German penal code) does not fulfill the requirements of article 72, paragraph

Transcription

1 May 7, 2016 Constitutional Court - Decisions - Regarding the constitutionality of the federal law to combat dangerous dogs: import ban Summary regarding the decision by the First Senate from March 16, BvR 1778/01-1. The import ban in 2 paragraph 1 clause 1 of the dog import ban law of April 12, 2001, is constitutional in so far as it relates to dogs of the specified breeds. However, the lawmaker has to consider the further developments and examine whether the basic assumptions are confirmed. 2. The prohibition of dog breeding to avoid offspring with genetic dispositions to increased aggression in 11 b paragraph 2 letter a of the animal protection law in connection with 11 of the animal protection dog law does not serve animal protection in the sense of article 74 paragraph 1 Nr. 20 of the constitution. 3. The sanctions in criminal law of widely varying state regulations to breed or sell dangerous dogs in 143 paragraph 1 StGB (translator's note: the German penal code) does not fulfill the requirements of article 72, paragraph 2 of the constitution. THE FEDERAL CONSTITUTIONAL COURT - 1 BvR 1778/01 - In the name of the people In the suit regarding the constitutional complaint 1. of Ms. B and 52 other complainants - Attorney: Prof. Jan Ziekow, PhD., Gartenstrasse 3, Freisbach -

2 against the law to combat dangerous dogs from April 12, 2001 (BGBI I p. 530) in connection with 11 of the animal protection dog law from May 2, 2001 (BGBI I p. 838) the Constitutional Court First Senate with the support of president Papier, Justice Jaeger, Haas, Justice Hoemig, Steiner, Justice Hohmann-Dennhardt, and Justice Hoffmann-Riem, Bryde deemed constitutional as a result of the oral negotiations from November 5, 2003: 11 b paragraph 2 letter a alternative 2 of the animal protection law in the edition of the law to fight dangerous dogs from April 12, 2001 (BGBI I p. 530) in connection with 11 of the animal protection dog law from May 2, 2001 (BGBI I p. 838) as well as 143 paragraph 1 of the criminal law code, inserted by the law from April 12, 2001, are all unconstitutional as per articles 12 paragraph 1 and article 14 paragraph 1 of the constitution and thus void. Below, the constitutional complaint will be repudiated. The Federal Republic of Germany has to pay the complainants half of their necessary expenditures. Reasons: The constitutional complaint is directed at the federal law to combat dangerous dogs. A. I. 1. Special regulations to handle dangers originating from dangerous dogs and dealings with them have existed on state level since the early 1990's (c.f. for example the police order regarding the possession of dangerous dogs in Baden-Württemberg from August 28, 1991, GBI p. 542, and the Bavarian order regarding dogs with associated with heightened aggression and danger from July 10, 1992, GVBI p. 268). They were partially tightened and partially expanded to include further regulation after a child playing in a school yard had

3 been killed by two crossbreed Bull Terrier and Pit Bull and American Staffordshire Terrier dogs (c.f. BGH, NStZ 2002, p. 315 <316>). The definition of dangerous dogs has since been associated with a specific set of breeds (c.f. for example 3 paragraph 1 of the regulation regarding the possession of dogs in Berlin <HundeVO Bln> IDF the regulation from May 29, 2001, GVBI p. 165, 1 paragraph 1 of the dog order Hamburg from July 18, 2000, GVBI S. 152 <heretofore referred to as DLHam>, and 1 paragraph 2 of the danger prevention order in Rhineland-Pfalz regarding dangerous dogs from June 30, 2000, GVBl p. 247). The state constitutional courts and the administrative courts differed in their assessment of the constitutionality of these regulations (c.f. on the one hand BerlVerfGH, NVwZ 2001, p. 1266; RhPfVerfGH, NVwZ 2001, p. 1273, and on the other hand for example HessVGH, ESVGH 52, p. 41; SchlHOVG, NVwZ 2001, p. 1300). The federal administrative court has since on multiple occasions judged that, based on current scientific knowledge, no direct relation appears to exist between a dog's breed and the dangers associated with it. Infringing on dog owners' freedom based solely on their dogs' breed, therefore, cannot occur based on general police powers given by law, since they would serve the prevention not the defense against danger. This would only be possible in the form of a parliamentary decision on the part of the lawmaker by formulating special regulations (c.f. BVerwGE 116, 347 <348 ff.>; court decisions from December 18, 2002 BVerwG 6 CN 3.01 and 6 CN 1.02 <Buchholz Nr. 72 and 73>). 2. On a federal level, the law attacked in this constitutional complaint was enacted on April 12, 2001 (BGBl I p. 530; heretofore referred to as DogLaw). A. It contains in article 1 the law regulating the import of dangerous dogs into the Federal Republic of Germany (DogImpLaw). Per 1 DogImpLaw, dangerous dogs in the context of this law are defined as dogs of the breeds Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, Bull Terriers and their cross breeds as well as certain dogs as defined in state laws; import refers to both import from other EU-member states as well as from all other nations. 2 paragraph 1 DogImpLaw provides the following wording in its reasoning for the ban: Dogs of the Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, Bull Terrier and their crossbreeds may not be imported. Dogs of other breeds and their crossbreeds, which are classified as dangerous in the state into which they are to be imported, may also not be brought into those states. 2 paragraph 2 Nr. 3 DogImpLaw enables the federal government to allow partial or total exemptions from 2 clause 1 DogImpLaw and regulate their requirements and procedures through statutory orders with Bundesrat approval. Per 2 paragraph 4 of the exemption rules enacted on the basis of these assumptions (DogImpEx) from April 3, 2002 (BGBl I p. 1248), dangerous dogs as defined in 2 paragraph 1 clause 2 DogImpLaw may be imported for permanent residence if the owner can show the rightful holding in the country and state.

