Bundesverfassungsgericht - Pressestelle -
No. 134/2009 of 1 December 2009
Judgment of 1 December 2009 – 1 BvR 2857/07 and 1 BvR 2858/07 –
Opening of shops in Berlin on all four Sundays in advent is not constitutional
In 2006, the so-called Federalism Reform I transferred the legislative
competence for the law regulating shop opening hours to the Länder
(states). The Berlin House of Representatives thereupon adopted the
Berlin Shop Opening Hours Act (Berliner Ladenöffnungsgesetz –
BerlLadÖffG), which entered into force on 17 November 2006. Above all,
the Act lifts the ban on the Sunday opening of shops for all four
successive Sundays in advent from 1 p.m. to 8 p.m. by virtue of law and
without any other preconditions; the ban can be lifted “in the public
interest” on four more Sundays and holidays per year by means of a
general order made by the Senate Administration. In addition, retail
shops can open between 1 p.m. and 8 p.m. on two other Sundays or
holidays on the occasion of “special events, in particular company
anniversaries and street parties”. Apart from this, numerous exemption
provisions relating to particular classes of products and to particular
locations and occasions exist. For working days, bans on the opening of
shops are lifted altogether (i.e. shops may open 24 hours a day).
By now, all federal Länder with the exception of the Free State of
Bavaria have enacted provisions on shop opening hours in Land laws.
Basically, all Land laws set out that shops may not open on Sundays and
holidays. By exception provisions, most other federal Länder lift the
ban on four Sundays and holidays; Baden-Württemberg merely does so for
three such days, Brandenburg, on the contrary, for six. In most cases,
the opening of shops on Sundays in advent is excluded, or is only
permitted on one Sunday in advent per year. Apart from Berlin, only the
laws on shop opening hours of Brandenburg, Saxony and Saxony-Anhalt do
not provide for a particular protection of the Sundays in advent.
By means of their constitutional complaints, the Evangelical Church
Berlin-Brandenburg-Silesian Oberlausitz (1 BvR 2857/07) and the Berlin
Archdiocese (1 BvR 2858/07) challenge the possibilities of opening shops
in Berlin on Sundays and holidays, which are more extensive in
comparison to the former legal regulation and to the provisions on shop
opening hours in other federal Länder (see also German press release no.
48/2009 of 7 May 2009).
The First Senate of the Federal Constitutional Court decided that the
provision on shop opening hours on all four Sundays in advent (§ 3.1
alternative 2 Berl¬LadÖffG) is incompatible with Article 4.1 and 4.2 in
conjunction with Article 140 of the Basic Law (Grundgesetz – GG) and
Article 139 of the Weimar Constitution (Weimarer Reichsverfassung –
WRV)). The Senate held that the churches which lodged the constitutional
complaints were authorised to do so. The question of whether and to what
extent religious communities can, by means of a constitutional
complaint, invoke the constitutional guarantee of Sundays and holidays
provided by Article 139 WRV (in conjunction with Article 140 GG) had not
been clarified as yet in the Federal Constitutional Court’s case-law.
This guarantee is not anchored in the Basic Law’s list of fundamental
rights but in the so-called Weimar Church Articles, which are part of
the Basic Law (see Article 140 GG). The First Senate of the Federal
Constitutional Court deemed the constitutional complaints admissible
because the complainants had sufficiently expounded the possibility of a
violation of their fundamental right under Article 4.1 and 4.2 GG, at
any rate in connection with the guarantee of Sundays and holidays under
objective law. The possibility of a violation of a fundamental right
exists where the constitutional complaint raises an open question under
constitutional law which has not yet been decided by the Federal
Constitutional Court and which at any rate does not preclude from the
outset the assumption that a right exists which can be asserted by means
of a constitutional complaint. This is the case here as regards the
question of a possible effect of the guarantee of protection under
objective law provided by Article 140 GG in conjunction with Article 139
WRV on the fundamental right under Article 4.1 and 4.2 GG in terms of
lending the protection provided by the fundamental right concrete shape
and strengthening it.
The possibility of opening shops on all four Sundays in advent which is
provided by the challenged regulation can no longer be reconciled with
the requirements arising from the duty to protect that result from
Article 4.1 and 4.2 GG in conjunction with Article 140 GG and Article
139 WRV. The statutory concept of protection for guaranteeing rest on
Sundays and holidays must, as a rule, make those days, in a recognisable
manner, days of rest from work. Exceptions from this rule require a
factual reason which takes due account of the protection of Sundays. In
principle, retail shop owners’ interests in opening their shops, which
are mere economic ones, and buyers’ interests in shops being open, which
are everyday purchasing interests, are not sufficient. Furthermore, a
comprehensive lift of the ban on opening shops which covers the entire
retail sector requires justifying reasons of particular weight if the
ban is intended to be lifted for several successive Sundays and
holidays, and for many hours in each case. Against this backdrop,
opening shops for seven hours on all four Sundays in advent without any
preconditions falls short of the constitutionally required minimum level
of protection of Sundays if no sufficiently weighty reasons exist. The
provision setting out that opening by virtue of a general order is
possible on four other Sundays and holidays only complies with the
minimum protection to be provided by the legislature if it is
interpreted restrictively. The provision regarding the Sundays in advent
that has been declared unconstitutional will remain applicable until 31
December 2009, i.e. shop opening in Berlin will still be possible on the
four Sundays in advent this year.
