Urteil des BVerfG vom 15.03.2017
BVerfG: are, motion, legislative, same, who, general, obligation, rate, police, intervention
Entscheidungen
FEDERAL CONSTITUTIONAL COURT
- 1 BvR 1778/01 -
In the proceedings
on
the constitutional complaint
1. of Ms. B. . . .
and of another 89 complainants,
. . .
-
Professor Dr. Jan Ziekow,
Gartenstraße 3, 67361 Freisbach -
against the Gesetz zur Bekämpfung gefährlicher Hunde (Fight
against Dangerous Dogs Act) of 12th April, 2001 (Bundesgesetzblatt [BGBl, Federal
Law Gazette] I, p. 530) and § 11 of the Tierschutz-Hundeverordnung (Animal
Protection Decree on Dogs) of 2nd May, 2001 (BGBl I, p. 838)
here: Motion for a temporary injunction concerning the complainants bringing the constitutional complaints 1 to 41
the Second Chamber of the First Senate of the Federal Constitutional Court, through Judges
Jaeger
Hömig, and
Bryde
unanimously decided . . . on 23rd November, 2001:
The motion for a temporary injunction is rejected as being unfounded.
Extract from grounds:
1
The subject matter of the proceeding is a motion by dog breeders to suspend, for the time being, the application of
t h e Gesetz zur Bekämpfung gefährlicher Hunde (Fight against Dangerous Dogs Act) of 12th April, 2001
(Bundesgesetzblatt [BGBl, Federal Law Gazette] I, p. 530) and of § 11 of the Tierschutz-Hundeverordnung (Animal
Protection Decree on Dogs) of 2nd May, 2001 (BGBl I, p. 838).
I.
2
1. The Gesetz zur Beschränkung des Verbringens oder der Einfuhr gefährlicher Hunde in das Inland
(Hundeverbringungs- und -einfuhrbeschränkungsgesetz - HundVerbrEinfG; Act Restricting the Introduction of
Dangerous Dogs from Member States of the European Union and Third Countries into the Domestic Territory) has
been enacted as Article 1 of the Fight against Dangerous Dogs Act. Pursuant to § 2.1, sent. 1 of the HundVerbrEinfG,
dogs of the breeds that are listed in this sentence may not be introduced into the territory of the Federal Republic of
Germany from member states of the European Union and from third countries. Pursuant to § 2.1, sent. 2 of the
HundVerbrEinfG, dogs that belong to other breeds the dangerousness of which is presupposed in the regulations of
the Land (federal State) in which the dog will be permanently kept may not be introduced into this Land from abroad.
Apart from this, the . . . Act contains provisions that concern the control of the fulfilment of the duties that result from
the Act or from decrees that are issued on the basis of the Act; moreover, the Act contains: (1) provisions as to
offences that are punishable by imprisonment, fines or administrative fines; and (2) a regulation on the confiscation of
dogs and other objects that are connected with corresponding acts.
3
Article 2 of the Fight against Dangerous Dogs Act has amended the Tierschutzgesetz (TierSchG, Animal Protection
Act). Pursuant to this Article, § 11b.2.a of the Animal Protection Act (new version) prohibits to breed vertebrate
animals, or to modify them by way of biotechnological measures or genetic engineering, if it can be expected that
their offspring will show: (1) hereditary behavioural disturbances that involve suffering; or (2) a hereditary increase in
aggressiveness. § 11b.5 of the Animal Protection Act empowers the competent Federal ministry: (1) to specify the
hereditary modifications and behavioural disturbances and the hereditary increase in aggressiveness under §§ 11b.1
and 11.b.2 of the Animal Protection Act, and (2) to impose a ban, or restrictions, on the breeding of vertebrates that
belong to specific species, breeds, or lines if breeding can result in infringements of §§ 11b.1 and 11b.2; the Federal
Ministry may do so by way of decrees that require the consent of the Bundesrat (the council of Länder Governments).
Pursuant to § 11, sent. 3 of the Animal Protection Decree on Dogs of 2nd May, 2001 (BGBl I, p. 838), which was
enacted, inter alia, on this basis, a hereditary increase in aggressiveness under the terms of § 11b.2 of the Animal
Protection Act can be presupposed in the case of Pit Bull Terriers, Staffordshire Bull Terriers, American Staffordshire
Terriers, Bull Terriers and crossbreeds with such animals.
