Freedom of occupation

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The freedom of occupation is the basic right to freely choose and practice one's occupation . It is guaranteed in many historical and current constitutional orders.

Although the freedom of occupation is sometimes referred to as a classic basic right, it was not yet included in the classic basic rights catalogs. In particular, the express guarantee of freedom of occupation was still missing in the French declaration of human and civil rights of August 26, 1789 and in the Virginia Bill of Rights of June 12, 1776. For the first time, however, the constitution of the French Republic of June 24, 1793 in Articles 17 and 18 of the preceding Declaration of Human and Citizens' Rights certain basic rights of professional freedom. However, due to the domestic and foreign political crises, this constitution was initially suspended and never came into force.

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

The freedom of occupation in European law

In European law , the aspects of occupational freedom are protected by various regulations. However, the European Convention for the Protection of Human Rights and Fundamental Freedoms in particular does not contain any guarantee of free choice of profession, job or training facility. There is only a ban on slavery and forced labor .

Regulations comparable to the freedom of occupation of the German Basic Law can be found in Articles 15 and 16 of the Charter of Fundamental Rights of the European Union (Article II-75/76 of the European Constitutional Treaty ). Art. 15 para. 1 guarantees the right to work and to practice a freely chosen or accepted profession. In addition to guaranteeing the constitutional freedom of occupation, Article 15 (3) of the Charter also provides a right for nationals of third countries to working conditions that correspond to those of Union citizens, provided that the foreigners work lawfully within the jurisdiction of the member states . In Article 16, the Charter contains a cautiously worded guarantee of entrepreneurial freedom, which is "recognized in accordance with EU law and national laws and practices" .

Apart from the Charter, there is no written catalog of fundamental rights in current Union law. The European Court of Justice (ECJ) must therefore primarily rely on the common constitutional tradition of the member states when deriving a corresponding fundamental right . In this regard, the ECJ already established in 1974 that the constitutional order of all member states "similarly guarantees freedom of work, trade and other professional activities." In further case law, it became increasingly clear that the ECJ was synonymous with the free exercise of a profession the economic freedom of activity is used, so unlike the prevailing opinion in Germany , he does not interpret the freedom of occupation from a personality-related image of the profession, but argues market-related. The ECJ understands the freedom of occupation as broadly as possible and interprets it as economic freedom. The European Court of Justice's understanding of interference is also comparatively broad: an interference with the freedom of occupation is supposed to constitute a species protection law prohibition of carrying certain nets with you for fishing . As a result, almost every market-related regulation could also encroach on the freedom to exercise a profession. In return, however, there are many ways to justify an intervention. In the case law, for example, there is the typical statement that the said encroachment on the freedom of occupation “corresponds to the common good serving objectives of the Union and does not affect the essence of this right .” The ECJ does not define the term common good narrowly; He also understands this to mean the realization of the internal market , the protection of copyrights , health , consumer and environmental protection . Since the ECJ does not closely examine the proportionality , there has not yet been a decision of the ECJ that found a violation of the freedom to pursue an occupation despite the broad scope of protection of the freedom of occupation.

In addition, individual aspects of the freedom of occupation are also protected by the fundamental freedoms of the Treaty on the Functioning of the European Union (TFEU). Mention should be made here of 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 fundamental freedoms are only aimed at the creation of a uniform internal market and are mainly aimed at the member states or their sovereign authorities. If, on the other hand, one compares the actual intensity of protection of the fundamental freedoms with the constitutional freedom of occupation, one can certainly say that the fundamental freedoms roughly correspond in their scope of protection to the German occupational freedom and functionally play roughly the same role as Art. 12.1 GG in German law .

The Universal Declaration of Human Rights contains in Article 23 (1) the “right to work, to free choice of occupation, to just and satisfactory working conditions as well as to protection against unemployment”.

Belgium

The Belgian Constitution of February 7, 1831, only since the Coordinated Constitution of February 17, 1994 contains a norm that expressly concerns freedom of occupation. Art. 23 No. 1 guarantees the right to work and free choice of occupation within the framework of a general employment policy. The freedom of occupation is thus only guaranteed here within the framework of general employment policy. It is therefore only a question of a programmatic target definition. In addition, the freedom of economic activity is recognized as an unwritten legal principle in Belgium, which has its origin in simple law, namely in the recognition of freedom of trade.

