DECISION
8 ME 12/21
7 B 6300/20
In the administrative law case
Ms. xxx,
– Applicant and Respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Nursing Chamber of Lower Saxony, a public corporation
, represented by the President,
Hans-Böckler-Allee 9, 30173 Hannover
– Respondent and appellant –
Legal representatives:
Lawyers Dr. Rüping & Partner mbB,
Hohenzollernstraße 40, 30161 Hannover
due to prohibition of a public statement
– appeal in preliminary legal protection proceedings –
The Higher Administrative Court of Lower Saxony – 8th Senate – decided on March 16, 2021:
The respondent's appeal against the decision of the Administrative Court of Hanover – 7th Chamber – of 4 January 2021 is dismissed.
The respondent shall bear the costs of the appeal proceedings.
The value of the subject matter of the dispute is set at EUR 5000 for the appeal proceedings.
REASONS
I.
The legal dispute concerns the respondent's statement submitted during the hearing on the draft law implementing the dissolution of the Lower Saxony Chamber of Nursing on November 25, 2020. The statement was submitted as part of a consultation process with associations, conducted by the Lower Saxony Ministry for Social Affairs, Health and Equality prior to the submission of the draft law to the State Parliament. By order dated January 4, 2021, the Administrative Court issued a preliminary injunction ordering the respondent to withdraw its statement with immediate effect and to refrain from publishing or disseminating it. The respondent has appealed this order.
II.
The admissible appeal is unsuccessful. The reasons set forth in the appeal, the review of which is limited to the Higher Administrative Court (§ 146 para. 4 sentence 6 VwGO), do not indicate that the Administrative Court wrongly granted the application for preliminary legal protection.
The application for an interim injunction is admissible and well-founded.
1. The application for a preliminary injunction is admissible. In particular, there is a need for legal protection.
a) The appellant's argument is unsuccessful insofar as it deems it inadmissible that the present proceedings are intended to influence the respondent with the aim of influencing it to take a position in the legislative process in line with the applicant's position. This misconstrues the nature of proceedings of this kind. Membership in the respondent is compulsory (§ 2 of the Nursing Care Act). This constitutes an infringement of the fundamental right under Article 2 Paragraph 1 of the Basic Law, which is justified by the legislative decision to assign legitimate public tasks to a self-governing body. If the chamber exceeds the powers constitutionally conferred upon it, it interferes without a legal basis with the general freedom of action of its compulsory members. Article 2, paragraph 1 of the Basic Law grants these individuals the right to challenge any overstepping of the chamber's authority, regardless of whether they suffer any further legal or factual disadvantage as a result (Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 26; cf. Federal Constitutional Court, Decision of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 109; Federal Administrative Court, Judgment of March 23, 2016 – 10 C 4.15 –, BVerwGE 154, 296, juris para. 13). (fmwN). The need for legal protection arises from the fact that the member is defending against an action exceeding its authority. It has a legitimate interest in distinguishing between what a compulsory member must tolerate regarding the corporation's expressions of opinion and what impermissibly infringes upon its general freedom of action (cf. Federal Administrative Court, Judgment of December 17, 1981 – 5 C 56.79 –, BVerwGE 64, 298, juris para. 14). Accordingly, it is irrelevant whether the applicant wishes to achieve a specific position.
b) The need for legal protection is not eliminated insofar as the subject of the proceedings is a statement to a ministry in a hearing procedure for the preparation of a legislative initiative.
(aa) Statements made in direct connection with the prosecution or defense of legal claims in legally regulated administrative and judicial proceedings cannot, as a rule, be countered by defamation actions (Federal Court of Justice decision of September 27, 2018 – 8 PA 89/18 –; cf. Federal Court of Justice, judgment of November 16, 2004 – VI ZR 298/03 –, NJW 2005, 279, juris para. 18; of February 27, 2018 – VI ZR 86/16 –, NJW 2018, 2489, juris para. 16 with further references). There is no need for legal protection in this regard, because otherwise the conduct of the original proceedings would be intolerably interfered with. Whether the assertions are true and relevant should be examined solely in the original proceedings, which are subject to their own rules. In the normal course of a dispute between the parties to the initial proceedings, the injured party already has sufficient legal guarantees, both procedural and substantive, to protect his or her interests in these proceedings.
