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The mandatory publication of official information on food and feed law violations is, in principle, constitutional

Press Release No. 32/2018 of 04 May 2018

Order of 21 March 2018
1 BvF 1/13

The requirement that official information on individual companies’ violations of food and feed law provisions be provided to the public pursuant to § 40(1a) of the Code of Food and Feed Law (Lebensmittel- und Futtermittelgesetzbuch, LFGB) amounts to an interference with the freedom of occupation due to the objectives pursued and the resulting indirect and factual impacts of the law. It must therefore be measured against Art. 12(1) of the Basic Law (Grundgesetz – GG). Nonetheless, the interests of companies that violate food and feed law provisions may be outweighed by the interest of the public in receiving information. This may also be the case if the relevant legal non-compliance does not entail health risks. When individualised official information on legal non-compliance that is relevant to consumer protection is published on the Internet, however, the duration for which such information may be disseminated must generally be limited by law. For these reasons, the First Senate of the Federal Constitutional Court has only declared § 40(1a) LFGB incompatible with Art. 12(1) GG to the extent that it does not subject the publication of the relevant information to a statutory time limit; this was decided in an order published today, concerning an application for judicial review (Normenkontrollantrag) filed by the Land Government of Lower Saxony. The federal legislature must enact provisions specifying the duration for which the relevant information may be published by 30 April 2019. § 40(1a) LFGB shall continue to apply until new provisions have been enacted or, at the latest, until 30 April 2019.

Facts of the case:

The Code of Food and Feed Law has been in force since 2005; it was amended in 2012 to include new section 1a in § 40 LFGB. This provision authorises and obliges the competent authorities to inform the public ex officio about violations by food and feed companies regarding statutory limit values and all other provisions within the Code’s scope of application that serve to protect consumers against health risks or misleading practices, or to ensure compliance with hygiene standards. In this regard, the existence of a current health risk is not a necessary prerequisite. Unlike § 40(1) LFGB, the more recent § 40(1a) LFGB does not afford authorities any discretion regarding the decision to publish the relevant information. In the absence of administrative discretion, the authorities are thus bound by law to publish the information. In this respect, the legislature reacts to the fact that – in particular regarding recent food scandals – administrative practice was perceived as too lenient in the past; it intended to create a more rigorous statutory basis for ensuring that the public is effectively informed.

Following various proceedings for preliminary legal protection before the higher administrative courts, in which several courts had voiced doubts as to the constitutionality of the [new] provision, and following the application for judicial review filed by the Land Government of Lower Saxony, the challenged provision was no longer enforced in the Laender.

Key considerations of the Senate:

The application for judicial review is admissible and well-founded.

I. According to § 1(3) LFGB, the Code of Food and Feed Law serves, inter alia, to implement and enforce legal acts of the European Union; this does not, however, bar constitutional review proceedings before the Federal Constitutional Court concerning the compatibility of § 40(1a) LFGB with the requirements of the Basic Law. § 40(1a) LFGB is not based on binding standards set by European Union law, but goes beyond European Union law and can thus be measured against the fundamental rights laid down in the Basic Law. Nor are constitutional review proceedings barred on the grounds that, as argued by some, the publication of official information in the field of food and feed law were exhaustively regulated at the level of European Union law, thus blocking additional regulations at Member State level (“Sperrwirkung”). The Federal Constitutional Court reviews whether a national law is compatible with the Basic Law, including in cases where compatibility with the secondary law of the European Union is also in doubt.

II. There are no objections to the formal constitutionality of the challenged provision. In particular, the Federation has legislative competence. Pursuant to Art. 74(1) no. 20 GG in conjunction with Art. 72(2) GG, the Federation is competent to legislate on the authorities’ information activities in the area of food and feed law. It is necessary to regulate this matter at the federal level in order to maintain economic unity, as federal legislation ensures that consistent and comprehensible information is provided in relation to nationwide market activities.

III. § 40(1a) LFGB violates the freedom of occupation to the extent that a legal provision limiting the time period for disseminating the relevant information is lacking. Furthermore, disproportionate interferences with the freedom of occupation can, and must, be ruled out by way of applying the provision in a manner that ensures conformity with the Constitution.

