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Decision in “Stadium Ban” proceedings clarifies the indirect horizontal effects of the right to equality in private law relations

Press Release No. 29/2018 of 27 April 2018

Order of 11 April 2018
1 BvR 3080/09

In an order published today concerning a stadium ban, the First Senate of the Federal Constitutional Court addressed the effect on private law of the general guarantee of equal treatment under Art. 3(1) of the Basic Law (Grundgesetz – GG). The Senate rejected as unfounded the constitutional complaint of a football fan directed against a nationwide stadium ban. In this respect, the Senate held that the ban must be measured against the principle of equal treatment under Art. 3(1) GG. In its reasoning, it stated that the doctrine of indirect horizontal effects of fundamental rights does not give rise to an objective constitutional principle according to which legal relationships between private actors were generally subject to equality guarantees. However, the general guarantee of the right to equality does have horizontal effects where private actors exercise their right to enforce house rules (Hausrecht) under private law to exclude individual persons from events organised, on the private actors’ own volition, for large audiences to the effect that admission is granted without distinguishing between individual persons, and where such exclusion has a considerable impact on the ability of the persons concerned to participate in social life. The event organisers may not use their discretionary powers to exclude specific persons from such events without factual reasons. Yet imposing a stadium ban is not contingent upon proving that the person in question has committed a criminal offence; rather, it is sufficient to demonstrate that factual indications give rise to concerns that the affected persons will cause future disturbances. Before a ban is imposed, the persons concerned must, in principle, be heard; they may request that reasons be given for the stadium ban, to allow for legal recourse.

Facts of the case:

In 2006, the complainant, a then sixteen-year-old fan of the football club FC Bayern Munich, attended a football match against MSV Duisburg in the opposing team’s stadium. After the end of the match, verbal and physical altercations involving a group of FC Bayern Munich fans, among them the complainant, and fans of MSV Duisburg resulted in personal injury and damage to property. Subsequently, approximately 50 persons, including the complainant, were placed in police custody for the purposes of establishing their identities. The public prosecution office opened investigation proceedings on suspicion of rioting charges against the complainant. Following this, MSV Duisburg imposed a ban on the complainant at the suggestion of the local chief of police, prohibiting him from entering any stadium in Germany until June 2008. In this respect, MSV Duisburg acted as agent on behalf of the German Football Association (Deutscher Fußball-Bund e.V. – DFB), the League Association (Ligaverband) as well as all Bundesliga football clubs, as the clubs have mandated each other as agents with the authority to impose such stadium bans, to exercise the owner’s right to enforce house rules and to enforce bans on entering the grounds of their respective football venues. In imposing the stadium ban, MSV Duisburg invoked its right to enforce house rules and the DFB’s “Guidelines on Stadium Bans” in the version valid at the time. The criminal investigation proceedings were discontinued on the grounds that the charges were classified as misdemeanours involving only minor personal guilt pursuant to § 153(1) of the Code of Criminal Procedure (Strafprozessordnung – StPO). Nonetheless, MSV Duisburg decided, without having heard the complainant, that the stadium ban be kept in place. FC Bayern Munich subsequently expelled the complainant from the club and cancelled his annual membership pass. 

The complainant brought an action requesting that the nationwide stadium ban be lifted. After the initial application filed by the complainant had been rendered moot, the complainant modified his application in the appeal proceedings to an application seeking a declaration that the stadium ban had been unlawful. The initial action and the appeal on points of fact and law, as well as the appeal on points of law before the Federal Court of Justice (Bundesgerichtshof), were unsuccessful. With his constitutional complaint, the complainant claims a violation of his fundamental rights, contending that he was banned from entering stadiums on the basis of a mere suspicion, without viable justification or reasons.

Key considerations of the Senate:

The challenged decisions sufficiently take into account the permeating effect (Ausstrahlungswirkung) of fundamental rights on private law.

1. The standard of review applicable to the challenged decisions under constitutional law is informed by the principles of the indirect horizontal effects of fundamental rights. The challenged decisions concern a legal dispute between private actors relating to the scope of proprietary rights vis-à-vis third parties under private law. According to the established case-law of the Court, fundamental rights may have a bearing on such disputes by way of indirect horizontal effects. Fundamental rights do not generally create direct obligations between private actors. They do, however, have a permeating effect on legal relationships under private law, and it is incumbent upon the regular courts to give effect to fundamental rights in the interpretation of ordinary law, in particular regarding general clauses in private law and legal concepts that are not precisely defined in statutory law. The decisions on constitutional values enshrined in fundamental rights thus permeate and impact private law.

