Full Title Name:  Who Let the Dangerous Dogs Out? The German State's Hasty Legislative Action, the Federal Law on Dangerous Dogs and the "Kampfhunde" Decision of the Federal Constitutional Court

WHO LET THE DANGEROUS DOGS OUT?

THE GERMAN STATES’ HASTY LEGISLATIVE ACTION,

THE FEDERAL LAW ON DANGEROUS DOGS AND THE

“KAMPFHUNDE” DECISION OF THE FEDERAL CONSTITUTIONAL COURT

Claudia E. Haupt *

I. Introduction

Germany has been struggling with legislative efforts to regulate the import, breeding and ownership of dangerous dogs on the state and national level since the late 1990s. [1]   The states ( Länder ) individually regulated the issue of dangerous dogs after it became clear that a uniform nationwide regulation could not be arrived at. [2]   Subsequently, many of these state regulations did not pass review in state administrative courts and before the Federal Administrative Court.   In 2001 federal legislation was passed, but the German Federal Constitutional Court in a 2004 decision struck down parts of it, including the newly introduced Section 143 (1) of the Criminal Code ( Strafgesetzbuch, StGB ). [3]

Part II, will briefly explain why looking abroad on this issue matters and provide a short introduction to the German court system and the role of the Federal Constitutional Court within the system.   Part III then will turn to the somewhat misguided legislative efforts at the state and national level that resulted in largely divergent laws which, as mentioned above, subsequently did not pass judicial muster in the state and federal courts in some key aspects.   Part IV will outline the “ Kampfhunde ” decision of the Federal Constitutional Court.   While upholding parts of the federal law against dangerous dogs the Court found that the dangerousness of a dog cannot be determined solely by breed.   Absent any reliable scientific method to determine the dangerousness of dogs, however, it   stated that for the time being, breed only was a sufficiently appropriate factor.   At the same time, the Court instructed the legislature to closely monitor scientific developments and adjust the legislation accordingly.   Part V, finally, will provide an analysis of the decision and illustrate the lessons to be learned from Germany’s largely failed legislative attempts to effectively come to grips with the “dangerous dogs” issue.

II. Constitutional Law in Comparative Perspective

Germany can fairly be considered a rather advanced country as far as animal rights are concerned; this assessment is easily supported by the amendment of the German Constitution to include the protection of animals as an objective of the state in Article 20a of the Basic Law ( Grundgesetz, GG ). [4] Historically, animal welfare and protection have been issues of high public interest and they continue to be firmly rooted in contemporary public discourse. [5]   Yet, most recently, Germany has been struggling to come to grips with a particularly contentious issue involving animals, the issue of dangerous dogs. [6]

The story of the legislative efforts to curb potentially fatal attacks by dogs in Germany, as will be shown, can be characterized as a story of misguided legislative activism based on insufficient policy analyses, incomprehensive data sets, extreme media pressure and an overall lack of deliberate and careful analysis of the problem. [7]   In the end, Germany was left with a patchwork of incomprehensive dog laws, unconstitutional provisions of the Animal Protection Law and a partially unconstitutional section of the Federal Criminal Code. [8] This, then, is an example of how not to tackle an important and potentially contentious issue.

This discussion will provide insight into the employment of the states’ police powers to regulate the issue absent a uniform national regulation.   The subsequent passing of legislation on the national level   predictably led to federalism concerns that eventually proved to be so significant as to (partially) invalidate the federal legislation. Inevitably, the question arises why looking abroad--particularly in a decision that was largely concerned with federalism issues--might prove to be informative.

A. Why Looking Abroad Can Be Instructive

There have been repeated calls for an increased study of constitutional decisions outside of the United States. [9]   Considering federalism issues before foreign constitutional courts, however, may prove more difficult than the discussion of foreign constitutional courts’ treatment of questions involving individual rights. [10]

Professor Jackson cautions:

First, federalism provisions of constitutions are often peculiarly the produce of political compromise in historically situated moments, generally designed as a practical rather than a principled accommodation of competing interests.   Each federal “bargain” is in important respects unique to the parties’ situations, in contrast to constitutional provisions asserted to guarantee universal, or natural, or necessary rights of women and men as persons.   Similar phrases or provisions concerning federalism may have different historical meanings in a particular polity, tied in different ways to the political compromises that are usually at the foundation of a federal union.   Second, not only are federal systems agreed to as a compromise, but the compromise typically constitutes an interrelated “package” of arrangements.   No one element of the package can be compared to a similar-seeming element in a different federal system without more broadly considering the comparability of the whole “package” and the role of the particular element within that federal package. [11]

Yet, knowledge of the way other federal systems, especially “strongly federal nations such as Germany,” [12] deal with such issues is not without merit.   At the very least, illustrating the structural concerns of other countries can raise awareness about federalism concerns in the United States. [13]   Even though the Court invalidated parts of the legislation on federalism grounds, it did engage in a discussion of the issue that went beyond a mere consideration of legislative powers assigned to the states and the federation respectively.   Thus, the decision is instructive despite the problems that the study of foreign federalism issues might entail.   Finally, this discussion of the decision of the Federal Constitutional Court also serves as an explanation of German constitutional law doctrine in the area of individual rights, particularly of Article 12 jurisprudence.   In exemplary fashion, the Court engages in a doctrinal analysis of the right to choose and work in one’s profession. [14]

B. The German Court System and the Role of the Federal Constitutional Court

The case to be discussed came to the Federal Constitutional Court as a constitutional complaint following a decision of the Federal Administrative Court.   Constitutional complaints are filed by citizens claiming a violation of their basic rights. [15]   The Federal Administrative Court is the (only) federal court in the German administrative court system.   The Constitution establishes the federal courts: for civil and criminal matters the Federal Court of Justice ( Bundesgerichtshof ), for administrative matters the Federal Administrative Court ( Bundesverwaltungsgericht ), for social matters the Federal Social Court ( Bundessozialgericht ), labor and employment matters the Federal Labor Court ( Bundesarbeitsgericht ), and for fiscal matters the Federal Finance Court ( Bundesfinanzhof ). [16]

