Definition and Significance of the General Police Clause
Die General Police Clause is a central concept in German police and regulatory law. It refers to a broadly formulated legal basis that enables police authorities to take measures for averting danger in individual cases, even if there is no more specific legal regulation for the particular measure. The general clause thus constitutes an essential instrument for averting danger and for maintaining public safety and order.
Statutory Foundation
The General Police Clause can be found in various state police and regulatory authority laws as well as in federal law. Examples include:
- Section 14 Police Act of North Rhine-Westphalia (PolG NRW)
- Section 3 (1) General Security and Order Act Berlin (ASOG Bln)
- Section 44 Federal Police Act (BPolG)
The wording of these provisions is essentially identical: The police may take the necessary measures to avert a specific danger to public safety or order, unless special provisions apply.
Background and Purpose
Supplementary Function in Police Law
German police and regulatory law contains a multitude of special statutory authorizations which regulate certain specific measures, such as dispersals, searches, or custody. The general clause serves to supplement these specific regulations and allows for action in situations for which no explicit regulation exists.
Flexibility and Scope for Action
Due to unforeseeable hazardous situations and the variety of police duties, it is not possible to regulate all conceivable measures exhaustively in the law. The general clause gives police authorities the necessary latitude to respond flexibly to new or special dangerous situations.
Requirements for Applicability
Danger to Public Safety or Order
The central prerequisite for police action under the general clause is the existence of a concrete danger to public safety or order. This refers to a situation in which, if events run their expected course without intervention, there is a sufficient probability of harm resulting to the legal order, individual legal interests (such as life, limb, property) or collective legal interests (such as public institutions, community values).
Necessity and Proportionality
Every measure based on the general clause must be necessary, i.e., suitable for averting danger and the least intrusive available means. Furthermore, the measure is considered proportionate if the resulting interference with fundamental rights is not out of proportion to the danger to be averted.
Subsidiarity of the General Clause
The general clause is always subsidiary to specific statutory authorizations. This means it may only be invoked if there is no more specific regulation for the intended police measure.
Legal Limits and Constitutional Significance
Principle of Legal Certainty and Statutory Reservation
The use of the general police clause is limited by constitutional requirements. In particular, for significant encroachments on fundamental rights, the Basic Law requires that the statutory authorization be sufficiently specific (principle of legal certainty, Article 20 (3) GG) and that there be a basis for encroachments on fundamental rights in a formal law (statutory reservation, Article 2 (1) GG).
Limitations on Encroachments of Fundamental Rights
Especially in cases of serious infringements on fundamental rights, such as the search of a dwelling (Article 13 GG) or deprivation of liberty (Article 2 (2) GG), the Federal Constitutional Court has made clear that such interventions are only permissible on the basis of clear and specific legal foundations. Application of the general police clause is generally not an option in these cases.
Prohibition of Excess
Measures based on the general clause are subject to the prohibition of excess. This means that they must always be suitable, necessary, and appropriate.
Distinction and Relationship to Special Powers
Principle of Speciality
According to the overriding principle of speciality, it must always first be checked whether a more specific statutory power exists in the relevant police or regulatory law for the intended intervention or measure. Only if this is not the case, or the special provision does not fulfill certain requirements, may recourse be had to the general clause.
Typical Applications
The general clause is particularly applied in unforeseeable, novel, or atypical dangerous situations, such as spontaneous threats, averting serious disturbances, or supporting emergency services during natural disasters.
Practical Significance and Examples
Specific Applications
- Cordon off a danger area, because there is a risk of collapse from a damaged building and no specific statutory provision is applicable.
- Seizure of objects to avert danger when no particular provision is applicable.
- Orders to uninvolved third parties, for example, the obligation to tolerate police measures in major emergency situations.
Limits in Practice
Measures may not be based on the general clause if a special provision expressly covers the situation. Interventions involving deprivation of liberty must be justified with particular rigor and are subject to additional procedural safeguards (judicial order).
Criticism and Reform Considerations
Points of Criticism
The breadth of the general clause has often been criticized, particularly with regard to the predictability and legal certainty for the public. Opponents see a risk of excessive police discretion and insufficient restriction mechanisms for the administration and the police.
