DECISION
7 B 6300/20
In the administrative law case
the xxx
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
The Nursing Chamber of Lower Saxony,
represented by its President,
Hans-Böckler-Allee 9, 30173 Hannover
– Respondent –
Legal representatives:
Lawyers Dr. Rüping & Partner mbB,
Hohenzollernstraße 40, 30161 Hannover
due to prohibition of a public statement
The Administrative Court of Hanover – 7th Chamber – decided on January 4, 2021:
The respondent is ordered by way of an interim injunction to withdraw her statement made during the hearing on the draft of a “Law for the Implementation of the Dissolution of the Nursing Chamber of Lower Saxony” of November 25, 2020, with immediate effect and to refrain from publishing and disseminating this statement.
The respondent shall bear the costs of the proceedings.
The value of the subject matter of the dispute is set at 5,000.00 EURO.
REASONS
I.
The respondent is the Chamber for the Health Professions in Nursing, established by the State of Lower Saxony under the name "Nursing Chamber" by the Chamber Act for the Health Professions in Nursing (PflegeKG) of December 14, 2016 (Lower Saxony Law Gazette, p. 261; entered into force on January 1, 2017), most recently amended by the Act of March 27, 2019 (Lower Saxony Law Gazette, p. 70). According to Section 2 Paragraph 1 Sentence 1 of the Nursing Act, members of certain nursing professions who practice their profession in Lower Saxony are members of the Lower Saxony Nursing Chamber. The aforementioned Act thus regulates, among other things, compulsory membership.
The applicant is a compulsory member of the respondent.
Following protests from potential members against the establishment of the chamber, as well as an online petition against the respondent, the state government decided to survey the respondent's approximately 78,000 members regarding its continued existence and future. According to the Lower Saxony Ministry for Social Affairs, Health and Equality, in the online survey conducted between July 29, 2020, and September 6, 2020, 70.6% of the 15,100 respondents were against the continued existence of the respondent, 22.6% voted in favor, and 6.8% abstained.
Following a request from the Lower Saxony Ministry for Social Affairs, Health and Equality dated November 3, 2020, to submit a statement as part of the hearing on the draft of a "Law on the Dissolution of the Lower Saxony Chamber of Nursing", the Chamber Assembly of the respondent decided on November 18, 2020, to be supported by a lawyer in submitting this statement.
The contested statement submitted on November 25, 2020, which can be accessed online at www.pflegekammer-nds.de/positionen-berichte , states, among other things (last accessed: January 4, 2021):
“B. Tenor of the statement:
The Nursing Chamber of Lower Saxony strongly rejects its proposed dissolution.”
(Page 3 of the statement).
"The intended dissolution of the chamber would lead to a weakening rather than a – actually necessary – strengthening of the professional group of nurses."
(Page 4).
“3. Appropriateness of the performance of tasks by the nursing council.
The nursing council has effectively performed its three main tasks – professional representation, professional promotion and professional supervision – in the short time of its existence.”
(page 8 bottom).
“The dissolution of the chamber is justified in the present draft law with only one argument, namely the result of the member survey carried out between July and September 2020 […].” (page 19 bottom).
"First of all, the result of the member survey is in no way representative of the will of the majority of the members of the nursing council. While 70.6% of those who voted may have voted in favor of dissolving the council, based on a voter turnout of 19.4%, this corresponds to only 13.7% of all eligible council members. [...] From this perspective alone, the result of the member survey does not constitute a valid public interest reason that could justify dissolving the nursing council." (Page 20).
“Relying solely on the will of the – moreover: small minority of – chamber members in the sense of a ‘wish list’ is, however, not legally permissible.” (Page 21).
"This statement misrepresents the voting behavior of a small minority of chamber members (13.7% of all eligible chamber members) as a majority. This also indicates that the – non-representative and legally questionable – member survey is being used as a fig leaf to justify the abolition of the nursing chamber, which lacks any factual basis and is therefore arbitrary." (Page 26).
By letter dated December 2, 2020, the applicant's legal representative, on behalf of the applicant, requested the respondent to remove the aforementioned statement from the nursing chamber's website by December 4, 2020, to withdraw it from the legislative process, and to refrain from further disseminating it. The respondent rejected this request in a written reply dated December 4, 2020.
