GvW successful before the Federal Constitutional Court - No publication of hygiene violations after more than 14 months

In a ruling dated 28 July 2020 (1 BvR 1949/24), the Federal Constitutional Court upheld a constitutional complaint by a food company. In doing so, it overturned a decision by the Administrative Court of Hesse, which had authorised the authority to publish the results of a food inspection on the internet.

The judges in Karlsruhe clarified that information in accordance with Section 40 (1a) LFGB must be provided "without delay". If an expedited judicial procedure takes more than 14 months - as was the case here in the appeal instance alone - without the delay being attributable to the company or if there are objective reasons for the delay, publication violates the fundamental rights of the company concerned.

The judgement strengthens the freedom of occupation under Article 12 of the German Constitution. Publications on the so-called hygiene pillory are only permissible if they are made promptly and the delay is objectively justified.

The decision is of particular importance for the food industry as a whole. The publication of inspection results on the internet can have considerable economic consequences - from loss of sales to permanent reputational damage. The clarification now provided by the constitutional court gives companies more legal certainty and enables them to effectively defend themselves against delayed publications.

At the same time, the court emphasised that timely public information remains permissible and necessary. However, the decisive factor is an overall assessment in each individual case as to whether the publication is still made without delay.

GvW Graf von Westphalen represented the company in Karlsruhe. For GvW were Dr Markus KrausMaître en Droit, Partner at the Munich office, and Johanna Schmitt, LL.M.Associate in public law and food law.