4 3 DogImpLaw substantiates in paragraph 1 the duty of individuals and legal entities as well as groups without legal capacity to grant the relevant authorities access to requested information for the purposes of the application of the law. Paragraph 2 regulates monitoring rights of the relevant authorities such as the right to, under certain circumstances, enter properties for the purposes of viewing files or examine dogs. 5 DogImpLaw penalizes the import of dangerous dogs. 6 DogImpLaw defines fees. 7 DogImpLaw regulates the confiscation of dogs and other objects for acts included in 5 and 6 paragraph 1 DogImpLaw. B. Article 2 changed decreed: Heightened aggression per 11 b paragraph 2 of the animal protection law Heightened aggression in the sense of 11 b paragraph 2 of the animal protection law is defined for dogs as exhibiting exaggerated attack and fight behaviors which cannot be sufficiently addressed by species appropriate means. The breeding of dogs [translator's note: presumably dogs with heightened aggression, though it is not specified in the original wording] with other canids is prohibited. For Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, Bull Terriers and their crossbreeds, this aggression increase can generally be assumed. C. Through article 3 Nr. 2 DogLaw, finally, the following 143 was added to the criminal code: Prohibited interactions with dangerous dogs (1) A prison sentence of up to two years or a fine will be given for disobeying the state regulations to breed or sell dangerous dogs. (2) The same penalties will be the result of owning a dangerous dog without the required exemption. (3) Objects which are related to the crime may be confiscated. II. With this constitutional complain, the complainants are looking to directly counter the import ban in 2 paragraph 1 DogImpLaw as well as the related monitoring and sanctioning regulations in 3, 5 to 7 DogImpLaw, against the breeding prohibition per 11 b paragraph 2 letter a alternative 2 animal protection law in relation to 11 clause 3 animal protection dog law, and against the penalties from 143 paragraph 1 in the criminal code. The constitutional complaint is to be admissible and justified. The attacked regulations would violate in particular article 2 paragraph 1, article 3 paragraph 1, article 12 paragraph 1, article 13 paragraph 1, and article 14 paragraph 1 of the constitution paragraph 1 DogImpLaw would be incompatible with the constitution in several regards. A. The complainants who professionally breed dogs named in the regulations, would be violated in their freedom of choice of occupation from article 12 paragraph 1 of the constitution. The import ban prevents them from continuing in their occupations. This

5 would be unconstitutional. The attacked regulations would contain, in so far as they refer to state laws in clause 2, an impermissible dynamic link. They also would not comply with the requirements of the law, particularly the principle of norm definition (translator's note: essentially the principle that any law must be defined such that it is interpretable and understandable). Furthermore, the constitutional principle of prohibition of exaggeration would be violated by tying the law to specific breeds of dogs. 2 paragraph 1 DogImpLaw would fail to achieve the stated aim of the law, to protect humans from dangerous dogs, simply on the basis of all recent scientific findings, which show no correlation between dog breeds and the dangers associated with them. The regulations would, however, also not be necessary. Individual dangers of dogs are already assessed through various tests on a state level. 2 paragraph 1 DogImpLaw violates article 12 paragraph 1 of the constitution also because it is incompatible with prioritized common law of the European Union and, thus, indirectly also with article 23 paragraph 1 clause 2 of the constitution. The import ban is a prohibited regulation of the freedom of movement of goods in the sense of article 28 of the common law of the European Union (CLEU), as it is not justified in the sense of article 30 CLEU for the protection of the health and life of humans and animals. The constitutional court could be called upon due to the violation of basic rights through community inappropriate national laws. In cases of this kind, where the constitutional complaint is directed at an internal domestic law, the aspect of the subsidiarity of constitutional complaints does not apply. Thus, the complainants may not be deferred to the examination and dismissal competencies of the specific courts. The complainants would also not be lacking in their rights to be protected, for they had no way to seek protection from the European Supreme Court of Justice. For doubts regarding the validity or interpretations of norms of the common law, the constitutional court would have to present the case to the European Supreme Court of Justice. B. The complainants who do not professionally breed dogs would be violated for the same reasons in their basic rights from article 14 paragraph 1 of the constitution, and those who import dogs into the Federal Republic for reasons other than breeding would similarly be violated in their rights from article 2 paragraph 1 of the constitution. C. Finally, the import ban from 2 paragraph 1 DogImpLaw violates the principle of general equality from article 3 paragraph 1 of the constitution. Tying the law to specific breeds leads to unequal treatment of owners of dogs of those breeds, which cannot be scientifically justified, for this link to the breed would not be a differentiating criterion for the potential of danger of a dog. Other breeds, too, such as German Shepherds, Boxers, and Great Danes show above average rates of aggression and thus associated danger than the dog population at large.

