Act to Protect Workers’ Rights in the Meat Industry
In an order published today, the First Senate of the Federal Constitutional Court rejected a constitutional complaint that essentially challenges provisions of the Act to Protect Workers' Rights in the Meat Industry (Gesetz zur Sicherung von Arbeitnehmerrechten in der Fleischwirtschaft – GSA Fleisch, hereinafter: the Act).
In particular, the complainants challenge the prohibition, under pain of a fine, on the use of subcontracted labour and on cooperation with other business owners for slaughtering, meat cutting and processing. As of 1 January 2021, the use of subcontracted labour on the basis of service contracts within these core activities of the meat industry has been banned. On 1 April 2024, a complete prohibition on the use of temporary agency workers came into force. In addition, businesses or wider organisations that slaughter, cut or process meat may only be run by a sole owner.
The constitutional complaint is unsuccessful. Insofar as it is admissible, it is unfounded. The prohibition on the use of service contracts for staff working in slaughtering, including meat cutting, is compatible with the meat industry’s occupational freedom. In an overall balancing of interests, the moderate interference with the industry’s occupational freedom is outweighed by high-ranking interests of occupational health and safety, which the legislator tenably accorded great weight.
Facts of the case:
The constitutional complaint is directed against provisions of the Occupational Health and Safety Oversight Act (Arbeitsschutzkontrollgesetz), which amended the Act in question with effect from 1 January 2021. In particular, the constitutional complaint challenges § 6a of the Act, which introduced a prohibition on the use of subcontracted labour and on cooperation with other business owners within the core activities of the meat industry, i.e., slaughter, meat cutting and processing. The amendment aimed to phase out the use of subcontracted labour for these core activities by initially precluding the use of service contracts, subsequently restricting the use of temporary agency workers for a transitional period and finally prohibiting it altogether. In addition, the prohibition on cooperation with other business owners intended to ensure that the owner of a business runs it as the sole owner, rather than together with others. § 7 of the Act provides for fines in case of non-compliance with these prohibitions.
Complainant no. 1) is a partner in complainant no. 2), a business that specialises in the cutting of pig heads. The complainants assert that the prohibition, under pain of a fine, on the use of subcontracted labour and on cooperation that applies to the core activities of the meat industry violates their fundamental rights under Art. 12(1), Art. 14(1) and Art. 3(1) of the Basic Law (Grundgesetz – GG) in particular.
Key considerations of the Senate:
I. The constitutional complaint is only admissible insofar as complainant no. 2) asserts that the prohibition on the use of service contracts for staff working in slaughtering, including meat cutting, and the associated fines in case of non-compliance violate Art. 12(1) of the Basic Law. For the rest, the constitutional complaint is inadmissible, in particular with regard to the prohibition on the use of temporary agency workers and on cooperation, because the complainants have not sufficiently demonstrated that they are individually affected in this regard. In respect of complainant no. 1), the entire constitutional complaint is inadmissible for this reason.
II. To the extent that the constitutional complaint is admissible, it is unfounded.
It is true that the prohibition, under pain of a fine, on the use of service contracts for staff working in slaughtering, including meat cutting, interferes with complainant no. 2)’s fundamental right under Art. 12(1) of the Basic Law. However, this interference is justified under constitutional law. It pursues a constitutionally legitimate aim – occupational health and safety of the workers carrying out core activities in the meat industry – and is suitable, necessary and, in particular, appropriate, to further this aim.
1. The interference with occupational freedom is of no more than medium severity. The prohibition on the use of service contracts for staff working in slaughtering, including meat cutting, only affects the freedom to practise an occupation of complainant no. 2). The prohibition merely sets out rules on staff organisation, which concern the way in which the occupational activities are carried out and are of medium severity. In principle, the prohibition on subcontracted labour on the basis of service contracts does not preclude the economic viability of the occupational activity of cutting pig heads. The administrative burdens and increases in wage costs arising from the provisions are of medium severity. The same applies to the loss of flexibility in recruitment and personnel planning resulting from the prohibition, despite the heightened requirements that may exist in the industry in this regard.