On December 8, 2020, the Chamber Assembly passed a resolution in principle, stating that the legal position of the Nursing Chamber of Lower Saxony, issued in a letter dated November 25, 2020, based on the constitutional opinion obtained, was approved by the Chamber Assembly.
In a written submission received by the court on December 7, 2020, the applicant seeks preliminary legal protection. In support of her claim, she cites current case law from the deciding chamber and the Higher Administrative Court of Lower Saxony, arguing essentially that the respondent violated its statutory obligations with its contested statement, thus entitling her, the applicant, to an injunction. According to the case law of the Federal Administrative Court, there is, particularly in controversial matters, an obligation to present minority positions. In the survey conducted by the State of Lower Saxony, 70.6 percent of the respondent's members who participated in the survey opposed the respondent's continued existence. It must therefore be concluded that at least a very significant minority (based on the survey results and participation), but probably more likely the majority of the respondent's members, wish to abolish the Lower Saxony Chamber of Nursing. By completely disregarding this significant current of opinion within the membership, the respondent has clearly violated the legal requirements regarding permissible expressions of opinion. In the present case, the respondent, with the statement in question, has taken an unlawfully one-sided stance that obviously does not reflect the spectrum of opinion within the membership. In the aforementioned statement, the number of the respondent's members who support its abolition is misrepresented as the "voting behavior of a small minority of chamber members (13.7% of all eligible chamber members)," which has allegedly been incorrectly reinterpreted as a majority (statement, page 26). Nowhere in the statement is it apparent whether, and if so, what efforts the respondent undertook to establish a truly representative picture of the membership's opinions. And nowhere in the statement are the substantive positions of those members who assess the respondent's so-called "services" entirely differently presented.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to withdraw with immediate effect its statement submitted during the hearing on the draft of a "Law for the Implementation of the Dissolution of the Nursing Chamber of Lower Saxony" and to refrain from publishing and disseminating this statement – in particular on the Internet.
The respondent requests that
the application be rejected.
The respondent essentially states the following in support of her application:
The applicant's request is an impermissible prejudgment of the merits of the case because the application is not limited to the period "until a decision is reached in the main proceedings." Since the decision is not urgent, there is also no ground for an injunction. There is no legal basis for such an injunction. The respondent submitted the statement in question in fulfillment of its obligation under Section 9 Paragraph 1 No. 6 lit. b) of the Nursing Care Act (PflegeKG) to advise and support the applicant on legislative matters. The passage on page 26 of the statement, which the applicant objects to, correctly points out that the results of a survey in which only 15,100 of the 78,000 chamber members participated cannot be construed as a mandate to dissolve the respondent. The respondent is not required to identify minority positions when submitting statements on legislative procedures. Moreover, minority positions are not reflected in the Chamber Assembly, which unanimously approved the submitted statement. Furthermore, the respondent would only have had three weeks to prepare the statement. There is no legal basis for withdrawing the statement, as it has already been submitted and cannot be undone. It is unclear what the purpose of a "withdrawal" would be.
For further details of the facts, reference is made to the contents of the court file and the administrative file.
II.
The application is successful.
I. The application is admissible; in particular, it is permissible under Section 123 Paragraph 1 of the Code of Administrative Court Procedure (VwGO). According to the jurisprudence of the Federal Constitutional Court, members of a chamber have recourse to the administrative courts when conflicts arise concerning statements made by a chamber; in this context, preliminary injunctions can also be sought to challenge any exceeding of the powers of individual chamber bodies (see Federal Constitutional Court, decision of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, juris, para. 73).
The applicant is entitled to bring this action, pursuant to § 42 para. 2 VwGO by analogy. In any event, a violation of Art. 2 para. 1 of the Basic Law (GG) through being called upon to serve as a member of a compulsory corporation appears possible if the chamber, in its activities, does not comply with the limits set by law (cf. only BVerwG, judgment of June 23, 2010 – 8 C 20/09 –, juris, para. 21).
