of judicial self-restraint with regard to conceptual decisions of the democratically legitimated legislature. It prescribes the legislature the details of a statutory regulation in the manner of an instruction to act which leaves virtually no room for a solution that, according to the legislature’s assessment, takes account of the existing circumstances in the area of telecommunications and the change that they have undergone.

327

The judgment finds that a storage duration of six months – that is, the minimum period called for by the EC Directive – is at the upper limit and at best capable of being constitutionally justified; it dictates to the legislature the technical rule that the provision on the purpose of use must at the same time contain the requirements for access, restricts the legislature to providing for lists of offences in criminal law, excludes the possibility of using the traffic data even to solve criminal offences that are difficult to investigate and were committed by use of the means of telecommunications, and extends the duties of notification in a specific manner. Following this, the legislature no longer has an appreciable discretion to legislate on its own political responsibility. It is essentially restricted to slightly adapting and modifying peripheral sectors of the list of criminal offences which justify data retrieval under the law of criminal procedure. It must implement the judgment unless it intends to refrain from passing a new provision, which would be contrary to Community law. Thus the judgment, as regards its practical result, substitutes legislation in that it even prescribes the details of a provision which the Senate regards as the only one that is constitutionally permissible.

328

3. The majority of the Senate demands that the legislature, when determining the purpose of use of the data, has to achieve clarity about the requirements for access and about procedural safeguard requirements. By doing so, it deprives the legislature of the possibility of operating, as regards the technical rules, with a system of complementary legal foundations, something which has not been objected to as yet in other areas. In what is known as its master account data decision, for example, the Senate has not found it constitutionally objectionable that the retrieval must be necessary to perform statutory duties which are provided elsewhere, that the cause of and the requirements for retrieval are, however, determined in a different Act (see BVerfGE 118, 168 (191)). However, in its decision on what is known as automatic number plate recognition, the Senate regarded the indications concerning the purpose of use as insufficient; the challenged Act did not make a statement on the purpose of use, thus including all conceivable purposes of use (see BVerfGE 120, 378 (409)). This, however, is different here (§ 113b TKG). It therefore benefits precisely the clarity of statutory provisions if the legal preconditions and provisos which result in the considerable intensification of the encroachment by the retrieval of the data are provided for in an area-specific manner in independent systems of provisions that relate to the respective legal area. As a matter of course, both provisions are subject to the constitutional requirements and constitutional review, if necessary, even as regards their interaction. Even if in relation to a Land legislature, the Federal legislature bears the responsibility of the storage of the traffic data, a possible provision under Land law which complements it must also comply with the constitution. Thus, no deficiency can occur as results legal protection.

329

Accordingly, there was no reason here to also deal, apart from the criminal-law provision on access under § 100g StPO, which was challenged in part by the constitutional complaints, with the details of the requirements of the use of the traffic data for warding off danger and for intelligence-service purposes.

330

4. Finally, the Senate refuses the legislature the right to retrieve the traffic data to investigate criminal offences that are not contained in the present list under § 100a.2 StPO but that are nevertheless of substantial importance in the individual case, and offences that are committed by means of telecommunications (§ 100g.1 sentence 1 nos. 1 and 2 StPO). In doing so, it also does not give due account to the weight of the possible offences and – to the extent that the legislature has considered them difficult to investigate – to the importance of the data for an effective investigation of criminal offences. With regard to no. 1 of § 100g.1 sentence 1 StPO, the legislature was guided by criteria which the Senate approved in its judgment of 12 March 2003 (BVerfGE 107, 299 (322)) on the release of telecommunications connection data. The Senate emphasised there that such encroachment is only justified with criminal offences to which the legislature generally attaches special weight and which are of substantial importance in the specific case, for example due to the damage caused and the degree of threat to the general public. I do not see that the threshold of encroachment which the Senate did not object to there would have to be weighted in a fundamentally different manner with regard to access to what is known as retained traffic data. In the combination of circumstances at issue there, the review of constitutionality in the individual case is incumbent on the judge ordering access; the judge has to include the weight of the access on the traffic data in the respective case in the weighing and has to limit it by the drafting of the order.

331

With regard to offences committed by means of telecommunications, for which the Senate would like to have ensured that access to the traffic data which are stored according to § 113a TKG is excluded as well, insufficient weight is attached to the fact that the legislature assumes substantial difficulties in investigation here. Apart from the particular weight of the offence to be investigated, also those difficulties may make the retrieval of retained traffic data seem appropriate, especially if, as is the case here, the legislature has provided the conditions for retrieval with a strict subsidiarity clause according to which the measure is permissible only if the investigation of the facts or the establishment of the whereabouts of the suspect in another way would be impossible or considerably more difficult and if the collection of the data is in a reasonable proportion to the importance of the matter even in the individual case (§ 100g.1 sentence 2 StPO).

332

Since it is the duty of the legislature to guarantee effective criminal prosecution and not to permit any substantial gaps in protection, the legislature may not be denied also giving access to the traffic data in the case of offences that may not be particularly serious if the legal interest injured is nevertheless of particular importance, because in its estimation this is the only way to prevent de facto legal vacuums and a situation where investigation is largely ineffective. Here, the legal offence of stalking, for example, may be cited as an example (§ 238.1 no. 2 StGB, “cyberstalking“); in this context, the traffic data are often the only investigative lead to verify statements in a situation in which it is one person’s word against another’s, but also to identify a perpetrator who is unknown at first. Here the possibility of using a telephone trap is helpful only to a limited extent because it does not cover the email traffic and ultimately depends on the service providers’ goodwill. Something similar applies to the offence of threatening the commission of a felony, above all, however, to the area of internet fraud, which, according to the crime statistics compiled by the police, involves a considerable number of cases. Finally, access to traffic data may be a consideration also with regard to other offences (§ 202a to 202c StGB, data espionage and phishing; see also §§ 269, 303a, 303b StGB, forgery of data intended to provide proof, data tampering, computer sabotage; § 38.1 of the Securities Trading Act (Wertpapierhandelsgesetz – WpHG) in conjunction with § 14.1 no. 1 WpHG, so-called insider trading, § 38.2 in conjunction with § 39.1 no. 1, § 20a.1 sentence 1 nos. 1 to 3 WpHG, illegal manipulations of the market; § 86 StGB, dissemination of propaganda material of unconstitutional organisations).

333

Admittedly, it seems conceivable that the legislature will incorporate some of these offences into the list of serious criminal offences demanded by the Senate. In doing so, however, it will come up against the limits of an appropriate threat of punishment committed to the principle of guilt which can justify this measure. It will thus hardly be permitted to incorporate, for example, offences which are not committed for commercial purposes or do not cause major damage in an individual case into a list such as the one which the Senate is contemplating. It will hardly be possible to mitigate the deficiencies in investigation by making use of non-retained data which only exist for technical reasons. Experience has shown that great differences exist between the service providers in this respect. In some cases, data are not retained at all, in other cases they are already deleted after a few hours or days. Even the investigation measures which will lead to the application for the issuing of a judicial order, the preparation of such an application and the decision on it will often take more time than the service provider keeps the data available for technical reasons.

334

5. Something similar applies with regard to the threshold of interference which the Senate establishes for purposes of warding off danger. The legal interests which the Senate considers sufficiently weighty for the traffic data to be regarded as retrievable and usable would have had to include the warding off of a danger, which is not at the same time a danger to public safety, to property of significant value, maintenance of which is demanded by the public interest. It does not seem plausible to me to exclude important material assets covered by this definition because they are also protected by fundamental rights (see Article 14.1 GG). To include this legal interest into protection as well is not inappropriate at least if the collection of traffic data furthermore contains a subsidiarity clause, as is the case for example in § 20m BKAG (“… would be impossible or considerably more difficult.”)

335

6. To the extent that the majority of the Senate postulates an extension of the duties of notification for the case of access to traffic data and demands in principle, with regard to the law of criminal procedure, not only what is known as open access but notification “before the retrieval or transmission” if this does not run counter to the protection of the purpose of the investigation, this requirement also goes beyond the legislative concept, thereby interfering with the legislature’s discretion. The concept of the legislature was to pass provisions on all “measures of undercover investigation”, among which it expressly included the collection of traffic data (Bill, Bundestag printed paper BTDrucks 16/5846, p. 2). Also § 100g StPO provides that traffic data may (at first) be collected “without the knowledge of the person concerned”. And this is with good reason. For as a general rule, investigations are characterised by a considerable dynamics and have to be conducted rapidly. Effort which purposes of procedural safeguarding and of the protection of the law do not absolutely demand to be made within a narrow time frame should at first be limited. Accordingly, the legislature has passed a differentiated provision on notification also for the collection of traffic data (see § 101.1, 101.4 sentence 1 no. 5, 104.5 StPO), which does not prescribe prior notification. In addition, the legislature, by permitting to collect traffic data at first without the knowledge of the person concerned, discernably introduced a categorisation which is due to the fact that in most cases, the purpose of the investigation, the unknown whereabouts of the person affected or the need to rapidly investigate the facts are contrary to prior notification. This is evidently not inappropriate, reasonable with regard to the person affected, and the legislature is therefore not constitutionally banned from proceeding in this manner.

III.

336

It is true that the declaration of nullity of the challenged provisions which was pronounced by the Senate is the legal consequence of the declaration of incompatibility which has been carried by the majority. However, on the basis of the constitutional assessment of the majority of the Senate, having recourse to established case-law of the Federal Constitutional Court, consideration might well have been given to fixing a time limit for the legislature to pass new legislation and to holding that the existing provisions could provisionally continue in effect in conformity with the stipulations of the temporary injunctions granted by the Senate. For the Senate grants the legislature the possibility of providing for an obligation to store traffic data for six months and also of passing provisions on access, under the preconditions specified in the judgment, which essentially comply with the requirements made in the temporary injunctions. The stipulations of the judgment mainly differ from those of the temporary injunctions merely by establishing higher requirements with regard to data security and by demanding further-reaching obligations of notification. With a view to the weighing, the Federal Constitutional Court’s frequent practice suggests to refrain at first from pronouncing a declaration of nullity and not to regard it as imperative to only permit, for the time being, the access to data of the service providers which still exist for technical or billing reasons. Thus considerable shortcomings in warding off danger and in the investigation even of serious criminal offences will have to be feared, and are tolerated, until the enactment of a new provision. Reference is made to the grounds of the temporary injunctions issued by the Senate and to the weighing made therein. In addition, the service providers must stay their measures implementing the challenged regulation and restore the previous situation, once the new, amended law will have been enacted, something which is required already under Community law, they will have to make considerable effort to create the requirements once again.

Schluckebier

Dissenting opinion of Justice Eichberger

to the judgment of the First Senate of 2 March 2010

– 1 BvR 256/08 –

– 1 BvR 263/08 –

– 1 BvR 586/08 –

337

I do not agree with the decision of the Senate majority with regard to part of the result of the judgment and with regard to essential elements of the reasoning. Basically, I agree with Justice Schluckebier’s critcism of them, and I agree with most of his opinion concerning the conclusion and the reasoning. In the following, I can therefore restrict myself to giving a brief account of the considerations that are essential for my point of view:

338

1. Also in my view, the statutory order to store the telecommunications traffic data is a weighty encroachment upon Article 10.1 GG in view of its broad and comprehensive character in terms of the staff and resources involved, in view of the fact that it takes place without a cause and in view of the considerable length of time of the prescribed data retention. As, however, the obligation to store data is restricted to the traffic data and does not cover the contents of the acts of telecommunication, and as it takes place in a decentralised manner by the service providers, the encroachment that goes along with the storage does not have the overriding importance that is generally attributed to it by the majority of the Senate. In view of the legislative concept of the data storage, which rules out a free access by state authorities on the traffic data stored in a decentralised manner by the private service providers, and which provides for strict barriers in terms of content and with regard to the law of procedure – in particular a substantial requirement of judicial authority – to data retrieval or, in my view, has to be amended by such statutory requirements, I regard the fear expressed by the majority of the Senate of an intimidating effect on the communication behaviour of the population as unfounded, at any rate as not empirically proven.

339

Therefore, in my opinion, the essential burdening effect on the interest protected by Article 10.1 GG for the citizens that results from the ordering of the data storage is first and foremost due to the potential danger, emanating from this large collection of data, of abuse by the service providers themselves or by unauthorised third parties or of excessive use by prosecution or police authorities. Precautions must be taken against this. I therefore unreservedly agree with the view taken by the majority of the Senate concerning the standards for sophisticated data security to be prescribed to the service providers by the legislature. I also essentially agree with most of the other safeguards under procedural law for data storage, data retrieval and the further use of the data (obligations to delete data and obligations of recording, requirements concerning transparency and legal protection) which the majority of the Senate considers necessary; according to my assessment, however, the requirements which the majority of the Senate places on the legislature in this context are too detailed in many respects and do not take sufficient account of the discretion which the constitution grants the legislature also in this context.

340

2. Unlike the majority of the Senate, and concurring with Justice Schluckebier, I am of the opinion that the legislative concept on which §§ 113a, 113b TKG are based, creating a sliding scale of legislative responsibility for the order of storage and the retrieval of data, is fundamentally in conformity with the constitution. In the context of this concept, § 113b TKG does not establish an independent encroachment upon Article 10.1 GG that goes beyond the order of data storage in § 113a TKG. Instead, the provision contains the constitutionally required determination of the purpose of the storage of the traffic data. Only the statutory authorisation granted elsewhere to retrieve data, which is provided in § 113b sentence 1 TKG, results in a new encroachment upon Article 10.1 GG that goes beyond the significance of the data storage performed until then. In this manner, the Federal legislature, with § 113b TKG, leaves the legislature of the Federation or of the Länder that is competent for the respective area the authorisation, which is due to it by virtue of its constitutional and democratic legitimisation, to decide whether and to what extent it will access telecommunications traffic data for purposes of the prosecution of criminal offences, to ward off danger or for the duties of the intelligence services. In doing so, the respective legislature, as a matter of course, must respect on its own responsibility the constitutional boundaries of a proportionate access to the traffic data.

341

This does not constitute an order of collecting data to keep them in reserve for undetermined purposes, which would be constitutionally impermissible. While obliging the service providers in § 113a TKG to store data, the Federal legislature specified in § 113b TKG the purposes for which the stored data may be used. The responsibility, which the Federal legislature assumed by ordering the data storage, for the potential danger thus created to the detriment of the citizens in my view requires however, and in this I agree with the starting point of the opinion of the Senate majority, not only a fundamental outline of the purpose of use but also the determination of at least a minimum threshold of interference; such a threshold has been provided with regard to the prosecution of criminal offences in § 113b sentence 1 no. 1 TKG in conjunction with § 100g.1 StPO, which has been adopted at the same time, and has been described using the term “substantial dangers” in § 113b sentence 1 no. 2 TKG with regard to the warding off of dangers but has not been provided in a similar manner with regard to the performance of the duties of the intelligence services. An amendment to this effect would be required here. However, I do not regard a detailed and final determination of the purposes of use which the majority of the Senate demands from the Federal legislature to be made at the same time as the order of the data storage as constitutionally required.

342

3. Finally, and above all, I cannot agree with the result of weighing reached by the majority of the Senate to the extent that it regards the use of the data stored under § 113a TKG, which is governed by § 100g StPO, for purposes of criminal prosecution as unconstitutional. The reason for this is, firstly, that the majority of the Senate, already in the starting point of its considerations, attaches, in my opinion, too much weight to the encroachment upon Article 10.1 GG caused by the ordering of the data storage and, in contrast, too little importance to the justified interest of the general public and of the individual citizens in an effective prosecution of criminal offences and in an effective warding off of dangers. Moreover, it places too little value on the margin of discretion which is due to the legislature when evaluating the conflicting legal interests that merit protection and the drafting of the provision. On this point, I make reference to the statements made by Justice Schluckebier in his dissenting opinion, to which I agree.

343

Apart from this, the review of proportionality performed by the majority of the Senate suffers from its always assuming the greatest possible encroachment of a comprehensive form of data retrieval which ultimately aims to create a social profile of the citizen affected or to track his or her movements. This can indeed constitute an encroachment whose seriousness is similar to that of a weighty access to the contents of a citizen’s acts of telecommunication. This perspective, however, leaves out of account that many instances of data retrieval may concern individual events, short periods of time and the telecommunications contacts of only one, or few, persons (for example the telecommunications connections of one person in one day or even in a specific hour). The weight of the encroachment that such data retrieval constitutes is minor; it is not comparable, at any rate, to access to contents of communication, regardless of the fact that the retrieval draws on the comprehensively compiled data collection. By regarding every data retrieval as a particularly serious encroachment upon Article 10.1 GG, irrespective of its concrete extent in the individual case, and thus generally considering the legislature constitutionally obliged to establish very high thresholds of encroachment, the majority of the Senate, in my view, also gets into a conflict of evaluation, even though it denies this, because it is possible for the authorities to retrieve similar data, without the Senate objecting, if they are not stored by the services provider according to § 113a TKG but for technical reasons.

344

On this basis, I can, in spite of the different weighting, still concur with the starting point of the conditions, for which the majority of the Senate has established standards, of a permissible use of the traffic data for warding off danger and for intelligence-service purposes (C V 2 b and c) but not with the requirements which the majority of the Senate places on the use of the data for the prosecution of criminal offences (C V 2 a and C VI 3 a aa). In this respect, I regard the differentiated concept for the collection and use of data for criminal prosecution created by the legislature in § 100g StPO as constitutional. It is the duty of the judge competent to decide on the permissibility of a retrieval of data in every individual case to take due account of the legal interests worthy of protection under Article 10.1 GG considering the weight of the respective encroachment, as is explicitly demanded from the legislature particularly as regards the criminal offences committed by means of telecommunications in § 100g.1 sentence 2 StPO.

345

4. In my opinion, even from the point of view of the majority of the Senate, merely the unconstitutionality of the challenged provisions would have had to be established and according to the temporary injunctions issued in this matter, at least the data collection and storage in the interim until the passing of a new, constitutional provision would have had to be ordered. By declaring the provisions void without transition and by establishing an obligation to delete the traffic data obtained on the basis of the temporary injunctions, the majority of the Senate tolerates disadvantages for the prosecution of criminal offences but above all the risk of dangers, which cannot be excluded, to important legal interests that must be protected even though it regards instances of data retrieval which meet the requirements formulated in the temporary injunctions as fundamentally constitutional and a corresponding legal regulation is to be expected. I cannot concur with such a solution.

Eichberger

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

BVerfGE 123, 267 – Lisbon Decision (Lissabon-Urteil)

February 27, 2024 10:19 am / Leave a Comment

Act Approving the Treaty of Lisbon compatible with the Basic Law; accompanying law unconstitutional to the extent that legislative bodies have not been accorded sufficient rights of participation

Judgment of 30 June 2009
2 BvE 2/08


The Second Senate of the Federal Constitutional Court has decided today that the Act Approving the Treaty of Lisbon (Zustimmungsgesetz zum Vertrag von Lissabon) is compatible with the Basic Law. In contrast, the Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union) infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law (Grundgesetz – GG) insofar as the Bundestag and the Bundesrat have not been accorded sufficient rights of participation in European lawmaking procedures and treaty amendment procedures. The Federal Republic of Germany’s instrument of ratification of the Treaty of Lisbon may not be deposited as long as the constitutionally required legal elaboration of the parliamentary rights of participation has not entered into force. The decision was reached unanimously as regards the result, by seven votes to one as regards the reasoning (for the facts see German press releases no. 2/2009 of 16 January 2009 and no. 9/2009 of 29 January 2009).

In essence, the decision is based on the following considerations:

1. Overview of the central aspects of the judgment

The judgment focuses on the connection between the democratic system prescribed by the Basic Law on the level of the Federation and the level of independent rule which has been reached on the European level. The structural problem of the European Union is at the centre of the review of constitutionality: The extent of the Union’s freedom of action has steadily and considerably increased, not least by the Treaty of Lisbon, so that meanwhile in some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

As long as, consequently, no uniform European people, as the subject of legitimisation, can express its majority will in a politically effective manner that takes due account of equality in the context of the foundation of a European federal state, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority. In Germany, accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law. There is no such act here. The European Union continues to constitute a union of rule (Herrschaftsverband) founded on international law, a union which is permanently supported by the intention of the sovereign Member States. The primary responsibility for integration is in the hands of the national constitutional bodies which act on behalf of the peoples. With increasing competences and further independence of the institutions of the Union, safeguards that keep up with this development are necessary in order to preserve the fundamental principle of conferral exercised in a restricted and controlled manner by the Member States. With progressing integration, fields of action which are essential for the development of the Member States’ democratic opinion-formation must be retained. In particular, it must be guaranteed that the responsibility for integration can be exercised by the state bodies of representation of the peoples.

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States. Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction. Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interests between the states. It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect. Due to this structural democratic deficit, which cannot be resolved in an association of sovereign national states (Staatenverbund), further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

The peoples of the Member States are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution, i.e. of the constitutional identity (Article 23.1 sentence 3, Article 79.3 GG). The constitutional identity is an inalienable element of the democratic self-determination of a people. To ensure the effectiveness of the right to vote and to preserve democratic self-determination, it is necessary for the Federal Constitutional Court to watch, within the boundaries of its competences, over the Community or Union authority’s not violating the constitutional identity by its acts and not evidently transgressing the competences conferred on it. The transfer of competences, which has been increased once again by the Treaty of Lisbon, and the independence of decision-making procedures therefore require an effective ultra vires review and an identity review of instruments of European origin in the area of application of the Federal Republic of Germany.

2. The standard of review

a) The Act Approving the Treaty of Lisbon is measured by the Federal Constitutional Court against the standard of the right to vote. As a right that is equivalent to fundamental right, a violation of the right to vote can be challenged by a constitutional complaint (Article 38.1 sentence 1 in conjunction with Article 93.1 no. 4a GG). The right to vote specifies the right to democratic self-determination, to free and equal participation in the state authority exercised in Germany and to compliance with the principle of democracy including the respect of the constituent power of the people. The review of a violation of the right to vote also comprises encroachments on the principles which are codified in Article 79.3 of the Basic Law as the identity of the constitution. The citizens’ right to determine, in equality and freedom, public authority affecting them with regard to persons and subject-matters through elections and other votes is anchored in human dignity and is the fundamental element of the principle of democracy. The principle of democracy is not amenable to weighing with other legal interests. Amendments of the Basic Law affecting the principles laid down in Article 1 and Article 20 of the Basic Law shall be inadmissible (Article 79.3 of the Basic Law). The so-called eternity guarantee takes the disposal of the identity of the free constitutional order even out of the hands of the constitution-amending legislature. The constituent power has not granted the representatives and bodies of the people a mandate to change the constitutional principles which are fundamental pursuant to Article 79.3 GG.

b) At the same time, the elaboration of the principle of democracy by the Basic Law is open to the objective of integrating Germany into an international and European peaceful order. The German constitution is oriented towards opening the state system of rule to the peaceful cooperation of the nations and towards European integration. Neither the integration pari passu into the European Union nor the integration into peacekeeping systems such as the United Nations necessarily lead to a change in the system of exercise of public authority in the Federal Republic of Germany. Instead, it is a voluntary, mutual commitment pari passu, which secures peace and strengthens the possibilities of shaping policy by joint coordinated action. The constitutional mandate to realise a united Europe which follows from Article 23.1 of the Basic Law and its Preamble means with regard to the German constitutional bodies that participation in European integration is not left to their political discretion. The Basic Law wants European integration and an international peaceful order. Therefore not only the principle of openness towards international law (Völkerrechtsfreundlichkeit), but also the principle of openness towards European law (Europarechtsfreundlichkeit) applies.

c) The authorisation to transfer sovereign powers to the European Union pursuant to Article 23.1 GG is, however, granted under the condition that the sovereign statehood of a constitutional state is maintained on the basis of a responsible integration programme according to the principle of conferral and respecting the Member States’ constitutional identity, and that at the same time the Federal Republic of Germany does not lose its ability to politically and socially shape the living conditions on its own responsibility. Article 23.1 GG and the Preamble do not say anything about the final character of the political organisation of Europe. With its Article 23, the Basic Law grants powers to participate and develop a European Union which is designed as a Staatenverbund. The concept of Verbund covers a close long-term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order is, however, subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e. the citizens of the states, remain the subjects of democratic legitimisation. The European Union must comply with democratic principles as regards its nature and extent and also as regards its own organisational and procedural elaboration (Article 23.1, Article 20.1 and 20.2 in conjunction with Article 79.3 of the Basic Law). This means firstly that European integration may not result in the system of democratic rule in Germany being undermined. This does not mean that a number of sovereign powers which can be determined from the outset or specific types of sovereign powers must remain in the hands of the state. European unification on the basis of a union of sovereign states under the Treaties may, however, not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organised by party politics and Parliament. To the extent that in these areas, which are of particular importance for democracy, a transfer of sovereign powers is permitted at all, a narrow interpretation is required. This concerns in particular the administration of criminal law, the police monopoly, and that of the military, on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.

d) The Basic Law does not grant the German state bodies powers to transfer sovereign powers in such a way that their exercise can independently establish other competences for the European Union. It prohibits the transfer of competence to decide on its own competence (Kompetenz-Kompetenz). The principle of conferral is therefore not only a principle of European law (Article 5.1 of the Treaty establishing the European Community; Article 5.1 sentence 1 and 5.12 of the Treaty on European Union in its version of the Treaty of Lisbon), but, just like the European Union’s obligation to respect the Member States’ national identity (Article 6.3 TEU; Article 4.2 sentence 1 TEU Lisbon), it takes up constitutional principles from the Member States. The integration programme of the European Union must therefore be sufficiently precise. To the extent that the Member States elaborate the law laid down in the Treaties in such a way that, with the principle of conferral fundamentally continuing to apply, an amendment of the law laid down in the Treaties can be brought about without a ratification procedure, a special responsibility is incumbent on the legislative bodies, apart from the Federal Government, as regards participation, which, in Germany, must, on the national level, comply with the requirements under Article 23.1 of the Basic Law (responsibility for integration). The act approving a treaty amending a European Treaty and the national accompanying laws must therefore be such that European integration continues to take place according to the principle of conferral without the possibility for the European Union of taking possession of Kompetenz-Kompetenz or to violate the Member States’ constitutional identity which is not amenable to integration, in this case, that of the Basic Law. For borderline cases of what is still constitutionally admissible, the German legislature must, if necessary, make arrangements with its laws that accompany approval to ensure that the responsibility for integration of the legislative bodies can sufficiently develop.

e) The Federal Constitutional Court reviews whether legal instruments of the European institutions and bodies, adhering to the principle of subsidiarity under Community and Union law (Article 5.2 ECT; Article 5.1 sentence 2 and 5.3 TEU Lisbon), keep within the boundaries of the sovereign powers accorded to them by way of conferred power (ultra vires review). Furthermore, the Federal Constitutional Court reviews whether the inviolable core content of the constitutional identity of the Basic Law pursuant to Article 23.1 sentence 3 in conjunction with Article 79.3 of the Basic Law is respected (identity review). The exercise of these competences of review, which are constitutionally required, safeguards the fundamental political and constitutional structures of sovereign Member States, which are recognised by Article 4.2 sentence 1 TEU Lisbon, even with progressing integration. Its application in a given case follows the principle of the Basic Law’s openness towards European law.

3. The subsumption

a) There are no decisive constitutional objections to the Act Approving the Treaty of Lisbon.

aa) With the present status of integration, the European Union does, even upon the entry into force of the Treaty of Lisbon, not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states to which the principle of conferral applies.

The European Parliament is not a body of representation of a sovereign European people but a supranational body of representation of the peoples of the Member States, so that the principle of electoral equality, which is common to all European states, is not applicable with regard to the European Parliament. Other provisions of the Treaty of Lisbon, such as the double qualified majority in the Council (Article 16.4 TEU Lisbon, Article 238.2 of the Treaty on the Functioning of the European Union), the elements of participative, associative and direct democracy (Art. 11 TEU Lisbon) as well as the institutional recognition of the national Parliaments (Article 12 TEU Lisbon) cannot compensate the deficit of European public authority that exists when measured against requirements on democracy in states, but can nevertheless increase the level of legitimisation of the Staatenverbund.

bb) With the entry into force of the Treaty of Lisbon, the Federal Republic of Germany will remain a sovereign state. In particular, the substance of German state authority is protected. The distribution of the European Union’s competences, and their delimitation from those of the Member States, takes place according to the principle of conferral and according to other mechanisms of protection under substantive law, in particular according to provisions concerning the exercise of competences. The transfer of sovereign powers to the European Union, which is thus performed in a controlled and responsible manner, is not called into question by individual provisions of the Treaty of Lisbon. This applies first of all to the simplified amendment procedure (see in particular Article 48.6 TEU Lisbon). The “approval” of the Federal Republic of Germany in simplified revision procedures requires a law within the meaning of Article 23.1 sentence 2 of the Basic Law as a lex specialis with regard to Article 59.2.

cc) To the extent that the general bridging clause under Article 48.7 TEU Lisbon makes possible the transition from the principle of unanimity to the principle of qualified majority in the decision-making of the Council, or the transition from the special to the ordinary legislative procedure, this is also a Treaty amendment under primary law, which is to be assessed pursuant to Article 23.1 sentence 2 of the Basic Law. The national parliaments’ right to make known their opposition (Article 48.7(3) TEU Lisbon) is not a sufficient equivalent to the requirement of ratification. The representative of the German government in the European Council may therefore only consent to a Treaty amendment brought about by the application of the general bridging clause if the German Bundestag and the Bundesrat have adopted within a period yet to be determined a law pursuant to Article 23.1 of the Basic Law, which takes the purpose of Article 48.7(3) TEU Lisbon as an orientation. This also applies in case of the special bridging clause pursuant to Article 81.3(2) TFEU being used.

dd) A law within the meaning of Article 23.1 sentence 2 of the Basic Law is not required to the extent that special bridging clauses are restricted to areas which are already sufficiently determined by the Treaty of Lisbon, and which do not provide for a right for national Parliaments to make known their opposition. Also in these cases, however, it is incumbent on the Bundestag and, to the extent that the legislative competences of the Länder are affected, on the Bundesrat, to comply with their responsibility for integration in another suitable manner. The veto right in the Council may not be waived without the participation of the competent legislative bodies even as regards subject-matters which have already been factually determined in the Treaties. The representative of the German government in the European Council or in the Council may therefore only consent to an amendment of primary legislation through the application of one of the special bridging clauses on behalf of the Federal Republic of Germany if the German Bundestag and, to the extent that this is required by the provisions on legislation, the Bundesrat, have approved this decision within a period yet to be determined, which takes the purpose of Article 48.7(3) TEU Lisbon as an orientation.

ee) Also the flexibility clause under Article 352 TFEU can be construed in such a way that the integration programme envisaged in the provisions can still be predicted and determined by the German legislative bodies. With a view to the undetermined nature of possible cases of application, the use of the flexibility clause constitutionally requires ratification by the German Bundestag and the Bundesrat on the basis of Article 23.1 sentence 2 of the Basic Law.

ff) The Federal Constitutional Court’s competence of review is not affected by Declaration no. 17 on Primacy annexed to the Final Act of the Treaty of Lisbon. The foundation and the limit of the applicability of European Union law in the Federal Republic of Germany is the order to apply the law which is contained in the Act Approving the Treaty of Lisbon, which can only be given within the limits of the current constitutional order. In this respect, it is insignificant whether the primacy of application, which the Federal Constitutional Court has already essentially recognised for Community law, is provided for in the Treaties themselves or in Declaration no. 17 annexed to the Final Act of the Treaty of Lisbon.

gg) The competences that have been newly established or deepened by the Treaty of Lisbon in the areas of judicial cooperation in criminal and civil matters, external trade relations, common defence and with regard to social concerns can, within the meaning of an interpretation of the Treaty that does justice to its purpose, and must, in order to avoid imminent unconstitutionality, be exercised by the institutions of the European Union in such a way that on the level of the Member States, tasks of sufficient weight as to their extent as well as their substance remain which legally and practically are the precondition of a living democracy. In this context, the following aspects must be given particular attention:

  • Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and law of criminal procedure, the corresponding foundations of competence in the Treaties must be interpreted strictly – on no account extensively -, and their use requires particular justification.
  • The use of the dynamic blanket authorisation pursuant to Article 83.1(3) TFEU to extend the list of particularly serious crimes with a cross-border dimension “on the basis of developments in crime” is factually tantamount to an extension of the competences of the European Union and is therefore subject to the requirement of the enactment of a specific statute under Article 23.1 sentence 2 GG.
  • In the area of judicial cooperation in criminal matters, particular requirements must additionally be placed on the provisions which accord a Member State special rights in the legislative procedure (Article 82.3, Article 83.3 TFEU: so-called emergency brake procedure). From the perspective of German constitutional law, the necessary measure of democratic legitimisation via the national parliaments can only be safeguarded by the German representative in the Council exercising the Member State’s rights set out in Article 82.3 and Article 83.3 TFEU only on the instruction of the Bundestag and, to the extent that this is required by the provisions on legislation, of the Bundesrat.
  • The mandatory requirement of parliamentary approval for the deployment of the armed forces abroad will continue to exist upon the entry into force of the Treaty of Lisbon. The Treaty of Lisbon does not confer on the European Union the competence to use the Member States’ armed forces without the approval of the respective Member State affected or of its parliament. It also does not restrict the possibilities of action of the German Bundestag in the area of social policy to such an extent that this would impair the principle of the social state (Article 23.1 sentence 3 in conjunction with Article 79.3 GG) in a constitutionally objectionable manner and inadmissibly curtail the democratic scope for decision-making that is required in this context.

b) There are also no decisive constitutional objections against the Act Amending the Basic Law (Articles 23, 45 and 93) (Gesetz zur Änderung des Grundgesetzes). A violation of democratic principles pursuant to Article 79.3 GG occurs neither by Article 23.1a GG, new version, which elaborates the right to bring a subsidiarity action as a minority right and sets the quorum at one fourth of the Members, nor by Article 45 sentence 3 GG, new version.

c) In contrast, the Act Extending and Strengthening the Rights of the Bundestagand the Bundesrat in European Union Matters infringes Article 38.1 in conjunction with Article 23.1 of the Basic Law insofar as rights of participation of the German Bundestag and the Bundesrat have not been elaborated to the constitutionally required extent. If the Member States elaborate the European law laid down in the Treaties on the basis of the principle of conferral in such a way that an amendment of the Treaty law can be brought about solely or decisively by the institutions of the European Union – albeit under the requirement of unanimity in the Council -, a special responsibility is incumbent on the national constitutional bodies in the context of participation. In Germany, this responsibility for integration must on the national level comply with the constitutional requirements made in particular under Article 23.1 GG.

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

BVerfGE 122, 374 – Renewable Energy Sources Act (Erneuerbare Energien Gesetz, EEG)

February 27, 2024 10:17 am / Leave a Comment

Reasoning of the denial of the motion for a temporary injunction moved by an electricity producer falling under the Renewable Energy Sources Act

On 18 February 2009, the First Senate of the Federal Constitutional Court denied the motion, made in conjunction with a constitutional complaint challenging a legal provision, which had been moved by the operator of a bioenergy park and the project company that had been founded for the construction of the bioenergy park, to temporarily suspend § 19.1 of the Renewable Energy Sources Act (Erneuerbare- Energien-Gesetz – EEG) 2009 by means of a temporary injunction. The complainants had argued that – contrary to situation in the period of validity of the EEG 2004 – the 40 technically independent plants of the bioenergy park were deemed as a single large-scale plant from the entry into force of the EEG 2009 on 1 January 2009 and that they therefore received a lower tariff per kilowatt hour of electricity fed into the public grid; they further argued that as a consequence of the considerable decrease in income resulting from this, the plant operator would have to file an insolvency petition very soon.

In essence, the decision is based on the following considerations:

The motion for a temporary injunction must be denied because the constitutional complaint is patently unfounded. It does not raise any issues which could only be clarified in the main proceedings.

§ 19.1 EEG 2009 does not violate the complainants’ fundamental right to property. It can be left open whether the claim to fees paid under the EEG, which are intended to ensure to the plant operator an income for electricity produced from renewable energy sources that is higher than the market price, is protected by Article 14.1 of the Basic Law ( Grundgesetz – GG). Even if this assumption is made, a violation of a fundamental right cannot be established. It already appears doubtful whether the claim to fees existed in the period of validity of the EEG 2004 to the amount assumed by the complainants. Ultimately, the interpretation of § 3.2 sentence 2 half-sentence 1 EEG 2004 that is relevant to this is, however, not decisive. Even if the review of constitutionality is based on the fact that the fees paid for the electricity that is fed into the grid by the bioenergy park concerned had to be single plant-related so far, and that taking this fact as a starting point, § 19.1 EEG 2009 curtails a legal position of the complainants acquired under the previous law, the regulation is unobjectionable as a constitutionally permissible determination of the content and the limits of property. It admittedly results in a considerable reduction of the feed-in tariff which can be obtained by the operation of the bioenergy park. However, this statutory reduction of the claim to fees satisfies the requirements of the principle of proportionality and those of the principle of protection of public confidence, which must be taken into consideration in the guarantee area of Article 14.1 GG.

§ 19.1 EEG 2009 serves the legitimate objective of avoiding an unnecessarily heavy financial burden being placed, due to the division of one or several large-scale biomass plants into a multitude of smaller plants, on grid operators, electricity suppliers to end users, and ultimately, on electricity customers, who, due to the compensation mechanism set out in the EEG 2009, must bear what is known as the difference costs. The regulation is also suitable and necessary for pursuing this objective; it is also proportionate in the narrower sense. The subsequent amendment of the provisions on feed-in tariffs could prove unreasonable only if the complainants were able to trust in the continued existence of the concept of “plant” as set out, in their understanding, in § 3.2 EEG 2004.

This, however, is not the case. § 19.1 EEG 2009 satisfies the requirements of the principle of the protection of public confidence. It is true that the provision has retroactive effect to the extent that it is also applied to biomass plants that were put into operation before 1 January 2009. This retroactive effect, however, is constitutionally unobjectionable. For the complainants at any rate could at no point in time trust in the continued existence of the regulation which in their view had been set out in § 3.2 sentence 2 EEG 2004.

Even before the planning for the construction of the bioenergy park had started, legal commentaries held the view concerning § 3.2 sentence 2 EEG 2004 that as regards the question of taking together various plants, the decisive factor was the economic connection of the investment at the chosen location. Apart from that, § 3.2 EEG 2004, according to the legislative history of the Act, “also [served to] prevent the avoidance, which would be contrary to the objective of the Act, of the payment thresholds applicable to the tariff amounts by splitting up [the plants] into smaller units”. Also the Federal Government and the Bundesrat had subsequently established that the deliberate splitting up of biogas plants into several units for the sole purpose of achieving higher tariffs contradicted the legislative objective of the EEG.

The complainants therefore had to expect that this legal practice would be changed by the legislature at any rate in the future. Also § 12.3 sentence 1 EEG 2004, on which the complainants had relied, does not establish an unrestricted claim on the part of the plant operators to the status quo of tariff legislation being maintained, which would be contrary under constitutional law to the closing of gaps in the law that had been recognised subsequently.

The cautious action on the part of the legislature, which had been aware of the existing legal uncertainties and the criticised practice of plant splitting at any rate since August 2006, may appear incomprehensible. For the constitutional assessment, this is just as irrelevant as the question of whether it is sensible under considerations of legal and environmental policy with a view to the objective of § 1.1 and 1.2 EEG 2009 to extend the regulation adopted now to existing plants.

The translations of Federal Constitutional Court decisions constitute official works pursuant to § 5 sec. 2 of the Act on Copyright and Related Rights (Gesetz über Urheberrecht und verwandte Schutzrechte – UrhG) and therefore do not enjoy copyright protection. However, those works may not be changed (§ 62 sec. 1 to 3 UrhG) and the source always has to be acknowledged (§ 63 sec. 1 and 2 UrhG). Under the Terms and Conditions of the Creative Commons Licence BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0/legalcode> the works may only be reproduced giving appropriate credit and under the same licence as the original.

The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

BVerfGE 108, 282 – Headscarf Ban (Kopftuchurteil)

February 27, 2024 10:15 am / Leave a Comment

  1. There is no sufficiently definite statutory basis in the current law of the Land (state) Baden-Württemberg for a prohibition on teachers wearing a headscarf at school and in lessons.
  2. Social change, which is associated with increasing religious plurality, may be the occasion for the legislature to redefine the admissible degree of religious references permitted at school.

Judgment of the Second Senate of 24 September 2003
on the basis of the oral hearing of 3 June 2003
– 2 BvR 1436/02 –

…

RULING:

  1. The judgment of the Federal Administrative Court (Bundesverwaltungsgericht) of 4 July 2002 – BVerwG 2 C 21.01 -, the judgment of the Baden-Württemberg Higher Administrative Court (Verwaltungsgerichtshof Baden-Württemberg) of 26 June 2001 – 4 S 1439/00 -, the judgment of the Stuttgart Administrative Court (Verwaltungsgericht Stuttgart) of 24 March 2000 – 15 K 532/99 – and the ruling of the Stuttgart Higher School Authority (Oberschulamt Stuttgart) of 10 July 1998 in the form of the ruling on an objection of 3 February 1999 – 1 P L., F./13 – infringe the complainant’s rights under Article 33.2 in conjunction with Article 4.1 and 4.2 and with Article 33.3 of the Basic Law. The judgment of the Federal Administrative Court is overturned. The matter is referred back to the Federal Administrative Court.
  2. The Federal Republic of Germany and the Land Baden-Württemberg are ordered each to pay half the complainant’s necessary costs for the constitutional complaint proceedings.

GROUNDS:

1

The complainant petitions to be appointed to the teaching profession of the Land Baden-Württemberg. In her constitutional complaint she challenges the decision of the Stuttgart Higher School Authority, which has been confirmed by the administrative courts, refusing to appoint her as a civil servant on probation as a teacher at German primary schools (Grundschule) and non-selective secondary schools (Hauptschule) on the grounds that her declared intention to wear a headscarf at school and in lessons means that she is unsuited for the office.

I.

2

1. The complainant was born in Kabul, Afghanistan in 1972; since 1987 she has lived without interruption in the Federal Republic of Germany, and in 1995 she acquired German nationality. She is of the Muslim religion. After passing the First State Examination and doing teaching practice, in 1998 the complainant passed the Second State Examination for the teaching profession at the primary school and the non-selective secondary school, with the main emphasis on the secondary school and the subjects German, English and social studies/economics.

3

2. The Stuttgart Higher School Authority refused the complainant’s application to be appointed to the teaching profession at the English primary school and the non-selective secondary school in the Land Baden-Württemberg on the grounds of lack of personal aptitude. By way of a reason, it was stated that the complainant was not prepared to give up wearing a headscarf during lessons. The headscarf, it was stated, was an expression of cultural separation and thus not only a religious symbol, but also a political symbol. The objective effect of cultural disintegration associated with the headscarf, it was said, was not compatible with the requirement of state neutrality.

4

3. In her objection, the complainant submitted that the wearing of the headscarf was not only a mark of her personality, but also the expression of her religious conviction. Under the precepts of Islam, wearing a headscarf was part of her Islamic identity. The decision refusing her petition, she submitted, violated the fundamental right of freedom of religion under Article 4.1 and 4.2 of the Basic Law (Grundgesetz – GG) . Although the state had an obligation to preserve neutrality in questions of religion, when it fulfilled its duty to provide education under Article 7.1 of the Basic Law it was not obliged to refrain completely from religious and ideological references, but had to enable a careful balance between the conflicting interests. Unlike the crucifix, the headscarf was not a symbol of religion. In addition, the present case concerned her individual and religiously motivated acting as a subject of fundamental rights.

5

4. The Stuttgart Higher School Authority dismissed the complainant’s objection. It submitted that although Article 33.3 of the Basic Law prohibited the rejection of an applicant on the grounds of the applicant’s religion alone, it did not exclude the possibility of relying on a lack of aptitude for the civil service associated with the belief. Wearing the headscarf for reasons of faith was protected by Article 4.1 of the Basic Law. However, the complainant’s freedom of religion was limited by the fundamental right of the pupils to negative religious freedom, the parents’ right of education under Article 6.2 of the Basic Law and the obligation of the state to preserve neutrality in ideology and religion. Even if the complainant did not proselytise for her religious conviction, by wearing the headscarf in lessons she expressed her affiliation to Islam at every time and without the pupils being able to escape this; in this way, she forced the pupils to confront this expression of faith. As young people with personalities that were not yet established, they were particularly open to influences of every kind. The crucial factor in this respect was solely the objective effect of the headscarf. Specifically for schoolgirls of the Muslim faith, a considerable pressure to conform might arise here; this would contradict the school’s pedagogical duty to work towards the integration of the Muslim pupils.

6

5. The Stuttgart Administrative Court dismissed the complainant’s action and stated as grounds for its decision that the religiously motivated wearing of a headscarf by a teacher constituted a lack of aptitude in the meaning of § 11.1 of the Baden-Württemberg Land Civil Service Act (Landesbeamtengesetz Baden-Württemberg – LBG). The complainant’s freedom of religion conflicted with the state’s duty of neutrality and the rights of the pupils and their parents.

7

The headscarf worn by the complainant demonstrated strikingly and impressively her profession of Islam; in this connection it was irrelevant that the headscarf, unlike the crucifix for the Christian faith, was not regarded as the symbolic embodiment of the Islamic faith. By reason of general compulsory school attendance and the lack of influence of the pupils on the selection of their teachers, the pupils had no possibility of avoidance. This gave rise to the danger of influence – including unintended influence – by the teacher, who was felt to be a person in authority.

8

6. The appeal against this was dismissed by the Baden-Württemberg Higher Administrative Court. The court held that in the discretionary decision as to whether to appoint an applicant, an assessment was made on the aptitude of the applicant; here, a prediction had to be made, and this was only to a limited extent subject to judicial review. One of the elements of aptitude was the expectation that the applicant would fulfil his or her duties as a civil servant. The assessment that because the complainant intended for religious reasons to wear a headscarf in lessons she lacked aptitude for the post she sought, that of a teacher at the primary school and non-selective secondary school in the state school service, was unobjectionable. The personal aptitude of teachers was in part to be determined on the basis of how far they were in the position to put into practice the educational objectives laid down under Article 7.1 of the Basic Law and to fulfil the state’s duty to provide education. If the employer refused to make an appointment because an applicant for religious reasons did not intend to observe the constitutionally created restrictions in teaching, the employer did not infringe the prohibition of unfavourable treatment in Article 33.3 of the Basic Law for lack of a causal link to the applicant’s religion.

9

At school, the differing religious and ideological convictions of the pupils and their teachers confronted each other in a particularly intensive way. The conflict arising from this called for a balancing of the interests in practical concordance. Here, the state did not have to completely dispense with religious and ideological references at school. In addition, when the employer assessed aptitude, the employer had to take the applicant’s fundamental rights into account. For this reason, the exercise of freedom of religion and belief could not in itself be a reason for rejection. But wearing a headscarf in class, as the complainant intended, would infringe the requirement of neutrality that the state had to observe at schools and the fundamental rights of the students and their parents and thus the official duty of the complainant as a representative of the state to carry out her duties impartially and in the service of the public interest.

10

The duty of neutrality in ideology and religion imposed on the state by the Basic Law was not a distancing and rejecting neutrality of the nature of laicist non-identification with religions and ideologies, but a respectful neutrality, taking precautions for the future, which imposed on the state a duty to safeguard a sphere of activity both for the individual and for religious and ideological communities. Within the meaning of this precautionary neutrality, however, the state was not permitted to endanger religious peace at school of its own motion. In class, the students were exposed to religious symbols without the opportunity to avoid them; here, the requirement of state neutrality gave paramount protection to the negative religious freedom of students of different faiths and the parents’ right to educate their children with regard to religion and ideology.

11

If a teacher wore a headscarf in lessons, this could lead to religious influence on the students and to conflicts within the class in question, even if the complainant had credibly denied any intention of recruitment or proselytising. The only decisive factor was the effect created in students by the sight of the headscarf. The headscarf motivated by Islam was a plainly visible religious symbol that the onlooker could not escape. Primary school pupils in particular were scarcely in a position to intellectually assimilate the religious motivation for wearing a headscarf and to decide consciously in favour of tolerance or criticism. The danger of religious influence inherent in this could not be reconciled with the required protection of the negative religious freedom of students and parents and conflicted with the requirement of state neutrality. In addition, the pre-emptive prevention of conflicts caused by religion at school, such as were sufficiently foreseeable in the present case on the basis of experience of life, was a legitimate goal of the state’s organisation of schools. An acceptable pragmatic solution of the conflict that allowed the complainant’s freedom of belief to be taken more extensively into account was not possible in view of the principle of the class teacher, which was predominant at the primary school and the non-selective secondary school, and because of organisational difficulties with regard to moving from one school or class to another.

12

7. The Federal Administrative Court dismissed the complainant’s appeal. It held that the decision to make the complainant’s employment as a civil servant in the teaching profession dependent on her readiness to remove her headscarf in lessons had been correct.

13

The court held that since the complainant derived the requirement to wear a headscarf from her religion, she was protected by the fundamental right in Article 4.1 of the Basic Law and the right equivalent to a fundamental right in Article 33.3 sentence 1 of the Basic Law. Notwithstanding the fact that there was no constitutional requirement of a specifically enacted statute, freedom of faith was not guaranteed without restriction. Restrictions followed from the Basic Law itself, in particular from the conflicting fundamental rights of persons of a different opinion. Nor did Article 4.1 of the Basic Law give the individual any unrestricted right to exercise his or her religious convictions within the framework of state institutions or to express it with state support. The comprehensively guaranteed freedom of faith gave rise to the precept of state neutrality towards the various religions and denominations. In the context of secular compulsory schools, organised and structured by the state, Article 4.1 of the Basic Law as a guarantee of freedom benefited above all children required to attend school and their parents. Here, the state was also obliged to take account of the freedom of religion of the parents and the right of education guaranteed to them under Article 6.2 sentence 1 of the Basic Law. Children must be taught and educated in state compulsory schools without any partiality on the part of the state and of the teachers representing it in favour of Christian beliefs or of other religious and ideological convictions. With growing cultural and religious variety, where a growing proportion of schoolchildren were uncommitted to any religious denomination, the requirement of neutrality was becoming more and more important, and it should not, for example, be relaxed on the basis that the cultural, ethnic and religious variety in Germany now characterised life at school too.

14

By reason of the significance that Muslims attached to the “Islamic headscarf”, others too saw the headscarf as the symbolic expression of a particular religious conviction and it was generally seen as a profession of Islamic faith. If the teacher wore a headscarf in lessons, this meant that during class hours the pupils were constantly and unavoidably confronted, at the instigation of the state, with this clear symbol of a religious conviction. The duration and intensity of this confrontation meant that it was not a trifling matter as far as the pupils’ freedom of faith was concerned. The teacher confronted the pupils as a person in authority appointed by the state and representing the state. Admittedly, it was difficult to determine whether her visible sign of religious faith had any influence on the pupils; however, at all events influence of the items of faith symbolised by the headscarf on pupils of primary school and non-selective secondary school age from four to fourteen could not be excluded.

15

The teacher’s right to conduct herself in accordance with her religious conviction must have lower priority than the conflicting freedom of faith of the pupils and parents during lessons. Neither the requirement of tolerance nor the principle of practical concordance (praktische Konkordanz ) created a compulsion to override the parents’ rights and the freedom of faith of the parents and the pupils of a state school in favour of a teacher wearing a headscarf. Under Article 33.5 of the Basic Law, teachers were obliged to accept restrictions of their positive freedom of religion; these were necessary in order to guarantee that school lessons took place in an environment of religious neutrality.

II.

16

In her constitutional complaint, the complainant challenges the decisions made in the administrative procedure and in the proceedings before the administrative courts. She challenges a violation of Articles 1.1, 2.1, 3.1, 3.3 sentence 1, 4.1 and 4.2 and 33.2 and 33.3 of the Basic Law.

17

The complainant argued that a Muslim applicant wearing a headscarf also had a constitutional right to be appointed under Article 33.2 of the Basic Law. Admission to public office had to occur independently of a profession of religious belief (Article 33.3 sentence 1 of the Basic Law) without permitting the applicant to be disadvantaged for this reason (Article 33.3 sentence 2 of the Basic Law). Wearing a headscarf therefore did not constitute a lack of aptitude.

18

The ordinary courts based their decisions on a changed attitude to the state requirement of neutrality in the Federal Republic of Germany. This strict understanding of neutrality resulted in restricting the possibility of a civil servant professing his religious beliefs at work. Unlike a laicist state, the Federal Republic of Germany, by its constitution, was open to religious activity even in schools, and in this way it pursued what is known as a comprehensive, open and respectful neutrality. School was not a refuge in which one could close one’s eyes to social plurality and reality. On the contrary, the school’s duty to provide education meant preparing adolescents for what they would encounter in society.

19

The decisive statements in the Federal Constitutional Court’s crucifix decision were not applicable to the present case. Whereas that case concerned a religious symbol that the school, as a state institution, was responsible for installing, in this case the complainant, as a subject of fundamental rights, had suffered an encroachment upon her right to freedom of faith. In the case of fundamental rights that were unconditionally guaranteed, a restriction of the exercise of the right could be considered only in cases of specific endangerment. There was no such endangerment; there was no evidence of the alleged suggestive effect of the headscarf and the alleged possibility of a detrimental psychological effect. When the complainant had done teaching practice, there had been no conflicts or serious difficulties. The endangerments set out by the appointing body were merely of an abstract and theoretical nature. If concrete conflicts arose, there were acceptable means of solving them.

III.

20

The Federal Government and the Land Baden-Württemberg submitted opinions on the constitutional complaint.

21

1. In the name of the Federal Government, the Federal Ministry of the Interior stated that neither Article 33.2 of the Basic Law nor the provisions of Land law passed to put the Article into concrete terms gave a right to be appointed to a public office. Instead, the employing authority made this decision according to its best judgment. The aptitude of an applicant depended on the requirements of the specific post to be filled; this aptitude was to be decided on the basis of a prediction, which required the whole personality of the applicant to be assessed. Aptitude for the teaching profession included the ability and the readiness of the teacher to comply with the official duties arising from the status of a civil servant under the concrete conditions of working at school. The traditional fundamental principles of the permanent civil service laid down in Article 33.5 of the Basic Law, which restricted the fundamental rights of civil servants, included the obligation of teachers who were civil servants to carry out their duties objectively and neutrally. This official duty also comprised the duty to carry out one’s duties neutrally from the point of view of religion and ideology, respecting the viewpoints of pupils and parents.

22

Independently of the complainant’s subjective appraisal that it was far from her intentions to demonstrate her religion, great importance attached to the employer’s prediction of future danger in that the teacher’s conspicuous outer appearance might have a long-term detrimental influence on the peace at the school, in particular because throughout all the lessons the pupils were confronted with the sight of the headscarf and thus the expression of a foreign religious belief, without a possibility of avoiding it. An employer who in these circumstances proceeded on the assumption that the teacher lacked aptitude because he or she could not be used in all circumstances was within the scope of evaluation permitted an employer. Nor did the employer violate the prohibition of discrimination in Article 33.3 of the Basic Law, since the rejection was not based on the teacher’s religion, but on her lack of distance and neutrality. Teachers at the primary school and non-selective secondary school were required to refrain from wearing an Islamic headscarf in class and thus also to refrain from exercising their freedom of belief in this respect.

23

Just as in the case of the crucifix in the classroom, the decisive factor with regard to the Muslim headscarf was the fact that because of compulsory school attendance for all children – unlike in the case of a brief encounter in everyday life – continuous confrontation with a religious symbol could not be avoided. The fact that the complainant is a subject of fundamental rights did not alter the fact that the symbol she used was to be attributed to the state. However, it should be taken into account when weighing interests that the wearing of the religious symbol was itself the exercise of a fundamental right. In the attempt to achieve practical concordance, consideration should be given not only to the conflicting fundamental rights positions, but also to the state’s requirement of neutrality, which was not at the court’s disposal. This could be taken into account in the present case only by not using the religious symbol. This did not involve an intensification of the requirement “in the direction of a laicist understanding” of it. Rather, consideration was merely being given to the growing importance of state neutrality in view of an increasing number of religions in society.

24

2. The Land Baden-Württemberg (Stuttgart Higher School Authority) submitted that the constitutional review had to be restricted to considering whether the judgment of the nonconstitutional court had been free of arbitrariness and if it contained errors of interpretation that were based on a fundamentally erroneous view of the significance of a fundamental right, in particular of the extent of its scope of protection. The Federal Administrative Court had illuminated the constitutional aspects of the case in full, assessed and weighed them thoroughly and come to a correct result, free of arbitrariness.

25

Both Article 33.2 of the Basic Law and the fundamental rights in Articles 4 and 6 of the Basic Law had been correctly interpreted and applied. Article 4.1 and 4.2 of the Basic Law as the guarantee of negative freedom of religion secured freedom from expressions of religious opinions from which the pupils could not escape at school. Here, account had to be taken of the fact that schoolchildren’s personalities were not yet fully developed, and as a result schoolchildren were particularly open to mental influences by persons in authority, and in their developmental phase they learnt in the first instance by imitating the behaviour of adults. In addition, in particular in the case of children who have not reached the age at which they can decide on religious matters themselves, the parents’ right of education applies.

