- Reason and Aim
During the recent days, an increasing number of people have been attacked by dangerous dogs (attack dogs). Persons already had to lose their lives. This can no longer be tolerated. Life and health of people cannot not be endangered by dangerous animals or the irresponsible actions of certain dog owners. Restrictive measures for the protection of the people are necessary.
The defense against dangers caused by dangerous dogs is predominantly responsibility of the individual states. Within the frame of their legislative competence for public safety and order they have passed the corresponding regulations. The permanent conference of the Interior Ministers and senators of the states has therefore agreed in its resolutions taken on 5 May and 28 June 2000 on a number of measures to be implemented by the individual states by way of laws or ordinances. The states have already introduced the respective regulations or are in the process of preparing them.
The Federation may effectively supplement these State Regulations by making use of its competences. The underlying draft law contains the following measures:
- The import of dangerous dogs to Germany will be forbidden or may be subject to a permission
- The possibilities for the passing of a breeding ban for dangerous dogs will be enlarged
- Violations of certain State prohibitions shall be punishable before law
Moreover, the Federal Government has taken the initiative to pursue a general ban of dangerous dogs on EU level. The Interior Minister has asked his French colleague to deal with the subject EU-wide ban on import and breeding of fighting dogs" during its next meeting of Ministers of the Interior and Justice of the EU member countries.
- Import to Germany
In order to prevent that state regulations are shipped around by importing dangerous dogs from other countries to Germany as well as to facilitate the execution of the state regulations, it is necessary to provide a Federal Law, based on the competence of Article 73 No. 5 of the Basic Law, on the import to Germany.
- Animal Protection Law
The animal protection law in its version as published on 25 May 1998 already contains regulations for the restriction of increased aggression in dogs- According to § 3 No. 8a it is forbidden to train dogs with the aim of increased aggression. § 11b para. 2 of the Animal Protection Law forbids the breeding of aggressive animals. In order to apply these prohibitions efficiently, particularly the breeding ban, the animal protection law shall be amended in a few points. Here, taking into consideration the preservance of legal equality, the competing legislative competence of the Federal Government in accordance with Art. 74 para. 1 No. 20 together with Art. 72 para. 2 Basic Law.
- Criminal Code
For reasons of protection of the lives of people that states, within the scope of legislative competence, have passed regulations for the right of public safety and order, which ban or restrict the breeding and owning of certain dangerous dogs or the trading with such or such regulations are in the process of being passed in due time. The aim of the new § 143 Criminal Code is mainly to impose penalties on the violation of state bans on breeding and owning.
The Federal Government has the competence to do this. According to Article 74 para. 1 No. 1 of the German Constitution the Federal legislator, if he deems an action to be punishable, may name facts to constitute an offence, without being bound by the borderlines usually drawn by the catalogs of competence. He may also make punishable violations of State law, either by sanctioning already existing state prohibitions or by creating so-called blank penal provisions (Erbs/Kohlhaas, supplementary penal provisions, Register, Status December 1998, Rn. 112).
A penal sanctioning of certain state laws and prohibitions for the prevention of dangers through dangerous dogs shall serve to give the state laws the emphasis necessary in view of the dangers created by such animals for the people. The States have until now not made use of the competence given to them according to Article 3, 4 para. 2 Introductory Law of the Criminal Code (EGStGB) to set up punishable facts within certain limits, so that the necessity of a Federal regulation can be confirmed. Protective purpose of this new regulation is health and life of people.
- § 1Para. 1 principally contains an absolute ban on the import of the dangerous dogs named therein - whether pure- or crossbred - to Germany. The ban of these three breeds was decided by the Ministers of the Interior of the Federal State and the different states during its conference on June 28, 2000. The term import includes any cross border action, regardless of whether a border to a member country of the EU or to a third country (including the countries taking part in the agreement on the European Economic Area) is concerned. The actual action counts. Such regulations is intended, as the animals concerned according to the existing state regulations are subject to an absolute breeding and import ban, which makes the import of the animals into Germany practically useless and is therefore under the aspect of legal uniformity of the regulations not justified.