4
Finally, Article 3 of the Fight against Dangerous Dogs Act has inserted a new § 143 in the Strafgesetzbuch (the
German Criminal Code). Pursuant to § 143, breeding and trading dangerous dogs contrary to a ban imposed by way of
regulations under Land law will be punished by up to two years' imprisonment or a fine. The same measure of
punishment applies if a dangerous dog is kept without the required permit or contrary to an enforceable ban.
5
2. By way of their constitutional complaint that they have filed simultaneously, the complainants, who breed dogs
that are covered by the challenged regulations, and some of whom intend to introduce such dogs into the Federal
territory from third countries, claim that the challenged Act infringes Article 2.1, Article 3.1, Article 12.1, Article 13,
Article 14.1 and Article 103.2 of the Basic Law.
II.
6
By way of their motion for a temporary injunction, the applicants assert that the constitutional complaint is neither
inadmissible nor patently unfounded. They further argue that it cannot be expected that the Federal Constitutional
Court will pronounce its decision in the constitutional complaint proceeding so speedily that this can avert the serious
detriment that already threatens the applicants at present. In the complainants' opinion, the weighing of consequences
that is therefore required shows a clear predominance of the negative effects that would arise in the event that the
temporary injunction is not issued.
III.
7
The motion is admissible but unfounded.
8
1. Pursuant to § 32.1 of the Bundesverfassungsgerichtsgesetz (BVerfGG, Federal Constitutional Court Act), the
Federal Constitutional Court may, in a dispute, deal with a matter provisionally by means of a temporary injunction if
this is urgently required to avert serious detriment, to prevent imminent violence or for any other important reason of
public interest. When doing so, the Federal Constitutional Court must, in principle, leave the reasons that are given to
substantiate the allegation of the unconstitutionality of the challenged Act out of consideration unless the
constitutional complaint, from the outset, proves to be inadmissible or patently unfounded. If the outcome of the
constitutional complaint proceeding could go in either direction, the Federal Constitutional Court must weigh (1) the
consequences that would arise in the event that a temporary injunction is not issued but the underlying constitutional
complaint were eventually granted against (2) the negative effects that would arise if the requested temporary
injunction is granted but the underlying constitutional complaint is later unsuccessful. A particularly strict standard is
to be applied in such weighing of consequences when, as in the case at hand, a legal regulation is supposed to be
suspended (cf. BVerfGE [Decisions of the Federal Constitutional Court] 94, p. 334 [at pp. 347-348]; 96, p. 120 [at
pp. 128-129]). The Federal Constitutional Court may only with utmost restraint make use of its power to suspend a law
(cf. BVerfGE 82, p. 310 [at p. 313]) because a temporary injunction against a law is always a considerable
intervention in parliament's legislative discretion.
9
2. In the case at hand, the matter can be decided without having to resolve whether and to what extent the
constitutional complaint is admissible. The same applies to the question whether the constitutional complaint is
patently unfounded. This is because the result of the required weighing of consequences clearly goes against the
applicants.
10
a) If the requested temporary injunction is not granted but the underlying constitutional complaint later on proves to
be well-founded, the provisions of the Fight against Dangerous Dogs Act and of § 11 of the Animal Protection Decree
on Dogs are applicable until the decision in the constitutional complaint proceeding is pronounced.
11
This means first and foremost that the breeders of dogs that are specified in the regulations will temporarily suffer
economic disadvantages, in particular due to: (1) the ban under § 2.1 of the HundVerbrEinfG on introducing specified
dogs from member states of the European Union and third countries into the domestic territory; and (2) the ban on
breeding that results from § 11b.2 of the Animal Protection Act in conjunction with § 11 of the Animal Protection
Decree on Dogs; according to the applicants' statements, the disadvantages will be considerable in the case of some
breeders. According to the applicants' statements, it can also not be precluded that, in the event that the
constitutional complaint is successful, it will, in many cases, no longer be possible to continue breeding with the
existing dogs if no temporary injunction has been issued. In this respect, it must, however, be taken into account that:
(1) despite the applicants' statement that their economic existence is threatened, all applicants, with the exception of
the applicants bringing the constitutional complaints 9, 10, and 37, have indicated, as their occupations, activities
other than that of a dog breeder; and that (2) the sales revenues that are stated in the application, current expenses
and payable taxes deducted, would, as a general rule, not by themselves be sufficient for securing the affected
persons' livelihood. Contrary to the applicants' opinion, a considerable public interest in maintaining the biodiversity of
the animals that are designated as dangerous dogs in the Act, which could be impaired by the reduction in genetic
potential that would result from the above-mentioned bans, is not apparent at present.
