Headnote

to the Order of the First Senate of 24 June 1993

1 BvR 689/92

1. On the question under which circumstances cannabis resin consumption may justify an order by the authorities that [the holder of a driving licence] submit a medical-psychological assessment report on their fitness to drive.

FEDERAL CONSTITUTIONAL COURT

- 1 BvR 689/92 -

IN THE NAME OF THE PEOPLE

In the proceedings

on

the constitutional complaint of

the Federal Constitutional Court – First Senate –

with the participation of Justices

President Herzog,

Henschel,

Seidl,

Grimm,

Söllner,

Dieterich,

Kühling,

Seibert

held on 24 June 1993:

1. The Order of the Federal Administrative Court of 19 March 1992 - BVerwG 3 B 28.92 - and the Judgment of the Higher Administrative Court for the Land North Rhine-Westphalia of 8 November 1991 - 19 A 1674/91 - violate the complainant’s fundamental right under Article 2(1) in conjunction with Article 1(1) of the Basic Law. They are reversed. The matter is remanded to the Higher Administrative Court.

REASONS:

A.

The constitutional complaint concerns the question under which circumstances cannabis resin consumption may justify an order that [the holder of a driving licence] submit a medical-psychological assessment report on their fitness to drive.

I.

1. Pursuant to § 4(1) of the Road Traffic Act , the authorities must revoke a driving licence if its holder proves to be unfit to drive motor vehicles. Under § 6(1) no. 1 of the Road Traffic Act the Federal Minister of Transport is authorised, subject to the consent of the Bundesrat , to issue ordinances and general administrative rules, including on medical examinations to determine lack of fitness to drive motor vehicles. […]

[…]

2. In consultation with the competent highest Land authorities, the Federal Minister of Transport enacted administrative directives for assessing the physical and psychological fitness of applicants for and holders of driving licences. […]

[…]

3. […]

II.

1. The complainant, who is 28 years old, had a driving licence for categories 1 and 3. In January 1990, during a police check carried out at approximately 1:45 a.m., law enforcement officers found the complainant sitting in his parked vehicle together with an acquaintance in a remote car park. The police seized approximately 0.5 g of cannabis resin. The questioning of the two men revealed that the complainant’s acquaintance had previously bought approximately 2 g of cannabis resin in Düsseldorf’s old town because he wanted to try it out. He ran into the complainant in a restaurant and invited him to smoke a joint together. They did so shortly before the police check. In their report, the police officers stated the following:

A search of the persons and the vehicle for further narcotics did not yield any results.

Both persons displayed obvious signs of drug consumption (slurred speech, slightly unsteady gait).

Following the police officers’ orders, the complainant left his vehicle in the car park. During his examination on 21 February 1990, the complainant said it had been his first time trying cannabis resin. The criminal investigation against him was terminated pursuant to § 170(2) of the Code of Criminal Procedure by order of 14 March 1990 since he had only joined in his acquaintance’s cannabis smoking, which by itself is not a punishable offence.

2. […] The Road Traffic Authority informed the complainant that his fitness to drive was in doubt on grounds of his drug consumption, and ordered that he submit a medical-psychological assessment report. Although the complainant underwent the assessment, he did not submit the report. Following this, the Authority set a deadline and announced that it would revoke the complainant’s driving licence should he fail to submit the report. After the complainant unsuccessfully remonstrated, the Road Traffic Authority revoked his driving licence. The Authority argued that his cannabis resin consumption had raised reasonable doubts as to his fitness to drive. The only way to dispel these doubts was for the complainant to undergo a medical-psychological assessment. While the required assessment had taken place, the complainant had not submitted the report as proof of fitness to drive despite being notified of the deadline. The Road Traffic Authority found that his refusal to assist in investigating the facts meant that the complainant had to be deemed unfit to drive.

3. After lodging an unsuccessful objection, the complainant brought an action against that decision before the Administrative Court. […]

4. The Administrative Court reversed the decision on the complainant’s objection and the order to revoke his driving licence. […]

5. […] With the challenged decision, the Higher Administrative Court modified the decision of the Administrative Court and ultimately rejected the complainant’s action.

[…]

6. […]

III.

In his constitutional complaint, the complainant claims a violation of Art. 3(1) and of Art. 2(2) first sentence of the Basic Law; substantively, he also claims a violation of Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

The complainant argues that the challenged decisions violate the general guarantee of the right to equality since they accept that cannabis and alcohol consumption are treated differently by the road traffic authorities. […]

[…]

The complainant argues that Art. 2(2) first sentence of the Basic Law is violated given that individuals, due to the prohibition under criminal law to acquire cannabis products for their own consumption, are pushed towards alcohol, an alternative that is more harmful to health.

[…]

IV.

Statements on the constitutional complaint were submitted by the Federal Minister of Health on behalf of the Federal Government, several Land Governments, the President of the Federal Court of Justice, the Federal Administrative Court, the German Head Office for Addiction Matters (Deutsche Hauptstelle gegen die Suchtgefahren ) and the defendant in the initial proceedings.