In this regard, the extent to which fundamental rights indirectly permeate private law depends on the circumstances of the individual case. It is imperative that a balance be sought between the spheres of freedom of the respective holders of fundamental rights, in order to sufficiently lend effect to the decisions on constitutional values underlying fundamental rights.

2. The challenged decisions are based on §§ 862, 1004 of the Civil Code (Bürgerliches Gesetzbuch – BGB), deriving from the rights of ownership and possession the scope of the right to enforce house rules under private law on the part of stadium operators vis-à-vis football fans seeking access. In this context, it is required under constitutional law that the guarantees of private property under Art. 14(1) GG and the protection against arbitrary unequal treatment under Art. 3(1) GG be taken into consideration.

Yet Art. 3(1) GG does not give rise to an objective constitutional principle according to which legal relationships between private actors were generally subject to equality guarantees. Requirements to that effect cannot be derived from the doctrine of indirect horizontal effects, either. In principle, all persons have the freedom to choose – according to their own preferences – when, with whom and under which circumstances they want to enter into contracts and how they want to make use of their property in this context.

Under specific circumstances, however, requirements pertaining to the right to equality may derive from Art. 3(1) GG with regard to relationships between private actors. The nationwide stadium ban in dispute is based on such circumstances. For determining the indirect horizontal effects of the requirement of equal treatment, the decisive factor is that the stadium ban was imposed, based on the right to enforce house rules, as a one-sided exclusion from events that the organisers on their own volition opened up to a large audience without distinguishing between individual persons, and that this measure has a considerable impact on the ability of the persons concerned to participate in social life. When private actors undertake to organise such events, they must also accept a special legal responsibility under constitutional law. They may not use their discretionary powers resulting from the right to enforce house rules – similar to power positions in other cases arising from a monopoly or structural advantages – to exclude specific persons from such events without factual reasons. In this case, the constitutional recognition of property as an absolute right and the resulting one-sided discretionary powers of the owner to enforce house rules must be balanced, in light of the principle that property entails a social responsibility towards the public good (Sozialbindung des Eigentums), against the permeating effect of the principle of equal treatment on private law that must inter alia be taken into consideration by the regular courts.

3. When reviewing a stadium ban that was issued based on the right to enforce house rules under private law, it is primarily incumbent on the civil courts to resolve the conflict between proprietary rights and the principle of equal treatment. The courts are afforded a wide margin of assessment in this respect. The Federal Constitutional Court intervenes only in the event of manifest errors of interpretation that are based on a fundamentally incorrect understanding of the significance of the relevant fundamental right. In this regard, it is irrelevant whether the civil courts directly apply fundamental rights in their assessment. The only decisive factor is that ultimately, values enshrined in fundamental rights are sufficiently taken into account.

a) In view of the principle of equal treatment, the civil courts must consequently ensure that stadium bans are not imposed arbitrarily, but are based on factual reasons. In particular, they are called upon to further specify the requirements regarding the necessary balancing [of fundamental rights] against proprietary rights in relation to the factual circumstances under which stadium bans are imposed, the intended effects of the measure and the responsibility of the persons concerned. It is not objectionable under constitutional law if the courts already consider it sufficient for determining a factual reason justifying a stadium ban to show well-founded concerns that a person poses a risk of future disturbances. In this context, evidence of previous criminal conduct or unlawful behaviour is not a necessary prerequisite, given the legitimate interest of stadium operators to ensure undisturbed football matches and their responsibility for the safety of athletes and the audience. It is sufficient to demonstrate that the concerns regarding future disturbances caused by the affected persons are based on specific and proven facts of sufficient weight.

b) The requirement that stadium bans be based on factual reasons gives rise to procedural requirements. In particular, stadium operators must make reasonable efforts to investigate the facts of the case. This includes, at least in principle, that the persons concerned be heard prior to imposing a stadium ban. Reasons for the decision must also be given upon request in order to enable the persons concerned to seek legal recourse to enforce their rights.