The application is also not lacking in the need for legal protection insofar as it seeks to order the respondent to withdraw its statement in the context of the hearing on the draft law for the implementation of the dissolution of the Lower Saxony Chamber of Nursing, since a withdrawal in the sense of a revocation is still possible.
II. The application is also well-founded.
Upon application, the court may – even before an action is filed – issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the applicant's exercise of a right (Section 123, Paragraph 1, Sentence 1 of the German Code of Administrative Procedure). Preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary, particularly in the case of ongoing legal relationships, to avert significant disadvantages, prevent imminent harm, or for other reasons (Section 123, Paragraph 1, Sentence 2 of the German Code of Administrative Procedure).
The prerequisite here is that the applicant credibly demonstrates the existence of a right to be secured (claim for an injunction) and the necessity of a provisional regulation (ground for an injunction) (§ 123 para. 1 and 3 VwGO in conjunction with § 920 para. 2 of the Code of Civil Procedure).
The decisive factors are the factual and legal circumstances at the time of the court's decision. The success of the application must be determined based on a summary review, which is both necessary and the only possible approach in preliminary injunction proceedings. If this preliminary legal assessment, based on the available facts presented and substantiated by the applicant, indicates a preponderance of the chances of success in the main proceedings, a claim for an injunction generally exists. Grounds for an injunction require that, considering the applicant's interests, it would be unreasonable to expect them to await a decision in the main proceedings (see Saxon Higher Administrative Court, decision of September 22, 2017 – 4 B 268/17 –, juris).
In principle, a preliminary injunction serves to provisionally secure a claim or to provisionally regulate a legal relationship. However, if the requested decision anticipates the main proceedings – as in this case – the examination of the grounds for the injunction and the claim for the injunction must meet stringent requirements; that is, the issuance of a preliminary injunction is only considered if there is a high degree of probability of success in the main proceedings and if the applicant would suffer serious and unreasonable disadvantages by waiting for the main proceedings, disadvantages that cannot be averted in any other way and which the decision in the main proceedings would no longer be able to remedy (Bavarian Administrative Court, decision of March 18, 2016 – 12 CE 16.66 –, juris, para. 4).
These conditions are met here. The applicant can demand that the respondent withdraw its statement made during the hearing on the draft of a "Law for the Implementation of the Dissolution of the Nursing Chamber of Lower Saxony" dated November 25, 2020 – specifically, by retracting the statements to the recipients – and refrain from publishing said statement, which also includes the removal from the homepage that is the subject of these proceedings.
1. The applicant has a right to an injunction.
In its decision of October 22, 2020 (8 ME 99/20), the Higher Administrative Court of Lower Saxony stated the following regarding the legal standards to be observed here:
"The legal basis for this claim is the general freedom of action guaranteed in Article 2 Paragraph 1 of the Basic Law. The general freedom of action under Article 2 Paragraph 1 of the Basic Law grants the holder of this fundamental right the right to defend against 'unnecessary' compulsory associations. The establishment and structure of compulsory membership in such an association must be covered by formal law and be proportionate. If the chamber exceeds the powers assigned to it in accordance with the constitution, it interferes with the general freedom of action of its compulsory members without a legal basis. Article 2 Paragraph 1 of the Basic Law grants these members the right to defend against such overstepping of powers by the chamber, regardless of whether they suffer any further legal or factual disadvantage as a result of the overstepping of powers (cf. Federal Constitutional Court, Judgment of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 1)." 109; BVerwG, Judgment of 23 March 2016 – 10 C 4.15 –, BVerwGE 154, 296, juris Rn. 13 fmwN).