6 2. The administrative entering law per 3 paragraph 2 Nr. 1 and 2 DogImpLaw is incompatible with article 13 of the constitution. This refers to searches in the sense of article 13 paragraph 2 of the constitution, for which a judge provisio is lacking. 3. The fining and confiscation regulations of 5 to 7 DogImpLaw would not be constitutional. 5 DogImpLaw is unconstitutional solely based on its relation to 2 paragraph 1 DogImpLaw. 6 paragraph 1 Nr. 1 DogImpLaw violates the principles of norm definition and clarity because it refers to a regulation not yet in place when it would be enacted. The possibility of confiscating dogs and other objects included in 7 DogImpLaw violated the property guarantee from article 14 paragraph 1 of the constitution. This regulation would be incommensurate, for even negligent acts could allow for a confiscation without regard for the actual dangers associated with the affected dog. 4. The breeding ban per 11 b paragraph 2 letter a alternative 2 of the animal protection law in relation to 11 clause 3 of the animal protection dog law violated article 12 paragraph 1, article 14 paragraph 1, and article 3 paragraph 1 of the constitution. The federal lawmaker already lacks the competency to enact regulations which per the reasoning for the law are supposed to defend against dangers and not, in the interest of animal protection, prevent disturbances in the raising of dog offspring and in the social behavior of dogs. 5. Finally, the criminal law sanctioning of state-law breeding and trading bans based on 143 paragraph 1 of the penal code are incompatible with the constitution. Through them, the freedom of choice of occupation of the complainants, who breed dogs professionally, is violated. The federal government, thus, already has no lawmaking competency. Furthermore, the requirements from article 72 paragraph 2 of the constitution are not met. For those complainants, who do not breed dogs professionally, 143 paragraph 1 of the penal code violated article 14 paragraph 1 of the constitution. III. The Federal Office of the Interior for the federal government and the Bavarian Minister President's Office for the Bavarian state government opined on the matter of this constitutional complaint. Both believe the regulations to conform to the constitution. 1. According to the federal office's presentation, the attacked law serves the federal government to defend against dangers in addition to the existing state regulations. A practical, primarily breed-based approach not one based on an individual case-by-case assessment is the stated aim. Therein the statistically higher danger associated with Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers as well as their particularly aggressive behavior would be assumed. These breeds would be perceived as possessing an especially low threshold for stimuli provoking aggression and a particularly high level of strength, thus justifying the enhanced risk of danger. Though criticized as indiscriminate in some circles, for a dog's genes are not the only factor

7 contributing to its behavior, no generally accepted scientific opinion on the matter currently exists. Therefore, the constitutional complaint is not justified in this regard paragraph 1 DogImpLaw would not violate article 12 paragraph 1 of the constitution. Since it is aimed at protecting the lives and health of humans, the regulation of the occupation is commensurate. Dogs of the breeds specified in 2 paragraph 1 clause 1 DogImpLaw are involved in attacks on other animals or humans relatively often compared to their small populations. The state's duty to protect the lives and health of its people could not be inhibited by the fact that there are currently insufficient data available to determine whether specific breeds of dogs are associated with aggression and danger. The lawmakers have a margin of operation, allowing them to enact such a law if there was data showing there was even just the potential for a link between breed and danger. Regulations with a lower level of intervention, which might also address the protection and health of the population, could not be found to be feasible. This would be especially true for an individual assessment of the danger of dogs. Neither would article 14 paragraph 1, article 2 paragraph 1 of the constitution or the general equality principle in article 3 paragraph 1 be violated. The distinction between breeders and owners of dogs specified in 2 paragraph 1 DogImpLaw and the breeders and owners of other dogs would be objectively reasoned in the differences between the dangers associated with the respective dog breeds. 2. The laws regarding entering property per 3 paragraph 2 DogImpLaw do not violate the basic right of the inviolability of one's residence per article 13 paragraph 1 of the constitution. The law does not suggest a search in the sense of article 13 paragraph 2 of the constitution. The confiscation order in 7 DogImpLaw, too, would be constitutional. It would be a permissible decree of content and barrier limitation in the sense of article 14 paragraph 1 clause 2 of the constitution. 3. The breeding ban per 11 b paragraph 2 letter a alternative 2 of the animal protection law in connection with 11 clause 3 of the animal protection dog law would not violate article 12 paragraph 1 of the constitution. The lawmaking competency was derived from article 74 paragraph 1 number 20 of the constitution. The regulation serves the purpose of animal protection, since the affected dogs are saved from measures resulting in severe danger and death as a result of aggression breeding. Matters of danger prevention would only be tangentially relevant. Article 14 paragraph 1 and article 3 paragraph 3 of the constitution would also not be violated. 4. Finally the criminal sanctions of state law breeding and import bans in 143 paragraph 1 of the penal code is compatible with with article 12 paragraph 1 of the constitution. The federal government would be responsible per article 74 paragraph 1 Nr. 1 of the constitution for this kind of regulation, which is necessary in terms of article 72 paragraph 2 of the constitution.

