Article 12 of the Basic Law for the Federal Republic of Germany

from Wikipedia, the free encyclopedia

Article 12 of the German Basic Law (GG) is in the first section of the Basic Law, which guarantees fundamental rights . It guarantees more job-related freedoms, which focuses on professional freedom is. Hereafter all have Germans the right profession , workplace and educational institution to choose freely and freely practice their profession. The fundamental right protects the citizen from sovereign interference in this sphere of freedom, which makes it a right of freedom . At the same time, Article 12 of the Basic Law obliges the state to provide the necessary prerequisites so that occupational freedom can be effectively exercised.

Article 12 paragraphs 2 and 3 of the Basic Law contain further freedom rights. These protect citizens from forced labor and forced labor .

Normalization

Article 12 of the Basic Law - a work by Dani Karavan on the glass panes on the Spree side at the Jakob-Kaiser-Haus of the Bundestag in Berlin

Art. 12 GG has read as follows since its last amendment on June 24, 1968:

(1) All Germans have the right to freely choose their profession, workplace and training facility. The practice of the profession can be regulated by law or on the basis of a law.

(2) Nobody may be compelled to perform a specific work, except within the framework of a conventional general public service obligation that is the same for all.

(3) Forced labor is only permitted in the event of a court-ordered deprivation of liberty.

Article 12 paragraph 1 of the Basic Law guarantees all Germans the freedom to choose their profession, workplace and training facility, as well as the freedom to practice their profession. This basic right primarily serves to ward off sovereign interference in the individual guarantees mentioned, which constitute the freedom of the profession. This guarantees the right to take up any job as a profession and to make it the basis of one's own lifestyle. Because of this guarantee, freedom of occupation is a basis of the free market economy .

In addition, the freedom of occupation gives the legislature several protective and organizational mandates that are intended to ensure that the holder of fundamental rights can effectively exercise the freedom of the profession. In connection with the general principle of equality ( Art. 3 Paragraph 1 GG) and the welfare state principle ( Art. 20 Paragraph 1 GG) follows from the freedom of occupation, for example, the right to equal participation in the distribution of limited resources by the public sector that is related to professional life exhibit. This is important, for example, when allocating study places or state concessions . In addition, the freedom of occupation influences the design of state examinations relevant to the profession , such as the state examination or an entrance examination. After all, freedom of occupation has an indirect effect on civil law . For example, it can order that the legislature create precautions to protect the freedom of occupation against contractual restrictions, for example if there is no balance of power between the parties. It also ensures that employees are adequately protected , for example in the right to dismiss .

The freedom rights of Art. 12 Paragraph 2, 3 of the Basic Law are closely related to the freedom of the profession. This guarantee anyone the right to freedom from forced labor and forced labor . The constitution-giver created these provisions in view of the forced labor under National Socialism and the emerging communist planned economy in East Germany.

History of origin

Before the Weimar Constitution (WRV)

The freedom to choose and pursue a career has been codified to some extent in some of the constitutions of the German states. Freedom of trade was introduced in Prussia in 1810 as part of the Prussian reforms . Article 29 of the constitution of the Kingdom of Württemberg of September 25, 1819 and Article 36 of the constitutional document of the Grand Duchy of Hesse of December 17, 1820 contained similar provisions .

The Paulskirche constitution of March 28, 1849 stipulated in § 158 that everyone was allowed to choose a profession at their own discretion and be trained for this. In connection with Section 133 (1), which guaranteed economic freedom of movement , the Paulskirche constitution thus contained a guarantee of freedom of occupation.

Due to the resistance of numerous German states, the Paulskirche constitution developed no legal effect, which is why the protection of professional freedom continued to be designed individually by the German states. In the trade regulations of the North German Federation of 1869 of June 21, 1869, the legislature guaranteed freedom of trade for the self-employed. This protects the right to operate commercially. The trade regulations continued to apply with their protection of trade freedom in the German Empire. A constitutional protection of the freedom of occupation did not take place, however, since the Bismarckian imperial constitution did not standardize any fundamental rights.

Weimar Constitution

The Weimar Constitution of August 11, 1919 contained in Art. 111 the guarantee of economic freedom of movement, from which jurisprudence derived freedom of career choice. In Art. 151 Paragraph 3 WRV, the freedom of trade and industry was also guaranteed in accordance with the Reich laws. This standard referred to the approval and exercise of a trade and in this respect went beyond the regulation of the still applicable trade regulations.

In the Weimar Imperial Constitution, in addition to the classic guarantee of fundamental rights, Articles 151 to 165 also contained a regulation on "economic life": Article 157 paragraph 1 WRV placed workers under the special protection of the Reich. According to Art. 163 Paragraph 2 WRV, every German should also be given the opportunity to earn a living through economic work. However, jurisprudence viewed these statements only as program sentences that were unsuitable for implementation, if only because of their vagueness.

Basic Law

The Parliamentary Council , which developed the Basic Law between 1948 and 1949, based its elaboration on the basic right of occupational freedom on Art. 111 WRV. Since freedom of occupation was closely related to freedom of movement, he initially planned to regulate freedom of movement together with freedom of occupation. He later gave up on this, however, so that freedom of movement was given its own standard in Art. 11 GG, while freedom of occupation was regulated in Art. 12 GG.

Art. 12 GG read as follows in its version of May 24, 1949:

(1) All Germans have the right to freely choose their profession, workplace and training facility. The practice of the profession can be regulated by law.

(2) Nobody may be compelled to perform a specific work, except within the framework of a conventional general public service obligation that is the same for all.

(3) Forced labor is only permitted in the event of a court-ordered deprivation of liberty.

Article 12 of the Basic Law was changed for the first time after the Basic Law came into force as part of the introduction of compulsory military service : With effect from March 22, 1956, the legislature added the possibility in Article 12, Paragraph 2 of the Basic Law, of permanent substitute service if military service was refused for reasons of conscience to order the military service. He also expressly forbade women to work in the armed forces or to serve in the armed forces.