Germany

The freedom of occupation is guaranteed in Article 12.1 of the Basic Law.

In German constitutional history, the Paulskirche constitution of March 28, 1849 in § 158 already guaranteed that everyone is free to choose his profession and to train for it, however and where he wants. In connection with Section 133 (1), which guaranteed economic freedom of movement, the Paulskirche constitution already contained a real guarantee of freedom of occupation. However, even before that, individual constitutions of the German states contained approaches to a freedom of occupation, such as the constitutional charter for the Kingdom of Württemberg of September 25, 1819 in Section 29, and the constitutional charter for the Grand Duchy of Hesse of December 17, 1820 in Art. 36.

After the failure of the Paulskirche constitution, freedom of trade was proclaimed in the trade regulations of June 21, 1869 for the North German Confederation and later also for the German Empire . However, this guarantee only concerned the self-employed and was only applicable under simple law. So it was not a basic right in the strict sense.

The Weimar constitution of August 11, 1919 contained in Art. 111 WRV the guarantee of economic freedom of movement, in which one could also see the guarantee of freedom of career choice. Art. 151 para. 3 WRV also guaranteed the freedom of trade and commerce in accordance with the Reich laws. This standard encompassed not only the approval but also the exercise and in this respect went beyond the regulation of the still applicable trade regulations. The guarantee in the Weimar Imperial Constitution was, however, dependent on the law, which meant that the scope of the guarantee of professional freedom in the Weimar Republic was less than in the German Empire .

In addition to the classic guarantee of fundamental rights in Articles 151 to 165 of the Weimar Constitution, there was also a provision on “economic life”. Art. 157 para. 1 WRV placed workers under the special protection of the Reich. According to Art. 163 (2) WRV, every German should be given the opportunity to earn a living through economic work. However, from today's point of view, this welfare state objective, which had almost socialist features ( Gerhard Anschütz ), has not achieved its concern. This was mainly due to the fact that Weimar constitutional law saw mere program sentences in these regulations, which were unsuitable for implementation simply because of their indeterminacy. And in fact there were a large number of such proclamations in the Weimar Constitution, some of which even contradicted each other.

The guarantee of the freedom of occupation in the Basic Law

In contrast to the Paulskirche constitution and the Weimar constitution , freedom of occupation in the Basic Law is decoupled from the right to freedom of movement . The Basic Law of 1949 guarantees all Germans in Article 12, Paragraph 1, the freedom to choose a profession as well as the freedom to pursue an occupation and reads:

“All Germans have the right to freely choose their profession, workplace and training location. The practice of the profession can be regulated by law or on the basis of a law. "

The wording of the standard still suggests a differentiation between the freedom to choose an occupation and the freedom to pursue an occupation. However, in the opinion of the Federal Constitutional Court , both form only connex elements of a uniform basic right of freedom of occupation, because even taking up an occupation represents the beginning of the exercise of the occupation as well as the activity of choosing an occupation, which is expressed here. The basis of this dogmatics on freedom of occupation is still the so-called pharmacy judgment of the Federal Constitutional Court of June 11, 1958, in which the essential principles for the interpretation of freedom of occupation were first developed by case law. Since then, freedom of occupation has been understood as a uniform fundamental right that protects freedom of choice and the freedom to pursue an occupation.

The Federal Constitutional Court outlined the function of occupational freedom in a modern society based on the division of labor as follows in the codetermination ruling of March 1, 1979:

"Art. 12 para. 1 GG protects the freedom of the citizen in an area that is particularly important for a modern society based on the division of labor: It guarantees the individual the right to take any work for which he believes he is suitable as a 'profession', i.e. H. to make it the basis of his lifestyle. In this interpretation, Article 12, Paragraph 1 of the Basic Law goes further than the freedom of trade - which it does, of course, encompass. In addition, however, it differs from it in its personal trait: the 'profession' is understood in its relationship to the personality of the person as a whole, which is only fully formed and perfected when the individual dedicates himself to an activity that is his life's task and is the basis of life and through which it also makes its contribution to overall social performance. The fundamental right thus gains importance for all social classes; work as a 'profession' has the same value and dignity for everyone. "

- BVerfGE 50, 290 (362)