26

Under Article 7.1 of the Basic Law, the state had an independent duty to provide education which is of equal weight to that in Article 6.2 of the Basic Law. Practical concordance between the state’s duty to provide education and the rights of parents and children under Article 4.1 and 4.2 of the Basic Law is achieved by the state’s conducting itself neutrally in religious and ideological matters. The requirement of neutrality attained all the more importance the more diverse the religions in society. The state’s neutrality must be shown in the person of the teacher. Even a comprehensive, open and respectful neutrality did not permit exercise of individual religions as the emanation of state power. The Federal Administrative Court had not introduced an altered concept of neutrality, but merely accorded a growing importance to the requirement of neutrality in a society that was pluralist from the point of view of religion. Since during lessons the headscarf was permanently before the children’s eyes, the possibility that it influenced them could not be excluded, and this alone infringed the requirements of neutrality towards children who had not reached the age at which they could decide on religious matters themselves.

27

On the question of the influence of religious forms of expression in the state education system on the pupils, the Stuttgart Higher School Authority submitted a statement by Professor Dr. Dr. h.c. Oser, Fribourg/Switzerland, as an expert witness.

IV.

28

In the oral hearing, the complainant and her attorney, and the Land Baden-Württemberg (Stuttgart Higher School Authority), represented by Professor Dr. F. Kirchhof, amended and extended their written submissions. The following expert witnesses were heard: Dr. Karakasoglu, Essen, on the reasons why young Muslim girls and women in Germany wear a headscarf; Professor Dr. Riedesser, Hamburg, Professor Dr. Bliesener, Kiel, and Ms Leinenbach, Director of the Psychological Department (Stuttgart Higher School Authority) on questions of a possible influence on children of primary school and non-selective secondary school age from the point of view of child and developmental psychology.

B.

29

The constitutional complaint is admissible and is well-founded. The decisions challenged violate Article 33.2 of the Basic Law in conjunction with Article 4.1 and 4.2 of the Basic Law and with Article 33.3 of the Basic Law.

30

In the context to be assessed here, wearing a headscarf makes it clear that the complainant belongs to the Islamic religion and identifies herself as a muslima. Defining such conduct as a lack of aptitude for the office of a teacher at the primary school and non-selective secondary school encroaches upon the complainant’s right to equal access to every public office under Article 33.2 of the Basic Law in conjunction with the fundamental right of freedom of faith guaranteed to her by Article 4.1 and 4.2 of the Basic Law, without the necessary, sufficiently definite statutory basis for this being satisfied at present. In this way, the complainant has in a constitutionally unacceptable manner been denied access to a public office.

I.

31

Constitutional review in connection with a constitutional complaint concerning a judgment is normally restricted to examining whether the decisions challenged, in their interpretation and application of law below the constitutional level, are based on a fundamentally erroneous view of the meaning and scope of the fundamental right relied on or are arbitrary (on this, cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts , BVerfGE 18, 85 (93); established case-law). However, to the extent that the court whose decision is challenged by the constitutional complaint directly interpreted and applied provisions of fundamental rights itself, the Federal Constitutional Court has a duty to determine the scope and limits of the fundamental rights and to establish whether fundamental rights were taken into account without any error of constitutional law with regard to their extent and weight. This is the situation in the present case. The Federal Administrative Court and also the lower courts based their decisions on a particular interpretation of Article 33.2 of the Basic Law in conjunction with Article 4.1 and 4.2 of the Basic Law. In accordance with its duty of preserving, developing and extending constitutional law and in particular interpreting the various functions of a legal provision containing a fundamental right (cf. BVerfGE 6, 55 (72); 7, 377 (410)), the Federal Constitutional Court in this regard, in its relation to the nonconstitutional courts, is not restricted to examining whether the nonconstitutional courts applied constitutional law in a non-arbitrary manner, but must itself take final and unappealable decisions on the interpretation and application of constitutional law.

II.

32

1. Article 33.2 of the Basic Law grants every German, in accordance with his or her aptitude, qualifications and professional achievement, equal access to every public office.

33

The right in Article 33.2 of the Basic Law, which is equivalent to a fundamental right, guarantees the degree of free choice of one’s occupation or profession (Article 12.1 of the Basic Law) that is possible in view of the number of positions in the civil service, which is, and is permitted to be, restricted by the public corporation responsible in each case (cf. BVerfGE 7, 377 (397-398); 39, 334 (369). Article 33.2 of the Basic Law grants no right to be appointed to a public office (cf. BVerfGE 39, 334 (354); Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts , BVerwGE 68, 109 (110)). The access to activity in a public office (admission to an occupation, which also relates to free choice of occupation) may in particular not be restricted by subjective requirements for admission (cf. BVerfGE 39, 334 (370)). This is done in accordance with § 7 of the Civil Service Law Framework Act (Beamtenrechtsrahmengesetz – BRRG) of 31 March 1999 (Federal Law Gazette, Bundesgesetzblatt, BGBl, I p. 654) in the Civil Service Acts of the Länder by provisions on the personal requirements necessary for those appointed to the status of civil servants. § 11.1 of the Baden-Württemberg Land Civil Service Act as amended on 19 March 1996 (Baden-Württemberg Law Gazette, Gesetzblatt, GBl, p. 286) which applies in the present case, provides that appointments are to be made on the basis of aptitude, qualifications and professional achievement, without taking into account gender, descent, race, belief, religious or political convictions, origin or connections.

34

b) When laying down aptitude criteria for the relevant office and when defining official duties by reference to which the aptitude of applicants for the civil service is to be assessed, the legislature in general has a broad legislative discretion. Limits to this legislative discretion follow from the value decisions in other constitutional norms; the fundamental rights in particular impose limits on the legislature’s legislative discretion. Even for those with the status of civil servants, the fundamental rights apply, although the civil servant’s sphere of responsibilities under Article 33.5 of the Basic Law restricts the civil servant’s legal possibility of relying on fundamental rights (cf. BVerfGE 39, 334 (366-367)): Limits may be imposed on the civil servant’s exercise of fundamental rights in office; these limits follow from general standards imposed on the civil service or from particular requirements of the public office in question (cf. e.g. BVerwGE 56, 227 (228-229)). However, if even access to a public office is refused by reason of future conduct on the part of the applicant that is protected as a fundamental right, then the assumption that there is a lack of aptitude for this reason must in turn be justifiable with regard to the fundamental right affected.

35

c) The evaluation by the employer of an applicant’s aptitude for the public office applied for relates to the applicant’s future occupation in office and at the same time contains a prediction, which requires a concrete assessment of the applicant’s whole personality based on the individual case (cf. BVerfGE 39, 334 (353); 92, 140 (155)). This also includes a statement with regard to the future as to whether the person in question will fulfil the duties under civil-service law that he or she is subject to in the office applied for. In this assessment with regard to the future, the employer has a wide scope of discretion; the review by the nonconstitutional courts is essentially restricted to determining whether the employer proceeded on the basis of incorrect facts, misjudged the civil-service law and constitutional-law context, disregarded generally valid standards of value or took irrelevant matters into consideration (cf. BVerfGE 39, 334 (354); BVerwGE 61, 176 (186); 68, 109 (110); 86, 244 (246)). The employer’s prediction as to an applicant’s aptitude for a particular office must be based on the civil servant’s duties (§§ 35 et seq. of the Civil Service Law Framework Act; §§ 70 et seq . of the Baden-Württemberg Land Civil Service Act). Official duties that the applicant is expected to carry out must be sufficiently specified in law and must respect the limits imposed by the applicant’s fundamental rights.

36

2. If a duty is imposed on the civil servant that, at school and in lessons, teachers may not outwardly show their affiliation to a religious group by observing dress rules with a religious basis, this duty encroaches upon the individual freedom of faith guaranteed by Article 4.1 and 4.2 of the Basic Law. It confronts those affected with the choice either to exercise the public office they are applying for or obeying the religious requirements as to dress, which they regard as binding.

37

Article 4.1 of the Basic Law guarantees freedom of faith, conscience and religious and ideological belief; Article 4.2 guarantees the right of undisturbed practice of religion. The two subsections of Article 4 of the Basic Law contain a uniform fundamental right which is to be understood comprehensively (cf. BVerfGE 24, 236 (245-246); 32, 98 (106); 44, 37 (49); 83, 341 (354)). It extends not only to the inner freedom to believe or not to believe, but also to the outer freedom to express and disseminate the belief (cf. BVerfGE 24, 236 (245)). This includes the individual’s right to orientate his or her whole conduct to the teachings of his or her faith and to act in accordance with his or her inner religious convictions. This relates not only to imperative religious doctrines, but also to religious convictions according to which a way of behaviour is the correct one to deal with a situation in life (cf. BVerfGE 32, 98 (106-107); 33, 23 (28); 41, 29 (p 49)).

38

The freedom of faith guaranteed in Article 4.1 and 4.2 of the Basic Law is guaranteed unconditionally. Restrictions must therefore be contained in the constitution itself. This includes the fundamental rights of third parties and community values of constitutional status (cf. BVerfGE 28, 243 (260-261); 41, 29 (50-51); 41, 88 (107); 44, 37 (49-50, 53); 52, 223 (247); 93, 1 (21)). Moreover, restricting the freedom of faith, which is unconditionally guaranteed, requires a sufficiently definite statutory basis (cf. BVerfGE 83, 130 (142)).

39

3. Article 33.3 of the Basic Law is also affected. It provides that admission to public offices is independent of religious belief (sentence 1); no-one may suffer a disadvantage by reason of belonging or not belonging to a faith or to an ideology (sentence 2). Consequently, a connection between admission to public offices and religious belief is out of the question. Article 33.3 of the Basic Law is directed in the first instance against unequal treatment directly linked to the profession of a particular religion. In addition, the provision at all events also prohibits refusing admission to public offices for reasons that are incompatible with the freedom of faith protected by Article 4.1 and 4.2 of the Basic Law (cf. BVerfGE 79, 69 (75)). This does not exclude creating official duties that encroach upon the freedom of faith of office-holders and applicants for official offices, and that thus make it harder or impossible for religious applicants to enter the civil service, but it does subject these to the strict requirements of justification that apply to restrictions of freedom of faith, which is guaranteed unconditionally; in addition, the requirements of strictly equal treatment of the various religions must be observed, both in creating and in the practice of enforcing such official duties.

40

4. a) The wearing of a headscarf by the complainant at school as well as outside school is protected by the freedom of faith, which is guaranteed in Article 4.1 and 4.2 of the Basic Law. According to the findings of fact made by the nonconstitutional courts and not disputed in the proceedings relating to the constitutional complaint, the complainant regards the wearing of a headscarf as bindingly imposed on her by the rules of her religion; observing this dress rule is, for her, the expression of her religious belief. The answer to the controversial question as to whether and how far covering the head is prescribed for women by rules of the Islamic faith is not relevant. It is true that not every form of conduct of a person can be regarded as an expression of freedom of faith, which enjoys special protection, purely according to its subjective intention; instead, when conduct by an individual that has been claimed to be an expression of the individual’s freedom of faith is assessed, that his or her particular religious group’s concept of itself may not be overlooked (cf. BVerfGE 24, 236 (247-248)). A duty of women to wear a headscarf in public may, by its content and appearance, as a rule of faith founded in the Islamic religion, be attributed with sufficient plausibility to the area protected by Article 4.1 and 4.2 of the Basic Law (on this, see also BVerfGE 83, 341 (353)); this was done by the nonconstitutional courts in a manner that cannot be constitutionally objected to.

41

b) The assumption that the complainant lacks the necessary aptitude to fulfil the duties of a teacher at the primary school und non-selective secondary school, because, contrary to an existing official duty, she wanted to wear a headscarf at school and in lessons, and this headscarf showed clearly that she was a member of the Islamic religious group, and the refusal to admit her to a public office, which was based on this, would be compatible with Article 4.1 and 4.2 of the Basic Law if the intended exercise of freedom of faith conflicted with objects of legal protection of constitutional status and this restriction of the free exercise of religion could be based on a sufficiently definite statutory foundation. Interests that are protected by the constitution that conflict with freedom of faith here may be the state’s duty to provide education (Article 7.1 of the Basic Law), which is to be carried out having regard to the duty of ideological and religious neutrality, the parents’ right of education (Article 6.2 of the Basic Law) and the negative freedom of faith of schoolchildren (Article 4.1 of the Basic Law).

42

aa) In Article 4.1, Article 3.3 sentence 1 and Article 33.3 of the Basic Law, and in Article 136.1, Article 136.4 and Article 137.1 of the Weimar Constitution (Weimarer Reichsverfassung ) in conjunction with Article 140 of the Basic Law, the Basic Law lays down for the state as the home of all citizens the duty of religious and ideological neutrality. It bars the introduction of legal structures in the nature of a state church and forbids giving privileged treatment to particular faiths and excluding those of a different belief (cf. BVerfGE 19, 206 (216); 24, 236 (246); 33, 23 (28); 93, 1 (17)). The state must be careful to treat the various religious and ideological communities with regard to the principle of equality (cf. BVerfGE 19, 1 (8); 19, 206 (216); 24, 236 (246); 93, 1 (17)) and may not identify with a particular religious community (cf. BVerfGE 30, 415 (422); 93, 1 (17)). The free state of the Basic Law is characterised by openness towards the variety of ideological and religious convictions and bases this on an image of humanity that is marked by the dignity of humans and the free development of personality in self-determination and personal responsibility (cf. BVerfGE 41, 29 (50)).

43

However, the religious and ideological neutrality required of the state is not to be understood as a distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion (cf. BVerfGE 41, 29 (49); 93, 1 (16)). The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society (cf. BVerfGE 93, 1 (16-17)) The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such (cf. BVerfGE 33, 23 (29)).

44

Under the understanding until now of the relationship between state and religion, as it is reflected in the case-law of the Federal Constitutional Court, this applies above all to the area of the compulsory school, for which the state has taken responsibility, and for which, by its nature, religious and ideological ideas have always been relevant (cf. BVerfGE 41, 29 (49); 52, 223 (241)). In this view, Christian references are not absolutely forbidden in the organisation of state schools; however, school must also be open to other ideological and religious content and values (cf. BVerfGE 41, 29 (51); 52, 223 (236-237)). In this openness, the free state of the Basic Law preserves its religious and ideological neutrality (cf. BVerfGE 41, 29 (50)). For the tensions that are unavoidable when children of different ideological and religious beliefs are taught together, it is necessary, giving consideration to the requirement of tolerance as the expression of human dignity (Article 1.1 of the Basic Law) to seek a balance (cf. BVerfGE 41, 29 (63); 52, 223 (247, 251); 93, 1 (21 ff.); for more detail, see dd) below).

45

bb) Article 6.2 sentence 1 of the Basic Law guarantees to parents the care and education of their children as a natural right, and together with Article 4.1 of the Basic Law it also includes the right to educate children in religious and ideological respects; it is therefore above all the responsibility of the parents to convey to their children the convictions in religious and ideological matters that they regard as right (cf. BVerfGE 41, 29 (44, 47-48); 52, 223 (236); 93, 1 (17)). Corresponding to this is the right to keep the children away from religious convictions that appear to the parents to be wrong or harmful (cf. BVerfGE 93, 1 (17)). However, Article 6.2 of the Basic law does not contain an exclusive right of education for the parents. Separately and in its sphere given equal rights beside the parents, the state, to which under Article 7.1 of the Basic Law the supervision of all education is delegated, exercises its own duty to provide education (cf. BVerfGE 34, 165 (183); 41, 29 (44)). How this duty is to be carried out in detail, and in particular to what extent religious references are to have their place at school, is subject within the limits laid down by the Basic Law, above all in Article 4.1 and 4.2 of the Basic Law, to the freedom of organisation of the Länder (cf. BVerfGE 41, 29 (44, 47-48); 52, 223 (242-243); for details, see dd) below).

46

cc) Finally, the freedom to exercise religious conviction relied on by the complainant conflicts with the negative freedom of faith of the pupils in her wearing of a headscarf at school and in lessons. Article 4.1 and 4.2 of the Basic Law, which protects equally the negative and the position manifestations of freedom of faith, also guarantees the freedom to stay away from cultic acts of a religion that is not shared; this also applies to cults and symbols in which a belief or a religion represents itself. Article 4 of the Basic Law leaves it to the individual to decide what religious symbols he or she recognises and reveres and which he or she rejects. Admittedly, in a society that affords space to differing religious convictions, he or she has no right to be spared cultic acts, religious symbols and professions of other faiths. But this must be distinguished from a situation created by the state in which the individual is exposed without an alternative to the influence of a particular faith, to the actions in which this manifests itself and the symbols through which it presents itself (cf. BVerfGE 93, 1 (15-16)). In this respect, Article 4.1 and 4.2 of the Basic Law have the effect of securing freedom precisely in areas of life that are not left to be organised by society itself but that the state has taken responsibility for (cf. BVerfGE 41, 29 (49)); this is affirmed by Article 140 of the Basic Law in conjunction with Article 136.4 of the Weimar Constitution, which prohibits forcing anyone to take part in religious exercises.

47

dd) The Basic Law gives the Länder a broad freedom of organisation in education; in relation to the ideological and religious character of state schools too, Article 7 of the Basic Law takes account of the fact that the Länder are to a large extent independent and within the limits of their sovereignty in education matters may in principle organise compulsory schools freely (cf. BVerfGE 41, 29 (44-45); 52, 223 (242-243)). The relationship between the positive freedom of faith of a teacher on the one hand and the state’s duty of religious and ideological neutrality, the parents’ right of education and the negative freedom of faith of the pupils on the other hand, taking into account the requirement of tolerance, is inevitably sometimes strained, and it is the duty of the democratic Land legislature to resolve this tension; in the public process of developing an informed opinion, the legislature must seek a compromise that is reasonably acceptable to everyone. When legislating, the legislature must orientate itself to the fact that on the one hand Article 7 of the Basic Law permits ideological and religious influences in the area of education, provided the parents’ right of education is preserved, and on the other hand Article 4 of the Basic Law requires that ideological and religious constraints are excluded as far as at all possible when the decision is made in favour of a particular form of school. The provisions must be seen together, and their interpretation and their area of influence must be coordinated with each other. This includes the possibility that the individual Länder may make different provisions, because the middle course that needs to be found may also take into account school traditions, the composition of the population by religion, and whether it is more or less strongly rooted in religion (cf. BVerfGE 41, 29 (50-51); 93, 1 (22-23)).

48

These principles also apply to the answer to the question as to the extent to which teachers may be subjected to duties as to their appearance and conduct at school, restricting their individual fundamental right of freedom of faith, in connection with the preservation of the ideological and religious neutrality of the state.

49

5. If teachers introduce religious or ideological references at school and teachers, this may adversely affect the state’s duty to provide education, which is to be carried out in neutrality, the parents’ right of education and the negative freedom of faith of the pupils. It at least opens up the possibility of influence on the pupils and of conflicts with parents that may lead to a disturbance of the peace of the school and may endanger the carrying out of the school’s duty to provide education. The dress of teachers that is religiously motivated and that is to be interpreted as the profession of a religious conviction may also have these effects. But these are only abstract dangers. If even such mere possibilities of endangerment or of a conflict as a result of the appearance of the teacher, rather than concrete behaviour that presents itself as the attempt to influence or even proselytise the schoolchildren for whom the teacher is responsible, are to be seen as an infringement of duties under civil-service law or as a lack of aptitude which prevents appointment as a civil servant, then, because this entails the restriction of the unconditionally granted fundamental right under Article 4.1 and 4.2 of the Basic Law, it requires a sufficiently specific statutory basis permitting it. This is lacking in the present case.

50

a) In considering the question of whether a specific form of dress or other outward sign has a religious or ideological significance in the nature of a symbol, attention must be paid to the effect of the means of expression used and to all possibilities of interpretation that are possible. Unlike the Christian cross (on this, see BVerfGE 93, 1 (19-20)), the headscarf is not in itself a religious symbol. Only in connection with the person who wears it and with the conduct of that person in other respects can it have such an effect. The headscarf worn by Muslim women is perceived as a reference to greatly differing statements and moral concepts:

51

As well as showing the desire to observe dress rules that are felt to be binding and have a religious basis, it can also be interpreted as a symbol for upholding traditions of the society of the wearer’s origin. In the most recent times, it is seen increasingly as a political symbol of Islamic fundamentalism that expresses the separation from values of western society, such as individual self-determination and in particular the emancipation of women. However, according to the findings of fact in the nonconstitutional courts, which were also confirmed in the oral hearing, this is not the message that the complainant wishes to convey by wearing the headscarf.

52

The expert witness Dr. Karakasoglu, who was heard in the oral hearing, carried out a survey of about 25 Muslim students at colleges of education, twelve of whom wore a headscarf, and on the basis of this survey she showed that the headscarf is also worn by young women in order to preserve their own identity and at the same time to show consideration for the traditions of their parents in a diaspora situation; in addition, another reason for wearing the headscarf that had been named was the desire to obtain more independent protection by signalling that they were not sexually available and integrating themselves into society in a self-determined way. Admittedly, the wearing of the headscarf was intended to document in public the value one placed on religious orientation in one’s own life, but it was understood as the expression of an individual decision and did not conflict with a modern lifestyle. As understood by the women questioned, preserving their difference is a precondition for their integration. It is not possible to make any statements that are representative of all Muslim women living in Germany on the basis of the interviews conducted and evaluated by the expert witness, but the results of the research show that in view of the variety of motive, the interpretation of the headscarf may not be reduced to a symbol of the social repression of women. Rather, the headscarf can for young Muslim women also be a freely chosen means to conduct a self-determined life without breaking with their culture of origin. Against this background, there is no evidence that the complainant, merely because she wears a headscarf, might for example make it more difficult for Muslim girls who are her pupils to develop an image of woman that corresponds to the values of the Basic Law or to put it into effect in their own lives.

53

To assess whether the intention of a teacher to wear a headscarf at school and in lessons constitutes a lack of aptitude, the decisive question is what effect a headscarf can have on someone who sees it (the objective standpoint of the onlooker); therefore all conceivable possibilities as to how the wearing of a headscarf might be regarded must be taken into account in the assessment. However, this has no effect on the fact that the complainant, who plausibly stated that she had religiously motivated reasons for her decision always to wear a headscarf in public, can rely for this conduct on the protection of Article 4.1 and 4.2 of the Basic Law, which is closely related to the paramount constitutional value of human dignity (Article 1.1 of the Basic Law; cf. BVerfGE 52, 223 (247)).

54

b) With regard to the effect of religious means of expression, it is necessary to distinguish whether the symbol in question is used at the instigation of the school authority or on the basis of one single teacher’s personal decision; such a teacher may rely on the individual right of freedom in Article 4.1 and 4.2 of the Basic Law. If the state tolerates teachers wearing dress at school that they wear by reason of a personal decision and that can be interpreted as religious, this cannot be treated in the same way as a state order to attach religious symbols at school (on this, cf. BVerfGE 93, 1 (18)). The state that accepts the religious statement of an individual teacher associated with wearing a headscarf does not in so doing make this statement its own and is not obliged to have this statement attributed to it as intended by it. The effect of a headscarf worn by the teacher for religious reasons may, however, become particularly intense because the pupils are confronted with the teacher, who is the focal point of lessons, for the whole time when they are at school without a possibility of escape. On the other hand, the teacher may differentiate when explaining to the pupils the religious statement made by a garment, and in this way she may weaken its effect.

55

c) There is no confirmed empirical foundation for the assumption that the complainant would commit an infringement of her official duty because of the feared controlling influence of her headscarf on the religious orientation of the schoolchildren.

56

In the oral hearing, the expert witness Professor Dr. Bliesener was heard on this point; he stated that from the point of view of developmental psychology there is at present no confirmed knowledge that proves that children are influenced solely because every day they meet a teacher who wears a headscarf at school and in lessons. Only if there were also conflicts between parents and teacher that might arise in connection with the teacher’s headscarf were onerous effects to be expected, in particular on younger pupils. The two other expert witnesses heard by the Senate, Ms Leinenbach, Director of the Psychology Department, and Professor Dr. Riedesser, presented no information that contradicted this. Such an unconfirmed state of knowledge is not sufficient as the basis of an official application of the indeterminate legal concept of aptitude, which encroaches substantially upon the complainant’s fundamental right under Article 4.1 and 4.2 of the Basic Law.

57

d) At all events, there was not a sufficiently definite statutory basis for rejecting the complainant for lack of aptitude as a result of her refusal to remove the headscarf at school and in lessons.

58

The school authority and the nonconstitutional courts present the view that the complainant’s intention to wear a headscarf as a teacher constitutes a lack of aptitude because pre-emptive action should be taken against possible influence on the pupils, and conflicts, which cannot be ruled out, between teachers and pupils or their parents should be avoided in advance; at present this view does not justify encroaching upon the complainant’s right under Article 33.2 of the Basic Law, which is equivalent to a fundamental right, nor the accompanying restriction of her freedom of faith. No tangible evidence could be seen in the proceedings before the nonconstitutional courts that the complainant’s appearance when wearing a headscarf created a concrete endangerment of the peace at school. The fear that conflicts might arise with parents who object to their children being taught by a teacher wearing a headscarf cannot be substantiated by experience of the complainant’s previous teaching as a trainee. The current civil service and school legislation in the Land Baden-Württemberg is not adequate to permit a prohibition on teachers wearing a headscarf at school and in lessons on the grounds of abstract endangerment. The mere fact that conflicts cannot be ruled out in future does not, in the absence of a legal basis designed for this purpose, justify deriving from the general civil-service-law requirement of aptitude an official duty on the part of the complainant to give up exercising her religious conviction by wearing a headscarf.

59

Under civil service law, in view of the state’s duty of religious and ideological neutrality at school described above under B. II 4. b) aa), neither the concept of aptitude contained in § 11.1 of the Baden-Württemberg Civil Service Act nor the duties for civil servants laid down in §§ 70 et seq. of the Baden-Württemberg Civil Service Act, which are to be taken into consideration as orientation in assessing the aptitude of an applicant for a public office, can serve as the basis for a duty of teachers not to permit their affiliation to a particular religion or ideology to be outwardly discernible, in order in this way to pre-emptively counter potential dangers.

60

Under § 70.1 sentence 1 of the Baden-Württemberg Civil Service Act, the civil servant serves all the people, and under § 70.1 sentence 2 the civil servant must fulfil his or her duties impartially and fairly, and must take account of the welfare of the public in carrying out his or her duties. Under § 70.2 of the Baden-Württemberg Civil Service Act, the civil servant must acknowledge the free democratic fundamental order of the Basic Law and stand up for its preservation in all his or her conduct. It is not apparent that the complainant would be prevented from doing this by wearing a headscarf. Nor does the requirement of moderation in § 72 of the Baden-Württemberg Civil Service Act, which provides that a civil servant who is involved in politics shall observe the moderation and restraint that follow from his or her position vis-à-vis the whole of society and from the consideration for the duties of his or her office, cover the case of wearing a headscarf for religious reasons. The same applies to the duty of civil servants to devote themselves with full dedication to their office (§ 73.1 of the Baden-Württemberg Civil Service Act), to exercise their office unselfishly to the best of their belief (§ 73.2 of the Baden-Württemberg Civil Service Act) and to base their conduct both on duty and off duty on doing justice to the respect and the confidence demanded by their profession (§ 73.3 of the Baden-Württemberg Civil Service Act). A prohibition preventing teachers at a state primary school and non-selective secondary school from wearing a headscarf for religious reasons and that restricts fundamental rights cannot be derived from these general duties under civil-service law. Finally, § 94 of the Baden-Württemberg Civil Service Act contains no regulations on a particular form of working dress for teachers.

61

Nor do the provisions in Articles 11 to 22 of the Constitution of the Land Baden-Württemberg of 11 November 1953 (Baden-Württemberg Law Gazette p. 173) on education and teaching and the Baden-Württemberg Education Act (Schulgesetz für Baden-Württemberg – SchG) as amended on 1 August 1983 (Baden-Württemberg Law Gazette p. 397), in particular §§ 1 and 38 thereof, contain any provision under which the general civil-service-law duties of moderation and restraint for teachers could be interpreted in concrete terms to mean that they were not permitted at school to wear any dress or other symbols that show that they belong to a particular religious group. At present, therefore, the necessary sufficiently definite statutory basis does not exist to decide that teachers of the Islamic faith, by reason of their declared intention to wear a headscarf at school, lack aptitude for service at the primary school and non-selective secondary school and thus to restrict their fundamental right under Article 4.1 and 4.2 of the Basic Law.

62

6. However, the Land legislature responsible is at liberty to create the statutory basis that until now has been lacking, for example by newly laying down the permissible degree of religious references in schools within the limits of the constitutional requirements. In doing this, the legislature must take into reasonable account the freedom of faith of the teachers and of the pupils affected, the parents’ right of education and the state’s duty of ideological and religious neutrality.

63

a) The Federal Administrative Court, in the judgment challenged, emphasised inter alia that with growing cultural and religious variety, where an increasing proportion of schoolchildren were uncommitted to any religious denomination, the requirement of neutrality was becoming more and more important, and it should not, for example, be relaxed on the basis that the cultural, ethnic and religious variety in Germany now characterised life at school too. In the oral hearing, the representative of the Stuttgart Higher Education Authority, Professor Dr. F. Kirchhof, argued that the state’s duty of ideological and religious neutrality in schools must now be treated more strictly, in view of the changed circumstances.

64

Social change, which is associated with increasing religious plurality, may be the occasion for redefining the admissible degree of religious references permitted at school. A provision to this effect in the Education Acts may then give rise to concrete definitions of teachers’ general duties under civil-service law, including duties with regard to their appearance, to the extent that the latter shows their affiliation to particular religious convictions or ideologies. It is therefore conceivable that there could also be statutory restrictions of the freedom of faith, in compliance with the constitutional requirements. If it is apparent from the outset that an applicant will not comply with such rules of conduct, this can be stated to the applicant as a lack of aptitude.

65

A provision prohibiting teachers from continuously showing their membership in a particular religious group or belief by external signs is part of the law determining the relationship between state and religion in schools. The religious diversity in society, which has evolved gradually, is reflected here particularly clearly. School is the place where differing religious views inevitably collide and where this juxtaposition has particularly great effects. Tolerant coexistence with people of other beliefs could be practised here with most lasting effect through education. This need not mean denying one’s own convictions; instead, it would give a chance for insight and to strengthen one’s own point of view, and for mutual tolerance that does not see itself as reducing all beliefs to the same level (cf. BVerfGE 41, 29 (64)). Reasons could therefore be given for accepting the increasing variety of religions at school and using it as a means for practising mutual tolerance and in this way making a contribution to the attempt to achieve integration. On the other hand, the development described above is also associated with a greater potential for possible conflicts at school. There may therefore also be good reasons to accord the state duty of neutrality in schools a stricter importance that is more distanced than it has been previously, and thus, as a matter of principle, to keep religious references conveyed by a teacher’s outward appearance away from the pupils in order to avoid conflicts with pupils, parents or other teachers.

66

b) It is not the duty of the executive to decide how to react to the changed circumstances, and in particular what rules of conduct with regard to dress and other aspects of behaviour towards schoolchildren should be imposed on teachers to define more specifically their general obligations under civil-service law and to preserve religious peace at school, and what requirements therefore are part of aptitude for a teaching post. Rather, it is necessary for the democratically legitimated Land legislature to make provisions in this respect. Only the legislature has a prerogative of evaluation to assess the actual developments; it depends on this assessment whether conflicting fundamental rights of pupils and parents or other values of constitutional status justify legislation that imposes on teachers of all religions extreme restraint in the use of symbols with religious reference; authorities and courts cannot exercise this prerogative of evaluation themselves (cf. BVerfGE 50, 290 (332-333); 99, 367 (389-390)). The assumption that a prohibition of wearing headscarves in state schools may be a permissible restriction of freedom of faith as an element of a legislative decision about the relation between state and religion in the education system is also in harmony with Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (cf. European Court of Human Rights, decision of 15 February 2001, Neue Juristische Wochenschrift 2001, pp. 2871 ff.).

67

aa) The constitutional necessity of legislation follows from the principle of the requirement of parliamentary approval. The principle of a constitutional state and the requirement of democracy oblige the legislature to pass the provisions essential for the realisation of fundamental rights itself (cf. BVerfGE 49, 89 (126); 61, 260 (275); 83, 130 (142)). How far the legislature must itself determine the guidelines necessary for the area of life in question depends on its relation to fundamental rights. The legislature does have such an obligation if conflicting fundamental civil rights collide with each other and the limits of each are fluid and can be determined only with difficulty. This applies above all if the fundamental rights affected, like positive and negative freedom of faith in the present case and the parents’ right of education are, by the wording of the constitution, guaranteed without a constitutional requirement of the specific enactment of a statute and a provision intended to organise this area of life is necessarily obliged to determine and specify their limits inherent in the Basic Law. Here, the legislature has a duty at all events to determine the limits of the conflicting guarantees of freedom at least to the extent that such a determination is essential to the exercise of these civil rights and liberties (cf. BVerfGE 83, 130 (142)).

68

When it is necessary for parliament to pass legislation can be decided only in view of the subject area and the nature of the object of constitutional definition involved. The constitutional criteria of evaluation here are to be derived from the fundamental principles of the Basic Law, in particular the fundamental rights guaranteed there (cf. BVerfGE 98, 218 (251)). Admittedly, the mere fact that a provision is politically controversial does not mean that it would have to be seen as essential (cf. BVerfGE 98, 218 (251)). Under the constitution, however, the restriction of fundamental freedoms and the balancing of conflicting fundamental rights are reserved to parliament, in order to ensure that decisions with such repercussions result from a procedure that gives the public the opportunity to develop and express its opinions, and that requires parliament to clarify the necessity and extent of encroachments upon fundamental rights in public debate (cf. BVerfGE 85, 386 (403-404)).

69

In the education system in particular, the requirements of a constitutional state and the principle of democracy of the Basic Law oblige the legislature to make the essential decisions itself and not to leave them to the school board (cf. BVerfGE 40, 237 (249); 58, 257 (268-269)). This also applies, and applies in particular, if and to the extent that, in reaction to changed social circumstances and increasing ideological and religious variety at school it is intended to respond with a stricter restraining of all religious references and thus to newly define the state’s duty of neutrality within the boundaries laid down by the constitution. Such a division is of considerable significance for the realisation of fundamental rights in the relationship between teachers, parents and children, and also the state.

70

bb) A provision that one of the duties of a teacher is to refrain in class from wearing a headscarf or any other indications of religious conviction is a material (wesentlich) provision in the meaning of the case-law on the requirement of parliamentary approval. It encroaches substantially upon the freedom of faith of the person affected. It also affects people belonging to various religions with varying intensity, depending on whether they regard the observance of particular dress customs as part of the exercise of their religion or not. As a result, it has special effects of exclusion for particular groups. Because of this relation to groups, the creation of such an official duty for teachers is of material significance, over and above its significance for the exercise of the individual fundamental right, for the function of social organisation inherent in the freedom of faith.

71

Finally, the introduction of an official duty that prohibits teachers from allowing their outward appearance to show their religion must be expressly laid down by statute, for one reason because such an official duty can only be justified and enforced in a constitutional manner – inter alia compatible with Article 33.3 of the Basic Law – if members of different religious groups are treated equally by it. This is not guaranteed to the same extent if it is left to authorities and courts to decide from case to case whether such an official duty exists and what its scope is, depending on their predictions as to the potential for influence and conflict of identifying characteristics of religious affiliation in the appearance of the teacher in question.

III.

72

As long as there is no statutory basis that indicates specifically enough that teachers at the primary school and non-selective secondary school have an official duty to refrain from identifying characteristics of their religious affiliation at school and in lessons, then on the basis of prevailing law it is incompatible with Article 33.2 in conjunction with Article 4.1 and 4.2 of the Basic Law and Article 33.3 of the Basic Law to assume that the complainant lacks aptitude. The decisions challenged by the constitutional complaint therefore infringe the legal position of the complainant guaranteed in these provisions. The judgment of the Federal Administrative Court is overturned and the matter is referred back to the Federal Administrative Court (§ 95.2 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz ). It is to be expected that the proceedings can be concluded there on the basis of § 11.1 of the Baden-Württemberg Land Civil Service Act, which under § 127 number 2 of the Civil Service Law Framework Act admits an appeal on a point of law; in these proceedings, the decisive concept of aptitude must be interpreted and applied in accordance with the provisions – amended if applicable – of the law of school education of the Land .

73

The decision on the reimbursement of necessary expenses is based on § 34a.2 of the Federal Constitutional Court Act.

C.

74

This decision was passed by five votes to three.

(signed)HassemerSommerJentsch
BroßOsterlohDi Fabio
MellinghoffLübbe-Wolff

Dissenting opinion

of the judges Jentsch, Di Fabio and Mellinghoff
on the judgment of the Second Senate of 24 September 2003

– 2 BvR 1436/02 –

75

The majority of the Senate assume that particular official duties of a civil servant, if they are connected to the civil servant’s freedom of religion or ideology, may be created only by a law passed by parliament. Until now, this view has been stated neither in case law nor literature, nor by the complainant herself. If this point of view is adopted, not only does the fundamental constitutional question submitted to the court as to the state’s neutrality in the school’s sphere of training and education remain undecided; the view also results in an erroneous weighting, not based on the Basic Law, in the system of the separation of powers and in the understanding of the normative power of fundamental rights in connection with access to public offices. The decision disregards the expressly stated intention of the Baden-Württemberg Land parliament that it would not pass a formal statute by reason of the complainant’s case; in addition, it leaves the parliament uncertain as to how a constitutional provision can be made. Finally, the majority of the Senate give the Land legislature no possibility of preparing itself for the new situation under constitutional law that the Senate assumes will exist, and neglects to inform the judiciary and the administration how they are to proceed until a Land statute is passed.

I.

76

In order to justify the constitutional requirement that a statute must be specifically enacted, the majority of the Senate wrongly assume that there was a serious encroachment upon the complainant’s freedom of religion and ideology. In this they fail to appreciate the functional restriction, with regard to civil servants, of the protection of fundamental rights. In the case of access to a public office, there is no open situation where legal interests of equal value are weighed up; the legal relationship that is essential to the realisation of fundamental rights at school is shaped in the first instance by the protection of the fundamental rights of pupils and parents.

77

1. Those who become civil servants place themselves by a free act of will on the side of the state. A civil servant can therefore not rely on the effect of the fundamental rights to guarantee freedom in the same way as someone who is not part of the state organisation. In exercise of their public office, therefore, civil servants are protected by the promise of freedom as against the state guaranteed by fundamental rights only to the extent that no restrictions arise from the special reservation to civil servants of the exercise of sovereign powers. Teachers with the status of civil servants, even within the scope of their personal pedagogical responsibility, do not teach in exercise of their own freedom, but on the instructions of the general public and with responsibility to the state. Teachers who are civil servants therefore from the outset do not enjoy the same protection by fundamental rights as parents and pupils: instead, the teachers are bound by the fundamental rights because they share in the exercise of state authority.

78

In formulating official duties for the civil servants, the state administrative authority also fulfils the requirements of its obligation under Article 1.3 of the Basic Law; the civil servant’s official duty is the reverse side of the freedom of the citizen who is confronted by state authority in the person of the official. If official duties are imposed on the teacher for the exercise of his or her office, therefore, this is not a matter of encroachments upon society outside the state-controlled sphere or an occasion for the ensuing call for law passed by parliament to protect the citizen. The state relies on official duties to ensure in its internal sphere uniform administration complying with statute and the constitution.

79

The majority of the Senate did not take this difference in structure adequately into account. As a result, the situation of the teacher on the one hand and of the pupils and parents on the other hand, which differ with regard to fundamental rights, are not correctly understood. In particular the legal position of the applicant, who has no legal claim to enter the sphere of state control as he or she desires, may not be seen under the aspect of a subject of fundamental rights defending himself or herself against the state. Voluntary entry into the status of a civil servant is a decision made by the applicant in freedom, choosing obligation to the public interest and loyalty to an employer that, in a democracy, acts for the people and is monitored by the people. A person who wishes to become a civil servant may therefore not reject the requirement of moderation and of occupational neutrality, neither in general nor with reference to specific official or private constellations that can be recognised in advance. At all events it cannot be reconciled with these duties if the civil servant plainly uses his or her employment, within the sphere of that civil service, as a space to profess beliefs, and thus effectively as a stage on which to develop the civil servant’s own fundamental rights. The duty conferred on the civil servant consists in expertly, objectively, dispassionately and neutrally assisting in giving effect to democratic intention, that is, the intention of legislation and of the responsible government, and in taking second place as an individual where the civil servant’s claims to realisation of his or her personality are likely to create conflicts in his or her employment and thus obstacles to the realisation of democratically formed will.

80

2. Civil servants are fundamentally different from those citizens who are subjected to a special status relationship by measures of public authority but do not in this connection enter the sphere of the state, merely a special legal relationship, such as pupils and their parents, who have the right to educate them, in the compulsory state school (BVerfGE 34, 165 (192-193); 41, 251 (259-260); 45, 400 (417-418); 47, 46 (78 ff.)) or prisoners in prison (BVerfGE 33, 1 (11)). It is therefore an error to believe that it is possible to fight another battle for the Basic Law’s idea of freedom, following the struggle against the institution of the special relationship of subordination (besonderes Gewaltverhältnis) , by emphasising fundamental rights positions in the internal sphere of the civil service. The opposite is the case. If one sees teachers, who are bound by fundamental rights, primarily as subjects of fundamental rights, and thus sees the teacher’s personal liberty rights in opposition to those of pupils and parents, one reduces the freedom of those for whose sake the theory of materiality (Wesentlichkeitstheorie , the theory that material decisions must be laid down by the legislature rather than decided by the executive), broadened the constitutional requirement in school education law that matters should be specifically enacted in statutes.

81

The relationship of the civil servant to the state is a particular relationship of proximity with its own inherent rules, which are recognised by the constitution and regarded as worth preserving. Under the balanced concept of the Basic Law, civil servants are certainly intended to be freedom-conscious citizens – if not, loyalty to the free constitution would only be lip service – but at the same time they are to observe the fundamental priority of official duties and the intention of the democratic institutions embodied in it. As a personality, the civil servant is not a mere “instrument of execution”, even if he or she decides to work for the public good. Those who wish to become civil servants, however, must loyally identify themselves with the constitutional state in important fundamental questions and when observing their official duties, because the state, conversely, is represented by its civil service and is identified with the concrete civil servant. All the principles of the permanent civil service are dominated by this idea of reciprocity and proximity.

82

Fundamental personal liberty rights of a civil servant or of a person applying for a public office are therefore from the outset guaranteed only to the extent that they are compatible with these laws inherent to the civil service. They form part of these necessities of the civil service if there is no fear of obstructions to the working routine. Any other approach than such a priority of the exercise of sovereign powers with regard to fundamental rights of the civil servants in office would be incompatible with the constitutional requirement of practical concordance. Failing this, the interpretation of the constitution would give rise to a contradiction that is not contained in the Basic Law itself. The fundamental rights are intended to guarantee distance between political power and society outside state control, and they are not intended to take effect in the very context where the constitution intends there to be a particular proximity and therefore excludes mutual distancing.

83

The fundamental rights preserve distance between citizens and state authority precisely in order to place limits upon state rule (Loschelder, in: Isensee/Kirchhof (eds.), Handbuch des Staatsrechts , vol. V, 2nd ed., 2000, § 123, marginal number 16; Di Fabio, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, VVDStRL, 56, p. 235 (253-254)). This most elevated function of the fundamental rights may not, however, develop without restriction where the distance is specifically intended to be removed by incorporation into the state and therefore the constitution does not intend the distance to exist. In a relationship of proximity that is institutionally desired by the constitution, therefore, the most basic function of a fundamental right cannot assert itself without calling into question the relationship of proximity and the constitution’s decision in favour of a democratically guided civil service.

84

3. The evaluation of aptitude in connection with the special right of equality under Article 33.2 of the Basic Law must not be mistaken for an encroachment upon the freedom under Article 4.1 of the Basic Law.

85

The requirement and, as it were, the normal case of classical civil rights and liberties is an intrusion by state authority into the sphere of the citizen. The constellations in which the citizen approaches the state, claims benefits from the general public or offers his or her services to the general public deviate from this normal case. Here, state authority does not intrude on society, but subjects of fundamental rights seek proximity to the state organisation, desire the state to act, seek a legal relationship.

86

The constitutional complaint challenges the violation of Article 33.2 in conjunction with Article 33.3 of the Basic Law and therefore relies on a special right of equality. If rights of equality are asserted in isolation or connection with a claim for performance, however, the constitutional requirement of the specific enactment of a statute cannot be relied on. The infringement of equality does not give rise to an encroachment upon a right of freedom that could trigger the requirement of the specific enactment of a statute. The constellation surrounding the encroachment is different: the appointment of a teacher whose person does not offer a guarantee that he or she will carry out his or her duties neutrally in class indirectly affects fundamental rights of the pupils and their parents; as a result, at best there could be a discussion as to whether a statute is necessary with regard to protecting the freedom of the pupils and parents.

87

If the state forbids a person to wear a headscarf, which is at least in part motivated by religion, in a public place, it undoubtedly encroaches upon the fundamental right of freedom of religion. If the civil servant, on the other hand, wishes to display indications that are understood as religious in a space that the constitution has already defined as neutral – in this case when teaching in a compulsory state school – and as a representative of the general public, the civil servant is not exercising, in the social sphere, a freedom to which he or she is entitled as an individual. The civil servant’s exercise of freedom at work is from the outset restricted by the necessities and above all the constitutional definition of the office; if this were not so, the realisation of the will of the people would fail for an excess of personal liberty rights on the part of the representatives of the state. When carrying out his or her official duties, the teacher must respect the fundamental rights of the pupils and their parents; the teacher is not merely on the state’s side, but the state also acts through the teacher. Those who see the civil servant, except in questions of status, as having unrestricted fundamental rights vis-à-vis the civil servant’s employer dissolve the boundary that has been drawn, in order to create liberty for children and parents, between the state and society. In this way they accept the risk that the democratic development of informed opinion will become more difficult, and in place of this they prepare the way for the courts to weigh the fundamental rights of teachers, parents and pupils, a process which is difficult to monitor.

88

4. Finally, another reason for which there is no need for a statute is that the evaluation of the aptitude of a civil servant has indirect effects in a legal relationship that is material for fundamental rights. Admittedly, in the past the application of the constitutional requirement in education law that a statute be specifically enacted was extended for the sake of the parents and pupils, but not to protect the teachers who were civil servants. The situation of civil servants, as a relationship of particular proximity between citizen and state, was, unlike education law with its character of a benefit directed outwards and affecting the rights of parents, specifically not understood as a legal relationship shaped by the civil servant’s claim to fundamental rights (cf. Oppermann, Verhandlungen des 51. Deutschen Juristentages 1976 , vol. I, part C, reports, Nach welchen rechtlichen Grundsätzen sind das öffentliche Schulwesen und die Stellung der an ihm Beteiligten zu ordnen? , C 46-47).

89

From the point of view of materiality, therefore, it could be of significance only if a Land permitted the headscarf, or other religious or ideological symbols likely to lead to conflict, in class. For then, even without the encroachment upon fundamental rights affecting the rights of pupils and parents, already specifically asserted, a dangerous situation from the point of view of fundamental rights would have arisen that needed to be legislated for. An extension of the constitutional requirement of the specific enactment of a statute, under the aspect of materiality, to include civil rights and liberties of the teacher in exercising his or her official duties, on the other hand, has not yet been advocated.

II.

90

The civil servant’s duty of neutrality follows from the constitution itself; it does not need to be further supported by Land statutes. Civil servants who give no guarantee that in their conduct as a whole they will carry out their duties neutrally and in a way appropriate to the requirements of the particular employment lack aptitude in the meaning of Article 33.2 of the Basic Law (cf. BVerfGE 92, 140 (151); 96, 189 (197)).

91

The grounds given by the majority of the Senate push the constitutional personal liberty rights a long way into civil-service law without giving appropriate weight to the structural decision made by the Basic Law in Article 33 of the Basic Law. These grounds can therefore not be brought into accord with fundamental statements of the constitution on the relationship between society and state. In particular, they misjudge the position of the civil service in realising democratic will.

92

1. Those who aspire to a public office seek in the status activus (rights to take part in a democratic state) proximity to public authority and, like the complainant, wish to create a particular relationship of service and loyalty to the state. This particular position of duty, which is constitutionally protected by Article 33.5 of the Basic Law, takes precedence over the protection of the fundamental rights (cf. BVerfGE 39, 334 (366-367)), which in principle applies to civil servants too, to the extent that the duty and purpose of the public office so require. Accordingly, the citizen’s right arising under Article 33.2 of the Basic Law grants equal access to public offices only if the applicant fulfils the factual requirements of the right, which is equivalent to a fundamental right – aptitude, qualifications and professional achievement. The employer is authorised and constitutionally obliged to determine that an applicant is fit for a public office (Article 33.2 of the Basic Law).

93

In this discretionary decision, it is necessary to assess aptitude, qualifications and professional achievement; this is an act of evaluative decision-making, and it is to be reviewed by the court only to a restricted extent, to determine whether the administrative authority based the assessment on incorrect facts and whether it misjudged the civil-service-law and constitutional-law framework within which it can move without restriction. Apart from this, since there is no right to be accepted into the status of a civil servant, the review is restricted to checking for arbitrariness (cf. BVerfGE 39, 334 (354)). The interpretation of the indeterminate legal term “aptitude” necessitates a predictive decision in which the employer must comprehensively evaluate all the characteristics that the office in question requires of its holder (cf. BVerfGE 4, 294 (296-297); BVerwGE 11, 139 (141)).

94

Here, the employer must also give a prediction as to whether the applicant will fulfil his or her professional duties in future in the office sought. Aptitude includes not only a guarantee that the civil servant is equal to the professional tasks, but also that the civil servant’s person satisfies the fundamental requirements that are indispensable for the exercise of a public office that has been conferred. One of these requirements, which are protected by Article 33.5 of the Basic Law with constitutional status, is the guarantee that the civil servant will observe his or her official duties neutrally. What degree of restraint and neutrality can be required of the civil servant in the individual case is determined not only by general principles, but also by the concrete requirements of the office.

95

2. The state whose constitution is the Basic Law needs the civil service in order that the will of the people may take effect in practice. The civil service realises the decisions of parliament and of the responsible government; it puts the principle of democracy and the constitutional state into a concrete form (Article 20.1 of the Basic Law). The design of the constitution aims at democratic rule in a legally constituted form. Both the legislation passed by parliament and the political leadership given by the government therefore require the neutral civil service with its expert knowledge (cf. BVerfGE 7, 155 (163)). Statute and law are a promise for the citizen who is subject to state authority that the form in which a fact situation will be legislated on will be abstract and general and without respect of person. In conformity with this, the civil servant too, who is called to implement the law and to realise the political will of the government in a legal form, acts as a neutral fiduciary vis-à-vis the citizen.

96

The decision in favour of the constitutional state requires the civil servant to be bound by statute, as a counterweight to the political leadership of the government. He or she realises the democratic will. Under the design of the Basic Law, sovereign duties are normally assigned to civil servants (Article 33.4 of the Basic Law). The permanent civil service, founded on factual knowledge, expert performance and loyal fulfilment of its duties, is intended to secure a stable administration and thus to act as a balancing factor in face of the political forces that shape life in the polity (cf. BVerfGE 7, 155 (162); 11, 203 (216-217)). Civil servants must carry out their tasks impartially and justly; in exercising their office they must take account of the public welfare, be loyal to the state and behave, both inside and outside their office, in such a way that they do justice to the respect and the trust that their position requires (cf. § 35.1 of the Civil Service Law Framework Act; § 73 of the Baden-Württemberg Land Civil Service Act). Their conduct in office must be oriented solely towards factual correctness, faithfulness to the law, justice, objectivity and the public interest. These obligations form a fundamental basis for the trust of the citizens that the duties of the democratic constitutional state will be fulfilled.

97

3. The requirement of neutrality and moderation for civil servants that follows from this is one of the tradition fundamental principles of the permanent civil service (Article 33.5 of the Basic Law); it has been enacted in nonconstitutional law in sections 35.1, 35.2 and 36 of the Civil Service Law Framework Act and in the civil service Acts of the Länder (cf. § 72 of the Baden-Württemberg Land Civil Service Act: cf. BVerfGE 7, 155 (162); Battis in: Sachs, Grundgesetz 3rd ed., Article 33, marginal number 71; Lübbe-Wolff in: Dreier, Grundgesetz , vol. II, 1998, Article 33, marginal number 78). This corresponds to the basic duty of neutrality of the state, which also applies in the sphere of religion and ideology, which is derived precisely from the freedom of faith of Article 4 of the Basic Law in conjunction with Article 3.3, Article 33.3 of the Basic Law and from Article 140 of the Basic Law in conjunction with Article 136.1, 136.4 and Article 137.1 of the Weimar Constitution (cf. BVerfGE 19, 206 (216); 93, 1 (16-17); 105, 279 (294)). To this extent, the principles of the permanent civil service under Article 33.5 of the Basic Law create a direct constitutional reservation that in advance restricts the scope for civil servants to exercise their fundamental rights: to protect the fundamental rights of those who are not integrated into the state organisation.

98

The previous case-law of the Federal Constitutional Court derived rights and duties of the civil servant directly from Article 33.5 of the Basic Law. Nonconstitutional provisions governing the civil servant’s rights and duties are possible and to a certain extent desirable here, but they are not constitutionally required (BVerfGE 43, 154 (169-170)). The duties of the civil servant created directly under Article 33.5 of the Basic Law include moderation and restraint, in particular when carrying out his or her official business. If the civil servant in office behaves in a way that is not neutral politically, ideologically or in religion, he or she violates his or her official duties if the behaviour is objectively likely to lead to conflicts or obstruction in observing public duties (cf. BVerfGE 39, 334 (347)). Especially in religious and ideological matters, the civil servant must be restrained, because this is required of the state for whom the civil servant acts, for the sake of the freedom of the citizens.

99

Under Article 4.1 of the Basic Law and under Article 3.3 sentence 1, Article 33.3 and Article 140 of the Basic Law in conjunction with Article 136.1, 136.4 and 137.1 of the Weimar Constitution, the state and its institutions are obliged to conduct themselves neutrally in questions of religious and ideological belief and not to endanger religious peace in society (BVerfGE 105, 279 (294)). For this reason too, when the civil servant first joins the civil service he or she must, constitutionally, already offer a personal guarantee of neutral conduct that neither provokes nor challenges in carrying out his or her future duties (Article 33.5 of the Basic Law).

100

4. What degree of restraint and neutrality can be required of the civil servant in the individual case is determined not only by these general principles, but also by the concrete and changing requirements of the office. These requirements too need not be separately laid down by statute as official duties, because it is a specific mark of the permanent civil service that official duties are not understood as restrictions on the civil servant’s freedom, but are laid down by the employer in accordance with the relevant needs of a constitutional and factually effective administration. The standard for the assessment of aptitude is marked out for the authority in its essential lines in this respect too by Article 33.5 of the Basic Law with regard to the principle of neutrality and moderation. These principles, which constitutionally apply directly, need no further statutory definition, even in relation to school. The nonconstitutional-law requirements of the civil servant’s duty of political neutrality are to this extent declaratory and not integral to the assessment of aptitude on entry into public offices in the meaning of Article 33.2, Article 33.5 of the Basic Law.

101

The general duty of neutrality applies to a particular degree for civil servants who exercise the office of a teacher at state schools. Teachers carry out the state’s duty to provide education and training (Article 7.1 of the Basic Law). In this, they have direct pedagogical responsibility for teaching and the education of the pupils. By reason of their function, they are put in a position to exercise influence on the development of the pupils entrusted to them in a way comparable to the parents. Connected with this is a restriction of the parents’ right of education, which is guaranteed as a fundamental right (Article 6.2 sentence 1 of the Basic Law); this restriction can be accepted only if schools endeavour to achieve objectivity and neutrality not only in the political sphere, but also in religious and ideological matters. One reason why this is the case is that under Article 6.2 sentence 1 of the Basic Law the parents also have the right to bring up children in religious and ideological respects and they can in principle keep convictions that they feel are wrong away from their children (cf. BVerfGE 41, 29 (48); 41,88 (107)).Observing these rights is one of the essential duties of school, required by the Basic Law itself; at the same time, they are a mirror image of the official duties to be observed by the teachers.

III.

102

A teacher at a primary school or non-selective secondary school violates official duties if, in lessons, she uses symbols as part of her dress that are objectively likely to result in obstacles at school or even constitutionally significant conflicts in relation to school. The uncompromising wearing of the headscarf in class that the complainant seeks is incompatible with the requirement for a civil servant to be moderate and neutral.

103

1. When civil servants exercise a public office, even if they are modern, open and courageous, fundamental rights are guaranteed by the constitution only if there is no suspicion that there will be a marked conflict with the employer’s development of informed political opinion and no obstacle to the exercise of the public office conferred. When the majority of the Senate assume that only the existence of tangible evidence of a “concrete endangerment of the peace of the school” is sufficient to deny the aptitude of an applicant for a civil service post, they misjudge the standard for the assessment of aptitude.

104

The Senate majority themselves also admit that religiously motivated dress of teachers may influence schoolchildren, lead to conflicts with parents and in this way disrupt the peace of the school. In the case of conflict in particular, they state, it must also be expected that there will be onerous effects on younger pupils. This potential situation of danger, however, cannot be cited in response to a prospective teacher at the stage of “abstract danger”, but only when tangible evidence of the endangerment of the peace of the school has materialised. In this view, if conflicts have not crystallised, the authority making the appointment can no longer find there is a lack of aptitude.

105

In this view, the majority of the Senate misjudge the standard of evaluation for the assessment of aptitude under Article 33.2 of the Basic Law. For because the removal from office of a person retaining civil service status for life on account of violation of his or her official duties is possible under the traditional principles of permanent civil service only to a restricted extent and by way of formal disciplinary proceedings, the employer must in advance see to it that no-one becomes a civil servant who cannot be guaranteed to observe the official duties under Article 33.5 of the Basic Law. The constitutionally legitimate means for this is the consideration and decision of whether the applicant has the necessary aptitude for the office applied for. Doubts as to this that cannot be removed permit the appointing authority to make a negative prediction, since here it is not possible to establish aptitude positively (cf. BVerfGE 39, 334 (352-353)). Preventive measures to protect children and the parents’ right of education, moreover, do not in principle require that a situation of danger be scientifically and empirically proved (cf. BVerfGE 83, 130 (140)).