8 2. The Bavarian Minister President's Office shares the central aspects of the opinions of the federal government. IV. During the oral negotiations the complainants and the federal government went further in depth on their opinions. Ms. Eichelberg, PhD, from the Zoological Institute of the University of Bonn for the complainants and the chair of the Ministry for Consumer Protection, Food, and Agriculture's commission for the protection of animals, Professor Hartung, PhD, for the federal government additionally opined on the matter. The German Association for Dogs, furthermore, weighed in on the attacked law and the connected questions. The constitutional complaint is not fully admissible. B. I. It is not admissible in so far it is directed at 2 paragraph 1 clause 2, 3 paragraph 2, 5 in connection with 2 paragraph 1 clause 2, 6 paragraph 1 Nr. 1, 7 in connection with 5 and 2 paragraph 1 clause 2 as well as in connection with 6 paragraph 1 Nr. 2 and 3 DogImpLaw. The complainants lack the necessary right to complain in these cases. 1. This authority requires, if the constitutional complaint is directly aimed at a law, that the complainants are themselves, directly, and immediately impacted by the attacked norm until the Constitutional Court's decision (c.f. BVerfGE 106, 210 <214>; consistent case law). They are themselves affected, if the complainants are addressed by the regulation. They are directly affected, if it is obvious that and how the complainants will be affected by the attacked law. They are immediately affected, if the norm impacts the complainant's standing in front of the law is changed without any further acts (c.f. BVerfGE 1, 97 <101 ff.>; 102, 197 <206 f.>). 2. Following these general assertions, the complainants are not right to complain with regards to the specified regulations paragraph 1 clause 2 DogImpLaw substantiates the import ban for dogs which are deemed dangerous by the regulations in the laws of that state, in which it will be permanently held. Per 2 paragraph 4 DogImpLaw it is, however, allowed to import these dogs into the country, if the owner proofs they are allowed to hold the dog in a state. Then the complainants who are attacking 2 paragraph 1 clause 2 DogImpLaw are no longer immediately affected by the law. In so far as they want to own Kangals, Dogues de Bordeaux, Mastini Napoletani, English Mastiffs, Fili Brasileri, Dogi Argentini in the states of Bavaria, Hamburg, and Hesse, the respective state laws allow this under reservation (c.f. Article 37 of the Bavarian criminal

9 law in the edition of the law from June 10, 1992, GVBl p. 152, in connection with 1 paragraph 2 of the order regarding dogs with heightened aggression and danger in the edition of the order from September 4, 2002, GVBl p. 513, 2 paragraph 1 in connection with 1 paragraph 2 DLHam, 1 paragraph 3 in connection with 2 paragraph 1 clause 2 Nr. 7, 10, and 11 of the Hessian danger prevention order regarding the holding and walking of dogs <DogOrder> from January 22, 2003, GVBl p. 54). In Berlin, where another Dogo Argentino is supposed to imported, there is not even a need for a permit; per 5 paragraph 3 ff. In connection 3 paragraph 1 Nr. 7 HundeVO Bln the owner must merely provide proof of their knowledge of properly walking and holding the dog upon request from the authorities. It is, thus, possible for the complainants to show in the sense of 2 paragraph 4 DogImpBan in all cases that the dangerous dogs they are looking to purchase are legally holdable in their respective states. They would only be affected by 2 paragraph 1 clause 2 DogImpLaw, if their individual petitions were to no be accepted. Though in Hesse according 4 paragraph 4 clause 1 DogOrder the knowledge based permit per 3 paragraph 1 clause 1 Nr. 3 DogOrder must only be obtained and the per 3 paragraph 1 clause 1 Nr. 4 DogOrder necessary dog character examination only conducted, if the dog is older than fifteen months, provided it has no record of aggression or comes from aggression breeding, the verdict of the court is not affect. The complainants did not specify they wanted to import dogs of fifteen months or older. For younger dogs, a preliminary permit per 4 paragraph 4 clause 2 DogOrder can be issued. 2. The complainants also do not have the right to complain about 3 paragraph 2 DogImpLaw. This regulation allows persons authorized by the relevant authorities, to enter properties and rooms "within the bounds of paragraph 1", i.e., to confirm information by reviewing files and examine dogs. It directly affects the complainants who are attacking this law, for information must, per 3 paragraph 1 DogImpLaw, only be given to the relevant authorities upon request. It is only in these individual cases, then, that the information requirement is renewed, which is put into place by the monitoring rights in 3 paragraph 2 DogImpLaw. This right can be contested by the complainants, if they are ordered for information by the authorities. 3. In regards to the regulations in question (c.f. B I. before 1.) the complainants are also not affected. It follows, in so far as 5 DogImpLaw could mean a penalized infringement of the import ban in 2 paragraph 1 clause 1 DogImpLaw, that the complainants are not directly affected by this regulation. The same is true for the details of the penalties. Per 6 paragraph 1 Nr. 1 DogImpLaw, acting against 2 paragraph 2 Nr. 1 or 4 paragraph 2 DogImpLaw describes an infringement of the law that is fineable, if they specify a elements of a fineable offense. The complainants themselves pointed out that no such regulation exists at the point of enactment of the law. It also has not been put