Somewhat different is the situation under Article 2. For any other dogs subject to the state bans or restrictions, on the one hand, the breeding, owning or trading may be permitted on an individual basis, on the other hand the states do not have uniform lists of dogs concerned. Such circumstances may only be taken into consideration on a federal basis by making the import of the animals concerned subject to a permission. The authorities responsible for the execution of such regulation thus are in the position to take into consideration the particular legislation in their state. Additionally it would be disproportionate to completely ban the import, as long as the primary regulations on the prevention of dangers of the individual states differentiate regarding the bans and restrictions. Applicant law shall be the laws in the state in which the dog is to be kept permanently. From this derives also the responsibility of the State Authorities. Moreover, in case the import shall be effected through the are of another state, it has to be ensured that the state laws of that state are observed. A permission to import a dog may therefore only be granted with the consent of the relevant authorities of the state affected by the transport. The necessary safety measures shall be met by additional obligations (such as transport in a closed and sealed box).
While regarding the breeding and trading the duty to obtain a permission is already necessary if such actions are only subject to restrictions, regarding the ownership the duty to obtain a permission is necessary only if such ownership is generally forbidden, but may be subject to an individual permission. Such differentiation is necessary to take into consideration that restrictions of ownership such as compulsory leash and muzzle, or keeping of the dog in a kennel, do not change anything about the principal right to own such dogs. This prevents that already local regulations (city statutes) concerning compulsory leashes render every dog subject to the duty to obtain a permission for the import.
To safeguard that the regulations of the states on the restrictions of breeding, owning or trading as well as further restrictions on an individual basis (such as restrictions for breeding) may also be immediately observed and supervised regarding dogs imported to Germany, the permission to import may be subjected to additional restrictions. Such a restriction may particularly be to unmistakeably mark the animals immediately after their import or already before such import.
The import permission shall be granted if the applicant can prove a justifiable interest. This will always be the case if the applicant is permitted to breed, own or trade the animal - based on the regulations in the respective state - and if it is not possible to obtain such animals in Germany or if such is not sensible for the purpose of the applicant, e.g. from a breeder's viewpoint. In this way the restriction of the freedom of trade intended through the necessary permission is not made tighter than necessary for the safeguarding of state regulations, but in this way the freedom of science, protected by Article 5 para. 3 of the German Constitution, is also taken into consideration.
The regulations of paras. 1 and 2 are in line with Article 30 of the EU agreement. Such provision allows restrictions of import, if they are justified for reasons of public order and safety for the protection of health and the lives of people.
Para 3 in the case of sentence 1 No. 1 shall ensure that import may only be possible through such border control locations, which were already built by the states for the execution of veterinary provisions on the import of animals and animal products, that have the necessary equipment for the supervision. Sentence 1 No. 2 makes it possible to regulate details of the supervision of the import, this is particularly necessary to determine the identity as well as to meet the necessary conditions for the rejection of dogs not permitted to be imported. Requirements of the animal protection shall also be observed. Sentence 1 No. 3 shall ensure that exceptions may be granted from the prohibitions of paras 1 or 2, which may be necessary based on international obligations or for practical reasons. This is intended particularly for the transit, the tourism or for dogs accompanying persons with diplomatic status or for working dogs of authorities. The necessary provisions for the two latter cases shall be met by ordinances. Sentence 2 enables the transfer of authorization to the state governments, in order to take account of the regional requirements.
Para 4 shall authorize the state governments to pass the provisions necessary for the implementation of the permission procedure. Sentence 2 shall allow the state governments, to transfer such authorization to another authority, in order to pass quick regulations on state level.
Para 5 obligates the holder of a permission to preserve the permission documents, in order to be able to monitor the regulations.
- § 2
§ 2 shall ensure that the persons/authorities hired for the execution of the monitoring are equipped with the necessary rights, particularly the right of entrance and inspection, the right to take samples, to inspect documents, to examine and to receive information. Such rights are faced with according rights and obligations of the persons subject to this law. Moreover a right to withold information is intended, in order to exclude self incrimination or the incrimination of close family members; the right to refuse to give evidence in case of a criminal proceedings or a proceedings based on the law of administrative offences shall remain unaffected.