a) Pursuant to Section 9 Paragraph 1 No. 1 of the Nursing Care Act (PflegeKG), the respondent's task is to represent the common professional interests of its chamber members in accordance with the public interest. The tasks of the professional association thus addressed include, in particular, systematically, professionally, and continuously consolidating the interests of the professional groups represented and communicating them—in consideration of the public interest—with a commitment to completeness and bindingness, both internally and externally, especially in legislative procedures and other decision-making processes relevant to the represented professional groups. The respondent is to consolidate and represent the overall interests of the profession (see Senate judgment of August 22, 2019 – 8 LC 116/18 –, NdsVBl. 2020, 44, juris para. 62). This includes influencing opinion-forming processes and thus public relations and press work. The respondent's responsibilities include informing the public about its views on the professional concerns of registered nurses, geriatric nurses, and pediatric nurses, and, if necessary, addressing other related opinions through publications. Public events, presidential speeches, press conferences, press releases, and the publication of a chamber journal can also be used to fulfill the task assigned to it in Section 9 Paragraph 1 No. 1
of the Nursing Care Act (see, regarding Chambers of Industry and Commerce, Higher Administrative Court of North Rhine-Westphalia, Judgment of April 12, 2019 – 16 A 1499/09 –, GewArch. 2019, 296, juris para. 114). The foregoing establishes the limits, derived from this competence, on whether the respondent may make statements, particularly in the context of public relations. A direct and specific impact on the professional interests of the chamber members is required, as the subject matter on which the statement is made must be affected. The facts to which the statement refers must have a comprehensible impact on the professional interests of the chamber members. This threshold would be exceeded, for example, in cases whose effects solely concern the efficiency of the social security systems or the individual economic interests of those employed in the nursing or healthcare sectors (see Senate judgment of August 22, 2019 – 8 LC 116/18 –, NdsVBl. 2020, 44, juris para. 46, 62), without also affecting the professional activity itself. On the other hand, it also applies to the respondent that a peripheral impact on the professional interests of the chamber members opens the door to jurisdiction. It is required that comprehensible effects on these interests can be derived at least from the justification or its textual context (cf. generally regarding Chambers of Industry and Commerce, Federal Administrative Court, judgment of 23 June 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 24 et seq.; of 23 March 2016 – 10 C 4.15 –, BVerwGE 154, 296, juris para. 29; regarding general political statements by medical associations, Federal Administrative Court, judgment of 17 December 1981 – 5 C 56/79 –, BVerwGE 64, 298, juris para. 19, 22).
b) The manner in which statements are made is subject to the limitations generally arising from the respondent's position as an entity performing indirect state administration with mandatory membership and carrying out public tasks. As a public-law self-governing body, it must exercise the highest possible degree of objectivity in representing the overall interests of its chamber members (see Federal Constitutional Court, Decision of December 19, 1962 – 1 BvR 541/57 –, BVerfGE 15, 235, juris para. 23). This requires that the respondent's statements be factual and exercise the necessary restraint. This not only imposes requirements on the wording, which precludes polemically exaggerated statements or those aimed at emotionally charged conflict resolution; the necessary objectivity also demands argumentation based on objective criteria and, where appropriate, the presentation of minority positions. Since the overall interest of the chamber members is the reference point for the performance of duties, and this requires a balancing of any conflicting interests, any statement made on particularly controversial topics must also reflect this balancing process (cf. regarding Chambers of Industry and Commerce, Federal Administrative Court, Judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 33). In the case of highly controversial issues, the respondent may not categorically state its majority opinion, but must simultaneously disclose the minority opinion(s) and make clear the balancing of the different positions that led to the majority opinion (cf. regarding Chambers of Industry and Commerce, Federal Administrative Court, Judgment of March 23, 2016 – 10 C 4.15 –, BVerwGE 154, 296, juris para. 39).