The Federal Constitutional Court is not a “supra-appellate court” but rather exclusively deals with constitutional claims. [17]   Thus, as a general rule, the Federal Court of Justice has appellate jurisdiction in civil and criminal matters, and the Federal Administrative Court has appellate jurisdiction in administrative matters. [18]   Consequently, the Federal Constitutional Court did not decide on the “dangerous dogs” issue until 2004 on the challenge of the 2001 federal law against dangerous dogs. [19]

III. Legislation Gone Wrong: The States’ Somewhat Misguided Legislative Efforts

Failed attempts to address the issue on the national level led to the successive adoption of laws by the German states based on their police powers in the area of public safety and public welfare. [20]   Following several fatal incidents involving dogs, especially the death of a child in Hamburg in 2000, those German states which had not yet adopted any laws addressing the issue tried to calm down the public by rapidly enacting laws prohibiting the import, breeding and ownership of dangerous dogs. [21]

Within a very short period of time, diverging laws were on the books in all of the 16 German states and eventually, a federal law was enacted that prohibited the import, breeding and ownership of dangerous dogs and added a new Section 143 to the Criminal Code. [22]   I will summarize the contents of the state legislation in general terms, then briefly turn to the state administrative court and Federal Administrative Court decisions and finally provide an outline of the federal law against dangerous dogs.

A. Implementation and Critique of Breed Specific Legislation and Attempts at Measuring the Dangerousness of Dogs

Within just a few weeks in the summer of 2000, all German states with the exception of Thuringia and Bavaria (which had pre-existing legislation) adopted regulations or legislation regulating the ownership of dangerous dogs or changed existing regulations. [23]   They were enacted either by the state legislatures based on their legislative powers in the area of public safety and welfare or state administrative agencies through their rule-making authority. [24]

The regulations either addressed all dogs, dangerous dogs (“ Kampfhunde ”) or dangerous animals. [25]   In the states of Berlin, Brandenburg, Hamburg, Bremen, Mecklenburg-West Pomerania and Schleswig-Holstein the keeping of dogs was comprehensively regulated while all other laws exclusively addressed the prevention of injuries caused by dangerous dogs. [26]   Brandenburg and North Rhine-Westphalia extended the coverage of the regulations beyond breed and behavior to all dogs with a height of at least 40 cm and a weight above 20 kg. [27]   Lower Saxony further addressed other dangerous animals in its “dangerous animals” regulations, such as big cats, wolves, bears and even crocodiles and put ownership of them under the condition of prior permission. [28]

At the core of the legislative efforts was the definition of “dangerous dogs” that can be found in basically three different versions throughout the state legislation: (1) the dangerousness of dogs is determined by their breed, (2) the dangerousness of dogs is determined by various abstract characteristics in their individual behavior, or (3) a combination of breed and individual behavior. [29]   Generally, the legislation distinguishes between the dog as defined by its breed and the dangerous behavior of a dog as the source of the danger. [30]   The breed-specific legislation employs “breed catalogues” modeled after the Bavarian example, but these breed lists greatly differ in their coverage of different breeds. [31]   They range from the four “classic” dangerous dog breeds--Pit Bull Terriers, American Staffordshire Terriers, Bull Terriers and Staffordshire Bull Terriers--to as many as forty-two different breeds in the state of North Rhine-Westphalia. [32]   In the case of more extensive breed lists, there are usually gradual differences in the assigned dangerousness of the breed. [33]

If the legislation defines dangerous dogs by dangerous behavior, there are “behavior checklists.”   According to the behavior checklists, the typical instances in which dogs would be deemed dangerous are (1) dogs that have a heightened readiness to attack or fight--thereby endangering humans or other animals--because of traits stemming from their breeding or training, (2) dogs that are deemed to have a predisposition to bite because they have caused injury to a human or another animal by biting without being attacked or provoked or because they have bit another dog despite its obvious submissive gestures, (3) dogs that have shown that they uncontrollably hunt and kill other animals, or (4) dogs that have repeatedly endangered humans or have dangerously jumped on humans without being attacked or provoked. [34]   Almost all regulations subjected the ownership of dangerous dogs to prior permission and granting the permission was typically placed in the discretion of the appropriate administrative agencies. [35]   Generally, permission was based on a number of different conditions: the owner is at least 18 years old, has proven his reliability, has proven the necessary expertise, and the dog has been marked in an unalterable fashion. [36]   In addition, some regulations demand a personality and behavior test of the dog, proof of liability insurance or proof of a specific interest in owning a dog of a particular breed. [37]

In legal literature, the states’ dangerous dogs legislation and its breed lists have been repeatedly criticized. [38]   The criticism extends not only to the legal uncertainty and unclear legal situation in which it puts the owners but also to the lack of efficiency of the newly enacted regulations. [39]   The new laws did not successfully curb severe biting incidents involving dogs of various breeds or mixed-breed dogs. [40]   Further, it has been suggested that at a closer look, the biting incidents are almost exclusively caused by errors in the way the dogs were kept or trained. [41]   The dog personality and behavior testing, moreover, has shown that those dogs which have been irrefutably classified as dangerous dogs in the breed lists--American Staffordshire Terrier, Pit Bull Terrier, Staffordshire-Bullterrier, and Bullterrier--did not cause any concerns regarding an increased or inadequate aggressive behavior. [42]   Dogs of these breeds, on the contrary, have been said to have outperformed other breeds. [43]   The danger posed by dogs of the breeds included on the lists--because of their low overall population--is relatively low compared to the vast majority of dogs of other breeds: thus, it is asserted that even if the likelihood of a biting incident with a Bullterrier is ten times higher than the likelihood of a biting incident involving a German Shepard, the probability to be bitten by a German Shepard or a German Shepard mix is fifty times higher than to be bitten by a Bullterrier. [44]   German Shepards, with an estimated population of at least 500,000 (excluding mixed breeds), for example, are not included on any of the breed lists. [45]