106

Reference to the concept of “abstract danger”, which is taken from police law, cannot therefore appropriately solve the conflicts in the assessment of aptitude. On the contrary: the free constitutional state is prohibited from postponing denying that civil servants have the necessary aptitude until it becomes probable that their foreseeable conduct in office will cause damage to particular objects of legal protection, as the concept of danger implies. The distinction between concrete and abstract danger may therefore be used to describe the classical threshold of interference in the relationship between the citizen and the state, but not to describe the standard for the discretion in appointment incumbent on state administration. It cannot accord with the civil-service-law reservation to civil servants of the exercise of sovereign powers if the constitutional state would have to rely on the threshold of danger under police law against its own civil servants who represent the state and through whom the state acts in order to control their conduct in office. This applies all the more in that the complainant wishes to teach primary school and non-selective secondary school pupils in a state compulsory school, that is, in an area that is sensitive for pupils and parents from the point of view of fundamental rights. In this respect it is therefore not a question of potential dangers or modalities of danger under police law, but merely whether the school authority, in putting into specific terms not only provisions of Land law, but also the constitutionally valid principles of permanent civil servants in the meaning of Article 33.5 of the Basic Law assumed on a basis that can be followed that there was a risk of a violation of duty. This is clearly the case.

107

2. The school board, on the evidence of the record of the conversations relating to aptitude and according to the statements in the oral hearing before the Federal Constitutional Court, certainly showed understanding of the complainant’s religious convictions; conversely, however, the complainant clearly showed no understanding for the employer’s desire to show neutrality. Except in extreme cases such as the immediate threat of violence, she found she would not be capable of refraining from wearing a symbol of strong religious and ideological expressiveness while teaching. Apart from the fact that this rigidity gives rise to doubts as to the complainant’s prior loyalty to the political aims of her employer and the order of values in the Basic Law, inter alia in a possible conflict with religious convictions of Islam, in this way, even at the early stage of evaluation of aptitude, circumstances became known that would make it substantially more difficult to use the applicant in every function at school and that would bring the Land authority of the state into conflicts with pupils and their parents, but possibly also with other teachers, that can be predicted even today.

108

The headscarf worn by the complainant is here not to be assessed abstractly or from the point of view of the complainant, but in her concrete relationship to school. The requirements of the office of a teacher at the primary school and non-selective secondary school include the duty to avoid for his or her person political, ideological or religious symbols that are objectively expressive. In the teaching profession, teachers must refrain from using such meaningful symbols, which are likely to awaken doubts as to their neutrality and professional distance in topics that are controversial politically or from the point of view of religion or culture. Here it cannot be relevant what subjective meaning the teacher who is a civil servant associates with the symbols he or she uses. What is decisive is the objective effect of the symbol.

109

Assessing such an effect in concretely changing situations is fundamentally the duty of the employer and can be reviewed for plausibility and conclusiveness by courts only to a limited extent. The professionally competent administration is best suited to carry out the assessment; putting official duties into specific terms is traditionally a domain of the employer. In doing this, the employer must react to changing situations. The use of symbols changes over the course of time, as does the violence of the resonance created by them: sometimes slogans on political badges (e.g. “Stop Strauß”; “Nuclear Power – No Thanks”) are in the foreground, sometimes symbols derived from religion such as the orange-coloured dress of the followers of Bhagwan (Osho) (BVerwG, Neue Zeitschrift für Verwaltungsrecht, NVwZ 1988, p. 937). The employer, in the last instance the competent Land minister in his parliamentary and political responsibility, with his particular expertise with regard to the requirements for functions in the school situation, must assess in each case what use of symbols by the civil servant is compatible with the requirements of civil-service law in general and with the special requirements in the teaching profession, or is to be prohibited.

110

3. A distinction between abstract and concrete danger, such as the majority of the Senate regard as significant, is of no importance here, and as a result has to date not been relied on to determine official duties or in connection with decisions as to aptitude. All that is important if there are proceedings at a nonconstitutional court challenging the decision as to aptitude is whether the assessment that particular symbols are incompatible with the requirement of neutrality in the civil service was based on a clearly erroneous factual foundation or on conclusions that cannot be understood.

111

The assumption on which the decisions challenged rest, that if the complainant were employed in a general primary school or non-selective secondary school in Baden-Württemberg there would be apprehension of possible interference with the peace of the school is understandable. The majority of the Senate also assume that a teacher who permanently wears the headscarf in lessons as an Islamic symbol does at least give rise to “abstract danger”. A symbol worn by the teacher that is – at present – expressive and has objective religious, political and cultural meaning is indeed likely to encroach upon the negative freedom of religion of pupils and parents and upon the parents’ right of education (Article 6.2 of the Basic Law). Especially the wearing of a garment that unequivocally indicates a particular religious or ideological conviction of a teacher at state schools may encounter lack of understanding or rejection among pupils who are of a different opinion or the persons entitled to educate them and may affect this category of persons in their fundamental right of negative freedom of belief because the pupils cannot escape such a demonstration of religious conviction.

112

Teaching and education at state schools are benefits given by the state; accepting these benefits has been made a statutory duty for the children. For children and their parents, therefore, taking part in school lessons is for all intents and purposes unavoidable. In addition, the children’s opportunities in life depend substantially on their level of achievement and on the competence of school institutions and their practice with regard to appropriate support and education. Consequently, neither the parents nor the state can reasonably be expected to wait and see how conflicts develop in the individual case when a future conflict situation becomes evident during the job interview. In addition, it seems likely that some parents will fail to protest because they fear there might be disadvantages for their child if they did so. The possibility that peace at school might be disrupted has, apart from this, already taken on a concrete form in the case of the complainant, as is shown by experience in teaching practice and the negative reaction of other teachers.

113

4. The assumption of the majority of the Senate that the cross on a classroom door and the headscarf of a teacher in class are not comparable, a comparison decided in favour of the complainant, misjudges the fundamental rights position of the pupils and parents affected. The decisive factor here is the influence to which the individual pupil in a compulsory state school and under state responsibility is subjected. If, in surroundings with a Christian influence, a cross hangs above the school door – not a large crucifix behind the teacher (cf. BVerfGE 93, 1 (18)) – this can scarcely any longer be regarded as an encroachment upon the negative freedom of religion or the parents’ right of education. Children have too few associations with a mere everyday object on the wall that has no immediate relation to a concrete person or real-world fact situation. The cross, over and above its religious significance, is too much a general cultural symbol for a culture, fed by Jewish and Christian sources, bound by values but open, that has become tolerant as a result of wide historical experience, some of it painful.

114

In contrast, teachers, as persons and as personalities, have a material moulding effect on the children, especially at primary school and in the function of class teachers. If a teacher wears striking dress, this creates impressions, gives rise to questions and encourages imitation. In the oral hearing, the expert witness Professor Dr. Bliesener stated on this point that the conduct of the teacher encourages the pupils to imitate it: this happens because the pupils at a primary school often have a close emotional relationship, and the teacher is also expect to aim for this, for pedagogical reasons, and because the attention of children is clearly directed at the teacher and the teacher’s authority is also perceived in the context of the school.

115

The complainant’s statement that if there were questions about the headscarf she would answer these untruthfully and in contradiction to her religious conviction, saying it was only a fashion accessory, is not appropriate to avoid a conflict of fundamental rights. For children too are aware of the religious significance of wearing a headscarf permanently, that is, even indoors. In addition, schoolchildren interact not only with the teacher, but also with their parents and wider social surroundings. Parents who answer their children’s questions truthfully within their own understanding of education will not be able to avoid explaining that the teacher wears the headscarf because only in this way can she preserve in public her dignity as a woman. But here there are the seeds of a conflict with the moral concepts of children with non-Islamic parents, and possibly even with Islamic parents who do not believe in a requirement that women cover themselves in public. The objective irritation effect of a symbol that is also political and cultural may easily reach the child, by way of reactions in its social surroundings, and lead the child to ask whether, in a conflict of values that it cannot judge, it should take the side of the teacher or the side of its social surroundings, which decidedly reject the headscarf, and which may include its parents. In the oral hearing, the expert witness Professor Dr. Bliesener in this connection referred to the possibility that children of primary school age might be emotionally overtaxed if a permanent conflict developed between the teacher on the one hand and the parents or individual parents on the other hand.

116

5. In order that an official duty, directed towards moderation in the civil servant’s dress, can lawfully be put into concrete terms by the employer, no empirical proof of “dangerous situations” is needed, and still less is it necessary for the Land legislature to carry out scientific surveys in order to establish the “endangerment”. A constitutional requirement of the specific enactment of a statute with a duty for the legislature to offer proof, for the mere purpose of putting official duties into concrete terms and ordering them to be applied, is not merely foreign to the system, but also takes the free constitutional state further into an immobility that obstructs its effectiveness. It is quite adequate for the assessment of aptitude that the use of meaningful symbols as part of dress a conflict appears reasonably possible or even likely.

117

This is the case, because the headscarf clearly, at least in part, carries a heavy symbolic meaning as a symbol of political Islamism – this is shown even by the public reactions to the court proceedings instigated by the complainant – and corresponding defensive reactions are to be expected. This objective content also includes the emphasis of a moral distinction between women and men that is likely to lead to conflicts with those who in turn support equality, equal value and equal treatment in society of women and men (Article 3.2 of the Basic Law) as a high ethical value.

118

The assessment that permanently wearing a headscarf in lessons is incompatible with the civil servant’s duty of ideological and religious neutrality was convincingly described as free from errors in all three administrative-court judgments. The headscarf as a religious and ideological symbol for the necessity that women cover themselves in public is at all events at present objectively likely to give rise to contradiction and polarisation.

119

6. The complainant stated that she felt her dignity was violated if she appeared in public with her hair uncovered. Even if the complainant did not expressly state it in so many words, this suggests the converse conclusion that a woman who does not cover her head gives up her dignity. Such a distinction is objectively qualified to give rise to values conflicts at school. This applies even in the relationship between the teachers, but particularly in relation to parents; their children, experience shows, develop a special relationship to their teacher in the primary school in particular.

120

Whether it is politically or pedagogically right or wrong to confront children as soon as possible with other standards of value or a lives based on a different understanding of the dignity of women than that of their parents is legally immaterial. The only significant factor is whether the appointing authority’s assessment is understandable when it argues that there is a possibility of conflicts at school that could perfectly well have been avoided if the teacher had shown moderation in this respect. The responsible school board assumed without error that this was the case.

121

The headscarf, worn as the uncompromising compliance with an Islamic requirement that the complainant assumed existed for women to cover themselves, at present represents for many people inside and outside the Islamic religious group for a cultural and political statement with a religious foundation, relating in particular to the relationship of the sexes to each other (cf. e.g. Nilüfer Göle, Republik und Schleier , 1995, pp. 104 ff.; Erdmute Heller/Hassouna Mosbahi, Hinter den Schleiern des Islam , 1993, pp. 108 ff.; Rita Breuer, Familienleben im Islam 2nd ed. 1998, pp. 81 ff.; Tariq Ali, Fundamentalismus im Kampf um die Weltordnung , 2002, pp. 97ff.). The majority of the Senate did not attach enough significance to this circumstance. As a result, they also did not consider the question as to whether, among the adherents of the Islam faith in Germany, there was a not insignificant or even growing number of people who regard the headscarf and the veil as a cultural challenge made to a society whose value system they reject, and above all, whether defensive reactions are to be expected from among the majority of the citizens of different faiths, and if so, what form these reactions might take. At all events, important commentators on the Koran are also of the opinion that the requirement that women cover their heads is based on the necessity of keeping women in their role of serving men, independently of the question as to whether a strict requirement to this effect even exists. This distinction between men and women is far removed from the values of Article 3.2 of the Basic Law.

122

It is therefore not important whether such an opinion is the only valid opinion within Islamic society or merely the predominant opinion, or whether the opinion submitted by the complainant in the proceedings, that the headscarf is, instead, a sign of the growing self-confidence and emancipation of women of Islamic faith, is held by a large number of persons. It is sufficient that the opinion that if women cover their heads this guarantees that they are subordinated to men is clearly held by a not insignificant number of the adherents of the Islam religion and is therefore likely to lead to conflicts with the equal rights of men and women, which is strongly emphasised in the Basic Law too.

123

7. In the claim asserted by the complainant to the right to work as a schoolteacher wearing a headscarf, she enters a grey area that is culturally and legally problematic and full of tension. Even one further step to completely covering her face, which is also practised in the Islamic religious community, might be regarded under an understanding of the German constitution, as incompatible with the dignity of humanity: free human beings show their faces to others.

124

But the Basic Law, in the sphere of society, also respects religious and ideological views that document a relation between the sexes that is difficult to reconcile with the order of values in the Basic Law, as long as they do not overstep the limits of the state’s order of peace and law. The value system of the Basic Law, including its understanding of the equality of men and women, does not close itself to all change; it confronts challenges, reacts and preserves its identity in change.

125

This openness and tolerance does not, however, go so far as to grant entry into the civil service to symbols that challenge the existing standards of value and are therefore likely to result in conflicts. The fundamental openness and tolerance in society may not be transferred to the state’s internal relationships. On the contrary: there is a constitutional requirement to keep the internal organisation of state administration free from the obvious possibility of such severe conflicts, in order that – in the concrete case – school lessons and education at school can proceed without interruption, and in general, because the state must remain capable of acting and must be able to conduct itself with a minimum of uniformity.

IV.

126

The majority of the Senate extend the constitutional requirement of the specific enactment of a statute to an area which, because it is dependent on the individual case and because it is subject to existing constitutional obligations, is in practice not accessible to control by statute (cf. BVerfGE 105, 279 (304)).

127

1. The parliament of the Land Baden-Württemberg expressly and with good reasons refused to pass a formal statutory provision occasioned by the assessment of aptitude in the present case. In the period relevant for this litigation, the Land parliament twice dealt with the problem of teachers who wish to wear a headscarf in class (Minutes of plenary proceedings (PlenarProt.) 12/23 of 20 March 1997, pp. 1629 ff.; Minutes of plenary proceedings 12/51 of 15 July 1998, pp. 3977 ff.). The concrete case of the complainant was debated in detail in the plenary debate of 15 July 1998 (Minutes of plenary proceedings 12/51 of 15 July 1998) and a resolution was passed on a motion by the parliamentary Republikaner party; the motion was for legislation to be passed (Land parliament document, LTDrucks, 12/2931 of 9 June 1998). By a large majority, with only the votes of the Republikaner party opposing, the parliament voted not to pass legislation on the question of assessment of aptitude with regard to the wearing of religious symbols in class. The decision was stated to have been made because broader and more detailed legislation was not necessary; statutory provision would make it more difficult to make the appropriate assessment of aptitude based on the individual case and thus also to exercise the scope for interpretation in awarding public offices and at the same to do justice to personal liberties.

128

The call for a formal statute, based on the federal constitution, does not result in any advantage from the point of view of materiality for the democratic basis of an administrative decision. In complex questions of the individual assessment of applicants for a public office, a formal statute that in principle encourages freedom can have the reverse effect of reducing freedom, since in this way measures designed for the individual case are made more difficult. A general statutory provision, which in any case is foreign to the system for laying down official duties and assessing aptitude under civil-service law, does not create more justice in the individual case, but less. Under the scheme of school policy of the Land government and the Land parliament, it would certainly be possible to appoint a teacher wearing a headscarf to a teaching post in the individual case if it could be seen that she was prepared to refrain from wearing the headscarf not only in extreme situations, as submitted by the complainant in the oral hearing, but also in everyday teaching situations in a primary school.

129

The school authority, the minister and the Land parliament, however, took offence specifically at the fact that the complainant categorically refused to take a step in the direction of a more flexible approach to her attitude to the headscarf. From this, the authority responsible for assessing her aptitude was entitled to conclude that in the case of conflicts with the negative freedom of religion of parents and children, solutions adapted to the individual case at mixed-religion schools would be very much more difficult (cf. Article 15.1, Article 16 of the Constitution of the Land Baden-Württemberg). It was also entitled to conclude that the persistence of the applicant’s refusal was capable of arousing doubts as to her neutrality and moderation, although this did not appear beyond objective justification and arbitrary.

130

2. The majority of the Senate require the Land legislature to put constitutional restrictions inherent in the Basic Law into concrete terms, although they can be determined concretely enough from the Basic Law. It is therefore doubtful whether the Land legislature is even authorised to put these inherent restrictions into concrete terms, beyond making a declaration confirming them or clarifying them.

131

The Federal Constitutional Court has to pass a final and unappealable decision on the extent and scope of inherent restrictions of fundamental rights. It is not the task of a Land legislature to repeat in a declaration the restrictions that arise directly from constitutional law. Nor is the appropriate respect accorded to the Land parliament if it is forced to pass statutory wording that on the one hand it expressly and in a well-considered way did not desire and that on the other hand – in the opinion of the majority of the Senate – put direct constitutional barriers in concrete form which will again be tested in later proceedings before the Federal Constitutional Court. A competent court that in such a controversial fundamental constitutional question refers to the legislature must at least inform the legislature how the latter is to carry out the task presented to it of putting direct constitutional limits into a concrete form.

132

In the present case, however, all questions remain open as to how the legislature is to draft legislation incorporating its political will, which it has already declared openly in the Land parliament. Is it sufficient if the legislature makes it an official duty for teachers to avoid religious and ideological dress symbols that are likely to result in negative effects on the peace of the school? Would it be admissible to prohibit the use of such religious, ideological or political symbols in the teaching profession that are likely to endanger the equality of men and women and its enforcement in practice (Article 3.2 of the Basic Law)? May civil-service law for teachers be defined in such a way as the then Republikaner party group in the Land parliament demanded in its motion of 9 June 1998 (Land parliament document 12/2931), “that the wearing of the headscarf as the symbol of Islam in class represents an inadmissible, one-sided, ideological and political statement”? Must the Land legislature, because this is said by the majority of the Senate to be required by the Basic Law, carry out empirical research with regard to possible disruptions, and if so, to what extent? Or must it constitutionally and for reasons of equality prohibit without exception all religious symbols in the dress of the teachers, even if, like a small ornamental cross, they make no significant statement and therefore are from the outset unlikely to result in conflicts of values at school? Could such a prohibition of dress symbols without any objective provocative content whatsoever be justified at all?

133

3. The Senate did not do justice to the task of answering a fundamental constitutional question, although the case is ripe for a decision. As a result, the Land legislature must now pass a statute, which according to the dissenting opinion is not even necessary, and this without being granted a transitional period for this surprising necessity. In addition, it would scarcely be compatible with the principle of equality to incorporate a statutory basis for a general prohibition of significant religious or ideological symbols in office, as suggested by the majority of the Senate, only in the Education Act and not generally in the Land Civil Service Act; the relevant conflict situations may occur in other areas of the civil service too, for example in connection with the youth welfare service, social work, public safety or the administration of justice.

134

4. The majority of the Senate ought at least to have granted the legislature a transitional period. Taking into account earlier decisions of the Federal Constitutional Court on the constitutional requirement of the specific enactment of a statute, this would have been appropriate and would have reduced the effects of a surprise decision.

135

a) The Federal Constitutional Court derived the prohibition of surprise decision from the requirement of a fair hearing under Article 103.1 of the Basic Law. The parties to the proceedings may be surprised neither by a judicial decision in itself (BVerfGE 34, 1 (7-8)) nor by its factual (BVerfGE 84, 188 (190-191)) or legal (BVerfGE 86, 133 (144-145)) content. A judicial decision may be based only on facts and results of evidence to which the parties were able to respond. Merely informing the parties to the proceedings is not enough; they must also have a concrete opportunity to express a reaction to the facts (BVerfGE 59, 330 (333)). A statement relating to the circumstances and facts is regarded as satisfying the requirements of a fair hearing in the meaning of Article 103.1 of the Basic Law, and the possible to make a statement on the legal situation is deemed equivalent to this (BVerfGE 60, 175 (210); 64, 125 (134); 86, 133 (144); 98, 218 (263)). The parties must be given the possibility of asserting their point of view by way of arguments on fact and law in the proceedings. In special cases, it may here be necessary to draw the attention of the parties to a legal opinion on which the court intends to base the decision. Granting a fair hearing in a way that satisfies the constitutional right requires that the party, using the care to be expected of him or her, is capable of recognising the aspects on which the decision may depend. If the court relies on a legal point of view without prior reference, and even a conscientious and informed party to the proceedings, even taking into account the variety of legal opinions that might be held, could not expect the court to rely on this legal point of view, the result may be the equivalent of prevention of submissions on the legal situation. This applies in particular if the court’s interpretation of the law has to date not been argued either in case law or in literature, albeit in principle there is no right to a judicial dialogue or a reference to the court’s legal viewpoint (BVerfGE 86, 133 (144-145); 96, 189 (204); 98, 218 (263)).

136

The majority of the Senate fail to adequately take into account the procedural right to a fair hearing that is also due to the state as a party to the proceedings when they introduce a requirement of the specific enactment of a parliamentary statute in order to create official duties in connection with the freedom of religion and ideology of the civil servant, where until now neither case law and literature nor the complainant herself have called for such a requirement, and this was not made a serious subject of the judicial dialogue in the oral hearing before the Senate. The Land Baden-Württemberg had neither occasion nor opportunity to express its opinion on this legal opinion, which was surprising for all parties and a major factor in the decision. The Land should have been given an opportunity to express an opinion on this aspect. The majority of the Senate accuse the Land of an omission. They state that it had not created a sufficiently definite statutory basis for the encroachment upon the complainant’s right under Article 33.2 in conjunction with Article 4.1 and 4.2 of the Basic Law. The Land was unable to react to this charge, because it did not know of it nor was it obliged to know of it.

137

b) In view of this procedural omission, the majority of the Senate ought at least to have laid down a reasonable period of time for the Land legislature within which the legislature was able to take account of the requirement of the specific enactment of a statute by creating a provision that, in the opinion of the majority of the Senate, does justice to the situation under constitutional law. In earlier decisions, the Federal Constitutional Court recognised this problem and when it made a new demand for the specific enactment of a statute it made it possible for the executive for a transitional period to make a decision encroaching upon fundamental rights without a corresponding statutory provision. In this way, for example, in the interest of the prison regime and schools, the monitoring of prisoners’ letters was declared to be provisionally permissible because there was insufficient authorisation below the level of a statute (cf. BVerfGE 33, 1 (12-13); 40, 276 (283)) as was expulsion from school that was not governed by a parliamentary statute (cf. BVerfGE 58, 257 (280-281)).

138

5. A reasonable transitional period would not only have been needed by reason of respect for the legislature, but would also have taken seriously the requirement of the specific enactment of a statute that was assumed by the majority of the Senate and given the Land legislature the possibility of creating an effective statutory basis for the present case. The Federal Administrative Court is also left by the reasoning of the majority of the Senate in a state of uncertainty, in a manner that is constitutionally questionable, as to how it is to proceed in future with regard to the proceedings that have been referred back. For if – as the majority of the Senate assume – the decision challenged by the complainant is unconstitutional, then at present the Federal Administrative Court should find in favour of the plaintiff. Since the dispute related only to the question of the religious symbol, therefore, the complainant would have to be appointed a civil servant by the Land Baden-Württemberg. In this way, under civil-service law, a fait accompli would be created, which the legislature could scarcely correct. The alternative, not excluded even by individual elements of the grounds given by the majority of the Senate, of suspending the proceedings before the administrative courts until the Land parliament has created a statutory basis in the law relating to teachers who are civil servants, should have been clearly stated.

(signed)JentschDi FabioMellinghoff

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BVerfGE 97, 391 – use of one’s name in relation to freedom of opinion and right of personality (Missbrauchsbezichtigung)

February 27, 2024 10:11 am / Leave a Comment

Federal Constitutional Court (Bundesverfassungsgericht), Decision of 24. 3. 1998 – 1 BvR 131/96

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

BVerfG 1998, 2889
Translated by Mr Raymond Youngs, Southampton Institute

Facts: The complainant, who is now 41, is no longer capable of earning, and still bears her maiden name. She alleged first to friends in 1973, and later in 1986 to doctors who were treating her for, amongst other things, compulsive gambling, that her father had sexually abused her. She first wrote to her father about this in March 1987, claiming he had driven her to addiction. She also told the Youth Welfare Department, in order to protect her niece who was sometimes looked after by him. In 1990 she wrote to her father to say she forgave him. But she spoke about the abuse in a television broadcast in January 1991 and in a later programme. She also offered to a magazine an article about claims for compensation for psychological harm consequent on sexual abuse. Her father demanded that she should stop accusing him to others of sexual abuse, but she refused to comply. He then started a claim for an injunction alleging he had never sexually abused her; and that the real reason for the accusations was his refusal to pay for her gambling debts. The Landgericht found that he had sexually abused her regularly from the age of eight onwards; and perhaps from the age of twelve onwards by having sexual intercourse with her. It rejected his claim, on the basis that injunctions could only be used to prevent statements injurious to honour if they were untrue. When he appealed, the Oberlandesgericht ordered her not to make statements, using his name or her name, to the effect that he had sexually abused her. It held that regardless of the truth of the statements, such an order could be made under §§ 1004 and 823 para 1 BGB because of the violation of his right of personality. He could not prevent her allegations to state or judicial authorities that he had sexually abused her where she had a justified interest in making these allegations. But he did not have to put up with being denounced by name in public.

The constitutional complaint by the complainant against this judgment was successful.

Reasons: B. The constitutional complaint is well founded. The judgment of the Oberlandesgericht violates Art 5 (1) and Art 2 (1) in combination with Art 1 (1) GG.

I. These basic rights are affected by the decision which is being challenged.

1. The use of one’s own name in connection with a statement comes within the protection of freedom of opinion.

The basic right of freedom of opinion protects statements of opinion of all kinds and assertions of fact as well as other forms of statement, at any rate if they are a prerequisite for the formation of opinions [references omitted]. The use of one’s own name in connection with a statement is neither a form of independent statement nor a component of the statement in the narrow sense. Its content stands alone. But this does not mean that the giving of a name falls outside the protective area of the basic right. It is of substantial importance for the statement itself as well as for the individual and public process of opinion formation to which it contributes.

Freedom to state opinions is “the most direct expression of the human personality in society” (BVerfGE 7, 198 [208]). The name of the originator gives the connection between the person and the statement is made in a recognisable way. If the person making the statement adds his own name [to his statement], he shows that he wants to make the statement known as his personal opinion or description and is ready to vouch for it; and in the case of an assertion of facts, to be answerable personally for its truth. It is precisely in relation to those statements with which the speaker very fully identifies himself or which present his own story that the use of a name is one of the prerequisites of the communication of the sense of the statement.

Besides this the name of the person making the statement can contain messages which go beyond the simple content of the statement. Thus it is possible, for instance, that the personal description of oppressive experiences will encourage others affected to break their silence. Such a message could not be communicated in the same way without the use of one’s own name and the associated disclosure of personal involvement. That applies especially if communication of certain events is subject to a taboo. Personal confession to the public can help in this case to break through the attribution of guilt often associated with social taboos.

However, the purpose of a statement is not fulfilled in making known personal views or communications. Statements are directed at others and as a rule are destined to have an effect on them in forming opinions or motivating to action. Art 5 (1) sentence 1 GG therefore does not only protect statements in the dimension of their dissemination but also in the dimension of their effect (see BVerfGE 7, 198 [210]). Freedom of opinion includes the right of the person making the statement to choose for his statement those forms and circumstances which ensure the greatest possible effect for it [reference omitted]. But the effect of a statement on third parties depends substantially on whether its originator is identifiable or not. Anonymous statements frequently lack that degree of authenticity and credibility that gives them the desired influence or causes a reaction.

Finally the effect of a statement is not limited to its reception and assimilation by third parties. Just as the statement will usually be connected with preceding communications, so it will in turn trigger further communications. In striving to guarantee free formation of opinions by the individual and the public Art 5 (1) GG is therefore not limited to protecting the individual statement. It also ensures the preconditions for the establishment and maintenance of the communication process in which every statement is embedded [reference omitted]. The use of a name is important for this likewise because it is only such use that makes it possible for participants in the communication process to refer to one another or make contact with each other.

2. The use of one’s own name also falls into the protective area of the general right of personality arising from Art 2 (1) in combination with Art 1 (1) GG.

The name of a human being does not only have the function of creating order and differentiation. It is also the expression of identity and individuality. Therefore the individual can require the legal order to respect and protect his name. This protection has so far only become relevant in constitutional case law in relation to change of name on marriage as prescribed by the state [references omitted]. But it is also related to the wish not to use a name (which is not as such in dispute) in certain circumstances or to replace it by a pseudonym. As a name is an expression of identity and individuality it cannot be changed at will. It accompanies the life history of the person who bears it. This is recognisable as connected with [the concept of] a name. To give up the use of one’s name does not therefore leave one’s personality unaffected.

This also applies to the use of a name in connection with a statement. Statements do not fulfil their purpose in the passing on of a certain communication content. They are at the same time the expression of the personality of the person making the statement. By his statements he presents himself to third parties as a person. Other people identify him with them. On the basis of the use of a name third parties can not only attribute statements to their originator but also categorise him by the type of personality that they make him out to be. At the same time they get the opportunity to assess the person who stands behind the statement alongside its contents. If someone is obliged to refrain from using his name in connection with statements which he sees as personal and which he thinks it important to attribute to himself, such an obligation is to be measured against Art 2 (1) in combination with Art 1 (1) GG.

3. On the other hand, freedom of the press is not relevant. The question of the permissibility of a particular statement is to be judged in accordance with Art 5 (1) GG, independently of whether it is made or is to be made through a medium which enjoys the protection of press freedom. This will only come into play where it is something more than individual statements of opinion – where the press is important for the formation of individual and public opinion [references omitted]. That is lacking here.

4. Freedom of opinion and the right of personality have been limited by the complainant’s obligation not to use her name when she speaks in public about sexual abuse by her father. The fact that the statement may incidentally be disseminated further in public does not change anything in view of the inclusion of the use of the name in the protective area of both basic rights.

II. The decision under challenge is not reconcilable with the basic right of freedom of opinion and the general right of personality.

1. Both basic rights are certainly subject to statutory limits. Freedom of opinion is, according to Art 5 (2) GG only guaranteed within the framework of the general laws, the statutory provisions for the protection of the young and the right to personal honour. Development of the personality is according to Art 2 (1) GG confined within the boundaries of the constitutional order. This is to be understood as including all legal norms that are formally and materially in harmony with the Basic Law [reference omitted]. That is the case with the provisions of §§ 823 and 1004 of the BGB on which the Oberlandesgericht based the judgment under challenge.

2. But their application does not comply with the requirements of the basic rights.

a) The interpretation and application of the civil law provisions are just as much a matter for the civil courts as the establishment of the facts and the assessment of the evidence. But if, during the course of the application of norms of civil law which are unobjectionable in constitutional law, positions protected by the basic rights are affected, the civil courts must take account of the importance and scope of the basic rights. This is to guarantee their importance in setting values at the level of application of the law as well (see BVerfGE 7, 198 [205 ff; constant case law). That requires as a rule a balancing operation, to be undertaken within the framework of the features of the statutory definition, between [two aspects of the matter]. On the one hand there is the significance in the actual case of the basic right which has been limited for the person entitled to it as well as the extent of the interference with it to which he has to submit. On the other hand there is the significance of the legal interest protected by the statute which is being applied and the severity of the interference with it by the exercise of the basic right. In this connection, the courts must have sufficient regard to both positions and bring them into a relationship that takes appropriate account of them. There will, in particular, be a violation of a basic right which the Federal Constitutional Court has to correct if the civil court has not considered the influence of the basic right at all or has evaluated it inappropriately and the decision is based on a misunderstanding of the influence of the basic right [reference omitted].

b) In this connection, on the complainant’s side it must above all be taken into account, from the point of view of freedom of opinion and the right of personality, that the statement in dispute has an accentuated relationship with the personality. The prohibition on giving of [the complainant’s] name would to a large extent cause it to lose the effect hoped for in the process of communication.

This statement, which the complainant is only allowed to make in public if she does not use her name, does not relate to some subject with which she only has a distant connection, but concerns her highly personal life story. On the basis of the facts as established by the civil courts, from which the Federal Constitutional Court has to proceed, it relates to an extremely serious experience that had a decisive influence on her physical and emotional development. Every person has the freedom to decide whether he turns to others or to the public with experiences of this kind. If he decides to do so, the prohibition on describing a story of the most personal kind in a personalised form contains as a rule a drastic interference with opportunities for communication and with development of the personality.

Nothing is changed by the circumstance that the judgment under challenge does not prevent the complainant from speaking about the abuse under her own name in the context of private contacts or therapeutic treatment. This is because she is still prevented from widening the radius of those with whom she can communicate beyond the circle of her personal acquaintances or persons professionally concerned with the development of her personality. The complainant can no longer appear before the public as an identifiable person, vouch for her story with her own name and meet directly any reactions of third parties to it.

The effect of her story on persons in a similar situation or a public disturbed by the problem of sexual abuse of children is also reduced because there is a danger of the story failing to acquire the credibility and authenticity generally associated with the use of a name. The encouragement which public analysis of one’s own story can have for people in a similar situation is also reduced. Likewise feedback to the complainant who wants a response is made more difficult by the prohibition on the use of her name. Furthermore she loses the opportunity to get over her past experiences with the help of third persons who have only become aware of her through the statement.

It is clear that this experience which has had a decisive effect on the complainant and which she wants to speak about publicly is indissolubly linked with the person of her father. This has to be considered; but it has to be borne in mind that the complainant is reporting about the plaintiff in the initial proceedings from the perspective of the victim of his actions. The statement cannot therefore be understood just as an exposure of the father. It must also be seen in context of overcoming her status of a victim. This victim status (which the courts have found to be a necessary starting point) would be further reinforced if the victim were to be prevented from giving an account in a personalised form. In this respect her interest in making a statement is to be rated more highly than that of third persons or of the media who want to name the persons involved when they make statements about these kinds of events.

c) On the side of the plaintiff in the initial proceedings weight must be given to his right of personality protected under the basic rights. §§ 823 and 1004 of the BGB give expression to this in civil law. It certainly does not give to the person entitled to it a claim only to be represented to the public in a manner which corresponds to his self-image or which is pleasant for him. It does however protect him against representations which distort or falsify as well as against representations which can substantially interfere with the development of his personality [reference omitted]. Personality interests must as a rule take second place to freedom of opinion if the disputed statement has as its subject facts which are to be regarded as true.

But this principle is not without exceptions. In particular true stories can injure the right of personality of the person affected if the consequences of the representation are serious for the development of the personality and the need for protection outweighs the interest in the [making the] statement. Thus the Federal Constitutional Court in the Lebach judgment (BVerfGE 35, 202 = NJW 1973, 1226) granted personality interests priority over broadcasting freedom, because the transmission of a docudrama about a sensational crime was at a point very close in time to the release of one of the perpetrators from imprisonment. The widespread impact and suggestive power of television would also have made the reintegration of the person affected into society substantially more difficult, if it did not entirely prevent it.

It is true that things are different here to the extent that it is a question not of a report by the media but by the victim. There is therefore no need to decide what the position would be if when the victim tells her story, the media expand this by their own reports from the perpetrator’s background. Unlike the Lebach case, no independent danger for the plaintiff in the initial proceedings arises here from the point in time of the statement. Nor is it a question of documentation about his conduct identifying him, but merely of the possibility of a conclusion being drawn because he has the same name as the complainant.

Nevertheless, the consequences for the plaintiff in the initial proceedings are serious. This is associated with the accusation of sexual abuse of his own child, which is regarded as an especially abhorrent crime. Reports of conduct of this kind mostly lead to stigmatisation of the perpetrator. Stigmatisations [of this kind] can lead to withdrawal of social recognition and social isolation of and fundamental loss of assurance and self-devaluation by the person affected in numerous areas of his life. This is based on assessment and behaviour mechanisms which are social and therefore not solely attributable to the responsibility of the person affected. The free development of the personality is thereby permanently impeded; and this cannot be treated as due to the usual limits to development opportunities or the unfavourable reactions of others which one has to accept as the consequence of one’s own decisions or forms of behaviour.

The protection which Art 2 (1) in combination with Art 1 (1) GG gives in this respect is not dependent on the statements about a person being untrue. It also applies if the statements are true and for this reason become a cause of a social exclusion and isolation. As the protection of the personality has as its goal the maintenance of the basic conditions of social relationships between the person entitled to the basic right and his environment [reference omitted] it is also independent of whether it is the victim himself or third persons who speak about the facts.

The protective effects of the general right of personality are not ruled out simply because the use of the complainant’s name cannot from the outset, in her view, affect her father’s rights. The protection of the personality does not only apply to the content of an assertion, but also to the consequences which the assertion has as information for others. Therefore it is a question of the information and the chances of identification which the addressees of the statement receive. The possibility that an assertion can be related to a certain person and that this person will be exposed to consequences from which the constitutional law right of personality grants protection does not therefore only exist if his name is mentioned but also if other details facilitate his identification.

On the other hand, the weight of the infringement of the basic right depends upon the breadth of the impact of the discriminatory consequences. This can work out differently according to the extent to which the person affected is known. It must further be considered whether the effects of the statement are limited because of the commonness of the name. If it is a widely used name, the effects of the statement only occur with those persons who know the speaker and his family and therefore can deduce the identity of the perpetrator from his public appearance under his own name. With a television appearance, the interference with the personality by the mention of the name decreases further, because in this case the conclusion is possible even without the mention of the name.

d) These points of view which are to be taken into account in the context of the basic rights did not sufficiently influence consideration of the matter in the Oberlandesgericht.

The Oberlandesgericht has, in harmony with the civil law case law, considered the complainant’s statement to have the effect of “pillorying” the plaintiff in the initial proceedings. This would have serious consequences for the development of his personality and therefore must only be accepted if weighty reasons on the opposite side argue for the publication of the assertion in a form which permitted his identification. There is no objection to this from a constitutional point of view.

However, the Oberlandesgericht did not have sufficient regard to the reasons which argue in favour of publication using the complainant’s name. Its decision raises doubt as to whether it was conscious of the fact that the use of the complainant’s name in connection with her statement falls under the protection of freedom of opinion and the general right of personality. In any case the complainant’s interests protected by these basic rights have not entered sufficiently into the balancing operation. The court merely touched on the subject with the comment that a denunciation of the plaintiff in the initial proceedings could not be justified by the argument that the complainant as a victim was looking after supposed general information interests about the abuse of children in society because the use of a name was not as a rule necessary for this.

In particular there is here no consideration (taking account of the requirements of Art 5 (1) GG) of the functions which use of one’s name for one’s statements can have and which mean that the name cannot simply be left out or replaced. Thus the court has not considered the question – which is relevant also from the point of view of the right of personality – of whether and to what extent the complainant wants to overcome the experiences of abuse by presenting them to the public as her own experiences and under her own name.

Further, it did not discuss to what extent the adding of a name is needed for statements about the abuse to acquire the character of an authentic communication for the complainant as well as for the recipient of the statement. It did not consider whether the use of a name is needed in the given situation to communicate the contents of the statement to the recipients in the desired fashion and so that they obtain the opportunity of establishing contact with the complainant. The point of view, relevant in the context of formation of public opinion, that personifying the experience of sexual abuse can help to counteract a social taboo and encourage others affected to speak and act themselves, was also left out of consideration.

The Oberlandesgericht did not carry out the necessary evaluation because it did not adequately concretise those interests which are important from the point of view of freedom of opinion and the right of personality. The court did not address the fact that the using of one’s own name for one’s own statements is the part of freedom of expression of opinion which is close to the personality and an obligation to refrain from doing so therefore represents an especially intensive interference. It also did not take into account that sexual abuse of children is a question substantially affecting the public so that the interest of society in being informed from the perspective of the victim about such acts and their consequences increases the weight to be given to freedom of opinion.

On the other hand the court did not address the question of how great the danger of identification was on the basis of the name in the actual case, to what extent the consequences of an identification would affect him and whether he would have any opportunity to avoid these. This is relevant to the severity of the interference with those interests of the plaintiff in the initial proceedings which are protected by the basic rights.

e) The judgment under challenge is founded on these defects. The Oberlandesgericht gave priority to protecting the plaintiff in the initial proceedings from social stigmatisation because it did not make a sufficient determination of the protected interests of the complainant and therefore did not adequately consider her basic right position. It cannot therefore be excluded that the court, if it had considered the requirements of the basic rights, would have made a decision which was more in the complainant’s favour.

©1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1999. HTML edition by Lawrence Schäfer, © 1999 Gerhard Dannemann.

BVerfGE 90, 145 – Cannabis

February 20, 2024 3:57 pm / Leave a Comment

Bundesverfassungsgericht (Federal Constitutional Court), Second Senate, decision of 9 March 1994, BVerfGE 90, 145

Translation by Michael Jewell.

[Note: The numbering refers to the page numbering of the official reports. References in the German text to German secondary literature have been omitted where indicated.]

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1 a) The restrictions contained in Article 2 para 1 of the Basic Law apply to dealings with drugs. There is no “right to be intoxicated” which is not subject to these restrictions.

b) The constitutionality of the penal provisions of the Intoxicating Substances Act, which impose penalties for illegal dealings with Cannabis products, is to be tested as follows: The constitutionality of the prohibition subject to criminal penalties is to be tested against Article 2 para 1; The constitutionality of the threat of imprisonment is to be tested against Article 2 para 2 sentence 2 of the Basic Law.

2 a) The principle of proportionality requires a decisionmaker to form an opinion as to whether the chosen means is capable of attaining the desired goal, and whether the restrictions it places on rights are kept to the minimum necessary. In this

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context it is necessary to form an opinion and make predictions as to the dangers which threaten the individual or the general public. In making these judgements the legislature has a degree of discretion, and the power of the Federal Constitutional Court to review its decisions is limited.

b) In balancing the severity of the infringement of the individual’s rights against the gravity and the urgency of the considerations which are adduced to justify the infringement the decisionmaker must keep within the limits of what can reasonably be demanded of the person to whom the prohibition is addressed (proportionality in the narrower sense). The application of this test can lead to the conclusion that a measure, which in itself is capable of attaining the desired goal and is necessary to doing so, may not be applied because the resulting limitation of the affected individual’s rights clearly outweighs the increased protection of legal interests which the measure attains, with the result that the use of the measure under consideration would be disproportionate.

3. The penal provisions of the Intoxicating Substances Act impose punishment for behaviour which is merely preparatory to the personal consumption of small amounts of Cannabis and which does not pose any danger to third parties. To the extent that they do this they are not disproportionate in the narrower sense because the legislature has left it open to the authorities responsible for the enforcement of the statute to take the limited wrongfulness of the deed into account in individual cases by refraining from the imposition of a penalty (s 29(5) Intoxicating Substances Act) or by refraining from prosecution (s 153 and following of the Criminal Procedure Regulations, s 31a Intoxicating Substances Act). In such cases the principle of proportionality in its narrower sense would, as a general rule, require the authorities responsible for enforcing the statute to refrain from prosecuting the offences listed in s 31a of the Intoxicating Substances Act.

4. The principle of equality does not require that all drugs which are potentially equally harmful should be prohibited or permitted in the same way. The legislature can regulate dealings with Cannabis products differently from dealings with alcohol or nicotine without infringing the constitution.

…

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Reasoning of the court

A

The proceedings, which have been joined for a single judgment, concern the question whether the penal provisions of the Intoxicating Substances Act are compatible with the Basic Law to the extent that they impose punishment on the various forms of illegal dealing with Cannabis products.

I

The Act Concerning Dealings with Intoxicating Substances (Intoxicating Substances Act) of 28. July 1981 (Federal Gazette I p 681 with corrections at p 1187) has been amended several times. In the detailed provisions of ss 3 to 28 it subjects dealings with drugs to comprehensive regulation by the state. The basic rule is that any sort of dealing with drugs requires official licence (s 3 of the Act). Dealing without such licence is prohibited. Such official licence, together with the statutory exceptions to the requirement of a licence,

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distinguishes legal dealings with drugs from illegal dealings. The Act applies only to such substances and preparations as are explicitly listed in it. These are listed in schedules I to III of the Act (ss 1 para 1, 2 para 1 numbers 1 and 2 of the Act). In these schedules the Act distinguishes between substances which may not be dealt with (Schedule I), substances which may be dealt with but not prescribed to patients (Schedule II) and drugs which may both be dealt with and prescribed (Schedule III). As far as the drugs listed in Schedule I, ie those which may not be dealt with at all, are concerned a licence may only be granted in exceptional cases for scientific purposes or other purposes in the public interest (s 3 para 2 of the Act). The drugs listed in Schedule I include:

  • Cannabis (Marihuana) – Plants and parts of plants belonging to the species Cannabis – with the exception of
    a) their seedb) when they are planted as a protective strip in the cultivation of turnips and are destroyed before they bloom.c) when dealings (other than cultivation) are for the purpose of producing or processing the fibre for commercial purposes
  • Cannabis resin (Hashish) – The separated resin of plants belonging to the species Cannabis
  • Tetrahydrocannabinol (THC) – Tetrahydro-6, 6, 9-trimethyl-3-tentylbenzo(c)chromen-1-ol (the active ingredient contained in Marihuana and Hashish which produces the state of intoxication)

Illegal dealing with drugs is comprehensively penalised by ss 29 ff of the Intoxicating Substances Act. In the amended version of the Act which was in force before 28 February 1994 the provisions, insofar as they are relevant, read as follows:

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s 29 – Offences

(1) A fine or imprisonment for up to five years may be imposed on anyone who:

1. Cultivates, produces or trades in drugs without obtaining permission under s 3 para 1 number 1, or who, without trading in them, imports, exports, passes ownership, supplies or otherwise brings them into circulation; or who buys them or obtains them in any other way.

2. ….

3. Possesses drugs without having obtained them in accordance with a licence under s 3 para 1

4. …

5. Transports drugs through the country contrary to s 11 para 1 sentence 2.

s 29a – Offences

(1) A sentence of imprisonment of at least one year is to be imposed on anyone who:

1…..

2. Without a licence granted under s 3 para 1 number 1 trades in amounts of drugs which are not insubstantial; or without having obtained them in terms of a licence granted under s 3 para 1 produces or possesses or passes ownership in amounts of drugs which are not insubstantial.

(2) In less serious cases a sentence of imprisonment for between three months and five years is to be imposed.

s 30 – Offences

(1) A sentence of imprisonment of at least two years is to be imposed on anyone who:

…

4. Imports drugs in not insubstantial amounts without a licence granted under s 3 para 1 number 1.

(2) In less serious cases a sentence of imprisonment for between three months and five years is to be imposed.

Until the amendment of the Intoxicating Substances Act by the Act Combatting the Illegal Trade in Drugs and Other Forms of Organised Crime (Organised Crime Act) of 15 July 1992 (Federal Gazette I page 1302), which came into force on 22 September 1992, the maximum penalty in s 29 of the Intoxicating Substances Act was only four years. Furthermore, illegal trading with not insubstantial amounts of drugs was still

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dealt with under s 29 para 3 sentences 1 and 2 number 4 Intoxicating Substances Act (unamended version) rather than under s 29a, which was newly created by the act of 15 July 1992. s 29 para 3 was worded as follows:

(3) In particularly serious cases the sentence is to be imprisonment for not less than one year. As a general rule a case will be particularly serious if the defendant

…

4. trades drugs in not insubstantial amounts, or possesses or supplies insubstantial amounts.

The Intoxicating Substances Convention Implementation Act of 2 August 1993 (notice of 23 February 1994 Federal Gazette I page 342) came into force on 28 February 1994. It implements theUN Convention Against the Illegal Trade in Intoxicating and Psychotropic Substances of 20 December 1988. This Act substitutes the word “illegal” for the words “without licence in terms of s 3 paragraph 1 number 1” in s 29 paragraph 1 sentence 1 number 1 Intoxicating Substances Act. It also substitutes the words “without at the same time being in possession of written permission for the acquisition” for the words “without having obtained them on the basis of a licence in terms of s 3 para 1” in s 29 para 1 sentence 1 number 3 Intoxicating Substances Act.

II

… [facts of the various proceedings]

III

[163] … [review of legal opinions on the subject presented on behalf of various authorities]

B

[166] … [considers whether the court has jurisdiction to hear the matter]

… [171]

C

The penal provisions of the Intoxicating Substances Act which have been presented for examination of their constitutionality are, to the extent that the court has the power to review them, compatible with the Basic Law. The imposition of penalties for illegal dealings with Cannabis products, in particular Hashish, thus does not infringe either Article 2 para 2 sentence 1, or Article 3 para 1, of the Basic Law. In principle it also does not infringe Article 2 para 1 read with Article 2 para 2 sentence 2 of the Basic Law. The application to have the Act declared unconstitutional fails on the merits.

I

1. The constitutionality of the penal provisions of the Intoxicating Substances Act, which impose penalties for illegal dealings with Cannabis products, is to be tested as follows: The constitutionality of the prohibition subject to criminal penalties is to be tested against Article 2 para 1; The constitutionality of the threat of inprisonment is to be tested against Article 2 para 2 sentence 2 of the Basic Law.

Article 2 para 1 of the Basic Law protects every form of human activity without consideration of the importance of the activity for a person’s development (see BVerfGE 80, 137 at 152). However, only the inner core of the right to determine the course of one’s own life is accorded absolute protection and thus withdrawn from interference by public authority (see BVerfGE 6, 32 at 41; BVerfGE 54, 143 at 146; BverfGE 80, 137 at 153). Dealings with drugs and, in particular the act of voluntary becoming intoxicated, cannot be reckoned as part of that absolute core because of the numerous direct and indirect consequences for society. Outside the core the general right to freedom of action is only guaranteed within the limits of second half of the sentence contained in Article 2 para 1 Basic Law. This means that it is subject to the limits placed on it in accordance with the constitutional order Basic Law (see BVerfGE 80, 137 at 153).

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This phrase refers to any legal rule which, both in form and content, is compatible with the constitution (BVerfGE 6, 32ff as repeatedly applied by this court). Limitations on the general right to freedom which are based on such legal rules are not an infringement of the right guaranteed in Article 2 para 1 Basic Law (see BVerfGE 34, 369 at 378 and following; BVerfGE 55, 144 at 148). There is thus no “right to be intoxicated” which is not subject to these restrictions.

As far as the content of limitations is concerned, the principle of proportionality is, in the absence of explicit constitutional guarantees, the general constitutional test for deciding to what extent the right to freedom may be limited (see BVerfGE 75, 108 at 154 and following; BVerfGE 80, 137 at 153). This basic principle gains even greater significance in considering a penal provision, since such a provision is the most severe sanction available to the state. It is thus an expression of social and ethical disapproval of a particular act on the part of a private person (see BVerfGE 25, 269 at 286; BVerGE 88, 203 at 258).

If imprisonment is a potential penalty then the statute is authorising an infringement of the fundamental right to liberty of the person, which is guaranteed in Article 2 para 2 sentence 2 Basic Law. Liberty of the person, which is described as “inviolable”, is a legal interest of such importance that it can only be impinged upon on the authority of Article 2 para 2 sentence 3 if there are particularly weighty reasons for doing so. Leaving aside the fact that such interventions may come into question in certain circumstances when they are aimed at preventing the person affected from causing himself serious personal harm (see BVerfGE 22, 180 at 219; BVerfGE 58, 208 at 224; BVerfGE 59, 275 at 278; BVerfGE 60, 123 at 132), restrictions are generally only permissible if the protection of others or of the public interest requires them, after having due regard to the principle of proportionality.

According to this principle a statute which limits fundamental rights must be both suitable for achieving the purpose to which it is directed and necessary to doing so. A statute is suitable when with its help the desired result can be promoted. It is necessary if the legislator could not have chosen a different means which would have been equally effective but which would have infringed on fundamental rights to a lesser extent or not at all (BVerfGE 30, 292 at 316; BVerfGE 63, 88 at 115; BVerfGE 67, 157 at 176).

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In forming a judgement as to whether the chosen means is suitable and necessary for achieving the desired goals the legislator has a certain degree of discretion. The same applies to the estimation and prediction of the dangers which threaten other individuals or the public good which must be undertaken in this context. The Federal Constitutional Court can only review the exercise of this discretion to a limited extent, the precise extent depending on the nature of the subject in question, the feasibility of forming a sufficiently clear view, and the nature of the legal interests which are at stake (see BVerfGE 77, 170 at 215; BVerfGE 88, 203 at 262).

In addition, in weighing the seriousness of the infringement against the importance and urgency of the factors which justify it the decisionmaker must take into account the limits of what can be demanded of the individuals to whom the prohibition is addressed (see BVerfGE 30, 292 at 316; BVerfGE 67, 157 at 178; BVerfGE 81, 70 at 92). The measure may not place a disproportionate burden on them (proportionality in the narrower sense) (See BVerfGE 48, 396 at 402; BVerfGE 83, 1 at 19).

The principle that there should be no punishment without fault has its roots in Article 1 para 1 Basic Law (see BVerfGE 45, 187 at 228). In the context of state-imposed punishments this, together with the principle of proportionality, which is derived from the rights to liberty and the rule of law [Rechtstaatsprinzip], means that the seriousness of an offence and the culpability of the offender must bear a just relation to the punishment imposed. The nature and extent of the penalty man not be inherently disproportionate to the behaviour which is being subjected to punishment. The offence and its legal consequences must stand in an appropriate relation to one another (see BVerfGE 54, 100 at 108 and numerous other decisions).

It is essentially for the legislature to determine what sorts of behaviour are to be punishable in specific cases after due consideration or the specific situation. The Federal Constitutional Court cannot consider whether the legislature’s decision was the very most suitable, reasonable or just way of solving the problem in issue. The court’s role is merely to check that the substance of the penal provision is compatible with the provisions of the constitution and accords with the fundamental values of the Basic Law and the unwritten principles which underlie the constitution (see BVerfGE 80, 244 at 255 which provides further references on this point).

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2 a) In the current version of the Intoxicating Substances Act as in the earlier versions the aim of the legislature is to protect the health both of the individual and of the population as a whole against the dangers which flow from drugs. It also aims to prevent the population, especially the young from becoming addicted to drugs (See the the supporting arguments adduced by the government when introducing the Intoxicating Substances Bills of 1971 and 1981 BRDrucks. 665/70 (new) page 2 and BRDrucks 8/3551 page 23 and following). The penal provisions of the Intoxicating Substances Act also serve this purpose. To achieve this purpose the legislature does not merely prescribe penalties for behaviour which poses an immediate danger to the health of individuals. Instead it aims to control social interaction in such a way as to protect it from the socially damaging effects of dealings with drugs. These can also arise from the so-called soft drug Cannabis: It has the effect of introducing young people in particular to drugs. Through it they become accustomed to intoxicating substances. The formation of the personality of youths and young persons can be stunted. The aim of the Act has been considerably extended in the interim by the international convention. United Nations have recognised that any sort of dealings with drugs – including Cannabis – are worthy of punishment, particularly in the Intoxicating Substances Convention of 1988. The reason given is that the production of intoxicants and psychotropic substances and the illegal trade in such substances “seriously threaten the health and well-being of people and damage the economic, cultural and political foundations of society.” (Preamble to the Intoxicating Substances Convention of 1988.) In particular the Convention makes the point that the illegal trade in intoxicants and psychotropic substances exploits children as consumers and promotes organised crime “which undermines the legal economy and threatens the stability, security and sovereignty of states”. In addition it leads to

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high financial gains and wealth which make it possible for international criminal organisations to permeate, poison and corrupt legitimate trading and financial activities, the structures of the state, and society in general at all levels”. The United Nations are therefore determined to end the basic causes of this abuse by international co-operation. These causes include “the illegal demand for such substances and the massive profits derived from the illegal trade.” The European states, within whose borders hardly any drugs are produced, have thereby undertaken primarily to combat the demand for drugs. The Federal Republic of Germany has concurred in this evaluation of the dangers involved by passing the Intoxicating Substances Convention Implementation Act and subsequently ratifying the convention, and has made this evaluation the basis of its treaty obligation to combat dealings with drugs by means of criminal penalties. In the light of this convention the Intoxicating Substances Act is at the same time the contribution of the Federal Republic of Germany to the international control of drugs and psychotropic substances and of dealings with these substances. It is Germany’s contribution to combating the illegal market in drugs and the criminal organisations who participate in it. This is the common business of the community of states joined together in the United Nations. It is their unanimous conviction that the only chance of pursuing these goals with any success is for various states to co-operate.

In setting this objective the Intoxicating Substances Act serves communal interests which are recognised by the constitution.

b) According to the judgement of the legislature the dangers to health which arise from the consumption of Cannabis products are significant. The government’s explanatory notes to the Intoxicating Substances Act 1971 made the following points (see BRDrucks. 665/70 (new) page 5 ff):

“A particular characteristic of the surge in drug-taking is the considerable increase in the use of Indian Hemp (Cannabis Sativa) and of the resin which it produces (Hashish). These are hallucinogens which, according to the dominant medical opinion,

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can lead to changes of consciousness and to psychological dependency if used on an ongoing basis. The psychoactive mechanism depends on the isomer Tetrahydrocannabinol (THC) which is contained by these substances. The ability to produce this substance by a fully synthetic process has only existed for a few years. This drug does not produce any withdrawal symptoms and there is only a slight tendency to increase the dosage. It is highly probable that the drug serves as a stepping stone. The tendency to move on to harder drugs is noticeable particularly in young people. With this substance the entry into the world of drugs is achieved. The precise biochemical processes in the human body which are triggered by the taking of this drug are still largely unknown. Intensive research is currently being conducted into this subject and it is to be expected that concrete results will have been achieved within about five years. In particular, there is still very little known about the side-effects which result from ongoing use of this drug. On the basis of research which American pharmacologists have conducted on pregnant rats it is even suspected that the drug can result in genetic defects. This drug has little medicinal significance.