1. The challenged provision authorises and obliges the competent authorities to interfere with the scope of protection of Art. 12(1) GG. The publication of information pursuant to § 40(1a) LFGB must be measured against Art. 12(1) GG as it constitutes an administrative measure that directly targets the market conditions of individualised companies, influences consumer behaviour and thus, considering the indirect and factual impacts, alters the market and competitive situation to the economic disadvantage of the affected companies.

2. Ultimately, the interference with the freedom of occupation cannot be justified in its entirety under constitutional law, since § 40(1a) LFGB fails to meet the requirements of the principle of proportionality in all respects.

a) § 40(1a) LFGB pursues legitimate goals, namely to create a sufficient basis for informed consumer choices and to enforce the provisions of food and feed law. Where information on legal violations is published on the Internet – including, in part, violations that have not yet been definitively established or have already been rectified – these goals have to be weighed against potentially considerable interferences with the fundamental rights of affected companies, as they may face a significant loss of reputation and a drop in sales, or may even be forced to close down their business entirely. However, the weight of interference with fundamental rights is diminished by the fact that the publication of negative information was brought on by the affected companies themselves by way of unlawful conduct, and that their misconduct entails consequences for consumers and thus qualifies as a matter pertaining to public interest.

b) The publishing of information concerning not only ongoing non-compliances, but also non-compliances that have already been rectified is suitable for achieving the legislative goal. Providing information on corrected non-compliances to the public increases the deterrent effect of the information activity envisaged under the challenged provision and thus promotes compliance with the relevant food and feed regulations. In addition, publishing information on non-compliances that have already been resolved also serves to inform consumers, since even information on past unlawful conduct may be significant in relation to consumers’ decisions.

Ultimately, the legislature has also sufficiently taken into account that only the publication of correct information is suitable for achieving the relevant informational purposes. Pursuant to § 40(4) LFGB, the authorities are obliged to rectify incorrect information where applicable. To meet the standard of suitability, the authorities are, however, required under constitutional law to take additional precautions when applying the challenged provision, in order to ensure that the information is correct and not misleading to consumers. When publishing the information, the competent authorities must also report whether and when the relevant non-compliance has been resolved. Moreover, § 40(1a) LFGB provides that the public may be informed even in cases of suspected non-compliance, if the suspicion is based on sufficient reasons. Yet this option may only be applied under strict conditions, in order to prevent the authorities from disseminating information that is incorrect, and thus not suitable for achieving the legislative purpose.

c) The provision is, in principle, also proportionate in the strict sense; it is imperative, however, that the provision be applied in a manner that ensures conformity with the Constitution. The challenged provision is disproportionate to the extent that it does not provide for a time limit for disseminating information.

The legislature has, in principle, assessed and balanced the conflicting interests in a way that is constitutionally justifiable: where non-compliance with food and feed laws is indicated, it is appropriate to give precedence to the consumers’ interests in being granted protection and receiving information over the interests of affected companies, and to define the constituent elements of the obligation to publish information in such a way that, when applying the law in practice, information provided to the public is limited to non-compliances of sufficient weight.

However, the provision is disproportionate in the strict sense to the extent that the law does not provide for a time limit for disseminating the relevant information.

Over time, the interferences with fundamental rights arising from the challenged provision will become increasingly disproportionate to the purposes pursued by publication if the information remains available to the public. The longer the period of dissemination lasts, the wider the disparities between the overall burden to the company that increases over time on the one hand, and the diminishing value of the information for consumers on the other; in consequence, it becomes harder to argue that the burden imposed on the affected companies can still be considered reasonable. The objective value of disseminating information on non-compliance decreases the more time has passed; this is due to the fact that, over time, past non-compliance no longer allows objective conclusions to be drawn regarding the present situation of the affected company. The longer negative information about a company is disseminated in public, the bigger the burden on a company, because a larger number of consumers may be influenced by this information, to the detriment of the company. Therefore, it is constitutionally required that the publication of the relevant information be subjected to a time limit.

Such a time limit must be laid down in a federal law; this issue cannot be resolved solely by administrative practice or jurisprudence. Regarding the specific elements of the time limit, different concerns and parameters that are all significant need to be weighed and balanced. This requires a legal provision. A sufficiently specific legal time limit is neither included in § 39(2) LFGB, nor can it be derived from deletion requirements set out in data protection law.