These principles have been applied to petition proceedings (see Senate Decision of September 27, 2018 – 8 PA 89/18 –; see also Federal Court of Justice, Judgment of February 27, 2018 – VI ZR 86/16 –, NJW 2018, 2489, juris para. 26; but see the Federal Constitutional Court's decision of December 12, 1990 – 1 BvR 839/90 –, NJW 1991, 1475, juris paras. 20 et seq., in a case involving deliberately false factual assertions by the petitioner). They also apply to statements about third parties not involved in the proceedings. However, the statements must be closely related to the proceedings. If the third party cannot defend itself against the statement in the relevant proceedings, a balancing of the conflicting interests is required, and particular care must be taken to examine whether the third party must accept the statement (Federal Court of Justice, judgment of 10 December 2009 – I ZR 46/07 –, BGHZ 183, 309, juris para. 15; of 19 July 2012 – I ZR 105/11 –, VersR 2013, 601, juris para. 15).
(bb) It can remain open whether the principles developed by case law can also be applied to the submission of a statement in the consultation process of a ministry prior to a legislative initiative. Even if this is affirmed, the applicant has a legitimate interest in legal protection because the balancing of interests shows that her interest in enforcing her membership-based right to an injunction outweighs the interests to be protected by denying the legitimate interest in legal protection.
The protection of procedural integrity is considerably less important here than in standard court or administrative proceedings. However, there is a strong public interest in ensuring the ministry has unimpeded access to information. Withholding facts and assessments from the relevant parties could negatively impact the quality of legislation. Such an impairment is not likely, however, due to the nature of the claim being asserted. If successful, this claim does not seek, as in defamation cases, to prevent a statement altogether, but rather, as a rule, to prevent statements that fail to mention a counter-position held by a significant portion of the body's members. The fact that the content of the statement challenged by the member cannot be presented at all, even with a simultaneous, balanced presentation of the opposing viewpoint, will only be a consequence of issuing a preliminary injunction in exceptional circumstances. Moreover, due to the respondent's actions, judicial review of the statement's content is unavoidable in this case anyway. The individual also disseminated the statement made to the ministry via the internet, thereby influencing public opinion and not just that of the ministry. In this respect, the principles regarding the lack of a legitimate interest in legal protection do not apply from the outset. Should the statement prove to be outside the ministry's remit, this judicial assessment could still come to the ministry's attention even if the application, insofar as it seeks to withdraw the statement to the ministry, were deemed inadmissible.
Furthermore, the procedure under Section 31 of the Rules of Procedure (GGO) is not geared towards ascertaining a specific, decision-relevant set of facts, as is the case in court or administrative proceedings. In this respect, it also differs from the procedure before the Petitions Committee, in which an investigation of the facts can take place (cf. Article 24 of the Constitution, Section 51 Paragraph 3 of the Rules of Procedure of the State Parliament). The members of the governing bodies do not have party status in the consultation process. The fact that they can submit petitions to the Ministry in their personal capacity outside of the formal consultation process results in a significantly weaker position than party status in court proceedings. The Ministry also does not review the compliance of the consulted bodies with the limits of their competence, but rather derives an overall opinion from the statements received.