On the basis of the Geneva Convention of 19 February 1925, which is binding on the Federal Republic of Germany in terms of the law of 26 March 1959 (Federal Gazette II page 333), Cannabis and its resin (Hashish) were subjected to the controls of the Opium Act. Because it has no medical significance Hashish was subjected to the absolute ban imposed by s 9 of the Opium Act. This Bill retains this legal approach. Given the scientific evidence currently available, it would be irresponsible, particularly from the viewpoint of health policy, to release this drug from the system of controls created by theOpium Act and to permit it to become freely available for mass consumption as various voices are demanding. If the drug is freed from controls the result is sure to be advertising which would drive the mass consumption of the drug to such levels that it would reach every person who is particularly vulnerable to drug-taking because of their psychological tendencies. It is true that the damage which the “integration” of this drug would cause to the public cannot be adequately calculated in advance given the current uncertain state of information on the subject, but on a rough estimate it will be very high.

In particular it is impossible to predict the extent of harmful side-effects which could arise from the mass consumption of this drug, particularly since the drug has not been subjected to sufficient pharmacological and clinical tests for mass consumption. The correct approach is to wait for the results of the research which has begun. It would be irresponsible to release the drug at this stage.

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A further point is that the drug has been subject to the control system of the Opium Act for decades without any complaints. There are thus no constitutional problems with a ban. We refer to the decision of the Bavarian Supreme Court of 27 August 1969 – RReg 4a St 81/69 (NJW number 51 of 1969 p 2297) and the decision of the Federal Constitutional Court of 17 December 1969.”

This evaluation is also the basis of the government’s explanatory notes to the Intoxicating Substances Act of 1981 which is currently in force (See BTDrucks. 8/3551 page 24):

“The health risks arising from the use of Cannabis products have been emphasised repeatedly by research, or at least it is not possible to prove that it is harmless. In addition, it is accepted by the vast majority of those who serve in the committees of the United Nations which deal with issues relating to drugs that the abuse of Cannabis is damaging to the user’s health. (See most recently the Annual Report of the International Drug Control Office for 1978.)”

c) Today the legislature’s original assessment of the health risks is contentious. However the assumption that Cannabis is not dangerous which forms the basis of the decisions in the courts below is also without a firm scientific basis.

c 1) The raw material for Cannabis products are the herb-like plants of the species Cannabis (Hemp). The best-known of these is the one-year fibrous hemp (Cannabis Sativa L). In addition there is the more intoxicating Indian Hemp (Cannabis Sativa Varia Indica L) which is found particularly in India and the whole of the Orient. The chemical content of both the Indian and the European varieties is the same so long as they are cultivated under comparable conditions. The oily, psychotropic active elements are contained in the resin which oozes from small, spherical gland-ends. The plant can be processed into various Cannabis products:

  • Cannabis weed (Marihuana)
  • Cannabis resin (Hashish)
  • Cannabis concentrate (Hashish oil)

The simplest way of preparing it for consumption is to roll the dried and shredded leaves mixed with fragments of the blossoms and stalk

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into a “joint” using a cigarette paper. In Germany, as in other European Countries, Cannabis resin (Cannabis extracta resinae tincturae), known as “Hashish” is even more commonly smoked than Marihuana. On the other hand the more potent Hashish oil has, up to the present, been more rare on the European market.

c2) The current state of scientific knowledge of the effects of consuming Cannabis is described in the literature as follows [references omitted]:

(1) Although the use of Cannabis as an intoxicant has long been known, Cannabis products, and in particular Marihuana, first became an aspect of youth culture at the beginning of the 1960’s in the USA as part of the “Flower Power” movement. Since 1967/68 a similar group of consumers of the Hemp drug has developed in Europe. In the last 20 years or so the market for Cannabis products in the Federal Republic of Germany has remained more or less unchanged, while the use of so-called hard drugs has increased [reference omitted].

(2) According to the author Geschwinde [reference omitted] estimates of the current number of users in Germany vary between 800 000 and two million, according to Koerner [reference omitted] between three and four million. However, these are for the most part occasional consumers. According to a representative sample of people questioned by the Federal Ministry of Health in 1990 56,7% of the consumers who were questioned said that they had used the drug between one and five times in the previous year (See schedule 3 to the opinion of the Federal Minister of Health which was submitted in case 2 BvL 43/92).

(3) the primary active ingredient of the resin of the Hemp plant is Delta 9 Tetrahydrocannabinol (THC). Since it was first synthesised

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(1964/65) it has usually been used in laboratory experiments as the sole active ingredient. In contrast, natural Cannabis is supplemented by a large number of additional active ingredients and aromas which also influence the effect it has [references omitted]. The level of concentration of the active ingredient can vary greatly depending on origin and processing methods. In Cannabis weed (Marihuana) the concentration is under 2% if the weed is of poor quality, 2-4% if of average quality, and 5% or more if of good quality. In Cannabis resin (hashish) the concentration is under 5% if of poor quality, 5-8% if of average quality, and 10% or more if of good quality. Extract of Hashish oil has a concentration of under 15% (poor quality) and up to 70% (very good quality) [references omitted].

(4) In Germany Cannabis products are usually mixed with tobacco and smoked. In addition Cannabis can also be drunk as a “tea” or can be dissolved in tea, used as a spice in food or baked in biscuits. If it is taken orally it only takes effect about one hour after consumption, but if smoked it acts within minutes and reaches its maximum within 15 minutes. About 30 to 60 minutes after smoking it the effect begins to ebb and after about three hours it has largely dissipated. In contrast, if it is taken orally the effect can last up to twelve hours. The effect of Cannabis depends not only on the dose but also, to a greater extent than other psychotropic substances, on the psychological state of the person taking it and the social setting in which it is taken [references omitted].

(5) The specific psychological and physical effects of both a one-off use and ongoing consumption of Cannabis are described differently by different writers [references omitted]. The result is, that the estimation of the dangers

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posed to the individual and to society by consumption of Cannabis also differs [references omitted].

There is a widespread consensus that Cannabis products do not cause a physical addiction [references omitted] and that, except in cases of chronic consumption of high doses, they do not cause a tolerance to develop [references omitted]. In addition, the direct damage to the individual’s health is considered to be minor in cases of moderate use [references omitted]. On the other hand there is little dispute about the fact that a psychological may result [references omitted]. However the potential for addiction to Cannabis products is considered to be very small [reference omitted]. These findings are corroborated by the large number of occasional users who go unnoticed and the large number of users who confine themselves to the consumption of Hashish. It is also said that ongoing consumption of Cannabis products can lead to behavioural disturbances, lethargy, indifference, feelings of anxiety, depression and loss of a sense of reality [references omitted] and that this may in particular cause lasting disturbances in the development of the personalities of young people. On the other hand the cause of the so-called amotivational syndrome is disputed. This is a condition which is characterised by apathy, passivity and euphoria. Some researchers take the view that Cannabis products cause this syndrome [reference omitted] while others argue that the consumption of Cannabis is rather a consequence of a

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pre-existing attitude to life [references omitted]. There is however a strong consensus that the amotivational syndrome is only found in cases of constant consumption of Cannabis in high doses. Current research generally rejects the view that Cannabis serves as an introduction to harder drugs in the sense of having some physical quality which has this effect [references omitted]. This view corresponds to the findings of the survey of 1990 [reference omitted] which found that only 2,5% of Hashish users also used other drugs which fall under the Intoxicating Substances Act. However, this does not rule out the possibility that in an indeterminate number of cases the consumption of Cannabis may lead users to change over to hard drugs. However, this is due not so much to becoming accustomed to intoxication as to the fact that the market in illegal drugs is a single market (Cannabis users usually obtain their Hashish from dealers who also deal in “hard” drugs). (This appears also to be the conclusion reached in the opinion presented by the Federal Ministry of Health.) Finally, it is not disputed that acute intoxication with Cannabis impairs the ability to drive [references omitted].

3. The conclusion is that the threat to health posed by Cannabis products is today seen as being smaller than the legislature was assuming when it passed the Act. However, even according to the current body of information there remain not insignificant dangers and risks. This means that the overall approach of the act in relation to Cannabis products remains valid from a constitutional point of view. This is supported by the expert opinions which the court has obtained from the

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Federal Ministry of Health and the Federal Criminal Police and also by the relevant literature which this court has reviewed (which extends beyond the overviews which have been cited). The approach of the Act is to subject all dealings with Cannabis products other than consumption to comprehensive state control because of the dangers to the individual and to the general public which flow from the drug and the trade in drugs. To enforce this state control it imposes comprehensive penalties on illegal dealings with Cannabis products. Given this content the penal provisions of the Intoxicating Substances Act are suitable to limit the distribution of the drug in society and thus limit the dangers which flow from it as a whole. The penal provisions are thus generally a suitable instrument to promote the aim of the Act.

4. In undertaking repeated amendments to the Intoxicating Substances Act and in acceding to the 1988 Intoxicating Substances Convention the legislature has repeatedly re-considered its view and has repeatedly come to the conclusion that to achieve the aims of the Act it is necessary to have a prohibition of illegal dealings in Cannabis backed up by penalties. This view is also not objectionable from a constitutional point of view. Even on the basis of the current state of scientific knowledge, which is adequately revealed by the sources reviewed above (point 3), the view of the legislature, that there is no means other than criminal penalties which would be equally effective in attaining the Act’s aims while being less intrusive, is arguable. It is not a satisfactory answer to say that the prohibition of Cannabis products to date has not been able to fully achieve the aims of the Act and that the unbanning of Cannabis would be a milder instrument with better chances of achieving those aims. The criminal policy discussion as to whether a reduction in the consumption of Cannabis can better be attained through the general preventative effect of the criminal law, or through the unbanning of Cannabis in the hope that this would lead to a separation in the markets for various types of drugs, remains open. There is no scientifically based information

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indicating firmly that the one view or the other is correct. The international conventions, to which the Federal Republic of Germany has acceded, rely increasingly heavily on the use of penal measures in combating the abuse of drugs and the illegal trade in drugs. Taking into account this international legal development, it is at least open to question whether it would be possible to achieve a separation of the drug markets in the national context by unbanning Cannabis products, or whether such action would not rather have the effect of turning Germany into a new centre of international drug trafficking. It is equally uncertain that a reduction in Cannabis consumption would be achieved by removing the “attraction of the illicit” or by instituting information campaigns to publicise the dangers of using Cannabis. In these circumstances if the legislature remains of the view that a general ban on Cannabis backed up by criminal penalties will scare off more potential users than will a suspension of the criminal penalties, and that therefore criminal penalties are better suited to protecting legal interests, then this must be accepted from a constitutional point of view. In making the choice between several potentially suitable means of attaining the aim of legislation the legislature has the prerogative of forming a view and making a decision (see BVerfGE 77, 84 at 106). It is indeed possible in certain circumstances to imagine cases in which clear criminological evidence is so strong that, in examining the constitutionality of a particular piece of legislation, the court will conclude that the legislature is obliged by the constitution to follow a particular course in dealing with a problem, or at least that the course chosen by the legislature is unacceptable (see BVerfGE 50, 205 at 212 and following). However the conclusions of the debate over a criminally sanctioned ban of all dealings with Cannabis products have not reached such a level of clarity.

5. The next step is to decide whether the penal provisions of the Intoxicating Substances Act which have been presented for constitutional review infringe against the requirement of proportionality in the narrower sense to the extent that they apply to dealings with Cannabis products. In making this judgement it is necessary to distinguish between the general prohibition of dealings with Cannabis products

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and its enforcement by the threat of criminal penalties for the various types of infringement against the ban. The general approach adopted by the legislature, to comprehensively ban dealings with Cannabis products subject to a few very narrow exceptions, is in itself not a violation of the principle of proportionality in the narrower sense. It is justified by the goals which it aims to attain. These are to protect the population, especially the young, from the health risks emanating from the drug and from the danger of a psychological dependency on the drug, and therefore above all to take steps against the criminal organisations which dominate the drug market and the damage which they cause to the public good. These important public interests are not balanced by interests of equal weight in favour of unbanning dealings in the drug. Essentially the same applies to the extent that the legislature uses the instrument of criminal sanctions to enforce the ban. Infringements against the ban on dealings with Cannabis products are not simply a case of disobedience in the face of administrative rules. Rather such acts pose a threat to important public interests which the legislature is aiming to protect. The legislature thus has clear and justified reasons for taking the view that such infringements deserve and require punishment.

there is also essentially no constitutional objection to the fact that in protecting the named interests (above at 2a) the legislature has shifted the focus from a concrete danger or violation into the realm of abstract threats. The offences relating to illegal dealings with Cannabis products extend the protection comprehensively to all types of behaviour which, generally speaking, have a tendency to bring about the abovementioned dangers. This is justified as a general preventive measure.

However, it is in the nature of such a comprehensively conceived protective criminal statute that the offences cover a wide range of behaviour

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in which there are significant differences in relation to the nature and extent of the danger posed to the interests which the statute aims to protect. The same applies to the range of individual wrongfulness and culpability. Depending on the characteristics and effects of the drug, the amount involved in the specific case, the nature of the relevant infringement, and all the other relevant facts, the danger posed to the protected public interests may be so slight that the considerations of general prevention which justify a general threat of criminal penalties may lose their force. In such cases, having due regard to the right of the affected individual to freedom, the individual guilt of the defendant and the related considerations of criminal policy which aim at prevention in the case of the specific individual, the punishment constitute a disproportionate and therefore unconstitutional sanction.

The consideration of this issue is not excluded merely because the general concept of the legislation, namely to subject illegal dealings with Cannabis to comprehensive penalties, is to be regarded as a suitable and necessary means of ensuring the protection of interests which the legislation aims to safeguard. It is precisely the purpose of the third step in the test for proportionality to subject measures which have been recognised as suitable and necessary to the stated aim to a further check. This further check requires consideration of whether the means which are being employed are, from the point of view of the affected individual, still in proportion to the protection of legal interests which can be achieved by the measures. In considering this due regard must be had to the resulting limitation of fundamental rights. The test of proportionality in the narrower sense can thus lead to the conclusion that a means of protecting legal interests which is in itself suitable and necessary may not be resorted to because the resulting infringement of the fundamental rights of the affected person significantly outweighs the increased protection of legal interests which is thereby achieved, with the result that the use of the protective measure is disproportionate. From this it follows that under certain circumstances the protective aim, the pursuit of which is in itself legitimate, must take second place. This will be so if the measure being relied on would lead to a disproportionate infringement of the rights of the affected individual.

a) The criminal sanction which s 29 para 1 sentence 1 number 1 of the Intoxicating Substances Act

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prescribes for trafficking in Cannabis products does not, in the light of these principles, run contrary to the principle of proportionality. Trafficking primarily andtypically presents a greater threat to the interests of others than do the consumption-related offences of s 29 para 1 Intoxicating Substances Act. This alone would suffice to make it the most dangerous form of illegal dealing with drugs. Trading arouses and sustains the demand for Cannabis products, exploits the weakness and dependency of others and leads to the uncontrolled distribution of the drug to, amongst others, the most vulnerable groups. Furthermore it is mostly in the hands of international organised crime. In the light of this not only the prohibition of trafficking but also the threat of punishment to prevent it is proportionate in the narrow sense.

b) The same conclusion follows with the respect to the supply of Cannabis products other than for gain and not for the purpose of promoting trade, which is threatened with penalties by s 29 para 1 sentence 1 number 1 Intoxicating Substances Act. Supply other than for gain also promotes the distribution of Cannabis products and thus creates a threat to the interests of others. It is true that the danger flowing from this type of offence is clearly to be regarded as smaller than that flowing from trafficking. This is so because the cases in which Cannabis products are given as a gift are of lesser importance than cases in which ownership is passed in exchange for some consideration if only because they are much less frequent. Nevertheless it is legitimate for the legislature to start from the assumption that this sort of behaviour gives rise to a danger. The giving of the drug as a gift not infrequently takes place in a social context in which particularly vulnerable people, such as the young or psychologically weak or chronic users are likely to be affected. The giving of the drug leads to a communal experience which can lead people who previously did not belong the class of consumers to become drug consumers. Alternately it may strengthen an existing psychological dependency on the drug. In view of these considerations the imposition of penalties for the supply of Cannabis products to third persons is justified by the public interest in hindering the uncontrolled distribution of the drug. It is within the bounds of a proportionate and reasonable sanction for the person to whom the prohibition is directed,

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particularly given that the varying weight of specific offences can in general be adequately taken into account within the broad punitive framework of s 29 para 1 Intoxicating Substances Act. In addition there is the procedural possibility of refraining from prosecution in cases of little culpability and where the public interest does not require prosecution (see ss 153 and 153a of the Criminal Procedure Regulations).

c) The provision in s 29 para 1 sentence 1 number 1 Intoxicating Substances Act which imposes penalties for the illegal procurement of Cannabis products does not violate the constitutional requirement of proportionality. The same applies to the prohibition in s 29 para 1 sentence 1 number 3 which imposes penalties for the illegal possession of this drug.

c1) Trading in Cannabis products or supplying them other than for profit are not the only offences which create a danger for third parties in the abstract in that they create the possibility of the drug being passed on. Illegal procurement and illegal possession of the drug also present a threat to the interests of others if only because they open up the possibility of the drug being passed on to third parties without any control. The danger of the drug being passed on in this way exists even if the intention of the perpetrator in procuring and possessing the drug is merely to prepare the way for his own consumption of it. A further consideration is that the very act of procurement for the purposes of private consumption creates the demand for the drug which constitutes the demand side of the drugs market. In view of the estimates, which put the current number of consumers somewhere between 800 000 and 4 million people, most of whom are occasional users (see above at 2c), this cannot be dismissed as insignificant. It is therefore consonant with the constitutional requirement of proportionality in the narrower sense to also, as a general rule, subject the illegal procurement and possession of Cannabis products for private consumption to criminal penalties, since it is a wrong deserving and requiring punishment. This is justified as a general preventive measure. However it is precisely in these cases that the extent of individual culpability and the threat to other legal interests emanating from the individual act may be petty. This is especially likely to be the case if Cannabis products are procured and possessed only in small amounts for occasional

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personal use. These cases make up a not insignificant part of the acts which are punishable under the Intoxicating Substances Act. According to the Report of the Federal Government concerning the jurisprudence on the penal provisions of the Intoxicating Substances Act in the period 1985 to 1987 which was published on 11 April 1989 (Bundestagsdrucksachen 11/4329 page 15) about a quarter of all prosecutions which are initiated because of an drugs offence are discontinued either on the initiative of the State Prosecution Service or on the initiative of the court. About 80 to 90% of the discontinued cases concern Cannabis offenders with small amounts for personal consumption who fall within the parameters of s 29 para 1 Intoxicating Substances Act. There is good reason for believing that these discontinued prosecutions are to a significant extent cases of illegal procurement and possession since these offences also form the basis of 51% of convictions according to the Report of the Federal Government (at page 12). According to the representative survey published by the Federal Ministry of Health in 1990, 56,7% of the Cannabis users who were questioned said that they had consumed Cannabis between one and five times in the previous twelve months. In the light of all these factors the individual contribution of the small consumer to the realisation of the dangers which the prohibition of dealings with Cannabis is intended to ward off is limited. This is so despite the great significance with the total number of small consumers collectively has for the illegal drug market. However the situation will be different if, for example, the way in which the drug is consumed will tend to lead young people to use it. If the procurement or possession of Cannabis products is limited to small amounts for occasional personal use, then as a general rule, the concrete danger that the drug will be passed on to a third person is not very significant. The public interest in the imposition of penalties is then correspondingly limited. Imposing criminal penalties on those who are merely sampling the drug or who are occasional consumers of small amounts of Cannabis products can lead to results which are disproportionate in their effect on the individual offender. From the point of view of discouraging the specific individual from breaking the law the penalty may do more harm than good, for example by pushing the individual into the drugs culture and causing him to develop a sense of solidarity with it.

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c2) Even taking into account such scenarios, the general provision of penalties for the illegal procurement and possession of Cannabis products, which is justified as a general preventative measure, does not violate the constitutional requirement of proportionality in the narrower sense. The legislature has satisfied this requirement by making it possible for the authorities responsible for implementing the Act to take account of the limited wrongfulness or culpability of the offence in individual cases by refraining from prosecution or the imposition of a penalty. In addition to the generally applicable provisions of s 153 and 153a Criminal Procedure Regulations which permit the discontinuation of a prosecution if the blameworthiness of the defendant is minor and there is no public interest in continuing the prosecution, there are also ss 29 para 5 and 31a Intoxicating Substances Act to take into account. In terms of s 29 para 5 Intoxicating Substances Act the court can refrain from imposing a penalty under s 29 para 1 if the defendant cultivates, manufactures, imports, exports, procures or in some other way obtains or possesses drugs or transports them through the country only for his personal consumption and only for his personal use. The application of this provision is particularly appropriate in those cases in which a person who is merely sampling Cannabis or is an occasional user procures or possesses a small amount of Cannabis, which is less dangerous than other available drugs, thereby causing no danger to third parties. From the point of view of the authorities charged with implementing the law this provision has added practical significance in that s 153b Criminal Procedure Regulations makes it possible to discontinue proceedings up until the beginning of the main trial if the requirements of s 29 para 5 Intoxicating Substances Act are fulfilled.

In addition, since 16 September 1992 the new s 31a Intoxicating Substances Act also applies. This makes special provision for refraining from prosecution in cases where s 29 para 5 Intoxicating Substances Act applies if the guilt of the offender is to be regarded as petty and there is no public interest in prosecution. s 31a Intoxicating Substances Act differs from the provision for discontinuance of proceedings in s 153b Criminal Procedure Regulations read with s 29 para 5 Intoxicating Substances Act in that s 31a expressly requires that the culpability of the offender should be petty and that there should be no public interest in prosecuting. These requirements will in general be satisfied in cases of

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occasional personal use of Cannabis not involving any danger to third parties. This means that the authorities responsible for enforcing the law, in particular the Public Prosecutors, who until the offender is charged have absolute control of proceedings, must refrain from prosecuting the offences listed in s 31a Intoxicating Substances Act in the light of the requirement of proportionality in the narrower sense. On the other hand, if the offence involves danger to third parties, for example, because it takes place in a school, young persons home, army barracks or similar institution, or if it is committed by someone charged with the supervision of young people, or by a teacher, or a public officer who is charged with the enforcement of the Intoxicating Substances Act and is likely to encourage others to imitate the offence, then there may be sufficient culpability and a public interest in prosecution.

However, since both s 31a Intoxicating Substances Act and ss 153 ff Criminal Procedure Regulations involve decisions in accordance with legal rules [references omitted] it would be a cause for concern if, after the introduction of s 31a, the widely divergent attitudes to discontinuation of proceedings in the different States of the Federation which were identified in the report of the Federal Government for the years 1985 to 1987 [reference omitted] should persist. Differing approaches have been noted, particularly with respect to the decision as to what constitutes a “small amount” of the drug. Principles to guide this decision have already been laid down in the jurisprudence on s 29 para 5 Intoxicating Substances Act [references omitted]. Another area of significant divergence is the approach to repeat offenders [references omitted]. s 31a Intoxicating Substances Act gives the State Prosecution Service a wide discretion as to whether to discontinue proceedings without consultation with the court. However, in doing so it creates scope for directing the practice of the State Prosecution Service with respect to discontinuation by means of administrative guidelines. In this respect the States of the Federation have a duty to ensure that the practice of the State Prosecution Services in respect of discontinuance of proceedings is substantially uniform [see also BVerfGE 11, 6 at 18 and BVerfGE 76, 1 at 77]. This duty is particularly important in view of the fact that at issue is criminal prosecution, which places a particularly grave burden on the individual affected. An essentially uniform approach to enforcement would

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no longer be guaranteed if the authorities in the States were to insist on, or prohibit, the prosecution of certain types of behaviour in significantly different ways by reference to abstract and general considerations. As yet there is still no clear evidence concerning the application of s 31a Intoxicating Substances Act which would allow the conclusion to be drawn that this provision too will be dealt with in different ways on an ongoing basis in the various States. It is legitimate for the legislature to wait and see whether the newly created s 31a Intoxicating Substances Act, which is specially designed to deal with consumer offences in drugs law, leads to an essentially uniform application of the law in this area, or whether further statutory provisions setting out the circumstances in which proceedings should be discontinued are necessary.

c3) The decision of the legislature to take account of the diminished wrongfulness and culpability of certain acts primarily by limiting the obligation to prosecute is compatible with the constitution.

There are two approaches open to the legislature to take account of the limited wrongfulness and culpability involved in certain groups of cases in compliance with the principle of proportionality in the narrower sense. One possibility is to deal with the issue through the substantive law. This could involve limiting the applicability of the general penal provision, for example by recognising privileged cases, or allowing for special sanctions in cases involving petty offences. However it can also adopt a procedural solution, ie, limit the duty to prosecute and make it more flexible. In principle both approaches are consistent with the constitutional principle of proportionality (see BVerfGE 50, 205 at 213 ff). The procedural solution also does not infringe the constitutional principles which flow from Article 103 para 2 Basic Law. The prohibition on retrospective provisions creating criminal liability or increasing the penalties for it is obviously not infringed. The principle that penalties must have a legal basis is satisfied. The limits of punishable behaviour are determined by the statute as are the limitations on the duty to prosecute. The fact that the duty to apply the law in individual cases rests on the authorities responsible for enforcement is irrelevant. Finally, the principle that a provision imposing penalties must be clear and certain is satisfied if the

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individual can, with sufficient certainty, determine from the statute under what circumstances he can expect to be punished and what the potential punishment is. These requirements are satisfied in this case.

d) There is no problem from the point of view of proportionality in the narrower sense with subjecting the illegal import of Cannabis products to penalties in terms of s 29 para 1 sentence 1 number 1Intoxicating Substances Act. There can be no constitutional objection to the legislature in this respect relying on a predominating criminal- and health-policy interest in ensuring that no illegal drugs be brought into the national territory. There can also be no constitutional objection to the legislature seeing the particular wrongfulness of illegal importation as being based on the fact that the trade in drugs, which poses a particular threat to the interests which the Intoxicating Substances Act seeks to protect, is an international activity and that therefore illegal cross-border transactions in drugs are one of its typical permutations. Every state which, like the Federal Republic of Germany, has acceded to the international conventions combating the trade in drugs, must in particular make special efforts to fulfil its obligations to prevent illegal cross-border trafficking, thus showing the solidarity with its neighbouring states which is necessary to effectively combat the international drug market. As far as the importation of small amounts of Cannabis products for personal use is concerned, the points made above (at I.5.c) should be referred to.

e) As far as the imposition by s 29 para 1 sentence 1 number 5 Intoxicating Substances Act of penalties on the illegal transport of drugs through the national territory is concerned the conclusion is the same. Although the illegal transportation of drugs through the national territory harms intra-state communal interests to a lesser extent than illegal importation, the legitimate interest of the state in an effective control of the international trade in drugs legitimates the imposition of penalties as far as the principle of proportionality in the narrower sense is concerned. The Federal Republic of Germany has undertaken an obligation to exercise such control in the interests of effectively combating, together with other states, the international drug market.

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In this respect too the provisions of the Intoxicating Substances Act provide sufficient opportunities to give due consideration to limited wrongfulness and culpability in individual cases.

f) Finally, the provisions of s 29 para 3 sentences 1 and 2 number 4 of the Intoxicating Substances Act in the version which was in force until 21 September 1992 are compatible with the requirement of proportionality in the narrower sense insofar as they concern trading in amounts of Cannabis products which are not insubstantial. The same applies to the provision in s 30 para 1 number 4 of the Act.

As has been set out above, the imposition of penalties by s 29 para 1 sentence 1 number 1 Intoxicating Substances Act, insofar as it is concerned with trading in Cannabis products, is compatible with Article 2 para 1 and Article 2 para 2 sentence 2 of the Basic Law. Taking this as a starting point there can be no constitutional objection to the fact that as a general rule the Act regarded illegal trading with not insignificant amounts of Cannabis products as specified in the old version of s 29 para 3 sentence 2 number 4 Intoxicating Substances Act as a particularly serious case of trading with drugs and provided in s 29 para 3 sentence 1 Intoxicating Substances Act for a penalty of imprisonment for at least one year. Since trading in large amounts of Cannabis products presents a significantly greater danger to the interests which the Intoxicating Substances Act seeks to protect the legislature is entitled to react to it with a more severe minimum penalty. In this context there is no need for a consideration of the question whether the jurisprudence of the higher courts which defined “a not insignificant amount” of Cannabis products as meaning an amount containing over 7,5 grams of the active ingredient THC thereby called into question the proportionality of the mimimum penalty of one year’s imprisonment provided for in s 29 para 3 sentence 1 Intoxicating Substances Act. This is so because this determination of the minimum amount does not arise from the content of the Act itself but from its interpretation by the criminal courts. If, in view of the minimum sentence, this interpretation is incompatible with the principle of proportionality there is nothing to stop any criminal court from interpreting and applying the provision in a way which is compatible with the constitution. Furthermore, the

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sentencing framework of s 29 para 3 sentence 1 is, as such, not the object of an admissible application for constitutional review.

For similar reasons the qualified offence created by s 30 para 1 number 4 Intoxicating Substances Act does not violate the principle of proportionality insofar as it relates to the importation of Cannabis products in not insignificant amounts. Here too the dangers arising from the increased amount justify the creation of a qualified offence with an increased penalty. As far as the interpretation of the concept of “a not insignificant amount” is concerned he same applies as in the case of the old version of s 29 para 3 sentence 2 number 4 Intoxicating Substances Act Furthermore, here too the sentencing framework has not been made the object of an admissible application for constitutional review.

6. In the 1992 Amendment Act to the Intoxicating Substances Act the legislature initiated a “reform of the currently predominantly repressive legislation on the abuse of drugs by withdrawing the prosecution of addicted users” (Bundestagsdrucksachen 12/934 page 1). Correspondingly it differentiated more strongly between dealers and consumers in the criminal law. In the light of the open nature of the debate, both from the perspective of criminal policy and of scientific research, about the dangers presented by the consumption of Cannabis and the correct way of combating them (see above under I.2.c and 4), the legislature has a duty to monitor and check the effects of the laws currently in force, having due regard to experiences in other countries (see BVerfGE 50, 290 at 335; BVerfGE 56, 54 at 78; BVerfGE 65, 1 at 55 and following; BVerfGE 88, 203 at 309 and following). In doing so it should in particular form an opinion on the question whether and to what extent a legalisation of Cannabis could lead to a separation of the market in drugs, and thus to a reduction in drug consumption as a whole; or whether on the contrary only resistance to the drug market as a whole and the organised crime which determines it, backed up by criminal penalties, offers reasonable chances of success.

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II

The imposition of penalties on illegal dealings with Cannabis products is not a violation of Article 2 para 2 sentence 1 of the Basic Law.

The arguments which the courts below used to justify the view that there was a violation of this provision of the constitution fail from the start because misunderstand the scope of the right.

Article 2 para 2 sentence 1 of the Basic Law protects the individual against interventions by the state against his life and his physical integrity. In addition, when read with Article 1 para 1 sentence 2 Basic Law, it places an obligation in the state to protect and promote these interests. Above all this means it must protect these interests from illegal infringement by third parties (see BVerfGE 39, 1 at 42; BVerfGE 88, 203 at 251 and numerous other decisions). Since the prohibition of dealing with Cannabis products does not force anyone to resort to other intoxicants such as alcohol which are not subject to the Intoxicating Substances Act there is no infringement by the state of the legal interests protected by Art 2 para 2 sentence 1 Basic Law. Rather, the decision to damage his own health by abusing intoxicants of this sort which are freely available is the responsibility of the consumer himself. To demand of the legislature that dealings with Cannabis products should not be punished merely because other intoxicants which are not subjected to the Intoxicating Substances Act can in some circumstances present greater health risks would be to stand the state’s duty to protect the interests in life and physical integrity on its head.

III

The inclusion of Cannabis products in schedule I to s 1 para 1 Intoxicating Substances Act, with the result that illegal dealing with these substances is subjected to the penal provisions of the Act, does not violate Article 3 para 1 Basic Law merely because alcohol and nicotine are regulated differently.

1. The principle of equality forbids the decisionmaker to treat essentially similar situations differently

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and demands that he treat essentially different situations differently, having due regard to the differences between them. In applying this principle it is essentially for the legislature to single out the situations to which it attaches the same legal consequences, ie, those which from the legal point of view it wishes to regard as similar (See BVerfGE 53, 313 at 329). It is not possible to rule generally and in the abstract on which choices are objectively justifiable and which are unjustifiable in terms of the principle of equality. Instead this can only be done in the context of the specific characteristics of the specific subject matter which is to be regulated (See BVerfGE 17, 122 at 130; BVerfGE 75, 108 at 157 and numerous other cases). In the field of penalties relating to drugs which is the issue here the legislature could, without violating the constitution, answer in the affirmative the question whether there were reasons of such a nature and of such weight as to justify applying different rules to the regulaton of Cannabis products on the one hand, and alcohol and nicotine on the other, with differing legal consequences for those affected.

2. The principle of equality does not demand that all drugs which are potentially equally harmful should be equally prohibited or tolerated. In the interests of legal certainty the Intoxicating Substances Actfollows the approach of drawing up a positive list, ie, all substances and preparations which are banned in accordance with the laws on drugs are expressly listed in the schedules to the Act. In s 1 paras 2 and 3 the Intoxicating Substances Act provides a procedure for adding to the positive list or making exceptions to the general prohibition if certain specified legal pre-conditions are satisfied. However, in following this procedure it is not necessary that the extent of the risk posed to health should be the only relevant criterion for placing something on the positive list. Apart from the different effects of the substances the legislature can, for example, also take into account factors such as:

  • the various uses to which they may be put (for example the abuse of the most diverse chemicals such as adhesives, solvents and petrol for “sniffing” comes to mind);
  • the significance to society of the various uses;
  • the legal and practical chances of acting against abuse with any prospect of success; and
  • the possibilities and

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demands of international co-operation in regulating and combating drugs and the criminal organisations which deal with them. These considerations alone suffice to make the point that the general principle of equality does not prescribe that all drugs should be equally released to the public merely because other substances which pose a risk to health are permitted. As far as the comparison between Cannabis products and Nicotine is concerned, the fact that nicotine is not a drug (intoxicant) is by itself a sufficient reason for treating them differently. There are also important reasons for the differing treatment of Cannabis products and alcohol. It is indeed accepted that the abuse of alcohol brings with it dangers both for the individual and for society which are equal to or even greater than those posed by Cannabis products. However, it must be borne in mind that alcohol can be used in many ways. There are no comparable uses for the products and parts of the Cannabis plant. Products containing alcohol serve as a source of nourishment and pleasure. In the form of wine they are also used in religious ceremonies. In all cases the dominant use of alcohol does not lead to states of intoxication. Its intoxicating effect is generally known and is generally avoided by means of social controls. In contrast, the achievement of an intoxicated state is usually the main aim when Cannabis products are used. Furthermore the legislature finds itself in the situation that it cannot effectively prevent the consumption of alcohol because of traditional patterns of consumption in Germany and the European cultural sphere. However this does not mean that Article 3 Basic Law requires the legislature to refrain from prohibiting Cannabis.

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IV

The failure of the legislature to draw a distinction in the Intoxicating Substances Act between so-called soft and hard drugs in accordance with the relative dangerousness of the individual drugs is also not a violation of Article 3 para 1 Basic Law. The Act does not cause hard drugs such as Heroin and soft drugs such as Cannabis products to be treated the same in criminal law in a way which could be considered arbitrary in the light of the differing degrees of danger posed by the drugs. It is true that the legislature has created uniform penal provisions for all forms of drugs.

However, within the limits set by Article 103 para 2 of the Basic Law, the legislature has empowered the courts to take account of the differing levels of wrongfulness and culpability in individual cases, and thus also to take account of the dangerousness of each of the drugs in question, by requiring the exercise of discretion with respect to certain elements of the offence, by setting a wide sentencing framework, and by authorising the courts to refrain from prosecuting or sentencing.

The same applies to taking account of the differing levels of wrongfulness and culpability involved in the various forms of the offence of illegal dealings with drugs which are listed in the Act.

V

The application to have the Act declared unconstitutional has thus not shown any material grounds for doing so. The sentencing of the applicant for ongoing trading in not insignificant amounts of Hashish to imprisonment for two years and six months in terms of s 29 para 1 sentence 1 number 1 and of s 29 para 3 sentences 1 and 2 number 4 of the unamended version of the Intoxicating Substances Act is not a violation of his constitutional rights. As has already been shown, the imposition of penalties by s 29 para 1 sentence 1 number 1 of the Intoxicating Substances Act is consistent with the Basic Lawto the extent that it is concerned with trading in Cannabis products. The same applies to the provisions of s 29 para 3 sentences 1 and 2 number 4 of the unamended version of the Intoxicating Substances Act. There is no need in the context of the application for constitutional review to go into the question of whether the jurisprudence of the higher courts, which defines the lower limit

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of “not insignificant amounts” of Cannabis products as 7,5 grams of THC, has set the limit at a level which is compatible with the constitutional requirement of proportionality in the light of the minimum sentence of one year. This is so because the application of s 29 para 3 sentences 1 and 2 number 4 of the unamended version of the Intoxicating Substances Act cannot be open to constitutional objections in a case such as the present given that the court below found that the applicant had traded 6 kilograms of Hashish. There are also no other constitutionally relevant defects in the interpretation or application of the penal provisions, either in respect of conviction or sentencing.

Signed by Justices Marenholz, Boeckenfoerde, Klein, Grasshof, Kruis, Kirchhof, Winter and Sommer.

Judgment of Justice Grasshof dissenting against some of the majority’s reasoning but not against its findings ….

Translation by Michael Jewell. HTML edition ©2001 Gerhard Dannemann.

BVerfGE 88, 203 – Abortion (Schwangerschaftsabbruch II)

February 20, 2024 3:56 pm / Leave a Comment

2 BvF 2/90 – 2 BvF 4/92 – 2 BvF 5/92

  1. The Basic Law requires the state to protect human life, including that of the unborn. This obligation to protect is based on Article 1, Paragraph 1 of the Basic Law; its object, and following from that, its extent are more precisely defined in Article 2, Paragraph 2. Even unborn human life is accorded human dignity. The legal system must create the statutory prerequisites for its development by granting the unborn its independent right to life. The right to life does not commence first with the mother’s acceptance of the unborn.
  2. The obligation to protect unborn human life is related to the individual life and not human life in general.
  3. The unborn is entitled to legal protection even vis-à-vis its mother. Such protection is only possible if the legislature fundamentally forbids the mother to terminate her pregnancy and thus imposes upon her the fundamental legal obligation to carry the child to term. The fundamental prohibition on pregnancy termination and the fundamental obligation to carry the child to term are two integrally connected elements of the protection mandated by the Basic Law.
  4. Termination must be viewed as fundamentally wrong for the entire duration of the pregnancy and thus prohibited by law (reaffirmation of BVerfGE 39, 1 <44>). The right to life of the unborn may not be surrendered to the free, legally unbound decision of a third party, not even for a limited time, not even when the third party is the mother herself.
  5. The extent of the obligation to protect unborn human life must be determined with a view, on the one hand, to the importance and need for protection of the legal value to be protected and, on the other hand, to competing legal values. Listed among the legal values affected by the right to life on the part of the unborn are – proceeding from the right of the pregnant woman to protection of and respect for her human dignity (Article 1, Paragraph 1 of the Basic Law) – above all, her right to life and physical inviolability (Article 2, Paragraph 2 of the Basic Law) and her right to free development of her personality (Article 2, Paragraph 1 of the Basic Law). However, the woman cannot claim constitutionally protected legal status under Article 4, Paragraph 1 of the Basic Law for the act of killing of the unborn which is involved in a pregnancy termination.
  6. To fulfill its obligation to protect [unborn human life], the state must undertake sufficient normative and practical measures which lead – while taking the competing legal values into account – to the attainment of appropriate and, as such, effective protection (prohibition on too little protection). This necessitates a concept of protection which combines elements of preventative and repressive protection.
  7. The woman’s constitutional rights do not extend far enough to set aside, in general, her legal obligation to carry the child to term, not even for a limited time. The constitutional positions of the woman, however, do mean that not imposing such a legal obligation in exceptional situations is permissible, in some cases, perhaps even mandatory. It is up to the legislature to determine in detail, according to the criterion of non-exactability, what constitutes an exceptional situation. “Non-exactable” means that the woman must be subject to burdens which demand such a degree of sacrifice of her own existential values that one could no longer expect her to go through with the pregnancy (reaffirmation of BVerfGE 39, 1 <48 et seq.>).
  8. The prohibition on too little protection does not permit free disregard of the use of criminal law and the resulting protection for human life.
  9. The state’s obligation to protect human life also encompasses protection from threats to unborn human life which arise from influences in the family or from the pregnant woman’s social circle, or from the present and foreseeable living conditions of the woman and the family, and counteract the woman’s willingness to carry the child to term.
  10. Moreover, the state’s mandate to protect human life requires it to preserve and to revive the public’s general awareness of the unborn’s right to protection.
  11. The Basic Law does not fundamentally prohibit the legislature from shifting to a concept for protecting unborn human life which, in the early phase of pregnancy, emphasizes counseling the pregnant woman to convince her to carry the child to term; it could thus dispense with the threat of criminal punishment based on indications and the ascertainment of grounds supporting the indications by third parties.
  12. A counseling concept of this type requires guideline legislation which creates positive prerequisites for action on the part of the woman in favor of the unborn. The state bears full responsibility for implementation of the counseling procedure.
  13. The state’s obligation to protect human life requires that the involvement of the physician, which is necessary in the interests of the woman, simultaneously serve to protect the unborn.
  14. Characterization in law of the existence of a child as a source of injury is excluded on constitutional grounds (Article 1, Paragraph 1 of the Basic Law). Thus the obligation to support a child cannot be construed as an injury either.
  15. Pregnancy terminations performed without ascertainment of the existence of an indication pursuant to the counseling regulation may not be declared to be justified (not illegal). In accordance with the inalienable principles prevalent in a state governed by the rule of law, a justifying circumstance will apply to an exceptional situation only if the existence of its conditions must be ascertained by the state.
  16. The Basic Law does not permit the granting of a right to benefits from the statutory health insurance for the performance of a pregnancy termination whose legality has not been established. The granting of social assistance benefits in cases of economic hardship for pregnancy terminations which are not punishable by law according to the counseling regulation, on the other hand, is just as unobjectionable from a constitutional point of view as continued payment of salary or wages is.
  17. The fundamental principle of the organizational power of the federal states applies without restriction if a federal regulation merely provides for a task of state to be fulfilled by the federal states, but does not make individual provisions that would be enforceable by government agencies or administrations.

FEDERAL CONSTITUTIONAL COURT

Pronounced May 28, 1993
Kling
Administrative Secretary
as Clerk of the Court

IN THE NAME OF THE PEOPLE

In the proceedings
for abstract judicial review of

1. a) the provisions of § 218b, Section 1, Sentence 1 and Section 2 and § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213) and
b) the provisions of §§ 200f, 200g of the Reich Insurance Code in the version of the Act on Supplementary Measures in Conjunction with the Fifth Penal Reform Act (Penal Reform Act – Supplementary Act) of August 28, 1975 (Federal Law Gazette I, p. 2289)

– 2 BvF 2/90 -,

2. Articles 13, No. 1 and 15, No. 2 of the Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Terminations (Pregnancy and Family Assistance Act) of July 27, 1992 (Federal Law Gazette I, p. 1398) and § 24b of the Fifth Volume of the Code of Social Security Law in the version of Article 2 of the Pregnancy and Family Assistance Act

– 2 BvF 4/92 –

Petitioners under 1) and 2):
The Free State of Bavaria, represented by the minister-president, Prinzregentenstrasse 7, Munich 22,

–

Prof. Dr. Udo Steiner, Am Katzenbuehl 5, Regensburg –

3. Articles 13, No. 1 and 15, No. 2 of the Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Terminations (Pregnancy and Family Assistance Act) of July 27, 1992 (Federal Law Gazette I, p. 1398)

Petitioners under 3): 249 members of the German Federal Parliament (Bundestag)
. . .

–

. . .

– 2 BvF 5/92 –

the Second Senate of the Federal Constitutional Court, with the participation of the justices

Deputy Chief Justice Mahrenholz,
Böckenförde,
Klein,
and Justices Grasshof,
Kruis,
Kirchhof,
Winter,
Sommer

and on the basis of the oral proceedings of December 8 and 9, 1992, finds by

JUDGMENT

that:

I. 1. § 218a, Section 1 of the Penal Code in the version of the Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Terminations (Pregnancy and Family Assistance Act) of July 27, 1992 (Federal Law Gazette I, p. 1398) contravenes Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law inasmuch as the provision declares a pregnancy termination under the preconditions set forth in the aforementioned statute to be not illegal and, in No. 1, refers to counseling which, in turn, fails to satisfy the constitutional requirements pursuant to Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law.

The entire provision is invalid.

2. § 219 of the Penal Code in the version of the aforementioned Act contravenes Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law and is invalid.

3. In keeping with the grounds of the Judgment, § 24b of the Fifth Volume of the Code of Social Security Law conforms to Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law.

4. In keeping with the grounds of the Judgment, §§ 200f, 200g of the Reich Insurance Code in the version of the Act on Supplementary Measures in Conjunction with the Fifth Penal Reform Act (Penal Reform Act – Supplementary Act) of August 28, 1975 (Federal Law Gazette I, p. 2289) were, inasmuch as they provided for benefits from the statutory health insurance in the event of pregnancy terminations performed pursuant to §218a, Section 2, No. 3 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213), in conformity with Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law.

5. Article 15, No. 2 of the Pregnancy and Family Assistance Act contravenes Article 1, Paragraph 1 in conjunction with Article 2, Paragraph 2, Sentence 1 of the Basic Law and is invalid, inasmuch as the aforementioned Act revokes the provision regarding federal statistics on pregnancy termination previously included in Article 4 of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297), as amended by Articles 3 and 4 of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213).

6. Article 4 of the Fifth Penal Reform Act in the version of Article 15, No. 2 of the Pregnancy and Family Assistance Act contravenes the federal principle (Article 20, Paragraph 1 and Article 28, Paragraph 1 of the Basic Law) and is invalid, inasmuch as the provision places obligations on the highest competent state authorities; for the rest, it conforms to the Basic Law.

7. The petitions in Case No. 2 BvF 2/90 for constitutional review of § 218b, Section 1, Sentence 1 and Section 2 and § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213) are hereby dismissed.

II. Pursuant to § 35 of the Federal Constitutional Court Act, this court orders that:

1. The provisions, which have been in force since the Judgment of August 4, 1992, shall remain in force until June 15, 1993. From then on until new statutory provisions take effect, nos. 2 through 9 hereof shall apply by way of supplementation to the provisions of the Pregnancy and Family Assistance Act, to the extent that the provisions of the said Act have not been declared invalid by No. I of this Judgment.

2. § 218 of the Penal Code in the version of the Pregnancy and Family Assistance Act is not applicable if the pregnancy termination is performed by a physician within twelve weeks from conception, the woman demands the termination and proves to the physician by production of a certificate that she has received counseling from a licensed counseling center at least three days prior to the medical procedure (cf. infra No. 4). The fundamental prohibition on pregnancy termination remains unaffected even in these cases.

3. (1) Counseling serves to protect unborn life. It has to be guided by the effort to encourage the woman to continue the pregnancy and open up perspectives to her for a life with the child; it should help her make a responsible and conscientious decision. In the process, the woman must be aware of the fact that, in every stage of pregnancy, the unborn has an independent right to life even vis-à-vis her, and thus, according to the legal system, pregnancy termination can only be considered in exceptional situations where bearing the child to term would place the woman under a burden which – comparable to the circumstances specified in § 218a, Section 2 and 3 of the Penal Code in the version of the Pregnancy and Family Assistance Act – is so severe and exceptional that it exceeds the limits of exactable sacrifice.

(2) Counseling offers the pregnant woman advice and assistance. It contributes to the surmounting of conflict situations in connection with the pregnancy and the overcoming of an emergency. To this end, counseling encompasses:

a) entering into conflict counseling; to this end, it is expected that the pregnant woman shall inform the counselor of the circumstances that have led her to consider a pregnancy termination;

b) provision of whatever medical, social, and legal information is warranted by the facts and circumstances of the case, presentation of the legal rights of mother and child and the available practical assistance, in particular, assistance which facilitates continuation of the pregnancy and eases the situation of mother and child;

c) the offer to assist the woman in asserting legal rights, finding housing and childcare, and continuing her training/education, as well as follow-up counseling.

Counseling shall also include information on ways of avoiding unwanted pregnancy.

(3) If necessary, medical, psychological, or legal experts or other persons shall be included in counseling. In every instance, it should be ascertained whether it is advisable, with the consent of the pregnant woman, to inform third parties, in particular the father of the unborn and the immediate relatives of both parents of the unborn.

(4) If she so chooses, the pregnant woman may remain anonymous vis-à-vis the counselor.

(5) The counseling session shall be continued at once if, according to the content of the counseling session, it serves the goal of counseling (Paragraph 1 <Sentence 1>). If the counselor holds that the counseling session has reached its conclusion, the counseling center shall, upon request, issue a certificate to the woman, under her name and bearing the date of the last counseling session, which certifies that counseling took place according to Paragraphs 1 through 4.

(6) The counselor shall protocol, in a way which does not permit tracing of the identity of the woman counseled, her age, marital status, and nationality, the number of times she has been pregnant, how many children she has, and how many previous pregnancy terminations she has undergone. Furthermore, the counselor shall record the essential grounds stated for the pregnancy termination, the duration of the counseling session, and, if applicable, the additional persons present. The protocol must also show what information was conveyed and what assistance was offered to the woman.

4. (1) Counseling centers pursuant to No. 3 supra must – regardless of licensing pursuant to § 3, Section 1 of the Pregnancy and Family Assistance Act – be licensed separately by the state. Privately funded institutions and physicians can also be licensed as counseling centers.

(2) Counseling centers shall not be so organizationally or economically connected with institutions in which pregnancy terminations are performed that a material interest in the performance of terminations cannot be excluded on the part of the counseling center. The physician who performs the termination is excluded as a counselor, nor may he be affiliated with the counseling center that conducted the counseling.

(3) Only those counseling centers can be licensed which guarantee counseling in accordance with No. 3 supra, have sufficient numbers of personally and professionally qualified personnel to conduct such counseling, and cooperate with all centers that provide public and private assistance to mother and child. The counseling centers are required to render an annual written account of the standards on which their counseling work is based and the experience they have gained in the process.

(4) Licenses may only be granted under the proviso that they must be confirmed by the responsible authority within a period to be determined by law.

(5) The federal states shall provide a sufficient number of counseling centers near the women’s places of residence.

5. The physician from whom the woman demands a pregnancy termination is subject to the duties arising from the grounds of the Judgment (cf. Nos. 1. and 2. supra).

6. The licensing procedure provided for in No. 4 shall also be conducted for existing counseling centers. Until completion of this procedure, at the latest until December 31, 1994, these centers are empowered to conduct counseling pursuant to No. 3 supra.

7. The obligation to maintain federal statistics and the obligation to report pursuant to Article 4 of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297), as amended by Articles 3 and 4 of the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213) also apply in the territory specified in Article 3 of the Unification Treaty.

8. The provisions of § 37a of the Federal Social Security Act also apply in the event of pregnancy terminations performed in accordance with No. 2 supra.

9. Until the legislature reaches a decision as to the possible introduction and means of ascertaining a criminological indication, women insured with the statutory health insurance and those eligible for benefits pursuant to the regulations on public assistance can draw benefits upon application if the preconditions of No. 2 supra are fulfilled and the responsible public medical examiner or a medical referee of the statutory health insurance has certified that, in his opinion as a physician, the pregnant women is the victim of a crime pursuant to §§ 176 – 179 of the Penal Code and there are compelling grounds for believing that the pregnancy is due to this crime. The physician is authorized to obtain, with the consent of the woman, information from the department of public prosecution and inspect any pertinent investigative records; any knowledge gained in this manner is subject to physician-patient privilege.

Grounds:

A.

1

At issue in these joint proceedings for abstract judicial review is above all whether various penal, social security, and organizational provisions on pregnancy termination satisfy the state’s constitutional duty to protect unborn human life. The provisions in question are part of the new laws in the Fifteenth Penal Law Amendment Act and in the Penal Reform Act – Supplementary Act brought about by the German Federal Constitutional Court’s Judgment of February 25, 1975 (BVerfGE 39, 1 et seq.) or are part of the Pregnancy and Family Assistance Act that was newly enacted for the whole of Germany following the reunification of Germany.

I.

2

1. The issue of whether and in what way, in the field of tension between protection of unborn human life and a pregnant woman’s right of self-determination, the problem of pregnancy termination can be resolved in a more satisfactory manner than through penal measures has been the subject of controversial discussion for many years. A 1974 attempt on the part of the legislature to originally limit the general criminal liability for pregnancy termination, mainly through a time-phase solution for the first twelve weeks of pregnancy, was rejected by the Federal Constitutional Court. In its Judgment of February 25, 1975 (BVerfGE 391 et seq.), the First Senate of the Court declared that § 218a of the Penal Code in the version of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297) is inconsistent with Article 2, Paragraph 2, Sentence 1 in conjunction with Article 1, Paragraph 1 of the Basic Law and is invalid, inasmuch as it exempts pregnancy termination from punishment even if there are no grounds that – in the sense of the grounds for the Judgment – are of lasting duration in the face of the order of values of the Basic Law.

3

2. Thereupon, the German Federal Parliament enacted the Fifteenth Penal Law Amendment Act of May 18, 1976 (Federal Law Gazette I, p. 1213); this amended the provisions of §§ 218 et seq. of the Penal Code (hereinafter referred to as §§ 218 et seq. Penal Code, old version) to their currently valid form, which is based on the promulgation of the Penal Code in the version of March 10, 1987 (Federal Law Gazette I, p. 945, 1160).

4

Pursuant to this Act, anyone who [has or performs] a pregnancy termination after conclusion of nistation is, as a matter of principle, subject to punishment (§ 218, Article 1, Section 3, Sentence 1, § 219d of the Penal Code, old version). A pregnancy termination within certain periods of time, however, is not punishable if it is performed by a physician, if the pregnant woman consents, and if, according to medical knowledge (taking into consideration certain severe emergencies of the pregnant woman) it is indicated (indications for pregnancy termination). The relevant provision reads as follows:

5

“§ 218a

6

Indication for Pregnancy Termination

7

(1) A pregnancy termination performed by a physician is not punishable pursuant to § 218 if:

8

1. the pregnant woman consents and

9

2. according to medical knowledge and considering the present and future situation in life of the pregnant woman, the pregnancy termination is indicated to avert a threat to the life of the pregnant woman or the threat of grave physical or mental distress on the part of the woman, and the threat cannot be averted in another way which is exactable from her.

10

(2) The preconditions of Section 1, No. 2 are also considered to have been fulfilled if, according to medical knowledge

11

1. there are compelling grounds for assuming that, due to heredity or detrimental influences, the child will suffer from irreversible injury to his or her health so grave that a continuation of the pregnancy cannot be exacted of the pregnant woman,

12

2. the pregnant woman was the victim of an illegal act pursuant to §§ 176 – 179 and there are compelling grounds to assume that the pregnancy was caused by the illegal act, or

13

3. the pregnancy termination is otherwise indicated to avert the threat of an emergency which

14

a) is so severe that a continuation of the pregnancy cannot be exacted of the pregnant woman and

15

b) cannot be averted in another way that can be exacted of the pregnant woman.

16

(3) In the cases in Section 2, No. 1, not more than twenty-two (22) weeks may have elapsed since conception, in the cases in Section 2, Nos. 2 and 3, not more than twelve (12) weeks.”

17

Furthermore, the pregnant woman is not subject to punishment even in the absence of an indication if a physician performs the pregnancy termination within twenty-two (22) weeks after conception following counseling pursuant to § 218b of the Penal Code, old version (§ 218, Section 3, Sentence 2 of the Penal Code, old version). Even if these preconditions are not met, the court can refrain from punishing the woman if she was especially distressed at the time of the procedure (§ 218, Section 3, Sentence 3 of the Penal Code, old version). In these cases, only the physician consulted by the woman is affected by the punishment. Physicians are subject to stricter standards in general as well: anyone who terminates a pregnancy although the woman has not been informed by a counselor at least three days in advance about the private and public assistance available (cf. § 218b, Section 2 of the Penal Code, old version) and has not received counseling from a physician about the medically relevant aspects is punishable, even if the pregnancy termination is indicated, for performing a termination without prior counseling of the pregnant woman (§ 218b, Section 1 of the Penal Code, old version). Furthermore, even if the pregnancy termination is indicated, anyone who performs a termination without written certification by another physician that the termination is indicated is also punishable (§ 219 of the Penal Code, old version). The counseling of the pregnant woman about social assistance and the counseling about the medically relevant aspects may also be conducted by the physician who certifies that the pregnancy termination is indicated; the consultation about the medically relevant aspects can also be conducted by the physician who performs the termination procedure. The pregnant woman is not punishable pursuant to §§ 218b, 219 of the Penal Code, old version.

18

3. The objective of the Act on Supplementary Measures in Conjunction with the Fifth Penal Reform Act (Penal Reform Act – Supplementary Act) of August 28, 1975 (Federal Law Gazette I, p. 2289) is to bolster the reformative efforts of the Fifth Penal Reform Act through supporting social policy measures (cf. German Federal Parliament Publication 7/376, p. 1).

