Prof. Dr. Gülsün Aygörmez
According to the German Federal Constitutional Court (BVerfG) and the prevailing legal scholarship, the legislative technique of blanket criminal provisions is not inherently unconstitutional. It may comply with constitutional requirements provided that strict conditions are satisfied.
Blanket criminal provisions must meet the requirement of legal certainty arising from Article 103(2) of the German Basic Law. A criminal penalty may be imposed only on the basis of a formal statute. The conditions of criminal liability and the nature of the penalty must be foreseeable for citizens from the statute itself, rather than becoming ascertainable only from a regulation adopted on its basis. Under Article 104(1) sentence 1 of the Basic Law, the legislature must itself determine with sufficient clarity what conduct is punishable and must specify the nature and extent of imprisonment in a formal statute.
Where a blanket criminal statute is supplemented by a statutory regulation, a mere reference to that regulation is insufficient. The conditions of criminal liability and the nature and extent of the penalty must be described with sufficient clarity either in the blanket criminal statute itself or in another statutory provision to which it refers. Only certain specifications of the offence may be delegated to the regulatory authority.
The Federal Constitutional Court and § 327(2) no. 1 StGB
The Federal Constitutional Court addressed this issue in its decision of 6 May 1987 (2 BvL 11/85) concerning the constitutionality of § 327(2) no. 1 of the German Criminal Code. The underlying proceedings concerned the operation of an installation requiring authorisation under federal emissions-control law without the required permit. The referring court regarded the provision as an unconstitutional blanket criminal norm. The Federal Constitutional Court rejected that view.
The Court held that § 327(2) no. 1 StGB satisfies the constitutional requirement of legal certainty under Articles 103(2) and 104 of the Basic Law, complies with the principle of separation of powers under Article 20(2), and does not violate the principle of equality under Article 3(1).
Article 103(2) of the Basic Law requires the legislature to define the prerequisites of criminal liability with sufficient precision for the scope and application of the offence to be identifiable through interpretation. This requirement serves two purposes. First, it protects the individual under the rule of law by enabling everyone to foresee which conduct is prohibited and punishable. Secondly, it ensures that the legislature itself makes the abstract and general decision as to criminal liability rather than leaving the normative prerequisites of punishment to the executive or judiciary.
The requirement of certainty does not prevent the legislature from using concepts that require judicial interpretation. Criminal legislation must necessarily address a wide variety of factual circumstances, and borderline cases may create uncertainty as to whether particular conduct falls within an offence. Nevertheless, the wording of the statutory offence that is understandable to its addressees must remain the primary point of reference.
Where a blanket criminal provision is supplemented by another formal statute, the criminal provision may refer to that supplementary statute. If, however, the supplementary rules are contained in subordinate legislation, the statute must itself define the essential conditions of criminal liability and the applicable penalty with sufficient clarity. Delegated legislation may provide technical specifications, particularly where changing and diverse detailed rules are required.
The Court found that § 327(2) no. 1 StGB meets these standards. Although the criminal provision does not itself determine which installations require authorisation, it expressly refers to the Federal Immission Control Act (BImSchG), which has the same legislative rank as the Criminal Code. The constitutional requirement that fundamental criminal-law rules be enacted by formal legislation is therefore respected.
The Court further emphasised that detailed technical questions may appropriately be specified by regulation. Incorporating every technical detail into the Federal Immission Control Act would make the statute excessively rigid and casuistic and would impede adaptation to rapid scientific and technological developments. Operators of technical installations may also reasonably be expected to inform themselves about the regulatory requirements governing their activities.
Conclusion
The use of blanket criminal provisions is therefore constitutionally permissible in German criminal law, but only within clearly defined limits. The legislature must retain responsibility for the essential elements of criminal liability and the penalty. Administrative or regulatory provisions may specify technical details, but they may not independently determine the fundamental scope of criminal punishment.
References
[1] BVerfG, NJW 1987, 3175 ff.
[2] Hohmann, ZIS 2007, 38 (43); NomosK-Ransiek, Vor. § 324 Rn. 18; Otto, JURA 1991, 308 (310); Kloepfer/Vierhaus, Umweltstrafrecht, p. 29; Kühl, FS-Lackner, 815 (823, 832); Maunz/Dürig-GG-Schmid-Aßman, Art. 103 II Rn. 201; LK-StGB-Steindorf, Vor § 324 Rn. 24 ff.; Breuer, DÖV 1987, 169 (180).
[3] Maunz/Dürig-GG-Schmid-Aßman, Art. 103 II Rn. 201; BVerfG, NJW 1987, 3175 ff.