The newly inserted provisions were removed from Article 12 of the Basic Law with effect from June 28, 1968. Furthermore, the legislature expanded Article 12, Paragraph 1 of the Basic Law to include the possibility of restricting freedom of occupation on the basis of a law. This enabled the encroachment on fundamental rights not only through parliamentary law, but also through purely substantive law, such as an ordinance .

Freedom of occupation

Protection area

The freedom of occupation protects the citizen from restrictions on his right to freely determine occupational aspects. To this end, it guarantees a sphere of freedom that sovereigns may only intervene under certain conditions . This sphere is called the protection area . If the sovereign intervenes in this and this is not constitutionally justified, he thereby violates the freedom of occupation.

Jurisprudence differentiates between the personal and factual areas of protection. The personal protection area determines who is protected by the fundamental right. The objective area of ​​protection determines which freedoms are protected by the fundamental right.

Personally

Natural people

Art. 12 paragraph 1 GG guarantees the freedom of occupation for Germans, which is why this basic right is a German right . All German citizens are deemed to be Germans in accordance with Article 116, Paragraph 1 of the Basic Law . The professional activity of foreigners is therefore not protected by Article 12 of the Basic Law, but by the fundamental right of general freedom of action ( Article 2, Paragraph 1 of the Basic Law).

It is controversial in jurisprudence whether citizens from other member states of the European Union can invoke Article 12 paragraph 1 GG. According to one opinion, the prohibition of discrimination in Article 18 of the Treaty on the Functioning of the European Union (TFEU) requires that Union citizens are treated as Germans within the framework of German rights, so that they are protected by Article 12 (1) of the Basic Law. The opposite view assumes that this contradicts the clear wording of German law. The equal treatment required by Art. 18 TFEU can be guaranteed by the fact that the assessments of Art. 12 Paragraph 1 GG apply to EU foreigners when Art. 2 Paragraph 1 GG is applied. The Federal Constitutional Court has not yet taken a clear position on this question.

Associations of persons

Domestic associations of persons , in particular legal persons under private law, can be bearers of the freedom of occupation in accordance with Art. 19 Paragraph 3 GG. A legal person is domestic if its actual center of action is in the territory of the Federal Republic. According to Art. 19 Paragraph 3 GG, the professional activity of foreign legal persons is not protected by Art. 12 Paragraph 1 GG. Associations that are based in other EU countries also have a special position here: If these are active in Germany, they can, according to the case law of the Federal Constitutional Court, like domestic associations, invoke German rights such as Article 12 (1) of the Basic Law.

In order for an association to be supported by professional freedom, it must be in a risk situation typical of fundamental rights. This is the case if she carries out an activity that is used for gainful purposes. Corporations under public law occupy a special position here: Since they are already subject to fundamental rights as part of the public sector, they cannot also be holders of fundamental rights. Therefore, they are not protected by the freedom of occupation. The classification of associations that are partly in sovereign, partly in private hands is controversial in this context.

Factual

Career choice and exercise

The material scope of protection of the freedom of occupation includes several freedoms related to occupational activity. In jurisprudence, a profession is understood to be a long-term activity through which a livelihood is created and maintained. This particularly applies to occupations that can be assigned to occupational profiles. However, Art. 12 GG is not limited to existing occupational profiles, but covers every occupational activity, so that it also protects newly invented occupations.

According to the prevailing view in jurisprudence, it is not necessary that the activity is permitted. Otherwise the legislature could withdraw the protection of the freedom of occupation by banning a profession. However, no protection is given to occupational activities that are by their nature harmful to society or the community, such as drug trafficking. The freedom of occupation also protects state-bound professions, for example the notary or the publicly appointed expert . Employment in the service of a sovereign is also protected by Art. 12 GG, whereby this protection is overlaid by the more specific Art. 33 GG.

The wording of Article 12 (1) of the Basic Law distinguishes between the freedom to choose a profession and the freedom to pursue it. Both guarantees overlap due to their close connection: The free choice of profession is realized in the practice of the profession. In return, regulations governing the practice of a profession often influence freedom of choice. Therefore, since the fundamental pharmacy ruling of the Federal Constitutional Court of 1958, legal scholarship has regarded the freedom to choose and pursue a career as manifestations of a uniform basic right to freedom of occupation. This protects all actions that are related to professional activity, such as the independent management of a company, the conclusion of contracts and the presentation of one's own profession to the outside world.

Basically no protection by Art. 12 GG experiences competitive chances and employment prospects. The freedom of occupation allows participation in free competition, but does not aim to protect positions within the free market.

Choice of job

Article 12 (1) of the Basic Law also protects the free choice of job, as this is closely related to the freedom to choose and pursue a career. The holder of fundamental rights thus has the right to freely choose where he wants to work professionally. Since the free choice of job is closely linked to the freedom to pursue a profession, it has hardly any independent significance.

Choice of training center

The free choice of training center also falls under the protection of Article 12 of the Basic Law . Due to the thematic context, this includes institutions that provide vocational training. Training in general schools and studying that is a mere leisure activity without a professional purpose are therefore not protected by the right to free choice of training location.

Since many professions require the completion of a degree, the jurisprudence derives from the basic right of professional freedom as well as the general principle of equal treatment (Art. 3 Paragraph 1 GG) and the welfare state principle (Art. 20 Paragraph 1 GG) a right to admission to study within the framework of the available Capacities. An award procedure that gives all applicants the same chance of obtaining a place at the university meets this requirement. In this respect, freedom of occupation is also a right of participation. However, the basic right does not include a right to a place at a university. It also does not oblige to state funding for studies. Tuition fees are permissible as a potential obstacle to studying, provided they are socially acceptable and do not pose the risk of deterring them from taking up a degree.

