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Provisions on keeping laying hens unconstitutional
Press Release No. 111/2010 of 02 December 2010
Order of 12 October 2010
2 BvF 1/07
In response to the application for judicial review of the Land government of Rhineland-Palatinate, the Second Senate of the Federal Constitutional Court, by Order of 12 October 2010, held that the provision on the keeping of laying hens in small colonies ((§ 13b Tierschutz-Nutztierhaltungsverordnung (Animal Welfare Livestock Husbandry Ordinance) - TierSchNutztV) is incompatible with the Basic Law. The Senate also held that the relevant transitional provisions (§ 33.3 and § 33.4 TierSchNutztV in the version submitted for review, now § 38.3 and § 38.4 TierSchNutztV) were incompatible with the Basic Law. There must be a reform of these provisions by 31 March 2012.
In a decision of the year 1999, the Federal Constitutional Court declared the Hen Keeping Ordinance (Hennenhaltungsverordnung) of 10 December 1987 null and void because it regarded the area requirements for conventional cage keeping provided for in this Ordinance as incompatible with the requirements of the Animal Welfare Act (Tierschutzgesetz); in addition, it found that the citation requirement of Article 80.1 sentence 3 of the Basic Law was violated (Decisions of the Federal Constitutional Court - Entscheidungen des Bundesverfassungsgerichts, BVerfGE 101, 1).
In order to close the gap in the legislation created by the judgment of the Federal Constitutional Court and to implement an EU Directive (Directive 1999/74/EC) which was issued shortly after the judgment, provisions on the keeping of laying hens were added to the Animal Welfare Livestock Husbandry Ordinance in February 2002. This addition abolished the conventional keeping of hens in cages. What are known as "enriched cages" in Directive 1999/74/EC (larger cages which also had to have particular furnishings - perches, nest, scratching area) - were also not permitted. The only forms of keeping that were still provided for were barn housing and aviaries.
As a result of a drafting recommendation by the Bundesrat, the requirements for keeping laying hens and the associated transitional periods were again amended by the Second Ordinance to Amend the Animal Welfare Livestock Husbandry Ordinance (Zweite Verordnung zur Änderung der Tierschutz-Nutztierhaltungsverordnung) of 1 August 2006. Keeping in cages was reintroduced, no longer in the form of conventional cages, but in the form of the small colony system (Kleingruppenhaltung, § 13b TierSchNutztV), whose requirements are higher than the minimum requirements of Directive 1999/74/EC. The transitional provisions were more generous.
The application for judicial review is directed against these provisions, in a later version of the Ordinance with unchanged contents; it challenges the procedure by which the provisions came into existence and asserts that the poultry rearing conditions provided for are contrary to animal welfare.
It was originally intended that the Animal Welfare Livestock Husbandry Ordinance should only be amended by the introduction of provisions on pig keeping. However, in April 2006 the Bundesrat approved this amendment only subject to the proviso that the above provisions on the keeping of laying hens were inserted. The text of the intended new provision as amended by the Bundesrat's drafting recommendation of April 2006 was notified promptly to the European Commission in April 2006. At the beginning of May 2006, the Cabinet took note of the Bundesrat's drafting recommendation with approval. Thereupon, the Animal Welfare Commission (Tierschutzkommission) was involved.
In essence, the decision is based on the following considerations:
1. The provisions submitted for review are not within the terms of the enabling statute required by Article 80.1 of the Basic Law, because the Animal Welfare Commission was not heard in the manner required under the Animal Welfare Act (§ 16b TierSchG). If the statute requires a hearing before legislation is passed, it intends the result of the hearing to be included for informational purposes in the legislature's decision on the weighing of interests. The hearing is not correct if it is only carried out pro forma, without the legislature having the possibility or readiness to take account of the decision in the weighing of interests. In the present case, the hearing was not carried out in such a way that its information could enter the consultations.
Even before the Animal Welfare Commission hearing, the Cabinet had taken note with approval of the Bundesrat's drafting recommendation of April 2006. The notification to the European Commission had also taken place before the Animal Welfare Commission hearing. In an Order of January 2005 passed on state secretary level, which it submitted in the present proceedings, the Federal Government made a statement on the essential elements of notification. According to this, it is customary to notify draft ordinances only after the necessary hearings, and only following this to involve the Cabinet. However, in no case is it provided that the notification or the Cabinet involvement should take place before the intended hearings. If, in contrast, in the present case the Animal Welfare Commission was not involved until after the draft ordinance had both passed the Cabinet stage and also been notified to the European Commission, this suggests that the contents of the ordinance were already decided at the time when the Animal Welfare Commission dealt with it.
This is supported and confirmed by the particular situation that the Bundesrat's drafting recommendation had created. The practice of such drafting recommendations laid down in § 65 of the Joint Rules of Procedure of the Federal Ministries is not in itself constitutionally objectionable. It is not necessary here to decide what limits of factual relevance must be preserved and what the consequences of exceeding these limits are. The order shows that at the date when the Animal Welfare Commission dealt with it, the contents were no longer open to discussion as is required for a hearing. In the year 2005, the European Court of Justice found against the Federal Republic of Germany for failure to implement directives on pig keeping, and in consequence the ordinance procedure also came under pressure of time with regard to adjustment. Under this pressure, the competent ministry was unable to escape the Bundesrat's suggestion. As a result, the procedure was shaped under the impression that there was a de facto compulsion to pass the ordinance with the contents desired by the Bundesrat: this is shown not only by the deviation from the sequence of hearing, notification and Cabinet involvement provided for in the Order on state secretary level of January 2005, but also by the fact that in this case the notification was made following the Bundesrat procedure, contrary to the recommendation of this Order that delegated legislation requiring approval should only be forwarded to the Bundesrat after the notification standstill period. A Bundesrat drafting recommendation does not invalidate a statutory requirement for a hearing on the passing of delegated legislation. On the contrary: if the drafting recommendation provides for substantial amendments, the Ordinance may only be issued with the intended amendments after a new hearing. Nor can the pressure of time in which the authority issuing delegated legislation found itself with regard to the necessary adjustment of the Animal Welfare Livestock Husbandry Ordinance to requirements of Community law justify such a deviation from the procedural requirements. It is a matter for the competent legislative bodies to introduce necessary measures for the implementation of directives in such good time that the national law-making procedure can take place in compliance with the procedural requirements of German law.
2. The authority issuing delegated legislation, in breaching the hearing requirements, also violated Article 20a of the Basic Law. Article 20a of the Basic Law requires the state to protect animals. Animal welfare is a concern of constitutional status which is to be taken into account in the decision on the weighing of interests. The legislative bodies must take account of animal welfare as an aim of state policy in appropriate provisions; in this connection, they have a broad drafting discretion. However, if the legislature, in using this discretion, has restricted the discretion of the authority issuing delegated legislation by procedural provisions which are specifically intended to encourage the creation of results of the legislative procedure which are substantively in accordance with animal welfare, and which thus serve animal welfare as an aim of state policy, this violates not only non-constitutional law, but also Article 20a of the Basic Law, if the statutorily prescribed procedure is not followed. Delegated legislation which was passed in violation of the hearing requirements of § 16b.1 sentence 2 TierSchG thus violates Article 20a of the Basic Law at the same time.