Warnings by Authorities: Overview and Legal Framework
Definition and Significance
Warnings issued by authorities are public announcements whereby governmental or municipal bodies alert the public to dangers, risks, or impending harm. Such warnings aim to protect the general public or specific groups from health, safety, economic, or other risks. The term includes both preventive warnings and information intended to limit damage when events have already occurred.
Legal Foundations
Constitutional Principles
The constitutional mandate for state protection of the population and public safety forms the basis for official warnings. In addition to the state’s responsibility for the common good (Art. 20 GG), the state’s duty of protection derives particularly from its obligation to safeguard life and health (Art. 2 para. 2 GG) and within the provision of public services.
Statutory Regulation
Warnings by authorities are issued on the basis of specific laws and regulations. Key legal provisions can be found in the following areas:
- Public Hazard Prevention Law: State police laws and disaster protection laws obligate authorities to warn the public promptly of dangers (e.g., §§ 3 and 35 Civil Protection and Disaster Assistance Act – ZSKG).
- Food and Product Safety: The Food and Feed Code (LFGB) and the Product Safety Act (ProdSG) set forth authorities’ obligations to provide information and warnings to the public.
- Infectious Disease Law: The Infection Protection Act (IfSG) requires authorities to issue warnings for certain notifiable infectious diseases.
- Consumer Protection: Market supervision authorities are required by § 40 LFGB to publish health-related warnings in relation to food.
General Administrative Law
Authorities’ actions are governed by the principle of proportionality and the prohibition of excess. The legal basis for warnings is derived from the respective duties and protective obligations. In the absence of an explicit legal basis, a warning may be issued as a ‘factual act’ under the principle of fulfilling official duties. The publication method depends on the chosen warning mechanism and the level of danger involved.
Forms of Official Warnings
Official Announcements and Press Releases
Authorities use various formats to issue warnings. The most common forms include:
- Press releases: Regularly used to reach a broad public quickly.
- Warning and Apps: Digital applications (e.g., NINA, KATWARN, or BIWAPP) enable precise warnings via mobile devices.
- Radio Announcements, Sirens, and Loudspeaker Announcements: These are primarily used in acute emergencies, such as floods, major fires, or active shooter situations.
Online Platforms
Many authorities publish warnings on their websites or dedicated online portals, especially for consumer or product safety warnings.
Content and Scope of Official Warnings
An official warning must be suitable, necessary, and appropriate. It must include information on the nature and extent of the danger, instructions for those affected, and specify the geographic and temporal scope of applicability. The reach can be local, regional, or nationwide.
Requirements and Conditions for an Official Warning
Certain prerequisites must be met for a warning to be issued:
- Actual Danger or Risk: A hazardous situation must exist, whose occurrence is concretely foreseeable based on the circumstances.
- Authority’s Competence: Warnings may only be issued by the competent authorities.
- Proportionality: The warning must be the mildest effective means and must not have disproportionate effects on those affected.
- Form and Procedure: Certain warnings (e.g., pursuant to § 40 LFGB) are subject to formal requirements regarding documentation, mode of transmission, and publication.
Legal Protection and Remedies
Legal Nature of Official Warnings
Official warnings may constitute administrative acts (§ 35 VwVfG) or purely factual acts (Realakte). This distinction is crucial for the legal remedies available to those affected. Administrative acts can be challenged, whereas factual acts can generally only be contested by declaratory or injunctive actions.
Legal Protection against Public Warnings
Commercial enterprises, in particular, can be affected in their rights (general right of personality, business personality rights, right to operate a business, Art. 12 GG) by warnings. Where these rights are infringed, there is a claim to effective legal protection (Art. 19 para. 4 GG). In particular, the following remedies may apply:
- Interim Legal Protection (Summary Proceedings): In the event of imminent, severe consequences, expedited legal protection before a court (preliminary injunction) may be requested.
- Action for Revocation or Injunction: Those affected may take legal action against unwarranted or disproportionate warnings.
- Claims for Compensation: In cases of unlawful warnings, claims for revocation, correction, or possibly damages may arise.
Restriction and Oversight
Courts review official warnings for their legal basis, proportionality, and truthfulness. Judicial review is based on an objective balancing of interests and risks between the public good and individual rights.
Special Types of Official Warnings
Food and Product Warnings
Authorities publish warnings particularly when there are risks to consumers from unsafe food or defective products. The obligation to publish is regulated by the LFGB and ProdSG. Information is provided on portals such as lebensmittelwarnung.de or the EU’s RAPEX system.