It has been suggested that for an effective safeguard against injuries caused by all dogs, a different approach has to be taken--one that is free of breed specific classifications and instead primarily looks at responsible dog breeders and owners. [46]   For example, a standardized proof of expertise has been   proposed. [47]   Further, a general personality and behavior test has been demanded as a prerequisite in order to obtain a breeding permit. [48]   In the end, while the need to address the issue uniformly in the states had long been acknowledged by the Interior Ministers of all states no uniform response was arrived at despite extensive efforts to find at a mutually agreeable solution. [49]

B. The State Legislation’s Fate in the Courts

As expected, it did not take long for dog owners to take legal action against the new dog regulations.   The regulations were challenged in state administrative courts and state constitutional courts. [50]   The state courts invalidated or partially invalidated some provisions, thus further increasing the regulatory chaos. [51]   Subsequently, the issue did make its way through the administrative court system and ended up before the Federal Administrative Court [52]   which struck down parts of state laws dealing with dangerous dogs that were identified only by breed. [53]

The Federal Administrative Court held in several cases that a mere potential of danger does not justify the passing of a regulation based on the states’ police powers. Based on current scientific research, the breed of a dog cannot be the sole determining factor in the assessment of the dangerousness of a dog. [54]

Denying review of the North Rhine-Westphalia legislation in 2000, [55] the Federal Constitutional Court had explicitly required that the state administrative courts and, on appeal, the Federal Administrative Court try to resolve the issue. [56]   Therefore, as mentioned above, it was not until 2004 that the Federal Constitutional Court decided. [57]

C. The Federal “Law against Dangerous Dogs”: Amplifying the Differences

In 2001, the German Parliament ( Bundestag ) passed the federal law against dangerous dogs (“ Gesetz zur Bekämpfung gefährlicher Hunde ”).   At the core of this legislation was a provision banning the import of Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers and Bull Terriers. [58]   These breeds and cross-breeds among these four were not allowed to be imported from EU member states or other countries. [59]   Further, the legislation prohibited the import of other breeds according to the dangerousness presumption of the breed lists of that state in which the dogs are to be permanently held. [60]   The legislation also changed the Animal Protection Law ( Tierschutzgesetz, TierSchG ). [61]   The Federal Department of Consumer Protection, Food and Agriculture ( Bundesministerium für Verbraucherschutz, Ernährung und Landwirtschaft ) was authorized to make regulations prohibiting or limiting the breeding of vertebrates of specific kinds, breeds or lines if hereditary behavior defects or genetically increased aggressiveness occur. [62]   The change of the provision regarding breeding methods that cause suffering to animals was intended to address the issue that genetically increased aggressiveness can be relevant from an animal protection perspective even if it does not directly entail suffering of the affected animal; the breeding with increased aggressiveness was made illegal even if there was no suffering involved. [63]   Section 12 (2) No. 4 TierSchG was designed to explicitly prohibit the import or ownership of animals if any actions were performed on the animal that violate the Animal Protection Law in order to achieve certain breeding traits, including physical abnormalities based on genetic defects, abnormal behavior and increased aggressiveness. [64]   Finally, Section 143 was added to the Criminal Code.   The law prohibits acting in violation of the state laws in breeding or commercially dealing with dangerous dogs. Further, it punishes those who own a dangerous dog without permission or in violation of a prohibition.   The penalty is imprisonment up to 2 years or fine. [65]                                                    

IV. The “Dangerous Dogs” Decision of the Federal Constitutional Court

In their constitutional complaint, the petitioners challenge the provision that prohibits the import of dangerous dogs and the corresponding penalties; further, they challenge the breeding prohibition and Section 143 StGB. [66]   I will first outline the Court’s reasoning regarding the import ban, then turn to the breeding ban and finally the discussion of Section 143 StGB.   The Court, as will be illustrated, divides its analysis into discussions of freedom of occupation (Article 12 GG), [67] property (Article 14 GG), [68] liberty (Article 2 GG) [69] and equality (Article 3 GG). [70]

A. Import of Dangerous Dogs

The import ban is measured against the right to freely engage in the exercise of one’s occupation. The Court concludes that while there was an infringement on the right, it is constitutionally justified.   The Court leaves open whether there was an infringement on the right to property and the liberty clause as it would have been justified for the same reasons as in the case of Article 12 GG. Regarding the equality clause, the Court finds that there was no violation by the import ban.

1. free exercise of occupation (constitutionality under Article 12 GG )

The Court first turns to the right to choose an occupation and work in the chosen occupation.   The prohibition of import of dogs of the breeds Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier and Bull Terrier has to be examined regarding its constitutionality under Article 12 GG as the petitioners are dog breeders that breed these dogs.

The Court explains that the basic right protects both the choice of an occupation and the ability to work in the chosen occupation.   Occupation means any activity intended to be executed for the purpose of earning money in order to create and support a basis for living.   Secondary employment also falls under the protection of Article 12 GG.   Even if dog breeding is only the petitioner’s secondary employment, a claim under Article 12 GG is not precluded.

