Internet shaming (Pranger) for food law violations inadmissible!

The Administrative Court of Appeal (Verwaltungsgerichtshof) Baden-Württemberg has, in the context of a decision on interim legal protection, preliminarily prohibited the publication of food law violations on the Internet, as the amendment to the Food, Commodities and Feed Law (LFGB) could breach EU and constitutional law.

With effect from 1 September 2012, an amendment to the Food, Commodities and Feed Law (LFGB) came into force. The new provision of § 40 Abs. 1a LFGB requires the competent regional state authorities to inform consumers, with the competent person named, of exceedances of set limit values and all other breaches of hygiene regulations within the scope of application of the LFGB on the Internet if the breaches occur to a non-negligible extent or repeatedly and a fine of at least € 350 is to be expected.

In the concrete case, the District Office (Landratsamt) Rhein-Neckar-Kreis had identified breaches of food law in a restaurant. Although a further inspection one week later revealed no deficiencies, the District Office published the name, address and operator of the restaurant on its homepage. The Office stated as the reason for the deficiencies: inadequacies in operational hygiene and "disgusting manufacturing or treatment procedures". In the Office's view, the Office also had no discretion regarding publication, since the amendment to the law of § 40 Abs. 1a LFGB mandatorily required publication of the infringing establishment.

The restaurant operator challenged the publication by means of an application for interim relief (Eilantrag), which the Regional Court (Verwaltungsgericht) Karlsruhe granted at first instance. The authority then defended itself before the Administrative Court of Appeal (Verwaltungsgerichtshof) Baden-Württemberg.

Decision of the Court

By Beschluss vom 28.01.2013, Az. 9 S 2423/12, the Administrative Court of Appeal (Verwaltungsgerichtshof) Baden-Württemberg decided that the publication of the data on the Internet was inadmissible. It dismissed the District Office's appeal, as the publication on the Internet, with its shaming effect, constitutes a serious infringement of the right to informational self-determination and the right to pursue a profession of the restaurant operator.

The new provision § 40 Abs. 1a LFGB may moreover breach European food law, as the publication does not serve to avert a concrete health hazard but only serves precautionary health protection. Whether this would suffice will be clarified by the Court of Justice of the European Union (EuGH) in proceedings already pending in the foreseeable future.

The Administrative Court of Appeal (VGH) also expressed doubts as to whether the conditions for publication meet the requirements of the rule of law regarding clarity and precision of norms. The statutory element of the expectation of a fine of € 350 is not an objective and transparent standard, in particular as there is no schedule of fines which would permit a prognosis as to the publication obligation. Particularly in view of the statutory duration of publication, which is not regulated in law and is handled very differently nationwide, the measure could moreover prove to be disproportionate.

However, the Administrative Court of Appeal (Verwaltungsgerichtshof) left a final assessment to the main proceedings. The Administrative Court of Appeal (VGH) set the restaurant operator a deadline until 1 March 2013 to initiate main proceedings before the court.

Conclusion

The publication of the results of food inspection is, as a real act, not within the discretion of the authority. If the conditions are met, the authority must carry out the corresponding publication.

The Administrative Court of Appeal has, with excellent reasoning, placed an obstacle before this publication obligation. It remains to be seen how the courts will assess the regulation of § 40 Abs. 1a LFGB in the main proceedings. In our view, they will not be able to reach any other conclusion, as the handling of the regulation by the authorities is applied far too inconsistently.