Environmental and Disaster Protection Warnings
In environmental and disaster protection law, authorities are obliged to inform the public early about potential dangers, such as floods, severe weather, or industrial incidents (Major Accidents Ordinance). To this end, sirens, apps, and direct emergency notifications are used.
Police Hazard Prevention
If there is an imminent danger to public safety or order, police and regulatory authorities are required to publish warnings (e.g., during manhunts or in the case of crime sprees).
Liability and Consequences of an Official Warning
State Liability
Incorrect or omitted warnings may lead to compensation claims under official liability law (§ 839 BGB in conjunction with Art. 34 GG). It is assessed whether the authority negligently breached its duty to warn or disseminated incorrect information.
Consequences for Those Affected
A groundless or excessively published warning can have significant economic or reputational consequences for companies. For this reason, official warnings must be carefully legally reviewed and well substantiated.
Assessment and Summary
Warnings issued by authorities play a key role in protecting the population and averting danger. They are secured by a diverse set of legal provisions and are subject to strict requirements regarding statutory basis, proportionality, and legal consequences. At the same time, official warnings must always respect the rights of those affected and may be subject to judicial review. Adhering to legal requirements is also fundamental for the legitimacy and effectiveness of such measures in everyday practice.
Frequently Asked Questions
Who is legally authorized to issue official warnings?
In Germany, only those authorities that are legally assigned responsibility for the respective subject matter are authorized to issue warnings. This applies, for example, to health departments for warnings about health-threatening products, the Federal Office of Civil Protection and Disaster Assistance (BBK) for disaster situations, or the Federal Institute for Drugs and Medical Devices (BfArM) in the area of medical products. The legal basis for such authority stems from special statutory provisions, such as § 40 of the Food and Feed Code (LFGB) or § 75 of the Medicinal Products Act (AMG). When issuing a warning, authorities must always observe the principle of proportionality as well as data protection regulations. An unauthorized or unfounded warning may constitute a breach of official duty, potentially leading to compensation claims.
To what extent is an official warning legally binding?
Official warnings are generally advisory in nature and do not have direct legal effect in the sense of an administrative act. Legally, they are considered so-called factual acts or simple sovereign actions, through which the authority makes a real danger known to the public. Because they lack immediate legal binding force, warnings do not create direct legal obligations for recipients—such as companies or citizens—but they may nevertheless have significant indirect effects, such as damage to reputation or lost revenue. In certain scenarios, for example with recall orders, a warning may be part of a legally binding order.
What legal requirements must be observed when publishing an official warning?
The publication of an official warning is subject to strict legal requirements. In particular, administrative procedure law, as well as general personal rights and business interests (Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG and Art. 12 GG), must be observed. Before issuing a warning, a careful review of the facts in light of current technology and scientific knowledge is required; misinformation and exaggerations must be avoided. When warnings concern individual companies, a balancing of interests must take place to prevent disproportionate economic harm. Furthermore, in certain cases, the right to be heard pursuant to § 28 VwVfG must be granted.
Can those affected legally challenge an official warning?
Although warnings usually do not constitute an administrative act, legal remedies are available, including claims for injunction or revocation in administrative court (analogous to § 1004 BGB in conjunction with § 839 BGB and official liability claims). In addition, those affected may seek interim relief (application for a temporary injunction under § 123 VwGO) if their protected interests are endangered. Courts in these cases will review, in particular, whether the warning was based on objective and accurate grounds and was justified in the public interest.
What legal obligations do authorities have when issuing warnings?
Authorities are required to conduct a careful assessment and balancing of the relevant interests. Warnings must be based on objective factual grounds, comply with the principle of legality of administration and proportional action, and companies or persons affected must, in principle, be informed of the intended warning in advance (right to a hearing). Faulty or disproportionate warnings may give rise to official liability claims if third-party legal rights are violated.
What liability risks exist for authorities in the event of unjustified warnings?
If an authority issues a warning without sufficient factual basis, prematurely, or in a disproportionate manner, thereby unlawfully infringing third-party rights, official liability under § 839 BGB in conjunction with Art. 34 GG becomes relevant. In such cases, the state is liable for negligent or intentional breaches of duty by its employees. Recognized claims include revocation and injunction, and, if applicable, damages—especially if a public warning causes substantial economic losses to an affected company.
To what extent are authorities permitted to publish personal data in warnings?
The publication of personal data in the context of official warnings is generally only permitted if it is strictly necessary to avert a significant danger or to protect the public interest. In particular, the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG) apply, setting high standards for the processing and public disclosure of personal data. Publication is only allowed if it serves the purpose of the warning, is proportionate and suitable, and there are no less intrusive means of achieving the protection objective.