- § 3
§ 3 ensures that in case of an import (from another country than a member country of the EU) the customs authority receives the rights necessary for the cooperation with the supervision of the obervance of the provisions of this law, which is principally the task of the States. This shall enable a smooth cooperation between the relevant Federal and State authorities.
- § 4
To secure the bans and restrictions of the import regulated in § 1 it is necessary to be able to prosecute violations against the provisions mentioned, as the actions are linked with abstract dangers. The degree of punsihment differs with the degree of possible danger.
- § 5
In order to secure the administrative provisions contained in this law, violations shall be punishable as administrative offences.
- § 6
This provision contains the usual supplementary penal provisions.
To Article 2 (Amendment of the Animal Protection Law)
No. 1 letter a
The new wording takes account of the fact that genetic increases of aggression may also be relevant for the Animal Protection Law, if they do not directly lead to pain for the animal concerned. This is the case particularly, if this animal is dangerous towards other animals or if animal protection measures may be necessary against the animal itself.
Nr. 1 letter b
By introduction of an authorization for the passing of independent prohibitions, the legislator shall be given the possibility to pass regulations, going further than on the details of the legal prohibitions of paras. 1 and 2, which shall serve the prevention of violations of these bans.
The provision shall serve for the clarification that the decision on an ownership ban is up to the legislator and that far-reaching regulations may be passed regarding the import and owning of animals held and treated against animal protection provisions.
Nos. 3 and 4
Violations against a breeding ban, which is based on a regulation shall be punishable as administrative offences similar to the violations against the legal ban. Also with regard to the side effect of the confiscation of the animals to which the administrative offences relate, the newly introduced administrative offence shall be treated equivalent to § 18 para. 1 No. 22. Furthermore, also animals that were imported or are kept in violation of a regulation according to § 12 para. 2 No. 4 or 5 shall be permitted to be confiscated, in order to enable an effective execution.
Through the regulation on the protection of animals in connection with the slaughtering or killing (Animal Protection Slaughtering Provision - TierSchlV of 3 March 1997, BGBl. I S. 405), which was changed by the First Regulation for the Amendment of the Animal Protection Slaughtering Provision on 25 November 1999 (BGBl. I S. 2392), § 21 b is void and is hereby replaced.
The authorization for the passing of expedited regulations shall enable the Federal Government to prevent dangers for the life and wellbeing of animals or to implement urgent laws of the European Union.
To Article 3 (Change of the Criminal Code)
To Article 3 No. 1
This constitutes an editorial follow-up change for the insertion of a new penal provision (§ 143).
To Article 3 No. 2 (§ 143)
Para 1 renders the violation against state bans of breeding and trading with certain (according to their type) dangerous dogs punishable. This concerns dogs for which based on breed specific or lineage specific traits it has to be assumed that they have greater aggression towards humans or animals. Which breeds or crosses are meant, will be determined by the respective state regulation. A violation against other state bans of breeding and trading, which do no serve the purpose of prevention of dangers for health and life of people, shall not be punishable. Also not punishable according to this regulation are violations of breeding and trading bans for reasons of animal protection. These neither concern state regulations not do they serve the protection of humans from dangerous dogs.
Breeding shall be understood as the aimed pairing of animals. Next to the pure-bred breeding this shall also mean crossbreeding.
The punishment shall be a prison sentence of up to two years or a fine. This corresponds to the punishment mentioned in § 4 of the dog import restriction law for the import of a dangerous dog to Germany without permission.
According to para. 2 in case of violations against para 1 the animals concerned may be confiscated.
To Article 4 (Change of the Dog import restriction Law)
To safeguard that from 1 January 2002 the determination of the scope of the fine in § 5 para. 2 of the dog import restriction law is mentioned in Euro, already now the necessary change of the law shall be decided. The law on administrative offences shall be amended accordingly on occasion of a different legislative action.
To Article 5 (Coming into Effect)
The law shall be effective immediately. Only the converison of the provision on fines of the dog import restriction law may only be implemented as of 1 January 2002.