Federal Constitutional Court (Bundesverfassungsgericht) – Decision of the First Senate of the 6th June 1989 – 1 BvR 921/85

This case is first published in the German Law Archive courtesy of:

Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz

Translated by Mr Raymond Youngs, Southampton Institute

Facts: § 14 of the Federal Forest Act (BWaldG) of the 2nd May 1975 provides:

“(1) Walking in the forest for the purpose of recreation is permitted. Cycling, travelling in invalid carriages and riding in the forest are only permitted on roads and tracks. Use takes place at one’s own risk.

(2) The states are to regulate the details. They can limit walking in the forest for substantial reasons, in particular protection of the forest, management of woodland and game, protection of forest visitors, avoidance of significant damage or safeguarding other interests of forest owners which are worthy of protection; and treat other forms of use entirely or partially in the same manner as walking”.

§ 27 of the Federal Nature Protection Act of the 12th March 1987 (BNatSchG) contains similar provisions for roads and tracks in the open countryside.

The state of North Rhine Westphalia created a regime in § 50 para 2 sentence 1 Countryside Act of the 26th June 1980 which permitted riding in the forest on the private roads and tracks designated as bridleways by the Road Traffic Order. The complainant unsuccessfully applied for, amongst other things, a declaration by the administrative courts that he could ride on certain tracks in a forest area without being subject to the Countryside Act.

The constitutional complaint against the court decisions rejecting the claim (and indirectly also against § 50 para 2 sentence 1 of the Countryside Act) was dismissed.

Reasons

I.

The complainant’s basic right under Art 2 (1) GG has not been violated by the decisions under challenge and the provisions of § 50 para 2 sentence 1 LG 1980 which is the basis of them.

1. a) According to the principles developed in the case law of the Federal Constitutional Court, Art 2 (1) GG guarantees general freedom of action in a comprehensive sense (constant case law since BVerfGE 6, 32 [36]; in more recent times, for instance [references omitted]. This does not only protect the limited area of development of the personality. It protects every form of human activity regardless of the weight attaching to it in the context of development of the personality (see for instance the decision of a preliminary examination committee in [reference omitted] – feeding pigeons). Apart from a core area of the structure of private life which is absolutely protected and excluded from the operations of public authority [reference omitted], general freedom of action is only guaranteed within the limits of the second half sentence of Art 2 (1) GG and is therefore in particular subject to the reservation of the constitutional legal order [references omitted]. If an act of public authority affecting freedom of action is based on a legal norm, the constitutional complaint can test by reference to Art 2 (1) GG whether this norm belongs to the constitutional order, that is to say is formally and materially in harmony with the norms of the constitution (constant case law since (BVerfGE 6, 32).

Accordingly, the norm is not only to be measured materially against Art 2 (1) GG, but it is also to be investigated for its constitutionality in another way. In this respect it must in particular be examined whether the regime corresponds to the competence provisions of the Constitution [references omitted]. Insofar as it concerns a norm of state law, it must, besides the competence questions, be examined whether, in view of Art 31 GG, the content of the state norm is reconcilable with federal law (which for its part must be competently made) and also with federal framework law [reference omitted].

In a material sense, the principle of proportionality offers a yardstick by which the general freedom of action may be limited [references omitted]. If an existing authorisation is subsequently set aside, the protection of trust required by the principle of the rule of law (Rechtsstaatgrundsatz) must be preserved [reference omitted]. Besides this, the requirements which arise from the principle of the statutory proviso [reference omitted] must be satisfied [references omitted].

b) Doubts have been raised in the [academic] literature right up to the present day in respect of the case law of the Federal Constitutional Court set out above [references omitted]. They are directed in particular against the unlimited inclusion of every form of human activity into the protective area of the basic right, which in comparison to the other areas protected by the basic rights would lead to protection “over and above the value system” [reference omitted]. On the other hand it empties the basic right protection [of its content] because broadening of the area of protection opens up the possibility of extensive limitation [reference omitted]. The narrowing of the area of protection under Art 2 (1) GG which is accordingly recommended could acquire significance in the present case, because it is doubtful whether riding on private forest tracks could be included in development of the personality understood in a narrow sense.

To depart from the case law so far by narrowing the protective area of Art 2 (1) GG is not however justified. Not only would the history of the origin of the basic right norm stand in the way of this [reference omitted]. The comprehensive protection of human freedom of action (alongside the designated rights to freedom) fulfils a valuable function in securing freedom, because in spite of the wide possibilities for limiting it, the basic right guarantees protection of substantial weight in accordance with the standards explained. Any attempt to limit the area of protection by reference to values would accordingly lead to a loss of freedom for the citizen. This cannot be required simply because other basic rights have a protective area which is narrower and of a higher quality. No compelling grounds are otherwise evident for it. For instance limiting it to a guarantee of some narrower personal sphere of life (even though not to purely spiritual and moral development) or according to similar criteria, would bring with it difficult demarcation problems which could hardly be satisfactorily resolved in practice.

2. Riding as a form of human activity falls within the protective area of Art 2 (1) GG but does not belong to the core area of control of one’s private life. It is accordingly not in principle immune from statutory limitations. The provisions of § 50 para 2 sentence 1 LG 1980 which have been indirectly challenged limit the authorisation to ride in the forest in a manner consistent with the Constitution.

As a norm of state law, the provisions are not in contradiction to the federal law provisions of § 14 BWaldG and § 27 BNatSchG.

a) In deciding this question, the Federal Constitutional Court is not limited to testing the interpretation of the federal law provisions by the specialist courts in the initial proceedings according to the principles which have been developed for constitutional court control of application of simple law in judicial decisions [reference omitted]. It would follow from these principles that the testing of the validity of the norm of state law, which must indirectly occur in the decision, could only be undertaken conditionally. If in a further case a specialist court were to interpret the federal norm differently (which it could not be prevented from doing insofar as the Federal Constitutional Court does not itself have to decide on the interpretation) the norm of state law must then be measured against it again, possibly with another result. That would not be reconcilable with the purpose of norm control, even when indirect. The decision as to whether the norm of state law is valid or not must be final; along with this, the standard for testing – here the content of the federal law regime – must also be established. The Federal Constitutional Court has accordingly always, when testing state law against the standard of federal law, within the framework of Art 100 (1) sentence 2 (second alternative) GG, interpreted the federal law norms itself [references omitted]. No objective reason is evident for proceeding otherwise in connection with incidental norm control.

Even within the framework of constitutional complaint proceedings, when the compatibility of a state law norm has indirectly to be tested with a federal law provision, the norm of federal law must be interpreted by the Federal Constitutional Court to determine the standard for the test [reference omitted].

b) The literal meaning of § 14 BWaldG could be understood to the effect that walking in the forest is already in principle permitted by para 1 sentence 1 of this provision; and according to para 2 the states should only be allowed to set limitations to the principle in a normative way for important reasons. The same would have to apply in relation to riding if it were to be seen as a sub-category of walking. But even if riding were to be regarded as an “other type of use” in the sense of § 14 para 2 sentence 2 BWaldG, there would be no change in principle to the outcome. The “equalisation” of other types of use in accordance with § 14 para 2 sentence 2 BWaldG would then refer to the permission in principle as well as to the authority of the states to make exceptions. It could certainly not sensibly mean that the rules in relation to all the types of use would have completely to coincide insofar as other types of use are included. But as far as the systematology of regulation is concerned, the provisions about walking and those about other forms of use ought to correspond with one another.

Such an interpretation of § 14 BWaldG – which is not necessitated by the wording of the provision – is however ruled out by consideration of the framework law character of the provision and the history of its origin.

aa) § 14 BWaldG does not contain any legal norms directly binding on the citizen; the addressees of the norm are the states alone, who are obliged to make corresponding legal norms for the external world. [Details follow].

It is not inconsistent with this that the concept of framework provisions in Art 75 GG ought not be understood in this narrower technical sense, because the federal legislator may also (availing himself of the competence thereby granted to him) make individual directly applicable provisions in addition to the guidelines for the state legislator [reference omitted]. The fact that the provisions of § 14 para 1 BWaldG should apply merely as a guideline for the state legislator is separately emphasised by the wording of § 14 para 2 sentence 1 BWaldG by which the states are to regulate the details. If the content of § 14 para 1 BWaldG was to be directly applicable law, its formulation would have needed to allow the states to make supplementary provisions…

cc) The character of a norm as a framework provision argues in case of doubt that it is calculated to be supplemented and that the legislative competence of the states is not to be thereby limited to any greater extent than the wording of the framework provision conclusively requires [references omitted]. According to this rule of interpretation, § 14 para 1 sentence 2 BWaldG in combination with para 2 sentence 1 of this provision is to be understood as saying that the state legislator may permit riding in the forest only on roads and tracks but within this framework he can regulate the details himself. In a regime which limits riding within the framework provided he must confine himself to the considerations listed for this purpose in § 14 para 2 sentence 2 BWaldG, as the provision in this respect forms a guideline for him. It cannot however be deduced from the framework provision that he is bound to a certain system of regulation, in particular in the sense of a rule-exception relationship. It is accordingly not inconsistent with a regime which, for the protection of visitors to the forest, separates recreational riders from others who seek recreation and allocates the riders to special bridleways, as occurs in § 50 para 2 sentence 1 LG 1980…

3. The provisions of § 50 para 2 sentence 1 LG 1980 further satisfy the standards which arise directly from the Constitution for limitations of the general freedom of action under Art 2 (1) GG.

a) The rule under challenge corresponds with the principle of proportionality.

It aims at a complete separation of “recreational traffic” in the forest in such a way that riders on the one hand and others seeking recreation (especially walkers and cyclists) on the other hand are each allocated to separated ways. As the state government has explained, the legislator wished thereby primarily to avoid the dangers and other interferences which arise for recreational ramblers from encounters with horses and from the breaking up of the ground in the forest associated with riding. He has thereby pursued an aim which is not only legitimate in constitutional law as being for the common good, but the justification for which can also be derived directly from Art 2 (1) GG. In trying, by separating riders and others seeking recreation, to bring different forms of activity of the general freedom of action into an orderly juxtaposition, he has undertaken a task which is founded in the basic right norm itself and is described in Art 2 (1) GG by the reference to the rights of others.

It cannot be established that the legislator in setting this goal has succumbed to any obvious misjudgement. He could rely on experiences obtained when the earlier regime applied. The state government has coherently explained in this connection that encounters with horses cause many people seeking recreation to feel threatened and that situations of serious danger can arise for pedestrians from riders, especially on the narrower forest tracks. The complainant himself has in the end admitted this when he assumes conflicts of interest between riders and others seeking recreation in the neighbourhood of conurbations. His claim that for most people seeking recreation it is a joy to see horses in motion in the open countryside can in any case not apply to a meeting in a narrow space.

The regime is obviously appropriate to attain the protective purpose which it pursues. By allocating riders to special tracks, the communal use of forest tracks by ramblers and riders and the dangers and disadvantages arising from this for ramblers are avoided from the outset.

The division of riding traffic and other “recreational traffic” in the forest also satisfies the requirement of necessity. The Federal Constitutional Court can limit itself here to testing whether the alternatives shown by the complainant and the other alternatives discussed in specialist circles could attain the desired goal in a simpler, equally effective manner but which would restrict the basic rights less perceptibly [reference omitted]. A less severe method by which the two aims pursued (protection of ramblers from danger from animals and maintenance of tracks in an appropriate condition for ramblers) could be attained in an equally effective manner has neither been described by the complainant nor is otherwise evident.

Finally, the regime is proportionate in the narrower sense. In this connection it is of special importance that the two groups whose competing use interests the statute seeks to balance, namely ramblers and riders, can rely equally on Art 2 (1) GG. In the division of recreational traffic the legislator had to regulate the competing claims to use of the available track network in a manner which does justice to the interests of all the participants. It is not open to objection that in doing so he has effected this separation by excluding bridleways from the totality of available private forest tracks and not for instance the opposite: excluding special ramblers’ tracks. In view of the smaller number of riders in comparison with ramblers, and the more intensive use of the ground claimed by the former, no omission can be detected here of the just balancing of interests which the legislator is required to carry out. That applies so much the more as the countryside authorities are expressly required in accordance with § 50 para 7 LG 1980 to provide for a sufficient and appropriate bridleway network.

b) The provision under challenge satisfies the requirements which arise from the principle of the statutory proviso.

A provision which limits freedom of action may not, according to the principle of the legality of administration, be so uncertain that prohibition of an activity is put for practical purposes within the discretion of the administration without possibility of review [reference omitted]. The Federal Constitutional Court in its judgment on the Meetings Act [reference omitted] has stated on the subject of this principle that the legislator may supervise the exercise of authorisations to act by introducing a prohibition with a proviso for permissions [reference omitted]. But he would then have to lay down the prerequisites for the granting of a permission and allow the person entitled to the basic right a legal claim to a permission on the fulfilment of these; because he would himself have to delimit the legal sphere which is open to the possibility of state intervention within the area of exercise of the basic right. He could not leave this to the discretion of the administrative authority [reference omitted]. The principle of legality of administration from the point of view of the statutory proviso [reference omitted] is affected here.