19

It is based on a draft bill by the Social Democratic and Free Democratic parliamentary groups (German Federal Parliament Publication 7/376) that takes up a draft bill introduced by the Federal Government in 1972 (German Federal Council Publication 104/72). Among other things, the draft provides that insured women have a right to benefits from the statutory health insurance in the event of a pregnancy termination performed by a physician.

20

According to the legislative history of the bill, the draft should supplement the reformative efforts of § 218 of the Penal Code, which takes too little account of the emergencies in which a pregnant woman may find herself and thus fails to do justice to the problem of illegal pregnancy terminations. The measures provided for were also intended to prevent illegal pregnancy terminations; moreover, they were intended to ensure that, “in cases where the law guarantees exemption from punishment”, pregnant women would not be placed at a disadvantage because of their financial situations. The legislative history goes on to state (German Federal Parliament Publication loc. cit. p. 5 et seq.):

21

“Counseling and treatment in the event of a pregnancy termination are covered by benefits of the statutory health insurance because in this way it is possible to ensure that the termination procedure is performed properly.
Performance of these tasks is also in the general public interest. Thus the group of health insurance policy holders should not bear the costs alone. For this reason, provision has been made for partial federal funding.”

22

Upon the recommendation of the Committee on Labor and Social Order, the German Federal Parliament enacted the draft with a few amendments (German Federal Parliament Publication, 7th Legislative Period, 88th Session, March 21, 1974, shorthand verbatim record of session, p. 5763 et seq.). These consisted mainly in the extension of health insurance benefits and social assistance to also include non-punishable sterilization by a physician and in the express allowance of the right to sickness benefits and continued payment of wages in the event of incapacity for work due to sterilization or pregnancy termination, which was controversial during debates (cf. German Federal Parliament Publication 7/1753, pp. 5 – 11). After the Federal Council refused to approve the bill, the mediation committee suggested a version of the Act which was intended to ensure that, following new statutory provisions on the criminal liability for pregnancy termination in the wake of the Federal Constitutional Court’s Judgment of February 25, 1975, benefits would be granted only in all cases considered by the legislature to be cases of “non-illegal” pregnancy termination by a physician (German Federal Parliament Publication 7/3778, p. 2 et seq.). This version was enacted.

23

The pertinent provisions of the Act read as follows:

24

“IIIa. Other Assistance

25

§200e

26

Insured persons have a right to medical advice on contraceptive issues; medical advice also includes any necessary examination and the prescription of contraceptives.

27

§ 200f

28

Insured persons have a right to benefits in the event of non-illegal sterilization and in the event of non-illegal pregnancy termination performed by a physician. Benefits shall cover medical advice on the continuation and termination of pregnancy, medical examination and appraisal to ascertain the preconditions for non-illegal sterilization or non-illegal pregnancy termination, medical treatment, the supply of pharmaceuticals, dressings, medicaments, and hospitalization. Insured persons have a right to sickness benefits if they are incapable of work due to a non-illegal sterilization or non-illegal pregnancy termination performed by a physician, unless they are entitled to benefits pursuant to § 182, Section 1, No. 2.

29

§ 200g

30

The provisions governing assistance during sickness apply accordingly for the granting of benefits pursuant to § 200e and § 200f unless otherwise stipulated. § 192, Section 1 does not apply to the granting of sickness benefits in the event of non-illegal sterilization and in the event of non-illegal pregnancy termination performed by a physician.

31

4. The indications solution, especially the statutory definition of the general emergency indication, and health insurance funding of pregnancy terminations remained the subject of intense legal and political debate even afterwards. In March 1990, the State of Bavaria petitioned the German Federal Constitutional Court for abstract judicial review of the provisions on the consultation and indication ascertainment procedure and health insurance benefits in the event of pregnancy terminations on the basis of the general emergency indication; this petition (2 BvF 2/90) is the subject of the present Judgment.

II.

32

The reunification of Germany on October 3, 1990 and the related task of standardizing legislation in both parts of a reunited Germany lent new impetus to efforts at reform.

33

1. At first laws on criminal liability for pregnancy termination still differed in the two parts of Germany. On the basis of the Unification Treaty of August 31, 1990 in conjunction with the Act on the Unification Treaty of September 23, 1990 (Federal Law Gazette II, p. 885; cf. Appendix II, Chapter III, Subject Area C, Section I, No. 1), criminal liability in the acceding territory extends, pursuant to § 153 of the GDR Penal Code of January 12, 1968 in the new version of December 14, 1988 (GDR Law Gazette I 1989, p. 33), amended by the Sixth Penal Revision Act of June 29, 1990 (GDR Law Gazette I, p. 526), to anyone who interrupts the pregnancy of a woman “contrary to the statutory provisions”. Likewise, anyone who prompts a woman to terminate her pregnancy or supports her in interrupting a pregnancy herself or having an illegal termination performed is also punishable. The provisions of the Pregnancy Termination Act of March 9, 1972 (GDR Law Gazette I, p. 89) and the related implementing regulations of the same date (GDR Law Gazette II, p. 149) that continue in force pursuant to the Unification Treaty (loc. cit., Appendix II, Chapter III, Subject Area C, Section I, Nos. 4 and 5) contain a time-phase solution. Pursuant to § 1, Section 2 of the Act, the pregnant woman has the right to have a medical pregnancy termination in an obstetric / gynecological institution within twelve weeks from the beginning of the pregnancy. Pursuant to § 2, a pregnancy termination may be performed at a later point in time only if it is to be expected that continuation of the pregnancy will endanger the life of the woman or if there are other grave reasons; the decision as to whether this is the case shall be made by an expert medical commission. Pursuant to § 3, pregnancy termination is fundamentally prohibited in cases where it may lead to gravely injurious or life-threatening complications (Section 1) or if less than six (6) months have elapsed since the last pregnancy termination (Section 2). § 4, Section 1 states that the preparation, performance, and subsequent treatment of the legal pregnancy termination is a case of sickness for the purposes of labor and insurance laws.

34

2. Article 31, Paragraph 4 of the Unification Treaty of August 31, 1990 calls for the legislature of the reunified Germany to enact, at the latest by December 31, 1992, laws that ensure protection of gestating life and constitutionally valid surmounting of the conflict situations of pregnant women better than is currently the case in both parts of Germany.

35

a) Thus in 1991, the Free Democratic Party parliamentary group (German Federal Parliament Publication 12/551), the Members of Parliament Christian Schenck, et al., and the group Bündnis 90/Die Grünen (German Federal Parliament Publication 12/696), the Social Democratic Party parliamentary group (German Federal Parliament Publication 12/841), the Members of Parliament Petra Bläss, et al., and the group Party of Democratic Socialism / Linke Liste (German Federal Parliament Publication 12/898), the Christian Democratic Union / Christian Social Union parliamentary group (German Federal Parliament Publication 12/1178 <new>) and the Members of the Parliament Herbert Werner, et al. (German Federal Parliament Publication 12/1179) introduced draft bills on the subject of new, uniform laws on pregnancy termination for all of Germany.

36

During parliamentary deliberation, the above were joined by a draft bill by Members of Parliament Inge Wettig-Danielmeier, Uta Würfel, et al. (German Federal Parliament Publication 12/2605, superseded by German Federal Parliament Publication 12/2605 <new>). The crucial point of the penal law portion of this bill, which was later enacted with amendments, is a fundamental transformation of § 218 of the Penal Code as well as a revised counseling regulation (§ 219 of the Penal Code). According to this, pregnancy terminations performed by a physician within twelve weeks after conception and with the consent of the pregnant woman shall no longer be included in the statutory definition of crime found in § 218 of the Penal Code, as long as the woman has received counseling at a licensed counseling center at least three (3) days prior to the procedure. The previous statutory definitions of the criminological indication and the general emergency indication are to be abolished, leaving only medical and embryopathic indications as grounds of justification for pregnancy termination.

37

The legislative history of the statute emphasizes that, in light of the significance of the gestating life as a legal value and the constitutional guarantee of it, penal protection is indispensable. Experiences with the indications solution introduced in 1976, however, had shown that it was impossible to standardize sufficiently concrete, medically and judicially verifiable criteria for ascertaining the presence of an emergency which would justify pregnancy termination. In the end, observed the lawmakers, only the pregnant woman herself could assess the conflict situation in which she finds herself. Thus it was necessary to find a solution that would take both the high value of unborn life and the self-determination of the woman into account. The Federal Constitutional Court did not declare all indications solutions to be constitutionally invalid in its Judgment of February 25, 1975. The degree to which the Penal Code must be used to protect unborn life depends on whether other provisions exist through which effective protection of gestating life really is guaranteed. The precondition for constitutionally valid embodiment of the amendments of the Penal Code provided for in the draft bill was, on the one hand, that the state provide sufficient sociopolitical means to protect unborn life in this way. The suggested sociopolitical measures served to meet this requirement. On the other hand, steps must be taken to ensure that the woman does not make her responsible decision of conscience regarding a pregnancy termination in isolation from the fundamental decision for the protection of the gestating life that is prescribed by the Basic Law. This would be ensured procedurally through the compulsory counseling, by means of which the woman would be offered advice and assistance in her conflict as well as sufficient information about governmental assistance as the basis for thorough reflection on her situation. In doing this, it was thought that preparedness to decide in favor of gestating life is greatest when the woman does not have the feeling that she must subjugate herself to the verdict of others, but rather is able, after receiving qualified counseling and carefully considering the situation, to decide for herself whether to continue the pregnancy. The woman’s freedom of choice does not leave the gestating life entirely without protection. In this way, there is a chance that the woman – without being patronized in the counseling session – would accept the assistance offered to her in her conflict situation and decide in favor of the child. Because the responsible contact between the pregnant woman and the counselor that is necessary for a counseling session of this kind cannot be forced, no onus to present her case and no obligation to justify her actions would be imposed on the woman. At her request, however, she would receive individual suggested solutions for surmounting her conflict situation. Counseling should establish a trusting relationship between the counselor and the pregnant woman, so that the pregnant woman would be open to considering other solutions to the conflict besides pregnancy termination.

38

Furthermore, the draft bill adopts the provisions of the Reich Insurance Code on health insurance benefits in the event of pregnancy termination as §§ 24a, 24b in the Fifth Volume of the Code of Social Security Law. In this regard, the legislative history states (cf. German Federal Parliament Publication 12/2605 <new>, p. 20):

39

“§ 24b corresponds essentially to the previous § 200 f of the Reich Insurance Code. … This also covers pregnancy terminations that are performed, following counseling, within the first twelve (12) weeks after conception, because Article 11 excludes pregnancy termination from the statutory definition of a crime in § 218, Section 5 of the Penal Code. Thus it has been ensured that the present legal situation will not change with regard to the defraying of costs and expenses.”

40

The amendment of Article 4 of the Fifth Penal Reform Act (cessation of federal record keeping on pregnancy terminations, provision for a comprehensive network of pregnancy termination institutions) that is likewise contained in the draft bill is justified as follows (German Federal Parliament Publication 12/2605 <new>, p. 23):

41

“The previous Article 4 is superfluous. The new Article 4 requires the states to provide sufficient pregnancy termination facilities. This applies for both outpatient and in-patient facilities. This ensures that there will be no wholesale refusal to license outpatient pregnancy termination facilities.”

42

b) The Special Committee on “Protection of Unborn Life” deliberated the first six draft bills in seventeen sessions, devoting three sessions to debating the draft bill in the German Federal Parliament Publication 12/2605 (revised).

43

On November 13 – 15, 1991 and on December 4 and 6, 1991, the committee held public hearings on the issues of counseling, prevention, and sex education and concerning the constitutional, penal, and medical law issues (cf. “Zur Sache, Themen parlementarischer Beratung”, published by the German Federal Parliament, Volume 1/92, pp. 9 -1027).

44

In revising the draft bills, the committee broke with general legislative practice. In view of the fact that the draft bills contained contradictory provisions in decisive points, the individual issues were deliberated jointly, but the decision about them and thus about any amendments and the final version of the respective draft bills was left to each bill’s proponents and sponsors represented on the committee. No final vote was held on the individual bills. The committee came to a unanimous agreement that the decision about future regulation of issues in connection with unwanted pregnancy should be made by all of the members of the German Federal Parliament without a specific bill being put forward by the committee. This, so the committee, was to be understood as a recommendation; in the second reading, the German Federal Parliament should deal with the bills in the versions in which they returned from committee and vote on these (cf. Recommendation and Report of the Special Committee on “Protection of Unborn Life”, German Federal Parliament Publication 12/2875, p. 111).

45

c) In the roll-call vote during the second reading in the German Federal Parliament, the bill sponsored by Members of Parliament Inge Wettig-Danielmeier, Uta Würfel, et al. (German Federal Parliament Publication 12/2605 <new>) in the committee’s version (cf. in this regard the Recommendation and Report of the Special Committee on “Protection of Unborn Human Life”, German Federal Parliament Publication 12/2875, pp. 85 et seq., especially 99 et seq.) received the majority of the votes (German Federal Parliament Publication, 12th Legislative Period, 99th Session, June 25, 1992, shorthand verbatim record of session, p. 8374). In the final roll-call vote on this bill in the third reading, 357 of the 657 members voted “Yea” and 284 voted “Nay”. Sixteen members abstained (German Federal Parliament, 12th Legislative Period, 99th Session, June 25, 1992, shorthand verbatim record of session, p. 8377).

46

The Federal Council approved the enactment of the German Federal Parliament pursuant to Article 84, Paragraph 1 of the Basic Law against the vote of the State of Bavaria, with the State of Baden-Württemberg, the State of Mecklenburg-Vorpommern, and the State of Thuringia abstaining (Federal Council, 645th Session, July 10, 1992, shorthand verbatim record of session, p. 375). Furthermore, the Federal Council adopted a resolution introduced by the State of Hesse (cf. German Federal Council Publication 451/3/92), which called for the costs and expenses of the accompanying social measures to be distributed appropriately among all levels, especially by increasing, at the expense of the Federal Government, the share of the value added tax distributed to the states.

47

3. The essential provisions of this Act of July 27, 1992 (Federal Law Gazette I, p. 1398), which is entitled “Act to Protect Unborn/Gestating Life, Promote a Society More Hospitable Toward Children, Provide Assistance in Pregnancy Conflicts, and Regulate Pregnancy Termination (Pregnancy and Family Assistance Act) ” – hereinafter referred to as “Pregnancy and Family Assistance Act” – are as follows:

48

a) Article 1 of the Pregnancy and Family Assistance Act (“Act on Sex Education, Contraception, Family Planning, and Counseling”) requires the Federal Center for Health Education to create concepts and prepare materials for sex education (§ 1) and creates a legal right to counseling (§ 2) through licensed counseling centers (§ 3). The information that the state is required to provide under this Act includes sex education, information about contraception and family planning, benefits for promoting families and assistance to children and families, social and economic assistance for pregnant women, pregnancy termination methods and the related risks as well as possible solutions for psycho-social conflicts in connection with pregnancy. Moreover, the pregnant woman is to be supported in asserting legal rights and obtaining housing, finding childcare for the child, and continuing her education or training. The federal states must ensure that the counseling centers provide at least one (1) counselor for every 40,000 inhabitants. The counseling centers have a right to appropriate public funding of personnel and materials costs (§ 4).

49

§§ 24a, 24b of the Fifth Volume of the Code of Social Security Law newly introduced by Article 2 of the Act replace the previous §§ 200e, 200f, and 200g of the Reich Insurance Code. Pursuant to § 24a of the Fifth Volume of the Code of Social Security Law, insured persons have a right to medical advice about contraceptive issues; moreover, insured persons of up to 20 years of age have a right to be supplied with contraceptives if they are prescribed by a physician. In § 24b of the Fifth Volume of the Code of Social Security Law, insured persons are guaranteed a right to benefits in the event of non-illegal pregnancy termination performed by a physician, if the pregnancy termination is performed in one of the institutions provided for this purpose. This provision reads:

50

“§ 24b

51

Pregnancy Termination and Sterilization

52

(1) Insured persons have a right to benefits in the event of non-illegal sterilization and in the event of non-illegal pregnancy termination performed by a physician. The right to benefits in the event of a non-illegal pregnancy termination exists only if the pregnancy termination is performed in a hospital or in another institution provided for this purpose within the meaning of Article 3, Section 1, Sentence 1 of the Fifth Penal Reform Act.

53

(2) Benefits shall cover medical advice on the continuation and termination of pregnancy, medical examination and appraisal to ascertain the preconditions for non-illegal sterilization or non-illegal pregnancy termination, medical treatment, the supply of pharmaceuticals, dressings, medicaments, and hospitalization. Insured persons have a right to sickness benefits if they are incapable of work due to non-illegal sterilization or non-illegal pregnancy termination, unless they are entitled to benefits pursuant to § 44, Section 1.”

54

The Child and Youth Welfare Act was expanded (Article 5 of the Pregnancy and Family Assistance Act) so that a child who has reached the age of three years has a right to attend a kindergarten “subject to the laws of the respective federal state”; effective January 1, 1996, this right exists without restriction. Moreover, from this point in time on, places in daycare centers and daycare openings shall be reserved for children under the age of three and school-age children as needed. The approved amendments of the Act on Federal Public Assistance (Article 8 of the Pregnancy and Family Assistance Act) concern improvements in the recognition of the increased need of expectant mothers and single parents as well as an extension of the prohibition on recourse for maintenance claims against immediate relatives of a woman receiving assistance who is pregnant or who cares for her natural child until it attains the age of six. Further amendments in the area of social assistance affect, among other things, the Employment Promotion Act (Article 6 of the Pregnancy and Family Assistance Act, the Vocational Training Act (Article 7 of the Pregnancy and Family Assistance Act), the Second Residential Construction Act (Article 9 of the Pregnancy and Family Assistance Act), the Controlled Tenancies Act (Article 10 of the Pregnancy and Family Assistance Act), and the Housing Utilization Act (Article 11 of the Pregnancy and Family Assistance Act).

55

b) Article 13, No. 1 of the Act replaces §§ 218 – 219d of the Penal Code in the version promulgated on March 10, 1987 (Federal Law Gazette I, pp. 945, 1160) with new §§ 218 through 219b (hereinafter referred to as §§ 218 et seq. of the Penal Code, new version), the relevant provisions of which read as follows:

56

Ҥ218

57

Pregnancy Termination

58

(1) Whosoever terminates a pregnancy shall be punished with imprisonment of up to three (3) years or a fine. Acts of which the effects occur before completion of the nistation of the fertilized egg in the uterus are not considered to be pregnancy terminations within the meaning of this Code.

59

(2) In aggravated cases, the punishment shall be imprisonment of six (6) months to five (5) years. An aggravated case is generally present when the perpetrator:

60

1. acts against the will of the pregnant woman or

61

2. recklessly endangers the woman’s life or causes grave injury to the health of the pregnant woman.

62

(3) If the pregnant woman commits the offense, then the punishment shall be imprisonment of up to one year or a fine.

63

(4) The attempt to commit the crime is punishable. The pregnant woman shall not be punished for attempted pregnancy termination.

64

§ 218a

65

Exemption of Pregnancy Termination from Punishment

66

(1) Pregnancy termination is not illegal if:

67

1. the pregnant woman demands the pregnancy termination and proves to the physician by means of a certificate pursuant to § 219, Section 3 , Sentence 2 that she has received counseling at least three (3) days prior to the procedure (counseling of the pregnant woman in an emergency and conflict situation),

68

2. the pregnancy termination procedure is performed by a physician and
3. not more than twelve weeks have elapsed since conception.

69

(2) A pregnancy termination performed by a physician with the consent of the pregnant woman is not illegal if, according to medical knowledge, the pregnancy termination is necessary to avert a threat to the life of the pregnant woman or the threat of grave physical or mental distress on the part of the woman, inasmuch as this threat cannot be averted in another way which can be exacted of the woman.

70

(3) The preconditions of Section 2 are also considered to have been fulfilled if, according to medical knowledge, there are compelling grounds for assuming that, due to heredity or detrimental influences, the child would suffer from irreversible injury to his or her health so grave that a continuation of the pregnancy cannot be exacted of the woman. This applies only if the pregnant woman has proved to the physician by means of a certificate pursuant to § 219, Section 3, Sentence 2 that she has received counseling at least three (3) days prior to the procedure, and if not more than twenty two (22) weeks have elapsed since conception.

71

(4) The pregnant woman shall not be punishable pursuant to § 218 if the pregnancy termination is performed by a physician after counseling (§  219) and not more than twenty-two (22) weeks have elapsed since conception. The court can refrain from imposing punishment pursuant to §  218 if the pregnant woman was in an especially distressed situation at the time of the pregnancy termination.

72

§ 218b

73

Pregnancy Termination Without Medical Certification; False Medical Certification

74

(1) Whosoever terminates a pregnancy under the circumstances described in § 218a, Section 2 or 3 without written certification from a physician (other than the physician performing the pregnancy termination) as to whether the preconditions of § 218a, Section 2 or 3, Sentence 1 have been fulfilled shall be punished by imprisonment of up to one (1) year or a fine, unless the offense is punishable pursuant to § 218. A physician who, against his better judgment, provides a false certification for submission pursuant to Sentence 1 that the preconditions of § 218a, Section 2 or 3, Sentence 1 have been fulfilled shall be punished with imprisonment of up to two (2) years or a fine, unless the offense is punishable pursuant to § 218. The pregnant woman is not punishable pursuant to Sentence 1 or 2.

75

(2) A physician may not issue certificates pursuant to § 218a, Section 2 or 3, Sentence 1 if he has been forbidden to do so by the responsible authority because there is a binding conviction against him for an offense pursuant to Section 1, §§ 218, 219a or 219b, or due to another illegal act that he has committed in connection with a pregnancy termination. The responsible authority can temporarily forbid a physician to issue certificates pursuant to §  218a, Section 2 and 3, Sentence 1 if main proceedings have been opened against him on suspicion of one of the illegal acts described in Sentence 1.

76

§ 219

77

Counseling of the Pregnant Woman in an Emergency and Conflict Situation

78

(1) Counseling serves to protect life through advice and assistance for the pregnant woman while acknowledging the high value of gestating life and the woman’s own responsibility. Counseling shall contribute to the surmounting of the emergency and conflict situation in connection with the pregnancy. It shall enable the pregnant woman to make her own responsible decision of conscience. The task of counseling is to provide comprehensive medical, social, and legal information to the pregnant woman. Counseling encompasses the presentation of the legal rights of mother and child and the practical assistance available, in particular those forms of assistance which make it easier to continue the pregnancy and improve the situation of both mother and child. Counseling shall also contribute to the avoidance of unwanted pregnancy in the future.

79

(2) Counseling must be provided by a counseling center licensed by law. The physician who performs the pregnancy termination cannot act as the counselor.

(3) No records are to be kept of the counseling session, which shall be conducted anonymously at the request of the pregnant woman. The counseling center shall immediately issue a dated certificate verifying that counseling did take place pursuant to Section 1 and that the woman has thus obtained the information for making her decision.”

81

Article 14 of the Pregnancy and Family Assistance Act amends some provisions of the Code of Criminal Procedure and, in particular, expands § 108 of the Code of Criminal Procedure, which affects the seizure of so-called chance discoveries, by the inclusion of a prohibition of exploitation: objects found on the premises of a physician which are related to a patient’s pregnancy termination cannot be used in criminal proceedings against the patient for an offense pursuant to § 218 of the Penal Code.

82

c) Two further amendments in Article 15 of the Pregnancy and Family Assistance Act affect the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297): the new version of Article 3, Section 1 replaces – in any case, with regard to the wording – the necessity for an official license for non-hospital pregnancy termination facilities introduced by Article 3, Section 1 of the Fifteenth Penal Law Amendment Act (Sentence 1), and specifies that the pregnancy termination should be performed at the earliest possible point in time (Sentence 2). Article 4 of the new version now concerns pregnancy termination facilities and thus dispenses with the requirement to keep federal statistics stated in the old Article 4. The provision reads:

83

“Article 4

84

Pregnancy Termination Facilities

85

The highest competent state authority shall ensure sufficient and geographically continuous availability of both outpatient and in-patient pregnancy termination facilities.”

86

The prior version read as follows:

87

“Article 4

88

Federal Statistics

89

The Federal Bureau of Statistics shall keep federal statistics on the number of pregnancy terminations performed pursuant to the requirements of § 218a of the Penal Code. Any physician who has performed a pregnancy termination of such kind shall file a report with the Federal Bureau of Statistics by the end of the respective current quarter, stating:
1. the grounds for the pregnancy termination,

90

2. the marital status and age of the pregnant woman as well as the number of children under her care,

91

3. the number of previous pregnancies and the outcomes of these pregnancies,

92

4. the duration of the pregnancy terminated,

93

5. the type of procedure performed and any complications observed,

94

6. the place in which the procedure was performed and, in the event of hospitalization, the length of stay, and,

95

7. where applicable, the foreign country in which the pregnant woman has her place of residence or habitual abode.

96

The physician shall not divulge the name of the pregnant woman.”

97

Finally, Article 16 of the Pregnancy and Family Assistance Act revokes the provisions of the laws of the GDR that are still in force on the basis of the Unification Treaty.

III.

98

By Judgment of August 4, 1992 and on the basis of petitions filed by the State of Bavaria and 248 members of the German Federal Parliament, the Federal Constitutional Court temporarily enjoined, pursuant to (among others) § 32 of the Federal Constitutional Court Act, the coming into force of Article 13, No. 1 and Article 16 of the Law on Assistance to Pregnant Women and Families of July 27, 1992 (Federal Law Gazette I, p. 1398) and ruled that the provisions of Article 4 (federal statistics) of the Fifth Penal Reform Act of June 18, 1974 (Federal Law Gazette I, p. 1297) as amended by Article 3 and Article 4 of the Act of May 18, 1976 (Federal Law Gazette I, p. 1213) shall remain in force temporarily and are also to be applied in the territory specified in Article 3 of the Unification Treaty (cf. BVerfGE 86, 390 et seq.; Federal Law Gazette 1992, I, p. 1585). The temporary order was confirmed by an order issued on January 25, 1993 (Federal Law Gazette I, p. 270).

B.

I.

99

In Proceeding No. 2 BvF 2/90, the State of Bavaria petitioned this Court, pursuant to Article 93, Paragraph 1, No. 2 of the Basic Law and § 13, No. 6 of the Federal Constitutional Court Act, for abstract judicial review of the provisions in § 218b, Section 1, Sentence 1 and Section 2, § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act and of §§ 200f, 200g of the Reich Insurance Code, inasmuch as these provisions pertain to pregnancy terminations due to the general emergency indication (§ 218a, Section 2, No. 3 of the Penal Code in the version of the Fifteenth Penal Law Amendment Act). The State of Bavaria asserts that the provisions of the Reich Insurance Code are invalid to the extent stated; the State of Bavaria alleges that the legislature must replace the provisions objected to with revised, constitutionally valid provisions within an appropriate period of time.

100

1. Petitioner argues that the provisions of §§ 218b, § 219, Section 1 of the Penal Code, old version fail to provide adequate compensation for the fact that pregnancy termination is not punishable in the event of certain indications.

101

(…)

102

2. Petitioner argues that §§ 200f, 200g of the Reich Insurance Code are unconstitutional and invalid on substantive grounds and by reason of transgression of authority, inasmuch as they guarantee insured persons a right to benefits from the statutory health insurance in the event of pregnancy terminations that are not punishable pursuant to § 218a, Section 2, No. 3 of the Penal Code, old version (emergency indication).

103

a) The legislative authority of the Federal Government, so the State of Bavaria, cannot be derived from Article 74, No. 12 of the Basic Law (“Social Insurance”). The social health insurance serves to protect against illness and related risks through association of and payment of contributions by persons subject to the same kinds of risks. In the case of the so-called emergency indication, however, protection from motherhood is not a typical indemnifiable risk, the expense of which should be borne by the associated insured persons. Motherhood is not an illness, the State of Bavaria argues; even a pregnancy termination that is indicated pursuant to § 218a, Section 2, No. 3 of the Penal Code, old version, would not be accorded the status of therapeutic treatment.

104

The legislative authority also cannot be derived from Article 74, No. 7 of the Basic Law (“Public Assistance”).

105

(…)

106

b) Petitioner also holds that the provisions of §§ 200f, 200g of the Reich Insurance Code are unconstitutional on substantive grounds. The obligation to protect unborn life requires that the organs of state act to protect and promote this life in all areas of the legal system. The provisions objected to contravene this requirement: while the Basic Law does not prevent the legislature from refraining from punishing pregnancy terminations on the basis of a general emergency indication, it does prevent the legislature from providing for benefits from the statutory health insurance in this event and thus aiding in the destruction of a legal value. This would be a case of the state using sociopolitical means not for, but rather against gestating life. Moreover, health insurance benefits would provide an incentive for excessive use of the statutory definition of the general emergency indication. Scruples about pregnancy termination in general would be diminished, inasmuch as pregnancy termination would be caught by the “social net”.

107

(…)

108

Finally, the petitioner also argues that the provisions of the Reich Insurance Code at issue are unconstitutional because it is impossible to ensure that pregnant women avail themselves of these benefits only in the situations provided for in law; these provisions contain no attempt to prevent misuse. Health insurers are not required to make their benefits dependent on certification of the preconditions for indication by means of a sound medical opinion. The laws in force also fail to specify that the physician can only charge for his services in the event of a pregnancy termination if he has fulfilled his obligation to report pursuant to Article 4 of the Fifth Penal Reform Act in conjunction with Article 3, No. 2 of the Fifteenth Penal Law Amendment Act. This kind of linkage could influence physicians to be more faithful in their observance of § 218a, Section 1 and 2 of the Penal Code, old version and enable state public authorities to enforce adherence to the said statutes by administrative means.

II.

109

1. The German Federal Government and the States of Bremen, Hamburg, Hesse, Lower Saxony, North-Rhine Westphalia, Saarland, and Schleswig-Holstein hold that the petition with regard to counseling and ascertainment of indications is unfounded; moreover, the States hold that this petition has been made obsolete by the Unification Treaty.

110

(…)

111

2. The State of Baden-Württemberg holds that the legal situation with regard to certification of counseling and indication does not satisfy the requirements of the Federal Constitutional Court’s Judgment of February 25, 1975.

112

(…)

113

3. The States of Rhineland-Palatinate and Thuringia restricted their comments mainly to a position on counseling practice in their respective states.

114

(…)

115

4. Of the highest federal courts, the Federal High Court of Justice, the Federal Administrative Court, the Federal Labor Court, and the Federal Social Security Court all filed briefs of individual senates. Counseling centers or counseling center sponsors, insurance providers, and other parties heard that have submitted amicus curiae briefs are: Sozialdienst katholischer Frauen – Zentrale e.V. (“Catholic Women’s Social Services Center”), Deutscher Caritasverband, e.V. (“German Association of Catholic Charitable Organizations”), Diakonisches Werk der EKD in Deutschland e.V. (“German Association of Protestant Charitable Organizations”), Pro Familia Deutsche Gesellschaft für Sexualberatung and Familienplanung e.V. (“German Society for Sex Education and Family Planning”), Arbeiterwohlfahrt – Bundesverband e.V. (“German National Association of Worker’s Benevolent Societies”), Deutsche Arbeitsgemeinschaft für Jugend und Eheberatung e.V. (“German Working Group on Youth- and Marriage Counseling”), Ulmer Beratungsstelle für Problemschwangerschaften e.V. (“Ulm Counseling Center for Problem Pregnancies”), Hannoversche Arbeitsgemeinschaft für Jugend und Eheberatung e.V. (“Hannover Working Group on Youth- and Marriage Counseling”), Soziale Beratungsstelle der Landeshauptstadt Stuttgart für werdende Mütter (“Social Counseling Center of the state Capital Stuttgart for Expectant Mothers”), Sozialmedizinische Familienberatung in Düsseldorf (“Socio-Medical Family Counseling Services in Düsseldorf”), AOK-Bundesverband (“German National Association of Local Health Insurance Funds”), Bundesärztekammer (“German Medical Association”), and Deutscher Ärztinnenbund e.V. (“German Federation of Woman Physicians”).

C.

I.

116

The State of Bavaria (2 BvF 4/92) and 249 members of the German Federal Parliament (2 BvF 5/92) have petitioned this Court for abstract judicial review of Article 13, No. 1 and 15, No. 2 of the Pregnancy and Family Assistance Act pursuant to Article 93, Paragraph 1, No. 2 of the Basic Law, § 13, No. 6 of the Federal Constitutional Court Act. Petitioner holds § 218a, Section 1 and § 219 of the Penal Code as amended by Article 13, No. 1 (counseling of the pregnant woman in an emergency and conflict situation) and the repeal of Article 4 of the Fifth Penal Reform (federal statistics) provided for in Article 15, No. 2 to be unconstitutional because these provisions violate Article 2, Paragraph 2, Sentence 1 in conjunction with Article 1, Paragraph 1 of the Basic Law.

117

Furthermore, the State of Bavaria holds for the same reason that the obligation to provide for facilities pursuant to Article 15, No. 2 of the Pregnancy and Family Assistance Act (pregnancy termination facilities) and the provision in §24b of the Fifth Volume of the Social Security Code in the version of Article 2 of the Pregnancy and Family Assistance Act are unconstitutional. Moreover, the State of Bavaria argues that the federal government has no legislative authority in such matters. In support of its position, the State of Bavaria also submitted an expert legal opinion by Prof. Dr. Kriele on the subject of non-therapeutic pregnancy termination and the Basic Law.

II.

118

Its essential grounds are stated as follows:

119

1. Article 2, Paragraph 2, Sentence 1, in conjunction with Article 1, Paragraph 1 of the Basic Law places the gestating life under the protection of the state. The obligation to protect pertains not to life as an abstract, but rather to the individual and unique existence of each individual human being. The human being so protected does not only begin to exist as a unique individual at birth, but rather even prior to birth.

120

The various regulative concepts for pregnancy termination (general legalization; restricted criminalization) cannot be comprehended as just two special legislative “approaches” for protecting the unborn “as effectively as possible”. The Basic Law does not permit the legislature to utilize a concept of general legalization of pregnancy termination to better protect life as a whole, since dispensing with the constitutionally imperative criminalization means dispensing with the rights to protection and dignity accorded the individual unborn human being by the Basic Law. Even for lawmakers who would amend the Basic Law, the granting of individual constitutional rights cannot be restricted inasmuch as they are indispensable to the maintenance of an order pursuant to Article 1, Paragraph 1 and 2 of the Basic Law. The general decriminalization of acts of killing intervenes in this core area because it surrenders the most basic legal protection for the threatened legal value.

121

Now as ever, basic illegality – in the opinion of the State of Bavaria, also a fundamental and chronologically unrestricted threat of criminal punishment – is, in addition to all counseling and assistance programs, a necessary and suitable means of protecting the unborn life. It has an influence on the values and behavior of the population. The state avails itself of this legal/ethical signal effect to defend other legal values (environmental criminal law, protection of embryos), apparently regardless of whether there is a realistic chance of criminal prosecution in practice.

122

If § 218a, Section 1 of the Penal Code, new version were adjudged to be constitutional – so argued the State of Bavaria by way of supplementation – this in the end would result in the confirmation in the acceding territory of the concept of the time-phase solution that had been in force there since 1972. The legislature would thus forfeit an opportunity to use the means available to it to create a legal awareness of the value and constitutional protection of unborn life in the population of the new federal states. Specific dangers would also threaten unborn life through medical and pharmaceutical development. If the limited decriminalization of pregnancy termination was compounded by approval of the hormone preparation RU 486 in Germany, this would result in a combination of legal and medical/organizational aids to pregnancy termination. Due to the improvement of prenatal diagnostics parents are often able right now and, in any case will in the foreseeable future be able to determine within the first twelve weeks, whether the expected child will be healthy in every respect. If the woman undergoes a pregnancy termination during the first twelve weeks after conception because the fetus has been diagnosed as injured, then this would be “not illegal” regardless of whether the injury to the state of health was repairable or so grave that a continuation of the pregnancy could not be exacted of the pregnant woman. This would make pregnancy termination possible on purely eugenic grounds. Experience in the United States has shown it is also to be feared that in the future, a large number of women will demand pregnancy terminations because the unborn child is not of the desired gender. The physician cannot counter this desire by saying that the procedure is illegal; even someone who publicly recommended a pregnancy termination on these grounds would still be within the bounds of law.

123

From a constitutional point of view, pregnancy termination can be justified only in individual cases by balancing the interests and legal values involved. This is lacking in the case of the revised § 218a, Section 1 of the Penal Code. This provision would decriminalize pregnancy termination in all instances in which the pregnant woman demands the pregnancy termination, regardless of her grounds for doing so. To this extent, the statute does not incorporate a limitation to justifying exceptional situations. The presence of an emergency and conflict situation is not made a precondition for a legal pregnancy termination during the first twelve weeks anywhere in the provision, but rather is merely generally assumed in the revised version of § 218a, Section 1 and § 219, Section 1, Sentence 2 of the Penal Code. Also, the regular presence of a difficult life situation still does not provide sufficient grounds for justification. There must be an exceptional burden in the individual case which the makes the bearing of the child to term genuinely appear to be a non-exactable hardship for the woman. The statute, however, does not even require that the woman demanding the pregnancy termination subjectively perceive that bearing of the child to term as a non-exactable exceptional hardship. The thesis that woman do not undergo pregnancy terminations “on a whim” reflects only part of the truth. More than a few women hold pregnancy termination to be part of their personal, legally unrestrictable freedom. Moreover, the relatively high number of multiple pregnancy terminations in legal systems with the so-called time-phase solution and public pregnancy termination campaigns suggest that pregnancy termination is also understood and practiced as a means of family planning.

124

The law fails to provide the pregnant woman with any standard whatsoever of when a continuation of the pregnancy can no longer be exacted of her. Thus it abandons precisely those women who are urged to abort by those around them (parents, father of the child, employer), and this at a time when the pregnant woman is especially vulnerable to such pressures. The argument that we must dispense with standards of exactability altogether, because otherwise crises of conscience would be simulated during counseling and the “communication would be twisted into ritual” is not compelling. It is not apparent why general legalization of pregnancy termination should contribute to a more “open” counseling atmosphere, for even pursuant to the laws in force, the woman is already immune to the threat of criminal punishment in the event of counseling.

125

By classifying pregnancy termination as “not illegal” in § 218a, Section 1 of the Penal Code, new version, the legislature makes a basic value judgment pertaining to the entire legal order. It is clear that the provision mentioned seeks and finds immediate connection to § 24b of the Fifth Volume of the Code of Social Security Law. Health insurance benefits would thus necessarily be granted even for those pregnancy terminations performed for reasons that would not withstand the test of the Basic Law. Furthermore, severe new conflicts would arise in the body of law covering the medical profession and in the law of organizations.

126

The legalization is not fully compensated for by the sociopolitical measures provided for in the Pregnancy and Family Assistance Act. A legal prohibition of pregnancy termination is not expressed in this Act. The only way this could happen in social security law is if the legislature did not provide for social benefits in every case of pregnancy termination.

127

For the rest, the sociopolitical measures have yet to be realized in many essential points and their implementation is – just as the reference to “revenue equalization” shows – highly uncertain.

128

2. The counseling should assume the protective function, which is fulfilled in the indication model by the ascertainment of facts justifying one of the indications. Objective supervision would be replaced by procedural effects on the uncontrollable decision-making process. Thus counseling is the “central point” in the statutory concept.

129

Therefore, it follows that counseling must be mandatory. It must also not be limited to simply conveying information about facilities, benefits, and rights, but rather must be aimed at encouraging the woman to bear the child to term. To this end, the woman must present her emergency and conflict situation and show grounds that cause her to demand a pregnancy termination. At any rate, counseling does not take place if the pregnant woman refuses to divulge any information at all. The plausible idea that only counseling “without pressure” has a certain chance of successfully protecting life, cannot be construed to mean either that the pregnant woman may not be confronted with the valuation of pregnancy termination as wrong. Furthermore, it is necessary to ensure by means of normative and institutional precautions that the counselors and counseling centers conduct counseling in keeping with the constitutional and statutory specifications. This, in turn, requires at least minimal record keeping of the counseling session.

130

The counseling provided for in § 219, Section 1 of the Penal Code, new version fails to satisfy these constitutional requirements. It is oriented to the principle of self-determination of the woman. Although § 219 uses the term “counseling” not less than nine times, the only substantive obligations it incorporates are obligations to inform. The statute does not even specify that the subject of the counseling session should be the emergency and conflict situation in which the pregnant woman finds herself. The statute does not even define the counseling session as a conversation. Furthermore, it fails to specify the objective of counseling as encouraging the pregnant woman to continue the pregnancy. The statute merely expresses the expectation on the part of the legislature that the counseling session should serve to protect life. The essence of the statute is found in Section 1, Sentence 3, according to which the counseling session should serve to enable the pregnant woman to make “her own responsible decision of conscience”. This ill-conceived euphemism creates a false pretext which leads to prohibition of certain types of thinking and argumentation and is suitable for surrounding the uncontrollable decision about the pregnancy termination with the aura of a constitutionally protected decision of conscience. Furthermore, the statute fails to include a legal obligation on the part of the pregnant woman to present her personal emergency or even only an obligation to keep minimal records of the counseling session.

131

3. The unconstitutionality and invalidity at least of § 218a, Section 1 and of § 219, Section 1 and Section 3, Sentence 1 of the Penal Code, new version, cannot be determined in isolation. They lead, on the grounds of the Federal Constitutional Court’s Judgment of August 4, 1992, to the invalidity of Article 13, No. 1 of the Pregnancy and Family Assistance Act in its entirety.

132

4. The continued keeping of federal pregnancy termination statistics (cf. Article 4 of the Fifth Penal Reform Act, old version) is constitutionally required from the point of view of the obligation on the part of the legislature to remedy defects in legislation.

133

5. In the opinion of the State of Bavaria, however, the Federal Government lacks the authority to legislate on the obligation to provide for pregnancy termination facilities contained in Article 15, No. 2 of the Pregnancy and Family Assistance Act. The obligation to provide for facilities in Article 15, No. 2 of the Pregnancy and Family Assistance Act is unconstitutional on its face and thus invalid. It extends far beyond an obligation on the part of the highest state authorities to act within the framework of the legal and practical possibilities to provide a sufficient and geographically continuous network of pregnancy termination facilities. The legislature places an obligation upon a specific state authority and thus upon the state to perform an act that is legally and practically impossible or unreasonable. This violates the principles of due process (Article 20, Paragraph 3, Article 28, Paragraph 1, Sentence 1 of the Basic Law) and federal allegiance.

134

6. Finally, the State of Bavaria holds that § 24b of the Fifth Volume of the Code of Social Security Law in the version of Article 2 of the Pregnancy and Family Assistance Act is unconstitutional on its face and by reason of transgression of authority as stated in No. 2 BvF 2/90.

III.

135

The following parties have filed amicus curiae briefs with the Court pursuant to § 77 of the Federal Constitutional Court Act: the German Federal Parliament, which, by way of supplementation, refers to an expert legal opinion by Prof. Dr. Eser, and – in a joint opinion – the States of Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, North Rhine Westphalia, Rhineland-Palatinate, Saarland, and Schleswig-Holstein. They hold the petitions to be unfounded; the German Federal Parliament refrained from taking a position on the keeping of federal pregnancy termination statistics.

136

1. The legislators of the Pregnancy and Family Assistance Act proceeded from a comprehensive obligation on the part of the state to protect life, including gestating life. They argued in their own favor that the recognition that effective protection of life could not be obtained through the threat of criminal punishment alone and based their legislation on the principle of “help instead of punishment”. This strategy likewise promises significantly better protection of life in the middle and long-term than a mere deterrent punishment which makes the woman a virtual minor subject to legal standards; it also achieves a higher degree of integration of law and ethics.

137

(…)

138

2. (…)

139

3. (…)

140

4. (…)

IV.

141

In preparation for the decision in the proceeding 2 BvF 4, 5/92, the Second Senate of the Federal Constitutional Court commissioned the professors, Dr. Stürner and Dr. Schulin, with the drafting of an expert legal opinion covering the following issues:

142

(1) What would be the effects under current law on various areas of the legal system (e.g., labor law, family law, social security law, the body of law governing the medical profession, general civil law), if the legal system disapproved of pregnancy termination?

143

What would be the effects on this legal situation if, under certain preconditions (currently: indication solution; challenged law: within the first twelve weeks and after counseling) the criminal law provided grounds of justification for pregnancy termination?
(2) In what other conceivable ways could legal disapproval of pregnancy termination be expressed (aside from in the criminal law) in individual areas of the legal system? What legal effects would they have?

V.

144

In the oral proceedings on December 8 and 9, 1992, in which members of the 12th German Federal Parliament belonging to all parliamentary groups participated, the petitioners, the German Federal Parliament, and the States of Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, North-Rhine Westphalia, Rhineland-Palatinate, Saarland, and Schleswig-Holstein reiterated their written positions. The legal experts, Prof. Dr. Stürner and Prof. Dr. Schulin, explained and expounded upon their written expert legal opinions. The Court also consulted, as informants in issues concerning the laws governing the medical profession, members of the German Medical Association and other professional associations of physicians as well as members of the State Medical Board of Baden-Württemberg. By order of the Senate, it also heard, evidence on issues of counseling and social assistance practice from other experts called by the petitioners and by other persons authorized to give opinions.

D.

I.

145

1) The Basic Law requires the state to protect human life. Human life includes the life of the unborn. It too is entitled to the protection of the state. The Basic Law does more than just prohibit direct interference by the state in the life of the unborn, it enjoins it to protect and support such life, i.e. above all to guard it against illegal interference by third parties (cf. BVerfGE 39, 1 <42>). The obligation to protect is based on Article 1, Paragraph 1 of the Basic Law, which expressly requires the state to respect and protect human dignity; its object, and following from that, its extent are more precisely defined in Article 2, Paragraph 2 of the Basic Law.

146

Unborn human life – and not just human life after birth or an established personality – is accorded human dignity (cf. § 10 I 1 ALR; “Unborn children, even prior to their conception, are entitled to general human rights.”). These proceedings do not require us to decide whether human life begins, as medical anthropology would suggest is the case, when an egg and a semen cell unite. Pregnancy termination is the subject of the challenged provisions, in particular the penal provisions. Thus, what is relevant is the duration of a pregnancy. According to the Penal Code (and this was not disputed by the petitioners and is in conformity with the constitution), the duration of a pregnancy is measured from when a fertilized egg is implanted in the uterus (implantation; cf. § 218, Section 1, Sentence 2 of the Penal Code as amended by Article 13, No. 1 of the Pregnancy and Family Assistance Act) until when a birth begins (cf. § 217 of the Penal Code and in relation thereto BGHSt 32, 194 et seq.). In any case, during the duration of pregnancy what we are dealing with in the case of the unborn is an individual life, with a genetically determined identity, which is thus unique, unmistakable and inseparable. As it grows and unfolds, such life does not just develop into a human being, but develops as a human being (cf. BVerfGE 39, 1 <37>). Irrespective of how the different phases of prenatal development can be assessed from the biological, philosophical, even theological standpoint and irrespective of how they have been judged historically, in any case what is involved are the indispensable stages of development of individual human life. Wherever human life exists, it should be accorded human dignity (cf. BVerfGE 39, 1 <41>).

147

The dignity accorded to human life and also that accorded to unborn life exists for its own sake. In order for it to be respected and protected, the legal system must guarantee the legal framework for its development by providing the unborn with its own right to life (cf. BVerfGE 39, 1 <37>). This right to life which does not depend upon acceptance by the mother for its existence, but which the unborn is entitled to simply by virtue of its existence is an elementary and inalienable right stemming from the dignity of the person. It applies irrespective of any particular religious or philosophical views, which the state is anyway not entitled to pass judgment on, because it must remain religiously and ideologically neutral.

148

b) The duty to protect unborn life relates to an individual life not to human life generally. Its fulfillment is a prerequisite for orderly living together in a state. It is subject to the authority of the state (Article 1, Paragraph 1, Sentence 2 of the Basic Law). That means it is subject to the state in all its functions, including especially the state’s legislative authority. The duty to protect relates to dangers which stem from other persons. It encompasses protective measures, whose aim is to avoid emergencies resulting from a pregnancy or to overcome them, and legal standards of conduct. The two complement each other.

149

2. The standards of conduct for the protection of unborn life are set by the state when it enacts legislation containing regulations and prohibitions as well as duties to act or desist from acting. This also applies to the protection of the unborn vis-à-vis its mother, notwithstanding the bond which exists between the two and which leads to a relationship of “joined twosomeness” between mother and child. Protection of this kind for the unborn vis-à-vis its mother is only possible if the legislature fundamentally forbids her to terminate her pregnancy thereby imposing on her a fundamental duty to carry the child to term. The fundamental prohibition on termination of pregnancy and the fundamental duty to carry a child to term are two inseparably bound elements of the constitutionally required protection.

150

Moreover, protection is necessary against influences which are exerted by third persons – even by the woman’s family and wider social circle. Such influences could be aimed directly at the unborn or even take an indirect form if the pregnant woman were refused needed help, if things were made difficult for her because of the pregnancy, or if she were pressured into terminating the pregnancy.

151

a) Such rules of conduct cannot be left voluntary, but must take legal form. They must be binding and make provision for legal consequences in accordance with the nature of the law as a system of rules concerned with practical application. Nevertheless, a threat of criminal punishment is not the only conceivable sanction in such a case. It can, however, strongly influence a person to respect and heed legal rules.

152

Legal rules of conduct should provide two kinds of protection. First, they should have a preventative and repressive effect in an individual case if injury to the protected legal value is threatened or has already occurred. Second, they should strengthen and support values and opinions on what is right and wrong among the public and promote legal awareness (cf. BVerfGE 45, 187 <254, 256>), so that from the start, due to such legal orientation, the injury of a legal value is not even contemplated.

153

b) The obligation to protect life is not so absolute that it even takes priority, without exception, over every other legal value. This is evidenced by Article 2, Paragraph 2, Sentence 3 of the Basic Law. However, the obligation to protect is not fulfilled simply by applying any kind of protective measure. The extent of the obligation to protect must be determined by viewing, on the one hand, the importance and need for protection of the legal value to be protected by law (in this case unborn human life), and on the other hand, by viewing competing legal values (cf. G. Hermes, Das Grundrecht auf Schutz von Leben und Gesundheit, 1987, p. 253 et seq.). Listed among the legal values which are affected by the right to life of the unborn are – proceeding from the right of the pregnant woman to protection and respect for her human dignity (Article 1, Paragraph 1 of the Basic Law) – above all her right to life and physical inviolability (Article 2, Paragraph 2 of the Basic Law) and her right to free development of her personality (Article 2, Paragraph 1 of the Basic Law).

154

It is the legislature’s task to determine the nature and extent of protection. The Basic Law identifies protection as a goal, but does not define the form it should take in detail. Nevertheless, the legislature must take into account the prohibition on too little protection (regarding the meaning of this term see Isensee in: Handbuch des Staatsrechts, Volume V, 1992, § 111 marginal note No. 165 et seq.) so that, to this extent, it is subject to constitutional control. What is necessary – taking into account conflicting legal values – is appropriate protection, but what is essential is that such protection is effective. The measures taken by the legislature must be sufficient to ensure appropriate and effective protection and be based on a careful analysis of facts and tenable assessments (see I. 4. infra ). The amount of protection required by the Basic Law does not depend on what stage the pregnancy has reached. The unborn’s right to life and its protection under the Basic Law are not graded according to the expiration of certain deadlines or the development of the pregnancy. Thus the legal system also has to provide the same degree of protection in the early phase of a pregnancy as it does later on.

155

c) If the prohibition on too little protection is not to be infringed, the form of protection by the legal order must meet minimum standards.

156

aa) In line with the above, a termination must be regarded for the duration of the pregnancy as fundamentally wrong and thus forbidden by law (cf. BVerfGE 39, 1 <44>) . If there were no such prohibition, control over the unborn’s right to life – be it only for a limited time – would be handed over to the free, legally unbound decision of a third party, who might even be the mother herself, and the legal protection of the life within the meaning of the abovementioned standards of conduct would not be guaranteed. Even reference to a woman’s human dignity and her ability to make responsible decisions herself does not demand that unborn life be abandoned in such a way. Legal protection presupposes that the law lays down conditions governing to what extent and how far one person can interfere with another and does not leave it to the will of one of the parties concerned.

157

A woman’s constitutional rights do not take precedence over the fundamental prohibition on termination of pregnancy. Although such rights also exist vis-à-vis the unborn and must accordingly be protected, they do not extend so far as to allow the constitutional duty to carry the child to term to be suspended even for a limited time. Nevertheless, in certain exceptional circumstances the woman’s constitutional rights make it possible for the legal duty not to be applied and, in some cases, it is in fact even necessary for the duty not to be applied.

158

bb) It is the task of the legislature to determine which exceptional situations will go to make up exceptional circumstances. However, so as not to breach the prohibition on too little protection, it must take into account that conflicting legal values cannot be proportionately balanced because what is being weighed up on the side of the unborn life is not just a matter of a greater or fewer number of rights nor the acceptance of disadvantages or restrictions, but life itself. A balance which guarantees both the protection of the unborn’s life and, at the same time, grants the pregnant woman a right to terminate is not possible because the termination of a pregnancy is always the killing of an unborn life (cf. BVerfGE 39, 1 <43>). A balance cannot be achieved (although alleged that it can be – cf. Nelles in “Zur Sache, Themen parlamentarischer Beratung”, published by the German Parliament, Vol. 1/92, p. 250) whereby for a certain time in the pregnancy the woman’s right to free development of her personality takes precedence and thereafter the unborn is given precedence. If that were the case, then the unborn’s right to life could only have effect if the mother had not decided in favor of killing during the first phase of the pregnancy.

159

Nevertheless, this does not mean that the existence of an exceptional situation, which under the constitution permits the duty to carry a child to term to be dispensed with, can only be considered where there is a grave danger to the woman’s life or a serious impairment to her health. Other exceptional situations, in addition to the ones just mentioned, are imaginable. The criterion used to recognize them is, as determined by the Federal Constitutional Court, that of exactability (cf. BVerfGE 39, 1 <48 et seq.>). This criterion – irrespective of the fact that the woman’s involvement in a pregnancy termination is not to be regarded under the criminal law as an omission – is justified because the prohibition on pregnancy termination, due to the unique relationship between mother and child, is not limited to a woman’s duty not to injure another person’s rights. Instead, the prohibition contains a duty of an intensive nature, affecting the woman’s very existence, a duty to carry and bear the child as well as a further duty to act on behalf of, look after and be responsible for the child such latter duty being an ongoing duty lasting years after the birth (cf. on this M. von Renesse, ZRP 1991, p. 321 <322 et seq.>). Looking ahead at the burdens associated with those duties, it can be seen that in individual cases, severe, and under some circumstances, also life threatening conflict situations can arise in the particular psychological state in which expectant mothers often find themselves during the early phase of a pregnancy. In these conflict situations protection of the woman becomes so essential that the legal order – irrespective of any other duties based on moral or religious views – cannot demand that the woman must under all circumstances allow the right to life of the unborn precedence (cf. BVerfGE 39, 1 <50>).

160

However, non-exactability cannot arise from circumstances which are within the bounds of a normal pregnancy. What is required are rather burdens which force the woman to sacrifice her own existential values to a degree beyond that which can be expected of her.

161

It follows from the above that in respect of a woman’s duty to carry a child to term, in addition to the usual medical and the criminological indications, an embryopathic one – provided that it has been adequately defined in advance – can also be constitutionally valid as an exceptional circumstance. In the case of other emergencies, this will only occur if the severity of the social, psychological or personal conflict is so clearly recognizable that, viewed from the point of view of exactability, congruence with the other indications is retained (cf. too BVerfGE 39, 1 <50>).

162

cc) To the extent that non-exactability limits the woman’s duty to bear the child, it does not relieve the state of its obligation of protection vis-à-vis every unborn human life. The state is compelled by its obligation of protection to support the woman with help and advice thereby convincing her, where possible, to decide in favor of carrying the child to term. This is also assumed by the provision in § 218a, Section 3 of the Penal Code (new version).

163

dd) If the task of protecting human life from killing is one of the state’s elementary protective tasks, then the prohibition on too little protection forbids it from relinquishing its use of the criminal law and the protective measures afforded by the criminal law.

164

It has been from the beginning and still is the criminal law’s task today to protect the elementary values of community life. This includes respect for human life and the inviolability of human life. Accordingly, killing of other human beings is widely punishable. The criminal law is not the primary means of legal protection because of its sharpness. Its application is subject to requirements of proportionality (BVerfGE 6, 389 <433 et seq.>; 39, 1 <47>; 57, 250 <270>; 73, 206 <253>). It is, however, applied as the ultimate measure of protection where certain conduct is not just forbidden, but considered so socially damaging and unbearable for orderly communal living that it must be prevented at any cost.

165

It follows that the criminal law is usually the place to anchor the fundamental prohibition on pregnancy termination and the woman’s ensuing fundamental legal duty to carry the child to term. If, however, there are other constitutionally adequate protective measures it is possible, in a limited number of cases, not to punish unjustified pregnancy terminations. In these cases, the legal system’s prohibition can be clearly expressed in other ways which are in keeping with the constitution (cf. BVerfGE 39, 1 <44, 46>).