The Court finds that the prohibition of import according to Section 2 (1) sentence 1 HundVerbrEinfG infringes on the right.   Even though the freedom to choose the occupation of dog breeder is not infringed upon, the ability to work in the chosen occupation is limited and thus the basic right to free practice of an occupation is infringed. Petitioners cannot import Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers and Bull Terriers that they need for their breeding business.   Insofar, the law has tendencies to regulate the practice of the occupation.   The Court finds, however, that the limitation placed on the right to work in the chosen occupation by Section 2 (1) sentence 1 HundVerbrEinfG is constitutionally permissible. [71]

Regulations of the practice of an occupation are permissible if they have been enacted according to the legislative powers of the legislature and do not conflict with other constitutional provisions.   They have to be justified by sufficiently important reasons that pertain to the general welfare and have to be proportional.   The legal limitation has to be suitable to further the objective the government has envisioned and it has to be necessary and appropriate. [72]

The legislature has discretion not only regarding the goals to be achieved by the legislation but may also assess what is necessary and appropriate.   This discretion is only subject to limited review by the Federal Constitutional Court.   In assessing dangers to the public, and in taking measures to protect the public, the legislature only exceeds its discretion if there is no reasonable basis to take these measures.   In the event that the legislature cannot make an informed assessment or judgment at the time of his legislative action, however, it can be necessary to monitor the further developments in the matter and to adjust the legislation accordingly if the original assessment proves untenable.   This is particularly the case if the legislature is dealing with complex dangers that may not have been scientifically researched in a sufficient manner. [73]

The Court finds that according to these standards of review, the import prohibition of Section 2 (1) sentence 1 HundVerbrEinfG is constitutional under Article 12 (1) GG. [74]   The prohibition has been enacted according to the legislative powers assigned to the federal legislature.   It regulates the import of dogs from member states of the European Union and other foreign countries into Germany and is as such a provision regulating trade with foreign countries. Under Article 73 No. 5 GG the federal legislature has exclusive legislative powers regarding trade with foreign countries. [75]

The Court finds that the provision is not unconstitutionally vague because it sufficiently specifies dogs whose import is prohibited by their breed.   Whether the provision concerning the mixed-breeds may be unconstitutionally vague was left undecided since none of the petitioners tried to import such a dog.   The Court further states that the provision serves an important public welfare interest.   The goal is to complement the state legislation to protect humans against injuries caused by dangerous dogs and the behavior of their holders.   It intends to ensure that the legislative measures enacted by the states within their police powers are not undermined by the import of dangerous dogs from abroad.   At the same time, it intends to make the enforcement of the state legislation easier. [76]

In the Court’s view, there was sufficient reason for the legislature to act.   It is up to the legislature to decide for every area of life which issues to address.   In situations that, according to the assessment of the legislature, may lead to danger, the legislature decides with which level of protection it wants to address these situations.   The requirements regarding the certainty of such suppositions and the degree of probability that the danger will actually materialize depend upon the measure to be adopted.   The challenged provision was based on the abstract presumption that dogs of the breeds Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier and Bull Terrier are so dangerous to the health and life of humans that their import has to be prohibited. [77]

The Court finds that this presumption is tenable and not obviously wrong.   During oral arguments, there was no dispute that according to current scientific knowledge, the breed of a dog does not permit a prediction regarding its dangerousness.   If and to what extent a dog may pose a danger to humans depends upon a multitude of factors aside from different breeding traits.   Such factors are socialization, training, situational impulses, and most of all the reliability and knowledgeability of the holder.   Legislative action, however, is not precluded if there is not a single factor that causes potential danger.   The requirement of a multitude of factors interacting in order to cause a danger does not preclude legislative action.   It only must be sufficiently probable that all factors may come together.   To protect the life and health of humans, the legislature could take measures if it was sufficiently probable that dogs of certain breeds--even if only in the presence of other factors--may pose a danger. [78]

The Court notes that it appears that the expert scientists agree that the aggressive behavior of dogs and its resulting dangerousness is not solely genetically determined.   On the other hand, it cannot be generally ruled out that the dangerousness might have genetic reasons.   According to expert witness testimony during oral arguments, dangerousness of a dog is not a breed-specific trait.   According to the expert witness, however, it is undisputed that breeds such as Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers and Bull Terriers have a hereditary potential to produce dangerous dogs with genetically raised levels of aggressiveness. [79]   According to a 1991 report compiled for the Federal Ministry of Food, Agriculture and Forestry regarding the interpretation of Section 11b TierSchG, the type and scope of aggressive behavior is genetically determined to a large extent.   Another expert witness asserted that aggressive behavior, including the aggressive behavior of a dog, is always the result of a differentiated interaction between genetics and outside stimuli. [80]   The dangerous dog breeds addressed in this legislation have to be counted among those breeds whose aggressive behavior, seen against the backdrop of the history of their breed, is not unproblematic.   Finally, an expert asserted that especially dogs of the breeds Pit Bull Terrier, American Staffordshire Terrier, and Staffordshire Bull Terrier and perhaps also Bull Terrier irrespective of the behavior or attitudes of their holders have been involved in incidents relatively often because of their heightened level of aggressiveness and their danger to humans. [81]

According to the Court, the data supplied by the federal government in this case does support the addressed breeds’ particular dangerousness.   The data supplied, the Court explains, is based on a poll conducted in 1991-1995 by the German Association of Cities and Towns ( Deutscher Städtetag ) that was conducted among its members.   Ninety-three cities provided answers in the poll.   The poll asked which dog breeds required protective measures. Among the breeds, Pit Bulls, Bull Terriers and Staffordshire Terriers were only ranked 4 ^th , 6 ^th and 7 ^th .   Other dog breeds, such as German Shepherds, have appeared more often in a negative fashion.   The absolute numbers supplied in the poll, the Court finds, do not allow a conclusion regarding the level of dangerousness posed by the individual breeds.   Such a conclusion would require putting the absolute number of dogs of a particular breed involved in biting incidents into relation with the overall population of the respective breeds. [82]   To engage in this kind of comparison, the Court turns to data provided by the state government of Schleswig-Holstein to the state legislature in 2000.   These statistics were put together based on data supplied by the German Dog Association ( Verband für das Deutsche Hundewesen, VDH ) for 1992-1997.   According to the Court, it appears comprehensible and plausible that the German Association of Cities and Towns ( Deutscher Städtetag ) reaches the conclusion--as presented by the federal government in this case--that Pit Bulls are more often involved in biting incidents in relation to their overall population.

