Federal Constitutional Court decision of January 29, 1998 BVerfG, 1 BvR 2422/97 para. 1-22 from http://www.bverfg.de/ Free for private use, commercial use only with permission of the court http://www.bundesverfassungsgericht.de/entscheidungen/frames/rk19980129_1bvr242297 [Note from translator: German documents sometimes use initials instead of names as a data security measure for individuals or corporations.] Federal Constitutional Court
- 1 BVR 2422/97 -
In the proceedings concerning the constitutional complaint of [blacked out] - represented by [blacked out] against a) the decision of the Hamburg Superior Administrative Court of November 7, 1997 - OVG Bs III 53/97 -, b) the decision of the Hamburg Administrative Court of May 13, 1997 - 16 VG 1778/97 - and application for issuance of a temporary restraining order the 1st Chamber of the First Senate of the Federal Constitutional Court, through court Vice President Seidl and Judges Grimm and Hoemig, in accordance with PP. 93 b in conjunction with PP. 93 a BVerfGG in the wording of the publication of August 11, 1993 (BGBI I p. 1473), unanimously decided on January 29, 1998:

The constitutional complaint will not be taken into consideration for a decision. That settles the application for issuance of a temporary restraining order.

1 Basis:

The constitutional complaint concerns an expedited proceeding by the administrative court against an official recommendation on so-called "technology statements"

to be applied in commercial life in regard to the Scientology organization.

2 I.

1. In the Agency of the Interior of the Free and Hanseatic City of Hamburg, the opponent of the initial proceeding, a "Work Group on Scientology" (AGS) is established whose mission it is to obtain and evaluate information about the practices, influences and expansion of the Scientology Church, to coordinate official activities in this area, to perform public information work and to report to the "Buergerschaft"

[area of government] the findings it has obtained. In September 1995, the AGS submitted an "Interim Report on the activities of the Scientology Organizations" to the Buergerschaft. That report found, among other things, that "the risk of gradual infiltration of the economy" by businesses allied with Scientology existed.

3 In the course of its information work, the AGS addresses groups including chambers of commerce and business associations and warns them of the risks, in their opinion, associated with businesses allied with the Scientology Organization. In doing that, the AGS points out an option of protecting oneself contractually from working in cooperation with businesses of that type and sends to companies which ask about it a so-called "technology statement" which the AGS recommends the companies when they do business with others. The signer of the statement attests that he does not operate using the technology of L. Ron Hubbard, that neither he nor his staff take courses or seminars in this technology and that company management rejects that technology.

4 2. The lead complainant describes herself as a member of the Scientology Church, whose teachings she perceives as mandatory religious truth. In the studio which she operates commercially to solve problems of weight and figure, she dispenses to her customers, among other things, a vitamin concentrate which is distributed by the B. company. In order to be able to act as an intermediary agent in dispensing this preparation, the lead complainant submitted a so-called consulting application with the business at the end of 1996. The business had a requirement to sign the above-mentioned statement or to exclude herself; the lead complainant did not comply. Instead of that she took the legal alternative in administrative court, 5 of prohibiting, by way of temporary restraining order, the application opponent from expressing a recommendation to third parties that they use the above named statement in business transactions, from putting it into circulation in business dealings or otherwise advertising the use of the statement.

6 In neither court hearings were the lead complainant's desires satisfied. The Superior Administrative Court essentially detailed the basis of its decision:

7 As far as the lead complainant's wishes to secure a claim for a cease-and-desist order in accordance with PP.

1004 BGB to protect her right to establish and run a business operation and to protect her basic rights of Art.

4 Basic Law, a required, direct, causal connection between the expressions of the application opponent and injury to the lead complainant is lacking. Her legal sphere was affected by company B.'s autonomous decision to break legal relations with Scientology adherents, which was made before company B.

approached the application opponent. It is not evident that the application opponent promoted the decision by the company. The company made a request for its own information as to the methods which could be used for a purpose which already existed.

8 It is irrelevant that the application opponent was said to have contributed to the introduction into business and management of the practice being objected to. The connection between the application opponent's expression which were meant to inform the public and the concrete measure taken by company B. against the lead complainant is too vast to be rated as a connection adequate for cause.

9 Even if one were to presume that the application opponent had interfered with a protected legal area of the lead complainant, the risk of it happening again is not evident. The application opponent's further expression having an influence upon business dealings can be anticipated only as a theoretical possibility with a probability which can be disregarded from real experience. Neither the lead complainant's manner of doing business nor the reporting done in the media cause concern that someone who wants to do business with the lead complainant could be instructed to arrange his business activities by a recommendation from the application opponent.

10 Issuing a temporary restraining order would also not be necessary to avert disadvantages for the lead complainant. She could pursue her claim in civil court.

According to her presentation, the first case of the kind described happened several months ago.

11 3. With her constitutional complaint the lead complainant is objecting to violation of Art. 1 sect. 1, Art. 2 sect 1, Art. 3 sect. 1 and 3, Art. 4 sect 1 and 2, Art. 12 sect.

1, Art. 14 sect. 1, Art. 19 sect. 4 and Art. 103 sect. 1 of Basic Law by the two administrative court decisions.