The applicant's interest would, however, carry only moderate weight if it were understood to mean that the Ministry should be made aware of the opposing viewpoint. This is because the rejection of the respondent's activities by an unusually high proportion of its members, compared to other bodies, is common knowledge and, as is evident from the drafting of the bill, known to the Ministry. Furthermore, the Ministry's presentation of the content of the statement and its publication (Parliamentary Document 18/8244, pp. 7 ff.) cannot be reversed. The claim derived from Article 2 Paragraph 1 of the Basic Law, however, serves a different purpose. It is directed against exceeding the authority of the body and establishes the limits of what is reasonable for the dissenting member to accept in the area of public statements (cf. Federal Constitutional Court, Decision of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 110). This member is only required to accept statements from the body to which it belongs within the legally prescribed framework. Given the function of the injunction to ensure reasonableness, there is an interest in its enforcement, even within the context of ministerial participation of associations, such that the interest in conducting the proceedings without external influence outweighs any other considerations. In any case, the respondent has no interest in being able to express itself in the association participation process in a manner that exceeds its powers, which will be determined below. She is in a fundamentally different situation than a private individual in legal proceedings, who, in pursuing or defending her rights, is limited from the outset only by the limits of criminal law with regard to the subject matter and one-sidedness of her arguments.
2. The application is well-founded.
a) There is a right to an injunction. The applicant can demand that the respondent withdraw the statement and refrain from its publication and dissemination.
aa) In view of the fact that the fundamental rights of the members are not mentioned in the respondent's statement of grounds of appeal, it must be stated again that the claim for an injunction is based on fundamental rights.
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 (Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 26).
(bb) The Administrative Court correctly derived the standards for the content of the statement submitted within the framework of the Ministry's consultation process for the preparation of a legislative initiative from the case law on public statements. By submitting the statement, the respondent fulfills its obligation under Section 9 Paragraph 1 No. 1 of the Nursing Care Act (PflegeKG). Given the subject of the consultation process, namely the dissolution of the respondent, the right to be heard under Article 57 Paragraph 1 of the Constitution and the fulfillment of the obligation under Section 9 Paragraph 1 No. 1 of the Nursing Care Act are two sides of the same coin. By submitting its statement on the continued existence of a professional self-governing body within the members' field of activity, the respondent is exercising a special form of professional representation. The constitutional right to be heard is not directed at any content other than the interests of the members forming the body. In particular, there is no independent interest of the body "as such" alongside the overall interest of the members who constitute the body.
(1) Section 9 paragraph 1 no. 1 of the Nursing Care Act (PflegeKG) stipulates that statements by the respondent are lawful if they concern a topic that has a comprehensible impact on the professional interests of the chamber members, and if they are objective, restrained, and made in compliance with the relevant procedural rules. The necessary objectivity may require the presentation of minority positions and a balancing of conflicting positions if the topic is particularly controversial. The purpose is to form and express the properly formed overall interest of the chamber members (for details, see Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 27 et seq.).
These requirements can be derived from Section 9 Paragraph 1 No. 1 of the Nursing Care Act (PflegeKG), even though, unlike Section 1 Paragraph 1 of the Chamber of Industry and Commerce Act (IHKG), this provision does not explicitly state that the relevant interests must be weighed and balanced, but rather makes no provision regarding the manner in which the common interests are to be represented (see also Eisenmenger, in: Kluth, Handbook of Chamber Law, 3rd ed. 2020, Section 8, marginal notes 60 et seq.). Section 9 Paragraph 1 No. 1 of the Nursing Care Act describes the task of professional representation by a public-law self-governing body. Professional representation must also take place if, although common professional interests exist, there is considerable disagreement among the members as to which position should be taken. In such a case, the legislator could only have envisioned either a balancing of interests, taking minority positions into account, or the overriding of the minority position by majority decision. The fact that the latter possibility is not the basis of the law is evident, firstly, from the fact that the legislature simultaneously mandated compulsory membership. This would be unreasonable if significant minority positions could simply be ignored in public discourse (cf. Federal Constitutional Court, Decision of 12 July 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris para. 110). Accordingly, the Senate already stated in the context of examining the constitutionality of compulsory membership in the respondent that the tasks of the professional association include, in particular, systematically, professionally and continuously pooling the interests of the professional groups represented and communicating them – in consideration of the general interest – with a claim to completeness and binding effect both internally and externally, especially in legislative procedures and other decision-making processes relevant to the professional groups represented (Senate judgment of 22 August 2019 – 8 LC 116/18 –, NdsVBl. 2020, 44, juris para. 59). The respondent is not tasked with enforcing the individual (economic) interests of its members, but rather with representing and advocating for the overall interests of the profession (see Senate judgment of August 22, 2019 – 8 LC 116/18 –, NdsVBl. 2020, 44, juris para. 62). If Section 9 Paragraph 1 No. 1 of the Nursing Care Act were to be interpreted as the appeal argues, the dissolution law introduced by the state government would no longer be necessary, because the Nursing Care Act would already be void due to a violation of Article 2 Paragraph 1 of the Basic Law. Secondly, the legislature established a public-law self-governing body. This alone creates the obligation to exercise the highest possible degree of objectivity. The necessary objectivity may require the presentation of minority positions (cf. Federal Constitutional Court, Decision of 19 December 1962 – 1 BvR 514/57 –, BVerfGE 15, 235, juris para. 23; Federal Administrative Court, Judgment of 23 June 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris paras. 32 f., 40).