In essence, the decision is based on the following considerations:
As regards its significance as an obligation of the legislature to
protect, the fundamental right under Article 4.1 and 4.2 GG is lent
concrete shape by the mandate under objective law of protecting Sundays
and holidays pursuant to Article 139 WRV (in conjunction with Article
140 GG). Apart from its secular and social significance, the protection
of Sundays and holidays is rooted in a religious, Christian tradition.
Accordingly, the legislature is to guarantee a minimum level of
protection of Sundays and of the holidays which are recognised by the
law – in this case, the church holidays.
The concept of protection on which the provisions on the opening of
shops in Berlin on Sundays and holidays in the Land Berlin are based
does not take sufficient account of the Land legislature’s obligation to
protect under Article 4.1 and 4.2 GG in the concrete shape which it is
lent by Article 139 WRV in conjunction with Article 140 GG. It is true
that the Berlin Shop Opening Act is neither a targeted encroachment on
the complainants’ freedom of religion, nor do the different provisions
and options regarding the opening of shops on Sundays and holidays
constitute the “functional equivalent” of an encroachment because the
provisions which are challenged here are directed towards retail shop
owners and not towards the religious communities. Freedom of religion
is, however, not limited to the function of a right of defence, but
rather it also requires in a positive sense to safeguard the space for
active exercise of religious conviction and the realisation of
autonomous personality in the area of ideology and religion. The state
has this duty to protect also towards the religious communities which
are organised as corporations under public law. However, it is, in
principle, for the legislature to work out a concept of protection and
to implement it by means of provisions. In doing so, the legislature has
a broad scope for assessment, evaluation and action.
Solely from Article 4.1 and 4.2 GG no obligation of the state can be
derived of placing the religious, Christian holidays and the Sunday
under the protection of a general rest from work – a concept which has
to be elaborated – and of doing so on the basis of certain religious
communities’ understanding of days which are special according to their
doctrine. The fundamental right under Article 4.1 and 4.2 GG is,
however, lent concrete shape by the guarantee of Sundays and holidays
according to Article 140 GG in conjunction with Article 139 WRV; as an
evaluation which is made in the constitution, the rest on Sundays and
holidays, for its part, has an effect on the interpretation and
definition of the scope of protection of Article 4.1 and 4.2 GG and must
therefore also be observed when the legislature’s duty to protect
resulting from the fundamental rights is lent concrete shape. Article
139 WRV contains a mandate of protection for the legislature which
provides for the scope of protection of fundamental rights under Article
4.1 and 4.2 GG in terms of guaranteeing a minimum level of protection.
The functional orientation of the so-called Weimar Church Articles
towards the recourse to the fundamental right under Article 4.1 and 4.2
GG also applies to the guarantee of the days of rest from work and of
spiritual edification in Article 139 WRV, even though the religious and
Christian reference is not explicitly mentioned in the provision itself.
For according to its legislative history, its systemic embodiment in
what is known as the Church Articles and its objectives of regulation,
Article 139 WRV has a religious content which is rooted in the Christian
tradition and goes along with a decidedly social objective that has a
secular and neutral orientation. Therefore the guarantee of Sundays and
of holidays not only promotes and protects the exercise of the freedom
of religion. The guarantee of rest from work safeguards an essential
basis of Man’s possibilities of recreation and at the same time of
social coexistence; as a result, it is also the guarantor of the
exercise of other fundamental rights which serve the development of
one’s personality. The rest on Sundays and holidays is of benefit, for
instance, to the protection of marriage and the family (Article 6.1 GG)
as well as to relaxation and the maintenance of one’s health (see
Article 2.2 GG). One of the factors from which its importance
essentially results is that there is a synchronicity of time as regards
rest from work. Thus, Article 139 WRV proves to be a fundamental element
of social coexistence and state order which is anchored in the
constitution, and it must be understood as a guarantee complementing
several fundamental rights.
The duty of the state to observe ideological and religious neutrality
does not run counter to lending the scope of protection of Article 4.1
and 4.2 GG concrete shape by Article 139 WRV. For the constitution
itself places the Sunday and the holidays, to the extent that they are
recognised by the state, under a special mandate of protection by the
state and thus performs an evaluation which is also rooted in the
Christian, Western tradition and which uses its calendar.
As regards work on Sundays and holidays, Article 139 WRV establishes
inter alia a relationship of rule and exception. In principle, typical
“working-day activity“ has to cease on Sundays and holidays, with the
protection provided by Article 140 GG in conjunction with Article 139
WRV not being limited to a religious or ideological meaning of Sundays
and holidays. In the secularised social and state order, however, the
provision is also aimed at pursuing secular objectives such as personal
rest, contemplation, relaxation and diversion. Here, the possibility of
spiritual edification which is also covered by Article 139 WRV is
intended to be granted to all people irrespective of a religious
commitment.