The regime which is being challenged does not correspond to the concept of a prohibition with a proviso for a permission (which the Federal Administrative Court has used in the initial proceedings in respect of the regime of § 50 para 2 sentence 1 LG 1980) at any rate in the sense developed by the Federal Constitutional Court. The goal of a separation of recreational traffic, which is legitimate in constitutional law, would not be attainable by way of a prohibition with a proviso for a permission. The classification of individual tracks presupposes on each occasion a decision of political regulation. This is not susceptible to concrete prior normative determination and to the granting of a legal claim to the allocation of certain tracks to riders. The eventual detailed decision as to which forest tracks should be available as bridleways on the basis of regulation of recreational traffic as a whole in the forest is shown (according to § 50 para 2 sentence 1 in combination with § 50 para 7 sentence 1 LG 1980) to be in the end an act of state (highway) planning. The state legislator has chosen for the regime relating to riding in the forest a basis which is already familiar for other norms for certain activities associated with the freedom of movement – as for instance vehicle traffic. Those kinds of planning acts cannot be normatively determined beforehand by way of a conditional programme. However, the requirement for a methodical balancing exercise offers in this respect a proper standard which permits the public interests arising from the actual relationships and the private interests of the owners affected to be brought into a just balance. The planning and realisation of a bridleway network is at issue here and this is expressly made the duty of the countryside authorities by § 50 para 7 sentence 1 LG 1980. No other considerations apply for it apart from those which apply for the planning of other traffic routes like for example public roads [reference omitted]. In deciding which private forest tracks should be identified as bridleways and therefore, according to the plan of the statute, at the same time withdrawn from ramblers, the authorities which are appointed for this purpose must look carefully at a multitude of legitimate interests. As a rule, at least the interest of riders in a bridleway network which is as comprehensive as possible, the interest of ramblers which is opposed to this and besides this the interest of the landowner in the maintenance and his own undisturbed use of his track will be affected; and they are currently to be balanced against each other. The relevant weight of each single one of these interests can show itself to be different from case to case.

Proper management of these conflicts is beyond detailed regulation by statute. Such regulation can accordingly not be required, even for constitutional reasons, from the point of view of the statutory proviso. This is because this principle ought not to lead to the legislator having to abandon a regime which he considers (and is permitted to consider) to be required for the attaining of a goal which is legitimate in constitutional law [reference omitted].

c) From the point of view of protection of trust, no constitutional law objections exist against the regime under challenge. The legislator is in principle authorised within the framework of what is proportionate to narrow already existing limits of the general freedom of action. The earlier regime of the LG 1975, which permitted riding on forest roads and tracks in principle, only applied for five years. It was preceded by a regime under which riding in the forest was forbidden in principle (§ 4 letter e of the State Forest Act, 1969). Even further back in time, no authority for riding in the forest was granted by statute. Nor can a customary law authorisation to ride – which incidentally the federal legislator as well as the state legislator would have been able to abolish within the framework of each of their competences in the matter – be established [reference omitted]. In the face of the disadvantages which mixed recreational traffic, including riders, brings with it, it has to be taken into account that the legislator, through the experiences obtained from the statute of 1975, could regard himself as obliged to alter the regime again to the disadvantage of the riders. Riders could not trust in the assured continued existence of this regime, in view of the short period during which all forest tracks were made available to them by statute. The grounds which legitimate the regime under challenge in constitutional law would anyway be sufficient to prevail over any possible need for protection of trust…

Dissenting judgment of Judge Grimm to the decision of the First Senate of the Federal Constitutional Court of the 6th June 1989 – 1 BvR 921/85 –

Riding in the forest does not enjoy any basic right protection. Basic rights distinguish themselves from the multitude of other rights by the fact that they protect the integrity, autonomy and communication of the individual in his basic relations. It is because of this fundamental importance of the subject matter of their protection for an order which is founded on human dignity that they are elevated above the mass of rights and furnished in constitutional law with increased guarantees against public authority and in particular have binding effect on the legislator. Views can change according to historical circumstances over what in detail deserves the increased protection of the basic rights. It is however neither historically nor functionally the purpose of the basic rights to put every conceivable kind of human conduct under their special protection.

Art 2 (1) GG does not provide such a complete basic right protection for every kind of human activity. Art 2 (1) GG protects not the freedom of the individual to do or not to do what he wants but the free development of the personality. This basic right therefore certainly has a wide area of protection, but not a limitless one. Individual behaviour which, in the absence of special basic right guarantees, claims the protection of Art 2 (1) GG must possess a greater relevance for the development of the personality, comparable to the protected interests of the other basic rights. Where this relevance is lacking, the reason for the special protection effected by the basic rights is also lacking and it is left to the rules and remedies of ordinary law.

Contrary to the broad view, the history of the origin of the Basic Law does not indicate that anything else was intended by Art 2 (1) GG. It is true that the editorial committee of the Parliamentary Council following the formulation of the Herrenschiemsee draft had suggested the version: “Everyone has the freedom to act and not to act where the rights of others are not violated and the constitutional order and the moral law are not contravened”. This formula did not however become constitutional law. The unspecific freedom of action was abandoned in favour of the version of the principal committee in which conduct of any kind by the individual was replaced by the “right to free development of the personality”. This was because the formulation of the editorial committee did not, according to the view of the majority, express what was intended in appropriate linguistic terms [reference omitted].

When the Federal Constitutional Court in the Elfes judgment (BVerfGE 6, 32) changed this back into the authorisation to do and not to do what one wants, two motives seem to have been decisive for this. Firstly there was the circumstance that a decision had to be made about a claim to a significant freedom, which could not be classified under any special basic right – in particular not Art 11 GG – but which enjoyed basic right protection if atall only as part of the development of the personality. Secondly there was the circumstance that the court in interpreting Art 2 (1) GG saw itself as faced with the alternatives of understanding free development of the personality as covering either “human freedom of action in the widest sense” or “the protection of a minimum amount of this freedom of action…without which the human being cannot develop his essential nature as an intellectual and moral person” [reference omitted].

However, the interpretation options are not limited to these alternatives. The justified rejection of the so-called “personality kernel” theory (which was advocated at that time principally by Peters [reference omitted] and which largely approximated the protective area of Art 2 (1) GG to that of Art 1 (1) GG) is not automatically a decision in favour of the general freedom of action. Between the inviolable kernel of the personality on the one hand and the general freedom of activity on the other there is an area of freedom for activities which have not found the protection of special basic rights but are nevertheless of considerable importance for the development of the personality. Here Art 2 (1) GG finds its peculiar field of application [reference omitted].

The Elfes judgment itself gives an instance of this. For the court here it was not so much a question of using the general freedom of action as a basis. It was more a matter of derivation of a concrete freedom right, namely the freedom to travel abroad, and the general freedom of action only formed a necessary slogan on which to base it. In the subsequent case law, the court has filled Art 2 (1) GG little by little with a number of concrete guarantees of freedom which as a rule were not traced back to the general freedom of action but were obtained independently of this by reference to Art 1 (1) GG. It was here primarily a question of the general right of personality with its different areas of guarantee [references omitted]; later in further development of the right of personality, a question of the right to self-determination in relation to information [reference omitted] and most recently the right to knowledge of one’s own descent [reference omitted].

The Federal Constitutional Court has always taken into account the relevance of these concrete basic right situations derived from Art 2 (1) GG to the development of the personality when finding a basis for them [reference omitted]. In this way it succeeded in keeping abreast of new kinds of dangers for the development of the personality, in particular where they proceed from scientific and technical progress. Art 2 (1) GG shows itself here in its unspecific formulation as the basic right which is especially open for adapting the protection of the personality to changing conditions and which is therefore able to close gaps which remain inaccessible to the special freedom rights [reference omitted]. Art 2 (1) GG can in this respect be regarded as the “fall-back” basic right; but not as a fall-back basic right which places every imaginable human activity which is not already protected by a special basic right under basic right protection. It is only a fall-back basic right for the “constitutive elements of the personality” [reference omitted] which have not found the protection of special freedom rights.

Besides these concrete rights of personality, the Federal Constitutional Court held fast to the general freedom of action as an interest protected by Art 2 (1) GG, without always making clear that it is a question of two quite different strands of one and the same basic right. Of these two, only the concrete “personality right” strand deserves the description of basic right. The general freedom of action is in contrast not amenable to specifically basic right protection [reference omitted]. If every form of conduct enjoys basic right protection, without this meaning that it should be permitted without limits, the general guarantee of freedom changes into the right not to be unlawfully hindered by the state in doing what one wants to do. But in this character Art 2 (1) GG subjectivises the principle of the rule of law (Reschtsstaatprinzip) which is only objectively guaranteed in the Basic Law and becomes in truth a general freedom to interfere.

The consequences of this understanding of the basic right exist principally in the area of constitutional procedure. If Art 2 (1) GG guarantees the general freedom of action within the framework of the constitutional order, a constitutional complaint based on this basic right has a tendency to widen to a general control of norms. Since the Elfes judgment, the Federal Constitutional Court includes within the constitutional order in the sense of Art 2 (1) GG every legal norm agreeing with the constitution (BVerfGE 6, 32 [37f.]). On this ground where there are interferences with the general freedom of action, the underlying norm in its full extent (and therefore including the setting of state goals, the remaining basic rights and all the provisions about competence and procedure) must be measured against the Constitution.

This kind of breadth of control occurs with every permissible constitutional complaint because the individual only needs to put up with interferences with basic rights which are based on statute; and only those statutes which are formally and materially in harmony with the Constitution count as a sufficient basis for interventions. But constitutional complaints outside Art 2 (1) GG can only be raised in defined, thematically limited areas and as a rule only cover statutes which have effect on the basic right concerned. In contrast, a basic right to do as one pleases which is unlimited as to its protected area does away with this limitation. It allows the fact that the complainant is personally affected by an onerous state act to suffice for the opening up of the full scope of norm control by means of the constitutional complaint.

This trivialisation of the basic rights which is not provided for by the Basic Law, and the associated escalation [in the use] of the constitutional complaint should not be made retrospective. That seems so much the more likely, as Art 2 (1) GG has been enlarged in the meantime with a number of concrete freedom guarantees and remains open for any necessary additional protection of freedom. There is no need to anticipate losses of freedom of the kind the Senate fears, because the general freedom of action only exists within the framework of the constitutional order and will thus not be able anyway to widen the area of individual freedom beyond the statutory limit in areas of activity which are without importance for the development of the personality. Thus there only arises for the complainant who alleges a violation of Art 2 (1) GG a burden of proving that he was limited not in relation to just any conduct but in relation to conduct relevant to the personality.

The determination of the boundary between freedom to engage in activities which are important for the development of the personality and those which do not form part of it then becomes of decisive importance. The fact that abandoning basic right protection for the general freedom of action makes this kind of boundary drawing necessary is certainly no objection to the respecifying of Art 2 (1) GG. This is because determinations of boundaries are necessary in relation to the area of protection of every basic right and can in certain circumstances cause substantial difficulties. The guarantee of artistic freedom in Art 5 (3) GG is not the only demonstration of this. If with precisely these difficulties in view and in the interests of an effective basic right protection, the definition of the protected area is handled liberally in the constitutional case law, there is nothing against proceeding in the same way in relation to Art 2 (1) GG. But there is no ground here for letting it completely drop.

Clues for the drawing of the boundary arise principally from the named freedom rights. The protected interests which are included in Art 2 (1) GG must be equal in significance for personal freedom to the protected subject matter to which these basic rights relate. In essence it will always be a question here of areas of life or types of conduct of the kind that, if the state could regulate them at will, the autonomy of the individual would be endangered and a system thereby fostered which could no longer claim to be founded on respect for human dignity. A definitive enumeration [of these] would founder if a change occurred in the conditions for development of the personality [reference omitted]. The fact that nevertheless no requirements are raised which are not fulfillable has been shown by the Federal Constitutional Court by the concretisations of Art 2 (1) GG which it has undertaken so far. Other claims to freedom which are to be brought within the protection of Art 2 (1) GG must also be measured by this standard for their basis.

Riding in the forest is as little able to fulfil these requirements as for instance feeding pigeons in public places [reference omitted]. It is true that the right to free development of the personality should doubtless not end where leisure time begins. It finds increasingly important possibilities of realisation here in the face of the shortening of the working week and the working life simultaneously with a lengthening of expectation of life. But this does not mean that every activity which can be classified under this sphere of life is under basic right protection. The development of the personality of the individual does not depend on the possibility of riding in the forest. The constitutional complaint is not therefore to be rejected because §§ 50 and 51 of the Countryside Act of North Rhine Westphalia, against which it is indirectly directed, are reconcilable with Art 2 (1) GG, but because they do not affect the protected area of this basic right at all.

©1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1998. HTML edition by Lawrence Schäfer, © 1999 Gerhard Dannemann.

Federal Constitutional Court (First Senate) 14 May 1985, 1 BvR 233, 341/81

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

BVerfGE 69, 315
Translated by Mr Raymond Youngs, Southampton Institute

Facts: An atomic power station was to be built at Brokdorf. Citizens’ action groups appealed for a large scale demonstration on the 28th February 1981 against it. The police expected that amongst the 50,000 or so demonstrators some would intend to use force, including violent occupation and damage to property at the site. Before they were notified of this meeting, and five days before the demonstrations were to take place, the competent authority issued a general ban on meetings in respect of an area of about 210 sq kilometres and ordered its immediate implementation. When the organisers later notified the competent authority, it referred to the ban which had already been issued. Some of the organisers objected and applied to the administrative court to restore the deferral effect which such objections have. This was refused on appeal by the higher administrative court.

The constitutional complaints against the order for immediate implementation of the ban and against the decisions of the higher administrative court were partially successful.

Reasons:

B.

The constitutional complaints are admissible.

The complainants have been prevented from holding authorised demonstrations in the places submitted to the authority at the date planned by the immediate implementation of the demonstration bans and their judicial confirmation. The complainants consider these acts by public authority to be an interference with their legal position protected by the basic rights. As they have challenged these acts by court action and as their legal remedies in this respect have been exhausted, the statutorily prescribed prerequisites for the admissibility of their constitutional complaints, which have been submitted within the stipulated period, are met [references omitted]. The fact that legal remedies in the proceedings in the main issue are not exhausted does not, according to established case law, prevent the admissibility of their constitutional complaints. This is because the interim proceedings are according to § 80 para 5 of the Administrative Courts Order legally independent of those proceedings [references omitted]…

2. Nor is the need for legal protection (a necessary requirement) absent from the constitutional complaints. In particular, this is not lacking just because the date for the demonstration has gone by and the [order for] immediate implementation of the ban therefore has no subject matter. According to the established case law, a need for legal protection continues to exist even after the attainment of the objective pursued by the constitutional complaint if there would otherwise be no clarification of a question of constitutional law of fundamental importance and the interference concerned an especially significant basic right [references omitted]. It follows from the considerations so far that these prerequisites are present.