Contrary to the appellant's assertion, the case law on the standards for public statements does not only apply to declarations of principle such as the one underlying the decision of the Federal Administrative Court of June 23, 2010 (- 8 C 20.09 -, BVerwGE 137, 171), but was developed independently of this generally for the external representation of interests (cf. already Federal Constitutional Court, decision of December 19, 1962 – 1 BvR 541/57 – BVerfGE 15, 235, juris para. 23).
(2) The exercise of the right to be heard pursuant to Article 57(1) of the National Constitution also constitutes professional representation within the meaning of Section 9(1)(1) of the Nursing Care Act. The guarantee of self-governance does not mean that the content of the statement made during the hearing need not comply with the standards outlined.
According to Article 57 Paragraph 1 of the Constitution, municipalities, districts and other public corporations manage their affairs under their own responsibility within the framework of the laws.
(a) Despite the apparent equation by the wording of the constitutional provision, the content of the guarantee of self-government for other public-law bodies is not identical to or derived from that of the guarantee of municipal self-government (cf. Lower Saxony State Court of Justice, Legal Opinion of 13 December 1989 – 1/89 –, StGHE 3, 84), but must be determined independently (cf. Lower Saxony State Court of Justice, Judgment of 3 June 1980 – 2/79 –, StGHE 3, 1, juris para. 59 ff., 74; Elster, in: Korte/Rebe, Constitution and Administration of the State of Lower Saxony, 2nd ed. 1986, p. 507; Ipsen, Lower Saxony Constitution, 2011, Art. 57 para. 17; contra Kluth, DÖV 2005, 368, 372; (Differentiating Waechter, in: Epping et al., Hannoverscher Kommentar zur Niedersächsischen Verfassung [Hanoverian Commentary on the Lower Saxony Constitution], 2012, Art. 57 para. 117 ff.). This follows from the regulations concerning the establishment of and membership in institutions of functional self-government and thus from a systematic interpretation of Art. 57 para. 1 of the Lower Saxony Constitution.