Complainant no. 2) emphasised difficulties with handling workers that are mostly from Eastern Europe, yet these relate to issues that are typical of the industry and do not result from the prohibition on the use of service contracts. There is no entitlement under constitutional law to benefit from one’s workforce without having to address the challenges arising from regular employment relationships.
2. The interference with the occupational freedom of complainant no. 2) must be balanced against the occupational health and safety of the workers carrying out core activities in the meat industry, which are interests of the common good of generally exceptional significance, and which the legislator tenably accorded great weight and a degree of urgency in this particular context.
a) The legislator assumed that serious breaches, in terms of both quantity and quality, of working time rules and other health and safety regulations had been committed in the past with regard to core activities in the meat industry and that the comparatively high number of work-related accidents in this industry could be attributed to ambiguous responsibilities within the businesses concerned resulting from their extensive use of subcontracted labour.
In the present context, namely legislation regarding the practice of an occupation, the legislator is generally afforded considerable leeway. This leeway is particularly great when aims related to the economy, the labour market or social policy are pursued, and typically means that the scope of review is limited, and may be reduced to a mere review for evident errors.
In the present case, the legislator has not exceeded the leeway to be accorded to it based on these standards. With regard to its presumption of non-compliance in the meat industry, the legislator can plausibly base its assessment on concurrent findings of a 2019 investigation conducted by the health and safety authorities in the Land North-Rhine Westphalia, as well as findings of the German Social Accident Insurance Institution for the foodstuffs and catering industry (Berufsgenossenschaft Nahrungsmittel und Gastgewerbe) and the Committee for Occupational Health and Safety and Safety Engineering of the Länder (Länderausschuss für Arbeitsschutz und Sicherheitstechnik). Additionally, the results of company inspections by the Monitoring Unit for Undeclared Work (Finanzkontrolle Schwarzarbeit) carried out from 2016 to 2020 and the project ‘Fair Mobility’ funded by the Federal Ministry of Labour and Social Affairs and the Federal Executive Board of the German Trade Union Confederation (DGB-Bundesvorstand) also support the legislator’s assessment. The evaluation of the Act points in the same direction. Sound studies resulting in a different conclusion have not been referred to by expert third parties in the legislative process or in the constitutional complaint proceedings, in particular as regards occupational health and safety, nor is the existence of such studies otherwise ascertainable.
b) Insofar as it is argued in the constitutional complaint that the legislator impermissibly based the rules on non-compliance established in the Land North-Rhine Westphalia only and failed to recognise that the meat industry did not differ from other industries with regard to the identified non-compliance, these objections are ultimately without merit. They do not challenge the respective factual basis, but are only directed against the conclusions drawn by the legislator. Yet it is not untenable for the legislator to base the adoption of a uniform federal legal framework on findings from company inspections within a specific region. Notwithstanding the fact that the results of several evaluations do suggest that the meat industry ranks at least higher than average when it comes to breaches of occupational health and safety regulations, it also would not be contradictory or untenable for the legislator to regulate an industry that does not rank at the top of the statistics with regard to the identified breaches. The Constitution does not require the legislator to only or primarily regulate the industries with the most breaches.
3. a) In balancing the burden resulting from the prohibition, under pain of a fine, on the use of service contracts for staff working in slaughtering, including meat cutting, on the one hand and its effect of promoting occupational health and safety on the other, the outcome is that the challenged provisions are appropriate.
b) The provisions are also compatible with the constitutional protection of legitimate expectations.
The protection of legitimate expectations did not mandate that the legislator create an (additional) transitional framework for the prohibition on the use of service contracts that goes beyond the regulatory mechanism in the challenged Act. Finally, the argument that investments were made on the basis of certain expectations regarding business development, and that it is uncertain if these expectations can be realised under the Occupational Health and Safety Oversight Act, does not hold. Art. 12(1) of the Basic Law does not, from the outset, protect legitimate expectations on the basis of frustrated investments or an unlimited entitlement to recoup investments.