The 2nd Chamber of the Administrative Court of Karlsruhe has granted the emergency application of a restaurant operator in Pforzheim who wants to prevent the city of Pforzheim from providing information on the city's internet pages about hygiene deficiencies in operational hygiene/cleaning deficiencies found during an inspection, stating the name and address of the restaurant and its operator.
In its intention to inform the public in this way about the hygiene violations detected by the municipal food monitoring authority in the applicant's business, the city relied on a provision that only came into force on 1 September 2012 (Section 40 (1a) of the Food and Feed Code). According to this provision, the authority informs the public, stating the name of the foodstuff as well as the name of the food business under whose name or company the foodstuff has been produced or treated or has entered the market, if there is a suspicion, sufficiently substantiated by facts, that regulations within the scope of this law, which (among other things) serve to comply with hygienic requirements, have been violated to a not only insignificant extent or repeatedly and the imposition of a fine of at least € 350 is to be expected.
In the opinion of the Administrative Court, there were indications that the restaurant had committed violations within the meaning of this provision. However, according to the Administrative Court, there were considerable doubts as to whether Section 40 (1a) of the Food and Feed Code also authorised and obliged the authorities to inform the public about deficiencies in the hygiene of a restaurant. The wording of the law suggests that the authority is only authorised to issue a so-called product warning, i.e. to inform the public about a specific foodstuff that has been produced, treated or marketed in violation of food law regulations. It was also not apparent from the official explanatory memorandum to the Act that the provision went beyond its wording to establish an obligation on the part of the authorities to inform the public in general about hygienic deficiencies in establishments that processed and/or marketed food.
In view of the considerable doubts about the legality of the planned publication, the interest of the pub operator to be spared from it for the time being outweighed this. This was all the more true as in the meantime compliance with the hygiene regulations had been ensured in this restaurant and publication was therefore not indispensable for the protection of consumers.
The decision of the Administrative Court of Karlsruhe of 07.11.2012, file number 2 K 2430/12, is not legally binding (as of 23.11.2012). The City of Pforzheim may appeal against it to the Administrative Court of Baden-Württemberg in Mannheim within two weeks of service.
Source: Press release of the VG Karlsruhe of 13.11.2012
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