The possibility of ascertaining the overall interest justifies the mandatory membership, which aims for the complete registration of all professionals active in the regulated profession. The goal is to consolidate diverse positions within the chambers, both through their independence and through the comprehensiveness of the information, since mandatory membership makes it possible to draw upon the views of all members. Accordingly, the objective is not, or not necessarily, the articulation of a single, unified opinion from a homogeneous group. Rather, the overall interest must be determined and passed on by weighing and balancing even conflicting interests (cf. Senate judgment of 22 August 2019 – 8 LC 116/18 –, NdsVBl. 2020, 44, juris para. 73, 84; regarding Chambers of Industry and Commerce, Federal Constitutional Court judgment of 12 July 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 92, 94). The overall interest is a weighted result and therefore neither a sum or exponentiation of the individual interests nor their lowest common denominator (regarding Chambers of Industry and Commerce, Federal Administrative Court, judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 34). The necessity of also conveying potentially conflicting interests is directly related to the proportionality of mandatory membership. Questions may arise to which chamber members give such different answers that these are difficult to integrate into an overall assessment. If the respondent then presents only the majority interest as the overall interest, this leads to a permanent impairment of the minority interest (regarding Chambers of Industry and Commerce, see Federal Constitutional Court, judgment of 12 July 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 109). This applies, firstly, to structurally different sets of interests, for example, between different professional groups among the chamber members. However, this also applies to highly controversial professional issues in the public sphere and among members, as well as in socio-political matters (see Federal Administrative Court, judgment of 23 June 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 42; of 23 March 2016 – 10 C 4.15 –, BVerwGE 154, 296, juris para. 39; Hamburg Higher Administrative Court, decision of 16 November 2016 – 5 Bf 40/16.Z –, NordÖR 2017, 145, juris para. 78; Higher Administrative Court of North Rhine-Westphalia, judgment of 12 April 2019 – 16 A 1499/09 –, GewArch. 2019, 296, juris para. 140), although, of course, only positions held among members, and not solely those held outside the membership, require disclosure (see Cologne Administrative Court, Judgment of May 3, 2012 – 1 K 2836/11 –, GewArch. 2013, 75, juris para. 57 et seq.).
Individual impermissible statements within a longer statement do not render the other, unobjectionable statements contained therein impermissible (see North Rhine-Westphalia Higher Administrative Court, Judgment of April 12, 2019 – 16 A 1499/09 –, GewArch. 2019, 296, juris para. 135). On the other hand, the individual statements are not unrelated. It must be assessed whether each statement complies with the principles of competence, objectivity, and impartiality. Its context can be relevant in this regard – within limits. An incomplete partial statement does not automatically lack objectivity simply because the completing part is contained in another sentence. Conversely, it is unacceptable to rearrange arbitrary statements scattered throughout a text in such a way that its original lack of objectivity is no longer apparent. Only an examination of the specific text under appeal can provide a more detailed answer. Previous statements by the Chamber, the context of the entire debate, and the conduct of other participants in the debate are not to be considered (see Hamburg Higher Administrative Court, Decision of November 16, 2016 – 5 Bf 40/16.Z –, NordÖR 2017, 145, juris para. 34, 40, 45). The fact that the latter may argue subjectively or without objectivity may be protected by their freedom of expression, without the respondent being entitled to a corresponding response.
c) Furthermore, statements and declarations by the respondent are only admissible if they were issued in accordance with the prescribed procedure. Compulsory membership is only justified if the chamber is acting in the overall interest legitimized by the prescribed procedure (see, regarding Chambers of Industry and Commerce, Federal Administrative Court, Judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 35).
Pursuant to Section 15 Sentence 1 No. 6 of the Nursing Care Act (PflegeKG), the Chamber Assembly decides on all other matters that go beyond day-to-day operations. According to Section 21 Paragraph 1 of the Nursing Care Act, the Executive Board manages the Chamber's day-to-day business. It prepares the deliberations of the Chamber Assembly and implements the resolutions it adopts. Further details regarding the duties of the bodies are to be regulated in the Chamber's statutes pursuant to Section 6 Sentence 1 No. 1 of the Nursing Care Act. Section 18, paragraph 3, number 5 of the bylaws stipulates that the board is responsible for press and public relations.