[…]

B.

The constitutional complaint is for the most part admissible. However, the complainant failed to sufficiently demonstrate and substantiate a possible violation of Art. 2(2) first sentence of the Basic Law (§§ 92 and 23(1) of the Federal Constitutional Court Act). […]

C.

The constitutional complaint is well-founded. The administrative order to submit a medical-psychological assessment report to prove fitness to drive is not compatible with the general right of personality. The challenged court decisions, which found this measure to be lawful, thus violate the complainant’s above-mentioned fundamental right.

I.

The court decisions violate Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.

1. a) Art. 2(1) in conjunction with Art. 1(1) of the Basic Law guarantees the general right of personality. This right generally protects individuals against the collection and disclosure of findings about their health, mental well-being and character (cf. BVerfGE 32, 373 <378 et seq .>; 44, 353 <372 and 373>; 65, 1 <41 and 42>; 78, 77 <84>; 84, 192 <194 and 195>). This protection increases the more closely the data is related to the affected person’s intimate sphere, which, as an inviolable part of private life, must be respected and protected by all state authority (cf. BVerfGE 32, 373 <378 and 379>; 65, 1 <45 and 46>).

b) The Road Traffic Authority’s order that the complainant submit the assessment report involves the disclosure of highly personal information that is protected by the general right of personality. This applies not only to the medical, but to an even greater extent also to the psychological part of the assessment.

Where a medical-psychological assessment is ordered to determine fitness to drive, the medical part of the assessment includes a general health evaluation as well as examinations of the musculoskeletal system, the nervous system, possibly the inner organs, sensory function, psychological well-being, responsiveness and resilience. […] If drug use is suspected, lab tests of urine samples (drug screening) are used to determine consumption habits. […]

The psychological part of the assessment begins with an analysis of the personal history of the person under examination: their upbringing, education and training, occupation, marital status, children, illnesses, past surgery, alcohol consumption, smoking, financial situation, leisure interests. If the person under examination has had previous encounters with the law, the psychologist discusses these incidents, including causes and lessons learnt, with them. The psychologist also evaluates performance, including performance under pressure, speed and accuracy of optical perception, ability to react to quickly changing optical and acoustic signals and concentration.

These findings are even more closely related to the inviolable part of private life than the purely medical findings obtained in the examination. Therefore, they enjoy greater protection under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. The findings of the psychological examination relating to the character of the person concerned may affect their self-regard as well as their social standing. They must disclose such details in a setting resembling an interrogation. Moreover, the character assessment is mainly based on a set of exploratory interviews. This method is not as conclusive as lab tests, and uncertainties cannot be ruled out.

2. The order to undergo a medical-psychological assessment and to submit the report to the Road Traffic Authority amounts to an interference with the general right of personality.

While the complainant was free to decide whether to comply with this order, the Road Traffic Authority had announced that it would revoke his driving licence should he refuse. The announcement of the legal consequences of refusal, which is in line with the established case-law of the administrative courts, is sufficient to make qualify as an interference the Road Traffic Authority’s order that the complainant submit the report, based on § 15b(2) of the Vehicle Registration and Licensing Ordinance (cf. BVerfGE 74, 264 <281 et seq .>).

3. It is true that the protection of the general right of personality is not absolute. Every person must tolerate state measures that serve overriding public interests if these measures have a statutory basis and adhere to the requirement of proportionality, unless they infringe upon the inviolable part of private life (cf. BVerfGE 32, 273 <279>; 65, 1 <44>). However, in the present case, the interference is not justified.

a) The statutory basis of the challenged decisions does not raise any concerns.

[…]

[…] Road traffic involves high risks for the life, health and property of numerous individuals. Therefore, fitness to drive must be subject to strict requirements. To ensure fitness to drive, preventive checks of drivers, as provided for in § 4(1) of the Road Traffic Act and § 15b of the Vehicle Registration and Licensing Ordinance, are generally not objectionable under constitutional law.

b) Nonetheless, in their interpretation of § 15b(2) of the Vehicle Registration and Licensing Ordinance in the present case, the courts did not sufficiently take into account the general right of personality. In particular, they failed to take into consideration that their interpretation must not result in a disproportionate restriction of fundamental rights.

When interpreting § 15b(2) of the Vehicle Registration and Licensing Ordinance in accordance with the general statutory standards for granting and revoking a driving licence, the general right of personality is only sufficiently taken into account if the authorities base their order to submit a medical-psychological assessment report on deficits which – from a reasonable and realistic perspective – give rise to serious concerns that the person concerned will not display the caution and appropriate behaviour required for driving. Furthermore, not all circumstances potentially indicating a remote possibility that someone may be unfit to drive provide sufficient grounds for ordering a medical-psychological assessment report. Rather, the authorities must base their order on factual findings establishing that the person concerned is likely unfit to drive. Finally, the general right of personality of the person concerned must be taken into account in the decision on what type of assessment is ordered pursuant to § 15b(2) nos. 1 to 3 of the Vehicle Registration and Licensing Ordinance. In all of these respects, the challenged decisions are objectionable.

aa) It is not clearly ascertainable from the decisions which factors, in the courts’ view, indicate that the person concerned may be unfit to drive.