The freedom of occupation also obliges the state to design examinations with significance for professional life in such a way that all participants have a fair chance of successfully completing them. For this purpose, examinations must have a content-related relationship to the purpose of the examination. The case law, for example, assessed general questions about the state of Mali in the context of a legal examination as a violation of this . Furthermore, the examination procedure must be transparent. For example, a candidate must be informed about possible sanctions for misconduct. Furthermore, Art. 12 GG requires the compensation of disabilities within the framework of the examination procedure, for example through dyslexia .

Fundamental rights competitions

If the area of ​​protection of several fundamental rights is affected in one issue, these are in competition with one another.

The freedom of occupation differs from the property guarantee ( Art. 14 GG) in that it protects the acquisition, while Art. 14 GG relates to the protection of the acquired. If their protection areas overlap, the focus of the applicable regulation is decisive. A smoking ban also determines the use of property in a restaurant, but the focus of such a ban lies in the regulation of professional practice, so that not Article 14 GG, but Article 12 GG is the relevant basic right. The treatment of job-related advertising is controversial. According to one opinion, this does not fall under Article 12 of the Basic Law, but rather under the fundamental communication rights of Article 5 of the Basic Law. In contrast, the Federal Constitutional Court usually assigns advertising to the freedom of occupation. It only assumes protection through the freedom of occupation in cases in which the advertising serves communication beyond the advertising function.

If the professional activity concerned is at least predominantly sovereign, Article 33 of the Basic Law, which regulates civil service, takes precedence as a special fundamental right of professional freedom. Art. 12 GG supersedes the guarantee of general freedom of action ( Art. 2 Paragraph 1 GG) as a more specific regulation.

Intervention

An encroachment occurs when the guarantee content of a basic right is shortened by sovereign action. This applies, for example, when the legislature regulates whether and how a certain professional activity is to be carried out. Such interventions are, for example, advertising bans and restrictions, as they often exist for members of the liberal professions . Thus allowing § 43b of the Federal Lawyers example lawyers only advertising which objectively informed of the professional activity of the lawyer and does not address the issue of an order in individual cases. A similar regulation can be found for tax advisors in Section 57a ​​of the Tax Advisory Act . Further interventions in the freedom of occupation are age limit regulations .

In addition to these direct encroachments on fundamental rights, measures can also have an encroaching quality that only has an indirect effect on freedom of occupation. These include measures that do not aim to restrict occupational freedom, but in fact lead to such a restriction. This applies to numerous regulations. In order to remove issues with little relation to the occupation from the scope of the freedom of occupation, case law requires that a purely indirect encroachment on fundamental rights must have an objective occupation-regulating tendency. This applies to measures that have typical and predictable effects on professional life. The impairment of the freedom of occupation must also be of a certain significance. This is the case, for example, with communal wild animal bans for circus companies, which, although primarily serving animal welfare, also restrict the free professional activity of circus operators.

It is controversial in jurisprudence whether state product information and warnings constitute an interference with the freedom of occupation. The dispute sparked off on the occasion of the glycol wine scandal . In this context, the federal government issued a list that enumerated all wines in which diethylene glycol was found and named their bottlers. Numerous legal scholars rated this as an encroachment on the bottlers' freedom to exercise their profession, which was unconstitutional due to the lack of a legal basis. The Federal Constitutional Court did not follow the critical voices: It ruled that the state does not interfere with the freedom of occupation when it publishes market-related information, since the freedom of occupation does not protect against factual and truthful information. Therefore, there is no need for a standard that explicitly allows interference with the freedom of occupation.

If a sovereign influences free competition, he does not intervene in Article 12 of the Basic Law, since this norm does not serve to protect competitive positions, but merely protects the free choice of occupation as the basis of free competition. However, if government action leads to a disadvantage of individual market participants compared to their competitors, this has the quality of intervention if the government acts with an objective tendency to regulate the profession.

It is disputed to what extent the participation of public authorities in the free market represents an interference with the freedom of occupation. According to the prevailing view in jurisprudence, this is fundamentally not the case, since freedom of occupation gives a right to participate in the market, but not protection from competition. If the state therefore participates in the market like a private person, this does not affect the freedom of occupation. An encroachment on Art. 12, Paragraph 1 of the Basic Law exists, however, if a sovereign causes cut-throat competition by appearing in a market or entering the market with advantages that are not accessible to private competitors.

Justification of an Intervention

If there is a sovereign interference, it is lawful if it is constitutionally justified. Art. 12, Paragraph 1, Clause 2 of the Basic Law allows the freedom to choose or exercise a profession to be restricted by formal law . Since the freedom to choose and pursue an occupation represents a uniform basic right of occupational freedom, Article 12, Paragraph 1 of the Basic Law is therefore subject to simple legal reservation . Furthermore, the basic right can be restricted on the basis of a law. This allows interference by purely material laws based on a formal legal basis. According to Article 80 of the Basic Law, this applies to ordinances. In contrast, for example, an encroachment on fundamental rights through the statutes alone is not permitted .

In order for a law to interfere with the freedom of occupation or form the basis for such interventions, it must be in conformity with the constitution in terms of form and material.

The formal constitutionality of a law presupposes that it is based on a competence title and has been passed in a proper legislative process .

Material constitutionality presupposes that the law is sufficiently determined by clearly showing the nature and extent of possible interventions. Furthermore, the interference that the law develops must respect the principle of proportionality . This is the case when the law has a legitimate purpose, is suitable to promote it, is necessary for this and provides an appropriate regulation.