In principle, this means that informing the press is assigned to the board as a routine matter of the chamber. However, the content of statements made by this chamber body as such is attributed to the chamber and must therefore reflect the overall interest explained above. The determination or formation of this overall interest, which precedes the actual press work, in significant matters that are assessed differently among the chamber members, is the responsibility of the general assembly (see, regarding Chambers of Industry and Commerce, Federal Constitutional Court, judgment of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 117). Therefore, this is not a routine matter. If a significant and highly contentious issue is at hand, determining the overall interest by weighing and balancing even conflicting interests exceeds the scope of typical administrative matters for the respondent, given their regularity and frequency. A different allocation of tasks would contradict the finding that the appropriate participation of those affected in the decision-making process, while ensuring the necessary internal pluralism, can primarily take place in the directly elected Chamber Assembly (cf. regarding Chambers of Industry and Commerce, Federal Constitutional Court, Judgment of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 120 et seq.). Only once the Chamber Assembly has made at least a fundamental determination regarding the overall interest can the Executive Board be tasked with communicating this interest externally in such matters, clarifying, specifying, and developing it further (cf. regarding Chambers of Industry and Commerce, Federal Administrative Court, Judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 35, 49; Decision of February 14, 2020 – 8 B 78.19 –, juris para. 6). However, this does not mean that all press work is subject to the approval of the Chamber Assembly. Firstly, this body only needs to have acted beforehand if the matter is significant and is viewed considerably differently by the Chamber members. Secondly, a fundamental determination of the overall interest, upon which the Executive Board can build, is sufficient. A detailed definition of the content of the press work is not required. It may be that the requirement of consulting the Chamber Assembly prevents immediate advocacy on specific issues in the fast-paced media landscape. However, this objection does not allow the Executive Board to act more independently. Statements made on behalf of the Chamber may only articulate the overall interest as defined above. As long as a fundamental decision by the Chamber Assembly, required in each individual case, is lacking, there is simply no definition of the overall interest by the respondent that the Executive Board could communicate externally. Due to the existing mandatory membership, the respondent cannot act like an interest group or a political party (see also Federal Administrative Court, Judgment of 23 June 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 32; Hamburg Higher Administrative Court, Decision of 16 November 2016 – 5 Bf 40/16.Z –, NordÖR 2017, 145, juris para. 34; Higher Administrative Court of North Rhine-Westphalia, Judgment of 12 April 2019 – 16 A 1499/09 –, GewArch. 2019, 296, juris paras. 126, 142). If the legal basis of the respondent's actions authorized the board to engage in press work without first properly forming a collective interest, then mandatory membership violates Article 2 Paragraph 1 of the Basic Law. The respondent overlooks this point in its argument, which relies on a decision of the Mainz Administrative Court (decision of October 13, 2020 – 4 L 606/20.MZ –). Mandatory membership derives its legitimacy precisely from the fact that it is not an arbitrary majority interest, but rather the collective interest that is articulated, the determination of which the chamber is only able to make possible by the full membership of its professional members. Subsequent approval by the chamber assembly is insufficient. The collective interest can only be defined by the chamber assembly, not subsequently approved by it. If, despite this, a policy paper drafted without the required participation of the Chamber Assembly is published, the act of publication itself constitutes an exceeding of the corporation's legal authority and thus a violation of the rights of its mandatory members (see Federal Administrative Court, Judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 50). Because the formation of the collective interest by the Chamber Assembly is a prerequisite for fulfilling the substantive legal requirements for the respondent's activities, each of its members can assert such an error (see Federal Administrative Court, Judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 52).
Measured against these standards, the applicant has credibly demonstrated the prerequisites for the claim to an injunction.
The deciding chamber considers the entire statement of November 25, 2020 to be an inadmissible expression; therefore, the applicant is entitled to an injunction against the publication and its withdrawal from the legislative process by means of a retraction.
The Chamber does not underestimate the significance of its decision or its impact – also – on the legislative process, nor does it underestimate the fact that it is a statement comprising a total of 39 pages, which, in addition to the individual statements deemed inadmissible by the deciding Chamber, also contains further statements.
The legal standard is Section 9 Paragraph 1 No. 1 of the Nursing Care Act (see a)). The respondent's statement was not prepared in accordance with the prescribed procedure (see b)). The substantive requirements are also not met (see c)): In particular, the statement lacks a balanced presentation of the opinions held by all members of the Chamber (see aa)). The errors identified by the deciding Chamber below render the entire statement inadmissible (see bb)). The formal and substantive violations identified by the Chamber independently lead to the inadmissibility of the statement.
a) Contrary to the respondent's view, its actions are not governed by Section 9 Paragraph 1 No. 6 Letter b of the Nursing Care Act (PflegeKG), but rather by Section 9 Paragraph 1 No. 1 of the Nursing Care Act (PflegeKG). This is because the respondent did not submit the statement in question within a matter concerning its professional expertise, but rather within the legislative process aimed at its dissolution. According to Section 9 Paragraph 1 No. 1 of the Nursing Care Act, the respondent's task is to represent the common professional interests of its chamber members in accordance with the interests of the general public. Among the tasks of the professional association addressed in this provision is, in particular, to systematically, professionally, and continuously consolidate the interests of the professional groups represented by the chamber and to communicate these interests—while balancing them against the public interest—with a claim to completeness and bindingness, both internally and externally, especially in legislative processes and other decision-making processes relevant to the professional groups represented.
