Pharmacy judgment
| Pharmacy judgment | ||||||
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| Delivered June 11, 1958 | ||||||
| File number: 1 BvR 596/56 | ||||||
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| tenor | ||||||
| The decisions of the government of Upper Bavaria of November 29, 1956 - No. II / 11-5090 / 114 - and of June 12, 1957 - No. II / 11- 5090/121 (notice of objection) - violate the applicant's fundamental right under Article 12 Paragraph 1 of the Basic Law and are repealed.
Article 3 Paragraph 1 of the Bavarian Law on Pharmacy of June 16, 1952 (GVBl. P. 181) in the version of the law of December 10, 1955 (GVBl. P. 267) is void. |
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| Applied Law | ||||||
| Art. 12 GG |
The pharmacy ruling is a decision of the Federal Constitutional Court (BVerfG) of June 11, 1958. In German jurisprudence, it is a fundamental ruling for the interpretation of the fundamental right to freedom of occupation guaranteed in Art. 12 of the Basic Law . The First Senate took a position here for the first time and pointed the way to the barriers to occupational freedom and the validity of the rule of law proportionality principle in their application.
facts
In July 1956, a licensed pharmacist applied to the government of Upper Bavaria to give him an operating license to open a pharmacy in Traunreut . However, the application was rejected on the basis of Article 3 (1) of the Bavarian law on pharmacy in the version applicable at the time.
" (1) The operating license may only be issued for a pharmacy to be built if
a) the establishment of the pharmacy to ensure the supply of the population with pharmaceuticals is in the public interest and
b) it can be assumed that its economic basis is secured and through it the The economic basis of the neighboring pharmacies is not impaired to the extent that the requirements for proper pharmacy operations are no longer guaranteed.
Permission can be linked to the condition that the pharmacy is set up in a specific location in the interests of an even supply of medicines. "
In the reason for the negative decision, the government of Upper Bavaria stated that the establishment of a new pharmacy was not in the public interest, as there was already a pharmacy in the town, which had around 6,000 inhabitants at the time, and this existing pharmacy was completely sufficient to supply the population with pharmaceuticals . In addition, the economic basis of the new pharmacy is not secured, since a pharmacy needs a number of around 7,000 inhabitants to ensure its efficiency, which in Traunreut are already supplied by the existing pharmacy. In addition, the new approval would also affect the economic basis of the existing pharmacy to such an extent that the prerequisites for proper pharmacy operation are no longer guaranteed. In addition, it was feared that free competition could lead economically poorly funded pharmacies to frivolously sell drugs without a doctor's prescription. The pharmacist took legal action against this decision and finally filed a constitutional complaint with the Federal Constitutional Court.
Summary of the judgment
The Federal Constitutional Court declared Article 3 (1) of the Bavarian Pharmacy Act to be null and void, as it violated the freedom of occupation guaranteed in Article 12 (1) of the Basic Law. The decisions of the government of Upper Bavaria based on this provision therefore violated the complainant's fundamental right under Article 12 (1) of the Basic Law and were to be repealed.
The uniform basic right to freedom of occupation
According to Article 12, Paragraph 1, Sentence 2 of the Basic Law, the exercise of the profession can be regulated by law or on the basis of a law. In this respect, the wording of the standard expressly does not reveal any possibility of restricting interference with the freedom of career choice guaranteed in sentence 1. Although the wording of Article 12 (1) of the Basic Law suggested a differentiation between the freedom to choose an occupation and the freedom to pursue an occupation, the Federal Constitutional Court came to the view that the freedom to choose an occupation and the exercise of an occupation are only coherent elements of a uniform fundamental right to freedom of occupation, and not between them can be sharply separated. The freedom of occupation therefore protects the freedom to choose a profession and the freedom to pursue an occupation as a uniform fundamental right. As a consequence of this interpretation, it emerged that the reservation of limitations and regulations also covers the entire professional area. Contrary to what the wording suggests at first glance, encroachments on the freedom to choose a profession can also be justified by the legal reservation.
The (three) stage theory
The First Senate has developed the so-called three-stage theory as a yardstick for assessing the compatibility of job-related regulations with professional freedom . Interventions in the freedom of occupation must therefore be differentiated into three levels: They can represent pure professional practice regulations (1st level), subjective admission restrictions (2nd level) or objective admission restrictions (3rd level). The requirements for justifying the intervention depend on the respective stage.
- As a professional regulation to respect referred substantive provisions of the way of professional practice ( "how"). They are justified insofar as reasonable considerations of the common good make them expedient.
- The Federal Constitutional Court regards the regulation of the subjective prerequisites for taking up a profession as part of the legal order of a professional profile. Such a restriction is legitimized by the fact that many professions require certain technical knowledge and skills (in the broader sense) that can only be acquired through theoretical and practical training, and that without such knowledge the exercise of these professions would either be impossible or improper or cause damage, even dangers for the general public. Therefore, such so-called subjective admission conditions for the protection of important common goods are permissible.
- However, the Federal Constitutional Court made even higher demands on the objective conditions of admission . Since these restrictions are independent of the personal characteristics of the holder of the fundamental rights and their fulfillment is simply withdrawn from the individual, the strictest requirements must be placed on them. They are only permissible if they are imperative to avert demonstrable or highly probable serious dangers for an extremely important common good.
For reasons of proportionality , the legislature must intervene in the freedom of occupation at the "level" that involves the least interference in the freedom of occupation choice, and may only enter the next "level" if it is very likely It is possible that the feared dangers cannot be effectively combated with (constitutional) means of the preceding “level”.
The Federal Constitutional Court viewed the norm under Article 3, Paragraph 1 of the Bavarian Pharmacy Act as an objective professional licensing regulation that does not meet the requirements of the three-stage theory. In principle, public health would be an extremely important common good which could justify the introduction of objective licensing regulations. However, after extensive discussion, the Federal Constitutional Court had to answer the question of whether the abolition of the establishment restrictions of the Bavarian Pharmacy Act could lead to an unlimited increase in pharmacies and ruinous competition with the associated dangers for public health.
Meaning and consequences of the judgment
From today's perspective, the result of the pharmacy judgment can hardly be doubted. The three-stage theory presented was also essentially accepted by the German constitutional law theory, although part of the teaching, also Article 12 of the Basic Law, is still measured against the examination scheme that is also used for the other fundamental rights. The pharmacy ruling nevertheless had a major impact on the interpretation of the fundamental right to freedom of occupation.
See also
literature
- Beate Schulte zu Sodingen: BVerfGE 7, 377 - Pharmacy judgment. The basic right to freedom of occupation and the development of the “three-stage theory” . In: Jörg Menzel (Hrsg.): Constitutional Law. Hundreds of decisions by the Federal Constitutional Court in retrospect. Mohr Siebeck, Tübingen 2000, ISBN 3-16-147315-9 , pp. 108-112.
- Jörg Lücke : The freedom of occupation. CF Müller, Heidelberg 1994, ISBN 3-8114-2594-3 .
- Timo Hebeler : 50 years of pharmacy ruling by the Federal Constitutional Court - what has remained? , Legal worksheets (JA) 2008, 413
Individual evidence
- ↑ BVerfGE 7, 377 ff., Az. 1 BvR 596/56.