Such an interest deserving protection can also be confirmed for the first complainants even though they have raised no claim in relation to the main issue after dismissal of their objection. There were originally no doubts of any kind as to the admissibility of their constitutional complaint, which had been raised in the night before the planned demonstration (compare the decision about the request for an interim injunction [reference omitted]). Their need for legal protection could therefore only have ceased to exist as a result of later circumstances. But a decision must in any case be made in the proceedings of the second complainants about the objective pursued by their constitutional complaint; there is therefore no cause for placing strict requirements on the continued existence of the need for legal protection for the first complainants as a precondition for admissibility [references omitted]. The proceedings are – as mentioned – to be seen as legally independent in accordance with § 80 para 5 of the Administrative Courts Order for the purposes of the constitutional court examination and the first complainants have an interest in the constitutional court elucidating the conditions under which the immediate implementation of the ban on the demonstration might be ordered. Therefore the mere circumstance that they have raised no administrative court complaint in the main issue after the passing of the date for the demonstration does not compel one to assume that the interest in legal protection which was originally present has subsequently ceased to exist.

C.

The constitutional complaints are well founded insofar as they are directed against the fact that the higher administrative court on the complaint of the additional parties summoned confirmed the immediate implementation of the demonstration ban beyond the scope approved by the administrative court. The provisions of the Meetings Act which are indirectly challenged withstand a constitutional court examination in the final outcome, in so far as these provisions are relevant for the decisions under challenge.

I.

The standard for examination in constitutional law is the basic right of freedom to meet (Art 8 GG).

1. The measures challenged in the initial proceedings and the statutory provisions on which they are based restricted the complainants in the freedom to hold the planned demonstrations. This freedom is guaranteed in Art 8 GG, which protects meetings and processions – in contrast to a mere crowd or public entertainment – as an expression of communal development, intended for communication. This protection is not limited to events at which there will be arguments and disputes; it includes diverse forms of communal behaviour extending to non-verbal forms of expression. It also incorporates those that have the character of a demonstration, for which the freedom to meet is claimed for the purpose of expressing opinions in a striking or sensational way. As there were no grounds in the initial proceedings for saying that the expression of certain opinions – possibly in appeals, speeches, songs, or on banners – was to be obstructed, no examination is needed as to the way in which the basic right of freedom of opinion could be used additionally to Art 8 GG as the standard for testing measures taken against demonstrations.

2. Art 8 GG, as a defensive right which also (and principally) benefits dissident minorities, guarantees to those entitled to the basic right the right of self-determination as to the place, point in time, type and content of an event. At the same time it forbids state compulsion to take part in a public event or to stay away from it. In this sense, special status is due to the basic right in a free state; the right to meet with others without being obstructed and without special permission, was always regarded as a symbol of the freedom, independence and maturity of the self-confident citizen. But in its application to political events, the guarantee of freedom embodies at the same time a basic policy decision which in its significance goes beyond protection against state interventions and extends to the unobstructed development of the personality. In the Anglo-American legal circle the freedom to meet, which was rooted in natural law concepts, had been understood at an early stage as an expression of a people’s sovereignty and accordingly as the democratic right of the citizen to participate actively in the political process [references omitted]. This significance of the freedom is likewise emphasised in the statements of the Federal Minister for the Interior, the police trade union and the Federal Association for Citizens’ Initiatives on Environmental Pollution. In the meantime it has been generally recognised in the academic literature. [Details are given].

a) In the constitutional court case law, which has not yet occupied itself with freedom of assembly, freedom of opinion has ranked for a long time as one of the indispensable and basic functional elements of a democratic community. It is regarded as the direct expression of the human personality and as one of the highest ranking human rights, which is constitutive for a free democratic state order. This is because it makes possible the continual intellectual debate and the conflict of opinions as the vital element of this form of state (see BVerfGE 7, 198; [references omitted]). If freedom of assembly is understood as freedom for collective expression of opinion, in principle the same considerations apply to it. It is not inconsistent with this that especially with demonstrations, the argumentative factor which as a rule characterises the exercise of freedom of opinion takes second place. The demonstrator, by expressing his opinion when physically present, in full public view, without the interposition of the media, also displays his personality in a direct way. In their “ideal type” form, demonstrations are the communal physical manifestation of convictions. In them the participants on the one hand experience confirmation of these convictions communally with others. On the other hand they outwardly – through their mere presence, the way they appear and associate with each other or the choice of place – take up a position in the real sense of those words and testify to their point of view. The danger that such expressions of opinion can be misused demagogically and emotionalised in a questionable manner can be no more decisive for basic evaluations in the area of freedom of assembly than it is in the area of freedom of opinion and freedom of the press.

b) The basic significance of freedom of assembly is particularly evident when the special nature of the process of formation of political will in a democratic community is considered. It is stated in the Communist party judgment in relation to the free democratic order that it proceeds on the basis that the existing relationships of state and society which exist, and have existed, can be and need to be improved; this poses a never ending task which must be resolved by a decision of political will which is continually renewed (BVerfGE 5, 85 [197]). The way to form this decision is described as a process of “trial and error” which by continual intellectual debate, reciprocal control and criticism give the best guarantee for a (relatively) correct political course as a resultant and a balance between the political powers operative within the state [references omitted]. The later judgment about party financing follows on from these considerations and emphasises that in a democracy the formation of opinion must proceed from the people to the organs of the state and not the other way round. The right of the citizen to participate in forming political will does not only express itself in voting in elections, but also in exerting influence on the continual process of formation of political opinion, which in a democratic state must take place freely, openly, without regulation and in principle free from state intervention [reference omitted].

Citizens have taken part in this process to differing degrees. Large associations, wealthy donors and the mass media can exercise considerable influence, whilst the citizen feels himself to be powerless by comparison. In a society in which direct access to the media and the chance of expressing oneself through them is limited to a few, there only remains to the individual, besides organised co-operation in parties and associations in general, collective exertion of influence by using the freedom of assembly for demonstrations. The unobstructed exercise of the freedom not only counteracts the consciousness of political impotence and dangerous tendencies to a sullen attitude toward the state. In the end it also lies in the well understood public interest because in the parallelogram of powers involved in forming political opinion in general, a relatively correct resultant can only develop if all vectors are developed fairly powerfully.

Besides all this, meetings are pertinently described in the academic literature as an essential element of democratic openness: “They offer…the possibility of exerting public influence on the political process, for the development of pluralist initiatives and alternatives or even for criticism and protest…; they contain a piece of original un-harnessed direct democracy which is appropriate to preserve the political operation from paralysis in its busy routine” [references omitted]. In particular in democracies with a parliamentary representative system and few rights of participation by way of referenda, freedom of assembly has the importance of a fundamental and indispensable functional element. Here in principle – even with decisions with serious consequences for everyone which are not simply reversible after a changeover of power – the majority principle applies. On the other hand, the influence here of even the majority of voters between elections is really limited; the power of the state is exercised by special organs and administered by a superior bureaucratic apparatus. In a general sense, decisions made by these organs on the basis of the majority principle gain in legitimacy the more effectively minority protection is guaranteed; the acceptance of these decisions is influenced by whether the minority could exercise sufficient influence beforehand on the formation of opinion and will [reference omitted]. Demonstrative protest can in particular be necessary if the representative organs do not recognise possible abuses and mistakes or do not recognise them in time or accept them out of regard to other interests [reference omitted]. In the academic literature the stabilising function of freedom of assembly for the representative system is pertinently described. It permits the discontented to express and work off their displeasure and criticism publicly. It functions as a necessary condition of a political early warning system, indicates potential for trouble, makes lack of integration visible and thereby also facilitates adjustments to the course of official politics [reference omitted].

II.

The provisions of the Meetings Act which were decisive for the initial proceedings satisfy the constitutional law requirements if they are interpreted and applied taking into consideration the fundamental importance of freedom of assembly.

1. In spite of its high rank, freedom of assembly is not guaranteed without reservation. Art 8 GG merely guarantees the right “to assemble peacefully and without weapons” (see on this III.3.a below) and furthermore makes this right subject to the statutory reservation for events in the open air. The Constitution thereby takes into account the fact that for the exercise of freedom of assembly in the open air there exists, because of the contact with the outside world, a special need for regulation (ie in organisational and procedural law) on the one hand to create the realistic prerequisites for exercise and on the other hand to preserve sufficiently the conflicting interests of others.

Whilst the Weimar Constitution expressly provided in Art 123 that meetings in the open air could “be made the subject of a duty to notify by a statute of the Reich and in case of direct danger to public safety be forbidden”, the Basic Law contents itself with a simple statutory reservation which is apparently unlimited as to its subject matter. But this does not mean that the effective power of this basic right guarantee remains limited to the area which the legislator leaves to it by respecting its essential content. As the Federal Interior Minister has pertinently stated, the same applies as with freedom of opinion. This, it is true, has its limits according to the wording of the Constitution in the boundaries of general statutes, but the scope of it may not be qualified at will by simple statute law (fundamentally, on this subject, BVerfGE 7, 198 [207f.]; [reference omitted]). In all the regimes creating the limits, the legislator must have regard to the basic constitutional law decision which has been discussed and which is embodied in Art 8 GG. He may only limit the exercise of the freedom of assembly for the protection of other legal interests of equal value and strictly preserving the principle of proportionality.

If authorities and courts interpret and apply the statutory norms devised by the legislator limiting the basic right, the same will apply as for the interpretation of provisions about the limiting of freedom of opinion (see on this BVerfGE 7, 198 [208]; [reference omitted]; on the right of assembly [reference omitted]). A necessity for interventions limiting freedom can arise in the area of freedom of assembly from the fact that the demonstrator by exercising it interferes with the rights of third parties. Even in relation to such interferences the state organs must always interpret the statutes limiting the basic right in the light of the fundamental importance of this basic right in a free democratic state and limit themselves in their measures to what is necessary for the protection of legal interests of equal value. Measures by authorities which go beyond the application of statutes limiting the basic right and perhaps unreasonably impede access to a demonstration by obstruction of approaches and slow preventative controls, or change their unregimented character free from state interference by excessive observations and registrations [reference omitted] would be irreconciliable with these requirements.

2. Out of the provisions of the Meetings Act (which the legislator has enacted by virtue of the statutory reservation in Art 8 (2) GG), only the duty of notification regulated in § 14 para 1 and the requirements for dispersals and bans contained in § 15 are significant for the decision in the initial proceedings. The constitutional law provisions about the period for notification and giving the name of a responsible leader need no examination; neither the administrative authority nor the courts based their decisions on these provisions.

a) The duty of notification regulated by § 14 para 1 of the Meetings Act was expressly provided for in the Weimar Constitution as a permissible limitation of the freedom of assembly. According to the opinion of the Federal Administrative Court it is as a rule only an insignificant restriction of the basic right [reference omitted]. The Bundesgerichtshof [reference omitted] and likewise the entire academic opinion hold the regime to be constitutional. That should be approved when it is taken into consideration that the duty to notify is subject to exceptions and that its violation does not give rise to automatic entitlement to impose a ban or disperse an event.

The duty to notify only applies to meetings in the open air because these frequently require special precautions on account of their external effects. The details connected with the notification are to communicate the necessary information to the authorities. This is to enable them to form a picture on the one hand of what must be arranged by way of traffic regulations and other measures for the event to run as free from disturbance as possible; and on the other hand of what is necessary in the interests of third parties as well as in the communal interest and how the two can be put in harmony with each other [reference omitted]. According to the substantially prevailing view, the duty to notify at the right time does not apply to spontaneous demonstrations which form instantaneously from some cause at that moment [references omitted]. They come under the guarantee of Art 8 GG; provisions relating to the law of meetings are not applicable to them insofar as the purpose pursued by the spontaneous event could not be attained by observance of these provisions. Their recognition despite the non-observance of such provisions is justified by the fact that Art 8 GG in its paragraph 1 guarantees in principle the freedom to meet “without notification or permission”. This freedom can, it is true, be limited on the basis of statute in accordance with paragraph 2 for meetings in the open air, but such limitations may not render the guarantee of paragraph 1 completely inapplicable for certain types of events, and this guarantee frees from the duty to notify where the named prerequisites exist.

This assessment of spontaneous demonstrations rests on the fact that the administrative provisions of the law of meetings are applied in the light of the basic right of freedom of assembly and must if need be take second place to it. It is the basic right and not the Meetings Act which guarantees the permissibility of meetings and processions; the Meetings Act merely provides for limitations insofar as these are necessary. The fact that a violation of the duty to notify does not automatically lead to a ban or to the dispersal of an event coincides with this. It is true that any person who as organiser or leader “conducts” a meeting which has not been notified commits an offence (§ 26 Meetings Act). But the Meetings Act merely provides in § 15 para 2 that the competent authority “can” disperse meetings in the open air and processions if they are not notified. The Federal Minister for the Interior considers a preventative ban to be possible as a further sanction if and insofar as this represents a more lenient method than dispersal which is expressly mentioned in the statute. But the competent authority is not in any case legally obliged to disperse or ban meetings. It merely has an authority to do so, of which it may, in the light of the great importance of freedom of assembly in general, only make use in accordance with its duty if further prerequisites for an intervention are present. The absence of notification and the resultant lack of information merely make this intervention easier to justify.