Municipalities are an integral part of the overall state organization from the outset; they are a part of the state, integrated into its structure and endowed with their own rights (cf. Federal Constitutional Court, Decision of November 19, 2014 – 2 BvL 2/13 –, BVerfGE 138, 1, juris para. 52). Institutions of functional self-government are not a prerequisite for the state structure. Their right to self-government only acquires its actual content through legislation. It is solely up to the legislature to determine which specific rights it wishes to grant to the corporation or institution endowed with this right under the concept of self-government (Higher Administrative Court of Lüneburg, Judgment of June 18, 1952 – IV OVG A 636/51 –, OVGE 6, 272, 281). In accordance with the necessity of local self-government as part of the state structure, the federal and state constitutions presuppose membership in municipalities as territorial corporations, just as they presuppose citizenship. No fundamental rights justification is required for acquiring citizenship (see Giegerich, in: Maunz/Dürig, GG, Art. 16 para. 1 no. 81 (Sept. 2016); Kämmerer, in: Bonner Kommentar, Art. 16 no. 61 (Dec. 2015)). In contrast, compulsory membership in institutions of functional self-government infringes upon the general freedom of action, Art. 2 para. 1 GG (see Federal Constitutional Court, decision of July 12, 2017 – 1 BvR 2222/12, 1 BvR 1106/13 –, BVerfGE 146, 164, juris no. 81). The broad discretion afforded to the legislature in the area of functional self-government, which the Senate emphasized in its judgment of August 22, 2019, concerning the respondent (- 8 LC 116/18 -, NdsVBl. 2020, 44, juris para. 58, 60, 65), is based, not least, on the influence of fundamental rights considerations. The guarantee of self-government in Article 57(1) of the Lower Saxony Constitution takes into account the advantages of functional self-government. If the legislature nevertheless decides not to establish or to dissolve a functional self-government body, it thereby safeguards the fundamental right to freedom of action of the members. For this reason alone, there is automatically a public interest justification for its decision.
Accordingly, the State Constitutional Court has recognized a right to self-government for other public-law corporations in the sense of a guarantee of self-responsibility, but not an institutional guarantee. In substantive terms, there is no specific constitutional obstacle to the dissolution of a corporation. Dissolution is only reviewable from the perspective of general constitutional abuse control. It must not be arbitrary or manifestly indefensible. The choice made must not be objectively unsuitable for its purpose, obviously flawed, and clearly refutable (see Lower Saxony State Constitutional Court, Judgment of June 3, 1980 – 2/79 –, StGHE 3, 1, juris para. 59 et seq.; see Waechter, in: Epping et al., Hannoverscher Kommentar zur Niedersächsischen Verfassung [Hanoverian Commentary on the Lower Saxony Constitution], 2012, Art. 57 para. 117).
(b) From a formal perspective, the legislature is prevented from deciding on the dissolution without hearing the body. The opportunity to comment on the proposal is not only in accordance with the principles of the rule of law (see also Lower Saxony State Court of Justice, Judgment of 3 June 1980 – 2/79 –, StGHE 3, 1, juris para. 45). It is also suitable for conveying to the legislature the actual value that the groups thus far called upon to govern common affairs actually attach to their opportunity for participation. If the constitutional assumption that self-governance provides significant benefits has been borne out in the specific area, this will be brought to the legislature's attention through the hearing, thus counteracting the risk of misjudging the democratic and fundamental rights value of the self-governing body in question. The procedural safeguards ensuring that these aspects are given due consideration realize the constitutional principle that the greatest possible degree of self-government is fundamentally to be viewed positively (cf. MR Dr. Danckwerts, Consultations on a Provisional Lower Saxon Constitution, Constitutional Committee, 23.11.1950, p. 278).
(c) The right to be heard, derived from Article 57(1) of the National Constitution, is not aimed at presenting an interest of the body “as such” that deviates from the overall interest of the membership, or at the self-interest of the officers belonging to the chamber bodies. The Court does not share the appellant's assumption that it would be permissible or even possible for the body to act not as a representative and advocate of its members, but as a representative of “itself”.
Article 57, paragraph 1 of the Constitution provides no basis for such an assumption. While the Constitution does contain a guarantee of self-government based on the democratic and fundamental rights-protecting advantages generally associated with self-government, it does not stipulate that the advantages must outweigh the disadvantages in every area of self-government created by the legislature. This assessment is left to the discretion of the legislature. Therefore, the purpose of the hearing is not solely to highlight aspects that speak in favor of maintaining a corporation. Rather, the corporation can present its specific interest in the continued existence of self-government, which may be high or low in any given case. The legislature must be made aware of the actual significance of self-government for the members appointed to it. The fact that the hearing cannot concern the significance of the corporation's continued existence "as such" follows from the function of self-government as a collective mode of participation for private individuals whose common affairs are to be regulated, and not as an institution that stands in opposition to this group as an independent organization.
