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Opening of shops in Berlin on all four Sundays in advent is not constitutional
Press Release No. 134/2009 of 01 December 2009
Judgment of 1 December 2009
1 BvR 2857/07
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 BerlLadÖffG) 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.