Summary:

I.

The constitutional complaint concerns the dismissal of a civil action for an injunction to desist from making statements which are damaging to a company’s business.

The applicant is the parent company of a corporation of international enterprises producing milk and dairy products. Their products use milk from cows which have also been fed genetically modified animal feed. The defendant in the original proceedings is an association. It has set itself the goal of, among other things, informing consumers about the risks which are, in its opinion, associated with the use of genetically modified organisms in food production. For that reason the association called on the applicant to require its milk suppliers to refrain from using genetically modified animal feed. The applicant did not comply with this request. In various public campaigns the defendant thereupon described the milk sold by the claimant as “GM milk” in order to thus draw attention to its concerns.

The applicant believes that the term “GM milk” when used in reference to its products constitutes an incorrect factual claim that the milk processed by its companies was itself genetically modified.

It applied to the civil courts for an injunction against the defendant. The Federal Court of Justice (Bundesgerichtshof) rejected the application for an injunction. The court held that the defendant’s use of the term “GM milk” was protected under the fundamental right to freedom of expression. In the required weighing of interests, precedence must be given to this fundamental right over the applicant’s interests, which were likewise protected under the Basic Law. The term “GM milk” itself was meaningless. Its meaning only resulted from the context in which it was used. Consequently, the term in question did not contain an incorrect factual claim, since the defendant had in all its campaigns unequivocally made it clear that its protest was directed against the use of genetically modified animal feed. It could not be concluded therefrom that it was alleging that the milk the applicant’s companies were using was itself genetically modified.

In its constitutional complaint against the decision of the Federal Court of Justice, the applicant complains of the violation of its occupational freedom as well as the unconstitutional interference with its general right of personality and its right to anestablished and exercised business.

II.

The Federal Constitutional Court did not accept the constitutional complaint for adjudication as the conditions for acceptance are not met and, in particular, it has no prospect of success.

In essence, the decision is based on the following considerations:

The contested judgment of the Federal Court of Justice does not raise any constitutional objections. In particular, the Federal Court of Justice was correct to regard the term “GM milk” in reference to the applicant’s products as vacuous and to judge its use in the specific context as permissible. It may be necessary to grant an injunction in cases where the factual claim in question is ambiguous and one of the possible, not unobvious interpretations violates the general personality rights of the legal person affected. However, there must first be a careful assessment of whether such ambiguity actually exists. By contrast, an injunction cannot be granted in the case of slogan-type statements which appear ambiguous to the addressee from the outset as well, so that they are not understood as independent claims regarding a specific matter but rather as a kind of short hand which only derives its specific meaning from the wider context. In such cases no concrete factual claim is being made which could lead the addressee of the statement to any misconception on account of untrue factual statements. The fact that the Federal Court of Justice evaluated the term “GM milk” at issue here in this manner as a recognisably slogan-type statement requiring elaboration which only derives its specific meaning in the context of an overall campaign does not exceed the non-constitutional court’s scope of assessment.

Against this background, the Federal Court of Justice was correct to give precedence to the defendant’s interest in making a statement, which is protected by the freedom of expression, over the applicant’s opposing interest in having the defendant desist from making that statement. It is irrelevant whether, as well as the fundamental right to occupational freedom, other legal positions asserted by the applicant are also protected under fundamental rights, since the result of the Federal Court of Justice’s weighing of interests is at any rate constitutionally justified. The Federal Court of Justice was correct to be decisively guided in its weighing of the legally protected interests on both sides by the fact that the applicant’s enterprises do not abstain from using genetic engineering methods across the entire production process and that thus the criticism of its business practices is not totally without basis in fact. In addition, according to the uncontested findings of the non-constitutional courts, the reference merely to the use of genetically modified animal feed in all cases in which the defendant used the term “GM milk” was clear from the context in which the statement was made.