10 into place since. Therefore, there is no current effect on the complainants. The regulation regarding the confiscation of dogs and objects in 7 DogImpLaw does not directly affects the complainants, in so far as it refers to 2 paragraph 1 clause 2 DogImpLaw via 5 DogImpLaw. In so far as it refers to 6 paragraph 1 DogImpLaw, the complainants are only attacking its Nr. 2 and 3 in connection with 3 paragraph 1 and 3 DogImpLaw. Here, too, they lack the right to complain. Through 7 in connection with 6 paragraph 1 Nr. 2 and 3 paragraph 1 DogImpLaw, they will not be immediately affected (as is true for 3 paragraph 2 DogImpLaw. The same is also true in so far as the complainants attack 7 in connection with 6 paragraph 1 Nr. 1 and 3 paragraph 3 DogImpLaw. The toleration and collaboration duties, which 3 paragraph 3 DogImpLaw describes for the information duties in 3 paragraph 1, aid the monitoring rights of the authorities per 3 paragraph 2 and, hence, only affect the complainants in connection with the information request per 3 paragraph 1. II. The claim 2 paragraph 1 DogImpLaw would be unconstitutional is also inadmissible, for it does not violate European common law. Domestic laws which refer to the common law are not equivalent to basic rights, which can be attacked in a constitutional complaint alone per article 93 paragraph 1 Nr. 4 a of the constitution, 90 paragraph 1 BVerfGG. Against the opinion of the complainants, neither article 2 paragraph 1 of the constitution (c.f. BVerfGE 82, 159 <182>) nor article 23 paragraph 1 clause 2 of the constitution open an opportunity for the Constitutional Court to review the laws in question. The Court is not responsible for decisions regarding whether a domestic norm is compatible with the common law or not (c.f. BVerfGE 31, 145 <174 f.>; 82, 159 <191>). III. With regards to the further attacked regulations, the constitutional complaint is admissible paragraph 1 clause 1 DogImpLaw affects the complainants, who look to import dogs of the in the law specified breeds, immediately and directly, for it is apparent based on their claims that they will be prevented from importing such dogs in the future without any further enactments. In so far as 5 and 7 DogImpLaw follow up on 2 paragraph 1 clause 1 DogImpLaw, the complaints here, too, are admissible. The breeding ban per 11 b paragraph 2 letter a alternative 2 of the animal protection law in connection with 11 clause 3 animal protection dog law also does not require further acts in order to affect the complainants. The same is true for the penalties defined in 143 paragraph 1 StGB. 2. The complaints against the violation of European common law also do not lead to a lack of legal protection for the complainants, in so far as they attack 5 and 7 DogImpLaw. Though an examination on the basis of the basic rights is not necessary when it is already clear that the regulations violate common law and may thus not be applied domestically (c.f.

11 BVerfGE 85, 191 <203 ff.>; 106, 275 <295>), this is not the case if the European Court of Justice has not yet announced a decision regarding the common law question raised by this constitutional complaint. The Constitutional Court, then, is also not required to enable an early decision for the European Court of Justice per article 234 EGV. Until it is determined that the domestic law is constitutional, the European Court of Justice could not determine whether an early decision would be valid based on domestic standards (c.f. BVerfGE 106, 275 <295 f.>). This uncertainty can only be assuaged with the Constitutional Court's decision on the constitutional complaint directed against this regulation. C. The constitutional complaint is partially justified, in those parts where it is admissible. It is unjustified in so far as it is directed at the import ban from 2 paragraph 1 clause 1 DogImpLaw and the connected regulations in 5 and 7 DogImpLaw (I, II). It is successful, on the other hand, in its attacks against 11 b paragraph 2 letter a of the animal protection law in connection with 11 clause 3 of the animal protection dog law, in so far as those regulations prohibit the breeding of dogs to prevent increased aggression in offspring (III). The same is true in the complainants' attacks against 143 paragraph 1 StGB (IV). I. The constitutional complaints against 2 paragraph 1 clause 1 DogImpLaw are not reasonable. 1. The import ban in these regulations is to be tested, particularly with reference to the freedom of choice of occupation per article 12 paragraph 1 of the constitution of the complainants who breed Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers professionally. 1. This basic right simultaneously protects the choice and practice of occupations, where occupation is defined as any act permanently intended to earn money for one's livelihood (c.f. BVerfGE 97, 228 <252 f.>; 102, 197 <212>). A second job, too, falls under the protection of basic rights (c.f. BVerfGE 87, 287 <316>). Even those complainants who only breed dogs part-time are, thus, still covered under article 12 paragraph 1 of the constitution. 2. The import ban from 2 paragraph 1 clause 1 DogImpLaw infringes upon the protections from article 12 paragraph 1 of the constitution. While it keeps in place the freedom to choose the dog breeding occupation, the practice of the complainants is impaired. They can no longer import Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers, which they require for their occupations. Therefore, the import ban has an occupation regulating tendency (c.f. BVerfGE 95, 267 <302>; 98, 218 <258>). 3. The restriction of the freedom of choice of occupation through 2 paragraph 1 clause 1 DogImpLaw is, however, constitutional.

12 1. Regulations of the practice of occupation are admissible, if they are enacted within the appropriate competencies and otherwise conform to the constitution. They must be substantiated with sufficient benefits to community welfare and adhere to the principle of commensurability (c.f. BVerfGE 95, 193 <214>; 102, 197 <213>). The restricting regulation must, thence, be appropriate to and necessary for the achievement of the lawmaker's goal while being commensurate and reasonable for those who are limited in their practice of occupation as a result (c.f. BVerfGE 103, 1 <10>; 106, 181 <191 f.>). Therein, further margins of evaluation and prognosis are granted to the lawmaker in terms of what they deem appropriate and necessary to achieve their goals (c.f. BVerfGE 50, 290 <332 ff.>; 61, 291 <313 f.>; 88, 203 <262>), which can be assessed by the Constitutional Court only in limited capacity depending on the details of the case (c.f. BVerfGE 77, 170 <214 f.>; 90, 145 <173>). For evaluations of dangers to the general public as well as measures taken to counter and prevent them, the lawmaker only oversteps their boundaries when the assumptions made are so wrong, they could not reasonably be the basis for such measures (c.f. BVerfGE 30, 292 <317>; 37, 1 <20>; 77, 84 <106>). It may, however, be demanded that if the lawmaker has not been able to make a dependable judgement at the time of enactment the further developments be examined closely and the norms revised, if the underlying assumption no longer stand (c.f. BVerfGE 25, 1 <12 f.>; 49, 89 <130>; 95, 267 <314>). This is appropriate, amongst others, in cases when complex dangerous situations are to be assessed, which do not have sufficient science behind them (c.f. BVerfG, third chamber of the First Senate, NJW 2002, p <1639>). 2. Based on these standards, the import ban in 2 paragraph 1 clause 1 DogImpLaw is compatible with article 12 paragraph 1 of the constitution. (1) The lawmaker had the appropriate competencies to enact the law. It regulates the import of dogs from other European and non-member states into the Federal Republic (c.f. 1 DogImpLaw), thus affecting cross-border trade in the sense of article 73 Nr. 5 of the constitution, which the reasoning behind the law takes into account (c.f. BTDrucks 14/ 4451, p. 8 under A II), and is thus covered as the sole lawmaking responsibility of the federal state. (2) No objections can be made in terms of the principles of accordance to the rule of law against 2 paragraph 1 clause 1 DogImpLaw. In particular, the regulations do not violate the principle of norm definition (c.f. on this matter BVerfGE 102, 254 <337> with further evidence). The dogs whose import is to be banned are clearly defined by their breeds. Whether this holds for the specified crossbreeds does not have to be part of the Senate's decision. None of the complainants are looking to import a dog of the crossbreed nature defined in 2 paragraph 1 clause 1