Furthermore she is applying for the issuance of a temporary restraining order.

II.

12 The constitutional complaint is not accepted for decision. The provisions for acceptance of PP. 93 a sect. 2 BVerfGG are not presented.

13 1. Insofar as the lead complainant perceives constitutional violations of material rights (violation of the above mentioned rights with the exception of those from Art. 19 sect. 4 and Art. 103 sect. 1 Basic Law), her objections are inadmissible. Admissibility is opposed in regards to the principle of the subsidiarity of the constitutional complaint. According to that, the lead complainant, who so far has only conducted expedited proceedings through the administrative court, is bound to exhaust the legal routes concerning her objections in primary hearings in order to bring about any correction to the claimed violation of basic rights without laying claims before the Constitutional Court; in primary hearings, these material rights then pose questions (of basic rights) which the lead complainant poses here as alleged violations of the Constitution (see BVerfGE 77, 381 <401>; 79, 275 <278 f.> 80, 40 <45>).

14 It is expected of the lead complainant that she take the legal route of primary hearings. In considering the whole time in which the application opponent has been recommending the use of technology statements of the existing type in its discussion with businesses, and that this is the first time the lead complainant - in the case of company B. - had been confronted with one, then the probability that the lead complainant will suffer serious and irreconcilable disadvantage while primary hearings are being carried out is so slight (see PP. 90 sect. 2 para. 2 BVerfGG), that it does not justify passing up the exhausting of the legal route of primary hearings.

15 Moreover, fundamental court preparation is required in dealing with Constitutional questions from both a factual and legal perspective, which is routinely possible in expedited administrative court hearings essentially only with a summary review.

16 Taking this up as a constitutional complainant is also not indicated in regard to the legal procedural objection, which does not raise a fundamental, legal constitutional question.

17 a) So far as the lead complainant objects by making use of the guarantee of effective protection of rights (Art. 19 sect. 4 Basic Law), the Administrative courts had not been prepared to recognize that, which the lead complainant perceived as an existing dangerous situation and fundamentally misunderstood as being of significance to Basic Law, as the material valuation of the case by the primary court. In objecting to the superior court's argumentation, the lead complainant responded that she was being confronted by the security statement in dispute for the first time, and submitted that both courts made a misjudgment as to actual events. As far as the objections about material constitutional violations should be put into effect, that was already covered under the argumentation in II 1. So far as the complaint submitted against the actual and simple court valuation is concerned, in particular the Superior Administrative Court, on whose decision it competently depends, review by the Federal Constitutional Court is basically disallowed (see BVerGE 18, 85 <92 f.>).

Whether a causal relationship between the recommendations of the AGS and harm to the rights of the lead complainant exists and whether a threat of repetition as regards further activities of the AGS would affect the lead complainant, thereby leading to a presumably dangerous situation for her is chiefly a matter for the primary courts. It is no longer evident that this justifies a requirement for legal protection will happen in the realm of the potential findings of an expedited administrative proceeding.

18 Insofar as the lead complainant, finally, applies for the claim to a legal hearing (Art. 103 sect. 1 Basic Law), her submission is already inadmissible because it does not meet the fundamental requirements of PP. 23 sect. 1 para. 2 part 1 and of PP. 92 BVerfGG. The lead complainant objects insofar as the Superior Administrative Court had not valuated previously unknown events in its decision that no type of contact worth mentioning had taken place between the AGS and company B. However it cannot be reviewed, based on the submission of the complaint, whether the Superior Administrative Court had utilized information as to the type, extent and time of such contacts on which the complainant could have taken a position. In particularly, there is a lack of constitutional complaint insofar as concrete statements on the presentation of the participants in the administrative court proceedings.

19 Moreover, permissibility of the hearing stands opposed to the fundamental of subsidiarity of the constitutional complaint. That requires - in addition to the mandatory exhaustion of legal routes - that a lead complainant observe all available procedural alternatives to prevent a violation of basic right and to remove the violation without laying claim in Constitutional Court (see BVerGE 81, 22 <27>; 81, 97 <102f.>). That is where the lead complainant has the opportunity, through an application in accordance with PP. 80 sect. 7 VwGo, to obtain in court a correction of the hearing violation she has applied for (see BVerfGE 70, 180 <187 ff.>;

decision of the 1st Chamber of the Second Senate of August 23, 1995, NVwZ attachment Nr. 9/1995, p. 65;

see further orders of the administrative courts, in proceedings of §. 123 VwGo of past final expedited decisions to change or overturn, Kopp, VwGO, 10. 1994 edition PP. 123 Rn. 39;

Redeker/v. Oertzen, VwGO, 12 1997 edition, PP.

123 Rn. 29; Schoch, in:

Schoch/Schmidt-Assmann/Pietzner, VwGO, as of: May 1997, PP. 123 Rn. 174 ff. <177>; m.w.N.). It is not evident and has not been submitted by the lead complainant that this route would be unavailable to her.

20 Further bases are not found in accordance with PP.

93 d Abs. 1 para. 3 BVerfGG.

III.

21 With the non-assumption of the constitutional complaint, the application for issuance of a temporary restraining order is disposed of.

22 This decision in incontestable.

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