It was stated that even the one-off consumption of cannabis may lead to echo highs; this could be understood to mean that the authorities and the courts considered even one-off consumption to result in a lack of fitness to drive. […]

bb) It would be more plausible if the competent authority, and the courts upholding the administrative decision, merely assumed that a person is unfit to drive in cases of regular cannabis use. It was clearly assumed, by the competent authority and the courts, that at least in these cases, the occurrence of an echo high is likely. […]

However, an interpretation of § 15b(2) of the Vehicle Registration and Licensing Ordinance according to which one-off cannabis consumption in itself is a sufficiently compelling reason for ordering a medical-psychological assessment report excessively restricts the general right of personality. Given the far-reaching interference with fundamental rights associated with the ordering of such an assessment, there must be more robust indications that someone is unfit to drive. Based on the current state of knowledge on cannabis use, it cannot necessarily be inferred that anyone who is found with a joint is a regular user. […] In addition, it is by no means certain whether the assumption that regular cannabis users have a tendency to drive while intoxicated is actually true. If there are no sufficiently robust indications of regular cannabis use, the competent authority must at least try to further clarify the circumstances of the case, including by discussing the case with the person concerned, before ordering a medical-psychological assessment report.

Measured against these standards, the findings on which the order of a medical-psychological assessment report was based in the complainant’s case do not sufficiently support the assumption that he may be unfit to drive.

In the present case, the fact that the complainant was found smoking a joint on one occasion did not provide sufficient grounds for the suspicion that he is a regular cannabis user; yet such grounds would have been required for ordering a medical-psychological assessment report. […]

cc) Besides, the challenged decisions also violate Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, given that the courts considered the order of a medical-psychological assessment permissible even though, in view of existing screening methods, the question whether the person concerned was a regular cannabis user – which should have been determined first – could already have been answered by means of urine, blood or hair tests. § 15b(2) no. 1 of the Vehicle Registration and Licensing Ordinance expressly provides for the possibility of ordering an examination by a medical specialist. Such an examination would entail a less intrusive interference with the general right of personality. If an alleged lack of fitness to drive hinges on whether the person concerned regularly consumes cannabis, as assumed by the competent authority and the courts in the present case, this must be determined first. Only then may a medical-psychological assessment be ordered, if necessary.

[…]

II.

Moreover, the challenged decisions raise serious concerns with regard to the general guarantee of the right to equality (Art. 3(1) of the Basic Law). The courts accepted that the Road Traffic Authority, when ordering the assessment report in the present case, applied standards that are stricter than the standards commonly applied by the authorities in cases involving alcohol consumption.

1. The more the unequal treatment of persons or situations negatively impacts the exercise of freedoms protected by fundamental rights, the more strictly the right to equality must be observed (cf. BVerfGE 55, 72 <88>; 60, 123 <134>; 82, 126 <146>; BVerfG, EuGRZ 1993, p. 100 <103>). […]

As discussed above, the authorities’ order of a medical-psychological assessment considerably impairs the general right of personality, not least because the outcome of the assessment determines whether the person concerned may keep their driving licence. Whether or not someone has a driving licence may considerably affect the exercise of freedoms protected by fundamental rights. This not only applies to the general freedom of action (Art. 2(1) of the Basic Law); depending on the circumstances, it may also apply to specific freedoms, such as occupational freedom (Art. 12(1) of the Basic Law). Therefore, strict standards must be applied to the reasons that may justify unequal treatment when ordering medical-psychological assessment reports in this context.

2. The practice of the authorities, which has been upheld by the courts, is based on the administrative directives on fitness to drive issued by the Ministry, which are binding on road traffic authorities […]. These directives state that, except for cases where there is a specific suspicion of alcoholism, alcohol consumption as such can only give rise to doubts as to one’s fitness to drive if “repeated traffic offences while driving under the influence of alcohol” have been committed. […] For drivers found to have violated road safety rules in an alcohol-related incident for the first time, a medical-psychological assessment may be ordered if their blood alcohol content is or exceeds 0.16%, provided that other circumstances in the individual case give rise to the suspicion of regular excessive alcohol consumption.

By contrast, the challenged decisions subject cannabis users to considerably stricter standards with regard to the circumstances that give rise to doubts as to their fitness to drive. […].

3. Sufficient reasons to justify this unequal treatment are not readily ascertainable, even though there are indeed differences between cannabis and alcohol. However, it is not necessary make a conclusive determination on this issue, given that the constitutional complaint is already successful on other grounds.