b) The respondent's statement was not prepared in accordance with the prescribed procedure. It is obvious that a statement in a legislative procedure concerning the dissolution of the respondent is not part of the routine administrative business. The respondent apparently also assumes this to be the case, as the statement was approved by the Chamber Assembly at its meeting on December 8, 2020. However, such subsequent approval by the Chamber Assembly does not meet the aforementioned legal requirements, because the overall interest can only be defined by the Chamber Assembly, not subsequently approved by it. Therefore, submitting the statement and publishing it on the respondent's website without the required prior involvement of the Chamber Assembly constitutes an overstepping of the respondent's legal authority and thus a violation of the rights of its mandatory members. The fact that the Chamber Assembly decided at its meeting on November 18, 2020, prior to submitting and publishing the statement, to issue a statement and to seek legal counsel in doing so, is insufficient. It is not apparent that the basic outlines of the statement were already established in this meeting, especially not taking into account the results of the member survey.
c) Furthermore, there are violations of substantive requirements: Several statements in the opinion do not meet the requirements of objectivity (aa)). The errors identified below by the deciding chamber render the entire opinion inadmissible (bb)).
(aa) The statement in question no longer falls within the bounds of what is permissible under the respondent's position as an indirect public administration body with mandatory membership, performing public duties. The highest possible degree of objectivity is not maintained; rather, the statement is characterized by a one-sided presentation and the omission of opposing viewpoints. No consideration of the conflicting interests among the members regarding the highly controversial issue of the respondent's continued existence is apparent. In particular, the views of those members who support the dissolution of the nursing chamber are not presented adequately. Instead, the respondent merely offers arguments as to why the results of the online survey should not form the basis for the decision on the respondent's dissolution.
In detail:
The statement on page 3 of the report
"The Lower Saxony Chamber of Nursing strongly rejects its planned dissolution."
The statement violates the limits of permissible expression simply because it omits why at least a significant portion of the respondent's members opposed its continued existence in the aforementioned survey. The quoted passage, rather, suggests that this view is not shared among the members.
The same applies to the illustrations on page 4
"The intended dissolution of the chamber would lead to a weakening, rather than a – actually necessary – strengthening of the professional group of nurses."
and on page 8 at the bottom:
“3. Appropriateness of the tasks performed by the nursing council:
In the short time of its existence, the nursing council has effectively performed its three main tasks – professional representation, professional promotion and professional supervision.”
The views expressed there are being questioned by the respondent's critics and, according to the results of the survey, do not correspond to the assessment of all members of the respondent.
The statements on page 19 below appear to be restrictive in the sense of the previously cited guidelines; it states:
“The dissolution of the chamber is justified in the present draft law with only one argument, namely the result of the member survey carried out between July and September 2020 […].”.
This also applies to the passage on page 24:
"The explanatory memorandum to the law presents no factual arguments whatsoever as to why the nursing council has not proven effective and should therefore be dissolved.".
This account omits the fact that the draft law does not solely cite the member survey as the reason for dissolving the respondent; it also expresses doubts about the respondent's usefulness to the nursing profession. Therefore, the SPD and CDU parliamentary groups already agreed in their coalition agreement of November 2017 to evaluate the effects and organization of the nursing chamber halfway through the legislative period (see draft law, Appendix 001, p. 9). Moreover, the presentation in the statement at issue creates the impression that other circumstances – such as the public discussion that led the Minister to attach such considerable importance to this result for the decision on the dissolution of the respondent, fundamental objections to the establishment of the respondent, and conclusions that could be drawn from deficiencies in its activities – do not exist, and that the decision is based solely on the inquiry, which, in the respondent's view, is entirely unsuitable as a basis for it.