12
Apart from this, the provisions under §§ 3 to 7 of the HundVerbrEinfG that concern: (1) the control of compliance
with the Act; and (2) offences that are punishable by imprisonment, fines or administrative fines will, for the time
being, continue to be applicable if no temporary injunction is issued. It is therefore possible that, for instance, the
premises of dog owners who are obliged to furnish information that is required for implementing the Act and decrees
that are based on the Act will be entered by persons who are authorised to do so by the competent authorities . . . ,
. . . that measures of prosecution of criminal offences will be taken against persons who, contrary to § 2.1 of the
HundVerbrEinfG, introduce dogs from member states of the European Union or third countries into the domestic
territory, or that dangerous dogs will be confiscated. The obligation to furnish, for the time being, information to the
competent authorities that serves: (1) to implement the Act Restricting the Introduction of Dangerous Dogs from
Member States of the European Union and Third Countries into the Domestic Territory; and (2) to implement the
decrees that have been issued on the basis of the Act, however, affects the applicants' interests and the interests of
other breeders of dogs that are listed in the respective regulations considerably less than the ban on introducing such
dogs into the domestic territory. Apart from this, the above-mentioned right to enter premises is only valid in the
framework of the obligation to furnish information pursuant to § 3.1 of the HundVerbrEinfG, which means that the
exercise of this right can be counteracted by duly furnishing information and producing the corresponding documents.
13
To the extent that: (1) §§ 5 and 6 of the HundVerbrEinfG contain warnings that by failing to fulfil duties that result
from the Act Restricting the Introduction of Dangerous Dogs from Member States of the European Union or Third
Countries to the Domestic Territory and from decrees that refer to the Act, a person may render himself or herself
liable to imprisonment, fines or administrative fines; and to the extent that (2) § 7 of the HundVerbrEinfG makes it
possible to confiscate the dogs and other objects that are connected with corresponding criminal offences, dog
owners and breeders can prevent, by complying, for the time being, with the relevant regulations, that they are
affected by the regulations that impose sanctions. The same applies to measures of prosecution of criminal offences
under the new § 143 of the German Criminal Code.
14
To the extent that the challenged regulations, in the applicants' opinion, violate Community law, the competent
courts and public authorities are, in principle, obliged to give precedence to the application of Community law with
direct effect - irrespective of whether the requested temporary injunction is issued - over domestic regulations of the
type that is challenged here (cf. ECJ, European Court Reports 1964, p. 1251 [at pp. 1269 et seq.]; BVerfGE 31,
p. 145 [at pp. 173 et seq.]; 73, p. 339 [at pp. 374-375]; 75, p. 223 [at pp. 244-245]; 85, p. 191 [at p. 204]; BVerwGE
[Decisions of the Federal Administrative Court] 110, p. 140 [at pp. 150-151]). From this it follows that exactly on the
basis of the applicants' interpretation of the law, the effective validity of Community law is not called into question
even if the temporary injunction is not issued . . .
15
b) If, however, the temporary injunction is granted but the underlying constitutional complaint is later unsuccessful
this has far-reaching consequences for the general public and, potentially, for every individual.
16
According to the statement given by the Federal Government in support of the bill (cf. Bundestagsdrucksache
[BTDrucks, Records of the Bundestag] 14/4451 p. 1, 8 under A I), the Fight against Dangerous Dogs Act is supposed
to complement the regulations that are issued by the Länder (under the competence of which the resistance to threats
falls first and foremost) by regulations in the Federal sphere of competence that serve to protect human beings from
dangerous dogs or from the irresponsible acts of specific dog owners. From this it follows that the Act, at any rate,
also serves to protect the legal interests of human life and human health, which fall under Article 2.2.1 of the Basic
Law. The statement in support of the bill put forward that the recent increase in the occurrence of attacks on human
beings by dangerous dogs gave rise to the bill. The statement particularly mentioned an incident in Hamburg in which
a Pit Bull Terrier and a Staffordshire Terrier atrociously killed a six-year-old child in a schoolyard.