That the content of the hearing cannot consist solely of statements affirming the preservation of the status quo is also demonstrated by a comparison with the guarantee of municipal self-government. While municipalities will in many cases oppose changes in this area, it can be equally relevant that the current municipal structure contradicts the actual local ties. Consequently, deficits in acceptance can be addressed in the hearing (cf. Lower Saxony State Court of Justice, legal opinion of December 13, 1989 – 1/89 –, StGHE 3, 84, juris para. 58).
If the constitution does not provide for a hearing on an interest other than the overall interest of the members, then this is even less evident from the respondent's statutory legal basis. From the perspective of the Nursing Chamber Act, any statement regarding the continued existence of the respondent constitutes the representation of the common professional interests of the chamber members within the meaning of Section 9 Paragraph 1 No. 1 of the Nursing Chamber Act. The requirements for establishing the overall interest outlined above apply in this context. The Nursing Chamber Act does not recognize an interest of the body "as such" that differs from the overall interest established in the regulated procedure, taking into account the constitutionally grounded substantive standards. It follows that a statement regarding the continued existence of the respondent that does not address the overall interest in this sense would violate Article 2 Paragraph 1 of the Basic Law. This is not legitimized by Article 57 Paragraph 1 of the Constitution. Therefore, contrary to the appellant's argument, it is not the courts but the fundamental right that limits the respondent's actions with regard to its dissolution.
(d) The complaint is also unfounded because the involvement of associations by the Ministry prior to a legislative initiative does not constitute the hearing required by Article 57(1) of the Constitution. Within the framework of the guarantee of local self-government, the State Constitutional Court considers the hearing a duty to be fulfilled by the legislature, and by this it clearly means the procedure before the State Parliament. Hearings held before the introduction of a draft bill are not in themselves those required by Article 57(1) of the Constitution, but only acquire this significance if the legislature specifically invokes them. According to the State Constitutional Court's jurisprudence, it is within the legislature's discretion how it conducts the hearing of those affected. It is not constitutionally bound to any specific formalities. The legislature can conduct the hearing itself, either in writing or orally, refer to the hearing held by the government on these measures prior to the introduction of the dissolution law, or commission the government to conduct a further hearing and have the results presented to it (see Lower Saxony State Court of Justice, Judgment of February 14, 1979 – 2/77 –, StGHE 2, 1, juris para. 599). There is no reason to extend the right to be heard, which derives from the guarantee of functional self-government, into the preliminary stages of the legislative process.
In the legislative process concerning the dissolution of the respondent, the state parliament does not resort to the participation of associations by the ministry, but conducts its own hearing (Committee minutes Committee on Social Affairs, Health and Equality 18/103 (public) 14.01.2021, p. 31).
cc) The contested statement does not meet the requirements for statements by the respondent.
The continued existence of the respondent is, as the Senate has already established, a particularly contentious issue among its members (see Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 42). The unanimity of the Chamber Assembly does not alter this. Whether a highly contentious issue exists in this sense is a question of fact. It may be necessary to establish the facts regarding the existence of minority positions if this is not – as in this case – obvious (see Federal Administrative Court, Judgment of October 14, 2020 – 8 C 23.19 –, juris para. 28) or established, for example, based on voting results in the corporation's bodies. Conversely, however, it is not necessary to involve the Chamber Assembly to determine whether a highly contentious issue exists. While it is true that the controversial nature of a topic can also arise from the voting result in the Chamber Assembly if the assembly has addressed the matter, the converse conclusion that this alone can determine whether a Chamber Assembly meeting is necessary does not hold true (cf. Senate decision of 4 February 2021 – 8 ME 119/20 –).
The opposing viewpoint should have been presented in the statement of November 25, 2020. The appeal does not dispute that this did not occur. This deficiency renders the entire content of the challenged statement inadmissible, as the omission of the opposing viewpoint in all its parts fails to represent the overall interest, instead unilaterally presenting only those aspects deemed necessary for its continued existence.