Reform Approaches
In some federal states, the general clauses have been clarified or supplemented by special provisions as part of police law reforms, particularly regarding measures with significant intrusive effects. The trend is towards more detailed, statutory authorizations to more strongly uphold the principle of statutory reservation and the protection of fundamental rights.
Summary
The general police clause is a fundamental element of police and regulatory law in Germany. Its function is to close gaps in specific danger prevention law and to enable authorities to act flexibly to protect public safety and order. At the same time, its application is subject to strict legal limits, especially due to the principle of proportionality, the prohibition of excess, and the constitutional requirements of statutory reservation. Danger prevention based on the general clause thus remains an essential, but also carefully managed, instrument of executive authority.
Frequently Asked Questions
When may the general police clause be used?
The general police clause is applied whenever there is a concrete danger to public safety or order and a specific statutory authorization to avert danger is lacking (Section 3 PolG NRW or comparable provisions in other federal states). This mainly concerns atypical, novel, or unforeseen hazardous situations that legislators have not yet specifically regulated. A prerequisite for its application is that the measure is necessary, suitable, and proportionate in the narrow sense. The police may not invoke the general clause if a more specific provision is applicable (lex specialis derogat legi generali). The general clause is therefore subsidiary and may not be used to circumvent regulations protecting especially sensitive legal interests, such as the fundamental right to personal liberty, where explicit statutory bases exist.
What statutory limits restrict the general police clause?
The application of the general police clause is limited by various statutory criteria. On the one hand, the so-called principle of speciality applies, according to which more specific statutory authorizations must take precedence. On the other hand, essential fundamental rights, particularly those under the Basic Law such as the right to personality, the right to informational self-determination, and property rights, must be observed. Measures based on the general clause are limited by the principle of proportionality, i.e. they must be suitable, necessary, and appropriate. Furthermore, the principle of statutory reservation applies, meaning that particularly serious encroachments on fundamental rights (in particular searches, deprivations of liberty, etc.) require a special, explicit legal basis. In these cases the general clause must expressly not be invoked.
What hazardous situations can be managed using the general police clause?
Only such hazardous situations can be managed using the general clause in which there is a concrete danger for a police-protected legal interest and urgent action by the police is required, for example, in newly emerging threats from new technologies or unusual constellations (e.g., threats from previously unknown substances, cybercrime, natural disasters). Typically, this concerns hazardous situations for which there is not yet any explicit regulation, such as specific requirements for large-scale events or new methods of hazard prevention. However, its application is excluded where there is an explicit and conclusive special regulation.
What role does the principle of proportionality play in measures taken under the general clause?
The principle of proportionality is decisive for all measures taken under the general clause. The police may only take those measures that are suitable and necessary for averting danger and do not unreasonably restrict the rights of those affected. This means that, among several possible and suitable measures, that which imposes the least burden on the individual and on society must always be chosen. The proportionality test has three steps: suitability (the measure must be capable of achieving the objective), necessity (no less intrusive means is available), and appropriateness (the measure is proportionate in the narrower sense and reasonable).
Why is the general police clause often subject to judicial review?
Because the general clause grants broad and abstractly formulated intervention powers, there is an increased potential for abuse and thus a risk of fundamental rights violations. Courts in particular review whether the prerequisites for a danger were present, whether indeed no specific statutory power was applicable, whether the principle of speciality was observed, and whether the measure was proportionate in the narrow sense. Furthermore, they check whether the interpretation and application of the general clause are compatible with the requirements of the Basic Law, in particular the principle of essentiality and the statutory reservation. Courts frequently clarify how far the general clause may be applied and where its constitutional limits lie.
Are there differences in the general clauses of the state police laws?
The structure of the general clauses is largely identical across the police laws of the German federal states, while the specific wording and some content requirements may vary slightly. Significant differences may arise from the definition of the terms ‘danger’, from extensions or limitations in the wording of the law, and from the case law of the respective state constitutional courts. Legal provisions on application to assemblies, measures against minors, or in the digital domain may also differ by state.
What is the significance of the general police clause within the system of police law?
The general clause serves as a residual provision and is an indispensable part of preventive police law. It ensures that the police remain able to act in situations where the legislature has not (yet) created a specific special regulation. This ensures a flexible response to current threat situations and effective protection of public safety and order. At the same time, the general clause is an element that must be subject to ongoing constitutional court review and – due to the increasing complexity of social life – regular adjustment by the legislature.
