Basic information

1.1. DEVELOPMENT OF

‘O R D N U N G SW ID R IG K EITEN ’ LAW

Ordnungswidrigkeiten law has deep historical roots. As early as the 16th century, certain offences were not proscribed by the criminal codes of that time (e.g. Constitutio Criminalis Carolina o f 1532) but by police codes of imperial, territorial or local application. The Imperial Police Codes of the 16th century contained mainly offences against communal and social inter­ ests, in particular breaches o f trade and business regulations and o f public m orals.5 Territorial police codes of the 17th and 18 th centuries reflected the comprehensive regulatory interest of the absolutist monarchy which sought to control and regulate most aspects o f civil life, using criminal codes and police codes as complementary instruments to this effect.6 The former police codes already shared the basic idea with modern Ordnungswidrigkeiten law. They pro­ vided for relatively mild penalties (fines, short-term detention, corporal punishment) to be imposed by administrative agencies, typically by the head o f the local administration. In the 19th century, this concept was criticized as a violation of the separation of powers doctrine: the imposition of punishment was now regarded as a task of the independent courts, not of the local police. Moreover, when it became neces­ sary to draft a new criminal code for Prussia, and later for the German empire, it turned out to be impossible to determine a conceptually clear dividing line between ‘genuine’ criminal offences and mere police offences.7 These problems led to the decision to abandon the idea of drafting a police code for the new German empire. Many of the police offences were incorporated in the new Criminal Code (of 1871) and formed a special category of ‘ minor offences ’ (‘ Uber- tretungen’). M inor offences were to be punished by fines or imprisonment of six weeks or less.

With respect to procedure, the Imperial Code of Criminal Procedure left intact State regulations grant­ ing the police the authority to punish summarily minor offences by fine or detention o f up to 14 days. However, the affected citizen had the right to bring an

appeal to the criminal court (sec. 453 et seq. StPO

1877).8

The Imperial Criminal Code of 1871 was meant to be a complete register of all criminal offences, from

5 See M attes, H. Untersuchungen zur Lehre von den Ordnungswidrig­

keiten, Vol. I, 1977, pp. 50-57.

6 See M attes, H ., op. cit., pp. 60-92; Schmelzeisen, G. K ., 'Poli-

zeiordnungen’, in Handworterbuch der deutschen Rechtsgeschichte,

Vol. I ll, 1984, col. 1803; Drews, B., W acke, G;, Vogel, K. and M artens, W ., Gefahrenabwehr, 9th ed., 1986, pp; 2-6.

7 See E n tw u rf eines Strafgesetzbuches fu r den Norddeutschen Bund

nebst M otiven und Antagen, 1870, p. 87.

8 F o r details, see Bohnert, J., in Boujong, K . (ed.), Karlsruher Kommentar zum Gesetz iiber Ordnungswidrigkeiten, 1989 (hereinafter cited: K K ), ‘E inleitung’ notes 6-10.

murder down to such mundane matters as feeding another person’s animals against the will of the owner (§370 No 6 StGB 1871). But it took only a few decades to realize that the ideal of completeness could not be maintained. With the expansion of State intervention into economic matters and the need to regulate road traffic, it became necessary to provide penalties for breaches of the new regulations concern­ ing these matters outside the criminal code. At about the same time, theorists argued in favour of having a separate body of law dealing exclusively with instances o f mere disobedience to State regulations, as opposed to criminal offences violating individual legal interests.9

The theoretical distinction suggested by these authors did not at first persuade the German legislature. During the first half of the 20th century, a host of new criminal, ‘ regulatory ’ offences were created, mostly in special statutes rather than in the Criminal Code; but these new offences did not differ in kind from the more traditional crimes. A parking offence, though punished less severely, was thus regarded as ‘ criminal ’ in the same way as a robbery. It was quite evident that the expansion of economic and traffic regulations led to an undesirable inflation of criminal law. In 1949, a statute on economic offences introduced, for the first time, the concept of administrative offences (Ordnungswidrigkeiten).10 These offences, which were regarded as ethically neutral, did not carry sentences of imprisonment but could only be sanc­ tioned by administrative fines (‘ GeldbuBe ’). Since the opprobrium of criminal punishment was lacking, the separation of powers doctrine did not stand in the way of granting administrative authorities the power to impose such fines; the defendant retained the right, however, to appeal to the criminal court of first instance.

This new concept appeared to be a practical solution to the mass phenomenon of administrative offences even in areas other than economic regulation. In 1952, the legislature passed the first general statute on Ordnungswidrigkeiten,11 which contained a rudimen­ tary general part as well as rules on administrative and court procedure in Ordnungswidrigkeiten m at­ ters. The first years of applying the new law suggested some simplifications of procedure; besides, the general part needed adaptation to a reformulation of the general part of the Criminal Code achieved in the 1960s. Therefore, in 1968, a new statute on Ordnung­ swidrigkeiten was passed12 which retained the general

9 The m ost influential statem ent was by Goldschm idt, J. Das

Verwaltungsstrafreeht, 1902; see also W olf, E. ‘Die Stellung der Verwaltungsdelikte im Strafreehtssystem Festgabe fu r R. v. Frank, Vol. II, 1930, p. 516.