The freedom of occupation is first and foremost a right to freedom that aims to protect the individual from being restricted by the state. The fundamental right only partially has an objective dimension. In conjunction with Article 3, Paragraph 1 of the Basic Law, however, it opens up a right to equal participation in the distribution of limited resources by public authorities (e.g. introduction of the numerus clausus in the allocation of study places). In addition, however, the freedom of occupation also guarantees a right to protection in certain approaches, which has an effect in terms of procedural law in particular in the examination law . In the case of professionally relevant state examinations , the freedom of occupation therefore places requirements on the design of the examination tasks. In the examination process, general rule-of-law requirements are supplemented by elements specific to basic professional rights. The freedom of occupation also gives the civil law legislature requirements. According to the commercial agent decision of the Federal Constitutional Court of February 7, 1990, the freedom of occupation can dictate that the legislature creates precautions in civil law to protect the freedom of occupation against contractual restrictions.

Since Article 12, Paragraph 1 of the Basic Law is primarily a right of defense against the state, freedom of occupation cannot be understood as a “social right” in the sense of a claim to benefits. In particular, Article 12 (1) of the Basic Law does not guarantee a “right to work” . The state can only help the individual to develop his or her freedom in professional terms, but does not grant any entitlement to the establishment of certain jobs in individual cases that would be secured and realized by subjective claims.

Conversely, Article 12 (1) of the Basic Law does not proclaim the free market economy or freedom of trade as an objective principle of the social and economic order. Despite the freedom of occupation and the other fundamental rights relevant to economic and constitutional law such as Article 2, Paragraph 1 of the Basic Law ( General Freedom of Action ) and Article 14 of the Basic Law ( Freedom of Ownership ), the Basic Law is, in the opinion of the Federal Constitutional Court, "economically neutral". This statement goes hand in hand with the history of the creation of the Basic Law. The Parliamentary Council wanted to record only as "classic fundamental right" with the guarantee of freedom of occupation this in the bill of rights. The regulation of the social order should be left to the future.

In Art. 12 para. 2 and 3 is the freedom from forced labor and forced labor guarantees. These are closely related to the freedom of occupation guaranteed in Paragraph 1.

In some cases of the restriction of economic efficiency it can be difficult to separate the freedom of occupation from the property guarantee of Art. 14 GG. While Art. 12 GG protects the freedom of economic activity to acquire , property has the protection of what is acquired as its object. The activity in one's own business of a self-employed person is protected, for example, by Article 12 of the Basic Law, while the inventory of business objects or means of payment count as property in the constitutional sense.

Protection area

If state measures are checked for their compatibility with the freedom of occupation, according to the current examination scheme, it must first be checked whether the area of ​​protection has been opened, i.e. whether the fundamental right is thematically relevant with regard to the specific facts.

Personal protection area

According to Article 12, Paragraph 1 of the Basic Law, freedom of occupation is guaranteed to all Germans as so-called German law . Germans in this sense are all German citizens in accordance with Article 116 (1) of the Basic Law. Whether citizens of the EU can invoke Article 12 (1) GG is controversial. The fundamental freedoms of the EC Treaty , however, grant the citizens of the EU member states a legal status that corresponds to the legal status of German citizens with regard to the freedom of occupation.

Domestic legal persons can be bearers of the fundamental right in accordance with Art. 19 Para. 3 GG. The legal person is domestic if its actual center of action is in the territory of the Federal Republic. Foreign legal persons cannot invoke the fundamental right. Here, too, people who are resident in other EU countries have a special position. They can also invoke the basic right if they are active in Germany. According to the Federal Constitutional Court, the fundamental right is applicable to legal persons if they are in a “risk situation typical of fundamental rights”. This is the case if they are engaged in an activity that is used for gainful purposes. Corporations under public law have a special position here. Since, as part of the public sector, they are already subject to fundamental rights, they are not subject to the protection of professional freedom.

Material scope of protection
job

The objective scope of protection of the freedom of occupation must be determined from the concept of occupation. The term profession within the meaning of Article 12 (1) GG is understood as broadly as possible. It is defined as any gainful and permitted activity that is designed for a certain period of time. The problem in this context is the meaning of the characteristic allowed . An activity is permitted if it does not contravene the legal system, i.e. if it does not result in any prohibitions. This is often perceived as too narrow, so that the characteristic is reduced to the description “not absolutely harmful to the community”. It is irrelevant whether the cost of living can be covered in full or only in part. Self-employed activities are recorded as well as dependent employment . Job profiles are not given from the outset, activities that you invented yourself can also fall under. The occupation term also includes state-bound professions, such as B. the notary .