166

3. The state does not satisfy its obligation to protect unborn human life simply by hindering life-threatening attacks by third parties. It must also confront the dangers attached to the existing and foreseeable living conditions of the woman and family which could destroy the woman’s willingness to carry the child to term. This is where the obligation to protect touches upon the requirement to protect arising from Article 6, Paragraphs 1 and 4 of the Basic Law (on Article 6, Paragraph 1 cf. BVerfGE 76, 1 <44 – 45, 49 – 50>; on Article 6, Paragraph 4 cf. BVerfGE 84, 133 <155 – 156>). The obligation to protect requires the state to attend to problems and difficulties, which the mother could encounter during the pregnancy. Article 6, Paragraph 4 of the Basic Law contains a mandate to protect which is applicable to all areas of private and public law and extends to the pregnant woman. Viewing motherhood and childcare as work, which lies in the interests of the community and is deserving of its recognition, meets this requirement.

167

The First Report of the Special Committee for the Reform of the Penal Law (German Federal Parliament Publication 7/1981 <new> p. 7) lists as reasons often given for wishing to terminate a pregnancy the following: an unfavorable housing situation, the impossibility of looking after a child parallel to vocational training or working, economic hardship and other material reasons, and in the case of single women, fear of discrimination by the community.

168

a) The care owed to the mother by the community includes an obligation on the part of the state to ensure that a pregnancy is not terminated because of existing material hardship or material hardship expected to occur after the birth. Similarly, if at all possible, disadvantages for the woman in her vocational training or work resulting from a pregnancy ought to be removed. In fulfillment of its obligation to protect unborn human life, the state must attend to problems likely to cause a pregnant woman or mother difficulty, and try, to the extent legally and realistically possible and justifiable, to alleviate or solve those problems. All of this applies not just to the legislature, but to the government and administration as well.

169

Of course, the state cannot and does not have to relieve parents of all burdens and restrictions associated with the “care and raising” of children (Article 6, Paragraph 2, Sentence 1 of the Basic Law). Meanwhile, provisions offering further opportunities for relief – beyond those laid down in Articles 5 to 12 of the Pregnancy and Family Assistance Act – have been enacted. In the public sphere opportunities for more effective protection of mother and child have already been created such as in the fields of housing, in the public service and in regulations concerning work and vocational training.

170

Nevertheless, the state can – and where necessary must – involve third parties to achieve effective protection. Parents who raise children are performing tasks whose fulfillment lies in the interests of the community as a whole as well as in the interests of the specific individuals concerned. For this reason, the state is bound to promote a child-friendly society which in turn also has repercussions for unborn life. The legislature must bear this in mind when making rules, not just in the area of labor law, but also in other private law areas. Thus there are provisions prohibiting the termination of a lease because of the birth of a child as well as provisions regarding consumer loans, their wording and government contract assistance which make it possible or easier for parents to meet their financial obligations following the birth of a child.

171

b) The obligations to protect unborn life, marriage and the family (Article 6 of the Basic Law) and to ensure equal rights for men and women in the workplace (cf. Article 3, Paragraph 2 of the Basic Law as well as Articles 3 and 7 of the International Agreement on Economic, Social and Cultural Rights dated December, 1966 <Federal Law Gazette 1973 II, p. 1570>) compel the state and especially the legislature to lay the right foundations so that family life and work can be made compatible and so that childraising does not lead to disadvantages in the workplace. To achieve this it is necessary for the legislature to invoke legal and practical measures which allow both parents to combine childraising and work as well as to return to work and progress at work after taking a break from work for childraising purposes. Relevant in this context are also the amendments to the Labor Promotion and Vocational Training Act brought about by Articles 6 and 7 of the Pregnancy and Family Assistance Act . In this respect the legislature is on the right track. The same applies to regulations aimed at improving institutional (cf. Article 5 of the Pregnancy and Family Assistance Act) or family childcare (cf. the payments under the so-called equalization of burdens for families such as the childraising benefit or the provisions for a childraising break and advance maintenance payments). The significance of such payments as life protecting measures must be taken into consideration by the legislature when examining state payments if there is a shortage of funds.

172

c) Furthermore, the state must ensure that a parent, who gives up work to devote herself or himself to raising a child, be adequately compensated for any resulting financial disadvantages. We, the Senate, concur with the statements made in this respect by the First Senate in its Judgment dated 7 July, 1992 – 1 BvL 51/86, 50/87 and 1 BvR 873/90, 761/91 (reprint, p. 55 – 56 -BVerfGE 87, 1 et seq.).

173

d) Finally, the mandate to protect also obliges the state to maintain and raise in the public’s general awareness the unborn life’s legal right to protection. Thus the state organs at both the federal and state levels must show that they uphold the protection of life. This relates in particular to school curricula. Public institutions whose job it is to provide health information, family counseling or sex education must strengthen the will to protect unborn life. This is especially true for the sex education provided for in Article 1 § 1 of the Pregnancy and Family Assistance Act. Public and private broadcasters are obliged to respect human dignity when taking advantage of their freedom to broadcast (Article 5, Paragraph 1 of the Basic Law). (Regarding private broadcasting see Article 1, Paragraph 23, Section 1, Sentences 1 and 2 of the Treaty on Broadcasting in Unified Germany dated 31 August, 1991). Therefore, their programs also play a part in protecting unborn life.

174

4. In accordance with what has been stated in points 2. and 3. supra , in order to fulfill its duty to protect unborn life, the state must adopt sufficient legal and practical measures, while at the same time considering the conflicting legal values so as to ensure that appropriate, and as such effective, protection is achieved. For this to be done, it is necessary to create a clear protection concept which combines preventative and repressive elements. It is up to the legislature to develop and transform into law such a protection concept. In doing so, it is not free under the existing constitution to treat termination of pregnancy – other than in exceptionable situations which are constitutionally unobjectionable – as not illegal i.e. allowed. Nevertheless, according to standards still to be more precisely defined, the legislature can decide how it will put into effect the fundamental prohibition on termination of pregnancy in other areas of the law. All in all, the protection concept must be defined in such a way as to make it suitable for providing the required protection without its becoming or appearing like limited permission for pregnancy terminations.

175

The protection concept chosen by the legislature and the form it takes must be sufficient to protect unborn life as is demanded by the constitutional prohibition on too little protection. To the extent that the legislature’s choice amounts to a prognosis about actual developments, especially the effects of its rules, it must be reliable. The Federal Constitutional Court will examine whether the prognoses are warranted when measured by the following criteria.

176

a) The legislature has scope to assess, weigh up and create even where, as is here the case, the constitution binds it to undertake effective and adequate measures to protect a legal value. How its scope is limited depends on various types of factors, in particular, on the characteristics of the relevant area, on the possibility of accurately predicting future developments – such as the effects a rule will have – and on the significance of the legal values at stake (cf. BVerfGE 50, 290 <332 – 333>; 76, 1 <51 – 52>; 77, 170 <214 – 215>). There is no need to decide whether or not three distinguishable standards of control for a constitutional examination can be derived from the above (cf. BVerfGE 50, 290 <333>). Constitutional examination extends in any case to checking whether the legislature has sufficiently taken the named factors into account and used its scope for assessment in a “justifiable manner”. The statements regarding the admissibility of a constitutional complaint against an omission by the state which are contained in the Senate’s Judgment dated 29 October, 1987 (cf. BVerfGE 77, 170 <214 – 215>) should not be understood as allowing measures “which are not entirely unsuitable or completely inadequate” to be enough to satisfy the state’s duty to protect human life.

177

b) When deciding whether the legislature’s assessment of the effectiveness of a new protection concept is justified, the constitutional court must take into account the fact that the legislature is acting to fulfill the duty placed on it by the constitution to protect unborn human life. The legal values of the unborn and woman at issue here enjoy a high constitutional position. This indicates the special nature of the area to be regulated, and is just as relevant for assessing a legal provision for the protection of unborn life, as the fact that in the event of conflict the unborn life will be killed if the pregnant woman decides to discontinue her pregnancy. Of further significance is the circumstance that a pregnancy in its early stages is often only known to the mother and thus the unborn has to rely on her in every way for its protection and the continuation of its own existence. The state has the task of protecting a life whose existence is still unknown to it. This explains why experience with all penal provisions to date has not been very encouraging. Finally, what is important is that when the legislature decides on a fundamentally new provision, its ability to accurately predict the new provisions’ effects is naturally limited. It is only possible to rely on foreign experience to a limited extent because one can not be sure of how comparable the position in another country really is. In this situation the legislature must use the material obtainable for making its prognosis as to the protective effect its concept will have and for evaluating, whilst taking the necessary care, whether the concept can sufficiently supports its own assessment.

II.

178

According to the above arguments, constitutional law does not, as a matter of principle, bar the legislature from adopting a concept of protection for the protection of unborn life which emphasizes counseling of the pregnant woman during the early phase of pregnancy so as to encourage her to carry her child to term. At the same time, in view of the openness necessary for counseling to be effective, the law dispenses with a threat of criminal punishment based on indications and the ascertainment of grounds supporting indications by third parties.

179

The promulgators of the Pregnancy and Family Assistance Act have completed the changes in the protection concept based on justified assessments.

180

1. Issues related to pregnancy termination have been newly regulated in Article 31, Paragraph 4 of the Unification Treaty. Such provision allocates the all-German parliament the task of “establishing rules which guarantee the protection of prenatal life and provide solutions consistent with the Basic Law for pregnant woman in conflict situations by granting them legal rights, in particular, to counseling and social assistance and which does the aforementioned in a better way than is presently the case in both parts of Germany”. There were two apparent possibilities. In view of the experience had with implementing the indications solution created by the Federal Constitutional Court’s Judgment on 25 February, 1975 (BVerfGE 39, 1 et seq.) – whose questionable constitutionality is reflected by the applications made in proceedings 2  BvF 2/90 – it was possible for the legislature to replace that solution with clearer, and inevitably, narrower grounds for an indication and also to place stricter requirements on the ascertainment of the existence of an indication. The second option was for the legislature to make provision for counseling. In the latter’s favor, the all-German legislature could argue that counseling would appear better suited to unifying the separate German legal systems – one of which had been applying the time-solution while the other had been applying the indications solution. Furthermore, counseling would also be better suited to joining the sense of legal awareness felt by the people in the two parts of Germany.

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2. When developing a new concept of protection the legislature is not just entitled, but actually obliged to assess what has happened in previous legal practice and use this as orientation. Different forms of far-reaching penal protection for unborn life – such as the strict pregnancy termination provision in § 218 of the Penal Code 1871, under which the jurisprudence only recognized a narrow medical indication, or such as the more sophisticated indication solution after 1976 – have not been able to prevent pregnancy termination from becoming and remaining a mass occurrence. In this context, it is not important which pregnancy termination estimates for the years before and after 1976 are more reliable and accurate. Even just the low estimates are enough to be disturbing to the legislature. The high number of terminations cannot be sufficiently explained by reference to difficulties encountered in the application of the relevant penal provisions nor can the high number be explained by an unwillingness to enforce existing provisions. As long as we continue to be faced with this situation, there is reason to investigate its causes and to deal with the problems it evidences.

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Constitutional law is not critical of the legislature’s conclusion from the foregoing analysis that the way the threat of criminal punishment is integrated into the law at present is likely to cause a pregnant woman in a conflict situation to decide against carrying her child to term because she would experience the conflict as something deeply personal and would consequently reject an evaluation by a third party. The relevant circumstances making it difficult for a woman to decide to carry her child to term or making it non-exactable, should not be determined only by objective factors, but also by looking at her physical and mental condition and her personal characteristics. The criteria for establishing exactability must be viewed together and they can at times be contradictory. Gaining a reliable assessment of them requires considerable effort on the part of an experienced expert. However, the further third persons intrude into a woman’s personal sphere, the greater the danger that she will seek to avoid this by inventing reasons for wishing to terminate or by resorting to the illegal. If this happens, any chance of using understanding and professional counseling to explore her conflict and to help her to decide in favor of the child is lost straightaway.

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3. Thus constitutional law does not object to the legislature’s choice of a protection concept which is based on the assumption – at least in the early phase of pregnancy – that effective protection of unborn human life is only possible with the support of the mother. Only she and those initiated by her know at this stage of the pregnancy about the new life which still belongs to her alone and which is fully dependent on her. The secrecy pertaining to the unborn, its helplessness and dependence and its unique link to its mother would appear to justify the view that the state’s chances of protecting it are better if it works together with the mother.

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Support for the above view is also given by the fact that a woman, who discovers an unwanted pregnancy, will often find her very existence threatened. She might have to make drastic changes to the plans she has for her life. She can also expect, in addition to the inevitable inconveniences associated with pregnancy, to be subject to incalculable and long-lasting duties to act and care for a child, and there may be additional risks to her life. In addition, a woman in the early phase of a pregnancy has often not yet adjusted mentally to the idea of motherhood and does not yet feel an attachment to the life growing inside of her in the way she does later on. A threat of criminal punishment is of little effect at this point so that it is obvious that the law must use preventative means to help her to overcome her conflict and to meet her responsibility to the unborn. The special situation of the woman and the unborn in the early phase of pregnancy can therefore be a reason for replacing penal sanctions with special protective measures. However, as already stated, it may not lead to a woman’s fundamental rights being given precedence over those of the unborn. If a human being’s dignity lies in its very existence, and if this applies to unborn life, then we must refrain from making distinctions in the duty to protect based on age or stage of development of the unborn life or based on the willingness of the woman to allow the life to continue to live within her.

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4. The state acts in conformity with the respect owed to a woman and future mother if, instead of threatening her with punishment, it seeks to persuade her from rejecting the task of motherhood either by providing her with individual counseling or by appealing to her sense of responsibility to the unborn life or by providing her with economic and social support as well as any information she might need. The legislature may assume that the likelihood of her rejection of motherhood will be increased if a third party has to examine and evaluate the reasons which make her regard carrying the child to term as non-exactable.

186

This is not to say that after professional, individual counseling, the only women who terminate their pregnancies are those who find themselves in conflict situations so grave that carrying the child to term would be non-exactable in the sense required under the constitution. To believe this would be to ignore reality, which shows that men and women often attach too much importance to their own expectations from life and are not prepared to lower these, even when to do so would objectively appear exactable. The legislature may assume for the reasons given above (cf. 2. and 3. supra ) that even an examination of indications during the first stage of pregnancy would not be successful in stopping women from being guided by their own personal interests. Leaving final responsibility for terminating a pregnancy with the women themselves displays respect for their sense of responsibility; this could be motivating and generally suitable for strengthening their responsibility vis-à-vis unborn life – so long as it was done against a background of what is and what is not permitted by the constitution. The legislature may take into account that women who are subject to such expectations will feel a stronger and directer sense of responsibility. There is thus more likelihood of them exercising the responsibility vested in them conscientiously than if a third party is involved. If a third party examines and evaluates reasons supplied to him/her (which can vary in their credibility), and then concludes that a termination is permissible, this will at the same time rob the woman of some degree of responsibility.

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5. If the legislature gives women who receive counseling final responsibility for deciding to undergo a termination and makes it possible for them, where necessary, to have the termination performed by a physician, then it can reasonably expect pregnant women in conflict situations to accept counseling and disclose details of their situation to the counselor.

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a) Notably, the legislature can argue that experience has shown that even where the existence of an indication was ascertained independently of counseling and subsequent in time to it, and even where it was ascertained by persons and institutions not involved in the counseling, it still had an unfavorable prior effect on the counseling and considerably impaired the chances of the counseling being effective. This is so because women in such cases focus on demonstrating grounds needed to support an indication and do not openly discuss the conflict situation they find themselves in.

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b) These considerations only apply, however, in relation to the general emergency indication. In the case of this indication, we are dealing with the results of the interaction of varied and complex factors personal to the pregnant woman. The factors must be evaluated by a third party when ascertaining the existence of an indication, and they must be explored during conflict counseling as is required for the protection of life. A woman’s full cooperation in resolving her conflict could be hindered by requiring a third party to make such evaluation. The position is different when a medical, embryopathic or criminal indication is being dealt with. In these cases there will be a tangible emergency situation provided a physician determines that the woman will be exposed to serious danger to her health if she continues with the pregnancy, or that there is a considerable danger of the child being severely handicapped, or determines that the woman has been the victim of a crime. The objective set of facts available change the nature and function of counseling; women have little reason to avoid the existence of such an indication being ascertained or not to approach counseling with the necessary openness.

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c) Nevertheless, there has been and still is contention among sociologists and legal policy makers as to whether making counseling a prerequisite for terminations during the early phase of pregnancy would grant better protection to unborn life than the previous regulation. Although there is agreement that the previous indication provision has in practice provided insufficient protection against terminations, sociologists and counselors involved in everyday counseling hold different views on whether the necessity for ascertaining the existence of an indication really reduces the protective effect pregnancy counseling has. In spite of the arguments advanced – which would seem to weigh against retaining the previous indication provision – these uncertainties should not, as a matter of principle, prevent the legislature from introducing a counseling regulation. Naturally, the legislature is bound to observe the effects of its new concept of protection (duty of observation and subsequent improvement).

III.

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If the legislature adopts a counseling concept in order to fulfill its duty to protect, the protective effect for unborn life is then supposed to be achieved through preventative means – i.e. by the woman who is contemplating a termination being positively influenced during counseling. The counseling concept is directed towards strengthening the woman’s sense of responsibility. Irrespective of the responsibilities borne by her family or the persons belonging to her wider social circle or her physician (see V. and VI. infra ), it is she who must ultimately decide in favor of the termination and take responsibility for it (final responsibility). All this requires the creation of a framework with the prerequisites necessary for making a woman want to act in favor of the unborn life. Only when such framework exists, can it be assumed, even without the ascertainment of grounds supporting an indication, that the counseling concept protects unborn life (1.). However, it is not permissible to declare a non-indicated pregnancy termination justified (not illegal) if demanded by a woman following counseling during the first twelve weeks (2.). Furthermore, the legislature is not bound in all respects to accept the consequences arising from the fundamental prohibition on pregnancy termination, if the counseling concept demands that exceptions be made in order for it to be effective (3.).

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1. a) The first and foremost condition of a counseling concept is that counseling be made obligatory for the woman and that it be directed to encouraging her to carry her child to term. The content of the counseling, its conduct and organization must all be suitable for providing the woman with the insight and information which she needs to make a responsible decision about the continuation or termination of the pregnancy (see for details IV. infra ).

193

b) Furthermore, those persons who are able to exert an influence over the woman – be it negative or positive – should be included in the protective concept. This applies in particular to the physician whom the pregnant woman consults to perform the termination. Apart from the woman herself and her counselor, he is often the only one who knows of the existence of the unborn and a physician is anyway bound by his professional oath to protect unborn life (see on this V. infra ). Family members and persons in the pregnant woman’s wider social circle must also be included in the protective concept. It is well-known from the reports of counselors, physicians and scientific studies that these persons often influence the woman – sometimes illegally – against the child (see on this VI. infra ).

194

c) For the reasons given under D. II. 5. a) and b) supra , the counseling regulation must refrain from allowing a general emergency indication as a justification ground. A justification would run counter to the concept. In order to retain the woman’s openness towards counseling and so as to achieve effective protection, the counseling regulation does not require a woman to prove the existence of a justifiable emergency nor itself test such existence. The inevitable consequence of the foregoing is that the counseling regulation cannot promise that a justification based on the general emergency indication will be available. It is only if the counseling regulation dispenses categorically, and without exception, with the need to ascertain the existence of a social emergency that it can succeed in getting women to accept counseling. Only this way can it avoid women closing their minds to counseling because they are striving to have their decision considered within the law and are striving to obtain the associated favorable legal consequences. Thus, the counseling regulation expects women to forego the personal relief which they could obtain from having their intended termination deemed legal, even when in their particular case, the existence of a general emergency appears perfectly clear.

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The woman’s constitutional rights do not require a general emergency indication as a justification ground. Her rights can be respected using other means (see D.  III. 3.). However, even where there is a counseling regulation, which inevitably dispenses with the emergency indication, one must not lose sight of the legal duty to carry a child to term and its limits. Even where there is a real pregnancy conflict, rules directed to the protection of unborn life can not be set aside; the constitutional position of the legal value of unborn human life must continue to remain present in the general legal awareness (so-called general prevention). Thus, a counseling regulation must give expression under the constitution to the idea that a pregnancy termination can only be legal in those exceptional circumstances where carrying a child to term would place a burden on the woman which is so severe and exceptional – such as in the cases of the medical and embryopathic indications (§ 218 a, Sections 2 and 3 of the Penal Code, new version) – that it would exceed the limits of exactable self-sacrifice. Such expression would provide a woman who acts responsibly with a basis for judging her actions. This is exactly the core of responsibility which the counseling regulation leaves to a woman; of course, no justification can follow from her availing herself of it (cf. D. III. 2. b) aa).

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d) Finally, it is essential for a counseling regulation relying primarily on preventative protection that social help for mother and child really be available which removes or eases distress and social hardship. This way parents can be given support to enable them to decide in favor of a child and women encouraged to carry their children to term (cf. above D. I. 3.).

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2. The counseling regulation’s goal of not punishing terminations carried out by a physician during the first twelve weeks of pregnancy at the pregnant woman’s demand after counseling, without the existence of an indication having been ascertained, can only be achieved if the legislature deletes such pregnancy terminations from the statutory definition of crime found in § 218 of the Penal Code. They may not be declared justified (not illegal) .

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a) If pregnancy terminations are allowed under the constitution where specified exceptional circumstances exist, this does not mean that they may be regarded at the same time as allowed under penal law under different, but more far-reaching circumstances. The legal system must support and elaborate on the constitutional prohibition on pregnancy terminations. Penal law, in particular, lends itself well to this task because it protects legal values falling into a special category which are particularly at risk. It is also the penal law which most clearly influences general public awareness of what is right and wrong. When the penal law provides for grounds of justification, the general legal awareness would have to understand this to mean that the conduct covered by the justifying facts is allowed. Moreover, other parts of the legal system would assume in their rules regarding right and wrong that the protection of life had been removed through the penal justification grounds. Such a result would not satisfy the constitutional duty of protection. The significance enjoyed by a penal justification ground vis-à-vis the whole legal system – wherever protection of basic legal values is concerned – precludes reducing its effectiveness by confining it to the penal law. Thus, a pregnancy termination may only be regarded as justified under penal law if, and to the extent that, the grounds for it are within the constitutionally permissible exceptions to the prohibition on pregnancy termination.

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If, however, pregnancy terminations are excluded from the definition of a penal offense, then that only means they are not punishable. Thus, a decision by the legislature on whether or not pregnancy terminations are to be treated by other areas of the legal system as legal or illegal remains open. (cf. Lenckner in: Schönke/Schröder, Strafgesetzbuch, 24th ed., 1991, preamble to §§ 13 et seq., marginal note 18; Eser/Burkhardt, Strafrecht I, 4th ed. , 1992, No. 9, marginal note 41). In other areas of the legal system, independent rules can be made based on pregnancy terminations being illegal. If no such rules are made, the exclusion from the definition of a penal offense has the effect of a justification ground, and this means that the minimum requirements of the duty to protect are no longer satisfied.

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While exclusion from the definition of a penal offense leaves open the possibility of compliance with the minimum standards in other areas of the legal system, the introduction of a ground of justification into the Penal Code will from the outset remove to a large extent the fundamental prohibition on pregnancy termination required by the constitution. In as much, limits are placed on the legislature’s creative scope.

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b) The inalienable fundamental principles prevalent in a state based on the rule of law demand that an exceptional situation will only be justified, if its prerequisites have to be ascertained – be it by the courts or by third parties whom the state trusts on account of the office they hold and whose decisions do not escape state control. If counseling as the concept of protection chosen by the legislature does not allow the indications solution to apply to general emergency cases (which are the cases most often alleged) because ascertaining the existence of the necessary prerequisites would hinder the effectiveness of counseling, then the legislature must refrain from declaring such pregnancy terminations justified.

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aa) Neither the abandonment of the indications solution resulting from the protection concept nor the unique connection between mother and child during pregnancy make it possible to alter this. It cannot be raised as an objection that the general emergency indication as a ground for justification should be subject to other criteria because its prerequisites escape ascertainment. What is more, such ascertainment is in spite of the existing difficulties (see II. 2. supra ) neither practically nor legally impossible. To the extent it deals with subjective circumstances, it is no different from many other evaluations regarding a person’s personality, willpower and psychological state, which the state requires and even makes when it is dealing with punishment of an injury to a fundamental legal value or its protection (see §§ 46 et seq., 56 et seq., 63 et seq., 70 of the Penal Code).

203

However, it would be necessary in many cases to investigate a woman’s highly personal relationships and liaisons. She may not use her own rights to object to this, when the question of whether the killing of the protected life of the unborn is allowed is at issue. If ascertaining the existence of the indication really is especially troublesome, this alone cannot be sufficient ground for refraining from doing so or for replacing doing so with a woman’s “self indication”. Even if the counseling regulation reflects confidence in the woman’s ability to act responsibly in her decision on whether or not to carry the child to term and even if counseling itself is a procedure which can provide her with the necessary legal orientation and encouragement to decide in favor of having the child, nevertheless it would be irreconcilable with the Basic Law’s constitutional order for the woman who is essentially affected by the conflict to be able to legally determine whether a situation existed which made carrying a child to term non-exactable and thus whether the pregnancy termination could be allowed under the constitution. The woman would then be judging right from wrong in her own case. A state based on the rule of law does not allow this and this is especially true in a situation of “joined twosomeness”. The constitution promises the unborn, who is dependent on its mother in every way, protection even against her. The special connection between the mother and the unborn life, which provides protection but at times gives rise to danger, cannot be used as a reason for leaving the mother to decide whether the preconditions exist which would allow her to kill the unborn and be within the law. If this were so, the minimum amount of legal protection would no longer be guaranteed.

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bb) Proof of the existence of an emergency cannot be provided by relying on guidelines derived from experience or on circumstantial evidence. In each individual case the existence of an emergency indication needs to be ascertained after counseling.

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It is not unusual for the legal system – especially the penal law – to regard a body of facts as legally relevant even though external as well as internal facts go to make up its whole. Often such facts can only be ascertained by establishing circumstances, which our experience of life tells us point to the existence of the fact to be ascertained (indications), for instance where guidelines derived from experience help us to infer that certain external events point to internal facts. Only in this way can all the facts be established which are prerequisites for an emergency indication as a justification

206

It cannot be concluded with sufficient certainty from applying the counseling regulation and taking into account guidelines derived from experience that a demand for termination is always based on a conflict situation, which is really so severe that carrying the child to term would be non-exactable and that the termination of the pregnancy thus would have to be allowed under the constitution. The counseling concept relies on counseling’s effectiveness in protecting the threatened legal value and in strengthening and promoting the parties’ willingness to have the child. It also assumes with good reason that generally speaking women do not take the decision to terminate a pregnancy lightly or without feeling themselves to be in a conflict situation. The counseling concept may also be suitable for persuading women, who have been encouraged during counseling to carry a child to term and who have had explained in a comprehensible way the law’s dividing line between prohibited pregnancy terminations and those allowed by way of exception, to conscientiously consider and analyze their conflict and to make a responsible decision with full knowledge of the pros and cons. Such analysis is not contrary to the constitution. It would, however, no longer be acceptable if the legislature were to go further and assume the following as a matter of experience: namely, that counseling and a patient/physician discussion can regularly influence women, who find themselves in conflict situations precipitated by an unwanted pregnancy, to the extent that they only subject themselves to pregnancy terminations with the inherent physical and psychological strains, if the preconditions necessary for a non-exactable emergency situation really are satisfied. A woman who does not wish to have a child – whatever her reasons may be – sees pregnancy termination as her only escape. If carried out by a physician within the first twelve weeks of pregnancy this appears significantly less of a burden for a woman (even taking into account long-term psychological effects) than carrying a child to term, giving birth to it and raising it. Experience thus shows that women who have become pregnant unwillingly often seek refuge in pregnancy termination. This is confirmed by the large number of pregnancy terminations taking place. Nevertheless, there is no rule of thumb that says that they only then undergo pregnancy terminations when in an exceptional situation carrying a child to term would be non-exactable for them for serious reasons.

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If the legislature were to assume that a demand for a termination following counseling and a consultation with a physician was a decision normally taken responsibly, with the guidance of the law, and that such decision could thus replace the need for a third party to ascertain the existence of an indication in an individual case, then it would not be satisfying the minimum requirements of the legal protection owed to every unborn. As already explained, this protection presupposes that the killing of an individual life may only be allowed if, in a specific case and as an exception, carrying the child to term would be non-exactable for the woman. It will not be sufficient if there is a determination that a situation exists in which – according to the legislature’s view – women mostly only abort because there are exceptional circumstances which justify such abortion.

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cc) The counseling regulation’s protective effect does not depend for its effectiveness on the woman’s demand for termination, after she has been counseled, justifying the termination. There is no basis for the assumption that the effectiveness of counseling presupposes that the woman is certain her decision in favor of the termination, taken after counseling, is expressly approved of by the law. On the contrary, it is more likely to be detrimental for counseling whose aim it is to protect the unborn, if the law were to allow every demand for termination after counseling. Counseling could not strengthen the woman’s sense of responsibility if her decision in favor of termination taken after she had received counseling were anyway to be recognized by the law.

209

The assessment of a termination as legal, even in cases where it has not been determined that the woman’s situation is non-exactable and exceptional, weakens the legal protection of unborn human life, which the prohibition on pregnancy terminations seeks to achieve through upholding legal awareness (positive general prevention). Legal awareness can be compromised by conflicting legal assessments. There would be such a conflict if the pregnant woman were told by way of legal orientation during counseling that termination was only allowed when there were indications, but told her decision to terminate would be viewed as justified and allowed after receiving counseling, although the existence of an indication had not been ascertained.

210

Consequently, under the constitution the legislature can only use the counseling regulation to achieve its desired result of not threatening a woman with punishment where she has had her pregnancy terminated by a physician in its early phase, after counseling, if it excludes such terminations from the definition of a penal offense. It must, of course, then ensure that the fundamental prohibition on pregnancy terminations during the entire duration of a pregnancy, which thereafter would no longer be contained in a penal provision because it was subject to the exclusion, is expressed elsewhere in the legal system in a suitable way (cf. D. III. 1. c) supra ).

211

3. As already stated, the exclusion of pregnancy terminations from the definition of a penal offense leaves room for the fundamental prohibition on pregnancy terminations in respect of which no justifying exceptions have been ascertained, to be accommodated in other areas of the legal system. In this connection, the special nature of the counseling concept also requires the creation of conditions for late terminations, which do not counteract the woman’s willingness to be open from the start to the counseling to protect life, to reveal why she is faced with a conflict, and to cooperate responsibly in seeking its resolution. Thus, the legal position must be made such that it does not have the effect of encouraging women to reject counseling from the start and opting for illegality. Apart from excluding pregnancy terminations from the threat of criminal punishment, steps must be taken to ensure that third parties are not able to provide emergency help to the unborn in opposition to the actions taken by the woman and her physician. The woman must also be in a position to have the termination carried out by a physician on the basis of a valid private contract (cf. V. 6. infra ). Similarly, it is important to protect the woman from having to reveal the termination and the reasons behind it to other people in a manner which would infringe on her privacy rights (cf. E. V. 3. b) and 4. b) infra ). In order to create such conditions, it must be possible in specific legal areas to refrain from treating pregnancy terminations undergone after counseling, but still unjustified, as illegal.

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The duty to protect unborn human life allows this. The legislature is not bound to draw the obvious conclusions which follow from a fundamental prohibition on pregnancy termination, if a concept of protection sufficiently aimed at protecting life demands certain exceptions to be made. The protective effect, derived from the fundamental prohibition on pregnancy termination’s influence on general legal awareness, is not lost, if the consequences of such prohibition (in view of other useful methods of protection) are restricted in some legal areas and applied in others.

213

These requirements can be satisfied in spite of the restrictions on the consequences from the prohibition. The legal consequences of terminations carried out under the counseling regulations may only be put on a par with justified terminations to the extent this is necessary to achieve the intended protection. The restrictions on the consequences from the prohibition are only necessary in specific legal relations. Furthermore, legal consequences which require an act to be legal may not be attached to such terminations. The required evaluation of the terminations as not legal by the constitution has an influence on contract law. It should also be a guide in the training of physicians, medical assistants and social workers. Generally speaking, the constitutional rule stemming from the duty of protection, whereby a pregnancy termination must, as a matter of principle, be treated as illegal, should be interpreted and applied in other areas of law – especially blanket clauses – in such a way that justified and unjustified pregnancy terminations are not treated equally unless the protection concept requires so.

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4. As a result of the counseling regulation, a woman who terminates a pregnancy following counseling is committing an act which the legal system does not allow. The counseling concept cannot supply her justification grounds in the form of the general emergency indication without contravening its own underlying protection concept. The counseling concept can exact this from a woman without degrading her to a mere object of protection. It respects her as an autonomous person by trying to win her over as an ally in the protection of the unborn and expects her responsible cooperation. It creates other conditions which respect the woman’s legal position (see 3. supra ) and avoids those legal disadvantages which could cause her to withdraw from the counseling procedure and from consultations with physicians. Only when such conditions do not apply must the fundamental prohibition on pregnancy terminations be applied. This means, for example, that not all of the legal advantages pertaining to legal terminations can be accorded to pregnancy terminations carried out under the counseling regulation.

IV.

215

If the legislature decides in favor of a counseling concept, its duty to protect unborn human life imposes on it restrictions in relation to the rules for the counseling procedure (see III. 1. a) supra ). This is of central importance for the protection of life because the emphasis of the guarantee of protection is shifted to preventative protection using counseling. Therefore, the legislature must take into account the prohibition on too little protection and make rules regarding the content of counseling (1.), rules on how the counseling regulation is to be implemented (2.), and rules on how counseling is to be organized – including the choice of people to be involved. These rules must be effective and adequate to persuade a woman, who is considering termination, to carry the child to term. Only then is the legislature’s conclusion that effective protection of life can be achieved through counseling justified.

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1. In determining the content of the counseling, the legislature may assume that counseling only has a chance of really protecting unborn human life if it is conducted in a way which leaves its outcome open. In order to be successful, it must be aimed towards the woman participating in the search for a solution. This justifies refraining from forcing the woman to participate in the counseling discussion and cooperate in it, or obliging her to identify herself during counseling.

217

The goal of counseling in pregnancy conflict situations must be the protection of the unborn child. Counseling of a simply informative nature, which does not deal with the specific pregnancy conflict at hand nor make the pregnancy the subject of a personal conversation nor try to provide concrete help to solve the conflict would be the kind of counseling that abandons women and fails to achieve its task. The counselors must try to encourage the woman to continue her pregnancy and show her opportunities for a life with the child.

218

Such encouragement does not conflict with the conditions necessary for effective counseling, if it respects the personal freedom of the woman seeking advice and her sense of responsibility, and if it is thus conducted in an open-ended fashion. Open-ended counseling does not mean that a counselor may not mention legal expectations and values. Indeed, counseling should provide a chance to discuss the attitude of the law and different views including those of the woman seeking advice. A pregnancy conflict arises usually from a conflict, on the one hand, between the knowledge that one is carrying within one’s body human life in need of care and a desire to have the child and, on the other hand, the worry that one will not be able to cope with the tasks associated with motherhood or that one will be exposed to difficulties in one’s own circle or that one will have to subordinate one’s own expectations in life. If counseling recognizes this conflict and tries to overcome the obstacles standing in the way of the wish to have a child and if it encourages the woman to carry her child to term, it will no longer be seen as an outside interference. The fact that women are in need of such help is confirmed by the not infrequent occurrence of psychological problems after a termination.

219

Counseling which is manipulative or which seeks to indoctrinate will fail. If it is neutral or leaves a woman alone with her conflict, it is actually denying her sympathetic advice. Even counseling which simply considers a description of the woman’s situation without going into the details of the existing conflict is not carrying out its task. Furthermore, if counseling were to try to make the woman feel guilty and influence her that way, it would reduce her willingness to be open to counseling and her awareness of her conflict.

220

Counseling should encourage rather than intimidate, raise understanding not preach, strengthen the woman’s sense of responsibility, not patronize her. All this places high demands on the form the counseling takes and the counselors. Accordingly, appropriate legal guidelines are needed.

221

a) So that the pregnant woman’s responsibility for the unborn life can become the basis for a conscientious decision, she must be aware of the special responsibility which the counseling concept imposes on her. She must know that the unborn has its own right to life vis-à-vis her and thus that it enjoys the special protection of the legal system – even in the early phase of pregnancy. Furthermore, she must realize that the legal system only considers allowing pregnancy terminations in exceptional situations – namely in those situations where the woman would be subject to such a severe and exceptional burden that to have the child would be to exceed the limits of exactable self-sacrifice. The counselor must make sure of this and correct any false impressions the woman might have in a comprehensible way.

222

No objection can be made that if a counselor indicates to a woman that she will not be subject to penal sanctions, that this automatically means there is no protection. There is nothing to show that pregnant women in conflict situations are generally impervious to such information or that they interpret it as preaching by the state and wish to ignore it. On the contrary, the counseling concept assumes that a pregnant woman in an emergency and conflict situation is able to make a responsible decision respecting the interests of the unborn. It is then only logical to assume that she will take into account in her decision what the law regards as right and wrong. It is counseling’s task to provide her with the necessary criteria for this in a comprehensible way. In any case, thereafter the woman will be able to judge her acts from a legal point of view – just as everyone else who takes action does.

223

b) Science has developed methods for providing help in overcoming conflicts. These methods should also be applied. A concept that wishes to protect unborn human life during the first twelve weeks of pregnancy primarily through counseling cannot afford to ignore them. Every counseling session must therefore be aimed at carrying on a conversation and employing methods of conflict resolution. This presupposes that the counselor possesses the necessary capabilities and has enough time to devote him or herself to every woman. Furthermore, counseling is only feasible if from the start the pregnant woman informs the counselor of the real reasons motivating her to consider terminating her pregnancy.

224

Even if the very nature of counseling prohibits forcing a woman to talk and participate, nevertheless for counseling to fulfill its task of protecting life, it is essential that she indicate her reasons for considering termination.

225

Expecting the woman to do so neither impairs the open-endedness of the counseling procedure nor does it detract from the responsibility given to her. What is decisive in this context is that the concept for protecting life using counseling neither makes the reasons given by the woman for the termination subject to examination by a third party to see if they support an indication nor does it confer penal sanctions on a decision taken, after counseling, against carrying the child to term. If the essence of the counseling concept is that a woman should communicate her reasons for wanting to terminate, then it proceeds from the woman’s sense of responsibility and her capacity to make a conscientious decision.

226

c) For the fulfillment of the duty of protection vis-à-vis unborn human life, it is necessary during counseling that the woman be made acquainted with the social and other measures offered by the state and that she be supported as much as possible in taking advantage of them. The same applies to help for the protection of life provided by third parties such as churches and other foundations. This is the only way of guaranteeing that help really reaches the women who most need it so as to promote their wish to carry to term.

227

d) The counseling procedure would not be fulfilling its task satisfactorily if it did not take into account that persons close to the pregnant woman – in particular the father of the unborn child and the parents of a pregnant minor – are called upon to support her and that they could thus influence her in her decision for or against having the child. Accordingly, in every counseling session it must be considered whether it would be appropriate to include the father, close relatives or friends and whether the pregnant woman could be persuaded to do this. If the pregnant woman is accompanied at a counseling session by someone near to her, but whose influence it is to be feared will have a damaging effect on the unborn life, then the counselor must consider whether it would be appropriate to ask her to come to another counseling session alone.

228

2. The ground which a counseling session has to cover will also determine how it needs to be conducted.

229

a) It should be so that the pregnant woman is not necessarily able to demand she be handed a counseling certificate after the first session. Although the application of pressure during counseling is detrimental to its effectiveness, provision must nevertheless be made for the counseling center not to supply a certificate until such time as it believes counseling to have been properly concluded. This approach still allows enough account to be taken of the woman’s particular psychological state and, it is for this reason, that counseling centers are bound to keep available enough short notice appointments. Nonetheless, counseling centers may not withhold the supply of a certificate with the aim of causing a woman, who is determined to undergo a pregnancy termination, to postpone the termination until the expiry of the twelve-week limitation period.

230

b) The pregnancy termination may not be carried out directly after counseling. In many cases, the pregnant woman will not be able to digest what has been said during counseling immediately and will need some time to do this. The woman will need a chance to talk to people close to her about her decision, if her decision is to be made responsibly (see already BVerfGE 39, 1 <64>).

231

3. If the state wishes to fulfill its duty to protect unborn human life by relying on a counseling procedure, then it must bear full responsibility for the procedure’s conduct. It is obliged to ensure that enough counseling centers exist, and it may not shirk responsibility by allowing private organizations to take over counseling, uncontrolled and each one according to its own religious, philosophical or political persuasion. Even if the counseling is conducted by non-state organizations, this does not change the fact that the concept of protection makes counseling an essential instrument for protecting life and it remains a duty of the state. So as not to jeopardize the effectiveness of the protection, the state may not relinquish control over counseling. From this follows:

232

a) The state may only allow institutions to offer counseling – irrespective of whether they are financed by the state, the communes or privately – if their organization and approach to the protection of unborn life, as evidenced in their binding and public declarations, and those of their staff, guarantee that counseling will be conducted as required under the constitution and the law.

233

b) For counseling to satisfy the requirements described, it must be conducted by personally and professionally qualified staff. There must be enough staff to ensure that counseling sessions are not conducted under time pressure. In especially difficult cases, it must be possible to consult experts who possess the necessary expertise. For example, when an embryopathic indication is at issue it must be possible to draw upon the expertise and experience of specialized physicians and associations for handicapped persons.

234

c) The person who is to perform the termination may not act as the counselor. Furthermore, any kind of organizational, institutional or economic connection between the counseling center and the institution performing the termination is forbidden, if the likelihood that the latter has a material interest in the termination cannot be excluded. Any such interest would make the institution unsuitable for the task of protecting the unborn life or encouraging the pregnant woman to carry her child to term or for compassionately discussing the woman’s emergency situation with her.

235

d) The state does not satisfy its responsibility for the organization and conduct of counseling simply by making an initial examination of the suitability of a counseling institution in the sense described above, and thereafter continuing to regard its operations as legal unless it commits a significant breach of its counseling duty in violation of the constitution and the law.

236

Under the counseling concept the counseling centers are charged with a special responsibility. Thus, the state must examine their credentials – by way of statute – regularly, and at not too lengthy intervals, to ensure all counseling requirements are being satisfied. Only when this is so may a license be continued or be renewed.

237

e) The state’s duty to supervise presupposes that the law also creates means of effective supervision. It is up to the legislature to decide on a method of supervision. An obvious method is to oblige counselors to record in writing the essential details of the counseling session and to outline the measures of assistance offered. Such records may only be used to check on the counseling, not to examine and evaluate individual terminations. Counseling centers where counseling is supervised would anyway find such records useful. It would be possible to respect the privacy of the participants at a counseling session by prohibiting the records from containing traces of the identity of the woman or third parties involved. This would also eliminate the danger of the trust, essential to the effectiveness of counseling, being jeopardized by the keeping of records.

238

For there to be effective control of the counseling centers, it is necessary that they provide regular reports on their work. Such reports could also be important in forming a basis for examining the concept of protection and considering ways of improving it.

V.

239

The concept of protection underlying counseling sees in the physician another party who owes the woman help and advice – albeit from a medical viewpoint. A physician may not simply perform a demanded termination without considering his behavior as a medical practitioner. He has a duty to guard health and life, and thus may not be indiscriminately involved in a termination.

240

The state’s duty of protection requires that the physician’s involvement on behalf of the woman provide at the same time protection for the unborn life. The physician is bound by professional ethics and his medical oaths to work to save human life including that of the unborn. The state must ensure that the physician can fulfill his duty to protect when providing medical advice and when deciding to be involved in a termination. In particular, where the legal system fails to require the ascertainment of grounds justifying a termination in an individual case, the state must oblige the physician to perform his task of protecting unborn life.

241

1. The duties which generally apply to a physician when performing an operation can be used as a guideline for his duties in the case of a pregnancy termination. However, his duties in respect of his findings, his duties to inform and advise his patients and keep records have to be adapted to take account of the special requirements for a termination laid down by the counseling concept.

242

a) In order for a physician to make a responsible decision on whether or not to be involved in a pregnancy termination, he must ensure that he knows the conditions under which the counseling regulation will exclude the threat of criminal punishment. In addition to investigating whether the woman has been counseled and whether the necessary time between counseling and termination has elapsed, he must establish how advanced the pregnancy is. In doing so it is not enough to rely on the woman’s statements. The physician must use a reliable method of investigation such as ultrasound.

243

Furthermore, in addition to the purely medical aspects of the termination, the physician has a duty to assess the woman’s pregnancy conflict within the framework of medical diagnostic possibilities. For this purpose, he must ask the woman to explain her reasons for wishing to terminate. If the reasons relate to a medical matter such as the woman’s health, he must make his own examination and use his own judgment. Where other reasons are given, the physician may rely on these as long as they appear feasible. He should also attempt to expose all the hidden causes of the conflict. In particular, his attention should be on whether the woman herself is really in favor of the termination or whether she is being pressured by her immediate family or wider social circle, for example, by her husband, by her partner, by her parents or by her employer. In such cases, there is an increased danger of the woman suffering subsequent psychological problems and the physician should take this into account when counseling her. He should also make her aware of the danger in an appropriate way. In addition, the physician may not ignore circumstances which suggest that a pregnancy termination will not assist the woman in her conflict.

244

b) During counseling the physician must convey to the woman in an appropriate way, without increasing existing fears and emotional anxieties, that a termination involves the destruction of human life. The relevant literature contains reports from women showing that they had an incorrect idea of what really happens during a termination, and that if they had known otherwise, they would not have undergone the termination. In those cases the physician’s duty to inform the patient was not satisfied.

245

However, due to the duty to protect unborn life, limitations must be placed on medical examinations and the supply of information so that pregnancy terminations are not related to the gender of the child. The constitutional order disapproves of gender related terminations. Therefore, persons other than the physician and his staff should be excluded from knowledge of the child’s sex during the early phase of pregnancy unless there is a medical reason for making the knowledge available.

246

c) In order to act responsibly under the rules protecting unborn life, the physician must take into account the legal order’s rules for regarding a termination as not illegal. This requires him to make a medical assessment – faithful to the law – of the conflict situation which can serve as a basis for his discussion with the woman and for his own decision. The physician must inform the woman of the points which he regards as persuasive.

247

d) The general principles of the medical code require a physician to keep records of his observations and treatment in relation to patients (cf. § 11, Subsection  1 of the Model Regulations for the Medical Profession). This documentation duty must extend to the duties to inform and advise in relation to a pregnancy termination as expounded above. This must be made clear in the rules governing professional conduct.

248

e) The requirements that there be a discussion between the physician and the pregnant woman and that there be a responsible medical decision by the physician do not conflict with the concept of a counseling regulation: the woman is not subject to the pressure of having her reasons for desiring the termination examined by a third party. The physician is not being asked to determine and evaluate an indication – instead he is supposed to be finding out whether he as a physician can justify his own involvement in the desired termination.

249

A medical decision of this kind is inseverably connected with a physician’s duties as a medical practitioner and his primary task of protecting life. Accordingly, the representatives of organizations of medical practitioners have declared unanimously in the oral proceedings that even if the penal law does not require physicians to ask pregnant women to provide reasons for wishing to terminate, nevertheless the provision of reasons is as essential for physicians to be able to act responsibly as is a discussion with the woman to examine whether the desire for a termination is based on responsible reasons deserving respect.

250

2. a) It is constitutionally unobjectionable for a woman to still wish to have a termination after she has received counseling and medical advice in the form described above, if under the counseling concept whether or not she is subject to a threat of criminal punishment (exclusion from the definition of a penal offense cf. III. 2. a) supra ) no longer depends on whether the physician considers the termination permissible. Under the concept it is not for the physician to make the final decision on whether a termination in an individual case may take place.

251

b) If the physician believes a termination would be a medically responsible choice, he must be able to be involved in it himself without being subject to punishment. Where he does not believe a termination to be a medically responsible choice, the rules governing medical conduct impose a duty on him to refuse involvement. In practice it is difficult to prosecute breaches of such rules. The constitutional duty to protect unborn life does not require infringements to be criminally punishable. For the fulfillment of the duty of protection it is not just sufficient, but also necessary for the physician’s duty and its enforcement to be regulated in the provisions governing the medical profession. This must occur independently of the criminal law.

252

c) It is necessary under the counseling concept for the physician to require the woman to explain the reasons for seeking a termination and that he satisfy himself that counseling has taken place. He must also check that the necessary time between counseling and termination has elapsed and ensure that he has fulfilled his duty to inform and advise so beneficial to the protection of life. Failure to do so will lead to his being subject to criminal sanctions. In addition, the duties to diagnose the stage of the pregnancy and not to reveal the sex of the child within the first twelve weeks of the pregnancy must also be reinforced through the penal law. The counseling concept, aimed as it is at protecting the unborn, cannot afford not to ensure that the physician acts as above, even though these duties stem from his professional duties. The purpose of requiring the physician to act as described above is not just to serve the woman’s interests, but at the same time to lend important support to the protection of unborn life.

253

Simply regulating the physician’s conduct under the medical code would be insufficient to satisfy the duty to protect unborn life. The previous medical code provision regulating pregnancy termination contained references to the penal law. The representatives of the professional medical bodies indicated during the oral proceedings that in the event of the counseling concept being employed, the relevant bodies did not see any need to alter professional rules to impose higher standards on physician’s conduct than those which are already imposed by the penal law. This leads us to conclude – at least for the present – that there is little chance of the physician’s duty to conduct himself as described above being lent support by stricter medical code rules and sanctions as is indispensable for the effective protection of unborn life.

254

3. To ensure that a physician dealing with a woman in respect of a termination can fulfill his duties to inform and advise, it would be appropriate to make provisions concerning training and advanced training courses for physicians. This should enable each physician make a medical assessment of pregnancy conflicts going beyond his gynecological expertise.

255

4. A physician will only be able to reliably fulfill his role within the protective concept of the counseling regulation, if he is not made to suffer any legal or other disadvantages from refusing to carry out a termination. His right to refuse involvement in pregnancy terminations – except those medically indicated – falls within the protective sphere of his right to free development of his personality (Article 2, Paragraph 1 together with Article 12, Paragraph 1 of the Basic Law). This was taken into account by the legislature when it enacted Article 2 of the Fifth Penal Reform Act. The constitutional requirements for the regulation of terminations do not allow this provision to be dispensed with by contract. Sections 627 and 628 of the German Civil Code are applicable with regard to the right to refuse treatment. Also when a physician is an employee and he refuses to carry out terminations unless they are medically indicated, he should not have to suffer professional disadvantages. Ending the physician’s contract of employment may only be considered if his employer has no other work for him. A physician may not be refused specialized training because he refuses to be involved in terminations in the manner described.

256

5. Article 3, Section 1, Sentence 1 of the Fifth Penal Reform Act as amended by Article 15, No. 1 of the Pregnancy and Family Assistance Act lays down that a termination may only be carried out in an institution which can provide the necessary after-treatment. Obviously, as a result of this provision institutions will emerge whose activities are primarily directed towards terminations and which specialize in carrying out terminations. The resulting danger for the fulfillment by a physician of his duty under the counseling regulation to protect unborn human life is evident. Thus, the legislature is required by its constitutional duty to protect human life to examine ways of effectively combating such danger and to make the necessary rules. This examination could take into account French experience whereby the number of terminations is limited to a certain proportion of the total medical procedures at an institution and where there is a uniform fee for a termination (cf. Eser/Koch, Schwangerschafts-abbruch in internationaler Vergleich, Part 1, Europe, 1988, p. 520 et seq. ).

257

6. The state’s duty to protect unborn life does not demand that contracts be regarded as legally invalid if made with physicians and hospitals regarding terminations not punishable under the counseling concept. On the contrary, the concept requires that the services provided by a physician to a woman be granted legal status. Irrespective of the specific legal consequences of a contract, Sections 134 and 138 of the German Civil Code thus do not apply. The physician and hospital operators should only be involved in a termination if there is an effective agreement governing their rights and obligations and securing, in particular, their fees. It is of foremost importance that the protection owed by the physician to unborn life and the woman’s health be guaranteed by contract. Bad performance of the duties to advise and inform must therefore, as a matter of principle, give rise to contractual and tortious remedies.

258

However, from a constitutional viewpoint a distinction must be made here. Civil sanctions are necessary, as a matter of principle, for defective performance of a contract and for a tortious interference with a woman’s bodily integrity. This not only applies to an obligation to repay a fee paid futilely, but also to compensation for damage including – within the provisions of §§ 823 and 847 of the German Civil Code – fair compensation for a woman for intangible suffering associated with a failed pregnancy termination or the birth of a handicapped child. The constitution (Article 1, Paragraph 1 of the Basic Law) does not permit the existence of a child to be characterized legally as an injury. The obligation on all state powers to respect each person’s existence for its own sake (cf. I. 1. a) supra ) prohibits treating the duty to support a child as an injury. In view of this, the civil courts’ jurisprudence on liability for errors in medical advice and for unsuccessful pregnancy terminations must be reexamined (regarding terminations cf. BGHZ 86, 240 et seq.; 89, 95 et seq., 199 et seq.; BGH, NJW 1985, p. 671 et seq.; VersR 1985, p. 1068 et seq.; VersR 1986, p. 869 et seq.; VersR 1988, p. 155 et seq.; NJW 1992, p. 1556 et seq.; on sterilization see BGHZ 76, 249 et seq.; 76, 259 et seq.; BGH, NJW 1984, p. 2625 et seq.). Unaffected by the aforegoing is the physician’s duty to pay damages to a child injured by an unskillful and unsuccessful termination (cf. BGHZ 58, 48 >49 et seq.>; BGH, NJW 1989, p. 1538 <1539>).

VI.

259

The state’s duty to protect unborn life extends to protection from dangers emanating from third parties – not the least from persons belonging to the pregnant woman’s family or social circle (see I. 2 and III. 1. b) supra ). This duty increases in significance where there is a shift to a protection concept whose aim it is during counseling to convince a woman in the early phase of pregnancy in a conflict situation to carry her child to term.

260

1. The effectiveness of the concept of protection makes it especially necessary to protect the woman from interferences which could distress her or pressure her to abort. Such interferences are also capable of ruining the success of counseling, for example, if while at the same time seeking to avoid their own (joint) responsibility, persons in the social circle of a woman who feels encouraged by counseling to continue her pregnancy, try even harder to convince her to undergo a termination by emphasizing that she will not face punishment and that final responsibility lies with her.

261

As is shown by reports based on counseling experience, questionnaires and scientific studies, pregnancy conflicts which ultimately lead to terminations more often than not do not have their origins in economic/social distress, but rather in broken relationships, in the father’s rejection of the child or the woman’s parents’ rejection of the child or in the pressure exerted by these persons (cf. Renate Köcher, Schwangerschaftsabbruch – betroffene Frauen berichten, in: Aus Politik und Zeitgeschichte B 14/90, p. 37 et seq.; Deutscher Caritasverband, 13th Study: Werdende Mütter in Not- und Konfliktsituation, Period of time 1989, p. 45 et seq.; Roeder/Sellschopp/Henrich, Die Rolle des Mannes bei Schwangersschaftkonflikten, Final Report October, 1992). This shows what a serious – perhaps even hopeless – predicament a woman can find herself when the persons closest to her and from whom she should be able to expect the most help and comfort when involuntarily pregnant, abandon her.

262

2. The legal system must counteract this. Where counseling is to have a chance at being effective, it must guarantee the woman scope for personal responsibility independent of external influences. The concept of protection should include people in the family circle who also bear responsibility for the pregnancy: people such as the father of the unborn or people who have a special responsibility as a result of the pregnancy such as the parents of a pregnant minor. Even persons belonging to the pregnant woman’s wider social circle such as landlords and employers should be included.

263

a) Therefore, it would be insufficient as part of a counseling concept aimed at protecting unborn life simply to appeal to the named persons’ senses of responsibility. It is more important to make legal rules or apply existing legal provisions to work towards creating conditions in which family responsibility and care from persons in the woman’s wider circle can be demanded (cf. I. 3. a) supra ).

264

b) In addition to the above, penal laws allowing and forbidding conduct are to a certain extent indispensable for persons within the family circle. On the one hand, they must be aimed at preventing such persons – who can be expected to help the woman – from refusing her the help she needs on account of the pregnancy. On the other hand, they must be aimed at preventing the same persons from pushing her to have a termination. Punishability can be made to depend on whether or not a termination is carried out. Provisions of this kind would follow on from considerations such as those made in the 1962 Draft Penal Reform in § 201 (cf. German Federal Parliament Publication 200/62, p. 45).

265

It must also be examined whether provision should be made for comparable sanctions to apply to persons belonging to the woman’s wider social circle if, knowing she is pregnant, they push her to have a termination or force her into an emergency situation leading to a pregnancy termination.

E.

266

If the challenged provisions of the Pregnancy and Family Assistance Act are examined against the background of these standards, then it would appear that in respect of the shift to a counseling concept during the first twelve weeks of pregnancy, which in itself is permissible, the Act does not fulfill its duty to effectively protect unborn life arising from Article 1, Paragraph 1 read together with Article 2, Paragraph 2, Sentence 1 of the Basic Law. By comparison, the jurisdictional doubts raised against individual provisions apply only partially to Article 4 of the Fifth Penal Reform Act (new version).

I.

267

§ 218 a, Section 1 of the Penal Code (new version) whereby pregnancy terminations are “not illegal” if undertaken by a physician during the first twelve weeks of pregnancy following counseling pursuant to § 219 of the Penal Code (new version) at the demand of the pregnant woman, is irreconcilable with the duty to protect unborn human life (Article 1, Paragraph 1 read together with Article 2, Paragraph 2, Sentence 1 of the Basic Law) and thus invalid.