As the duty to notify does not always apply and its violation does not lead automatically to dispersal and banning, it is not evident that the duty which is based on important public welfare interests could as a rule be disproportionate. Whether and to what extent exceptional features exist for large demonstrations, which, as with spontaneous demonstrations, could justify a different assessment, is to be discussed in another connection (see below, III.2.).

b) The provisions of § 15 of the Meetings Act likewise stand up to a constitutional court examination if they are interpreted in a manner consistent with the Constitution. According to these provisions the competent authority may make the meeting dependent on certain conditions or forbid or disperse it “if, according to the circumstances evident at the time of issue of the order, public safety or order is directly endangered by the holding of the meeting or of the procession”.

The complainants and the Federal Association for Citizens Initiatives for the Protection of the Environment raise doubts because of the uncertainty of the prerequisites for intervention of “endangering of public safety or order”. [It claims that these] are so much the more problematic when the decision about interventions lies in the discretion of the lower administrative authorities and the ordinary police. The concepts mentioned have however – as the Federal Minister for the Interior pertinently explained – obtained a sufficiently clear content through police law [references omitted]. According to this the concept of “public safety” includes the protection of central legal interests like life, health, freedom, honour, property and wealth of the individual as well as maintaining the legal order and the state institutions intact. In this connection, an endangering of public safety is as a rule assumed if a criminal violation of these protected interests is threatened. “Public order” is to be understood as including the totality of unwritten rules, obedience to which is regarded, according to social and ethical opinions prevailing at the time, as an indispensable prerequisite for an orderly communal human existence within a defined area.

These explanations of the concepts on their own still admittedly do not guarantee an application of statute law which is in conformity with the Constitution. For the constitutional law assessment, two limitations are significant which are found in the statute itself and which have as a consequence that bans and dispersals can in essence only be considered for the protection of elemental legal interests. A mere endangering of the public order will not in general suffice.

Bans and dispersals presuppose firstly as their ultima ratio that the less severe method of imposing conditions has been exhausted [reference omitted]. That is based on the principle of proportionality. But this limits the discretion not only in the choice of methods, but also in actual decision by the competent authorities. The freedom of assembly protected by the basic right must only take second place when a balancing of interests which takes into consideration the importance of the freedoms shows that this is necessary for the protection of other legal interests of equal value. Accordingly, a limitation of this freedom will definitely not be justified by just any interest; inconveniences which inevitably arise from the large scale on which the basic right is exercised, and cannot be avoided without disadvantages for the purpose of the event, will generally have to be born by third parties. It will be just as inappropriate to consider banning of meetings on the basis of mere technical traffic grounds, since juxtaposition of the use of the highway by demonstrators and moving traffic is as a rule attainable by conditions.

Secondly, the power for authorities to intervene is limited by the fact that bans and dispersals are only permitted when there is a “direct endangering” of public safety or order. The prerequisites for intervention are more severely restricted by the necessity for directness than in general police law. In each actual case a prognosis of the dangers is necessary. It is true that this will always contain a judgement about probability; but its basis can and must be shown. Accordingly the statute provides that it must be based on “recognisable circumstances”, and therefore on facts, situations, and other particulars; mere suspicion or assumptions cannot suffice. Taking into consideration the fundamental importance of freedom of assembly the authority may not, in particular when issuing a preventative ban set too low a standard for the prognosis of the dangers, especially as the possibility of a later dispersal still remains open to it when the situation has been incorrectly assessed. What standards are required in the individual case must be determined first of all by the specialist courts [references omitted]. They can hardly be prescribed independently of the actual circumstances because of the Constitution. They can however depend in relation for instance to large demonstrations on how far a preparedness by the organisers to make co-operative preparations exists and whether disturbances are feared only from third parties or from a small minority (see on this III. 1. and 3. below). § 15 of the Meetings Act as a whole is in any case reconcilable with Art 8 GG when it is interpreted and applied so that the guarantee remains that bans and dispersals will only take place for the protection of important community interests; and the principle of proportionality must be adhered to and there must be an endangering of these legal interests which is direct and capable of being deduced from recognisable circumstances.

III.

There is no objection on constitutional grounds to the fact that the provisions on the law of meetings previously discussed also apply for large demonstrations. However, when those provisions are applied experiences which have been gathered and tested in the meantime in the endeavour to facilitate the peaceful holding of even such demonstrations must be utilised.

1. According to the factual reports obtained in the initial proceedings and after the outcome of the Stuttgart discussions [reference omitted] a number of circumstances can contribute to the peaceful carrying out of events of the same kind as the Gorleben trek in 1979, the peace demonstrations in Bonn in 1981 or the South German human chain in 1983. These include, besides making the legal position clear in good time, the following. There should be no provocation or incentives to aggression on either side. The organisers should influence the participants with a view to ensuring peaceful behaviour and the isolation of violent people. State power should wisely keep a low profile – if need be by the formation of police free areas – and avoid excessive reactions. In particular, contact should be made at an early stage, at which both sides get to know one another, exchange information and possibly find their way to a co-operation based on mutual trust, which makes it easier to cope with unforeseen situations of conflict.

It can be left undecided whether a duty to consider these experiences can be derived simply from the duty of protection. According to the opinion of the police trade union this [latter duty] arises for state authorities from the basic political decision in constitutional law which Art 8 GG represents in a similar manner to other high ranking basic right guarantees; and it aims at facilitating the holding of meetings and processions as well as protecting the exercise of the basic right from disruptions and riots by third parties. In any case the recent constitutional court case law should be consulted according to which the basic rights do not only influence the form of substantive law. They also set standards for organisational and procedural forms which effectuate basic right protection and for an application of existing procedural provisions which is “basic right friendly” [references omitted]. There are no doubts about applying this case law to freedom of assembly as well, especially as this basic right has a substantial content of procedural and organisational law. As a freedom it contains no statements about the actual form of meetings and processions but leaves these to the free self-determination of the organisers and contents itself with organisational restrictions for the holding of these events. The requirement that state authorities should proceed in a “meetings-friendly” manner in accordance with the model for large demonstrations which have proceeded peacefully and should not shelter behind tried and tested experiences without sufficient grounds corresponds to the concept of striving to effectuate freedoms in procedural law. A duty not only to take these experiences into consideration but also actually to try them is additionally justified in constitutional law by the fact that this is a less severe method than interventions in the form of bans or dispersals. The more seriously the state authorities show support in this way for the peaceful holding of large demonstrations, the more likely are later bans or dispersals to stand up to an examination by an administrative court after their efforts have broken down.

The requirements of procedural law which have been mentioned may not, in their application to the state authorities, be extended so as to change in principle the character of the police task of protecting against dangers, nor, for instance, so as to make the application of flexible deployment strategies impossible. Likewise (and more importantly) no requirements may be made of the organisers of and participants in large demonstrations which would undermine the character of demontrations as contributions to the formation of political opinion and will which are in principle free of state intervention and unregimented. Nor must they undermine the right of self-determination by the organisers of the type and content of demonstrations. That will not be so if all that is required of organisers and participants is to refrain from behaviour which is not peaceful and to minimalise interference with third party interests. Such a duty follows directly from the basic right guarantee and its co-ordination with the basic rights of others. Extensive procedural law duties can possibly be justified by the fact that the exercise of the basic right has a relationship with the community and by the shared responsibility of the persons answerable for the effects of large demonstrations. Setting out such duties more precisely within the framework and boundaries of the statutory reservation using the experiences mentioned, at the level of ordinary law, must be left with the legislator. Even without a precise statement by the legislator, the organisers and participants would certainly do well to have regard as far as possible on their own initiative to the recommendations for large demonstrations derivable from proven experiences. Administrative practice and case law are in any case constrained by constitutional law to encourage willingness by the other side: the more the organisers are ready on the occasion of the notification of a large demonstration to take unilateral confidence-building measures or even ready for “demonstration-friendly” co-operation, the higher is the threshhold for intervention by an authority because of danger to public safety and order.

2. Contrary to the opinion of the Federal Association for Citizens Initiatives on the Protection of the Environment, it is not required on constitutional grounds that large demonstrations should be excepted from the duty of notification under § 14 of the Meetings Act in the same way as spontaneous demonstrations. [Details are given].

Because of the complexity of the support organisation in the case of large events an interpretation of § 14 in combination with § 15 para 2 of the Meetings Act which conforms to the Constitution would certainly seem to be indicated if individual groups or persons see themselves as incapable of carrying out an overall notification or overall leadership. A mandate only given in limited terms and a preparedness to enter a dialogue and to undertake responsibility which is only present on a limited basis cannot be left out of consideration when possible sanctions for a failure to notify are examined. The absence of a notifier with overall responsibility merely means that in the case of disturbances the intervention threshhold for competent authorities can fall – as in the case of a spontaneous demonstration. This will only apply insofar as the authority for its part has done everything to fulfill its procedural duties – perhaps by an offer of fair co-operation – in order to facilitate the holding of a demonstration which is planned as peaceful.

3. In particular, in the case of large demonstrations it is often asked – and this is also important in the initial proceedings – whether and under what conditions rioting by individuals or by a minority justify a ban of the demonstration or its dispersal because of direct danger to public safety and order in accordance with § 15 of the Meetings Act.

a) The Constitution merely guarantees the right “to gather peacefully and without weapons”. By the requirement of peacefulness, which was contained in the Paulskirchen Constitution as well as in the Weimar Constitution, something is made clear which follows from the legal nature of freedom of assembly insofar as it is understood as a means to intellectual debate and influencing formation of the political will [reference omitted]. The initial case in which acts of violence occurred gives no cause for the drawing of a more precise boundary between acceptable consequences and behaviour which is not peaceful. In any case, a participant does not behave peacefully if he commits acts of violence against persons or things. In order to avoid these, a legal order which, after overcoming the mediaeval law of the jungle, has given the state a monopoly of the exercise of power (not least in the interest of weaker minorities) must take a strict stand. That is a precondition for the guarantee of freedom of meeting as a method of active participation in the political process and – as experiences with street fights during the Weimar Republic have shown – is also indispensable for a free democracy because defence against acts of violence triggers measures limiting freedom. It is all the more appropriate to expect peaceful behaviour from demonstrators as this is the only way that they can win, whilst in violent confrontations they will always be subjected to the state’s power in the end and at the same time damage the goals which they are pursuing.

b) The ordering of a meeting ban does not raise any special problems in constitutional law even with large demonstrations if the prognosis reveals a high probability that the organiser and his following intend to commit acts of violence or will at least approve of such conduct on the part of others. A demonstration of this kind is not included in the guarantee of Art 8 GG at all as it is not peaceful; dispersing or banning it cannot therefore violate this basic right. The legal situation seems similarily clear when conversely the organiser and his following behave peacefully and disturbances only proceed from the outsiders (counter-demonstrators or disruptive groups). For this case the relevant requirement in the academic literature is that measures by the authorities must primarily be directed against the disturbers and that action may only be taken against the meeting as a whole under the special prerequisites of police emergency [references omitted].

If there is no fear of collective strife, it is not necessary to take into account the possibility that a demonstration as a whole will take a violent or rebellious course (see § 13 para 1 no 2 of the Meetings Act) or that the organiser or his following will strive for such an outcome (see § 5 no 3 of the Meetings Act) or at least approve of it. In such circumstances, for peaceful participants the protection guaranteed by the Constitution to every citizen of freedom to meet must remain preserved even if other individual demonstrators or a minority commit riots [references omitted]. If behaviour of individuals which is not peaceful were to lead to discontinuance of the basic right protection for the whole event and not only for the perpetrators, these persons would have it in their hands to “turn round” a demonstration and make it become unlawful, contrary to the intention of other participants [reference omitted]. For practical purposes every large demonstration could then be banned, as almost always “information” about non-peaceful intentions of a part of the participants can be supplied.

The protection of Art 8 GG which consequently continues to apply must have an effect on the application of the legal norms limiting the basic right (for measures in criminal law and liability law in relation to demonstrations which have taken a course which was in part not peaceful, see [references omitted]; see further the decision of the European Commission for Human Rights [reference omitted]). The guarantee of the basic right which is subject to the statutory reservation does not exclude the possibility of the authority ordering measures for the protection of public safety on the basis of § 15 of the Meetings Act against the whole demonstration even to the extent of a ban. However, it is preferable to consider a subsequent dispersal which does not deprive the peaceful demonstrators from the outset of the chance of exercising the basic right and leaves to the organiser the priority in isolating non-peaceful participants. A preventative ban of the whole event because of riots feared from a violently orientated minority is on the other hand only permissible under strict conditions and following application of § 15 of the Meetings Act in a manner conforming to the Constitution. This is required by the duty of optimal preservation of the freedom of assembly and the procedural law requirements which follow from this. There must be a high degree of probability in the prediction of the risk [references omitted] as well as prior exhaustion of all significant applicable methods which facilitate a realisation of the basic right of peaceful demonstrators (eg limiting the area to which the ban applies). In particular a ban of the whole demonstration presupposes as ultima ratio that the less severe method of preventing danger by co-operation with the peaceful demonstrators has failed or that such a co-operation was impossible for reasons for which the demonstrators were responsible. If on the basis of the detailed circumstances a general preventative ban of the demonstration is considered, it seems as a rule to be required in relation to large demonstrations in which peacefully-minded participants very much predominate, that such an extraordinary and intrusive measure is notified beforehand. A time period should also be set, so that within this period opportunity exists for discussion of the dangers which are feared and the appropriate preventative measures.

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

Kalkar Case I (1978)
49 BVerfGE 89.

This case is first published in the German Law Archive courtesy of:

Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz

Translated by Donald P Kommers

[Section 7 (I) of the Atomic Energy Act provides that any person who constructs or operates an installation for the production or fission of nuclear fuel requires a license. Authorities may grant such a license wider section 7 (2) only if the licensee “takes every necessary precaution in the light of existing scientific knowledge and technology to prevent damage resulting from the construction and operation of the installation.” On December 18, 1972, licensing authorities granted a first partial construction permit for the SNR-300 fast breeder nuclear power station in Kalkar.

