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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 8 September 2014, 1 BvR 23/14 [CODICES]
Abstract
Third Chamber of the First Senate
Order of 8 September 2014
1 BvR 23/14

Headnotes (non-official):

The requirements for preliminary injunctions awarding journalists access to information may not be excessive.

Summary:

I.
The Federal Constitutional Court had to decide on a constitutional complaint of a journalist who had unsuccessfully applied for a preliminary injunction from the Federal Administrative Court granting him access to information held classified by the Federal Intelligence Service.

II.
The Federal Constitutional Court ruled that the principle of effective legal recourse enshrined in Article 19.4 of the Basic Law mandates that requirements imposed on preliminary injunctions that award journalists access to information may not be overly strict. Applicants must show that there is a particular public interest in the information they seek and that the information concerns current public discussions. Limiting preliminary injunctions to cases in which disclosure cannot be postponed would interfere with the freedom of the press in an unjustified manner.

The decision is based on the following considerations:
1. Article 19.4 of the Basic Law provides for effective legal recourse against all state actions. Courts are required to particularly consider any affected fundamental rights as well as the requirements of effective legal recourse. The more severe the consequences of denying a preliminary injunction are and the more difficult it would be to remedy them in case the applicant won the main proceedings, the more urgent the need for a preliminary injunction becomes. These requirements also affect and may limit the prohibition on deciding a case’s merits by way of preliminary injunction.

2. The Federal Administrative Court was right to assume that issuing a preliminary injunction granting access to information would already decide the case’s merits. The consequences it derived for the present case are constitutionally questionable but still permissible.
a) In determining whether there is a severe disadvantage that would justify deciding the case’s merits by way of preliminary injunction, the court because of the fundamental character of the freedom of the press must consider the importance informational rights have for effective reporting.
b) The challenged decision ultimately does take adequately into account the complainant’s protected interest in publishing information in a way that is as self-determined as possible concerning the time of publication.
(1) However, it is constitutionally questionable that the Federal Administrative Court assumed that reporting must always be expected to suffer from a certain delay in time and that exceptions may only be made if the inquiry concerns facts that must undeniably be investigated immediately, e.g. in cases of severe breaches of the law by government authorities or if immediate government action becomes necessary to prevent imminent harm to the common good. Such an interpretation excessively restricts the “severe disadvantage” and imposes a standard that is incompatible with the importance of a free press for a state under the rule of law.
The “if” and the “how” of reporting are core elements of the self-determination of the press, which also protects the methods of acquiring the corresponding information. The standard laid down by the Federal Administrative Court restricts the instrument of preliminary injunctions in a way that violates the freedom of the press.
Even though it is permissible to limit preliminary injunction to cases in which there is a particular public interest in the information sought and in which the information is relevant to ongoing public discussions, restricting this way of acquiring information by imposing excessive requirements on the urgency of the information’s publication prevents the press from exercising its oversight function.
(2) Nevertheless, the Federal Administrative Court’s decision in the case at hand is beyond reproach, as the complainant failed to show why disclosing the information he sought – dating back to a period between 2002 and 2011 – was suddenly so urgent as to warrant a preliminary injunction, which would have even decided the case’s merits. Even though past information may at a later point in time become critically urgent, it is the complainant who must show why this is the case.

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Additional Information

ECLI:DE:BVerfG:2014:rk20140908.1bvr002314

Please note that only the German version is authoritative. Translations are generally abriged.