The public interest is an indefinite legal term because it is not specified in any legal provision in which it occurs. Rather, it is left to literature and in particular to case law to fill in the term with concrete content in each individual case by means of subsumption . The prerequisites of public interest can only be found in the context of a comprehensive assessment of the meaning and purpose of the statutory regulation.
However, the public interest does not generally take precedence over individual interests. In some cases, the law requires a mutual and fair balance between the interests of the general public and those of those involved (such as 14.3 of the Basic Law in the case of expropriation or 1.7 of the BauGB when drawing up the master plan ). It therefore depends on whether a legal norm has an exclusively objective legal character and serves exclusively the public interest or whether it is - at least also - intended to serve the protection of individual interests in such a way that the bearers of the individual interests can demand compliance with the legal principle . Such a formulation, which expressly demands fair consideration also of private interests, corresponds to the typical appearance of a so-called third-party protection norm .
Objections and actions to challenge an administrative act have no suspensive effect for reasons of public interest in the case of an order for immediate enforcement pursuant to (2) No. 4 VwGO ( immediate enforcement ). In administrative law, the public interest is regularly associated with the interests of the general public that are worthy of protection, for example when an amusement arcade is to be opened near a school. Then it was to be expected that minors could go to the sales room without being accompanied by a legal guardian and be tempted to play. The administration has a margin of discretion in assessing whether or not public interest concerns are affected. It particularly depends on whether a particular situation can affect the general public or the public; the danger is enough.
Criminal procedural law
- If criminal proceedings are concerned with an offense , the public prosecutor's office can, with the consent of the competent court, refrain from prosecuting if the perpetrator's guilt is considered to be minor and there is no public interest in the prosecution ( StPO ) (so-called minor offenses ).
- as " special public interest " in the case of complaint offenses .
- as the "public interest" in private criminal offenses ( StPO). Here, the public interest is a matter of discretion that can only be decided by the law enforcement agency.
In terms of criminal procedure, the public interest is the general public's interest in prosecution. Here, the public interest can arise for both special and general preventive reasons, as well as the consequences of a specific criminal act or to prevent further damage to the injured person. Public interest in the prosecution of bodily harm is present, for example, if the prosecution is a current concern of the general public, the legal peace is disturbed beyond the circle of the injured person or the injured person cannot be expected to take a private suit because of personal relationships with the perpetrator. The effect of a criminal offense must therefore go beyond the immediate sphere of life of the injured party so that the public interest can be accepted.
Other areas of law
The case of the Caroline of Monaco (see also: Caroline judgments ), in which the Federal Court of Justice ruled in March 2007 that image publications may be disseminated without consent if they were about persons of public interest (see also: public figure ). According to this, portraits of a person are generally only allowed to be disseminated with their consent (section 22 sentence 1 KUG); the right to one's own image is a special expression of the general right of personality. The press, however, has sufficient leeway within the legal limits within which it can decide, according to its journalistic criteria, what claims the public interest and that in the opinion-forming process it becomes clear what is a matter of public interest. Anyone who, like Caroline von Monaco, spends his vacation as a public figure in St. Moritz , must expect a certain amount of attention and cannot assume that the media will not be observed. The public interest in information should therefore be given priority. However, the Federal Constitutional Court had partially overturned the BGH judgment. In three pictures of Caroline with her children, the protection of the basic right of the family, anchored in GG , takes precedence over the public interest. Media dissemination usually generates a great deal of public interest. The starting point for the assessment is not the level of awareness of the person being reported, but the informational value of the report. The greater the information value for the public, the more the protective interests of those about whom the information is being provided have to take a back seat to the public's information concerns. The case law added attributes such as “significant public interest” (BGH) or “weighty public interest” if the general interest is to be particularly emphasized.
In the case of dependent inventions, in the opinion of the BGH, a public interest can only be justified if the new invention brings significant technical progress for the general public.
There must be a public interest for the qualification as a monument . This is the case when this monument is important for human history and for cities and settlements as well as artistic, scientific and urban planning reasons for its preservation and use. Then buildings must be placed under monument protection.
The law ultimately serves the interests of the people, so that the state may not pursue any interests that differ from it. There is always a public interest when the individual goods of an indefinite number of people are threatened. There is therefore no public interest if an individual citizen only endangers his own legal interests (material such as property through waste or immaterial such as health through alcoholism ) through his or her actions . If the administrative authority decides within the scope of the discretion granted to it which legal consequence is in the public interest, these decisions are only subject to judicial review to a limited extent. If, on the other hand, the weighing of the facts is on the side of the facts, it is subject to complete judicial control.
- Special public interest
- Representatives of the public interest
- Representative of the federal interest at the Federal Administrative Court
- Representative of special federal interests
- Peter Häberle : Public Interest as a Legal Problem , Berliner Wissenschafts-Verlag, 2nd edition 2006, ISBN 978-3830511151 .
- Wolfgang Martens : Public as a legal term. Gehlen, Bad Homburg, Berlin, Zurich 1969. (Habilitation thesis), especially pp. 185–205.
- cf. e.g. BVerwGE 92, 313
- BVerwG, judgment of September 24, 1998, Az .: 4 CN 2/98
- RiStBV No. 86, Paragraph 2, Sentence 1
- BGH, judgment of March 6, 2007 , Az. VI ZR 13/06, full text.
- BVerfG, judgment of December 15, 1999, Az. 1 BvR 653/96; BVerfGE 101, 361 , 392 - Caroline of Monaco II.
- Page no longer available , search in web archives: BVerfG, press release No. 140/99 of December 15, 1999.
- BVerwG, judgment of January 17, 2012 ( memento of February 10, 2013 in the web archive archive.today ), Az. 20 F 4.11, full text.
- Adem Koyoncu, The liability triangle pharmaceutical company - doctor - patient, 2004, p. 273
- Udo Steiner (Ed.), Special Administrative Law , 2006, p. 193
- Robert Uerpmann, The public interest , 1999, p. 276