General freedom of action

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The general freedom of action is a fundamental right derived from Article 2, Paragraph 1 of the Basic Law of the Federal Republic of Germany . The text of Article 2, Paragraph 1 of the Basic Law reads:

"Everyone has the right to the free development of his personality , as long as he does not violate the rights of others and does not violate the constitutional order or the moral law."

The general freedom of action establishes the principle that any action is permitted if it is not prohibited or violates the rights of others. It is also known as general freedom of behavior , which is consistent with the definition of behavior - doing or not doing.

Protection area

Personal protection area

Everyone is the bearer of the law ; the addressee is state power , which, according to Article 1, Paragraph 3 of the Basic Law, comprises the executive, legislative and judicial branches.

It is largely recognized that domestic legal persons can also be bearers of the fundamental right under Article 19.3 of the Basic Law, i.e. that it is essentially applicable to them.

Material scope of protection

The scope of protection and the content of the law are less clear . The wording "free development of personality" was in the early years of the Federal Republic closed , were protected only special, "quality" personality unfolding ( "personality core theory"). Only in this way is the fundamental right comparable to the weight of the other fundamental rights.

The Federal Constitutional Court , on the other hand, decided early on Article 2, Paragraph 1 of the Basic Law guarantees “general freedom of action” and thus protects even such mundane things as “ riding in the forest ”. The court based its interpretation largely on the will of the author. The Parliamentary Council initially wanted the wording “Everyone has the freedom to do and not do what does not violate the rights of others and does not violate the constitutional order or the moral law” (often erroneously as “everyone can do what he or she does will “cited) and chose the current version only for the sake of linguistic convenience. This view is also supported by the fact that the barriers (in particular those of the “constitutional order”) are wider than any other fundamental right, which, conversely, indicates an extremely broad area of ​​protection .

This interpretation is so prevalent today that the basic right is called general freedom of action. It is therefore a “ basic right of restraint ” that always intervenes if more specific basic rights are not available or - this is of course controversial - their requirements are not met. According to this, for example, anyone can wear their preferred clothing, leave the country, feed pigeons or buy the car of their choice. Foreign nationals who do not have so-called “basic German rights” can also refer to Article 2, Paragraph 1 of the Basic Law instead . As far as Union citizens are concerned , the fundamental right is of particular importance in connection with the prohibition of discrimination in Art. 18 TFEU : By interpreting them in accordance with Community law, they can be granted protection corresponding to German fundamental rights .

Consequences of understanding as general freedom of action

The assumption that Article 2, Paragraph 1 of the Basic Law is a subsidiary basic right to fall back, has considerably strengthened the position of the Federal Constitutional Court . With reference to this right, every citizen can have every law incriminating him examined by means of a constitutional complaint for its compatibility with the Basic Law. The consequence of this comprehensive jurisdiction of the Federal Constitutional Court is a flood of constitutional complaints that could only be dealt with by setting up preliminary “chambers”.

In addition, every (alleged) incorrect application of the law by the case law is an (alleged) violation of the general freedom of action, since if the law is incorrectly interpreted, the onerous decision is no longer covered by the “constitutional order”. This would make the Federal Constitutional Court a super-revision instance that would have to review all the judgments of all other courts. That would be neither useful nor affordable at all. The Federal Constitutional Court therefore limits its examination to the violation of specific constitutional law, i.e. to whether a decision was arbitrary or the importance of fundamental rights was misunderstood. With a constitutional complaint that only criticizes the wrong application of the law, the citizen is not heard.

For the administrative law the general freedom of action has the effect that any onerous administrative act may the addressee at least in its right under Art. 2 injured para. 1 GG, the required legal standing is then present (so-called. Addressee theory ).

Demarcation and related fundamental rights

In Art. 2 , para. 1 GG of will to the case law the Constitutional Court and the private autonomy protected.

The free development of personality is not to be confused with the general right of personality and its special case, the basic right to informational self-determination . These are not expressly mentioned in the Basic Law, but by the Federal Constitutional Court from Art. 2 Para. 1 i. V. m. Art. 1 Abs. 1 GG was developed.

In the Weimar Imperial Constitution - in the absence of a corresponding basic right - general freedom of action was still located in freedom of the person (Art. 114 (1) Sentence 1 WRV), which was more than just physical freedom of movement.

Intervention

An encroachment is any onerous sovereign measure in the area of ​​protection of Article 2, Paragraph 1 of the Basic Law. However, due to the breadth of Art. 2 Para. 1 GG , conceivable interventions are infinitely diverse. This means that only significant interventions are meant, trivialities do not count as encroachment on the area of ​​protection of Art. 2 Para. 1 GG.

Occasionally, it is argued that only “classic” interventions (finality, immediacy, legal form, coercion) should be sufficient to compensate for the broad area of ​​protection . Only factual impairments would then not be recorded. However, this view has not prevailed.

Barrier triad

Like every basic right, the general freedom of action does not apply without restrictions. The free development of the personality must not disturb the peaceful coexistence of people.

The so-called barrier triad consists of the constitutional order , the rights of others and the moral law . In view of the abundance of legal norms, only the limit of the constitutional order is significant today. It covers all formally and materially legal norms, i.e. the entire norm pyramid from federal laws, statutory ordinances, state constitutions to parliamentary laws. In particular, statutes of the municipalities and districts come into question, for which (unlike the restriction of basic rights with legal reservation ) no special legal basis is required, but the general statute authorization is sufficient.

Because almost every law restricts the general freedom of action, the citation requirement of Article 19.1 sentence 2 of the Basic Law does not apply to the restriction of the general freedom of action.

However, here too the restrictive laws must comply with the prohibition of excess, i.e. they must be proportionate .

See also

literature

Individual evidence

  1. ↑ Michael Sachs: Constitutional Law Ⅱ / Basic Rights . Chapter B 2, paragraph 5 . (quoted from Epping, GR Rn. 517)
  2. ↑ Christoph Gröpl, Kay Windhorst, Christian von Coelln: Study Commentary on the Basic Law . S. 55 .
  3. ^ Jörn Ipsen: Staatsrecht Ⅱ . S. 219 .
  4. ^ Jörn Ipsen: Staatsrecht Ⅱ . S. 220 .
  5. ↑ a b BVerfGE 6, 32 (36 f.), So- called Elfes judgment
  6. ↑ BVerfGE 80, 137 (152 ff.)
  7. ^ German Bundestag and Federal Archives: The Parliamentary Council 1948 - 1949. Drafts for the Basic Law. tape 7 . Harald Bold Verlag, Boppard am Rhein 1995, ISBN 3-7646-1945-7 , p. 135 .
  8. ↑ BVerfGE 6, 32 (39)
  9. ↑ Wolfram Cremer: Basic Freedom Rights . 2003, p. 182 .
  10. ↑ BVerfGE 54, 143 (146)
  11. ↑ only BVerfGE 6, 389 (433 ff.) - "Homosexuality".