The owner of a farm within a mile of the station sued to have the reactor’s license revoked because the plant failed to follow certain administrative procedures under section 7 (2). A local administrative court denied his claim, and rejected the argument that these acts of omission invaded his rights to life and personality. In view of the awesome implications for public safety and the rights of citizens involved in the production and recycling of plutonium, however, the North Rhine-Westphalia Administrative Court felt that parliament had a duty to establish more concrete criteria for the construction of fit breeder reactors than those provided in the Atomic Energy Act. The court of appeals referred this question to the Constitutional Court.

Judgment of the Second Senate. . . .

B. II. Section 7, paragraphs I and 2, of the Atomic Energy Act are compatible with the Basic Law.

I. (a) The Basic Law does not confer on parliament total priority in fundamental decision making. By insisting upon separation of powers it imposes limits on parliament’s authority. The Basic Law relegates far-reaching decisions, particularly those of a political nature, to other supreme constitutional organs. Examples include the chancellor’s power to determine general policy guidelines (Article 65 [I]) and the presidents authority to dissolve the Bundestag (Article 68) and declare a state of legislative emergency (Article 81)…. The Bundestag may check the exercise of such powers by electing a new chancellor and bringing down the federal government…. A monistic theory of power, incorrectly deduced from the principle of democracy, which would confer a monopoly of decision-making power on Parliament must not undermine the concrete distribution and balance of political power guaranteed by the Basic Law. Other institutions and organs of political authority do not lack democratic legitimacy [merely] because parliamentary delegates are the only officials elected by direct popular vote. Legislative, executive, and judicial organs derive their institutional and functional democratic legitimacy from Article 20 (2) of the Basic Law… Nevertheless, we are able to deduce from the principle of parliamentary democracy that parliament and its decisions do have priority vis-à-vis other branches [of government]. We hold this to be a principle of interpretation transcending all concrete allocations of authority…

(b) The case at bar deals with legislation, an area where the Basic Law specifically allocates authority to the Bundestag. It follows from the principle of legality that executive acts which significantly affect the freedom and equality of citizens must be based on law.

2. Section 7, paragraphs I and 2, of the Atomic Energy Act do not violate this principle….

(a) Separation of powers is not specifically mentioned in the Constitution. Its validity, however, follows from the terms of Article 20 (3). The interpretation of this principle has undergone change in recent years, especially in the light of its democratic component. Today our established case law makes clear that the legislature is obligated… to make all crucial decisions in fundamental normative areas, especially in those cases where basic rights become subject to governmental regulation…. To determine those areas in which governmental acts require a basis in law, [one must] consider the subject matter and “intensity” of the planned or enacted regulation, particularly taking into account the fundamental rights granted by the Basic Law.

[One] must also use similar criteria to judge whether the legislature has established the essential legal standards for the matter to be regulated as the constitutional requirement of a specific enactment mandates and has not left this for the administration to determine. [The principle of constitutional requirement of specific enactment (Gesetzesvorbehalt) means that only the legislature may enact statutory restraints upon fundamental rights contained in the Constitution where the language of the Constitution expressly provides for such restraints.]

(b) The normative decision whether to permit the peaceful uses of nuclear energy in the Federal Republic of Germany is a fundamental and essential decision in the sense that a specific enactment is constitutionally required. This is so because of [the decision’s] far-reaching effects on citizens, in particular on their sphere of freedom and equality, as well as on their general living conditions; and because of the kind and intensity of regulation necessarily connected with it. Only the legislature has the authority to make such a decision. The same applies to regulations fixing the licensing of nuclear installations within the meaning of section 7 (I) of the Atomic Energy Act….

The legislature has decided to promote the peaceful use of nuclear energy by means of a formally enacted law – the Atomic Energy Act. This decision includes fast breeder reactors….

Contrary to the opinion of the court below, the legislature was not bound to include in the act a provision declaring that it was ready to accept the risks possibly resulting from such a reactor. The legislature bears the political responsibility for the consequences of its decision….

… In direct relation to [whether this norm is unconstitutional because it is too vague and thus fails to meet the substantive constitutional requirement of specific enactment] is whether section 7 of the Atomic Energy Act contains essentials precise enough to permit the licensing of the fast breeder. We must answer in the affirmative. Sections 7 (I) and 7 (2) regulate all essential mid fundamental questions of the licensing procedure and fix with sufficient precision the requirements for the construction, operation, and modification of nuclear installations, including fast breeder reactors.

(c) . . . If the legislature enacts a policy on the basis of which new, unanticipated developments have been called into question, the Constitution may oblige the legislature to re-examine whether the original policy is to he be upheld in the light of changed circumstances….

It is constitutionally unobjectionable that the legislature has not yet examined the fast breeder technology and its possible consequences – for instance, the issue of atomic waste disposal. As the federal government has always emphasised, the reactor to be built in Kalkar is only a prototype. The construction and operation of this reactor do not mean a decision to use it on a large industrial scale. [The reator’s purpose is rather to help to prepare for the decision which [the legislature] will make in the 1990s at the earliest. [We] cannot now foresee whether the court is correct in assuming that the industrial use of the fast breeder may lead to dangerous constraints and consequences. Suitable means may be available [in the future] to counter the dangers to individual freedoms which the lower court fears.

Taking evidence on these questions would serve little purpose since these are mainly related to possible political developments of the most general nature.

Only the future will show whether this decision to implement breeder technology will be useful or harmful. In this necessarily uncertain situation the legislature and the government primarily have the political responsibility for making what they consider pragmatic decisions within the confines of their respective authority. Under these circumstances, it is not the function of the courts to substitute their judgment for that of the political branches when assessing the situation, because legal criteria for such decisions do not exist.

Where reasonable doubts are possible – whether or not the dangers feared by the court below materialise – all organs of the state, and thus the legislature as well, have the constitutional duty to make every effort to recognise possible dangers in time and to counter them by constitutional means. If, in the future, some probability of these dangers exists – in the judgment of the . . . responsible political organs – the legislature would again have a duty to act….

3. Sections 7 (I) and 7 (2) of the Atomic Energy Act do not violate the constitutional requirement that laws be drafted with sufficient precision.

(b) . . . The provisions of the statute in question make use of undefined legal terms such as “reliability” and “necessary knowledge” [unbestimmite Rechtergriffe] – terms which are not precisely defined. [The analysis centers on whether such terms should be void on account of their vagueness.] The use of these terms is constitutionally permissible. The degree of precision required depends on the nature of the matter to be regulated and the intensity of the regulation ….. [In any case, such terminology] has been traditionally subject to interpretation by the legislature, executive, and judiciary…

Section 7 (2), no. 3, is also sufficiently precise. This provision relates to the field of technical safety. Any legislative regulation of this field … must confront the particular difficulties which reside in the nature of the matter to be regulated.

When fixing norms which keep abreast of scientific and technological developments, legislature has a number of options available for making these development legally binding. These norms have one common feature: by using undefined legal terms [the legislature] shifts the difficulties involved in giving these terms specific binding content and adjusting them to scientific and technological developments to the administrative and – should litigation arise – the judicial levels. Thus, administrative authorities and courts have to make up the ‘regulatory deficit incurred by the legislature.

The law may, for example, refer to “generally recognised technical rules”. In this case, agencies and courts may limit themselves to ascertaining the majority opinion among practising technicians when deciding whether or not the technical work materials may be brought into the stream of commerce. This criterion has the disadvantage of lagging behind developing technology.

[One way to] avoid this drawback [is] to refer [instead] to the “state of the art which does not require general recognition and practical confirmation but makes it more difficult for courts and agencies to establish and assess relevant facts.

Section 7 (2), no. 3, of the Atomic Energy Act goes a step further by referring to ‘existing scientific knowledge’, which requires the legislature to make even stronger efforts to keep regulations abreast of scientific and technological developments.

It is within the legislature’s discretion to use either undefined legal terms or precise terminology. Good reasons support the, use of undefined legal terms in section 7 (2), no. 3. The wording of section 7 (2), no. 3, of the Atomic Energy Act, which is open to future developments, serves as a dynamic protection of fundamental rights. It furthers the protective purpose of section I, no. 2, of the Atomic Energy Act in the best possible way currently available. To fix a safety standard by establishing rigid rules, if that is even possible, would impede rather than promote technical development and adequate safeguards for fundamental rights. Setting up rigid rules would be regression at the expense of safety. [We must] tolerate some uncertainty of the law, at least where the legislature would otherwise be forced to adopt impractical regulations at all. Both [alternatives] would eventually impair the protection of fundamental rights….

These considerations apply equally to the so-called residual risk which [one] must consider in the context of section 7 (2), no. 3. While this provision does not allow for residual damage resulting from the construction or operation of a nuclear installation, it permits licensing even if the probability of future damage cannot be precluded with absolute certainty. The law leaves it to the executive to determine… the kind and extent of the risk which may or may not be accepted. With regard to the vagueness doctrine, which has the primary constitutional function of defining when the executive is to act vis-à-vis the legislature, Section 7 (2) does not violate the constitution – especially in the light of the subject matter to be regulated.

It follows from the protective purpose of section I, nos. 2 and 3, as well as section 7 (2) and other provisions of the Atomic Energy Act, that the legislature wants all damage, danger, and risk specific to the installation and operation [of the reactor] to be considered and that the probability of an accident, which may be accepted when licensing an installation, must be as low as possible. Indeed, this probability must be lower as the type and consequences of harm become more serious. By referring to existing scientific knowledge and technology, the law forces the executive [agency] to observe the principle of the best possible protection against dangers and risks. The legislature was not bound, however, to define with precision the possible kinds and factors of risk. . The assessment of risks resulting from a nuclear installation depends upon a multitude of circumstances, many of which are constantly evolving…. In the interest of flexible protection of life and property the executive must assess and constantly adjust safety measures – a task it is better equipped to perform than the legislature. The unavoidable degree of uncertainty in assessing such risks resides in the nature of human knowledge.

©1999 Donald P Kommers. HTML edition by Lawrence Schäfer and © 1999 Gerhard Dannemann.

Bundesverfassungsgericht (First Division) 5 June 1973
BVerfGE 35, 202.

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: Professor B S Markesinis

Translated by F H Lawson and B S Markesinis

The petitioner had participated in an armed robbery of an arsenal of the German armed forces in the course of which several soldiers on guard duty were killed or severely wounded. The culprits were arrested after a prolonged search and were convicted. The petitioner was convicted as an accessory and sentenced to six years’ imprisonment. A German television station commissioned a documentary play based on the crime, its planning, and detection and the background of the culprits, including the petitioner whose homosexual tendencies were stressed. The play showed a likeness of the petitioner and mentioned him frequently by name. The petitioner who had served two-thirds of his sentence and was soon to be released sought an injunction prohibiting the television company from broadcasting the play pending a decision on the merits of his claim that the play violated his right of personality.

The District Court of Mainz dismissed the action for an injunction on the grounds that the petitioner was ‘relatively a personality of contemporary history’ and could therefore not rely on the right to the protection of his personality. The Court of Appeal of Koblenz [reference] affirmed this decision by weighing the respective interests of an individual to be protected against the unauthorised publication of his likeness in accordance with §§ 22 and 23 of the Act on the Protection of the Copyright in Works of Art and Photographs (henceforth cited as KUG) as a projection of the right to his personality covered by Arts. I and 2 I, of the Constitution on the one hand and the need for objective pictorial information concerning persons in public life, which is recognised in § 23 KUG and must be interpreted in the freedom to express opinions and the liberty of broadcasting stations to provide information, protected by Art. 5 I of the Constitution on the other hand. The Court of Appeal held that in this conflict the right to provide information must prevail, especially since the trial had been concluded. The petitioner was ‘relatively a personality of contemporary history’; his interest in social reintegration had to give way to the interest of the public in general to receive a truthful account of the facts and the persons involved …

The German Federal Constitutional Court quashed the decisions of the two courts below on the ground that Art. 2 I in conjunction with Art. I I of the Constitution had been violated and issued a temporary injunction prohibiting the broadcasting of the play in question to the extent that it mentioned the petitioner by name and reproduced a likeness of him.

Reasons

A….

B….

11. For the present case the Court of Appeal has held correctly that several fundamental rights affect the application of private law and that they lead in opposite directions. The right to one’s personality guaranteed by Art. 2 1 in conjunction with Art. I I of the Constitution conflicts with the freedom of broadcasting stations to provide information, in accordance with Art. 5 I, sentence 2 of the Constitution.

I. On the one hand, a televised broadcast of the kind in issue here concerning the origins, execution, and detection of a crime which mentions the name of the criminal and contains a representation of his likeness necessarily touches the area of his fundamental rights guaranteed by Art. 2 1 in conjunction with Art. I I of the Constitution. The right to the free development of one’s personality and human dignity safeguard for everyone the sphere of autonomy in which to shape his private life by developing and protecting his individuality. This includes the right ‘to remain alone’, ‘to be oneself’ within this sphere [reference], to exclude the intrusion of or the inspection by others [reference]. This includes the right to one’s likeness and to one’s utterances [reference] and even more to the right to dispose of pictures of oneself. Everyone has the right in principle to determine himself alone whether and to what extent others may represent in public an account of his life or of certain incidents thereof.