13 DogImpLaw. (3) 2 paragraph 1 clause 1 DogImpLaw serves important matters community welfare. These regulations aim like the entire law to combat dangerous dogs to enhance the existing state laws so as to protect citizens' health and lives from dangerous dogs and the behaviors of their owners (c.f. BTDrucks 14/4451, p. 1 under A, p.8 under A I). It is to be ensured that the states' laws are not evaded by importing dangerous dogs. Simultaneously, the enforcement of those laws is to be facilitated (c.f. BTDrucks 14/4451, p. 8 under A II). (4) The lawmaker also had sufficient reason to act. It is in the assessment of the lawmaker to decide whether, what, and how protective measures are to be employed in different areas of life, if danger is deemed likely. The requirements for the reliability and likelihood of the assumptions depends on the measures to be enacted. The abstract assumption which this law is based on, that Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers are so dangerous to humans, their import has to be stopped, is tenable and obviously not incorrect. It was agreed upon in oral negotiations that the current evidence to show a link between a dog's breed and its aggression is insufficient (c.f. also BVerwGE 116 <345>). Whether and to what extent a dog is dangerous depends on a variety of additional factors, such as edification, education, and living conditions growing up, as well as other situational factors, though particularly relating to its owner and educator. This still gives the lawmaker enough reason to act, if the incident to be prevented is correlated with a sufficient likelihood with the factors controlled. If, thence, evidence suggests a correlation between dogs and their potential danger, the lawmaker may enact regulations to protect human life and health. For dogs of the breeds in question, the lawmaker could make that assumption. Even if the scientific community is not in agreement that aggressive behaviors of dogs are not only caused by genetic factors, the opposite, i.e., no relation between genetic factors and aggression, cannot be assumed either. According to the statement given by Ms. Eichelberg, PhD, in the oral negotiations, the danger of a dog is not a breed-characteristic. On the other hand, the scientist leaves no doubt that groups of dogs such as Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers show a predestined potential for danger (in: German Association for Dogs, "Fighting Dogs?", Dangerous Dogs? New Scientific Reports, fifth edition 2000, p. 4 <7 f.>). According to the so-called "agony breeding"-report written for the Ministry for Consumer Protection, Food, and Agriculture to accompany 11 of the animal protection law from 1999, the kind and degree of aggressive behavior are in significant part determined by genetic factors (c.f. said report, p. 32). Feddersen-Petersen (in: German Association for Dogs,

14 Fighting Dogs?, p. 9 <14>) mention the complicated relationship between genetic and environmental factors and hence reckon the behavior of so-called fighting dog breeds to be "not unproblematic", also in light of their breeding history (c.f. Dog Psychology, third edition 2000, p. 78). Finally, Unshelm reports (in German Association for Dogs, ibid., p. 19 <20 ff.>) that particularly Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers, even independent from the behavior and ideology of their owners, have stood out as more aggressive and dangerous to humans and other animals. The data the federal government presented for the case also speak to a particular danger. They are based on surveys from the years by the German City Day, which it conducted amongst its members. 93 of the surveyed cities provided concrete data. According to this data, Pit Bulls, Bull Terriers, and Staffordshire Bull Terriers are only in fourth, sixth, and seventh place, respectively, for recorded offenses; other dogs such as the German Shepherd turned out to appear less often (c.f. German City Day, The City Dog. Numbers Taxes Dangers, 1997, p. 37, 46ff.). These data do not, however, provide any reliable conclusions regarding the potential dangers associated with individual breeds, for that would assume a comparison of the number of relevant incidents with the respective dog populations. If these population data are taken from Schleswig-Holstein's state government from the year 2000, which are based on the puppy statistics of the German Association for Dogs from 1992 to 1997 (c.f. LTDrucks 15/247, p. 2 f.), it appears reasonable and plausible to state, as the German City Day has after further evaluation of these data according to a later statement by the federal government, that Pit Bull Terriers are proportionately most often involved in biting incidents and that other Bull Terriers, too, bite more often that other breeds, compared to their respective population sizes (c.f. the information from Orlikowski-Wolf, Verwaltungsrundschau 2002, p. 369 <327>). Surveys conducted by the federal government during the negotiations of the first draft of the law to combat dangerous dogs confirmed these findings. According to these data, which the Ministry of the Interior introduced into this constitutional complaint case, in Brandenburg in 2000 Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, and Bull Terriers were involved in eight times as many biting incidents relative to their respective populations and compared to other breeds. In Hamburg in 1998 and 1999, Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers were involved in a third of all biting incidents with injuries to humans. In Rhineland-Pfalz, dogs of these breeds also were more likely to be involved in these kinds of incidents than other dogs (c.f. also RhPfVerfGH, NVwZ 2001, p <1276>). Finally, the data from the Ministry of the Interior also indicate that dogs specified in 2 paragraph 1 clause 1 DogImpLaw are involved in biting