Polls of the states that were conducted by the federal government during the legislative debates support this conclusion.   This data was submitted by the Interior Ministry in this case. In 2000 in the state of Brandenburg, dogs of the breeds Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier and Bull Terrier were in relation to their overall population eight times more often involved in biting incidents than dogs of other breeds.   In 1998/99, Pit Bulls, American Staffordshire Terriers and Staffordshire Bull Terriers were involved in one-third of all biting incidents in Hamburg in which humans were injured.   In Rhineland-Palatinate, dogs of the breeds were in relation to their overall population more likely to be involved.   Finally, Mecklenburg-West Pomerania also reported that dogs of the breeds in question   were more likely to be involved in biting incidents. [83]

Taking into consideration that reliable statistics about biting incidents are not available for the state or federal level and accurate counts of individual dogs of each breed are not available, the Court finds that the data supplied in support is nevertheless not without merit.   Consequently, the presumptions of the legislature that were based on this data are not obviously flawed.   The degree of likelihood that is necessary to assume the danger has to be seen in relation to the objects of the legal protection.   There, it has to be taken into account that dogs of the specified breeds have caused fatal injuries to humans.   It is not predictable under which circumstances a dog of one of these breeds will escape the influence of his owner and attack humans.   In light of the high priority that the protection of human life and health takes in the constitutional order of values and with respect to the grave consequences that biting incidents with these dogs can have because of their strength and biting power for these protected values, the presented data in conjunction with the expert literature cited provides a sufficient basis to permit legislative action aimed at provisions to protect the public from the infliction of injury by dogs of the mentioned breeds. [84]

In light of this finding, the import prohibition is proportional. [85]   The Court finds the measure to be suitable to further the indented objective.   With the help of an import prohibition, the number of dangerous dogs will be diminished and biting incidents will thus be prevented.   Thus, the intended goal to complement the states’ regulations to protect the life and health of humans and to ensure the enforcement of the state provisions is furthered.   This is sufficient to make the regulation suitable. [86]

The suitability of the legislation is not impaired by reports of the states suggesting that the import prohibition is only theoretically monitored at the borders when in fact the border authorities do not have the necessary expertise to recognize the listed dog breeds let alone their cross-breeds.   Absent any actual border controls within the EU, the import ban is difficult to monitor anyway.   A regulation, however, does not become unsuitable merely because it is difficult to enforce as long as its enforcement remains possible.   The legislature could trust that the legislation would be adhered to by the addressees.   It also could assume that the authorities would take suitable measures to make sure the legislation was adhered to.   Thus, there are no constitutional doubts regarding the suitability of the import prohibition. [87]

The prohibition is moreover necessary to reach the stated goal.   An equally effective but less restrictive measure was not available.   The import could not be made dependent upon the individual proof that a dog is not dangerous.   Behavior tests, veterinary evaluations and similar measures that are often employed in the state legislation do not provide an absolutely reliable basis for a sufficiently certain prediction of dangerousness even when these tests are performed by qualified experts. [88]

            Behavior tests are a conceivable instrument to determine the dangerousness of dogs and are employed by some states.   Nevertheless, they only provide a snapshot of the behavior of the examined animal in a specific situation of crisis.   This was affirmed during oral arguments by an expert witness. Another expert witness testified during oral arguments that it is possible to conceal the dangerousness of a dog for the duration of a test by prior administering of drugs. [89] It cannot be ruled out that a dog that has passed the behavior test and that has been found to be not dangerous may react differently under different circumstances and might then pose a threat to humans. There is always an element of unpredictability when dealing with animals. Therefore, the legislature did not have to see behavior tests as an equally effective measure.

The import prohibition finally is proportional in the strict sense.   An overall assessment of the extent of the intrusion on the constitutional right and the weight of the protected public good yields an appropriate, defensible burden on the constitutional right for those affected by the law. [90]   The effects of the infringement on the right to work in the chosen profession are limited. Whoever wants to import dogs that fall under the prohibition for breeding purposes will not be able to import them from abroad and use them to breed offspring.   The breeding of other breeds of dogs, however, remains untouched by the regulation.   Therefore, petitioners can still work in their profession as dog breeders.

In an overall assessment, the high value of the protected public goods gains importance.   Life and health of humans have an especially high value.   The public good that is served by the legislation is significantly more important than the economic and the idealistic value of the interests of the affected breeders to continue to import dogs of their preferred breeds from abroad.   Irrespective of the question whether the import ban concerns the protection of animals at all, Section 2 (1) sentence 1 HundVerbrEinfG is an acceptable limit on the exercise of the profession.

The legislature is required, however, to monitor further developments.   The Court notes that there is still a significant amount of uncertainty regarding the reasons for aggressive behavior of dogs of different breeds and the interrelation of different causes.   Also, the factual assumptions of the legislature are somewhat uncertain.   Therefore it is necessary to monitor the dangerousness that can be caused by dogs and the causes for dangerous behavior.   Especially the biting behavior of the specified breeds has to be studied more than in the past.   In the event that the prognosis regarding the danger of these dogs will not be verified in its full scope, the legislature has to adapt the legislation to the new findings.