However, according to the constant practice of the Federal Constitutional Court, not the entire sphere of private life enjoys the absolute protection of the above-mentioned fundamental rights [references]. If an individual in his capacity as a citizen living within a community enters into relations with others, influences others by his existence or activity, and thereby impinges upon the personal sphere of other people or upon the interests of communal life, his exclusive right to be master of his own private sphere may become subject to restrictions, unless his sacrosanct innermost sphere of life is concerned. Any such social involvement, if sufficiently strong may, in particular, justify measures of public authorities in the interest of the public as a whole – such as the publication of pictures of a suspect person in order to facilitate a criminal investigation (§ 24 KUG). However, neither the interest of the State to clear up crimes nor any public interest always justifies an infringement of the personal sphere [reference]. Instead, the pre-eminent importance of the right to the free development and respect of personality which follows from its close connection with the supreme value enshrined in the Constitution, i.e. human dignity, demands that any intrusion of the right of personality which may appear necessary to protect such interest, must always be balanced against the protective rule laid down in Art. 2 1 in conjunction with Art. I I of the Constitution. Accordingly, it must be determined in the individual case by weighing the particular interests whether the pursuit of the public interest merits precedence generally and having regard to the features of the individual case, whether the proposed intrusion of the private sphere is required by this interest in this form and extent, and whether it is commensurate with the importance of the case [references].

These principles, which were developed by the courts in respect of measures taken by public authorities, must be observed equally when the courts have to determine conflicting interests on the basis of private law. In the course of such a determination the courts are not precluded from taking into account the special position accorded to the media represented by broadcasting and television by virtue of their organisation regulated by public law and their public functions.

2. In this respect the consideration is decisive, as the Court of Appeal has pointed out correctly, that the broadcast in dispute serves a function, the free exercise of which on its part is directly protected by a provision in the Constitution. Freedom of information by broadcasts in accordance with Art. 5 I, second sentence of the Constitution (freedom to broadcast), like the freedom of the press, of expression and information is a basic constituent element of a liberal-democratic order [references] …

Only when the exercise of the freedom to broadcast conflicts with other protected legal interests, the purpose of the individual broadcast, the manner of its presentation, and its actual foreseeable effect may become relevant. The Constitution has regulated possible conflicts between the freedom to broadcast and the interests of individual citizens, of groups and of the community as a whole, by referring to the legal system as a whole; according to Art. 5 II of the Constitution the emission of broadcasts is subject to the restrictions imposed by the general law. According to the constant practice of the Federal Constitutional Court the need expressed by this provision to take other protected legal interests into account must not render the freedom to broadcast a relative one; instead the laws which restrict the freedom to broadcast must in turn be interpreted in the light of the constitutional guarantee and must, if necessary, be equally restricted in order to ensure that the freedom of broadcasting is safeguarded adequately [reference]. Consequently the opposing protected legal interests must be balanced against each other in each individual case in the light of general and specific considerations.

III. I. The general laws referred to by Art. 5 II of the Constitution include also the provisions Of §§ 22, 23 of the Act on the Copyright in Works of Plastic Art and Photography of 9 January 1907 (RGBI. 1907) maintained by § 141 no. 5 of the Copyright Act of 9 September 1956 (BGBI. 1 1273). which formed the basis of the judgment in issue before this court. These provisions, the wording and the original purpose of which related originally to the right to one’s own likeness, have for a long time been interpreted by the courts and by writers to apply also to reproductions of one’s likeness. whether accompanied by the person’s name or not, as well as to the representation of a person by an actor on a stage [references]. The general approached these provisions has changed since the Constitution came into force to the effect that the right to one’s likeness is regarded as an aspect, as a special feature of the general right of personality which was derived from Arts. I and 2of the Constitution [references].

These provisions are in accordance with constitutional law; their somewhat flexible character gives sufficient scope for applying them in keeping with the Constitution and it has been shown in practice that it is possible, in balancing the interest, as required by § 23 KUG, to take sufficient account of the reflex effect of the relevant fundamental rights. In this context. it is irrelevant from the point of view of constitutional law which factual element of § 23 KUG serves as the balancing factor [references,],.

2. In cases of conflict, such as the present, the general principle applies, on the one hand, that in applying §§ 22 and 23 KUG to televised broadcasts the freedom to broadcast must not be restricted excessively. On the other hand, as distinct from other general laws in the meaning of Art. 5 II of the Constitution, it is a special feature of the present case that the restriction of the freedom to broadcast serves in turn to protect an important concern of the Constitution; the interest of the person affected to prohibit the publication of his likeness or any representation of his person, which must be protected with the framework of § 23 KUG, is directly enhanced by the constitutional guarantee of the protection of personality. In solving this conflict it must be remembered that according to the intention of the Constitution both constitutional concerns are essential aspects of the liberal-democratic order of the Constitution with the result that neither can claim precedence in principle. The view of humanity taken by the Constitution and the corresponding structure of the community within the State require both the respect for the independence of individual personality and the guarantee of a liberal social atmosphere; the latter cannot be realised at the present time unless communications are unimpeded. In case of conflict both concerns of the Constitution must be adjusted, if possible; if this cannot be achieved it must be determined which interest must be postponed having regard to the nature of the case and to any special circumstances. For this purpose, both concerns of the Constitution, centred as they are on human dignity, must be regarded as the nucleus of the system of constitutional concerns. Accordingly, the freedom to broadcast may have the effect of restricting any claims based on the right of personality; however, the damage to ‘personality’ resulting from a public representation must not be out of proportion to the importance of the publication upholding the freedom of communication [reference]. Furthermore it follows from these guiding principles that the required weighting of interests must take into account the intensity of the infringement of the personal sphere by the broadcast on the one hand; on the other hand, the specific interest which is being sensed by the broadcast and is capable of being thus served, must be assessed and examined as to whether and to what extent it can be satisfied even without any interference – or a less far-reaching interference – with the protection of personality.

IV. I. In the light of these general principles the following criteria are relevant from the point of view of constitutional law in assessing televised broadcasts of the kind in issue here.

(a) A public report of a crime in which the name, a likeness, or a representation of the culprit is provided will always constitute a severe intrusion of his personal sphere, seeing that it publicises his misdeeds and gives from the outset a negative slant to his person in the eyes of those to whom the report is addressed. It may be different if the report is designed to create sympathy for the culprit, as for instance in order to achieve a new trial, a pardon, or some other assistance …

(b) Disregarding the possibility of an additional infringement by the manner of the representation (polemics, falsification), even a report which seeks to be objective and factual, if televised constitutes normally a much greater invasion of the private sphere than an oral or written report published in the press or over the radio. This is so, in the first place, because the visual impression and the combination of a picture and word is much stronger, but mainly because television commands a much greater audience than the cinema and the theatre, resulting in a special position. Consequently there is a special reason ‘for watching over the observation of the limits established by the law and to prevent an abuse [sic] of the right of personality which had become more vulnerable. In this respect the law must not give way to technical developments’ [reference].

(c) If for the above-mentioned reasons alone a special need exists for protection against violations of the right of personality by televised broadcasts reaching such a wide audience, it must be remembered that the broadcast performance of a documentary play entails specific dangers …

In conclusion it can be stated that television broadcasts reporting on a crime naming, depicting, or representing the culprit, especially in the form of a documentary play, will normally constitute a serious invasion of his sphere of personality.

2. On the other hand weighty considerations suggest that the public should be fully informed of the commission of crimes-including the person of the culprit, and of the facts which led to them. Crimes, too, are part of contemporary history, the presentation of which is altogether the task of the media. Moreover the violation of the general legal order, the infringement of protective legal interests of the citizens involved or of the community, sympathy with the victims and their relatives, fear of the repetition of such crimes, and the desire to prevent them create a fully justified interest in receiving detailed information concerning the deed and the criminal. This interest will be all the greater the more the criminal act is unusual having regard to the special features of the object of the attack, the manner in which it was carried out, or the severity of the consequences. Where serious crimes of violence are involved, such as that represented in the play in issue, the interest to receive information is based riot only on general curiosity and sensationalism but on serious reasons for asking who were the perpetrators, what were their motives, what was done to detect and to punish them, and for preventing similar crimes. For this purpose the desire to know only the facts will be predominant, but as time passes the interest increases to receive a more searching interpretation of the deed, its background, and its social setting. Not least is the legitimate democratic desire in determining to control the organs of the State and public authorities responsible for security and order, the prosecution and the criminal courts …

3. In balancing generally the interest in receiving information as circumscribed above by televised reporting within these limits against the invasion of the sphere of personality of the culprit which must follow inevitably, the interest in receiving information must generally prevail in so far as current reporting of crimes is concerned. He who breaks the peace established by law, attacks or violates by his act and its consequences his fellow citizens or legally protected interests of the community, must not only suffer the criminal punishment provided by the law. He must also accept, as a matter of principle, that the public interest in information caused by himself by his own deed is being satisfied in the usual manner in a community which observes the principle of freedom of communication. Moreover, the control of the prosecution and of the criminal proceedings which is assured thereby also benefits the culprit. However, the interest to receive information does not prevail absolutely. The importance of the right to personality, which is a corner-stone of the Constitution, requires not only that account must be taken of the sacrosanct innermost personal sphere [reference] but also a strict regard for the principle of proportionality. The invasion of the personal sphere is limited to the need to satisfy adequately the interest to receive information, and the disadvantages suffered by the culprit must be proportional to the seriousness of the offence or to its importance otherwise for the public. Consequently, it is not always admissible to provide the name, a picture, or any other means of identifying the perpetrator.

It is obvious that the right of personality is only postponed if the reporting is objective and if the interpretation is serious; it is different if the account seeks to be sensational, is intentionally one-sided or misleading. On the other hand, objective reporting of a serious crime justifies not only the publication of the name or of a likeness of the perpetrator; it also includes his personal life in so far as it is directly connected with the act, provides clues about his motive or the setting, and seems relevant for assessing the guilt of the perpetrator in the light of modern criminal law. The actual question as to where the limits are to be drawn in fact seeing that in principle the interest to receive information by reports of contemporary events must prevail, can only be answered having regard to the circumstances of the individual case.

4. The reflex effect of the constitutional guarantee of personality does not, however, allow the media of communication, apart from contemporary reporting, to deal indefinitely with the person of the criminal and his private sphere. Instead, when the interest in receiving information has been satisfied, his right ‘to be left alone’ gains increasing importance in principle and limits the desire of the mass media and the wish of the public to make the individual sphere of his life the object of discussion or even of entertainment. Even a culprit, who attracted public attention by his serious crime and has gained general disapproval, remains a member of this community and retains his constitutional right to the protection of his individuality. If with the prosecution and conviction by a criminal court the act attracting the public interest has met with the just reaction, of the community demanded by the public interest, any additional continued or repeated invasions of the personal sphere of the culprit cannot normally be justified.

5. (a) The time-limit when the reporting of current events which is admissible in principle becomes subsequently an inadmissible account or discussion cannot be stated generally; certainly it cannot be stated in months and ears so as to cover all cases. The decisive criterion is whether the report concerned is likely to cause the culprit considerable new or additional harm, compared with the information which is already available.

(b) In order to determine the time-limit more clearly, the interest in reintegrating the criminal into society and to restore his social position may be treated as the decisive point of reference.

(c) Altogether a repeated televised report concerning a serious crime which is no longer justified by the interest to receive information about current events is undoubtedly inadmissible if it endangers the social rehabilitation of the culprit. The vital chance necessary for the existence of the culprit and the interest of the community to restore his social position must prevail in principle over the interest in a discussion of the crime. Whether and to what extent any exceptions are conceivable such as in the case of an overriding historical interest, of scholarly or other broadcasts which are addressed to a limited range of viewers need not be examined here.

V. I. Examined in the light of the criteria of constitutional law, the decisions appealed against cannot be maintained. The district court has sought to balance the interests of the petitioner and the broadcasting station exclusively by reference to §§ 22, 23 KUG without taking notice of the reflex effect of the fundamental rights contained in Art. 2 I in conjunction with Arts. I and 5 I of the Constitution.

The Court of Appeal did realise that a conflict exists between the freedom to broadcast by virtue of Art. 5 1 of the Constitution and the guarantee of personality by virtue of Art. 2 I and Art. I of the Constitution; in balancing, having regard to § 23 KUG, between the right to one’s likeness and the interest of the public to receive information it did take the reflex effect of these fundamental rights into consideration. In solving this conflict it did not, however, apply correctly the criteria which are to be derived from the existing constitutional provisions for the determination of cases such as the present, but have not been formulated hitherto by the Constitutional Court; above all, it did not attribute to the interest in rehabilitation the importance which it deserves from the point of view of constitutional law.

2. If sufficient account is taken of the effect of the provisions of the Constitution which are relevant in the present case upon the general law the conclusion must be reached that the petition of the complainant must succeed …

©1999 Professor B S Markesinis. HTML edition by Lawrence Schäfer and © 1999 Gerhard Dannemann.

Federal Constitutional Court (First Senate) 24 February 1971 BVerfGE 30, 173

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: Professor B S Markesinis

Translated by Mr Tony Weir, Trinity College, Cambridge

Reasons

The complainant seeks constitutional review of the injunction obtained by the adopted son and sole heir of Gustaf Gründgens, actor and theatre director, against the printing, distribution, or publication of a book by Klaus Mann entitled Mephisto, a Novel, or How to Get on in the World.

The author left Germany in 1933 and published the novel in Amsterdam in 1936 (Querido Verlag). Seven years after his death in 1949 it was published in East Germany.

The novel portrays the rise of Hendrik Höfgen, a talented actor who in order to make a career for himself as an artist in collusion with Nazi powers, is false to his true political leanings and rides roughshod over all human and ethical considerations. The psychological, intellectual, and sociological factors which made such a career possible are all laid out.

The model for Hendrik Höfgen was the actor Gustaf Gründgens, one of the Hamburger Kammerspieler in the 1920s, when he was a friend of Klaus Mann and briefly married to his sister Erika. Gründgens and his career are reflected in numerous characteristics of Hendrik Höfgen, including his physical appearance, the plays he acted in, and his appointments as State Councillor and Director-General of the State Theatre of Prussia.