The freedom of occupation protected by Article 12 (1) of the Basic Law basically also includes the right to choose several occupations and to exercise them side by side. An employment contract may not generally exclude secondary employment . However, it may contain a clause according to which secondary employment may only be carried out with the permission of the employer ( approval reservation or reservation); In this case, the employee has a legal right to be granted this permit, provided that operational interests are not impaired. In addition, secondary employment by civil servants and employees in the public service is generally subject to approval (see §§ 97 ff. BBG and secondary employment ordinances ); According to §§ 99 Para. 2 BBG, no secondary activity is generally approved that "represents a second job because of commercial service or work or otherwise in terms of type, scope, duration or frequency".

Vocational training

Art. 12 para. 1 GG also includes the right tofreely choosethe training facility . The jurisprudence defines the training center as "an institution that an applicant must have passed through in order to be able to take up professions after taking the examination that can only be reached through this institution, which require the quality achieved through the examination".

Due to the thematic context, only the job-related training that logically and practically precedes the exercise of the job is recorded. This does not include training in general schools and studying “just for fun” , for example attending lectures at the university as a mere leisure activity without any professional purpose.

Professional practice

The term of professional practice includes everything that belongs to professional activity in the narrower sense, as explained above, for example running a company, concluding employment contracts, purchasing goods or company items, setting up an office, job-related advertising or the use of professional or business titles and designations.

Intervention

If the area of ​​protection has been opened, the question must be asked whether the state measure constitutes an interference with the freedom of occupation. Such can concern the exercise aspect (the "how" of the professional activity) as well as your choice aspect (the "whether" of the professional activity). Not every measure that affects the professional activity only factually or only indirectly can, however, be assessed as an encroachment on fundamental rights. Regulations that also, but not directly, have an impact on professional activity are measured by the Federal Constitutional Court in consistent case law against the criterion of the objective professional regulation tendency . In order to be able to affirm an intervention, activities must be affected that are typically carried out professionally and there must be a significant impediment to the professional activity due to the regulation.

In recent years, a much-discussed issue of interference has been whether state product information represents an interference with professional freedom, which would also be unconstitutional in the absence of a justifying law. The dispute sparked on the occasion of the glycol wine scandal , when the federal government issued a list listing all wines in which diethylene glycol was found and named their bottlers. A large part of the literature saw this as an interference with the bottlers' freedom of occupation, which was not based on any justifying law. However, in a highly controversial decision in 2002, the Federal Constitutional Court took the view that market-related information from the state does not impair the fundamental rights guarantee area of ​​the competitors concerned under Article 12 (1) of the Basic Law, provided that the influence on factors relevant to competition without distorting the market conditions the legal requirements for state information trading takes place. From a constitutional point of view, the existence of a state task and compliance with the jurisdiction as well as compliance with the requirements for the correctness and objectivity of information are said to be of constitutional importance.

Constitutional justification

If an intervention is affirmed, this does not automatically mean that the measure is unconstitutional. Interventions in the freedom of occupation can also be justified . The freedom of occupation is subject to simple legal reservation ( Article 12, Paragraph 1, Sentence 2 of the Basic Law). In the pharmacy ruling mentioned above, the Federal Constitutional Court developed the so-called three - step theory (also called step theory or step theory), which is not undisputed in the literature. According to the Federal Constitutional Court, a graded proportionality test must be carried out when examining the justification :

  • Pure professional practice regulations can be justified by “reasonable, expedient reasons for the common good”. The professional practice regulations include, for example, the establishment of shop closing times by the Shop Closing Act , the regulations on working hours, the prohibition for a lawyer to defend several accused, or even compulsory membership in chambers.
  • The listing of subjective restrictions on the choice of profession can be justified as a necessary precaution to protect “important common goods” which the legislature can specify according to political objectives (therefore: “relative” common goods or values). The practice of the legal profession z. B. without prior state exams would be “impossible or improper”. The selection of statutory health insurance physicians by the admissions committee of the statutory health insurance association is also a job-related differentiation based on the subjective characteristics of the person concerned.
  • The strictest requirements are placed on objective restrictions on the choice of profession . They are only admissible if they serve to ward off verifiable or most likely serious dangers to “absolute” (ie, constitutionally prescribed) “extremely important” common goods. This includes B. Public health in the admission of professionals in the field of medicine. Particularly problematic in this context are so-called need clauses, i.e. regulations that link the commencement of a professional activity to a public need. So had z. For example, the pharmacy ruling deals with a need clause in pharmacy law which, as a prerequisite for the establishment of a new pharmacy , stipulates that the existing pharmacies are insufficient to supply the population with drugs and that the establishment of the new pharmacy would not significantly affect the existing pharmacies economically. Since it is not clear to what extent such a regulation is absolutely necessary, for example to protect public health, it is unconstitutional.