Goals that the legislature can reasonably pursue are legitimate. These include in particular goals of the common good, such as the protection of the quality of professional activity, consumer protection and health protection. On the other hand, protecting an occupation from competition is not a legitimate aim. A measure is suitable if it can at least promote the legitimate aim. Here, the Federal Constitutional Court grants jurisdiction a great deal of leeway so that it regards a measure as suitable if the legislature considers it beneficial for understandable reasons. Action is required when there is no more lenient means that is equally suitable for achieving the goal. This was missing, for example, with the legal prohibition of taking over clients by a lawyer in the context of a change of law firm. The blanket ban was not necessary, as weighing up individual cases as a milder means could have protected the clients equally. After all, the intervention must be appropriate. This is the case if the burden on the holder of the fundamental rights is not disproportionate to the intended purpose of the intervention.

This structure of the principle of proportionality is now generally recognized in research and jurisprudence. When this was not yet the case, the Federal Constitutional Court developed independent justification requirements for the freedom of occupation in the pharmacy ruling, which differentiate between three levels with regard to the severity of the intervention. This methodology is called the three-step theory. It is regularly used by the Federal Constitutional Court in judgments on professional freedom in order to determine the justification requirements for an encroachment on fundamental rights:

1st stage: Restriction of the freedom to pursue an occupation

At the first level, the Federal Constitutional Court locates interventions that only affect the free exercise of one's profession. This is typically the weakest form of interference in Art. 12 Paragraph 1 of the Basic Law, since it only determines how a profession is to be practiced. The professional practice regulations include, for example, the establishment of shop closing times by the Shop Closing Act , remuneration regulations and advertising bans and restrictions.

Such interventions can be justified on reasonable, expedient reasons for the common good. This essentially corresponds to the general criteria of the principle of proportionality. The Federal Constitutional Court, for example, considers the Shop Closing Act to be constitutional, as it serves to protect Sundays and public holidays. It also considered payment restrictions to be permissible in order to ensure the financial stability of statutory health insurance .

Advertising bans and restrictions for certain professions often have the function of ensuring trust in the seriousness of the profession concerned. This is a legitimate purpose because many professions, such as attorney-at-law, require special trust. The legislature is allowed to protect this trust by regulating the appearance of this profession on the market. To this end, the legislature created numerous bans on advertising as a whole, or at least for certain forms of advertising, which can impair the reputation of the profession. The Federal Constitutional Court set limits to such bans through several decisions: According to this, advertising bans are only permissible if they represent a proportionate means of protecting the profession. This applies, for example, to the ban on legal shock advertising. In contrast, the Federal Constitutional Court judged a ban to be unconstitutional because it was not necessary, prohibiting any use of advertising letters, distribution of leaflets and advertising material by a pharmacist outside his pharmacy . The case law of the Federal Constitutional Court induced the legislature to lift or moderate numerous advertising restrictions and thus led to a liberalization of advertising law.

Prohibitions on the sale of alcohol in order to prevent alcohol abuse and dangers to public safety are regularly viewed by the judiciary as a proportionate interference with the freedom to exercise a profession. The same applies to smoking bans in restaurants. However, such bans are not lawful if the legislature does not pursue a coherent protection concept.

2nd and 3rd stage: Restriction of freedom of choice of profession

At the second and third level there are interventions that restrict freedom of career choice. These typically interfere more deeply with the rights of the holder of fundamental rights, as they can hinder the choice of a profession. Therefore, their justification requirements are higher compared to the first stage. Whether there is an intervention at the second or third stage depends on the point of connection of the intervention.

Subjective occupational admission restriction

If the intervention is based on characteristics that are inherent in the person concerned, it is on the second level. This applies, for example, to the obligation to acquire certain qualifications, such as the requirement of two state exams to practice the legal profession or the obligation to pass the master craftsman's examination to run an independent craft business . The selection of statutory health insurance physicians by the admissions committee of the Association of Statutory Health Insurance Physicians is also an intervention on the second level. The case law also regards maximum professional age limits, for example for midwives, doctors, pilots or notaries, as a subjective professional admission regulation.

Such interventions can be justified on the grounds that they serve to protect important common goods. The Federal Constitutional Court saw these requirements as fulfilled, for example, with the requirement for the master craftsman's examination, as this ensures that the craft is properly practiced and that apprentices are well trained. However, in a more recent decision from 2005 it expressed doubts as to whether this assessment was still appropriate in view of the changed legal and economic framework conditions. The court regularly assesses age limits as permissible, as individual performance decreases with increasing age. In the case of public offices, there is also an interest in an orderly age structure within the occupation, as only a limited number of positions are available.

Objective occupational admission restriction

On the third level, there are interventions that connect to characteristics outside the person. Such interventions are the most serious, as they can prevent the free choice of a profession and, unlike the characteristics on the second level, cannot be influenced by the holder of fundamental rights. For this reason, interventions at the third level are only constitutional if they serve to ward off serious dangers to extremely important public goods.

The jurisprudence, for example, assessed public health as an extremely important common good . This can justify legal provisions that link the admissibility of taking up a professional activity to a public need for it. Such a need clause was, for example, the subject of the pharmacy ruling of 1958: The challenged law only permitted the establishment of a pharmacy if the pharmacies already in its catchment area were insufficient to supply the population with drugs and the establishment of the new pharmacy would make the existing pharmacies economical not significantly affected. The Federal Constitutional Court declared this regulation to be incompatible with Article 12 (1) of the Basic Law and null and void, since the legislature could not credibly demonstrate the extent to which the challenged regulation protects public health. The legality of the strict regulation of the operation of casinos is controversial . The Federal Constitutional Court considers this to be fundamentally permissible, since the containment of gambling addiction is an extremely important good. On the other hand, some legal scholars recognize in the numerous restrictions an inadmissible tutelage of the citizen and a disproportionate restriction of the professional freedom of the casino operator.

Reception of the three-step apprenticeship

The three-stage theory is criticized in jurisprudence for the fact that the reliable assignment of an intervention to a certain level is not possible in many cases. As a result, the classification of interventions in this scheme often has an arbitrary effect. The fundamental assessment of occupational exercise restrictions as comparatively weak encroachments in Article 12 of the Basic Law also harbors the risk that legislators and jurisprudence do not adequately appreciate the potential burden of fundamental rights that can be associated with such encroachments.