Of the relationship between the fictional Höfgen and the real Gründgens Klaus Mann wrote in The Turning Point (New York, 1942):

I visualise my ex-brother-in-law as the traitor par excellence, the macabre embodiment of corruption and cynicism. So intense was the fascination of his shameful glory that I decided to portray Mephisto-Gründgens in a satirical novel. I thought it pertinent, indeed, necessary to expose and analyse the abject type of the treacherous intellectual who prostitutes his talent for the sake of some tawdry fame and transitory wealth.

Gustaf was just one among others-in reality as well as in the composition of my narrative. He served me as a focus around which I could make gyrate the pathetic and nauseous crowd of petty climbers and crooks.

In the revised version which appeared in’ Germany in I 948 (Der Wendepunkt), we find at P. 334:

The third book published during my exile, in 1936, Mephisto, deals with an unsympathetic character. Why did I write it? The actor I portray has talent, but not much else going for him. He has none of those moral qualities which form what is commonly spoken of as ‘character’. Instead of ‘character’ Hendrik Höfgen has only ambition, vanity, passion for publicity and desire for effect. He is not a man but a posturer.

Was such a figure worth writing a novel about? Yes, indeed. For the posturer represents and symbolises the regime, posturing, false and unrealistic. In a state run by liars and dissemblers the actor has a triumphant role. Mephisto is the story of a career in the Third Reich.

In a perceptive review in Das Neue Tagebuch in 1937 Herman Kesten rightly suggested that perhaps the author wanted to show a real actor among the bloody amateurs in the horror play. He went on: ‘The author goes further: he gives us a paradigm of the “fellow-traveller”, one of the millions of petty crooks who themselves commit no grand crime but sup with murderers, not principals but accessories after the event; they do not kill but conceal the corpse, and in order to get more than they deserve lick the blood of the innocent from the boots of the mighty. This host of petty toadies and bootlickers are the prop of the powerful.’

This is exactly the type I wanted to draw: I couldn’t have stated my intentions better myself. Mephisto is not, as some people have maintained, a roman-à-clef. The infamously brilliant and cynically ruthless go-getter, who is the central figure of my satire may have certain traits in common with a certain real actor still allegedly with us. Is my character Councillor and Director-General Höfgen a portrait of the friend of my youth, Councillor and Director-General Gründgens? Not entirely. There are many differences between Höfgen and my erstwhile brother-in-law. But even if the character were closer to the original than it is, Gründgens is not the ‘hero’ of my tract for the times, since it is not about an individual at all but about the type. Others could have served as a model just as well. My choice fell upon Gründgens not because he was outstandingly awful (indeed he was rather better than many another idol of the Third Reich) but simply because I happened to know him well. It was precisely our earlier acquaintance which led me to make a novel out of the incredible, fascinating and fantastic story of his rise and fall.

In August 1963 the complainant announced the publication of Mephisto, and suit was brought by the adoptive son and sole heir of Gustaf Gründgens, who died in October 1963. The claim alleged that anyone at all familiar with German theatre in the 1920s and 1930s would link Höfgen with Gründgens; that in addition to many recognisable facts the novel contained many hurtful fictions which helped to give a false and highly derogatory picture of Gründgens’ character. The novel was not a work of art but a roman-à-clef written to avenge Gründgens’ marriage to Mann’s sister Erika, which he believed dishonourable.

The plaintiff sought an injunction forbidding the reproduction, distribution, and publication of Mephisto on pain of punishment.

The claim was rejected by the Landgericht Hamburg. Thereupon in September 1965, the complainant published the novel with a foreword stating ‘All characters in this novel are types, not portraits. K.M.’ On 23 November 1965 the plaintiff obtained an interlocutory injunction from the Hanseatic Oberlandesgericht in Hamburg and the following foreword was included:

TO THE READER

Klaus Mann wrote this novel in Amsterdam in 1936, having left Germany voluntarily on grounds of conscience. In it he gives a critical view, animated by his hatred of Hitler’s dictatorship, of contemporary conditions in the German theatre. While there are undeniable resemblances to actual figures of the day, the characters are primarily creatures of the author’s imagination. This is especially true of the principal character, whose conduct and beliefs are at any rate largely imaginary. That is why the author prefaced the book with the explanation: ‘All characters in this work are types, not portraits.’

This Court must determine whether in applying the rules of private law the judicial decisions under attack misconceived the meaning of the basic rights of whose infringement the complainant complains or infringed the basic rights themselves [references]. Such constitutional ‘fall-out effects’ depend principally on the scope of the right to artistic freedom (Art. 5 III, I GG) and the right to freedom of expression (Art. 5 I GG), and especially on the relationship between these rights and the protection afforded by these decisions to the human personality of the late Gustaf Grilndgens under Art. I I and III, I GG.

Art. 5 III, I GG declares that along with science, research, and teaching, art is free. By its terms and intention the guarantee in Art. 5 III, Iis an objective value-laden basic norm regulating the relationship between art and the state. It also guarantees the individual freedom of the artist.

i. The field of ‘art’ must be determined by the distinctive structural features of the artistic enterprise. The essence of artistic endeavour lies in the free creative process whereby the artist, in his chosen communicative medium, gives immediate perceptible form to what he has felt, learnt, or experienced. Artistic activity involves both the conscious and the unconscious, in a manner not rationally separable. Intuition, imagination, and knowledge of the art all play a part in artistic creation; it is not so much communication as expression, indeed the most immediate expression of the artist’s individuality.

The freedom guaranteed covers the artistic creation as regards both the work produced and the effect produced by it. The two form an indissociable unity. The exhibition and dissemination of the work are as important as its creation for art as the specifically artistic enterprise; indeed, the ‘area of effect’, public access to the work of art, is the ground in which Art. 5 III GG is rooted. A glance back at the artistic policy of the Nazi regime shows that to guarantee merely the individual rights of artists cannot ensure the freedom of art: the basic right would prove hollow unless it extends from the personal zone of the artist to the area of impact.

2. It is not here possible to give an exhaustive definition of the scope of the constitutional guarantee of freedom of art in all its various forms. Nor is it necessary for the case in hand, since it is common ground in the courts below, between the parties and probably all experts, that the novel in question ranks as a work of art. We may therefore concentrate on factors relevant to the appraisal of an example of the narrative art which by dealing with actual events courts the risk of conflicting with the rights and interests of the persons portrayed.

In putting real events in a work of art the artist ‘recreates’ them for he sunders them from, their actual context and places them in a novel setting dominated by his concern for striking presentation rather than by their own actuality. Artistic unity may, and sometimes must, prime the truth of the occurrence.

The role and purpose of Art. 5 III, IGG is above all to give protection against encroachment by the public power on any specifically artistic undertakings, actions, and decisions. One cannot without inhibiting the free development of the creative artistic endeavour prescribe how the artist should react to reality or reproduce his reactions to it. The artist is the sole judge of the ‘rightness’ of his response. To this extent the guarantee of artistic freedom means that one must not seek to affect the manner in which the artist goes about his business, the material he selects, or the way in which he treats it, and certainly not seek to narrow the area in which he may operate or lay down general rules for the creative process. As to narrative works of art the constitutional guarantee means that the artist must be free to choose and treat his topic free from attempts by the state to limit the area of specifically artistic judgment by rules or binding value judgments. This applies also, indeed especially, when the artist is dealing with actual events: ‘committed art’ is not excluded from the constitutional guarantee.

3. Art. 5 III, I GG is a comprehensive guarantee of the freedom of artistic activity. Thus where intermediaries are needed in order to establish relations between the artist and the public they too are protected by the constitutional guarantee. As a product of the narrative art needs to be reproduced, distributed, and published in order to have any effect on the public, the publisher’s function as intermediary is indispensable, so the constitutional guarantee extends to his activity as well. Thus, as publisher of the novel, the complainant may invoke the basic right contained in Art. 5 III, I GG (see also BVerfGE 10, 118, (121); 12, 205 (260) on the freedom of the Press).

4. Art having its special nature and rules, its guarantee by Art. 5 III, I GG is absolute. The clear terms of that provision foredoom any attempt to limit it, whether by narrowing the idea of art in the light of one’s value judgments or by extending or invoking the limitations applicable to other constitutional provisions.

The Bundesgerichtshof was quite right to state that Art. 5 II GG which limits basic rights under Art. 5 I is inapplicable here. The different guarantees in Art. 5 GG are systematically separated, and this shows that the limitations in Art. 5 II are inapplicable to matters covered by Art. 5 III, since Art. 5 III is a lex specialis in relation to Art. 5 I. Nor is it acceptable to sever parts of a narrative work of art, call them expressions of opinion under Art. 5 I and then apply to them the limitations laid down in Art. 5 II. Nor do the travaux préparatoires of Art. 5 III support the view that the authors of the Constitution regarded freedom of art as a subspecies of freedom of expression or opinion.

Nor can one accept that the freedom of art is limited under Art. 2 I, 2 GG by the rights of others, by the constitutional order or by the moral law. Such a view would be incompatible with the constant holding of this Court that Art. 2 I GG is subsidiary and the individual freedoms special [references] in a manner which bars the extension of the community priority of Art. 2 I, 2 GG in the light of the use of Art. 2 I GG. Nor are these limitations applicable to the area of effect of works of art.

5. Yet there are limits to this freedom. The freedom incorporated in Art. 5 III, I GG, like all basic rights, is rooted in the Constitution’s conception of man as a responsible person free to develop within society [references]. The absolute nature of the guarantee of artistic freedom means that its limits are to be found only within the Constitution itself. The freedom of art is not subject to mere statute, it cannot be qualified by the general legal system or be at the mercy of any vague clause about essential interests of state and society which lacks constitutional basis and is uncontained by the rule of law. If the guarantee of artistic freedom gives rise to any conflict, it must be resolved by construction in terms of the order of values enshrined in the Basic Law and in line with the unitary system of values which underlies it. As part of this system of basic rights the freedom of art is co-ordinate with the dignity of man as guaranteed by Art. I GG, the supreme and controlling value of the whole system of basic rights (BVerfGE 6, 32 [41]; 27, I [6]). Given the effect which a work of art may have on the social plane, the guarantee of artistic freedom may come into conflict with the area of human personality, equally protected by the Constitution.

A person’s claim to respect and value may be affected by an artist’s use of details of character and career of actual people as in addition to being an aesthetic reality, such a work also has existence in the realm of social facts and the social effects are not dissipated by being artistically transmuted. Such social effects while taking place beside the artistic effects must nevertheless be appraised with regard to the scope of the guarantee of Art. 5 III, IGG, since in the work of art the ‘real’ and ‘aesthetic’ worlds are unified.

6. The courts below were right in this connection to invoke Art. I I GG in their appraisal of its protective effect on the area of personality of the late actor Gustaf Gründgens. It would be inconsistent with the constitutional mandate of the inviolability of human dignity, which underlies all basic rights, if a person could be belittled and denigrated after his death. Accordingly an individual’s death does not put an end to the state’s duty under Art. I I GG to protect him from assaults on his human dignity.

In addition the Bundesgerichtshof and Oberlandesgericht held that Art. 2 I GG also had radiant protective effects in private law for Gründgens, though to a degree diminished by his death. However, only a living person is so entitled: the right of personality cannot survive death. An essential precondition of the basic right under Art. 2 I GG is the existence of at least a potential or a future person. It is irrelevant that a person may be affected during his lifetime by what the legal situation will be after his death, though this weighed with the Bundesgerichtshof. It is no derogation from the freedom of action and self-determination guaranteed by Art. 2 I GG to hold that the protection of the personality expires on death.

7. The resolution of the tension between the protection of the personality and the right to the artistic freedom cannot turn solely on the ‘social’ effects of a work of art but must also take account of specifically aesthetic considerations. The conception of man which underlies Art. I I GG is as much infused with the guarantee of freedom in Art. 5 III, I GG as the latter is influenced by the value implicit in Art. II GG. The individual’s claim to social respect and value is not superior to artistic freedom, but neither can art simply ignore the individual’s claim to proper respect.

Only by weighing all the circumstances of the given case can one decide whether the publication of a work which artistically deploys true details about an actual person poses a serious threat of encroachment on the protected area of his personality. One consideration must be whether and how far the artistic treatment of the material and its incorporation into the work as an organic whole have made the ‘copy’ independent of the ‘original’ by rendering objective, symbolical, and figurative what was individualised, personal, and intimate. If such an aesthetic appraisal reveals that the artist has indeed produced, or even intended to produce, a ‘portrait’ of the ‘original’, the outcome will depend on the extent of the artistic alienation and how seriously the ‘falsification’ damages the reputation or memory of the subject.

iv.

This Court must therefore decide whether in balancing the protection afforded by Art. I I GG to the personality of the late Gustaf Gründgens and his adopted son against the guarantee of artistic freedom under Art. 5 III, I GG the courts below have upheld the principles just stated. However, in this Court the opinions on that matter are equally divided, so it cannot hold that the decisions under attack infringed the Constitution (§ 15 II, 4 BVerfGG).

3. This Court has always held that a Verfassungsbeschwerde empowers it to review judicial decisions only within narrow limits, and that in particular it cannot review the facts as found and evaluated, the construction of mere law or its application in the individual case, which are matters for the regular courts [references]. These principles apply equally when review is sought of the balancing of the protection afforded to the parties to a civil suit by Art. II of Art. 5 III, I GG.

This Court is not, like a court of appeal, empowered to substitute its own opinion of the case for that of the proper judge. In cases like these it can only hold that the basic right of the losing party has been infringed if the judge has either failed to recognise that it is a case of balancing conflicting basic rights or has based his judgment on a fundamentally false view of the importance, and especially the scope, of either of those rights.

When the judgements under attack are so tested, it emerges that the Oberlandesgericht and the Bundesgerichtshof recognized that a balancing act was required in order to resolve the tension between the rights emanating from Art. I I GG and Art. 5 III, I GG, and that the judgments as a whole do not seem to be based on a fundamentally erroneous view of the importance or scope of the two basic rights.