268

1. The section provides for a justification ground whose effect is similar to that of the justification grounds contained in § 218a, Sections 2 and 3 of the Penal Code (new version) (medical and embryopathic indications). This was also intended as is confirmed by the meetings of the special committee “Schutz des ungeborenen Lebens” (cf. the statements by the members of parliament Baum and Pflüger in the Protocoll of the 17th Session of the Special Committee, pages 11 and 12). The consequences of the justification ground are not restricted to an exclusion of penal liability because a penal justification ground has an overriding effect on the whole of the legal system whenever the protection of elementary legal values is concerned (cf. D. III. 2. a) supra ).

269

2. If § 218a, Section 1 of the Penal Code (new version) establishes a general justification ground for pregnancy terminations, nevertheless the prerequisites for its operation do not meet constitutional requirements (cf. D. I. 2. c) bb) supra ). A justification for pregnancy termination can only be considered where there is an emergency situation, which must be ascertained and clearly defined. Just as in cases of medical, embryopathic or criminal indications, the emergency situation must be so extreme as to make it non-exactable for the woman to have to carry the child to term. An emergency of this kind is not required by § 218a, Section 1 of the Penal Code (new version).

270

The elements of § 218a, Section 1 of the Penal Code (new version) do not cover non-exactability: no more than twelve weeks may have elapsed since conception, the pregnancy termination must be undertaken by a physician, the pregnant woman must demand the termination, and she must prove that she received counseling pursuant to § 219 of the Penal Code (new version) at least three days prior to the procedure. The reference in § 218a, Section 1, No. 1 of the Penal Code (new version) to the heading of § 219 of the Penal Code (new version) (“Counseling of the Pregnant Woman in an Emergency and Conflict Situation) does indeed show that the law assumes an emergency and conflict situation will exist. The situation is, however, not defined in any more detail and, furthermore, the justification is not made dependent on an ascertainment of its existence.

271

According to the constitutional standards described above, a counseling concept, like the one § 218a, Section 1 of the Penal Code (new version) is based on, cannot lead to a justification of pregnancy termination (cf. D. I. 2. c) and III. 2. supra ). The counseling concept only allows the legal effects of a general prohibition on pregnancy termination to be restricted in individual areas of the legal system under certain conditions such as when the protection concept requires such restrictions for its effectiveness. This allows terminations carried out pursuant to the counseling concept to be excluded from the statutory definition of a penal offense and non-punishable.

272

3. An interpretation of § 218a, Section 1 of the Penal Code (new version) so as to exclude the elements constituting a penal offense – as is proposed in the draft by Wettig-Danielmeier, Würfel and other parliamentarians (German Federal Parliament Publication 12/2605 <new> ) – is not in keeping with the constitution and is not possible. The wording, statutory context and goal pursued by the legislature prevent this. The legislature did not wish to limit the provision simply to the retraction of a penal prohibition. What it really sought to achieve was an effect going beyond that of the penal law – especially in relation to § 24b of the Fifth Volume of the Code of Social Security Law. This emerges from the statements during oral proceedings of those parliamentarians directly involved in the drafting of § 218a, Section 1 of the Penal Code (new version). Thus, the new version of § 218a, Section 1 of the Penal Code incorporates the relevant wording from non-penal provisions providing for legal benefits in cases of “non-illegal terminations of pregnancy” (cf. § 616, Section 2, Sentence 3 of the German Civil Code, § 1, Section 2 of the Act on Continued Payment of Wages, § 133c, Sentence 4 of the Industrial Code, § 63, Section 1, Sentence 2 of the Commercial Code, § 12, Section 1, Sentence 1, No. 2, letter b, Sentence 2 of the Vocational Training Act, § 24b of the Fifth Volume of the Code of Social Security §  37a of the Federal Social Security Act). Just as with the other grounds needed to support an indication in §  218a, Section 2 and Section 3 of the Penal Code (new version), the words “not illegal” in the provision adopted can only be interpreted as a general justification ground.

273

4. Another reason why § 218a, Section 1 of the Penal Code (new version) is irreconcilable with Article 1, Section 1 read together with Article 2, Section 2, Sentence 1 of the Basic Law and invalid is that the provision relies on counseling which is regulated in § 219 of the Penal Code (new version) – which itself does not satisfy the constitutional requirements (see II. infra ).

II.

274

§ 219 of the Penal Code (new version) does not in its present form satisfy the constitutional requirements placed on the protection of unborn human life (Article 1, Section 1, Article 2, Section 2, Sentence 1 of the Basic Law). It is therefore irreconcilable with the Basic Law and invalid.

275

Counseling is of central importance to the concept of protection underlying the law. The legislature must make counseling a state task so that the state is able to fully assume responsibility for carrying it out (cf. D. IV. 3) supra ). In conformity with the principles developed from the constitution, the legislature must regulate the goal and content of counseling as well as the procedures it should adopted (cf. D. IV. 1. and 2. supra ). In the case of the special legal value to be protected and its high exposure to danger, particularly at the time the pregnant woman is considering terminating her pregnancy and thus visiting a counseling center, the legislature must act to regulate counseling so clearly and understandably that the Act can be applied without the help of additional explanations.

276

1. The regulation of counseling for pregnant woman in an emergency and conflict situation (§ 219 of the Penal Code (new version)) is constitutionally inadequate because there are not enough state powers and duties to guarantee the organization and supervision of the counseling institutions. The state is not given a basis for meeting its responsibility to provide counseling institutions which will provide effective counseling as required by the protection concept.

277

a) § 219, Section 2 of the Penal Code (new version) determines that counseling be so organized that it take place at a legally-recognized counseling center and that the physician, who carries out the pregnancy termination, not be allowed to act as a counselor.

278

aa) The above does not ensure that the state will only entrust those counseling institutions with the task of counseling pregnant women in emergency and conflict situations whose organization, whose attitude to the protection of unborn life and whose personnel can guarantee that counseling within the meaning of the constitutional and legal guidelines will take place (D. IV. 3. a) supra ). There is also no guarantee that only counseling centers with enough personnel, where counseling sessions are not held under time pressure, will be recognized (cf. D. IV. 3. b) supra ). Finally, there are no rules to prevent institutions being recognized as counseling centers whose organization or economic interests are linked to institutions where terminations are carried out . Hence the possibility of the counseling institution having a financial interest in the carrying out of the pregnancy termination cannot be excluded (cf. D. IV. 3. c) supra ).

279

The gaps cannot be closed by having resort to the Act on Sex Education, Contraception, Family Planning and Counseling (Article 1 of the Pregnancy and Family Assistance Act). § 3, Section 3 of that Act provides only for centers to be recognized which have sufficient qualified personnel, which can call up certain experts if necessary, which work together with centers offering help to mothers and children, and which are in a position to provide the counseling (especially counseling with information) intended by § 2 of the same Act. The substantive requirements laid down by the Act for the general recognition of counseling centers as well as its guarantee of pro life counseling and the resolution of pregnancy conflicts through encouraging women to continue their pregnancies, lag behind the constitutional expectations placed on § 219 in relation to counseling centers. The constitution makes it necessary for such requirements to be placed on counseling institutions within the meaning of § 219 of the Penal Code (new version). § 4 of the same Act does not comply either; it places limits on the number of terminations carried out, but does not deal with recognition requirements for individual counseling centers.

280

bb) The legal rules dealing with the organization of conflict counseling are also incomplete because § 219, Section 2, Sentence 1 of the Penal Code (new version) does not make it clear that the recognition required “by statute” must apply to the type of conflict counseling offered. The state entrusts the task of counseling to those centers fulfilling the requirements for counseling by granting state recognition, and it is the state which must withdraw the task by rescinding the recognition, if the requirements cease to be fulfilled (cf. D. IV. 3. d) supra ). Not even in the Act on Sex Education, Contraception, Family Planing and Counseling (Article 1 of the Pregnancy and Family Assistance Act) is such a provision to be found. Recognition under § 3, Section 2 of the Act is granted by a government authority, corporation, public institute or foundation. In this respect the Act follows the provision in § 218b, Section 2 of the Penal Code (old version). It assumes there will be a pluralistic offer of recognized counseling centers (cf. German Federal Parliament Publication 12/551 and 12/2605 <new>, with reasoning on Article 1, § 3). As was the case previously, the details of recognition are left to state law to define (cf. on previous law Dreher/Tröndle, 46th ed. , marginal note 5 on § 218b of the Penal Code, old version). In individual states, § 218 b of the Penal Code (old version) has been applied so that corporations, public institutes or foundations, whose legal or statutory tasks include counseling pregnant women, have been able to recognize their own institutions or those of related operators as counseling centers (§ 2, Section 3 of the Hesse Act on the Implementation of §§ 218 b and 219 of the Penal Code and Article 3 of the Fifth Penal Reform Act dated 2 May, 1978, GVBl. p. 273; § 1, Section 2 of the corresponding Berlin statute dated 22 December, 1978, GVBl. p. 2514). In North Rhine Westphalia there is provision for the churches to be responsible for recognition of counseling centers which are church financed as long as they have the status of public law corporations (§ 1 of the Order on Jurisdiction for Pregnancy Counseling and Pregnancy Termination dated 12 December, 1978, GVBl. p. 632).

281

This may not be objectionable as far as the counseling in Article 1 of the Pregnancy and Family Assistance Act is concerned. However, the organization of counseling offered under the counseling regulation is a significant part of the protection concept. The federal legislature, in keeping with its penal law jurisdiction (Article 74, No. 1 of the Basic Law) has to develop such organization, if necessary, with the help of the powers contained in Article 84, Section 1 of the Basic Law and with reference to the prohibition on too little protection. If the federal legislature were to leave it to the states to enact organizational provisions for the implementation of the protection concept, it would have to make the coming into force of the entire rule dependent on all states having enacted the necessary legal provisions. This path has obviously not been adopted by the legislature.

282

b) There are also not enough provisions guaranteeing sufficient state supervision of the counseling centers. The state must have a legal basis for examining the validity of the counseling centers’ recognition regularly, and at not too lengthy intervals, and it must be satisfied that the requirements placed on counseling are being met. Only where this is taking place, may the recognition be allowed to continue or be re-confirmed (cf. D. IV. 3. d). Such examination presupposes that the Act also contains powers of information and examination (cf. D. IV. 3. e). Although necessary under the counseling concept, the legislature has made no provision in this respect and the counseling regulation is thus deficient.

283

c) The constitution demands that the effectiveness of the protection concept be guaranteed and the deficiencies described above relating to the organizational and procedural inclusion of counseling centers within state responsibility apply to the counseling regulation contained in § 219 of the Penal Code (new version) as a whole. Declarations on the goal and content of counseling are useless for the protection concept’s effectiveness, if the necessary organizational and supervisory precautions for their implementation are missing – they are, so to speak, empty words.

284

2. Viewed against this background it becomes unnecessary to make a final decision on whether the provisions in § 219 of the Penal Code (new version) on goal, content and conduct of counseling can stand up to constitutional examination. Moreover, when new legal rules are made, as is necessary, this provision must be reformulated in such a way that it is clear on its face, generally understandable, and thus able to be applied without requiring additional explanations. Finally, all constitutional requirements based on the state’s duty to protect laid out under D. IV. 1. and 2. must be satisfied.

285

a) According to § 219, Section 1, Sentences 1 – 3 of the Penal Code (new version) counseling aids in the protection of life by providing the pregnant woman with advice and assistance while recognizing the high value of gestating life and the woman’s own responsibility. Counseling should help to overcome the emergency and conflict situation in connection with the pregnancy and should put the pregnant woman in a position to make a responsible decision in keeping with her own conscience.

286

The goal and content of counseling as determined by the constitution (cf. D. IV. 1.) supra ) do not find sufficiently clear expression here. It is true that counseling must be conducted in an open-ended way because there is then the greatest likelihood that the woman will involve herself in the search for a solution to her conflict. Despite what has been said, however, counseling may not be open-ended and have an open goal, but must be orientated towards the protection of unborn life. The counselors must endeavor to encourage the pregnant woman to continue her pregnancy and try to open up chances for her for a life with the child. In doing so it may be necessary for them to rectify mistaken ideas on the fundamental precedence of the unborn’s right to life and the weight to be attached to an exceptional situation in which a pregnancy termination is allowed.

287

The reasoning behind the draft legislation makes reference to the protection of unborn human life as a counseling goal (cf. German Federal Parliament Publication 12/2605 <new>, p. 22 <individual reasoning for § 219>). However, the actual wording, which is what is significant, does not make this evident with the necessary clarity and explicitness. § 219, Section 1 of the Penal Code (new version) does not contain a clear mission to encourage the pregnant woman to carry the child to term. Finally, it is not clear from the Act that the woman must be aware that the protection of unborn life must be given fundamental precedence provided there is no emergency situation allowed by the constitution.

288

The counseling goal will, therefore, have to be much more clearly expressed in the new version of § 219 of the Penal Code.

289

b) § 219, Section 1, Sentences 4 and 5 of the Penal Code (new version) names the provision of comprehensive medical, social and legal information to the pregnant woman as a task of counseling. It is intended that counseling include an explanation of the mother and child’s legal rights and an explanation of potential practical assistance. Pursuant to § 219, Section 3, Sentence 2 of the Penal Code (new version) a certificate relating to the conduct of counseling under section 1 and the information “thus” given to the woman to help her with her decision must be issued “immediately“.

290

Irrespective of the fact that the initiators of the legislation sought more than the provision of mere information (cf. the protocol of the 17th Session of the Special Committee “Protection of Unborn Life” dated 17 June, 1992, p. 12), this creates the impression that the emphasis of counseling under § 219, Section 1 of the Penal Code (new version) lies in giving information. The legislature must correct such impression because it does not meet the constitutional requirements placed on counseling pursuant to §  219 of the Penal Code (new version). Mere informative counseling, which does not deal with the specific pregnancy conflict at hand and try to make it the subject of conversation, is bound to fall short of its function under the protection concept -namely to help to encourage the woman to protect life. Additionally, it is necessary for conflict counseling that the counselor attempt to find out from the woman her motives for considering the pregnancy termination. The counseling certificate evidencing the conclusion of counseling may not be issued while the counselor believes that there are still chances of resolving the conflict – if necessary with the help of third parties.

291

An amended version of the Act must, therefore, make clear that counseling should extend beyond the provision of information; it should provide conflict counseling which protects life by first exhausting all avenues of protection.

292

c) Irrespective of the regulation in Article 1, Section 2, Sentence 2 of the Pregnancy and Family Assistance Act, it still needs to be made clear that under § 219 of the Penal Code (new version) counseling centers not only have to inform the woman of public assistance, but also present her with available offers of help or assist her in obtaining help.

293

d) § 219, Section 1, Sentence 3 of the Penal Code (new version) calls the decision made by the woman following counseling a “decision of conscience”. The legislature was clearly intending to follow on from the wording used by the Federal Constitutional Court in its previous Judgment (cf. BVerfGE 39, 1 <48>) whereby a decision in favour of a termination can qualify as a decision of conscience worthy of respect. However, a woman, who decides in favor of a termination after counseling, cannot claim protection under Article 4, Paragraph 1 of the Basic Law for the related killing of the unborn. To be constitutionally permissible the Act can only mean a decision taken conscientiously and, in this way, deserving of respect. This must be made clear in an appropriate way.

III.

294

Irrespective of the constitutional deficiencies found in § 218a, Section 1 and §  219 of the Penal Code (new version), the regulation of terminations in the Pregnancy and Family Assistance Act based on the counseling concept does not fulfill the duty to protect life because the legislature has failed to lay down to the extent described in more detail above, the special duties of the physician whom the woman asks to perform a termination (cf. D. V. 1 and 2), and the special duties of the people in the pregnant woman’s circle (cf. D. VI. 2.), and because it has not made certain breaches of duty punishable. The provisions, which are missing, must be added to the new regulation made necessary by the declaration of §§ 218 a, Section 1 and § 219 of the Penal Code (new version) as invalid.

IV.

295

Article 15, No. 2 of the Pregnancy and Family Assistance Act is irreconcilable with Article 1, Paragraph 1 read together with Article 2, Paragraph 2, Sentence 1 of the Basic Law and invalid to the extent that it rescinds the provision contained in Article 4 of the Fifth Penal Reform Act concerning federal statistics on pregnancy terminations.

296

1. a) The legislature’s duty to protect unborn human life is not fulfilled for all time by its passing a statute regulating pregnancy terminations whose goal is protection and, which appears in the legislature’s view, suited to providing the amount of protection demanded by the Basic Law. On the contrary, due to its duty to protect the legislature continues to remain responsible for ensuring that the statute really provides appropriate and, as such, effective protection against pregnancy terminations. In doing so it must take into account opposing legal values. If it becomes apparent after a long enough observation period has elapsed that the statute is unable to guarantee the amount of protection demanded by the Basic Law, then the legislature is obliged to work to remove deficiencies and to ensure protection sufficient to comply with the prohibition on too little protection by amending or extending existing provisions (duty of correction and subsequent improvement).

297

This duty is also a consequence of the fact that the legislature is bound, as a matter of principle, by the constitution to rectify the unconstitutionality of a statute as quickly as possible (cf. BVerfGE 15, 337 <351>). It is especially significant when a statute which was originally constitutional, later becomes unconstitutional because there is a fundamental change in the circumstances it applies to, or because the reasonable constitutional expectation at the time of its enactment as to how it would work in practice, later proves completely or partially false (cf. BVerfGE 50, 290 <335, 352>; 56, 54 <78 – 79>; 73, 40 <94>). The legislature’s obligation to the constitutional order (Article 20, Paragraph 3 of the Basic Law) is not fulfilled by its respecting constitutional limits when enacting a law. The obligation extends to responsibility for the enactment’s remaining in harmony with the Basic Law (cf. BVerfGE 15, 337 <350>).

298

b) The duty of subsequent improvement does not generally include continual controls of legislation by the legislature. Mostly it only then becomes relevant when the unconstitutionality of a statute is recognized or in any case becomes clearly recognizable (cf. BVerfGE 16, 130 <142>). However, special demands arise from the duty to protect life, which is a continuing obligation placed on all state organs (cf. BVerfGE 49, 89 <130, 132>). The high position of the legal value to be protected, the kind of danger to unborn life, and the change in social conditions and attitudes noticeable in this area, make it necessary for the legislature to observe how its legal protection concept applies in social practice (duty to observe). It must ascertain at reasonable intervals whether the law really is having the protective effect expected or whether deficiencies in the concept or its practical application have manifested themselves so much so that they constitute a breach of the prohibition on too little protection (cf. BVerfGE 56, 54 <82 et seq. >). This duty to observe exists especially after the change in the concept of protection.

299

c) The duty to observe includes the legislature ensuring, to the extent within its powers, that the necessary data be collected and evaluated regularly. For this it is essential to have reliable statistics with sufficient information on the total number of pregnancy terminations, on the number of pregnancy terminations as compared to the whole population, on the total number of pregnancy terminations as compared to the number of women of childbearing age, on the total number of pregnancy terminations as compared to the number of pregnancies, on the total number of pregnancy terminations as compared to the total number of live or dead births, and finally on the total number of pregnancy terminations as compared to the number of terminations not subject to punishment because of extenuating legal reasons. It is up to the legislature to decide for itself which relevant facts its statistical survey will extend to (such as multiple terminations, the woman’s age, family status, number of children) and to decide on the details of how it will collect and analyze the data. In any case, to dispense with all state statistics on pregnancy terminations would not be reconcilable with the duty of protection. If it did so, the legislature would be robbing itself of the material it needs for the observation of the effects of its protection concept. One cannot raise the objection here that previous statistical information showed itself to be unreliable. To the extent that it did, there are grounds for improving the data. Suggestions on how to do this were made in the oral proceedings before the federal parliament’s special committee for “protection for unborn life”.

300

2. Measured by this constitutional standard, the rescission of the existing provision on federal statistics in Article 4 of the Fifth Penal Reform Act is irreconcilable with the duty to protect unborn human life.

301

The change in the statutory protection concept brought about by the Pregnancy and Family Assistance Act is – as outlined above – associated with uncertainty as to the future effects the new legislation will have. The change in concept reflects an attempt by the legislature following the unsatisfactory experience had with the indications solution, to secure better protection for unborn life in another way. This obliges the legislature to carefully observe the actual effects of the new law and to conscientiously collect the data necessary for an empirical assessment of the pregnancy terminations carried out under the new law.

302

Article 4 of the Fifth Penal Reform Act provides for the gathering of federal statistics on terminations conducted pursuant to the conditions laid out in § 218a of the Penal Code. The provision originally applied to the indications solution contained in § 218a of the Penal Code (old version). It can, however, also provide information about terminations undertaken under the counseling concept within the first twelve weeks of pregnancy, and thus provide information about the significant effects of the new protection concept. Such information is indispensable. Of course, the legislature was not bound by the constitution to retain the previous provision on federal statistics. It was, however, forbidden from deleting it without providing for a substitute. Such deletion was invalid. A new regulation is already necessary for the fulfillment of the duty of protection because the previous provision’s area of application did not extend to cover the new federal states. It has applied there until now by reason of a temporary order of the Senate (BVerfGE 86, 390 et seq.).

V.

303

The provision in § 24b of the Fifth Volume of the Code of Social Security Law is reconcilable with the Basic Law (1. and 2. a). It would, however, not be in conformity with the Basic Law to allow claims against the statutory health insurance for the carrying out of terminations, whose legality has not been established according to the constitutional standards already developed (2. b). Moreover, in cases of financial need there are no constitutional objections to the granting of social assistance for terminations which are not punishable, nor are there any constitutional objections to the continued payment of a salary (3. and 4.). Under existing law, the constitutional duty of protection for unborn life does not preclude health insurance benefits for a pregnancy termination based on the general emergency indication. Whether it would otherwise be reconcilable with the Basic Law for social insurance benefits to be payable for terminations based on § 218a, Section 2, No. 3 of the Penal Code (old version), does not need to be decided (5.).

304

1. The enactment of the provisions in § 24b of the Fifth Volume of the Code of Social Security Law was constitutionally valid in form. The federal government’s jurisdiction derives from Article 74, No. 12 of the Basic Law (“social insurance including unemployment insurance”). The same applies to the extent that pregnancy terminations based on the general emergency indication are affected (§ 218a, Section 2, No. 3 of the Penal Code (old version)).

305

a) As often decided by the Federal Constitutional Court (most recently BVerfGE 75, 108 <146 – 147>), the term “social insurance” in Article 74, No. 12 of the Basic Law should be understood broadly as a “constitutional generic term”. It covers everything which has the character of social insurance. New circumstances in life can be included in the “social insurance” system, if the essential structural elements of the new social payments, particularly their organization and the risks they cover, correspond to the image attached to the “classic” social insurances. In any case, social insurance includes covering a potential need, calculable in its entirety, by spreading it across an organized multitude (cf. BSGE 6, 213 <218, 227 – 228). Social insurance is not restricted to employees and to the existence of an emergency. Apart from the social need to compensate certain burdens, what is significant is how the task is managed organizationally. The bodies financially responsible for social insurance are, of course, independent establishments and public law corporations, whose means stem from payments by “contributors”.

306

b) The extension of health insurance benefits to cover “non-illegal pregnancy terminations” by a physician, first introduced by the Penal Reform Extension Act and adopted in the Pregnancy and Family Assistance Act, can be included in the social insurance sphere of jurisdiction. What is relevant for the jurisdictional classification is not whether jurisdiction is assumed for a regulation which is either legal or illegal, but rather whether the subject matter of the regulation falls within the sphere of jurisdiction.

307

aa) Covering precautionary health measures has always been among the tasks of the statutory health insurance. However, a pregnancy termination – except for one based on a medical indication – even if undertaken by a physician, can neither be categorized as a precautionary health measure nor as an operation to heal (cf. BVerfGE 39, 1 <44, 46>; cf. too BSGE 39, 167 <169>). Thus, it cannot be treated as being on the same footing as motherhood assistance, medical check-ups and precautionary measures to prevent inheritable diseases. These services improve health or protect against dangers to health (cf. Gitter/Wendling in: Eser/Hirsch, Sterilisation und Schwangerschaftsabruch, 1980 p. 215). Such elements are missing in the case of pregnancy terminations under § 218a, Section 2, No. 3 of the Penal Code (old version) as well as under § 218a, Section 1 of the Penal Code (new version). The pregnant woman’s need for treatment arises as a rule through the operation whose financing by the whole community of insured persons is at issue.

308

All the same, pregnancy terminations undertaken by a physician are related to the topic of preventative health care, which is necessary for the establishment of jurisdiction. Pregnancy terminations, even when they are not medically indicated, are still medical operations performed on women, and thus pose a risk to women’s health. In order to avoid any danger to health, § 218a, Section 1 of the Penal Code (old version) and § 218a, Section 1 of the Penal Code (new version) provide that a pregnancy termination (when undertaken under the conditions laid out) must be performed by a physician so that the rules for medical procedures are followed.

309

bb) The payment of insurance benefits is organized according to the scheme applicable to “traditional” health insurance; payments are made by the body financially responsible for health insurance in the same way as happens when a person is incapable of working for health reasons or needs medical treatment. The necessary financial means for this is supplied by insured persons and their employers in the form of insurance contributions.

310

2. a) In granting a right to benefits from the statutory health insurance in the case of a “non-illegal pregnancy termination” § 24b of the Fifth Volume of the Code of Social Security Law follows the provisions in § 218a, Section 1 – 3 of the Penal Code (new version) which lay down the conditions for when a termination is not illegal. A right to benefits is also supposed to exist in cases falling under § 218a, Section 1 of the Penal Code (new version). However, this provision does not stand up to constitutional scrutiny – it is unconstitutional and invalid. If, however, the constitution prevents the legislature from treating a pregnancy termination as justified under the conditions contained in that provision, then the wording of § 24b of the Fifth Volume of the Code of Social Security Law must indicate that there can be no question of a right to health insurance benefits. The provision is reconcilable with the Basic Law in this limited area of application.

311

b) Where the legality of a termination cannot be determined, the constitutional duty to protect life forbids interpreting 24b of the Fifth Volume of the Code of Social Security Law as allowing social insurance benefits to be paid in the same way as for a termination which is not illegal. A state governed by the rule of law can only finance an act of killing if it is legal and the state has assured itself of this legality.

312

aa) Without the operation demanded by the woman, which destroys the life of the unborn and, for that reason only, endangers the woman’s health, there would be no reason to allow a claim against the state health insurance. If the state were to make such a medical procedure the subject of a claim for benefits against the statutory health insurance, then unlike all the other benefits provided by the statutory health insurance, the benefit would not exclusively serve the protection of life and health. The assumption of medical costs and social insurance costs for medical services in relation to the carrying out of a termination are not directly related to the killing of unborn life. They amount, however, to involvement by the state in the act of killing. Such involvement is only permissible, if the circumstances fall within the justified exception to the fundamental prohibition on pregnancy termination, and the state is suitably satisfied of this. The state may not be involved in the killing of unborn life unless it convinced that the act is legal. Counseling’s protection concept leaves no room for imparting this conviction to the state (cf. D. III. 1. c) supra ).

313

If it is not possible to tell whether a termination undergone in the early phase of pregnancy under the counseling regulation can be viewed as permissible because of the existence of a general emergency indication, the state is not allowed, as a matter of principle, to be directly involved financially or through third parties such as the community of insured persons. If it were to be involved, the state would accept co-responsibility for acts which, on the one hand, the constitution does not allow it to regard as legal, and which, on the other hand, it is prevented from treating as legal under the protection concept.

314

bb) The conditions for the effectiveness of the protection concept do not require exceptions (cf. D. III. 3.) supra ).

315

(1) The protection concept extends to pregnancy terminations taking place under medically unobjectionable conditions or circumstances, which protect the woman’s right to free development of her personality. Such protection can only be secured if no woman is prevented for financial reasons from consulting a physician. If the means are available, experience shows that women will consult a physician in order to avoid the risks to their health posed by improperly carried out terminations. Illegal terminations by physicians did not occur very often even before §§ 218 et seq. came into force (cf. the First Report by the Special Committee for the Penal Law Reform, German Federal Parliament Publication 7/1981 <new> , p. 5 – 6). Nevertheless, if a woman’s income or assets are insufficient the state can cover her needs by applying the principles of social assistance law (cf. 3.) infra ). In determining the woman’s neediness what is relevant are her available income and assets at the time of the termination. Reference may not be made to any possible maintenance claims she may have against her parents or her husband, nor may recourse be had to these persons if the woman is not in agreement.

316

(2) Normally, private health insurance only covers “medically necessary treatment on account of a pregnancy” (§ 1, Section 2, Sentence 4, (a), General Insurance Conditions for Health Insurance Costs and Daily Benefits Insurance During Hospitalization <Standard Conditions of the Association of Private Health Insurers 1976> printed in Prölss/Martin, Versicherungsvertragsrecht, 24th ed. 1988, p. 1222). Included are only those terminations which are medically indicated as a cure for pathological findings or to avert a physical or psychological danger for the pregnant woman (cf. Wriede in Bruck/Möller, Kommentar zum Versicherungsvertragsgesetz, 8th ed., Vol. VI 2, 1990, G 43; cf. too LG Berlin, VersR 1983, p. 1180 – 1181; LG Detmold, VersR 1986, p. 336). If insurance contracts went further and provided benefits in respect of terminations whose legality had not been established, they would conflict with the basic prohibition on terminations. Such contracts would be invalid (cf. D. III. 3).

317

According to the above, women without health insurance or who only have private health insurance anyway have to pay out of their own pockets for medical services in relation to a termination non-punishable under the counseling regulation. If counseling’s protective concept is to be effective, it would seem that such women should not be treated differently to those who are insured by statutory health insurers.

318

cc) In spite of its not being subject to the threat of criminal punishment, under counseling’s protective concept a woman who has received social and medical counseling must take responsibly for whether a termination occurs. However, the counseling concept does not make it necessary for such responsibility to be recognized under social security law. It does not require that a woman, who has had a termination not subject to the threat of criminal punishment pursuant to the counseling regulations, be granted the same social benefits as women in whose cases medical, embryopathic or criminological indications – after all justification grounds – were established.

319

(1) The responsibility borne by the woman in deciding in favor of a termination under the counseling regulation should not be treated as a kind of “self indication” whereby the woman herself can make a binding determination that a justifying emergency situation exists (see D. III. 2. b.) aa) supra ). The counseling concept is based on the view that unborn life can be better protected in the early phase of pregnancy with the mother. For this reason, and in order to exhaust counseling’s avenues for providing encouragement to carry a child to term, no legal or practical obstacles to its protective effect should be placed in the way of a decision to still go ahead with a termination. Additional recognition of the woman’s decision, through counseling as a way of influencing her, is not required to ensure protection.

320

(2) The welfare state principle (Article 20, Paragraph 1 of the Basic Law) does not permit the state to treat terminations not subject to the threat of criminal punishment under the counseling regulation as allowed because there is no assessment of legality in individual cases. It is only possible to build a welfare state on the foundations of the Basic Law, if the tools of a state based on the rule of law are employed. The principle of maintaining the rule of law would not just be minimally affected, but rather violated in its substance, if without making distinctions taking into account the goals of a welfare state, the state were to assume (co-) responsibility directly or indirectly for occurrences whose legality it cannot be certain of.

321

dd) The granting of social insurance benefits for terminations whose legality has not been determined although they are not subject to the threat of criminal punishment, is irreconcilable with the state’s duty to protect unborn life. If this were not so, the awareness in the population that the unborn also has a right to life vis-à-vis its mother and that a termination is therefore wrong, as a matter of principle, would be lowered considerably.

322

A refusal to grant social benefits will only be of limited use in making clear that the law takes a negative view of certain circumstances, if the refusal to grant relates to benefits – such as those for a termination – which do not actually come within the insurer’s domain. However, conversely, the granting of such benefits in circumstances which cannot be categorized as a normal insurance risk, gives members of the public the impression that what is involved is in fact a risk comparable to one of the usual risks and thus a normal routine occurrence. The expert, Prof. Dr. Schulin, pointed this out in his evidence (Expert Opinion, p. 97).

323

In this context it cannot be ignored that the circumstances under which the social insurance will grant benefits are of significance for about 90 percent of the population (cf. Schulin, op. cit. p. 2). The whole community of insured persons keeps a close eye on social insurance because it affects spheres of life of personal interest, and is thus well-suited to influencing public values.

324

The counseling regulation concept can only fulfill the minimum requirements of the state duty to protect, if it pays special attention to preserving and strengthening legal awareness. It is only when awareness of the unborn’s right to life is kept alive that the woman’s responsibility under the counseling regulation to protect such right, will, as a matter of principle, be suitable to protect the unborn. It would run counter to this protection if the state were to support terminations by generally allowing claims for social insurance benefits; doing so would inevitably create the impression that terminations are sanctioned by the legal system after all. In addition, those persons close to the pregnant woman, who also share a responsibility for her and the unborn, could feel their consciences eased because they would regard something which social insurance benefits are paid for as normal and legal.

325

c) The constitution rules out a grant of social insurance benefits for the performance of an illegal pregnancy termination and for post operational medical treatment where no complications have arisen. Furthermore, the principles stated do not allow a woman who has become unable to work as the result of a termination to be granted a right to receive sickness benefits pursuant to § 24b, Section 2, Sentence 2 of the Fifth Volume of the Code of Social Security Law. Nor can the provision be used in cases going beyond its express preconditions (terminations which are not illegal) as a basis for granting benefits for terminations which are not threatened by criminal punishment. The question whether a claim can be made in these cases under §§ 44, 53 of the Fifth Volume of the Code of Social Security Law remains open.

326

Other benefits payable under § 24b, Section 2, Sentence 1 of the Fifth Volume of the Code of Social Security Law are not touched by the prohibition. They are suitable for and designed to maintain the woman’s health to the extent it is affected by pregnancy. The medical services received by an insured woman prior to a termination are – like subsequent treatment made necessary by complications arising from a termination – services which directly promote her health. Furthermore, if a termination is not carried out, the services benefit the child’s life. For the reasons already given, the killing of unborn life is so much in the foreground as far as the termination itself is concerned that a claim against the social insurance cannot be considered unless the legality of the pregnancy termination is certain.

327

3. a) Accordingly, the constitution forbids the state, as a matter of principle, from promoting pregnancy terminations by allowing benefits or by making rules allowing benefits from third parties unless the termination’s legality has been ascertained. Constitutional law only permits the state to violate such principle, as has already been stated, to the extent this is necessary for the effectiveness of the concept protecting unborn human life – i.e. so that the woman will only have the termination carried out by a physician. If, on the one hand, the legal system requires recourse to a physician for the protection of the health of the pregnant woman and, if on the other hand, it requires recourse to a physician for the protection of the health of the unborn, then these two objectives will not be realized unless the woman possesses the financial means necessary for consulting a physician. In such situations the state cannot be prevented from providing the financial means necessary itself.

328

b) In those cases where the protection concept makes it necessary, the legislature has to lay down the conditions under which the state will assume the costs for a woman who cannot afford a termination. It is evident that the present regulation contained in § 37a of the Federal Social Security Act has to be adapted to conform to the requirements of the counseling regulation as determined by the constitution. By allowing these social benefits, the state is not acting contrary to the requirements of its duty of protection. In doing so, it is simply avoiding from the outset women having to turn to illegal means and thereby not only causing damage to their own health, but depriving the unborn of any chance of rescue which might be available through counseling from a physician.

329

When formulating the right to social assistance, the legislature must protect the right to privacy of the person entitled to benefits. While avoiding a conflict with its duty of protection vis-à-vis unborn life, it must make provisions which spare the woman from having to repeat her explanation of her situation. This rules out recourse to family members pursuant to §§ 91 – 92 of the Federal Social Security Act. For obvious reasons, all procedures connected with the granting of protection and help by the state should as far as possible be concentrated in the hands of one authority – perhaps the statutory health insurance – so that the woman only has to explain her situation once.

330

4. In view of the labor law origins of the law concerning the continued payment of wages and in view of the requirements of the protection concept, and in conformity with the principles laid out (D. III. 3.) supra ), it does not appear necessary to exclude terminations which do not fall within the definition of an offence under § 218 of the Penal Code (new version) from the obligation to pay benefits.

331

a) aa) Under § 1, Section 1, Sentence 1 of the Act on Continued Payment of Wages a worker, who is prevented after starting his employment from working as a result of an illness, but without fault on his own part, does not lose his right to pay for a period of up to six weeks. This provision also applies when the inability to work occurs as a consequence of a pregnancy termination undertaken by a physician. In such a case, the ensuing inability to work is regarded as faultless (§ 1, Section 2 of the Act on Continued Payment of Wages). Other labor law regulations contain similar provisions (cf. § 616 of the Civil Code, § 63 of the Commercial Code, § 133c of the Industrial Code, §§ 52a, 78 of the Seaman’s Act). § 115a of the GDR Labor Code, which was inserted in the Labor Code by an Act dated 22 June, 1990 (Legal Gazette I, No. 35, p. 371), continues to apply in the area defined in Article 3 of the Unification Treaty (Article 9, Paragraph 2 of the Unification Treaty read together with Annex II, Chapter VIII, Subject Area A, Section III, No. 1a). This provision closely follows the rules in the Act on the Continued Payment of Wages and does not contain a regulation corresponding to § 1, Section 2 of the Act on Continued Payment of Wages. It also applies, as a matter of principle, to all employees. § 4 of the Pregnancy Termination Act of 9 March, 1972 (Legal Gazette I, No. 5, p. 89) provides that the preparation for, conduct of and treatment after a pregnancy termination permissible under the law should be treated in the same way as a normal case of illness. This provision will become inoperative when Article 16 of the Pregnancy and Family Assistance Act becomes effective.

332

bb) The law on the continued payment of wages requires a physician to provide an employee with a letter for his/her employer stating the existence of an inability to work due to illness. The kind of illness and its cause should not be mentioned in the letter (cf. § 3 of the Act on Continued Payment of Wages). Without the receipt of further information, an employer is not in a position to establish whether the prerequisites for the continued payment of wages do not exist because there has been some fault on the part of the employee. He can only refuse to continue paying wages if he has clear indications for the existence of fault or the employee is contractually bound to supply details of his/her illness..

333

b) Inability to work caused by illness is only relevant if the illness results from conduct which one would not expect a reasonable person out of self-interest to engage in and if it would – in exceptional situations – be unfair to shift responsibility for the consequences of such conduct to the employer (cf. BAG, Judgment dated 28 February, 1979, AP No. 44 on § 1 of the Act on Continued Payment of Wages, Judgment dated 7 August, 1991, AP No. 94 on § 1 of the Act on Continued Payment of Wages; Hueck/Nipperdey, Lehrbuch des Arbeitsrechts, 7th ed. , Vol. 1, 1963, § 44 III a cc; Zöllner/Loritz, Arbeitsrecht, 4th ed., 1992 § 18 II 2 e; Schmitt, Lohnfortzahlungsgesetz, 1992, § 1 of the Act on Continued Payment of Wages, Marginal Note 60 et seq. with further references).

334

It is not contrary to the constitutional duty to protect unborn human life to interpret and apply labor law principles in such a way that a duty to continue the payment of wages still exists, even when the inability to work is a consequence of a termination carried out pursuant to the counseling regulation. There is no constitutional objection to viewing inability to work in such cases as faultless under §  1, Section 2 of the Act on Continued Payment of Wages.

335

In order to dismiss a claim by a female employee for continued payment of wages in the case here in question, more is needed than just a statutory regulation excluding the treatment of an inability to work following an illegal termination as the result of an illness. For such a regulation to be effective – either the physician treating the woman would have to be prohibited from confirming her inability to work or the female employee would have to be obliged to disclose to her employer the reasons for her not being able to work. The woman would then only be able to avoid doing so if she took holidays which is not always possible. Other ways of avoiding disclosure are not available under current law. The woman would also have a duty of disclosure if one were to regard a pregnancy termination following counseling as a serious breach of the conduct to be expected from a reasonable person acting in her own interests – i.e. if her conduct amounted to fault as understood under the relevant labor law. In order for counseling’s aim, namely the saving of the unborn’s life, to be able to be viewed openly, counseling’s protection concept requires that a pregnant woman not be made to explain her reasons for wanting a termination to third parties other than counselors or physicians. Openness would in any case be endangered if labor law obliged a female employee in one way or another to reveal to her employer that her inability to work relates to an unjustified pregnancy termination. Under these circumstances, it is also not unfair to place the risk of an employee not being able to work because of a termination on the employer.

336

5. a) The constitutional duty to protect life does not hinder the legislature from making provision for health insurance payments as has been done in § 24b of the Fifth Volume of the Code of Social Security Law in connection with § 200f of the Reich Insurance Code. This also applies to the rules in §§ 218a et seq. of the Penal Code (old version) which are applicable until 15 June, 1993 (cf. II. 1 of the Judgment’s orders).

337

aa) In considerable conformity with the previous provision in § 200f of the Reich Insurance Code, § 24b of the Fifth Volume of the Code of Social Security Law establishes claims for statutory health insurance benefits where there is ” a non-illegal pregnancy termination performed by a physician”, if the termination is performed in a hospital or in another institution provided for this purpose within the meaning of the newly-worded Article 3, Section 1, Sentence 1 of the Fifth Penal Reform Act. A termination is “not illegal” in this context if a general emergency indication is found to exist. § 218a of the Penal Code (new version) describes such a termination simply as “not punishable pursuant to § 218”. The Federal High Court has, however, both in its civil as well as in its criminal jurisdiction, interpreted the grounds for a general emergency indication as justification grounds in the same way as the other indication grounds in § 218a of the Penal Code (new version) (cf. BGHZ 86, 240 <245>; 95, 199 <204 et seq.>; BGHR StGB § 218a, Section 1, indication 1). The Federal Social Court (cf. NJW 1985, p. 2215 <2216>) and social security law practice have proceeded from the assumption – without exploring the details of the criminal law theory regarding the classification of indication grounds – that all terminations which are not punishable under § 218a of the Penal Code (old version) are to be viewed as “not illegal” terminations within the meaning of § 200f of the Reich Insurance Code. The same interpretation should be applied to the identical provision in § 24b of the Fifth Volume of the Code of Social Security Law to the extent that it has been applied in connection with § 218a of the Penal Code (old version) as a consequence of the temporary order dated 4 August, 1992.

338

bb) This interpretation, including its treatment of the grounds needed to support a general emergency indication is, as a matter of principle, constitutionally unobjectionable. Ultimately, doubts about § 218a, Section 2, No. 3 of the Penal Code (old version) sufficiently defining the relevant grounds for emergency situations, do not prevail. Emergency situations are extremely varied, and their significance from the point of view of whether a continuation of the pregnancy is non-exactable or not, depends very much on the circumstances of an individual case. Thus the price for a clearer definition of the grounds for an indication would have been the inability to cover unusual types of cases. In view of this, the legislature must be satisfied with a general description of the grounds and the use of terms which need elaboration. Closer definition must be left to the jurisprudence. Similarly, it can be inferred that potential emergency situations are subject to the requirement that the continuation of the pregnancy would be non-exactable in the same way as this is required in existing indication cases. The inference is apparent from taking into account the provision’s developmental history, including the Federal Constitutional Court’s Judgment of 25th February, 1975 and the interpretation of the wording that a danger must be so serious “that the continuation of the pregnancy cannot be exacted from the woman”

339

cc) Nonetheless, there is little doubt that in the past the grounds needed to support the general emergency indication were often advanced to justify pregnancy terminations and at the same time to found claims for health insurance benefits. This was done although the social conflict necessary to satisfy the degree of non-exactability was not as high as in the case of the other indications. Even the reasoning behind the enactment of the Pregnancy and Family Assistance Act sees in the expanding practical application of the general emergency indication one reason for a new regulation (cf. German Federal Parliament Publication 12/2605 <new>, p. 3).

340

In view of the expanding application of the grounds needed to support the general emergency indication, it is not in keeping with the duty to protect unborn life for the bodies in charge of providing health insurance to automatically assume that the operation carried out by the physician is legal and that they should have to pay for it. They must convince themselves that the assumption of the existence of a general emergency indication is warranted. In doing so, they can use as orientation the principles developed by the Federal High Court (cf. BGHR StGB § 218a, Section 2, Result 1; BGHZ 95, 199 <p. 204 et seq.>). Furthermore, they must be convinced that the provisions concerning counseling (§ 218b of the Penal Code (old version)) and the procedure for ascertaining the existence of an indication (§ 219 of the Penal Code (old version)) have not been ignored. Constitutional deficiencies in implementation do not, however, extend to social insurance law provisions if insured persons have been granted benefits by them in respect of non-illegal terminations. Similarly, these provisions are unaffected by structural failings which are inherent in §§ 218b and 219 of the Penal Code (old version) and which impair them in protecting life. Such deficiencies merely provide a reason for the legislature to make subsequent improvements.

341

b) For a number of other constitutional reasons, Petitioner 1) also objected to claims for health insurance benefits being allowed in the case of terminations based on a general emergency indication (§ 218a, Section 2, No. 3 of the Penal Code (old version)). Prior to the coming into force of the Pregnancy and Family Assistance Act, such claims were founded on § 200f, Sentence 1 of the Reich Insurance Code and later they were based on § 24b, Section 1 of the Fifth Volume of the Code of Social Security Law. Petitioner 1) argues that the social insurance, being a compulsory public body, should not have been burdened with this task because it infringes on its members’ fundamental rights; what is involved is a burden unrelated to insurance. It argues further that the goal pursued by the legislature, namely the elimination of disadvantages to pregnant women finding themselves in a legally recognized conflict situation on the one hand and, in economic distress on the other hand, could just as easily have been achieved in another way which did not affect the member’s fundamental rights.

342

Whether or not this objection is legitimate can remain open. In any case, there is no chance of making benefits based on the previous legal position retrospectively invalid. Nor is it necessary in view of the Bavarian State Government’s application to decide this question pursuant to § 25 of the Act Governing the Federal Constitutional Court in accordance with No. 1 of the order for the period of time that previous law continues to apply.

VI

343

The duty contained in Article 4 of the Fifth Penal Reform Act, in the version of Article 15, No. 2 of the Pregnancy and Family Assistance Act, to ensure an adequate and comprehensive selection of outpatient as well as in-patient institutions for carrying out terminations is compatible with the jurisdictional rules in the Basic Law if the latter are interpreted restrictively. However, the provision breaches the federal principle and is invalid insofar as it designates the highest competent state authorities as holders of the duty.

344

1. If the federal legislature provides that the state must guarantee an adequate and comprehensive selection of both outpatient and in-patient institutions for carrying out terminations, it is at the same time setting a state task.

345

A particular need for the establishment of outpatient facilities can be deduced from looking at the materials which were used during the legislative procedure. Such facilities would allow the suction method of termination to be used, which is gentler and which also saves the woman from having to spend several days as an in-patient (cf. reasoning behind the substantially identical provisions in the legislative drafts German Federal Parliament Publication 12/696 < p. 11 – 12> with reference to Renate Sadrozinsky, Die ungleiche Praxis des § 218, Cologne 1990, p. 43, German Federal Parliament Publication 12/889 <p. 12>). Pregnancy terminations, as evidenced by the new version of Article 3 of the Fifth Penal Reform Act introduced by Article 15, No. 1 of the Pregnancy and Family Assistance Act, are no longer exclusively matters for hospitals. Federal law permits any institution to perform a termination which can guarantee the necessary follow up treatment. In connection with this change in the law, the wording of the new Article 4 of the Fifth Penal Reform Act suggests that it is the state’s task to guarantee that there is a sufficient selection of institutions spread across the state which would allow a woman to chose between an outpatient or in-patient termination.

346

A guarantee of this kind requires development of a comprehensive concept for the whole state. As is already undertaken in relation to hospitals, state wide inquiries would have to be made to determine the expected need and the number of existing institutions. State-wide, infrastructure planning would be necessary whereby institutions whether financed privately, by charity, by the communes or by the state would have to be considered and coordinated. If private or communal hospital operators are to be obliged to run institutions which carry out terminations, then this must be regulated by law. The law must determine administrative standards and powers with sufficient certainty as to satisfy the demands of a state governed by the rule of law.

347

2. a) The jurisdictional powers granted by the Basic Law do not extend to allow federal law to set such a task and provide for such far-reaching goals by statute. Article 74, No. 7 of the Basic Law, which covers the federal government’s concurrent legislative powers, including powers in respect of “public welfare”, supplies a jurisdictional basis only if interpreted restrictively.

348

aa) The term “public welfare” as used in the Basic Law itself should not be interpreted narrowly. It includes preventative measures to cover emergencies and exceptional burdens as well as precautions against extreme neediness (Maunz in: Maunz/Dürig, Kommentar zum GG, Article 74, Marginal Note 106; Rengeling in: Handbuch des Staatsrechts, Vol. IV, 1990, § 100, Marginal Note 155). Restrictions arise, in particular, where the subject matter of a provision overlaps to a large degree with the subject of other jurisdictional powers. There is no jurisdiction pursuant to Article 74, No. 7 of the Basic Law in relation to laws governing the care of the sick, the fight against epidemics or which otherwise principally relate to health services. The decision made in the Basic Law (Article 74, No. 19 and No. 19a) to limit the federal government’s legislative powers in respect of health services, may not be circumvented by broadly interpreting legislative power in respect of public welfare.

349

The wide interpretation described above attempts to use Article 4 of the Fifth Penal Reform Act (new version) to bring about structural changes in the health services in the states. The federal government does not have the legislative power to do this.

350

bb) If looked at as a provision supplying help in an emergency situation resulting from pregnancy, the provision under attack can derive some support from Article 74, No. 7 of the Basic Law.

351

On the one hand, it is in the interests of the protection of life if a physician does not feel pressured on the very first day a woman comes to see him into performing a termination for her because she had to travel far to reach him. Where a woman feels uncertain about her situation, it is likely that the physician will first talk with her and give her advice in conformity with his professional duty as a physician to protect life, and finally he may postpone the termination to a later date. This would once again open up the possibility of the woman deciding in favor of the unborn.

352

On the other hand, it can also be of help to a pregnant woman in an emergency situation if she can manage the journey back and forth to visit a physician (even with public transport) in one day. It will be easier for her to organize the care of her own children during her absence and she only has to miss work for a short period.

353

In this form, the federal legislature can make the creation of institutions all over the country for carrying out terminations come within the meaning of public welfare under Article 74, No. 7 of the Basic Law. However, it is not able to prescribe a more far-reaching guarantee without overstepping the boundaries of jurisdictional power in Article 74, No. 7 of the Basic Law.

354

Nor does the federal legislature have power to make additions which it could use to implement an organizational follow-up concept deemed necessary by it (cf. BVerfGe 22, 180 <209 et seq.>; 77, 288 <301>). The legislative powers pursuant to Article 74, No. 1 of the Basic Law allow support for a protection concept enacted by the federal legislature, which is tailored to the protection of the unborn and the woman, and which has its roots in the penal law. Thus, the federal legislature is allowed to fulfill its constitutional duty to protect life. However, the guarantee of a large number of institutions for carrying out terminations, beyond those already described, cannot be understood as part of a necessary follow-up concept.

355

cc) Article 4 of the Fifth Penal Reform Act (new version) cannot – to the extent it creates an obligation to provide public welfare – be declared invalid and unconstitutional because it is open to a narrow constitutional interpretation.

356

According to the established jurisprudence of the Federal Constitutional Court a statute will not be unconstitutional if an interpretation of it is possible which is at the same time in harmony with the Basic Law and still meaningful (cf. BVerfGE 2, 266 <278>; 69, 1 <55>; st. Rspr.).

357

It is in keeping with the wording of Article 4 of the Fifth Penal Reform Act that it be interpreted as placing an obligation on the state to provide medical assistance for terminations in locations not requiring a woman to be absent from home for longer than a day. If this interpretation is applied, the statute still remains meaningful because it can serve to protect life. Nor are the boundaries overstepped, which the clearly recognizable will of the legislature draws for a constitutionally valid interpretation (cf. BVerfGE 18, 97 <111>; 71, 81 <105>; st. Rspr.), because the statute in any case complies with this will even in the dimensions of the restricted interpretation.

358

3. If the federal legislature entrusts the highest competent state authority with the carrying out of a state task created by it, it is then interfering with the states’ organizational powers and at the same time interfering with their constitutional order. In doing so, it is excluding the organs granted jurisdiction under the state constitutions and preventing the states from themselves dealing with the execution of state tasks – for instance in areas affecting the communes – as well as preventing them from using their own discretion as to how to meaningfully organize the execution of state tasks.

359

a) According to the federal principle, interference by federal powers in the states’ constitutional order is only permissible if this is expressly declared or allowed by the Basic Law. Especially in cases where it draws a line between federal and state jurisdiction, the Basic Law generally refrains from determining which state constitutional organs are to assume jurisdiction in state matters (cf. BVerfGE 11, 77 <85 at p. 86>).

360

This is the position when the execution of federal legislation is made a matter for the states in their own right (Article 83 of the Basic Law): The states – not the state governments or individual state ministries – must regulate the establishment of the authorities and their administrative procedures insofar as federal legislation enacted with Bundesrat consent does not provide otherwise (Article 84, Section 1 of the Basic Law). The principle that the states have power in organizational matters applies without restriction, if a federal rule simply makes provision for a state task to be fulfilled by the states, but does not, however, make individual rules which could be administratively implemented.

361

According to the express directive of Article 80, Section 1 of the Basic Law, the federal legislature is only allowed to authorize “state governments” and not state ministries or the highest competent state authorities, to issue statutory instruments (cf. BVerfGE 11, 77 <86>).

362

b) Article 4 of the Fifth Penal Reform Act (new version) does not satisfy this standard. It establishes the task of providing a guarantee of facilities, which merely amounts to a goal for action for the state. It does not provide individual administrative rules for implementing such goal. The task of providing a guarantee of facilities as specified by federal legislation is not assigned as such to the states, but rather to the highest competent state authorities and thus the state ministries. A rule of this kind is neither expressly provided for by the Basic Law nor allowed by it.

363

c) As such the provision should be declared invalid pursuant to § 78 of the Federal Constitutional Court Act. Article 4 of the Fifth Penal Reform Act (new version) is not open to an interpretation in conformity with the constitution to the extent that it entrusts the highest competent state authority with the performance of a state task. The requirement that a statute should be interpreted in conformity with the constitution does not allow its wording or meaning to be changed or ignored (cf. BVerfGE 8, 28 <34>; 72, 278 <295>). The provision has a precisely formulated, legal content whose interpretation cannot be so construed as to mean that it is the state and not the public authority which is entrusted with performing the task.

364

4. The invalidity of appointing the highest competent state authority to be in charge does not affect the task of providing a guarantee itself, which has been interpreted as being in conformity with the constitution. According to the legal concept contained in § 139 of the Civil Code, the Federal Constitutional Court can restrict itself to declaring part of a law invalid if it is certain that the legislature would have enacted the rest of the law even without the unconstitutional part (cf. BVerfGE 4, 219 <250>). This is the case in view of the importance of the physician who is responsible for medical advice and who, if necessary, undertakes the termination. This rule is also enforceable because according to the division of powers in the Basic Law, the states anyway have powers in respect of the execution and implementation of federal legislation (Articles 30, 70, 83 of the Basic Law) and inasmuch there is no need for a special jurisdictional rule.

365

5. Therefore, it remains up to the states to provide for the necessary medical treatment of pregnant women despite the limitations set by the right of medical practitioners to refuse treatment (Article 2 of the Fifth Penal Reform Act) and the constitutional restrictions placed on the task of providing a guarantee of facilities. Nonetheless, the states are constitutionally bound when exercising their powers in respect of health matters by the duty to protect unborn human life. They must stop additional measures when these serve to actively encourage pregnancy terminations.

F.

366

1. The Judgment in the proceedings for judicial review of the Pregnancy and Family Assistance Act disposes of the application by the Bavarian State Government to the extent that its application for judicial review in proceedings 2 BvF 2/90 is directed at § 218b, Section 1, Sentences 1 and 2 and § 219, Section 1, Sentence 1 of the Penal Code in the version of the Fifteenth Penal Amendment Act. An application for abstract judicial review is only admissible where there is a special, objective interest in clarifying the operation of a rule (cf. BVerfGE 6, 104 <110>; 52, 63 <80>). This interest does not exist here.

367

The Petitioner has only challenged the abovementioned provisions in respect of pregnancy counseling and the ascertainment of the existence of an indication to the extent that these regulate the procedural requirements of a pregnancy termination based on a general emergency indication (§ 218a, Section 2, No. 3 of the Penal Code in the version of the Fifteenth Penal Reform Act). This emerges from the arguments contained in the application dated 28 February, 1990. The grounds needed to support a general emergency indication are thus set aside by Article 13, No. 1 of the Pregnancy and Family Assistance Act which to this extent is not constitutionally challenged. It is true that § 218a, Section 1 of the Penal Code (new version), which is supposed to replace the general emergency indication, is unconstitutional and invalid. Nevertheless, this does not change the fact that a legal provision governing pregnancy termination, which is based on a counseling concept, is as a matter of principle constitutionally admissible. The Senate has ordered transitional provisions under § 35 of the Federal Constitutional Court Act for the period up until the time when the legislature enacts new constitutional rules. It has done so in the belief that for the reasons which led to the amendment to the law in the first place, the legislature will not revert to an emergency indication. The provisions on this will only remain in force for a short transitional period until 15 June, 1993. Thus, in future the Petitioner’s constitutional complaint is deprived of its subject matter.

368

Nor can the sought after determination of unconstitutionality have any legal effect for the period up until 15 June, 1993. The Petitioner correctly pointed out that its own complaints (assuming they are founded) cannot lead to the criticized provisions dealing with pregnancy terminations based on an emergency indication being declared retrospectively invalid. If this were otherwise, it would result in the their not being applicable to emergency indications and thus a situation which was even further away from the Basic Law in its protective effect than the criticized provisions. Consequently, only a duty on the part of the legislature to make subsequent improvements comes into consideration, and until this occurs the criticized provisions have to remain in force unchanged (cf. BVerfGE 61, 319 <356>). Subsequent improvements taking effect in the future, must be ruled out because the old emergency regulation is soon to become inapplicable.