17
If the temporary injunction were issued, the ban on the introduction of dangerous dogs into the domestic territory
from member states of the European Union and third countries would not be applicable for the time being, so that
such dogs could be introduced into the Federal territory until the decision in the constitutional complaint proceedings
is pronounced, and this alone would increase the threat to human life and human health that, in the opinion of the
parliament, emanates from such dogs. Because it was not possible for the Länder to issue a ban on the introduction
of dangerous dogs that is: (1) valid in the entire Federal Republic; (2) enforceable, at any rate to some extent, by
border controls; and that is (3) connected with the threat of a prison sentence of up to two years, the suspension of
§ 2 of the HundVerbrEinfG would, against the background of the legislative concept of the Act, result in a marked
reduction of the protection from dangerous dogs.
18
The same applies, as far as the result is concerned, to a suspension of the ban on breeding that is the consequence
of § 11b.2 of the Animal Protection Act in conjunction with § 11 of the Animal Protection Decree on Dogs. Also these
regulations can reduce the number of dogs that the parliament regards as dangerous. It is true that similar regulations
to this effect exist on the Länder level. They, however, cannot provide a comparable protection in all respects if for no
other reason than that the wording of some of the regulations is less strict. For instance, § 1.2 of the police decree on
the keeping of dangerous dogs of 3rd August, 2000, issued by the Ministry of the Interior and the Rural Area Ministry
of the Land Baden-Württemberg (Gesetzblatt [GBl, Law Gazette], p. 574), states only in the form of an assumption
that the characteristic features of a fighting dog apply to the breeds American Staffordshire Terrier, Bull Terrier and Pit
Bull Terrier (which means that the statement can be refuted). Pursuant to § 1.3 of this decree, Staffordshire Bull
Terriers can (only) on a case-by-case basis be classified as fighting dogs, i.e., if they show signs of increased
aggressiveness and dangerousness towards human beings or animals. On the other hand, the ban on breeding
pursuant to §§ 11b and 13a.2 of the Animal Protection Act in conjunction with § 11 of the Animal Protection Decree on
Dogs does not provide, as regards the species of dogs listed above, the necessity or the possibility of checking the
dangerousness of a dog on a case-to-case basis.
19
In the view of the threat to human beings that emanates from the specified animals, the new § 143 of the German
Criminal Code introduces penalties in connection with the bans on breeding, keeping and trading dangerous dogs that
exist under Länder law in order to effectively enforce such bans (cf. Records of the Bundestag 14/4451, p. 8 under A
IV). A suspension of this provision would mean that its preventive effect would cease, which would render the
enforcement of the above-mentioned bans under Länder law considerably more difficult.
20
Finally, a temporary injunction would intervene with the legislative discretion of the Federal parliament because the
legislative concept that the Federal parliament pursues by means of the Fight against Dangerous Dogs Act . . . could
not be implemented for the time being.
21
c) A comparison of the negative consequences of a temporary injunction with the negative effects that would arise in
the event that the temporary injunction is not issued shows a predominance of the negative effects that would result
from the issuance of the temporary injunction. If a temporary injunction were issued, measures that: (1) serve the
protection of human life, which constitutes a value of paramount importance within the constitutional order (cf.
BVerfGE 49, p. 24 [at p. 53]); and that (2) serve to protect physical integrity could not be implemented for the time
being. On the basis of the parliament's interpretation, it must be assumed that there will be an increased probability of
new incidents that involve attacks on human beings by dangerous dogs. In many cases, the damage to human life
and health that could result from such attacks would be irreversible and would carry considerable weight. In
comparison, the negative effects that could occur if no temporary injunction is issued would be far less serious. This
applies in particular with a view to the applicants' economic interests and to those of comparable dog breeders (cf.
BVerfGE 6, p. 1 [at p. 6]).
22
. . .
Jaeger
Hömig
Bryde