On the vagueness of criminal provisions

In a ruling dated November 3, 2016, the Federal Constitutional Court took a very critical look at two paragraphs of a criminal provision in the Beef Labeling Act (RiFlEtikettG), deeming them incompatible with the constitutional requirements of clarity (Article 103, Paragraph 2 in conjunction with Article 104, Paragraph 3, Sentence 1 of the Basic Law and Article 80, Paragraph 1, Sentence 2 of the Basic Law) and thus null and void. This concerns the criminal provision in Section 10, Paragraphs 1 and 3 of the RiFlEtikettG. These provisions read:

“(1) Anyone who contravenes a directly applicable provision in legal acts of the European Community or the European Union within the scope of application of Section 1 (1) shall be punished with imprisonment for up to one year or with a fine, insofar as a legal regulation pursuant to paragraph 3 refers to this penal provision for a specific offence.
(3) The Federal Ministry shall be empowered, to the extent necessary for the enforcement of legal acts of the European Community or the European Union, to designate by means of a legal order without the consent of the Bundesrat the offences which are to be punished as criminal offences under paragraph 1.

In this regard, the Constitutional Court stated that the legislature may replace the description of a criminal offense by reference to other provisions (Blanket Criminal Act), but the reference in Section 10 (1) of the RiFlEtikettG does not make it sufficiently clear which violations of EU law are to be sanctioned.

The allegation of lack of clarity likely applies equally to the administrative offenses under Section 38 GenTG and the criminal offenses under Section 39 GenTG. As an example, reference is made to Section 38 No. 9 GenTG, which reads as follows:

“(1) Anyone who intentionally or negligently... 9. does not make a notification, does not make a notification correctly or does not make a notification in a timely manner contrary to Section 9 Paragraph 4a or 5, Section 16a Paragraph 2 Sentence 1 or 3 or Paragraph 3 Sentence 1 or 3 or Section 21 Paragraph 1 Sentence 1 or 2 in conjunction with Sentence 1, Paragraph 1b Sentence 1, Paragraph 2 in conjunction with Paragraph 1 Sentence 1, Paragraphs 3, 4 Sentence 1 or Paragraph 5 or 5a Sentence 1 or 2,”

Here, too, concerns about the certainty are appropriate.

This publication can also be found on the website of the law firm Dr. Kauch .