10 See § 6 ‘ Gesetz zur Vereinfachung des W irtschaftsstrafrechts ’ (Gesetzblatt der Verwaltung des Vereinigten Wirtschaftsgebiets 1949, p. 193).

11 See note 1, supra. 12 See note 2, supra.

structure of the 1952 codification but adapted it to the new circumstances. Finally, in 1975, the category of criminal minor offences was abolished; many of them were transformed into Ordnungswidrigkeiten.

1.2. STRUCTURE OF THE

‘ ORDN UN GSW IDRIGK EITENG ESETZ ’

The Ordnungswidrigkeitengesetz o f 1986 contains general provisions applicable to all Ordnungswidrig­ keiten. While §§111-130 OWiG describe the elements of a number of Ordnungswidrigkeiten, the great majority of administrative offences are scattered over a vast number of federal, State and local statutes and ordinances13 dealing with all kinds o f subjects. Prose­ cution and punishment of all these administrative offences must follow the rules laid down in the Ordnungswidrigkeitengesetz (§ 2 OWiG).

The Ordnungswidrigkeitengesetz begins with a general part; § 1 attempts to give a general definition of Ordnungswidrigkeiten, and § 3 states the principle of legality. The following sections (§§ 4-7) deal with temporal and jurisdictional prerequisites o f applying Ordnungswidrigkeiten law; §§8-16 OWiG replicate, with minor semantic differences, the general rules of

the Criminal Code with respect to, inter alia, acts and

omissions, intention and negligence, mistakes,

attempts, self-defence and the defence o f necessity. One major deviation from the law of criminal com­ plicity is reflected in § 14 OWiG: Ordnungswidrig­ keiten law makes no distinction between perpetrators and accessories.

The following chapter of the OWiG (§§ 17-30) deals with penalties. The main sanction of Ordnungswidrig­ keiten law is the administrative fine (‘GeldbuBe’), which is augmented by other economic penalties, e.g. forfeiture and confiscation, designed to deprive the offender of illicit gains.

Procedure in Ordnungswidrigkeiten matters is the subject of the second part of the statue; §§ 35-66 13 T he G erm an federal legislature (‘B u n d ’) is com petent to legislate in O rdnungswidrigkeiten m atters which are subsumed under ‘crimi­ nal m atte rs’ m entioned in Article 74, N o 1, ‘G rundgesetz’. The Ordnungswidrigkeitengesetz is therefore a federal statute. Y et States and comm unities have the right to create O rdnungswidrigkeiten in those areas which are generally left to their legislative competence.

OWiG deal with administrative proceedings, whereas §§ 67-88 OW IG describe rules for court proceedings (jurisdiction of the court requires an appeal — ‘Ein- spruch’ — o f the defendant against the imposition of an administrative penalty). The last chapters of this part concern matters of execution of decisions as well as costs.

Finally, §§111-130 OWiG describe the elements of some particular Ordnungswidrigkeiten — many of which had formerly been part o f the Criminal Code.

1.3. M AIN AREAS OF APPLICATION

The area of application of Ordnungswidrigkeiten law is co-extensive with the area of administrative activity, which means that it is practically ubiquitous. The great majority o f administrative fines are imposed in road traffic matters: § 49 ‘ StraBenverkehrsordnung ’ (Road Traffic Regulation)14 contains a list of 50 Ord­ nungswidrigkeiten which cover just about every con­ ceivable breach of road traffic law, some of which are committed several thousand times a day. Another large area of application are ‘police offences’, i.e. breaches o f rules aiming at the maintenance of public order and security. Some of these Ordnungswidrig­ keiten are contained in the Ordnungswidrigkeitenge­ setz, e.g. making excessive noise (§117 OWiG), illicit prostitution (§ 120 OWiG), and keeping malicious animals (§121 OWiG); many others are listed in State statutes (e.g. Baden-Wurttemberg State Statute on Ordnungswidrigkeiten)15 and city ordinances. Finally, Ordnungswidrigkeiten abound in the field of eco­ nomic and environmental regulation, ranging from maintaining a campsite without the required number of toilet facilities16 to participating in an antitrust conspiracy.17 There is hardly a statute or ordinance in economic, business or environmental matters which does not list, usually in a separate paragraph at the end of the statute, prohibited activities and omissions, declaring them to be Ordnungswidrigkeiten.

14 ‘StraB enverkehrsordnung’ (hereinafter cited: StVO) o f 16 N ov­ ember 1970 (BGB1 I 1565).

15 ‘Landesgesetz fiber O rdnungsw idrigkeiten’ o f 8 F ebruary 1978 (Gesetzblatt Baden-W urttemberg 102).

16 See §§8, 12, 15 ‘Verordnung iiber Camping- und W ochenend-

platze (N ordrhein-W estfalen)’ o f 10 Novem ber 1982 (Gesetz- und

Verordnungsblatt Nordrhein-Westfalen 731).

17 See §§ 1, 38 N o 1 ‘Gesetz gegen W ettbew erbsbeschrankungen’ o f 24 September 1980 (BGB1 I 1761).