©1999 Professor B S Markesinis. HTML edition by Lawrence Schäfer and © 1999 Gerhard Dannemann.

Federal Constitutional Court (First Senate) 15 January 1958
BVerfGE 7, 198

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: Professor B S Markesinis

Translated by Mr Tony Weir, Trinity College, Cambridge

1. Basic rights are primarily to protect the citizen against the state, but as enacted in the Constitution (GG) they also incorporate an objective scale of values which applies, as a matter of constitutional law, throughout the entire legal system.

2. The substance of the basic rights is expressed indirectly in the rules of private law, most evidently in its mandatory provisions, and is best effectuated by the judges’ use of the general clauses.

3. Basic rights may be infringed by a judicial decision which ignores the effect of basic rights on private law (§ go Act on Constitutional Court Procedure (BVerfGG)). Judicial decisions on private law are subject to review by the Constitutional Court, only in respect of such infringements of basic rights, not for errors of law in general.

4. Rules of private law may count as ‘general laws’ which may restrict the basic right of freedom of expression under Art. 5 II GG.

5. Such ‘general laws’ must be interpreted in the light of the especial significance in a free democratic state of the basic right to freedom of expression.

6. The basic right in Art. 5 GG protects not only the utterance of an opinion as such, but also the effect it has on others.

7. The expression of an opinion favouring a boycott does not necessarily infringe proper conduct (boni mores) under § 826 BGB; depending on all the circumstances such an expression may be justified as a matter of constitutional law.

Disposition

The decision of the Landgericht Hamburg Of 22 November 1951 infringes the complainants’ basic right under Art. 5 1, I GG and is therefore vacated. The matter is remitted to the Landgericht Hamburg.

Reasons

At the opening of ‘German Film Week’ on 20 September 1950 the complainant, then a Senator of the Free and Hanseatic City of Hamburg and Head of the State Press Office, gave an address, in his capacity as President of the Hamburg Press Club, to an audience of film distributors and directors. He said, inter alia:

The person least likely to restore the claim to morality which the German film forfeited during the Third Reich is the man who directed ‘Jud Süss’ and wrote the script for it. If this very man is chosen to represent the German film industry, who can tell what harm we may suffer throughout the world? True he was acquitted in a format sense in Hamburg, but substantially the judgment was a condemnation. We must call on the distributors and cinema owners to show character – not cheap, but worth the price. And I want the German film to show character as well. If it shows character in its imagination, visual daring and sterling craftsmanship, it will merit every assistance and achieve what it needs in order to survive: success with the public here in Germany and abroad.

Domnick-Film-Produktion GmbH immediately challenged the complainant to justify these charges against Veit Harlan, under whose direction and with whose screen-play they were making ‘Unsterbliche Geliebte’.

On 27 October 1950 the complainant released an ‘open letter’ to the Press by way of reply which contained the following:

The court did not gainsay the fact that for much of the Hitler regime Veit Harlan was the’Nazi film-director no. I’or that his film ‘Jud Süss showed him to be a committed exponent of the Nazis’ murderous purge of the Jews. Some businessmen here and abroad may not be opposed to Veit Harlan’s re-emergence, but the moral integrity of Germany must not be destroyed by hard-faced money-makers. Harian’s return can only reopen wounds barely healed, and resuscitate diminishing distrust fatal to German reconstruction. For all these reasons it is not only the right but the duty of all decent Germans to protest against, and even to boycott, this ignominious representative of the German film industry.

Doninick-Film-Produktion GmbH and Herzog-Film GmbH (the distributor of ‘Unsterbliche Geliebte’ in the Federal Republic), obtained an interlocutory injunction from the Landgericht Hamburg . . . and the Oberlandesgericht dismissed the complainant’s appeal. At the complainant’s request the two film companies were required to bring suit within a certain time. They did so, and on 22 November 1951 the Landgericht Hamburg issued the following judgment:

The defendant is ordered, on pain of fine or imprisonment as determined by the court, to refrain (1) from calling on theatre managers and film distributors not to programme the film ‘Unsterbliche Geliebte’ and (2) from calling on the German public not to go to see the film …

B. 1.

The complaint is admissible since the preconditions for the application of § 90 II, 2 BVerfGG are satisfied (decision before exhaustion of legal remedies).

The complainant alleges that the Landgericht’s judgment infringes his basic right to free expression of opinion as laid down in Art. 5 I, I GG.

The judgment of the Landgericht, an act of the public power of judicature, could infringe the complainant’s basic right by its content only if the court was bound to take account of the complainant’s basic right.

By enjoining the complainant from making statements apt to lead others to endorse his views about Harlan’s re-emergence and to follow him in discriminating against Harlan’s films, the judgment clearly restricts the complainant’s freedom of expression of opinion. The Landgericht granted the injunction as a matter of private law order on the basis that the complainant’s statements were tortious under § 826 BG B. Thus the public power has restricted the complainant’s freedom of expression on the basis of the plaintiff’s private law claim. This can constitute an infringement of the complainant’s basic right under Art. 5 I, i GG only if the applicable rules of private law are so substantially affected that they can no longer support the judgment.

The question whether basic rights affect private law, and if so in what manner, is much debated [references]. The extreme positions are, on the one hand, that basic rights constrain only the state, and, on the other, that basic rights (or at any rate the most important of them) prevail against everyone in private legal relations. Previous decisions of this Court support neither of these extreme positions, the conclusions drawn by the Federal Labour court in its decision of 10 May 1957 (NJW 1957, 1688) from our decisions Of 17 and 23 January 1957 (BVerfGE 6, 55 and 6, 84) being unwarranted. Nor is it necessary today to deal with all aspects of the debated question of the effect on third parties’ (Drittwirkung) of basic rights. The matter can be properly resolved by the following considerations:

1. There is no doubt that the main purpose of basic rights is to protect the individual’s sphere of freedom against encroachment by public power: they are the citizen’s bulwark against the state. This emerges from both their development as a matter of intellectual history and their adoption into the constitutions of the various states as a matter of political history: it is true also of the basic rights in the Basic Law, which emphasises the priority of human dignity against the power of the state by placing the section on basic rights at its head and by providing that the constitutional complaint(Verfassungsbeschwerde), the special legal device for vindicating these rights, lies only in respect of acts of the public power.

But far from being a value-free system [references] the Constitution erects an objective system of values in its section on basic rights, and thus expresses and reinforces the validity of the basic rights [references]. This system of values, centring on the freedom of the human being to develop in society, must apply as a constitutional axiom throughout the whole legal system: it must direct and inform legislation, administration, and judicial decision. It naturally influences private law as well; no rule of private law may conflict with it, and all such rules must be construed in accordance with its spirit.

The legal content of basic rights as objective norms informs private law by means of the rules which directly control this area of law. Just as new rules must conform to the value-system of the basic rights, so existing and older rules receive from it a definite constitutional content which thereafter determines their construction. From the point of view of substantive and procedural law a dispute between private citizens on the rights and duties that arise from rules of conduct thus influenced by the basic rights remains a dispute of private law. It is private law which is interpreted and applied even if its interpreters must follow the public law of the constitution.

The influence of the value-system of the basic rights is clearest in those rules of private law which are mandatory (zwingendes Recht) and form part of ordre public in the wide sense, i.e. those rules which in the public interest apply to private legal relations whether the parties so choose or not. Such provisions, being functionally related and complementary to public law, are especially exposed to the influence of constitutional law. ‘General clauses’, such as § 826 BGB, by which human conduct is measured against extralegal standards such as ‘proper conduct’ (güle Sitten), allow the courts to respond to this influence since in deciding what is required in a particular case by, such social commands, they must start from the value-system adopted by, the society in its constitution at that stage of’ its cultural and spiritual development. The-general clauses have thus been rightly described as ‘points of entry’ for basic rights into private law [references].

The judge is constitutionally bound to ascertain whether the applicable rules of substantive private law have been influenced by basic rights in the manner described; if so, he must construe and apply the rules as so modified. This is what is meant by saying that the civil judge is bound by the basic rights (Art. I III GG). If he issues a judgment which ignores this constitutional influence on the rules of private law, he contravenes not only objective constitutional law by misconceiving the content of the objective norm underlying the basic law, but also, by his judgment, in his capacity as a public official, contravenes the Constitution itself, which the citizen is constitutionally entitled to have respected by the judiciary. Quite apart from any remedies he may have to correct this error in the courts of private law, the citizen can invoke the Federal Constitutional Court by means of a Verfassungsbeschwerde.

The Constitutional Court must determine whether the reach and effect of the basic rights in private law has been correctly ascertained by the regular courts. But this is also the limit of its investigation: it is not for the Constitutional Court to check judgments of civil courts for errors of law in general; the Constitutional Court simply judges of the ‘radiant effect’ of the basic rights on private law and implements the values inherent in the precept of constitutional law. The function of the Verfassungsbeschiverde is to test all acts, whether of the legislature, the executive or the judiciary, for ‘compatibility with the Constitution’ (§ go BVerfGG). The Federal Constitutional Court is certainly not to act as a court of review, much less overreview, for the civil courts, but neither may it abjure consideration of such judgments entirely or leave uncorrected any instance which comes to its notice of the misapplication of the rules of basic rights.

2. The basic right to freedom of expression of opinion (Art. 5 GG) seems to pose special problems with regard to the relationship between basic rights and private law. As in the Weimar Constitution (Art. 118), this right is constitutionally guaranteed only within the limits of ‘general laws’ (Art. 5 II GG). Before inquiring what laws are &general laws’ in this sense, one might suppose that the constitution’s reference to such laws must be to such laws as judicially construed, with the result that no judicial construction of such a law which limited the basic right could be regarded as a ‘breach’ of the basic right. This is not, however, the sense of the reference to ‘general laws’. The basic right to freedom of expression, the most immediate aspect of the human personality in society, is one of the most precious rights of man (Declaration of the Rights of Man and Citizen (I 789) Art. II). It is absolutely essential to a free and democratic state, for it alone permits that constant spiritual interaction, the conflict of opinion, which is its vital element (BVerfGE 5, 85 (205)). In a certain sense it is the basis of freedom itself, ‘the matrix, the indispensable condition of nearly every other form of freedom’ (Cardozo).

Given this fundamental importance for the free democratic state of freedom of expression of opinion, it would be illogical for a constitution to make its actual scope contingent on mere statute (and thus necessarily on the holdings of courts construing it). What was said earlier about the relationship between basic rights and private law applies here also: general laws which have the effect of limiting a basic right must be read in the light of its significance and always be construed so as to preserve the special value of this right, with, in a free democracy, a presumption in favour of freedom of speech in all areas, and especially in public life. We must not see the relationship between basic right and ‘general laws’ as one in which ‘general laws’ by their terms set limits to the basic right, but rather that relationship must be construed in the light of the special significance of this basic right in a free democratic state, so that the limiting effect of ‘general laws’ on the basic right is itself limited.

In its function as ultimate guardian of the basic rights through the medium of the Verfassungsbeschwerde, the Federal Constitutional Court must therefore have the power to supervise the decisions of courts whose application of a general law in this area may unduly restrict the scope of the basic right in the individual case. This Court must b. e competent to uphold as against all organs of public power, including the civil courts, the special value it represents for a free democracy, and thus to reconcile, as required by constitutional law, the conflicting restrictive tendencies of the basic right and the ‘general laws’.

3. The concept of ‘general’ law has always been controversial. Leaving on one side the question whether the concept may not be due to an error in the drafting of Art. 118 of the 1919 Constitution [reference], we may note that it was then construed to include all which ‘do not forbid an opinion as such and do not envisage the expression of opinion as such’, but rather ‘serve to protect a legal interest which deserves protection without regard to any particular opinion’, and protect a community value superior to the activity of freedom of opinion’ [reference]. Exponents of the Grundgesetz agree with this [reference: ‘laws which do not inhibit the purely intellectual effect of a mere expression of opinion’].

If the term ‘general laws’ is so understood, we may state the protection of the basic right as follows:

It is unacceptable to hold that the Constitution protects only the expression of opinion, and not its inherent or intended effect on others, for the whole point of an expression of opinion is to have ‘an effect on the environment of ideas’ [reference]. Thus value-judgments, which always have an intellectual aim, namely to persuade others, are protected by Art. 5 1, 1 GG; indeed it is the stance of the speaker as expressed in the value-judgment by which he hopes to affect others which is principally protected by this basic right. To protect the expression and not to protect its effect would be a nonsense.

In this sense the expression of opinion is free in so far as its effect on the mind is concerned; but that does not mean that one is entitled, just because one is expressing an opinion, to prejudice interests of another which deserve protection against freedom of opinion. There has to be a ‘balance of interests’; the right to express an opinion must yield if its exercise infringes interests of another which have a superior claim to protection. Whether such an interest exists in a particular case depends on all the circumstances.

4. From this point of view the rules of private law may perfectly well be ranked as ‘general laws’ in the sense of Art. 5 II GG. If this has not been done by commentators hitherto [reference], that is simply because basic rights have been considered good only as against the state, so it was natural to consider as ‘general laws’ having limiting effect only those laws which regulated state activity vis-a-vis the individual, that is, laws of a public law nature. But if the basic right to free expression of opinion affects relations of private law as well and favours free expression of opinion against the fellow citizen also, then rules of private law which operate to protect superior legal interests must also be taken into account as possibly limiting the basic right. After all, if provisions of criminal law designed to protect honour or other essential aspects of human personality can set limits to the exercise of the fundamental right to freedom of expression, it is not obvious why similar provisions of private law should not equally do so.

©1999 Professor B S Markesinis. HTML edition by Lawrence Schäfer and © 1999 Gerhard Dannemann.