2. property and liberty (constitutionality under Article 14 GG and Article 2 (1) GG)

The Court leaves open whether the petitioners’ right to property was infringed by Section 2 (1) sentence 1 HundVerbrEinfG at all even thought petitioners wanted to import dogs of the breeds specified.   Even if there was an infringement on the right to property, it was not unconstitutionally violated under Article 14 standards.   The Court finds that any potential infringement was in any case justified for the same reasons that justified the infringement of Article 12 (1) GG.   Moreover, the court finds that the same justification applies to a potential infringement under Article 2 (1) GG. [91]

3. equality (constitutionality under Article 3 GG)

Turning to the equality provision of Article 3 (1) GG, the Court finds that Section 2 (1) sentence 1 HundVerbrEinfG did not violate Article 3 GG.   The equality clause of Article 3 GG demands that what is the same be treated equal and allows what is different to be treated unequal.   It does not, however, preclude all differentiation.   Neither does it demand that different things be treated unequal.   The legislature would, however, violate the equal protection clause if it passed legislation treating two groups of people differently even though the differences between those groups are not of the scope or magnitude to justify the unequal treatment. [92]   The same principle applies when the legislature does not sufficiently take into account such factual differences in the matter to be regulated that are of such magnitude that they have to be taken into consideration when looking at the issue with fairness in mind.   It is important what the effects of the equal or unequal treatment will be on civil liberties.   Moreover, it has to be examined in how far deference has to be awarded to the legislature regarding its judgment of the starting point and the possible effects of its legislation.   Especially important in that context are the specifics of the area addressed and the importance of the object of legal protection in question.   Also, the amount of prognosis depends upon the possibility to make a judgment on the issue at the point of the decision.

The Court cannot determine a violation of equal protection.   Rather, it finds that the legislature correctly exercised its discretion.   In a constitutional fashion, the legislature assumed to have sufficiently reliable criteria that dogs of the breeds specified in Section 2 (1) sentence 1 HundVerbrEinfG are especially dangerous to the lives and health of humans.   Prior to the legislation, those dogs were found to have been involved in biting incidents in numbers that do not proportionally represent their overall population.   Further, it was assumed that other breeds such as German Shepherds, Great Danes, Dobermans and Rottweilers or Boxers have not been registered in biting incidents in the same quantity.   Thus, the legislature presumed that they exerted a lower level of danger.   This presumption was not rebutted during oral arguments nor has it been refuted in scientific literature.   The equal treatment of those who want to import a dangerous dog that has been found to pose no danger in an individual personality and behavior test is constitutional. According to the legislature’s analysis it would not be possible to check every single dog for its dangerousness at the boarder before deciding whether it may or may not be imported.

The legislature’s analysis is rational and does not meet any constitutional doubts.   In light of an effective enforcement of the law the equal treatment is therefore constitutionally sufficiently justified. [93]   Again, however, the Court demands that the legislature follow further development.   This especially relates to the unequal treatment of those whose dogs fall under the classification of Section 2 (1) sentence 1 HundVerbrEinfG and those whose dogs to not fall under the provision.   It has to be ensured that the unequal treatment is still justified in the future.   In the event that further studies of biting incidents reveal that dogs of breeds other than those covered by Section 2 (1) sentence 1 HundVerbrEinfG in relation to their population are over represented in biting incidents, the challenged law could no longer be upheld.   It would then either have to be revoked or extended to those breeds not previously covered. [94]

B. Breeding of Dangerous Dogs

Article 2 Nr.2 BgefHundG made it illegal to breed the specified dogs.   The goal was to avoid an increased level of aggression in their offspring.   The court found this provision to be unconstitutional.   The federal legislature did not have the legislative authority to pass the law.   Consequently, Section 11b (2)a alternative 2 TierSchG and Section 11 sentence 3 TierSchHundVO that specified the ban for Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers and Bull Terriers are unconstitutional. [95]

1. free exercise of occupation (constitutionality under Article 12 GG )

The law violates Article 12 (1) GG.   Like the import prohibition it infringes on the freedom of freely working in the chosen occupation of the petitioners who professionally breed dogs of the breeds at issue.   The infringement is not constitutionally justified because the federal legislature lacked the legislative power.   The legislation that was introduced by the federal government was based on the legislative powers of Article 74 (1) No. 20 GG, [96] but did not meet the requirements of Article 72 (2) GG. [97]

The Court remarks that it had not yet decided what animal protection under Article 74 (1) No. 20 GG means.   The Court first turns to the intent of the amendment.   According to the intentions of the constitution-changing legislature that amended Article 74 GG to include animal protection it was intended to serve as the basis for a comprehensive federal Animal Protection Law.   The term “animal protection” therefore has to be widely construed.   It relates primarily to the care, housing, transportation of animals, experimentation with live animals and slaughter of animals.   A comprehensive federal Animal Protection Law is primarily concerned with provisions that have the goal to spare animals in the named instances pain, suffering and harm as much as possible.   In the interest of effectively securing the success of this purpose, Article 74 (1) Nr. 20 GG allows the federation to take measures to monitor and secure the advancement of animal protection.

The Court, however, finds that Section 11b (2)a alternative 2 TierSchG in connection with Section 11 sentence 3 TierSchHundVO does not further animal protection in this sense.   The prohibition of breeding aggressive dogs has the goal to more effectively protect humans from dangerous dogs.   The federal government explained that it could complement the states’ regulations to prevent injuries caused by dangerous dogs.   The objective of the regulation was not primarily avoiding pain, suffering and harm of animals but the protection of the lives and health of humans. [98]

The Court finds an indication to that extent in the text of the new provision.   Prior to the change, it was prohibited under the animal protection law to breed vertebrates if there was a danger that the offspring would suffer from hereditary heightened aggression.   After the change, suffering of the animal is no longer a component of the law.   The abandoning of the goal of animal protection becomes even more obvious in the authorization to make regulations of the federal department.   Until then, the federal department was only authorized to adopt regulations that were specifically designed to protect animals.   This limitation was dropped in the new authorization clause.   A plausible explanation for these changes was not supplied in the legislative materials, which only said that hereditary increased aggression can be relevant under animal protection aspects even if it does not directly lead to suffering on the part of the animal.   Especially when a danger is posed to other animals, some measures might have to be taken.   There is no explanation, though, which measures may be taken, what the preconditions would be and what the extent of these dangers would be. [99]