Recognising such procedural guarantees does not conflict with the nature of legal disputes under private law. It is true that there is no basis for recognising such guarantees in private law in disputes concerning mutual contractual obligations that the parties freely determine themselves. Where it is clear from the outset that decisions in the domain of private law do not come into conflict with protected rights of third parties, and where these decisions can be rendered without regard to the concerns of the other party, it is not necessary, at least in principle, to put in place such [procedural] guarantees. The situation is different, however, insofar as the principle of equal treatment deriving from fundamental rights permeates the legal relationship of the parties, requiring that the denial of a service be based on justifying reasons. Where the right to enforce house rules is invoked for decisions that factually have punitive effects, thus requiring that the persons concerned be provided with viable reasons for the decision, certain minimum standards must be met: the persons concerned must be given the opportunity to address the allegations against them and to exercise their rights in a timely manner, including by submitting their view. This does not rule out that a decision may at first be taken without a hearing in certain justifiable cases; the person concerned can then be heard at a later date.

In this respect, it is also primarily for the regular courts to further specify the relevant requirements. The regular courts must determine which efforts stadium operators can reasonably be expected to make to investigate the facts of the case and which requirements have to be met regarding the prior hearing and, where applicable, the reasons provided to the person concerned. In this context, the courts will have to take into consideration the enormous crowds drawn by major sport events, the specific threats posed by violent fan groups and the interests of those banned from entering stadiums.

4. Based on these considerations, the challenged decisions by the regular courts are not objectionable.

a) The Federal Court of Justice held the stadium ban imposed on the complainant to be lawful, on the grounds that it was based on a factual reason. The relevant considerations satisfy the constitutional requirements pertaining to the horizontal effects of Art. 3(1) GG.

According to the reasoning provided by the Federal Court of Justice, the risk of possible future disturbances at sport events constitutes a factual reason [for imposing a stadium ban]. It was held that the assertion of such a risk may not be based on subjective concerns, but on objective facts. These considerations satisfy the constitutional requirements set out above. The Federal Court of Justice affirmed the complainant’s right not to be subjected to arbitrary decisions, which derives from the values enshrined in Art. 3(1) GG and must also be given effect in the private law relationship in the case at hand; it then weighed this right against the stadium operator’s right to organise football matches in its stadium in accordance with its own preferences and, in particular, in accordance with the safety precautions for which it is responsible.

According to the challenged decisions, the initiation of investigation proceedings by the public prosecution office constitutes a factual reason justifying the original stadium ban; at the time, these proceedings had not yet been concluded. There are no constitutional objections to this assessment. The Federal Court of Justice explicitly stated that it did not relieve the organiser of the duty to examine the plausibility of the allegations raised against the person concerned in order to rule out that criminal proceedings were initiated in an obviously arbitrary manner or based on incorrect factual assumptions. Yet it is not unreasonable to allow stadium operators to rely, at first, on the assessment of the public prosecution office or the police while the outcome of investigation proceedings is uncertain. As the stadium operators have a legitimate interest to take measures as early as possible in order to guarantee safety, they do not have to be burdened with an obligation to wait for the conclusion of the investigations before taking action.

Furthermore, the Federal Court of Justice held that the fact that the investigation proceedings were subsequently discontinued did not cancel the factual reason for the stadium ban. While it could not be presumed, after proceedings were discontinued pursuant to § 153 StPO, that the complainant himself had committed criminal offences, the circumstances that had given rise not just to the initial suspicion of criminal conduct resulting in the investigation proceedings but also to concerns that the complainant may cause further disturbances in the future still persisted despite the fact that the criminal investigations were discontinued. The complainant knowingly frequented groups prone to violence that had indeed committed considerable acts of violence. It is not objectionable that the Federal Court of Justice considered this to be a factual reason for justifying the stadium ban. In this respect, the court did not accept at face value that the investigation proceedings would continue to provide a justification for the stadium ban even after the proceedings had been discontinued. Rather, the court upheld the stadium ban based on findings that, by themselves, would suffice to establish a justified concern that the complainant will cause future disturbances, despite the fact that criminal investigation proceedings were discontinued.  

b) As regards the contended violations of procedural guarantees, the constitutional complaint was also unsuccessful. At least for the future, the now updated Guidelines on Stadium Bans provide that the person concerned has a right to be heard and that, as a rule, this must take place before a stadium ban is imposed. Likewise, using a reasonable interpretation, such decisions must state reasons, at least where stadium bans are under review. For the specific stadium ban at issue, which expired in the meantime, the proceedings before the civil courts provided the complainant with the opportunity to address, at least retroactively, the reasons put forward for the stadium ban and to be heard in this regard.