On this basis, it emerges that statutory concepts of protection for
guaranteeing rest on Sundays and holidays must, as a rule, make those
days, in a recognisable manner, days of rest from work. As regards the
shop opening hours at issue here, this means that the exception requires
a factual reason which does justice to the protection of Sundays. A mere
economic interest of retail shop owners in generating turnover and an
everyday interest in purchasing (“interest in shopping”) of potential
buyers are in principle not sufficient for justifying exceptions from
the protection of rest from work and of the possibility of spiritual
edification on Sundays and holidays which is directly anchored in the
constitution. Apart from that, exceptions must remain recognisable as
such for the public and may not amount to life on Sundays and holidays
being virtually the same as on working days with their activity.
In general, the precept of rule and exception is the more important the
less weighty the reasons are against which the protection of Sundays and
holidays relates is measured, and the more extensively the opening of
retail shops is organised with regard to the area affected and the lines
of commerce and classes of products involved. Therefore, a comprehensive
lift of the ban on opening shops which covers the entire retail sector
requires justifying reasons of particular weight if the ban is intended
to be lifted for several successive Sundays and holidays, and for many
hours in each case.
Shop opening hours attain great weight in the classification and
evaluation of interruptions of the rest from work. To achieve the aim of
the protection of the Sunday, for religious or for secular motives, the
cease of the typical working-day activity is required. Due to its public
effect, particularly the opening of shops determines the character of a
day in a special manner. It produces an effect of activity and bustle
which can be perceived by everyone and which is typically associated
with working days. This necessarily affects those as well who do not
have to work and do not want to shop but strive for rest and spiritual
edification, in particular the adherents of Christian religions and the
religious communities themselves; according to their understanding, the
day is one of rest and contemplation. Due to the fact that for working
days, bans on the opening of shops have almost been lifted altogether in
Berlin (shops may open 24 hours a day), the argument that the supply of
needs and the provision with goods must be secured is only of less
significance.
The special characteristic of the Berlin provision concerning the
Sundays in advent (§ 3.1 alternative 2 BerlLadÖffG) consists in the fact
that by virtue of law already, and without any other precondition, the
ban on the Sunday opening of shops is lifted for seven hours on each of
the four successive Sundays in advent. This provision does not stand up
to the requirement that Sunday rest is the rule because it completely
exempts a self-contained period of time spanning about a twelfth of the
year from the principle of rest from work. The remark in the reasoning
of the Act which makes reference, in general terms, to the function of
Berlin as a metropolis does not alter this. What is reflected here as
well are mere interests in generating turnover and in purchasing.
Factually, the provision thus results in lifting the protection of
Sundays and holidays during one month for the retail shops, which
essentially shape the external character of the day, also in view of the
number of persons who are directly and indirectly affected and the
effect on the public, without a sufficiently weighty reason for such an
intensive impairment being given, or becoming otherwise apparent, which
could live up to the constitutional rank of the protection of the
Sunday.
The further regulation according to which the Senate Administration can
allow, in the public interest, the opening of retail shops by way of
exception on at most four (other) Sundays and public holidays by means
of a general order (§ 6.1 BerlLadÖffG) is compatible with the
complaints’ fundamental right from Article 4.1 and 4.2 GG in conjunction
with Article 140 GG and Article 139 WRV if it is interpreted
restrictively. As regards the number of four days, the provision cannot
be objected to, with a total number of normally 52 Sundays per year and
of nine other holidays that do not necessarily fall on a Sunday,
especially because the possibility of opening shops excludes certain
holidays. As, apart from that, the ban is lifted through a general
order, an administrative decision is required which opens up the
possibility of specifically including in the weighing of interests the
interests and objects of legal protection which are affected in a given
case. The constitutional objections regarding the condition for the
application of the exemption that the opening of shops is “in the public
interest” can be accommodated by an interpretation which takes into
account the evaluation made in Article 139 WRV. Such an interpretation
requires a public interest of such a weight that it justifies the
exceptions from the rest from work; here, the sole interest in turnover
and purchase on the part of the retail shop owners and the everyday
“interest in shopping” on the part of the customers is not sufficient.
Over and above this, providing these possibilities of opening shops by a
general order require time restrictions if they are interpreted in
conformity with the constitution; these restrictions are not explicitly
provided by the provision itself.
The other challenged provisions which establish exceptions from the Land
legislature’s concept of protection do not meet with constitutional
objections.
Even though it has been found unconstitutional, the provision on the
opening of retail shops on all four Sundays in advent remains applicable
this year, taking into account the retail shop owners’ freedom of
practicing an occupation, the confidence that they placed in the
provision and the arrangements that they made for the Christmas period
of 2009. Whether and to what extent the Berlin Land legislature will
adapt its concept of protection depends on its legislative discretion,
taking into account the principles of this decision.
As regards the religious communities’ authorisation to lodge a
constitutional complaint and the concretisation of Article 4.1 and 4.2
GG by Article 140 GG in conjunction with Article 139 WRV the decision
was reached by five votes to three; as regards the requirements of
Article 140 GG in conjunction with Article 139 WRV, it was unanimous.
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