In the Court’s assessment, there is no comprehensible explanation regarding the changes to Section 11b (1) and (2) TierSchG.   It cannot be assumed that the core of the new legislation would be in the area of animal protection.   Rather, the new legislation is primarily intended to protect humans from dangerous dogs.   The Court points out that the federal government, in fact, made this point when the upper house ( Bundesrat ) introduced a legislative initiative to introduce similar legislation in 1991.   Finally, the Court finds that the argument that the new legislation is simply an annex to animal protection cannot be followed. [100]

2. property (constitutionality under Article 14 GG)

The Court finds that Section 11b (2)a alternative 2 TierSchG and Section 11 sentence 3 TierSchHundVO further violate the right to property of the petitioners who breed dogs.   The right to property protects the right to own property and to use it.   This right is infringed by the challenged breeding prohibition as the owners of the dogs are not allowed to use them for the purpose of breeding.   The petitioners are not expropriated because the property is not taken from them.   Rather, the law describes the contents and limits of property according to Article 14 (1) sentence 2 GG.   As such, the legislation would be permissible if it was passed by the authorized body.   For the same reasons as mentioned in the Article 12 analysis, this was not the case.   Beyond those dogs mentioned in sentence 3, the Court found that the federal legislature lacks the power to regulate the matter and therefore extended the finding of unconstitutionality beyond sentence 3 to all of Section 11 TierSchHundVO. [101]

C. Constitutionality of Section 143 (1) StG

The Court finds that   Section 143 (1) StGB is unconstitutional because the requirements of Article 72 (2) are not fulfilled. [102]   It is unconstitutional under Article 12 and Article 14 GG.   Section 143 (1) StGB penalizes the breeding or commercial trade with a dangerous dog in violation of state legislation.   This legislation is unconstitutional under Article 12 (1) GG.   It infringes the protection of Article 12 GG and enhances the infringement that is already posed by the breeding and trade.   It is not constitutionally justified, because it is not based on legislative powers of the federation. [103]   The federal legislature can base its action on the legislative powers concerning the criminal law according to Article 74 (1) Nr. 1 GG.   Generally, that legislative power includes that federal penalties can be awarded for violations of state laws unless the federal legislature does not assume legislative powers that in fact belong to the states.   To constitutionally make use of this authorization, however, depends upon the preconditions set forth in Article 72 (2) GG.   The federal legislature only had the legislative power if the legislation was necessary to achieve equal living conditions in the federal territory or the preserve the legal and economic unity in the interest of the state at large.   Whether these preconditions in fact existed has to be reviewed by the Constitutional Court.   Insofar, there is no legislative discretion that is free from judicial review. [104]

Upon review, the Court finds that Section 143 (1) StGB was not enacted under the provisions required in Article 73 (2) GG. [105]   It already is questionable which goal the legislature is trying to achieve by enacting Section 143 (1) StGB.   The legislative materials pertaining to the challenged law do not address this issue.   Rather, they are limited to the assertion that federal legislative powers could be assumed because the states had not yet imposed penalties for the regulations and prohibitions regarding the prevention of injuries by dangerous dogs.   During the course of the proceedings in this constitutional challenge, however, it could not be determined which goal the federal legislature was trying to achieve.

A further investigation into the legislative intent is not necessary, because Section 143 (1) StGB is not necessary to further any of the objectives in Article 72 (2) GG. Section 143 (1) StGB penalizes the violation of state laws that prohibit the breeding of and the trade with dangerous dogs.   The federal legislature has put into place a unified framework for the criminal penalties of such violations.   The actions that are subject to the penalty, however, are codified in state laws.   Those are highly divergent, so that a unified standard cannot be achieved on the basis of the penalty.   Generally, the referral of federal criminal law to state prohibitions is conceivable.   Article 72 (2) however demands that those prohibitions are largely comparable.   That is not the case. [106]

The term “dangerous dogs” as such is not defined uniformly.   Some states base the dangerousness on the breed and have extensive breed lists.   Others demand an assessment of the dangerousness for each individual case.   The breeding and trade are not prohibited in all states.   While such prohibitions exist in Berlin, Bremen and Hessen, they are nonexistent or only exist for specific groups of dangerous dogs in North Rhine-Westphalia and Saxony.   These differences lead to fundamentally different consequences of Section 143(1) StGB.   The differences among the state regulations are transferred to the federal level.   Rather than achieving an increased level of unity, the existing disunity is enhanced. Section 143 (1) StGB cannot be used to further the establishment of equal living conditions or to preserve the legal and economic unity in the interest of the state at large. [107]   For these reasons, it is also unconstitutional under Article 14. [108]

V. The Lessons: Federalism, the Import Ban, and the Future of the Dangerous Dogs Legislation in Germany

The Court invalidated the breeding ban and the provision in Section 143 (1) StGB and upheld the import ban.   I will now examine the underlying federalism concerns as well as the Court’s findings regarding the constitutionality of the import ban which was based on breed specific concerns.      Finally, I will turn to look at the possible fate of breed specific legislation in Germany in the future.

A. Federalism Concerns

The lack of legislative power regarding the breeding ban seems strikingly evident.   In fact, the Court mentions that the federal government itself raised the issue when similar legislation was introduced in 1991; it has also been suggested that the legislative materials introduced by the federal government reveal the “bad legislative conscience.” [109]   The Court interpreted the term “animal protection” to only mean the welfare of animals (widely understood) but not the welfare of humans. [110]   The Court has been criticized for not trying to constitutionally salvage the law by only declaring the part unconstitutional that was referring to genetic behavior defects that did not cause any pain and suffering to the animal as the new law was not designed eliminate this factor but (unconstitutionally) extend the scope beyond the pain and suffering element. [111]   The federal legislature can, of course, constitutionally restore the provision with these changes.   Until then, absent any federal legislation, the states can enact their own laws.   The preclusion for state legislative activity has been eliminated by striking down the federal law. [112]