The Federal Constitutional Court has regularly applied the three-step apprenticeship in decisions on freedom of occupation since the pharmacy decision. However, it does not apply the stages schematically, but only regards them as a concretization for the normal case. For example, it assumed that the requirement for doctors to be admitted to statutory health insurance constitutes a regulation that corresponds to the intensity of a regulation of professional licensing. Therefore it measured them against the requirements of the third level of intervention.

Freedom from forced labor and forced labor

Art. 12 paragraph 2, 3 GG guarantee freedom from forced labor and forced labor. Despite being split into several paragraphs, these guarantees are a uniform basic right that protects against being forced to work.

In contrast to Article 12 (1) of the Basic Law, the group of fundamental rights holders is not restricted in this right, so that every natural person is entitled to it. In the absence of a typical risk situation, legal persons are ruled out as bearers of fundamental rights. From a factual point of view, the basic right protects against compulsions that can lead to a violation of human dignity : Compulsory work is the compulsion to do a certain job. Forced labor is the compulsion to provide one's entire workforce.

As a permissible exception to the prohibition of compulsory labor, Article 12, Paragraph 2 of the Basic Law names compulsion to perform conventional general public service obligations that are the same for all. According to Article 12, Paragraph 3 of the Basic Law, forced labor may be imposed within the framework of a court-ordered deprivation of liberty.

Regulations on freedom of occupation in state constitutions

Not all, but some federal states have their own regulations regarding the freedom of occupation in their state constitutions. In contrast to the Basic Law, in addition to guaranteeing the liberal right to freedom of occupation, they also contain basic social rights and the right to work based on the Weimar Constitution. The individual state constitutional regulations on the freedom of occupation and the right to work are of little importance in practice, in particular because they are qualified as mere program sentences and since the federal constitutional regulation of Art. 12 GG clearly dominates despite the parallel application according to Art. 142 GG.

  • The constitution of the state of Baden-Württemberg refers in Article 2 to the fundamental rights of the Basic Law of the Federal Republic of Germany. These are therefore directly applicable law. The freedom of occupation from Article 12, Paragraph 1 of the Basic Law is also anchored in the Baden-Württemberg constitution.
  • The constitution of the Free State of Bavaria of December 2, 1946 guarantees freedom of independent economic activity in Art. 151, Paragraph 2. But it also contains basic social rights based on the Weimar Constitution and, in Art. 166 BV, places work as a source of people's wealth under the special protection of the state. According to Art. 166 Para. 2 BV, everyone has the right to create an adequate livelihood through work.
  • The Constitution of Berlin granted in Article 17, the free choice of profession. Article 18 proclaims the right to work.
  • The constitution of the state of Brandenburg grants the freedom of occupation in Article 49. In addition, Article 48 requires the state “to ensure the realization of the right to work within the framework of its resources through a policy of full employment and employment promotion”.
  • The state constitution of the Free Hanseatic City of Bremen of October 21, 1947 states in Article 8 Paragraph 1 that everyone has the moral duty to work and the right to work. In paragraph 2 it also contains the guarantee that everyone has the right to choose their profession freely.
  • The preamble of the Constitution of the Free and Hanseatic City of Hamburg places workers under the protection of the state.
  • The constitution of the State of Hesse of December 1, 1946, in Article 28, Paragraph 1, also places human labor under the special protection of the state and in Paragraph 2 proclaims the right to work according to their abilities and, without prejudice to their personal freedom, to everyone moral duty to work.
  • The constitution of the state of Mecklenburg-Western Pomerania refers in Article 5 (in the same wording as the constitution of Baden-Württemberg) to the fundamental rights of the Basic Law of the Federal Republic of Germany. Article 17 requires the country to contribute to the maintenance and creation of jobs.
  • The Constitution of Lower Saxony required to work towards the country in Article 6 that every person can find work and can thus earn a living.
  • The Constitution of North Rhine-Westphalia is the protection of the work force on the protection of material possessions in Articles 24 and admits anyone a right to work.
  • The Constitution for Rheinland-Pfalz required to protect human labor as personal performance and basic economic factor against exploitation, operating risks and other damage in Article 53rd State and municipalities and municipal associations work to ensure that everyone can earn a living through freely chosen work. Article 58 grants every German the right to freely choose his profession in accordance with the requirements of the common good and to practice it in accordance with the law with unhindered freedom of movement.
  • The Constitution of the Saarland provides in Article 45 the manpower under the protection of the state. Everyone has a right to work according to their abilities. Article 54 requires the promotion and protection of the independent Saarland middle class in industry, trade, craft and trade - as well as promoting the cooperative system.
  • The Constitution of the Free State of Saxony of May 26, 1992, in addition to the classic guarantee of freedom of occupation in Art. 28 Paragraph 1, also recognizes the right of every person to a decent existence, in particular to work, to adequate housing, to adequate livelihood, on social security and on education, as a national goal (Art. 7 Para. 1).
  • The Constitution of the State of Saxony-Anhalt guaranteed in Article 16 all Germans the free choice of profession and workplace training center. The practice of the profession can be regulated by law or on the basis of a law.
  • The constitution of the Land of Schleswig-Holstein refers in Article 3 (in the same wording as the constitution of Baden-Württemberg) to the fundamental rights of the Basic Law of the Federal Republic of Germany.
  • The Constitution of the Free State of Thuringia granted to every citizen in Article 35, the free choice of profession and workplace training center. The choice of profession, the practice of the profession and the professional training can be regulated on the basis of a law.

European law

In European law, there are several regulations that are thematically related to occupational freedom and have different effects on the German legal system.