15 incidents in Mecklenburg-Vorpommern proportionally more often than other breeds. Even when taking into account that biting incidents are not officially recorded on state or federal level and that exact data are missing (with the exception of Schleswig Holstein), the evidence which 2 paragraph 1 clause 1 DogImpLaw is based on is not to be disregarded and the lawmakers' considerations, hence, not obviously false. In fact, they carry the attacked import ban. The degree of likely risk for an assumption of danger is dependent on the violated right as well as on the expected damages. Therein, it must be taken into account that dogs of the specified breeds were involved in attacks that led to death and severe injuries. It cannot be foreseen under what circumstances a dog may escape its owner's influence and attack humans. In light of the high weight placed on the protection of human lives and health in the constitution (regarding the protection of lives as a central state duty c.f. BVerfGE 88, 203 <257>; regarding the protection of human health BVerfGE 85, 191 <212 f.>; 87, 363 <386>) and taking into consideration the grave consequences of biting incidents involving dogs in the sense of 2 paragraph 1 clause 1 DogImpLaw as a result of their strength and biting strength can have on human lives and health, the outlined data combined with the also above outlined scientific evaluations of genetic factors provide sufficient basis for the lawmaker to interfere and prevent the dangers associated with dogs of the specified breeds. (5) In light of these findings, the import ban is also in line with principle of commensurability. (a) The regulation is effective to reach its goal. By means of the import ban, the number of dogs deemed dangerous in the country will be reduced and thus the biting incidents prevented. The lawmaker's anticipated aim, to enhance the state regulations for the protection of the lives and health of citizens and to ensure the enforcement of these regulations, is thereby supported. This suffices to assume the regulations are suitable (c.f. BVerfGE 30, 292 <316>; 145 <172>; consistent case law). This is not opposed by the reported experiences about the import ban in 2 paragraph 1 DogImpLaw, claiming the national borders' customs officers were not sufficiently educated to distinguish the different dog breeds or their crossbreeds, though they do conduct examinations; along state borders, there is no way to control the import anyway. A law does not lack in suitability merely because its implementation may be difficult, so long as it remains possible. The federal law maker may trust that the fine and confiscation policies in 5 and 7 DogImpLaw will be recognized and that the authorities will take appropriate measures to sanction following the rules if necessary. Therefore, there are no doubts about the suitability of the import ban in 2 paragraph 1 clause 1 DogImpLaw. (b) The ban is also necessary to achieve the set goal. A similarly effective, but less

16 infringing on the freedom of practice of occupation means to achieve the goal (c.f. BVerfGE 30, 292 <316>; 90, 145 <172>) was not available to the lawmaker. Most importantly, the import of dogs cannot be dependent on a proof of safety of the individual dog. Examinations by dog psychologists and veterinarians and similar measures, which the state law applies to determine the dangers associated with dogs, cannot sufficiently determine the actual potential for dangerous behavior. Psychological assessments are a possible measure to determine the potential for dangerous behavior that has been implemented by the states. They only allow for a momentary assessment, however, as confirmed by Ms. Eichelberg, PhD, in the oral negotiations, and cannot accurately assess the dog's behavior in a specific situation of crisis. The president of the animal rights commission, Professor Hartung, PhD, further pointed out in the oral negotiations, that it would be possible to hide a dog's potential aggression temporarily through pharmacological treatment of the animal. It cannot, then, be ruled out that a dog who passes a psychological assessment, could still behave dangerously, especially when taking into account the unpredictability of animal behavior (c.f. BGHZ 67, 129 <132 f.>). The lawmaker cannot, therefore, view the psychological assessment as an equally valid alternative. (c) The import ban in 2 paragraph 1 clause 1 DogImpLaw is, finally, commensurate in a narrow sense. Weighing overall the severity of the infringement and the importance of the legal goods to be protected, the ban is an appropriate, reasonable, and commensurate measure despite the lack of perfect clarity when it comes to the likelihood of realization of the potential for danger by the specified dogs (c.f. BVerfGE 90, 145 <173>; 104, 337 <349>). The effects of the infringement on the basic rights of freedom of practice of occupation are limited. If breeders want to purchase dogs falling under 2 paragraph 1 clause 1 DogImpLaw, they cannot no longer import them from abroad to breed offspring. The breeding of other dogs, however, remains untouched by the new regulation. The complainants can continue to work in their current fields. For the overall consideration it is also important to note that the lives and health of citizens, whose protection is to be improved upon by 2 paragraph 1 clause 1 DogImpLaw, have a particularly high rank (c.f. above under C I 1 c bb <4>). The community welfare the regulation serves has a significantly higher rank in relevance than the economic and ideological interests of the affected breeders, who look to import their preferred breeds from foreign nations. This is not affected by article 20 a of the constitution, stating that the state and its organs also have a duty to protect animals since the law from July 26, 2002, was enacted (BGBl I p. 2862). Independently of whether the import ban affects animal protection at all, the regulation in 2 paragraph 1 clause 1 DogImpLaw is also effective at achieving this goal while being commensurate in light of the reasonable limitations placed on the

