Decision regarding the requirement that a subdelegated ordinance state its legal basis and on how to apply the grounds for admitting an appeal pursuant to §§ 124, 124a of the Code of Administrative Court Procedure

Press Release No. 51/2019 of 26 July 2019

Order of 18 June 2019 - 1 BvR 587/17 - Subdelegated ordinance

The requirement under Art. 80(1) third sentence of the Basic Law (Grundgesetz – GG) that an ordinance state its legal basis (Zitiergebot) also applies to subdelegations pursuant to Art. 80(1) fourth sentence GG. It is sufficient, however, if the subdelegated ordinance states its direct legal basis; in contrast, an ordinance effecting the subdelegation must name the statute authorising the issuing of the ordinance (authorising statute) as well as the statute authorising the subdelegation. This is what the First Senate of the Federal Constitutional Court held in an order published today, thus rejecting the constitutional complaint directed against reporting obligations concerning fertilisers that were based on such an ordinance, and against the upholding decision of the Administrative Court (Verwaltungsgericht). The Senate, however, also held that the order by which the Higher Administrative Court (Oberverwaltungsgericht) did not admit the appeal on points of fact and law (Berufung) against the judgment of the Administrative Court violated the requirement of effective legal protection, given that the court, in applying the grounds for admitting an appeal, impeded access to the appeals court in a manner that cannot be plausibly justified.

Facts of the case:

In the administrative court proceedings, the complainant unsuccessfully challenged an order by the Lower Saxony Chamber of Agriculture demanding a comprehensive report on the collection and distribution of manure undertaken by his company. The legal basis of the Chamber of Agriculture’s order was § 13 of the Act on Fertilisers of 9 January 2009 (Düngegesetz – DüngG) in conjunction with § 1 of the Lower Saxony Ordinance Concerning Reporting Obligations in Respect of Manure of 1 June 2012 (hereinafter: Land Ordinance). The Land Ordinance is a so-called subdelegated ordinance, which means that the authorisation to issue the ordinance was delegated from the federal to the Land level pursuant to Art. 80(1) fourth sentence GG. The Land Ordinance states a federal ordinance as its legal basis, but does not name the statute authorising the subdelegation, which is set out in § 15(6) DüngG. § 4 DüngG authorises the issuing of ordinances concerning documentation, reporting, notification and record-keeping obligations. According to § 15(6) DüngG, this authorisation may be delegated to Land governments in full or in part. The Federal Ministry of Food, Agriculture and Consumer Protection made use of the authorisation to subdelegate by issuing § 6 of the Ordinance Concerning the Placing on the Market and the Transporting of Manure (Verordnung über das Inverkehrbringen und Befördern von Wirtschaftsdünger, Wirtschaftsdüngerverordnung – WDüngV). The Lower Saxony Land government made use of the authorisation subdelegated to it pursuant to § 6 WDüngV by issuing the Lower Saxony Ordinance Concerning Reporting Obligations in Respect of Manure. The Administrative Court dismissed the complainant’s challenge against the order of the Chamber of Agriculture. The Higher Administrative Court rejected the application seeking to have an appeal admitted, holding that the claim of a violation of the requirement that a legal basis be stated neither raised serious doubts as to whether the judgment of the Administrative Court was correct, nor did it make of the case one of fundamental significance.

Key considerations of the Senate:

I. The judgment of the Administrative Court does not violate the complainant’s fundamental rights. The ordinance is compatible with Art. 80(1) third sentence GG. The requirement that an ordinance state its legal basis also applies to subdelegations pursuant to Art. 80(1) fourth sentence GG. Thus, a subdelegated ordinance must state its direct legal basis, which is set out in the subdelegating ordinance. The subdelegating ordinance must name its authorising statute as well as the statute authorising the subdelegation given that the state body issuing the ordinance (Verordnunggeber) is not free to name merely one of several authorising statutes upon which the ordinance is based. Where it does not state the other legal bases, the state body issuing the ordinance does not entirely account for its legislative authority. However, it is not constitutionally required that, in addition to naming its direct legal basis, a subdelegated ordinance also name its authorising statute as well as the statute authorising the subdelegation. This follows from the rationale of the requirement that an ordinance state its legal basis.

II. The Higher Administrative Court, in applying the grounds for admitting an appeal, impeded access to the appeals court in a manner that cannot be plausibly justified, and thus violated the principle of effective legal protection pursuant to Art. 19(4) GG.

(1.) Following from this principle are requirements governing how the courts must apply the right to legal remedy against judicial decisions (Rechtsmittelrecht). It does not guarantee the establishment of different court instances; however, where the legislature has provided for several instances, access to them may not be impeded unreasonably. The same applies where procedural law provides the parties to the proceedings with the possibility of seeking to have a complaint or an appeal admitted, as do §§ 124, 124a of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) in this case.

The interpretation and application of these provisions are incompatible with the principle of effective legal protection where they cannot be justified by plausible reasons, are thus objectively arbitrary and unreasonably impede access to a higher court. This is true in respect of how the courts are to assess whether the statutorily defined grounds for admitting an appeal are substantiated and fulfilled.

The grounds for admitting an appeal are applied in an unconstitutionally strict manner, in particular, where courts, when refusing to admit an appeal, set out, or would have to set out, reasons in such detail in respect of the substance of the case as is usually reserved for the actual complaints or appeals proceedings. This is incompatible with the nature of proceedings for admitting an appeal and impermissibly bars access to a higher court which is where these questions should properly be addressed in detail. If, as in this case, an application seeking to have an appeal on points of fact and law admitted pursuant to § 124a(4) VwGO is rejected, then not only is the option of such an appeal barred, but legal recourse to the Federal Administrative Court is barred, too, which is the regular court competent for ultimately clarifying fundamental questions of federal law.

The grounds that there be serious doubts as to the correctness of the judgment have been specified under constitutional law to the effect that the appeal must be admitted where one single legal provision upon which a decision is based or one single significant established fact is called into question on the basis of plausible counter-arguments. The grounds that there be serious doubts are thus not applied in a manner compatible with Art. 19(4) first sentence GG where a court denies the existence of plausible counter-arguments against a legal provision upon which a decision is based or against a significant established fact in a manner that cannot be plausibly justified and is thus objectively arbitrary.

The fundamental significance of a case as grounds for admitting an appeal must be interpreted to the effect that a question of law – or a question of fact in cases of an appeal on points of fact and law – must be relevant not only to the individual case but is to be clarified in the interest of the unity or the development of the law. However, under constitutional law, courts may not be unreasonably strict as regards the fulfilment of the requirements for admitting an appeal. In particular, the need for clarification of a point of law may not be denied without plausible justification and thus in an objectively arbitrary manner. It is unobjectionable under constitutional law to presume that points of law that have been sufficiently clarified in the case-law of the supreme federal courts do not require clarification, and to even deny the need for clarification where the point has been clarified in the case-law of a supreme federal court of a different branch of the judicial system. However, even where one of the supreme federal courts has already clarified a point of law, further need for clarification might arise where new arguments are put forward that could prompt the supreme federal court to review its opinion. In particular, denying the further need for clarification cannot be compatible with Art. 19(4) GG, if, in the meantime, the Federal Constitutional Court, another supreme federal court, the European Court of Human Rights or the Court of Justice of the European Union has rendered a decision that provides new arguments.

(2.) The order of the Higher Administrative Court does not satisfy these constitutional standards.