The European Convention on Human Rights (ECHR) prohibits slavery and forced labor , but does not guarantee freedom of occupation. The European Court of Human Rights regards aspects that are protected by Art. 12 Paragraph 1 GG as components of private life and therefore protects them through Art. 8 ECHR. According to the case law of the Federal Constitutional Court, the ECHR and the case law of the ECHR have an indirect effect on the German legal system by influencing its interpretation .

Regulations that are comparable to Art. 12 GG can be found in Art. 15 and Art. 16 of the Charter of Fundamental Rights of the European Union (GRC), which is part of European primary law according to Art. 6 of the Treaty on European Union . Art. 15 paragraph 1 GRC guarantees the right to work and to practice a freely chosen or accepted profession. In addition to guaranteeing the constitutional freedom of occupation, Art. 15 Paragraph 3 GRC also provides a right for nationals of third countries to working conditions that correspond to those of Union citizens. In Art. 16 GRC, the Charter guarantees the freedom to conduct a business, which is recognized under Union law and national laws and practices.

In Union law , there is apart from the GRC no written bill of rights. In order to protect aspects of professional freedom, the European Court of Justice (ECJ) developed such a right on the basis of the constitutional tradition shared by the member states. In this regard, he stated in 1974 that the constitutional order of all member states similarly guarantees freedom of work, trade and other professional activities. Further jurisprudence showed that the ECJ uses the free exercise of a profession synonymously with the economic freedom of activity, i.e., unlike the prevailing opinion in Germany, it does not interpret the freedom of occupation from a personality-related image of the profession, but argues in relation to the market. The ECJ understands the freedom of occupation as broadly as possible and interprets it as economic freedom. The CJEU's understanding of interference is also comparatively broad: it assessed, for example, an interference under species protection law to carry certain nets with you for fishing . This broad understanding means that almost every market-related regulation can interfere with the freedom to exercise a profession. However, the ECJ provides numerous justification options for an intervention. An interference can be justified by the fact that it corresponds to the common good objectives of the Union and does not affect the essence of the freedom of the profession . The European Court of Justice understands, for example, the implementation of the internal market , the protection of copyrights , health , consumer and environmental protection as goals of the common good .

Aspects of occupational freedom are also protected by the fundamental freedoms of the TFEU. These include the free movement of workers ( Art. 45 TFEU), the freedom of establishment protected in Art. 49 to Art. 55 TFEU ​​and the freedom to provide services regulated in Art. 56 to Art. 62 TFEU . These are equality rights that prohibit unequal treatment of domestic citizens and non-EU nationals. These rights serve to realize the European internal market, which is why they are closely related to job-related regulations. For example, the ECJ ruled on compulsory membership in chambers and the requirement that only German pharmacies are allowed to operate.

literature

  • Arnd Auer: The professional term in Article 12, Paragraph 1 of the Basic Law. Verlag Peter Lang, Frankfurt am Main et al. 1991, ISBN 3-631-43888-5 . (also: Dissertation . Univ., Cologne 1991)
  • Alexandra Borrmann: The protection of occupational freedom in German constitutional law and in European community law. Duncker & Humblot, Berlin 2002, ISBN 3-428-10482-X . (cf. jur. dissertation Cologne 2000)
  • Jörn Ipsen: “Step theory” and prohibition of excess. In: JuS . 1990, p. 634 ff.
  • Helmut Lecheler, Hans-Peter Schneider: Article 12 GG, freedom of occupation and fundamental right to work. In: Publications of the Association of German Constitutional Law Teachers. (VVDStRL), Heft 43, 1985, pp. 7 and 48 ff.
  • Jörg Lücke: The freedom of occupation. Müller, Heidelberg 1994, ISBN 3-8114-2594-3 .
  • Hans-Jürgen Papier: Art. 12 GG - Freedom of the profession and fundamental right to work. In: DVBl . 1984, p. 801 ff.
  • Friedrich Schoch: State information policy and occupational freedom. In: DVBl. 1991, p. 667 ff.
  • Rupert Stadler: The freedom of occupation in the European Community. Tuduv-Verlag, Munich 1980, ISBN 3-88073-098-9 . (see also: Univ., Diss., Munich 1980)
  • Peter Tettinger: The fundamental right to freedom of occupation in the case law of the Federal Constitutional Court. In: AöR . Volume 108, 1983, p. 92 ff.

Web links

Key decisions of the Federal Constitutional Court on freedom of occupation

Below is a selection of important decisions of the Federal Constitutional Court (cited from the BVerfGE reference) including a web link to the full text:

