Federal Constitutional Court - Press office -
Press release no. 111/2010 of 2 December 2010
Order of 12 October 2010 – 2 BvF 1/07 –
Provisions on keeping laying hens unconstitutional
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.
This press release is also available in the original german version.
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