The explanations on page 20
"First of all, the result of the member survey is in no way representative of the will of the majority of the members of the nursing council. While 70.6% of those who voted may have voted in favor of dissolving the council, with a voter turnout of 19.4%, this corresponds to only 13.7% of all eligible council members. [...] From this perspective alone, the result of the member survey does not constitute a valid public interest reason that could justify dissolving the nursing council."
and on page 21
“Relying solely on the will of the – moreover: small minority of – chamber members in the sense of a ‘wish list’ is not legally permissible.”
as well as on page 26
"This statement misrepresents the voting behavior of a small minority of chamber members (13.7% of all eligible chamber members) as a majority. This also indicates that the – non-representative and legally questionable – member survey is being used as a fig leaf to justify the abolition of the nursing chamber, which lacks any factual basis and is therefore arbitrary."
These statements are not objective because they suggest that the "silent majority" of the respondent's members desire its continued existence. Whether those members of the respondent who did not participate in the survey actually support its continued existence is purely speculative and cannot be used as an argument in favor of the chamber's continued existence. Furthermore, the statements on pages 21 and 26 lack the necessary objectivity to a significant degree, not least because a group representing 13.7% of the voting members is not a small minority, but rather a substantial proportion of the respondent's membership.
bb) The entire statement submitted by the respondent that is the subject of the proceedings must be deemed inadmissible due to the specific circumstances of the individual case.
The statements deemed inadmissible by the deciding chamber are inextricably linked to the other parts of the opinion under consideration. This opinion is based, among other things, on the essential assumption that the respondent operates advantageously and effectively (see pp. 3-4), yet is to be abolished solely (see pp. 19-20) on the basis of a vote by a "small minority of the chamber members" (see p. 21). The expert opinion's thesis that there are no overriding reasons of public interest justifying the abolition of the respondent is thus essentially supported by precisely those statements that the deciding chamber considers inadmissible (see above).
Moreover, the entire statement was issued in violation of procedural rules; according to the case law of the Higher Administrative Court of Lower Saxony, this violation cannot be remedied (see above).
Finally, the legal violations inherent in this statement are particularly serious in this context: The respondent published the statement on November 25, 2020. In doing so, it knowingly violated legal requirements and infringed upon the applicant's rights once again. At the time of its forwarding, both the deciding chamber and the Higher Administrative Court of Lower Saxony, in response to a request for preliminary legal protection from the applicant, had previously criticized a press release published by the respondent, in which it also advocated for its continued existence, citing, among other things, a lack of objectivity, and had ordered its removal from the website. It was readily apparent to the respondent – who was represented by counsel – that these same deficiencies also applied to the statement now at issue in these proceedings.
2. The applicant has grounds for an application for a preliminary injunction. Urgency exists. The grounds for an application under Section 123 Paragraph 1 of the Code of Administrative Court Procedure (VwGO) arise primarily from the content of the legal remedy sought itself, which aims at an immediate obligation on the part of the respondent (see also Federal Constitutional Court, decision of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, juris, para. 73). The other requirements of Section 123 Paragraph 1 Sentence 2 VwGO are also met. The preliminary injunction appears necessary, at least because the respondent, of which the applicant is a mandatory member, fails to adequately represent the applicant's views, as well as those of a significant portion of its members, in the anticipated public debate following the publication of the statement.
3. This constitutes a permissible anticipation of the main proceedings, as effective legal protection within the meaning of Article 19, paragraph 4, sentence 1 of the Basic Law cannot be achieved in any other way. If the applicant were referred to main proceedings, the political debate and decision regarding the future of the respondent could already be concluded.
III. The decision on costs is based on Section 154 Paragraph 1 of the Code of Administrative Court Procedure (VwGO). The determination of the value in dispute is based on Sections 63 Paragraph 2 Sentence 1, 53 Paragraph 2 No. 1, and 52 Paragraph 2 of the Court Costs Act (GKG) in conjunction with No. 1.5 of the Schedule of Values in Dispute for Administrative Court Proceedings (see NordÖR 2014, 11). The value in dispute is not reduced because the application seeks a preliminary ruling on the merits (see Düsseldorf Administrative Court, Decision of September 14, 2020 – 20 L 1781/20 –, juris, para. 94).
The following is information on legal remedies.