Other links

Individual evidence

  1. ↑ Martin Nolte: Art. 12. Rn. 5. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  2. ↑ BVerfGE 50, 290 (362) .
  3. ^ Friedhelm Hufen: Freedom of occupation - memory of a basic right. In: New legal weekly. 1994, p. 2913 (2915).
  4. ↑ Matthias Ruffert: Art. 12, Rn. 11-12 . In: Christian Volker Epping, Christian Hillgruber (Ed.): Beck'scher Online Comment GG. 34th edition 2017.
  5. ↑ a b BVerfGE 33, 303 : Numerus clausus I.
  6. ^ Hans Jarass: Lottery procedure and fundamental rights. In: New Journal for Administrative Law 2017, p. 273 (275).
  7. ^ Stefan Langer: Claims from civil liberties as an appeal to political responsibility. In: New legal weekly. 1990, p. 1328 (1330).
  8. ↑ BVerfGE 52, 380 : Silent examinee.
  9. ↑ BVerfGE 84, 59 : Mulitple-Choice-Procedure.
  10. ↑ BVerfGE 81, 242 : Commercial Agents.
  11. ↑ BVerfGE 97, 169 (176) : Small business clause.
  12. ↑ BVerfGE 92, 140 (150) : special termination.
  13. ^ A b c Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 35, Rn. 1.
  14. ↑ a b Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 374
  15. ↑ Thomas Mann: Art. 12. Rn. 2. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  16. ↑ a b c Hans Hofmann: Art. 12. Rn. 1. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  17. ↑ Martin Nolte: Art. 12. Rn. 3. In: Klaus Stern, Florian Becker (Hrsg.): Basic rights - Commentary The basic rights of the Basic Law with their European references . 2nd Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28265-1 .
  18. ↑ Rupert Scholz: Art. 12. Rn. 10. In: Theodor Maunz, Günter Dürig (Ed.): Basic Law . 81st edition. CH Beck, Munich 2017, ISBN 978-3-406-45862-0 .
  19. ↑ Hans Jarass: Preparation before Art. 1. Rn. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  20. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  21. ↑ Hans Jarass: Preparation before Art. 1. Rn. 19-23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  22. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 2.
  23. ↑ a b Hans Jarass: Art. 12. Rn. 12. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  24. ↑ Thomas Mann: Art. 12. Rn. 33. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  25. ↑ Winfried Kluth: The basic right of freedom of occupation - Art 12 para 1 GG. In: Jura 2001, p. 371.
  26. ↑ Thomas Mann: Art. 12. Rn. 34-35. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  27. ↑ Gerrit Manssen: Art. 12. Rn. 267. In: Hermann von Mangoldt, Friedrich Klein, Christian Starck (eds.): Commentary on the Basic Law. 6th edition. tape 1 . Preamble, Articles 1 to 19. Vahlen, Munich 2010, ISBN 978-3-8006-3730-0 .
  28. ^ Thomas Mann, Esther-Maria Worthmann: Occupational freedom (Art. 12 GG) - structures and problem constellations. In: Legal Training. 2013, p. 385 (386).
  29. ↑ Christoph Gröpl: Art. 12. Rn. 11. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  30. ↑ BVerfGE 129, 78 (94) .
  31. ↑ BVerfGE 45, 63 (79) .
  32. ↑ a b Hans Jarass: Art. 12. Rn. 13. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  33. ↑ Christoph Gröpl: Art. 12. Rn. 12. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  34. ↑ Thomas Mann: Art. 12. Rn. 41. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  35. ↑ BVerfGE 68, 272 (281) .
  36. ↑ BVerfGE 13, 97 (106) .
  37. ↑ BVerfGE 111, 10 (28) .
  38. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 6, Rn. 6th
  39. ↑ BVerfGE 117, 126 (137) .
  40. ↑ BVerfGE 115, 276 (301) .
  41. ↑ Hans Jarass: Art. 12. Rn. 9. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  42. ^ A b Thomas Mann, Esther-Maria Worthmann: Occupational freedom (Art. 12 GG) - structures and problem constellations. In: Juristische Schulung 2013, p. 385 (387).
  43. ^ Walter Frenz: The freedom of occupation - non-smoking protection, sports betting, tuition fees. In: Legal worksheets. 2009, p. 252.
  44. ↑ a b Martin Kment, Jennifer Fechter: Art. 12 I GG and the restriction of the professional association of freelancers in the light of the German constitution. In: Legal worksheets. 2016, p. 881 (882).
  45. ↑ BVerfGE 16, 6 (22) .
  46. ↑ BVerfGE 86, 28 (37) .
  47. ↑ BVerfGE 7, 377 (401) : Pharmacy .
  48. ↑ Thorsten Kingreen, Ralf Poscher: Fundamental rights: Staatsrecht II . 32nd edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4167-5 , Rn. 899.
  49. ↑ BVerfGE 50, 290 (363) : Co-determination.
  50. ↑ BVerfGE 116, 202 (221) : Declaration of compliance with collective bargaining agreements.
  51. ↑ BVerfGE 111, 366 (373) : Tax advisor acquisition.
  52. ↑ BVerfGE 34, 252 (256) .
  53. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , Rn. 353-355.
  54. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 35, Rn. 9.
  55. ↑ Thomas Mann: Art. 12. Rn. 89. In: Michael Sachs (Ed.): Basic Law: Comment . 7th edition. CH Beck, Munich 2014, ISBN 978-3-406-66886-9 .
  56. ↑ Rudolf Steinberg, Henrik Müller: Art. 12 GG, Numerus Clausus and the new university. In: New Journal for Administrative Law 2006, p. 1113.
  57. ^ A b Walter Frenz: The freedom of occupation - protection of non-smokers, sports betting, tuition fees. In: Legal worksheets. 2009, p. 252 (253).
  58. ↑ BVerfGE 134, 1 : Tuition fees Bremen.
  59. ↑ BVerwGE 78, 55 .
  60. ↑ BVerfGE 52, 380 (388) : Silent examinee.
  61. ↑ Hessischer VGH, decision of January 3, 2006, 8 TG 3292/05 = Neue Juristische Wochenschrift 2006, p. 1608.
  62. ↑ BVerfGE 88, 366 (377) : Animal Breeding Act II.