17 freedom of practice of occupation. (d) The lawmaker must, however, continue to evaluate the development of the scientific evidence. The data on different breeds, the various environmental and genetic factors, and the assumptions of the lawmaker leave a significant amount of uncertainty. It will, therefore, be necessary to keep an eye on the developments in the science of dangerous dogs as well as the causes for particularly the biting behaviors by dogs specified in 2 paragraph 1 clause 1 DogImpLaw. If the prognosis of danger turns out to not or not fully be confirmed, the regulations will need to be adapted to reflect this new information paragraph 1 clause 1 DogImpLaw is also constitutional in terms of article 14 paragraph 1 and article 2 paragraph 1 of the constitution. Therein, it may remain undecided whether the complainants, who want to import the kinds of dogs specified in 2 paragraph 1 clause 1 DogImpLaw, are affected in their property guarantee. Even if they were, a violation of article 14 paragraph 1 of the constitution is not given. 2 paragraph 1 clause 1 DogImpLaw is to be viewed in the sense of article 14 paragraph 1 clause 2 of the constitution as a definition of contents and barriers of the property, the dogs purchased abroad, which is valid for the same reasons the infringement of the basic right in article 12 paragraph 1 of the constitution is justified (c.f. above C I 1 c bb). The same is true for infringements upon the general freedom of action guaranteed in article 2 paragraph 1 of the constitution. 3. The import ban in 2 paragraph 1 clause 1 DogImpLaw is, finally, also constitutional in terms of the general principle of equality in article 3 paragraph 1 of the constitution. 1. It states to treat equals equally and unequal differently (c.f. BVerfGE 103, 242 <258>; consistent case law). The lawmaker is not prevented from any differentiation, however (c.f. BVerfGE 100, 59 <90>; 102, 41 <54>). Nor are they required to always treat unequals differently (c.f. BVerfGE 86, 81 <87>). The lawmaker would violate the basic rights, if their regulation which directly or indirectly affect groups of people treats one group differently from another, despite there being no difference that could justify this unequal treatment (c.f. BVerfGE 102, 41 <54>; 104, 126 <144 f.>). The same is true if the lawmaker disregards actual differences which are so meaningful that they must be considered under an equality framework (c.f. BVerfGE 71, 255 <271>; 98, 365 <385>; 103, 242 <258>). This is mainly dependent upon the degree to which the equal or unequal treatment affects the various freedoms guaranteed by the constitution (c.f. BVerfGE 95, 267 <316 f.>; 105, 73 <110 f.>). It must also be considered whether the lawmaker has some judgement prerogative in examining the situation and the potential outcomes from any enacted regulation. The specifics of any case and the relevance of the rights in question must, therefore, be carefully considered; the margin of decision is also dependent upon

18 a sufficiently certain judgement of the circumstances at the point of enactment (c.f. BVerfGE 88, 87 <97>; 99, 367 <389 f..>). 2. Based on these principles, no violation of the general principle of equality can be found. 1. The lawmaker is acting within the bounds of a constitutionally reasonable margin in assuming sufficient grounds to assume dogs of the breeds specified in 2 paragraph 1 clause 1 DogImpLaw are particularly dangerous to humans, especially because they were involved in a proportionally higher number of biting incidents than other dogs (under C I 1 c bb <4>). They furthermore assumed that dogs of other breeds such as the German Shepherd, Great Dane, Doberman Pinscher, Rottweilers and Boxers were showing the same signs of violence and were thus associated with lower risk of danger. This assumption was not proven wrong in the oral examination and there is insufficient evidence for it being false in writing as well. 2. The equal treatment of those individuals who would have wanted to import dogs in the sense of this law as well as of those whose dog's danger could not be fully examined until an individual assessment took lace, can also not be objected to in terms of the general principle of equality in article 3 paragraph 1 of the constitution. In the opinion of the lawmaker, it would be impossible to determine the potential danger of dogs on a case by case basis (c.f. BTDrucks 14/4451, p. 12 f.). This judgement is reasonable (c.f. above C I 1 c bb <5> <b>) and is thus not of constitutional concern. The law is, therefore, constitutionally valid with the general principle of equal treatment. 3. The lawmaker must, however, continue to follow the developments also in terms of the general principle of equality. Therein it will be mainly important to assess whether the unequal treatment of those whose dogs fall under 2 paragraph 1 clause 1 DogImpLaw will be justified in the future. If examinations of biting behaviors showed that dogs other than those specified in the law bite similarly often as those named in 2 paragraph 1 clause 1 DogImpLaw, the attacked regulation would no longer be constitutional. It would have to be repealed or extended to include the thus far not included breeds. II. No constitutional reservations affect the regulations in 5 in connection with 2 paragraph 1 clause 1 and in 7 in connection with 5 and 2 paragraph 1 clause 1 DogImpLaw. 5 DogImpLaw penalizes the import ban from 2 paragraph 1 DogImpLaw. In so far as the criminal code links to 2 paragraph 1 clause 1 DogImpLaw for this purpose, the complainants only deem it unconstitutional, for they deem 2 paragraph 1 clause 1 DogImpLaw unconstitutional. That, however, is not the case, as elaborated above. The criminal norm in 5 DogImpLaw itself also leads to no constitutional concerns.