Furthermore, the procedural defect identified by the Administrative Court exists because the statement could not be based, at least in its basic principles, on a position previously adopted by the Chamber Assembly. The appeal fails to substantiate its claim that such a determination existed at the time the statement was submitted.
Formulating such a basic position does not constitute ongoing business management within the meaning of Section 15 Sentence 1 No. 6 of the Nursing Care Act (PflegeKG), even if the subsequent drafting of the statement and the answering of individual questions are part of it (cf. Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 34). However, the appellant's claim that the Ministry sought a legal position on the specific questions arising in connection with the submitted draft has not been substantiated; the letter from the Ministry dated November 3, 2020, submitted by the appellant, contradicts this assertion. Even a narrow timeframe for issuing a statement does not make the formation of a position expressing the overall interest in a particularly controversial issue part of day-to-day business (see also Senate decision of 22 October 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 35).
The appeal argues that the Chamber Assembly is unable to properly consider the opposing viewpoint due to a lack of sufficient knowledge of it. This argument, however, does not negate the procedural error (see Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 45). The Chamber Assembly is certainly capable of presenting the opposing viewpoint as such. It is also unclear why an analysis of the numerous media reports on protests against the establishment and continued operation of the respondent should not enable it to at least outline the arguments presented in this regard. If this is not feasible, the respondent retains the option of explaining in its statement why it is unable to provide a balanced presentation that goes beyond the mere existence of the opposing viewpoint. In the present context, this explanation would also have informational value regarding the respondent's fulfillment of the function originally intended by the legislature.
Subsequent approval by the Chamber Assembly is insufficient. The overall 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 (Senate Decision of October 22, 2020 – 8 ME 99/20 –, GewArch. 2021, 28, juris para. 36; regarding Chambers of Industry and Commerce, Federal Administrative Court, Judgment of June 23, 2010 – 8 C 20.09 –, BVerwGE 137, 171, juris para. 50). Since the issue at hand is preventing an overstepping of authority and not solely the content of the statement, subsequent approval does not render the demand for retraction and an injunction contrary to good faith. The issue here concerns the respondent's actions, which were flawed by a procedural error and therefore exceeded its competence. This is not equivalent to a new, error-free decision. There is also no basis for applying remedial provisions by analogy, as it is not established that a statement issued without procedural error would be substantively identical. While the Chamber Assembly did grant retroactive approval on December 8, 2020, the legislative process has since been initiated, and a hearing is currently underway (Committee Minutes, Committee on Social Affairs, Health and Equality 18/103 (public), January 14, 2021, p. 31). There is at least the possibility that the Chamber Assembly will be willing to present the opposing view, and therefore the statement at issue here would no longer be issued unchanged.
dd) The claim based on Article 2 Paragraph 1 of the Basic Law is directed at the retraction of the statement submitted to the Ministry and the cessation of its further dissemination. Contrary to the appellant's argument, this does not infringe the right to be heard under Article 57 Paragraph 1 of the Constitution. Apart from the fact that this right is not yet affected by the Ministry's participation of associations (see bb) (2)(b)), the respondent is not prevented from submitting a subsequent statement that meets the legal standards.
b) The grounds for appeal are unfounded. Whether the applicant could submit a statement in the legislative process itself is irrelevant, because its claim is directed at preventing actions that exceed the respondent's statutory duties. The respondent is not prevented from expressing its views in the public consultation process. It is not barred from submitting a lawful statement to the Ministry. While this would no longer be timely, the resulting disadvantage is less than the disadvantage that would arise from the Ministry only having a statement that the respondent would not have been entitled to submit had the interim injunction not been issued.
The decision on costs is based on Section 154 Paragraph 2 of the Administrative Court Procedure Act (VwGO).
The determination of the value in dispute is based on Section 47 Paragraph 1, Section 53 Paragraph 2 No. 1, Section 52 Paragraph 2 GKG.
This decision is final and cannot be appealed (§ 152 para. 1 VwGO, § 68 para. 1 sentence 5, § 66 para. 3 sentence 3 GKG).