369

2. The case is different as far as the application to declare §§ 200f, 200g of the Reich Insurance Code invalid is concerned, inasmuch as these provisions grant the insured a right to benefits from the statutory health insurance even where a pregnancy termination is based on the general emergency indication. Of course, as from 5 August, 1992 the aforementioned provisions have been rescinded by Article 3 of the Pregnancy and Family Assistance Act and replaced by § 24b of the Fifth Volume of the Code of Social Security Law in the wording of Article 2 of the Pregnancy and Family Assistance Act. The Petitioner has, however, argued that insurance benefits in old cases where terminations were undertaken on the basis of an emergency indication should be calculated using the criticized provisions of the Reich Insurance Code, and furthermore it has alleged that there are still legal disputes pending whose outcome can depend on the validity of the provisions. That means that the necessary objective interest in a decision on the merits continues (cf. BVerfGE 5, 25 <28>; 79, 311 <327>).

370

On the merits the same applies here as applies for § 24b of the Fifth Volume of the Code of Social Security Law to the extent that such provision covers pregnancy terminations performed since 5 August, 1992 on the basis of the general emergency indication (cf. supra E. V. 1. and 5.).

G.

371

In the proceedings for abstract judicial review, the Federal Constitutional Court declares pursuant to § 78, Sentence 1 of the Federal Constitutional Court Act the statute under examination invalid, if it is not reconcilable with the Basic Law. This gives expression to the finding that the statute can not have its intended effect. Consequently, the declaration of § 218a, Section 1 of the Penal Code (new version) to be invalid, results in the provision not developing its effect as a justification ground. § 219 of the Penal Code (new version), which has been declared invalid, cannot be used to measure the content and implementation of counseling.

372

There is a close connection between the contents of §§ 218a, Section 1 and § 219 of the Penal Code (new version) and the statutory definition of a crime under § 218 of the Penal Code (new version) inasmuch as the legislature when implementing Art. 31, Section 4 of the Unification Treaty wanted to base the protection of life during the first twelve weeks on the effectiveness of a counseling concept, and also wanted to exclude pregnancy termination from criminal liability (Article 103, Section 2 of the Basic Law) subject to the conditions of § 218a, Section 1 of the Penal Code (new version). In the territory referred to in Article 3 of the Unification Treaty, it is necessary to ensure that the protection concept does not lose its intended effect as a result of § 218a, Section1 and § 219 of the Penal Code (new version) being declared invalid. It is permissible, and in fact required by the constitutional duty of protection, that the protection concept really have the effect of protecting life. Loss of the intended effect can be avoided by making a transitional order pursuant to § 35 of the Federal Constitutional Court Act for a counseling regulation, which is constitutionally adequate, and which excludes criminal liability under § 218 of the Penal Code (new version) subject to the conditions laid down by the legislature in § 218a, Section 2 of the Penal Code (new version). Article 103, Section 2 and Article 104, Section 1 of the Basic Law do not preclude this course of action. The termination cases whose facts give rise to criminal liability are outlined in the penal provisions of Article 13, No. 1 of the Pregnancy and Family Assistance Act. Thus the conditions and boundaries of criminal liability for a termination are regulated by statute. Although the justification grounds contained in § 218a, Section 1 of the Penal Code (new version) have been declared invalid, this does not affect criminal liability for a termination if the facts of the termination do not fall within § 218a, Section 1 of the Penal Code (new version) or another provision excluding criminal liability. The Senate’s Judgment does not extend liability beyond the boundaries drawn by the legislature. On the contrary, the order made pursuant to § 35 of the Federal Constitutional Court Act under No. II. 2 of this Judgment’s order ensures that those pregnancy terminations whose facts fall within § 218a, Section 1 of the Penal Code (new version) remain excluded from the threat of criminal punishment in § 218 of the Penal Code (new version). This is so irrespective of the declaration that § 218a, Section 1 of the Penal Code (new version) is invalid and remains the case until a new provision is enacted. From the point of view of penal law, the significance of the court order is limited to the fact that the exclusion of criminal liability is no longer brought about by the existence of a justification ground, but instead by exclusion from the definition of a criminal offense. Terminations not undertaken pursuant to the counseling regulation, which are subject to the threat of criminal punishment under Article 13, No. 1 of the Pregnancy and Family Assistance Act , will be punishable according to statute and not according to the Senate’s order based on § 35 of the Federal Constitutional Court Act. This will satisfy the special constitutional requirements of Article 103, Section 2 and Article 104, Section 1 of the Basic Law and be satisfactory because the Pregnancy and Family Assistance Act, whose penal provisions will come into force, contains more far-reaching provisions than those contained in the German Democratic Republic law which has applied until now in the new federal states.

MahrenholzBöckenfördeKlein
GraßhofKruisKirchhof
WinterSommer

Dissenting Opinions

of Vice-President Judge Mahrenholz and Judge Sommer

373

The legal regulation of pregnancy termination grips the innermost area of human life and affects central questions of human existence. One of the fundamental conditions of human life is that sexuality and the desire for children do not correspond. Women have to bear the consequences of this divergence. At all times, and in all cultures, irrespective of differences in moral and religious values, they have looked for and found ways out of the predicament of an unwanted pregnancy. Women have not let themselves be stopped from killing unwanted unborn life by the threat of severe and cruel punishments nor even by the existence of a danger to their own lives. In accordance with the change in their social status, women today largely solve this fundamental conflict by asking themselves whether they see in their personal circumstances a chance that they will be able to responsibly fulfill the tasks of motherhood.

374

Every regulation of pregnancy termination raises questions as to what belongs to the area of inviolable human autonomy and what right the state has to regulate. The legislature touches here on the boundary of whether an area of life can be regulated at all. It can approach the problem of pregnancy termination with a rule which is either better or worse, but it cannot “solve” the problem. In this case the state has lost its ability to be certain that it is passing the “right” legislation. This is shown by the lengthiness of the legislative process which began little more than a decade and a half after the last fundamental reform. It is also reflected in the length of the Senate’s consultations and the fact that it views the consequences to be drawn from the legislature’s duty of protection differently to the First Senate in its Judgment dated 25 February, 1975 (BVerfGE 39, 1 et seq.). The provisions of the Judgment make it possible for the legislature to continue along the path of the counseling solution which it started upon when it enacted the Pregnancy and Family Assistance Act.

375

There is no question that we too, like the Senate, believe that the state has a constitutional duty to protect unborn human life from its very beginning. We agree with the Senate that the duty to protect does not bar the legislature from shifting to a protection concept, which emphasizes counseling the pregnant woman and which avoids the threat of criminal punishment and the ascertainment of grounds needed to support an indication. However, we are of the view that the woman’s final responsibility for the termination in the early phase after she has received counseling (recognized by the Senate as a legislative possibility), is necessary because of the woman’s status under the constitution. To this extent limitations are placed on the duty of protection.(1). In our opinion, for the counseling regulations to provide effective protection for unborn life there must be a clear rule on which terminations are permitted and which are not. Here the Basic Law in any case allows a pregnancy termination following counseling to be justified (II.). It follows from this that § 218a, Section 1 of the Penal Code (new version) is constitutional and that a right exists to benefits from the statutory health insurance for terminations following counseling under § 24b of the Fifth Volume of the Code of Social Security Law (III.).

I.

376

In the opinion of the Senate, a woman has a legal duty during the entire duration of a pregnancy to carry her child to term. Such duty only terminates after counseling if there are exceptional circumstances recognized by statute which satisfy the non-exactability criteria (cf. Judgment, D. I. 2. c). We do not agree with this. Within the constitutionally preset triangle between the woman, the unborn life and the state, the duty of protection, derived from the Basic Law, only places demands on the state and not directly on the woman. Duties placed by the state through its legislation on the woman for the protection of unborn life must at the same time take into account her position under the Basic Law.

377

Every statutory regulation of pregnancy termination must thus be reconcilable with not only the duty of protection for unborn life under Article 2, Paragraph 2 read together with Article 1, Paragraph 1 of the Basic Law, but also with the woman’s right to have her dignity respected and protected (Article 1, Paragraph 1 of the Basic Law), her right to life and physical inviolability (Article 2, Paragraph 2 of the Basic Law) and her right to free development of her personality (Article 2, Paragraph 1 of the Basic Law) (cf. Judgment, D. I. 2. b)). The legislature is obliged to strike an appropriate balance between its duty to the unborn and the woman’s position under the Basic Law. The Basic Law does not indicate what the balance should be. For this reason the legislature is given scope to weigh up considerations and make decisions, but the scope is restricted, on the one hand, by the prohibition on too little protection vis-à-vis the unborn life, and restricted, on the other hand, by the prohibition on too much protection vis-à-vis the woman, and ultimately restricted by the principle of proportionality. If the legislature makes it possible for a woman in the early phase of a pregnancy, following counseling which is a duty whose breach is punishable, to make a responsible decision regarding the continuation of the pregnancy and, in doing so, to disregard the prohibition on pregnancy termination and the legal duty to carry a child to term, then it is not exceeding its scope for weighing up considerations and making decisions. As long as the woman has no legal duty, her conduct is permissible as part of the exercise of her basic rights.

378

1. A pregnancy conflict is different from all other dangers to human life. The woman and the unborn do not face each other as potential “criminal” and potential “victim”. Instead they form a unique entity in the shape of the pregnant woman – a “joined twosome” as it is called in the Judgment. According to the Senate, during the first weeks of pregnancy the new life still belongs completely to the mother and is totally dependent on her. The secrecy attached to the unborn, its helplessness and its unique dependence on its mother would appear to justify the view that the state has a better chance of protecting it when it works together with the mother (cf. Judgment, D. II. 3.).

379

This is really the starting point for describing the woman’s constitutional position under the Basic Law in the early phase of a pregnancy. Further clarification is offered by the statements in the Judgment to the effect that the counseling regulation rests and is allowed to rest on final responsibility lying with the woman for a decision on whether to continue or interrupt her pregnancy. The legislature’s assessment that effective protection for human life can only be achieved by working with and not against the mother, is constitutionally unobjectionable (cf. Judgment, D. II. 2., 3. and 4.; as well as the alternative draft on the Special Part of the Penal Code dated 1970, cf. BVerfGE 39, 1 <10 at p. 11> and the dissenting opinions of Rupp-von Brünneck/Simon, supra, p. 79).,

380

It follows from the above (as clearly indicated by the Judgment) that the counseling regulation is not a frustrated escape from the frustrating failure of the indication solution. The new regulation is much more the result of an altered understanding of the personality and dignity of the woman. The Judgment’s finding that a woman is capable of a responsible choice regarding the continuation or interruption of her pregnancy must, however, have consequences for the interpretation of the constitution. In our opinion, it forces us to solve the collision between the human dignity of the unborn on the one hand, and the dignity of the pregnant woman on the other, by achieving a balance between the two. This did not occur in the Judgment. Constitutionally-speaking the unique comparative problem raised by “joined twosomeness” cannot be dealt with by simply juxtaposing the embryo and the woman. The woman’s own constitutional position is co-determined by her responsibility for another life because she carries such life within her. In saying this, we do not rule out that the other life with its own human dignity also “stands opposite” the woman. These two findings taken together make evident what is so special about the balance which has to achieved between the woman’s position under the Basic Law and the duty of protection.

381

The “joined twosomeness” changes in the course of the pregnancy. Whereas during the first weeks of pregnancy the woman and the unborn – as just stated – still appear as one entity, as the embryo grows their “twosomeness” becomes stronger. This developmental process is also of legal significance. It is true that the woman remains directly responsible, nevertheless she no longer bears final responsibility. The statutory affirmation of the balance between the pregnant woman’s constitutional position and the duty of protection owed the unborn must take into account a developmental element in the pregnant woman’s constitutional status because a pregnancy itself represents a developmental process. As the pregnancy progresses and the unborn grows, the weights in the balance shift. The nature of the woman’s constitutional rights and the state’s role in carrying out its duty to protect should be judged differently during the early phase of pregnancy and at an advanced stage of pregnancy.

382

2. The developmental process requires the legislature to provide different kinds of state protection during the early and late phases of pregnancy. The state fulfills its duty to protect in the early phase by obliging a woman in a conflict situation, under threat of criminal punishment pursuant to § 218 of the Penal Code, to attend counseling whose focal point is the unborn life. After the conclusion of counseling, the woman’s personal responsibility and her ability to reach a final decision come into play. Here the woman is a conversation partner and not an opponent. By not treating the woman simply as a container for the embryo, the state pays respect to the existence of “joined twosomeness”, while fulfilling its special duty to protect. During the late phase of pregnancy the duty to protect defends the embryo’s right to life by providing a threat of criminal punishment. As in other cases of collision, the duty to protect assumes, as a matter of principle, that there will be conflicting legal values. The legislature is left with the task of determining from which week of pregnancy the threat of criminal punishment should apply.

383

Whether or not the state’s exercise of its duty to protect by using counseling has a stronger or weaker effect can only be decided empirically. What is important is that the state should not provide inadequate protection. This was the complaint made against the indication provisions which ultimately led to the conception of the Pregnancy and Family Assistance Act. As is quite justifiably thought by the legislature, protection must be effective (cf. Judgment, D. I. 2. b). We agree with the Senate that the legislature’s assessment of the situation is justified. Namely, that protection is better provided during the early phase of pregnancy by counseling and later on by the penal law.

384

Nevertheless, the final responsibility conferred on the woman after counseling shows that she is given precedence regarding the decision on discontinuing or continuing the pregnancy. If one follows what the Senate says in its Judgment, there is actually no distinction between the two. However, we believe that this is an established constitutional right . As far as we are concerned, the image of “joined twosomeness” is not simply the description of an actual state of affairs, but in truth reflects the woman’s constitutional status. In this case we are not simply dealing with the “woman’s right to free development of her personality” (cf. Judgment, D. I. 2. c) bb), nor a variation of her “right to self-determination”. If that were so, the woman would simply be the “opposite” of the embryo and the latter would not also be a part of her. Contrary to what the Senate believes (cf. Judgment op. cit.), if one assumes that the woman enjoys legal precedence during the early phase of pregnancy, the right to life of the unborn will only come into play if the mother does not interrupt the pregnancy. Here the Senate must ask itself how it can accord the unborn’s right to life significance in its Judgment in a more effective way than through counseling.

385

The legal system has taken into account the developmental process described since the enactment of the Fifth Act to Reform the Penal Law dated 18 June, 1974 (Federal Law Gazette I, p. 1297), which introduced for the first time the twelve-week time limit into the penal law on pregnancy termination. The early phase of pregnancy characterized by that legislation has been retained by the First Senate’s Judgment over and beyond very different forms of penal law, and in each case, it has been done with significant consequences for the limits of the state duty to protect. In addition, all of the legislative drafts preceding the adoption of the Pregnancy and Family Assistance Act which were introduced by fraction or parts of fractions of the German parliament, assumed the existence of this early phase.

386

The enactors of the Pregnancy and Family Assistance Act took into account the woman’s constitutional rights by granting her the chance of resolving her conflict for a limited period of time at the beginning of the pregnancy. In doing so they were fulfilling their duty of protection by placing an obligation on the woman to attend counseling before undergoing a termination. It is only after such limited period of time has elapsed that the woman has a duty to take responsibility for the unborn life. This way a reasonable balance between the fundamental rights involved in a pregnancy conflict is created.

387

3. The term “joined twosomeness ” can be understood as a terminological approach to the right way of comprehending a unique fundamental rights situation. The natural developmental aspect of pregnancy encaptured in the term should be understood in terms of fundamental rights theory – namely as the development from the woman having a final responsibility for the unborn life, which has its roots in the respect for her personality (Article 1, Paragraph 1 read together with Article 2, Paragraph 1 of the Basic Law) to the acceptance of final responsibility for the unborn child by the state. The Dutch Penal Code has logically allowed the elements which constitute a pregnancy termination to end (around) the 24th week of pregnancy and punishes from this time on termination as manslaughter if “it can honestly be expected that it (the fetus) will be able to survive outside the mother’s body” (Article 82a of the Penal Code, cited from Eser/Koch, Schwangerschaftsabbruch im internationalen Vergleich, Part 1, Europe, 1988 at p. 1073). This penal law thus regards the unborn life during the last phase of pregnancy as a person in the complete criminal sense.

388

In contrast, non-exactability (Judgment, D. I. 2. c) bb) as a criterion does not do justice to the uniqueness of the situation. The Senate adheres to it in the shape of counseling. Even without a general emergency indication as a justification ground, the legal system has to make it clear that a pregnancy termination is only permissible in exceptional circumstances where the exactable level of sacrifice for the woman is exceeded. This is in order to provide the necessary guidance for the pregnant woman involved and for general legal awareness regarding the legal duty to carry a child to term and its limits (cf. Judgment, D. III. 1. c).

389

We consider that non-exactability is an unsuitable criterion for providing such guidance. We think it is asking too much of a woman that she should have to subsume her conflict situation under the criterion of an exactable level of sacrifice which uses the two statutory indications for orientation (cf. Judgment, D. I. 2. c) bb). After all the conflict situation associated with an unwanted pregnancy is experienced differently by every woman depending on her physical and psychological state. In such a situation she will only be able to accept an “exactable level of sacrifice” where she sees the chance of, and a future for, responsible motherhood extending beyond the bearing of the child (cf. Article 6, Paragraph 2 of the Basic Law).

390

From the legal point of view, non-exactability as a criterion leads (and misleads) to subsumations whose standards become vaguer the more a conflict situation depends on the woman’s subjective view. Such subsumations can only be influenced by legal rules to a limited extent. It is inevitable that they will be strongly influenced by sociological factors (differences in religion, city/country differences etc.) This made the general emergency indication under the previous law doubtful especially from the point of view of the principle of clarity and definiteness contained in Article 103, Paragraph 2 of the Basic Law (cf. on this too the dissenting opinions of Rupp-von Brünneck/Simon, BVerfGE 39, 68 <91>). No special elaboration is needed on the fact that “self subsumation” by the woman during and after counseling made the difficulties greater.

391

Considerations based on non-exactability as a criterion assume the existence of conflicting legal values of which one is destroyed. Where such assumption is made, the state’s duty to protect can logically only be limited by the justifying emergency in § 34 of the Penal Code. If not, there is a danger of the exactability criterion leading to the woman’s being give “priority” – something which the Senate rejects (cf. Judgment, D. II. 3.). Of the initiators of the statutory drafts submitted to parliament, obviously only the initiators of the so-called Werner draft (German Federal Parliament Publication 12/1179), which was restricted to the medical indication, were aware of the problem. The conversion into law of the idea behind exactability in or since the Judgment of the First Senate in BVerfGE 39, 1 et seq. (in particular in the wording of the general emergency indication in the Judgment’s order) did not match the status of unborn human life as a legal value to the extent that the unborn human life’s position as compared to the woman’s position under the Basic Law was, not taken into consideration.

392

In hindsight, in our view, the limits of the state duty to protect therefore manifest themselves in the grounds needed to support an indication, especially in the general emergency indication, as an expression of the comparative balance between fundamental rights, which are related to each other in a unique way, and as an expression of the recognition of the final responsibility the woman has to protect the embryo in the early phase of pregnancy – even if restricted up to now to circumstances which let themselves, in the opinion of the Federal Constitutional Court and the legislature, be objectified.

393

The Senate does not use the exactability idea in the way the First Senate did – that is to really and effectively distinguish for the protection of life between justified and reprehensible terminations (cf. BVerfGE 39, 1 <58>). In order to keep counseling open, the term non-exactable is no longer juxtaposed against the term exactable continuation of pregnancy leading to punishable termination. This way the exactability criteria changes its legal meaning. By only serving the orientation of the woman making a decision in the case of an emergency indication (which is legally irrelevant) and because termination is in any case illegal, the criterion is only rooted in the moral rather than in the legal sphere. A duty to protect according to certain standards and a practical duty to protect can no longer be combined. To this extent the counseling regulation is at loggerheads with the indication model.

394

5. These considerations cannot make a pregnancy conflict practically- speaking any less severe. They do show, however, why the Judgment of the Federal Constitutional Court of 25th February, 1975 (BVerfGE 39, 1 et seq.) for the first time adopted a approach which drew distinctions, and above all, why the step towards a counseling solution could be justified. The present decision makes this change clear. It treats the rights of the woman and the unborn as being rooted in their human dignity (cf. Judgment, D. I. 2. b) whereas the First Senate regarded this as true only in respect of the unborn life (cf. BVerfGE 39, 1 <41>). In its opinion, the woman only had a right to free development of her personality (Article 2, Paragraph 1 of the Basic Law) so that by using Article 1, Paragraph 1 of the Basic Law for orientation, it was predestined in its decision to give precedence to the protection of unborn life over the pregnant woman’s right to self-determination (cf. p. 43 op. cit.).

II.

395

Notwithstanding the remarks made under I., the Basic Law does not in our view require that terminations carried out in the early phase of pregnancy by a physician following counseling, which are not punishable, should be refused (penal) justification unless a third party has determined that the continuation of the pregnancy would be non-exactable.

396

The justification of terminations which take place following counseling is the indispensable keystone of the counseling regulation. The acceptance of an exceptional situation, which justifies a termination, is reconcilable with the Basic Law even without a third party ascertaining that the preconditions for the exceptional situation exist. (1.). A judgment outside the penal law that pregnancy termination is illegal does nothing in our opinion to help fulfill the state’s duty to protect unborn life (2.).

397

1. The counseling regulation relies on the woman’s assuming final responsibility after attending a counseling session. The woman’s retention of the wish to terminate the pregnancy, even following counseling and a consultation with a physician, amounts, as a matter of principle, to a responsible decision. This decision must be recognized by the legal system, if counseling is to develop the protective effect it is supposed to have. Counseling cannot succeed if a woman’s decision against continuing a pregnancy is excluded from penal sanctions, but nevertheless treated outside the penal law as not justified and made subject to legal disadvantages. In its approach to these cases the legislature may normally attach a justification to the woman’s decision without being in breach of the constitution. There is no need to provide for a third party to make a finding of facts, which would anyway be irreconcilable with the prerequisites for the effectiveness of the counseling regulation. When the counseling regulation takes this form and is consistently put into practice, it is better suited than the previous law to offering effective protection for unborn life generally. This also leads to there being more effective protection for each individual unborn.

398

a) The state can only achieve protection for the unborn during the early phase of pregnancy by making the woman its ally in fulfilling its task of protection. It can only succeed in doing this if it takes her ability to make a responsible decision as well as her special sensitivity at the beginning of a pregnancy seriously. The female counselors who were heard during oral proceedings on the way counseling is in practice, agreed unanimously that women have a natural willingness to protect the unborn growing inside of them and experience their pregnancy conflict as an emergency situation in which they want to act responsibly and conscientiously. They experience their conflict as highly personal and thus protest against having it judged by a third party according to standards of exactability. Consequently, if the legal system wishes to protect unborn life, it must leave the woman room to make a responsible decision – in other words it is not enough to place responsibility on the woman, it must trust her to exercise it. For this reason, we see in the woman’s option to remain silent during counseling an important element of openness. Here our opinion differs to that of the Senate (see Judgment, D. IV. 1. b). If the woman is to make a responsible decision, her decision must be recognized without legal reservations. Only then can she really be open during counseling.

399

b) The starting point for statutory regulation must be that the pregnant woman is, as a matter of course, generally capable of making a responsible decision sufficient to support a justification. She will be aware of the conflict associated with a pregnancy termination at the latest after completing the obligatory counseling and will know that the unborn growing inside of her is of high value. Women do not decide in favour of a termination light-heartedly or without reason (cf. the dissenting opinions of Rupp-von Brünneck/Simon, BVerfGE 39, 68 <88>). It also goes without saying that in deciding whether to continue or terminate a pregnancy a pregnant woman is not unconcerned about right and wrong. As she well knows, in a pregnancy conflict fundamental legal values clash. Even if she decides not to carry the child to term, she would rather be accepted than rejected by others. In having the termination she does not only claim advantages for herself. At the same time she is perhaps turning her back on the expectation of having a child and the wish to actually have it. Whatever the case there is serious self-hurt involved and an operation which affects her very being. All this was confirmed by counselors with practical experience during the oral proceedings.

400

From what has been said above, the legislature may conclude there is sufficient evidence of, and no further need to verify, the fact that there is a conflict situation behind a wish to terminate. In such situations, the interests of the woman which are worthy of protection, make themselves felt with such intensity that the state cannot demand that the pregnant woman still give precedence to the rights of the unborn (cf. BVerfGE 39, 1 <50>). To say this is not to recognize a woman’s unlimited right to “self-determination” nor to abandon the legal protection of unborn life as is shown by the threat of criminal punishment for terminations undertaken without prior counseling contained in § 218 of the Penal Code (new version). The Senate’s opposing view (cf. Judgment, D. III. 2. b) that the legislature may not conclude that an emergency exists because the wish to terminate is maintained even after counseling has taken place, leads to a dilemma: either one does not trust the counseling to have any real influence or one does not trust the pregnant woman to make a responsible decision. The Senate did, however, express its trust in both. There is no third possibility.

401

The danger that there might be some abuse does not change any of this. Every freedom to make a responsible decision, without which protection of life through counseling would be unimaginable, includes the possibility of abuse. A complete defense against abuse would cancel the freedom’s chances of protecting life. Besides, the requirement of indication grounds has also lent itself to abuse.

402

c) In regulating pregnancy termination, the Basic Law does not stand in the way of the admissibility of a special justification based on supporting indications because from the start a termination in the early phase of pregnancy is not subject to the traditional distinction between an act and an omission (cf. § 13 of the Penal Code). It is not sufficiently covered by evaluating it as an injury to a legal value through commission of an act. On the contrary, the woman, in whose person legal values simultaneously unite and conflict in a unique way, relies on the limits on self-sacrifice of personal rights to refuse to assume the position of a guarantor with particularly onerous duties to answer and care for another.

403

2. The constitutional duty to protect demands effective protection of unborn life (cf. Judgment, D. I. 4.). If protection depends on a counseling regulation, this can result in protection not being given because the woman is denied justification for her behavior. This applies to the direct protection of each individual embryo (a) as well as to the indirect protection of unborn human life through the upholding and strengthening of general legal awareness (b).

404

a) The fulfillment of constitutional duties of protection should occur, as does the resolution of conflicts between fundamental rights, by statute. What should emerge from the constitutional duty to protect, vanishes unless it can be reflected in a statute. The counseling regulation contained in the Pregnancy and Family Assistance Act only makes a termination in the early phase of pregnancy without counseling punishable. In this way, the legislature guarantees legal protection for the unborn life – using the penal law – even if it does use a different method to the indication solution. Nevertheless, in respect of the counseling regulation the Senate still considers it necessary that the limits on a woman’s legal duty to carry a child to term be laid down according to criteria based on exactability because this will provide guidance for counseling and for awareness of the law generally (cf. Judgment, D. III. 1. c). In doing so, the judges rely on the First Senate’s Judgment (BVerfGE 39, 1 <48 et seq.>), but they do not take into account that the distinction made there between permitted and forbidden pregnancy terminations was also correctly carried over into the formulation of the grounds needed to support an indication. This function of a decision on exactability does not apply in the case of the counseling regulation as far as general emergency situations are concerned. Moreover, according to the Senate’s view, the statutory standards should not have a bearing on the legal assessment of a termination, which a woman demands and has carried out, following counseling in the early phase of pregnancy. The woman will in any case be denied justification for her action due to the presumed compulsory requirements of the protection concept (cf. I. 4.) supra ). The Senate transfers the legal consequences demanded by it (cf. Judgment, D. III. 2. a) to the interpretation of § 24b of the Fifth Volume of the Code of Social Security Law (cf. Judgment, E. V. 2. b). Irrespective of the fact that the refusal of entitlement to benefits from the statutory health insurance is not a suitable means for expressing legal disapproval, such refusal cannot in any case (as the Senate agreed) directly protect individual unborn life.

405

Indirect protection for the unborn life cannot be achieved through giving the pregnant woman “legal orientation” regarding the protection of life. As emphasized by it, the Senate sees denying individual women the certainty that a termination, undertaken after counseling is sanctioned by the legal system, as a component of protection in the counseling solution (cf. Judgment, D. III. 2. b), cc). We regard this as a retrogressive step vis-à-vis the previous legal position with the indication solution. The refusal of the justification means the woman is made to pay the price for the new protection concept. The legal clarity provided by a rule is replaced for her with a situation in which her action is treated as not allowed, in spite of the fact that she might possibly find herself in extreme distress. That for us conflicts with the fundamental idea underlying counseling and undermines the whole effectiveness of the protection concept (cf. above under 1.). We also do not believe that it is permissible for the Senate to channel the state in the fulfillment of its duty to protect the unborn into constitutional boundaries, whose effects include denying pregnant women an answer to the question of whether they are acting rightly in having a termination. That places them almost in the position of minors within the state’s system of protecting life. In our opinion, there is no more drastic way of weakening a woman’s legal awareness than not letting her know whether what she is doing is legal. But, this is exactly the consequence if a responsible decision made by her is not recognized as justified, in spite of the statutory guidelines which are there for her orientation. This also raises constitutional objections which we do not wish to go into.

406

b) In the Senate’s view it is also necessary to disallow the justification so that the impression is not created in the public’s general legal awareness that a termination taken after counseling is allowed (cf. Judgment, D. III. 2. a). We, on the other hand, believe that in the area of the protection of life, legal disapproval outside the penal law does not independently shape the population’s legal convictions.

407

In our view, legal awareness – particularly in the area of pregnancy termination – arises from individual moral views which are in turn influenced by upbringing, personal fate and social values. A judgment that certain conduct is improper, which is what the Senate has in mind, does not achieve anything in this case. Even penal prosecutions and convictions for terminations under § 218 et seq. of the Penal Code (old version) had little effect. The German parliament has submitted that according to surveys of the Allensbach Institute in 1983, 1987 and 1988, two-thirds of Germans regarded pregnancy termination as allowed. Under the new concept, penal law has a more restrictive area as well as a corresponding clearly-defined, preventative area (cf. § 218 of the Penal Code (new version) on the one hand, §§ 218a, 219 of the Penal Code (new version) on the other). Where law is supposed to have determinative force, what is important are such standards and not social insurance law interpretations. The latter have hardly any determinative force. On the contrary: if as part of a protection concept which relies on counseling and final responsibility lying with the woman, the legislature withdraws the threat of criminal punishment because it has proven itself to be a blunt sword, the public’s legal awareness must then be shaken if legal disadvantages in insurance law replace the threat of criminal punishment intended to protect a legal value of the highest order. Such legal disadvantages must then – in the Senate’s view – bear the burden of the constitutional judgment of impropriety.

408

Even as a matter of fundamental rights doctrine we believe that it is overstretching the constitutional duty of protection to expect it to be able to mould general legal awareness. There is, in addition, a legal question as to whether, and in the event of an affirmative answer, how, constitutional rules with practically no sanctions attached to them, can determine legal awareness. Conclusive findings on this point do not exist and the mere convictions of those offering ideas on this cannot be decisive. We do not even find the Senate’s assumptions plausible. The same rationale could be used for asserting that it must confuse the way the law is generally regarded, if actions taken against a legal value, such as unborn human life, are constitutionally prohibited to a certain degree, but that the limits of the prohibition have two consequences. First, because of the nature of the protection concept they are not able to go so far as to justify the woman’s action and secondly, due to this unclarity, and without regard to the distress in an individual case, the grant of benefits by the statutory health insurance is refused.

409

The First Senate also only referred to the penal rule’s power to increase legal awareness and indeed the “attempt” to achieve better protection for life through a penal rule which allows for the making of distinctions (cf. BVerfGE 39, 1 <65 et seq.>). It also thought that the mere existence of a threat of criminal punishment was capable of influencing the values and behavior of the population (cf. BVerfGE op cit. p. 57; cf. too BVerfGE 45, 187 <254 et seq. >). That, however, is not the point of the statute under examination here. The legislature has abandoned this “attempt” by the penal law. The Senate approves of this too.

410

During the oral proceedings concerning the applications in question here, Prof. Dr. Eser alleged that excluding certain circumstances from the category of punishable behavior instead of describing them as “not illegal”, must be understood in this area as tantamount to a surrender of the value to be protected (cf. too Lencker in: Schönke/Schröder, StGB, 24th ed., 1991, Preliminary Note to §§ 13 et seq., marginal note 17). The First Senate regarded it as unimportant for legal awareness whether the previous § 218a of the Penal Code narrowed the definition of an offense under § 218 of the Penal Code or whether it provided a justification ground or whether it only contained grounds which exclude guilt or a penalty. In any case, the impression must arise that a termination is “legally permissible” (cf. BVerfGE 39, 1 <53>) The Second Senate sees the matter differently. This too shows how little certainty exists in the handling of means for shaping legal awareness. In view of this, in fulfilling its state duty to protect it cannot be the Federal Constitutional Court’s task to either remove certain actions from the definition of an offense or to declare the actions not illegal, thereby deciding on specific questions of penal law doctrine. These are issues for the legislature and the competent courts.

III.

411

1. The Senate is of the view that § 218a, Section 1 of the Penal Code (new version) is constitutionally invalid as a justification ground because it does not make the existence of an emergency or conflict situation, in which carrying the child to term would be non-exactable for the pregnant woman, a prerequisite for a termination nor does it define more closely such situation, and because it does not make the justification dependent on ascertainment by a third party (cf. Judgment, E. I. 2.). For the reasons given under I. and II., we consider § 218a Section 1 of the Penal Code (new version) to be constitutionally valid. To the extent that the provision creates a general justification ground for pregnancy terminations, which occur under the conditions more closely defined in it, it does not contravene the state duty of protection arising from Article 1, Paragraph 1 read together with Article 2, Paragraph 2 of the Basic Law. We agree with the Senate’s Judgment to the extent that it declares § 218a, Section 1 of the Penal Code (new version) unconstitutional on account of its connection with § 219 of the Penal Code (new version), which contains deficiencies concerning the regulation of counseling’s organization and the supervision of counseling institutions (cf. Judgment, E. I. 4. and II. 1.). It is possible that the regulation of the content and goal of counseling required by the Basic Law has not been expressed in § 219, Section 1 of the Penal Code (new version) with the clarity and plainness which would have been appropriate for such regulation (cf. Judgment, E. II. 2.).

412

2. The payment of social insurance benefits for pregnancy terminations carried out by a physician during the first twelve weeks following conception, does not in our opinion contravene the Basic Law. We do not, of course, regard it as constitutionally necessary for the legislature to include the carrying out of non-illegal terminations by a physician, in addition to the carrying out of medically indicated terminations, in its list of services to be provided by the statutory health insurance. If it does do so, which would be in the interests of women’s health, it must define the statutory duty to pay benefits borne by the whole community in a way free from distinctions which are not factually justified. No exception can then be made for pregnancy terminations undertaken pursuant to the counseling regulation. § 24b of the Fifth Volume of the Code of Social Security Law is thus not subject to the restrictive interpretation which the Senate views as necessary (cf. Judgment, E. V. 2. b). As far as we are concerned, this follows from the fact that on the whole pregnancy terminations are allowed following counseling and are to be treated as justified or can indeed be so treated.

413

We also do not share the constitutional concerns expressed by the Bavarian State Government that social insurers, being compulsory associations under public law whose members’ basic rights must be taken into account, may not be burdened with any non-insurance charges. The Senate did not need to decide this issue (cf. Judgment, E. V. 5. b). The provision of benefits by insurers for terminations allowed by the legal system, cannot infringe the basic rights of the insurers’ members who pay contributions, even if those members have contrary ethical or moral convictions (cf. BVerfGE 78, 320 <331>).

414

The view of the majority of the Senate that § 24b of the Fifth Volume of the Code of Social Security Law may not be applied to pregnancy terminations following counseling, should still not be followed even if such terminations – as required by the Judgment – could not be declared justified (not illegal). Inasmuch we agree with the dissenting view of our brother Judge, Böckenförde.

IV.

415

We have doubts on two counts regarding the Senate’s elaborations on the inclusion of the physician in the protection concept of the counseling regulation (cf. Judgment, D. V.).

416

1. Contrary to the Senate’s view (cf. Judgment, D. V. 2. c), the constitutional duty to protect does not in our opinion require that the breach of a medical duty in connection with a pregnancy termination, and in connection with the preceding counseling and supply of information to the woman, be made punishable by the legislature under the penal law.

417

2. The subject matter of these proceedings gave no reason for making the statements in the Judgment whereby it was said that the duty to pay maintenance for a child can never be damage (cf. Judgment, D. V. 6.). Such statements amount to obiter dictum and, in addition, dispense with the necessary examination of the exhaustive argumentation which the VI. Civil Senate of the Federal High Court used to explain the conditions (as limited by it) under which damage to property can occur (BGHZ 76, 249 <253 et seq.>; BGH, NJW 1984, p. 2625 – 2626).

MahrenholzSommer

Dissenting Opinion

of Judge Böckenförde

418

I concur with the essential points in the Judgment, in particular, the statement that non-indicated pregnancy terminations undertaken by a physician during the first twelve weeks following counseling, should be seen as “not illegal” and therefore as allowed (cf. D. III. above). I do not, however, wish to agree with the comments in the Judgment (under E. V. 2. b) partially anticipated in D. III. 1. c), whereby social security benefits for such terminations are ruled out for constitutional reasons. It is for the legislature to decide on this point.

419

The question is not whether such benefits are perhaps constitutionally advisable – probably they are not – but whether they are forbidden from the outset by the constitution.

420

1. I concur with the Senate, for the reasons set out in the Judgment, that terminations undertaken after counseling should be excluded from the threat of criminal punishment, but not generally declared justified (not illegal). As rightly pointed out by the Senate, only certain exceptional circumstances, which place such a burden on the woman as to make her legal duty to bear the child seem non-exactable (cf. D. I. 2 c) bb) – taken up more closely in D. III. 1. c), can lead to regarding pregnancy terminations as justified. Experience does not tell us that this is the case, nor can we assume that such circumstances generally exist, where terminations occur follow counseling. The same applies vice versa: an assumption that terminations following counseling do not generally fulfill these prerequisites is just as unfounded. Consequently, from the point of view of substantive law terminations following counseling form (irrespective of the non-existence of an ascertainment by a third party) an undivided group of justified and unjustified terminations.

421

2. Thus, the question arises in social security law (which is subordinate law) as to how this undivided group of terminations following counseling should be dealt with in regards to the granting of insurance benefits. As stated by the Senate (cf. D. III. 1. c), the protection concept underlying the counseling regulation is based on the idea that generally, and without exception, there should be no need to ascertain the existence of an indication based on an emergency situation. The group of terminations following counseling cannot be divided into illegal and non-illegal terminations. They must be treated uniformly and can only be treated uniformly. The Senate views the constitutional duty to protect unborn human life as requiring that all such terminations – because their legality has not been established nor can be established for conceptual reasons – be treated as not justified and consequently as illegal. Therefore, according to the Senate, they should not eligible for social insurance benefits. Such ineligibility may possibly be the result of legislative enactment. But, that it be made mandatory by the constitution and that every other solution should be considered a breach of the constitution, does not follow either from the duty to protect unborn human life or otherwise from constitutional law. By regarding this as a necessary consequence of the generally required legal disapproval of pregnancy termination and of the abstract principle that the state is generally not allowed to be involved in acts, whose legality is not established, the Senate is disallowing results which are themselves part of the counseling concept.

422

a) The whole group of terminations following counseling is removed from the division into the alternatives of legal and non-illegal. As an indivisible whole, the group presents itself as something different to the alternatives. Nonetheless, the Senate considers it constitutionally necessary to treat them uniformly as illegal with the ensuing social insurance law consequences.

423

This is not made necessary by the principle formulated by the Senate, which I also support, namely that the counseling regulation cannot offer a chance of justification through the general emergency indication, because it dispenses with an indication procedure. This principle lays down that the woman – irrespective of how her action is judged according to substantive law criteria – cannot have her actions considered justified formally. It is, however, not a mandatory result of the principle that terminations following counseling, which lack justification, must also be indiscriminately and irrefutably classified as substantive wrong. Nor must such terminations be so classified when they satisfy the substantive criteria for legality formulated by the Senate itself which include – in conformity with the Judgment of the First Senate in 1975 (cf. BVerfGE 39, 1 <49 – 50>) – exceptional situations determined according to the non-exactability criteria as well as a qualified social emergency situation (cf. D. I. 2. c) bb); D. III. 1. c).

424

The Senate finds the uniform treatment of terminations following counseling wrong because it lets itself be guided not by the conflict situation and the position under substantive law, but alone by the non-existence of a formal justification procedure. However, neither the duty to protect unborn life nor the principle of a state based on the rule of law can require that pregnancy terminations, which comply with the legal system’s substantive requirements, be irrevocably qualified as substantive wrong in respect of all questions arising from the counseling model. With such “consequences” the state based on the rule of law would turn against itself.

425

b) The uniform treatment of terminations following counseling as illegal for social insurance law purposes leads to a general refusal to provide social insurance benefits. The Senate considers this necessary as a consequence of the required fundamental legal disapproval of pregnancy terminations. All those terminations, which according to the Senate’s substantive criteria fulfill the requirements needed to be justified, are thus also made subject to legal disapproval.

426

Legal disapproval of these terminations too seems even more questionable if the Senate (whereby I agree with it) continues to adhere to the indication solution when it comes to the implementation of the counseling concept: Termination of a pregnancy is wrong, as a matter of principle, and forbidden because it is the killing of human life and only special exceptional circumstances, which need narrow definition, will allow it to be seen as justified from a substantive point of view (cf. D. III. 1. c). The counselors are obliged to satisfy themselves that the woman considering a termination is aware of the legal position regarding the extent of the legal duty to carry a child to term and, if necessary, they are obliged to correct any wrong impressions she might have.

427

If women who are considering pregnancy termination are called upon to show responsibility in this way and if they are expected to act according to the requirements of the law, it is then contradictory to demand at the same time a constitutional prohibition whereby in all legal areas, other than penal law, women who have had a termination are to be treated without distinction as having acting wrongly and are to have no chance to defend themselves. Women are supposed to use the legal system’s requirements for the protection of unborn life as orientation, nonetheless even when they do their actions are and remain – by virtue of the constitutional order – wrong. That is not only contradictory – it also affects the woman’s person, her honor and legal status.

428

c) There is also no reason to follow the Senate when it states that for the counseling concept to be effective, it is not necessary that the final responsibility for a termination which is left to the woman be given recognition in social security law (cf. E. V. 2. b) cc). It is not important whether the counseling concept in order to be effective requires the payment of insurance benefits for a termination as a sensible protection measure – there is no denying this. What is, however, important is that the counseling concept, as stated by the Senate, excludes the necessity of determining the legality of terminations other than in the case of the special indications. If this is a counseling concept requirement (cf. D. III. 1. c), then at the same time the additional requirement cannot be inferred that women who undertake a termination according to the substantive criteria spelled out by the Senate, should still be regarded as acting illegally if the Senate is to be true to its own premises (cf. D. III. 3.). A situation exists in which it is not necessary to treat terminations as wrong, although it has not been ascertained that they are justified, because to do otherwise would interfere with a woman’s right to free development of her personality. The Senate recognizes that a woman must be protected from having to reveal having had a termination and the reasons for it outside of counseling and outside of a medical consultation to other persons, such as her employer, since that would risk infringing her right to free development of her personality, and it justifies for this reason the continuation of the payment of wages in the case of terminations following counseling (cf. E. V. 4.). However, is there not at least to the same extent, if not to a greater extent, an infringement of the woman’s right to free development of her personality when all terminations following counseling are uniformly treated as wrong, and she has no chance of changing or questioning this, even if the termination conforms to the substantive requirements of the legal system?

429

d) Although it is necessary to support and strengthen legal awareness regarding the right to life of the unborn, this does not require an absolute constitutional prohibition on the provision of social insurance benefits for terminations following counseling. I do agree with the Senate that strengthening legal awareness and keeping it alive is of great significance for the protection of the unborn, and further that terminations must not be allowed to seem normal in society and be regarded as having been given the legal “go ahead”. Accordingly, it is important to create and support some kind of legal awareness, which is able to distinguish between justified and wrongful terminations pursuant to the constitutional measures outlined. This type of legal awareness is not encouraged, but rather damaged if, on the one hand, its importance for legal orientation is strongly emphasized – as is done by the Senate (which I agree with) – and if, on the other hand, in practice the difference between right and wrong is made irrelevant by the constitution. Even the women who find themselves in an emergency situation, which may justify a pregnancy termination, are irrevocably subjected to legal disapproval and excluded from social insurance benefits. Irrespective of the special situation they find themselves in, these women are subjected to the burden of being treated by the law as though they had acted unlawfully; what seems to be most important of all is that nothing has to be paid.

430

3. My objections to the Senate’s view do not, however, imply that I believe that under the constitution terminations following counseling should be financed. State financing is prevented by the principle, rightly recognized by the Senate, that illegal terminations may not be financed by the state or procured by it because of the requirements applying in a state governed by the rule of law and the protective duty owed towards unborn life. This, however, exposes the dilemma caused by treating terminations following counseling as an indivisible entirety. Such dilemma is a necessary consequence of the counseling concept and it cannot be resolved in favor of one side or the other without there being some suffering. If in respect of the entirety of terminations following counseling no distinctions can be drawn between those which are legal and those which are illegal, by using the points given by the constitution, then it is not possible to clarify these points by a financial regulation in one form or another. Criteria for determining when pregnancy terminations will be allowed and when they will be forbidden can be deduced from the constitutional duty to protect. No information is given on how to treat an indivisible entirety. However, it cannot be a requirement of the duty of protection, and consequently a constitutional requirement, that the dilemma be resolved in favor of one side or the other. On the contrary, the legislature is called upon to find a regulation and make a decision.

431

4. Thus, the essence of the difficulty, which the Senate in my opinion did not adequately deal with, emerges:

432

From the constitutional point of view, the Senate’s critical step lies in its shift to a protective concept in the form of the counseling regulation. As a matter of principle, this shift is possible within the limits of the constitutionally required protection of unborn life because the state’s protective duty is aimed at achieving effective protection of unborn life through legal rules and practical measures. The duty cannot be fulfilled if there is on the regulatory level a uniform rule directed at the strict protection of unborn life, which, nevertheless, and for whatever reason, is not transferred or able to be transferred into really effective protection for individual human life. The reasons for this are set out in the Judgment in detail.

433

If this step is seen as a legitimate way to fulfill the state duty to protect unborn life – irrespective of the details of its implementation – then there must be acceptance of the requirements and conditions for its effectiveness. At the same time such step must be set in relation to other legal positions and views and “be found a place somewhere in the middle”. On occasions that requires compromises, which may appear painful when compared to a complete regulatory concept, but which are nonetheless unavoidable. In this sense the counseling concept has its “costs”. They cannot be recovered later through, for example, financing – without this raising new objections because other important legal positions are then overlooked.

434

If the legal regulation of the termination problem does not simply wish to concern itself at the legislative level with rules strictly aimed at protecting unborn life, whose practical effect is left open, but if it instead also wishes to be concerned with achieving, as far as possible, effective protection for individual, unborn human life, it will always be and will always have to be a kind of “emergency order”. A legal order which concentrates on legal rules only, but does not apply them to provide really effective protection for unborn life, does not contribute to the protection of life and thus does not fulfill the task the law has. However, a legal rule, whose aim it is to be successful in effectively fulfilling the law’s social tasks, must also lay down its own conditions for being effective. These emerge just as much from the human condition as from the particular nature of a society. It cannot be the law’s task, should the occasion arise, alone or primarily to change such conditions. It is possible for the law to make a contribution, but then only to a limited extent.

Böckenförde

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The translations of Federal Constitutional Court decisions are intended for information purposes only; the sole authoritative versions are the official German originals. Although the translations were prepared with the utmost care, the Federal Constitutional Court is not responsible fot their accuracy and completeness.

Decision of 15 November 1993 – concerning jurisdiction of the Court’s two senates

February 20, 2024 3:52 pm / Leave a Comment

Bundesverfassungsgericht (Federal Constitutional Court), Plenum, Decision of 15 November 1993

In accordance with Article 14 (4) of the Law on the Federal Constitutional Court, promulgated in Federal Law Gazette I p. 2492

On 15 November 1993, in accordance with Article 14 (4) of the Law on the Federal Constitutional Court, as published on 11 August 1993 (Federal Law Gazette I, p. 1473), the plenum of the Federal Constitutional Court adopted the following decision:

This translation was first published by Inter Nationes as part of: Law on the Federal Constitutional Court, ed. by Sigrid Born, translated by Martin Fry and produced by Ilona Orthen. Reproduced with kind permission.

A.

With effect from 1 January 1994, in derogation of Article 14 (1)-(3) of the Law on the Federal Constitutional Court (BVerfGG), the Second Panel of the Federal Constitutional Court shall also be competent for:
I. review of specific laws (Articles 13 (6) and (11) BVerfGG) and constitutional complaints involving

  • 1. asylum law;
    2. the Aliens Act and international mutual assistance in criminal matters;
    3. nationality law;
    4. the civil service and the employment status of employees of religious communities whose law is modelled on that of the civil service, including disciplinary law in each case;
    5. military and civil alternative service, including disciplinary law in this field;
    6. criminal law and the law of criminal procedure, except for proceedings in which questions of the interpretation and application of Article 5 or 8 of the Basic Law predominate;
    7. the execution of remand in custody and imprisonment and of custodial measures other than punishment for dealing with serious offences, as well as the ordering and execution of other forms of deprivation of liberty;
    8. monetary fine proceedings;
    9. income tax law, including church tax law;

II.

  • 1. It shall also be responsible for review of specific law and constitutional complaints in which
    • a) the interpretation and application of international law or primary European law is of considerable significance;
      b) questions other than those involving the interpretation and application of Articles 1-17, 19, 101 and 103 of the Basic Law (GG) (also in connection with the rule of law) predominate;
    2. as well as for complaints involving the civil jurisdiction (except for family law and law of sucession) of complainants whose surnames begin with the letters L to Z, and in which questions of the violation of the rights mentioned in Articles 101 (1) or 103 (1) GG predominate.

B.

The present panel competences shall continue to apply in cases pending up to 31 December 1993.

C.

The Federal Constitutional Court decision of 6 October 1982 (Federal Gazette I p.1735), as amended by the Federal Constitutional Court decision of 15 December 1989 (Federal Law Gazette I p.2259), shall cease to have effect as from midnight on 31 December 1993.

© 1996 Inter Nationes. This HTML edition © 1998 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.

BVerfGE 85, 191 – Nocturnal Employment Case (Nachtarbeitsverbot)

February 20, 2024 3:52 pm / Leave a Comment

Nocturnal Employment Case (1992)
85 BVerfGE 191

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

Copyright: Donald P Kommers

[A supervisor in a cake factory was fined for employing women to wrap cakes at night in violation of a statute basically forbidding the employment of women as blue-collar workers (ArbeitMnnen) during the night. After exhausting her ordinary judicial remedies, the supervisor filed a constitutional complaint, arguing that the law offended the equality provisions of Article 3

(I) and (3) of the Basic Law.]

B….

The constitutional complaint is admissible.

The complainant’s allegations show a possible violation of her basic rights. It is true that she is not herself discriminated against by the prohibition of night labour by women. Thus there is no violation of her right to equality under Article 3 (3). But her general freedom of action [guaranteed by Article 2 (I) as construed in the Elfes case] can be infringed if the prohibition … offends Article 3 (I) and (3). In any event, a provision that requires a citizen to treat third persons in a discriminatory manner impinges directly upon her freedom of action….

C. The constitutional complaint is justified. . . . The prohibition of nocturnal employment of women is incompatible with Article 3 (I) and (3). The imposition of a fine on the basis of this unconstitutional law violates the complainant’s general freedom of action wider Article 2 of the Basic Law.

1. The ban on night work for women … offends Article 3 (3).

Under this provision no one may be disadvantaged or favoured on the basis of sex. This paragraph reinforces the general equality provision of Article,.3 (l).by imposing more stringent limitations on legislative judgment. Like the other characteristics listed in paragraph 3, sex basically may not be employed as a basis for unequal treatment. This is true even if the law in question is intended to establish the forbidden inequality for its own sake but to pursue some independent goal.

With respect to the question whether a law unjustifiably discriminates against women, Article 3 (2) imposes no additional restrictions. What Article 3 (2) adds to the discrimination ban of Article 3 (3) is an affirmative command of equal opportunity [Gleichberechtigungsgebot] that extends to the real social world [die gesellschaftliche Wirklichkeit]. The provision that “men and women shall have equal rights” is designed not only to do away with legal norms that base advantages or disadvantages of sex but so to bring about equal opportunity for men and women in the future. Its aim is the equalisation of living conditions. Thus women must have the same earning opportunities as men…. Traditional role conceptions that lead to increased burdens or other disadvantages for women may not be entrenched by stateaction…. De facto disadvantages typically suffered by women may be made up for by rules that favour women….

The present case is concerned not with the equalisation of conditions but with the removal of an inequality imposed by law. [The statute] treats women labourers unequally because of their sex. It is true that the rule is addressed to employers. But the consequences of the rule are felt immediately by female workers. Unlike men, they are deprived of the opportunity to work at night. This is an inequality imposed by law on the basis of sex.

2. Not every inequality based on sex offends Article 3 (3). Gender distinctions may be permissible to the extent that they are indispensably necessary, [zwingenderforderlich] to the solution of problems that by their nature can arise only for women or only for men. But this is not such a case.

(a) The prohibition of nocturnal employment was originally based upon the assumption that women labourers were constitutionally more susceptible to harm from night work than men. Studies in occupational medicine provide no firm basis for this assumption. Working at night is fundamentally harmful to everyone….

(b) Insofar as investigations show that women are more seriously harmed by night work, this conclusion is generally traced to the fact that they are also burdened with housework and child rearing. . . . Women who carry out these duties in addition to night work outside the home … obviously suffer the adverse consequences of nocturnal employment to an enhanced degree….

But the present ban on night work for all female labourers cannot be supported on this ground, for the additional burden of housework and child rearing is not a sufficiently gender specific characteristic. For the woman to mind the house and the children does correspond with the traditional division of responsibility between husband and wife, and it cannot be denied that she often fills this role even when she is as busy as her male partner with outside work. But this double burden falls with full weight only upon those women with children requiring care who are single or whose male partners leave child care and housework to them despite their nightly jobs. It falls equally upon single men who bring up children…. The undeniable need for protection of night labourers, male and female, who have children to bring up and a household to manage can better be met by rules that focus directly on these circumstances.

(c) In support of the prohibition of night work it is also argued that women are subject to particular dangers on their way to and from their place of nocturnal employment. In many cases that is no doubt true, but it does not justify forbidding all women labourers to work at night. The state may not escape its responsibility to protect women from being attacked in the public streets by restricting their occupational freedom in order to keep them from leaving their houses at night. . . . Furthermore, this argument is not so generally applicable to women labourers as a group as to justify disadvantaging all of them. Particular risks might be avoided, for example, by providing a company bus to take employees to work.

3. The infringement of the discrimination ban of Article 3 ( 3) is not justified by the equal opportunity command of Article 3 (2). The prohibition of night work … does not promote the goals of this provision. It is true that it protects a number of women … from nocturnal employment that is hazardous to their health. But this protection is coupled with significant disadvantages: Women are thereby prejudiced in their search for jobs. They may not accept work that must be done even in part at night. In some sectors this has led to a clear reduction in the training and employment of women. In addition, women labourers are not free to dispose as they choose of their own working time. One result of all this may be that women will continue to be more burdened than men by child rearing and housework in addition to work outside the home, and that the traditional division of labour between the sexes may be further entrenched. To this extent the prohibition of night work impedes the elimination of the social disadvantages suffered by women.

II. [The statute] also offends Article 3 (I) of the Basic Law because it treats women labourers [Arbeiterinnen] differently from women in clerical positions [Angestellte] without sufficient reason.

1. The general equality provision of Article 3 (I)forbids the legislature to treat different classes of persons differently if there are no distinctions between them of such type and significance as to justify the difference in treatment….

2. The unequal treatment of the two classes of female employees could be justified only if women in white-collar jobs were less burdened by night work than those in blue-collar positions. But there is no evidence to support this conclusion. The relevant occupational health studies suggest rather that harmful consequences to health are the same for both groups….

3. Nor can the differential treatment of blue-collar and white-collar employees be justified by differences in the rate of nocturnal employment between the two groups of workers. Figures from 1989 show that between February and April of that year some 478,000 female clerical workers (7.6 percent of the total) were engaged in night work. Thus there can be. no suggestion that white-collar women employees are typically spared the burdens of nocturnal employment. In any case women clerical workers are not a group so little affected by night work as to justify the legislature in generalising to exclude them entirely.

3. The immediate consequence of the finding of unconstitutionality is that offences against [the statute] may not be punished. The legislature is under an obligation to adopt new rules to protect workers from the harmfull effects of nocturnal employment. Such rules arc necessary in order to satisfy the objective dimension of the fundamental rights, especially the right to bodily integrity (Article 2 [2], clauseI). This basic right imposes an affirmative duty of protection on the state….

The fact that night work is performed on the basis of voluntary agreements does not obviate the need for statutory protection. The principle of private autonomy that underlies the law of contract can afford adequate protection only to the extent that conditions permit the exercise of free will. When there is a gross inequality of bargaining power between the parties, contract law alone cannot ensure an appropriate accommodation of competing interests. With employment contracts this is typically the case….

To leave [the subject] unregulated . . . would be contrary to the objective dimension of Article 2 (2), clause I….

©1999 Donald P Kommers. HTML edition by Lawrence Schäfer and © 1999 Gerhard Dannemann.

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