            The underlying issue regarding Section 143 (1) StGB is to what extent the federal legislature can qualify “foreign” prohibitions with a penalty.   The prohibitions themselves were part of state laws, the federal law only referred to the state laws and imposed its own penalty.   While the Court said that, as a general rule, there are no constitutional objections to this practice, [113] it has been pointed out there might, in fact, be a true imposition of the federal legislature’s will on the states in violation of Article 74 (1) No. 1 GG. [114]   This is particularly true if the states decide to prohibit a certain activity without imposing a penalty.   The federal penalty would then give the state law a particular character that was not intended by the state legislatures. [115]

The Court in this case understands the issue to be that imposing a federal penalty is generally acceptable if the federal legislature does not try to regulate a state matter. [116]   The Court never discussed the issue after stating that it would be generally acceptable, because it found that Section 143 StGB did not meet the requirements of Article 72 (2) which demands that the state laws are basically similar. [117]   Since they profoundly differed, and Section 143 StGB transferred these profound differences onto the national level, it could not be used to achieve uniform living standards and therefore did not meet the constitutional requirements of Article 72 (2). [118]

  A further problem of Section 143 StGB, that the Court did not address because it invalidated the provision under Article 72 (2), was its vagueness. [119]   It did not mention which state regulations it was referring to.   To prevent unconstitutional vagueness in cases in which the federal law refers to state laws, the text of the state laws should be repeated in the federal law. [120]

B. The Import Ban: Constitutional . . . For Now

What makes the decision regarding the import of dangerous dogs particularly interesting is the clear statement that breed alone cannot determine the dangerousness of a dog. [121]   At the same time, the Court states equally clearly that it does not currently see a better measure to assess the dangerousness. [122]   The Court, in upholding the ban, tried to strike a balance between the asserted need to address the dangerous dogs issue by the legislature and the limited amount of reliable data available.   The Court applied what in U.S. constitutional law terminology could be called a reasonable basis test to the import ban. It finds that prohibiting the import of dogs of certain breeds is not unreasonably unrelated to the prevention of biting incidents involving these dogs.   By placing a condition on upholding the law--the continued monitoring of the situation and the accumulation of more data [123] --the Court reached a “constitutional for now, but” decision.   There has been some criticism, however, that the Court did not specify a schedule and a mode of review of the current laws. [124]

For the regulations at the state level, the (temporary) presumption of the constitutionality of breed specific legislation also applies.   While it has been suggested that those states that have not yet utilized breed-specific regulations should be encouraged to do so by this decision, [125] the cautionary remarks of the Constitutional Court seem to point in a different direction.   Absent any scientifically reliable mode to determined the dangerousness of dogs, the Court is willing to accept breed despite the fact that it finds breed alone to be an insufficient measure.   The states, in turn, should not be encouraged to follow the route of breed-specific legislation but instead try to come up with effective measures unrelated to breed. [126]

In the face of mounting political and public pressure to act, the legislature may still be lacking the necessary data to base the desired legislation on.   Both on the state and federal level in this case, there was a twofold lack of data.   First, there was a lack of data on the effects of preexisting state regulations.   It was not known whether those measures were insufficient or simply not properly enforced. [127]   Secondly, the assessment of the dangerousness of dogs did not rest on secured scientific data.   The dog bite statistics were erratic and experts had pointed out that there are no dangerous dog breeds per se, only dangerous individual dogs.   The dangerousness of dogs, thus, could not be determined in general, yet reliable terms by breed, height and weight.   There was no comprehensive data that could support the heightened dangerousness of specific breeds.   The only thing that was known for sure was the goal of the legislation: injuries to humans caused by dangerous dogs were to be prevented.

There was no time left for a scientific study of the matter, but there was a growing public feeling that the state was incapable of protecting its own citizens. [128]   The legislative action in this case was designed to protect particularly valuable interests.   The Court, in this case, held that insufficient data does not prevent the legislature from taking action.   Instead, it placed the legislation under the condition that it be monitored and possibly revised as new data becomes available to compensate for the lack of scientific knowledge on the issue.   Thus, while the legislation passes constitutional muster at the moment, more accurate data is clearly needed.   The underlying question that goes beyond the dangerous dogs issue then is how to handle an issue that according to the assessment of the legislature requires legislative action when there is insufficient data.   The Court decided to award a high degree of deference to the legislature in determining whether there is a need for legislative action.

C. The Future

The regional court of appeals of Hamburg found that Section 143 (2) StGB is likely to be unconstitutional for the same reasons as Section 143 (1) StGB.   It has therefore with a decision of May 5 ^th , 2004, pursuant to Article 100 (1) GG, [129] stayed the proceedings in order to ask for an opinion of the Federal Constitutional Court. [130]   The Hamburg court points out that the definition of “dangerous dog” is not uniform in all the states and that there are various definitions regarding the dangerousness of a dog independent of its breed. [131]   The court, in short, summarized the criticism raised in legal literature that were not decided by the Federal Constitutional Court in the original case because of lack of standing of the petitioners.  

Consulting a standard StGB commentary [132] yields a strikingly unambiguous picture of the fate of the dangerous dogs legislation, especially in the form of Section 143 StGB.   The practical importance of Section 143 StGB is found to be rather low and the underlying problem has only been addressed in a symbolic manner. [133]   The breed lists in particular face a somewhat uncertain future at best.   To paraphrase Judge Thomas Fischer of the Federal Court of Justice, the breed list specification of the “Liptak”--which is included as a “type” rather than a “breed” on the North Rhine-Westphalia breed list--“from Eastern Europe; hard to identify” raises suspicions regarding the seriousness of the legislature. [134]   It does, however, speak volumes about the value of breed specific legislation.   Enforcement of breed specific dog laws, in light of all the problems addressed with respect to mixed breeds and breed lists, in Judge Fischer’s distinguished and arguably accurate view, is merely a coincidence. [135]   The decision of the Federal Constitutional Court on the Hamburg proceedings, in any event, might erase the breed based “dangerous dogs” legislation in its current shape from the Federal Criminal Code.