  63. ↑ BVerfGE 121, 317 (344) : Smoking ban.
  64. ↑ BVerfG, decision of August 26, 2003, 1 BvR 1003/02 = Neue Juristische Wochenschrift 2003, p. 3470.
  65. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 389
  66. ↑ BVerfGE 77, 84 (118) : temporary employment.
  67. ↑ BVerfGE 126, 286 (300) : Honeywell.
  68. ^ Michael Sachs: Constitutional Law II - Basic Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 , Chapter 8, Rn. 1.
  69. ↑ Michael Kleine-Cosack: Freelance -specific advertising bans before the end. In: New legal weekly. 2010, p. 1921.
  70. ↑ a b Michael Kleine-Cosack: Competition law and constitutional law versus antiquated job profiles. In: New legal weekly. 2013, p. 272.
  71. ↑ a b BVerfG, decision of March 5, 2015, 1 BvR 3362/14 = Neue Juristische Wochenschrift 2015, p. 1438.
  72. ^ Friedhelm Hufen: Freedom of occupation - memory of a basic right. In: New legal weekly. 1994, p. 2913.
  73. ↑ Peter Tettinger: The Federal Constitutional Court's lines of jurisdiction on maximum age limits as occupational regulations. In: German administrative sheets. 2005, p. 1397.
  74. ↑ BVerfGE 95, 267 (302) .
  75. ↑ Christian Waldhoff: Comment on OVG Lüneburg, decision of February 2, 2017, 10 ME 4/17. In: Legal Training. 2017, p. 806.
  76. ↑ Florian Becker, Ylva Blackstein: The transparent state - State consumer information over the Internet. In: New legal weekly. 2011, p. 490 (491).
  77. ↑ Alexander Schink: Smileys in food control - Constitutional permissibility of official information to the public about the results of official food control. In: Deutsches Verwaltungsblatt 2011, p. 253.
  78. ↑ BVerfGE 105, 252 : Glycol.
  79. ↑ BVerfGE 82, 209 (223) .
  80. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , Rn. 355.
  81. ↑ BVerwGE 39, 329 (336).
  82. ↑ BVerwGE 71, 183 (195).
  83. ↑ Hans Jarass: Art. 12. Rn. 23. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  84. ^ A b Walter Frenz: The freedom of occupation - protection of non-smokers, sports betting, tuition fees. In: Legal worksheets. 2009, p. 252 (255).
  85. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 35, Rn. 27.
  86. ↑ BVerfGE 33, 125 : Specialist.
  87. ↑ BVerfGE 106, 62 (104) : Altenpflegegesetz.
  88. ↑ BVerfGE 86, 28 (40) : Appointment of experts.
  89. ↑ BVerfGE 97, 12 (31) : Monitoring of patent fees.
  90. ↑ BVerfGE 13, 97 (117) : Handwerksordnung.
  91. ↑ BVerfGE 53, 135 (145) : Chocolate Easter Bunny.
  92. ↑ BVerfGE 108, 150 : Change of law firm.
  93. ↑ BVerfGE 117, 163 (182) : Legal success fees.
  94. ↑ BVerfGE 7, 377 (405) : Pharmacy .
  95. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 35, Rn. 17th
  96. ↑ BVerfGE 111, 10 (50) : Shop Closing Act III.
  97. ↑ BVerfGE 68, 193 (218) : Dental Technician Guilds.
  98. ↑ a b BVerfGE 94, 372 (392) : Pharmacy advertising.
  99. ↑ BVerfGE 111, 366 : Acquisition of tax advisors.
  100. ↑ BVerfG, decision of June 1, 2011, 1 BvR 233/10, 1 BvR 235/10 = Neue Juristische Wochenschrift 2011, p. 2636.
  101. ^ Andreas Raschke: Content and limits of medical advertising law. In: New legal weekly. 2015, p. 825.
  102. ↑ BVerfG, decision of September 29, 2010, 1 BvR 1789/10 = New Journal for Administrative Law 2011, p. 355.
  103. ↑ BVerfGE 121, 317 : Smoking ban.
  104. ↑ BVerfGE 13, 97 (106) : Handwerksordnung.
  105. ↑ BVerfGE 9, 338 (345) .
  106. ↑ BVerfGE 13, 97 (110) : Handwerksordnung.
  107. ↑ BVerfG, decision of December 5, 2005, 1 BvR 1730/02 = New Journal for Administrative Law 2006, p. 328.
  108. ↑ BVerfGE 71, 255 (270) .
  109. ↑ BVerfGE 64, 72 (82) .
  110. ↑ BVerfG, decision of January 5, 2011, 1 BvR 2870/10 = Neue Juristische Wochenschrift 2011, p. 1131.
  111. ↑ BVerfGE 7, 377 (444) : Pharmacy .
  112. ↑ BVerfGE 102, 197 (215) : Baden-Württemberg Casino Act.
  113. ↑ BVerfGE 115, 276 (300) : Sports betting.
  114. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 35, Rn. 56.
  115. ↑ Bodo Pieroth, Bernhard Schlink, Thorsten Kingreen, Ralf Poscher: Fundamental rights: Staatsrecht II . 31st edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4024-1 , chap. 949 .
  116. ^ Friedhelm Hufen: Freedom of occupation - memory of a basic right. In: New legal weekly. 1994, p. 2913 (2918).
  117. ↑ BVerfGE 11, 30 .
  118. ^ Lothar Michael, Martin Morlok: Grundrechte . 6th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3871-7 , Rn. 360-362.
  119. ^ Volker Epping: Basic rights . 8th edition. Springer, Berlin 2019, ISBN 978-3-662-58888-8 , Rn. 377.
  120. ↑ Hans Jarass: Art. 12. Rn. 114-117. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Comment . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  121. ^ Friedhelm Hufen: Staatsrecht II: Grundrechte . 5th edition. CH Beck, Munich 2016, ISBN 978-3-406-69024-2 , § 35, Rn. 45.
  122. ↑ ECHR, judgment of May 28, 2009, 26713/05 = Neue Juristische Wochenschrift 2010, p. 3419.
  123. ↑ BVerfGE 111, 307 : ECHR decisions.
  124. ↑ ECJ, judgment of May 14, 1974, 4/73 = Neue Juristische Wochenschrift 1975, p. 518.
  125. ↑ ECJ, judgment of November 13, 1990, C-370/88 .
  126. ↑ ECJ, judgment of October 5, 1994, C-280/93 .
  127. ↑ Heiko Sauer: The fundamental freedoms of Union law. In: Juristische Schulung 2017, p. 310 (311).
  128. ↑ Rudolf Streinz: Comment on ECJ, judgment of October 3, 2000, C-58/98 = Juristische Schulung 2001, p. 388.
  129. ↑ ECJ, judgment of May 19, 2009, C-171/07, C-172/07, C-171/07, C-172/07 = Neue Juristische Wochenschrift 2009, p. 2112.