Examples of more extensive legal regulations

Legal regulations on occupational freedom can be found in occupational law and in economic administration law . Examples are

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.

France

The Constitution of the French Republic of October 4, 1958 does not contain its own catalog of fundamental rights. The fundamental rights are written in the Declaration of the Rights of Man and the Citizen of 1789 and in the Preamble to the Constitution of 1946. By mentioning them in the preamble of the constitution of 1957, they are legally binding. However, there is no regulation about the freedom of occupation either. However, the Conseil d'État has recognized the freedom of trade and commerce as a general principle of law without constitutional status. The Conseil constitutionnel , on the other hand, granted freedom of entrepreneurship constitutional status.

Italy

According to Article 1, Paragraph 1 of the Constitution of the Italian Republic of December 27, 1947, Italy is a democratic republic based on work. According to Article 4, the republic recognizes the right to work for all citizens and promotes the conditions for the realization of this right. Regulations on the freedom of occupation can also be found in Article 41, Paragraph 1, which guarantees the freedom of private sector initiative.

Netherlands

The constitution of the Kingdom of the Netherlands of August 24, 1815, has only granted a uniform catalog of fundamental rights since it was revised in 1983. The basic right comparable to the freedom of occupation can be found in Article 19 (3), according to which the right of every Dutch person to freely choose their work is recognized, without prejudice to the restrictions by law or by virtue of a law. This norm is also assigned the character of fundamental rights in the traditional sense, so that it confers subjective legal positions . The norm, however, is systematically related to Article 19, Paragraph 1, which makes the creation of sufficient jobs a matter of concern for the state and other public corporations. Art. 19 is thus primarily to be seen as a mandate to the legislature to structure the protection of fundamental rights.

Austria

The Austrian constitutional law (StGG) of December 21, 1867 contains only limited provisions comparable to German law with regard to freedom of occupation. According to Art. 6 StGG every citizen can pursue any branch of business under the legal conditions. In this respect, Article 6 StGG explicitly guarantees freedom of trade, unlike the German constitution. However, this guarantee is subject to legal reservation ; the legislation is not restricted here. In addition, Art. 18 StGG guarantees that everyone is free to choose their profession and to train for it, however and where they want. However, this standard is not very effective. After the historical interpretation , this standard applies mainly against feudal or zünftische bonds and privileges.

Switzerland

In Switzerland , the basic right of economic freedom guaranteed in Article 27 of the Federal Constitution on April 18, 1999 protects free economic activity in a comprehensive sense. This also guarantees the freedom to choose a profession, the freedom of professional access and the freedom to pursue a profession, both legally and factually. The comprehensive protection of economic freedom, which was previously guaranteed in Art. 31 of the constitution of 1874, goes beyond what is understood in Germany and other countries under professional freedom and it is precisely in this that Switzerland's basic regulatory decision for a liberal one shows Economic order, which is also expressed in other provisions (Art. 94, Art. 26, Art. 96 Para. 1) of the Federal Constitution.

Spain

The constitution of the Kingdom of Spain of December 29, 1978 contains regulations on freedom of occupation in Art. 35 Paragraph 1 and Art. 38 Paragraph 1. According to Art. 35 Paragraph 1 Clause 1, all Spaniards have the duty to work and the right to work , to the free choice of occupation or an office, to advancement through their work and to a remuneration that is sufficient to meet their needs and those of their family. Art. 38 para. 1 recognizes freedom of enterprise within the framework of the market economy. However, basic economic rights do not play a prominent role within the catalog of basic rights. In some cases, you are even denied quality as a fundamental right. In any case, the objective dimension predominates here, which means that it is more of a catalog of demands of a political nature.

United States of America

The 1787 Constitution of the United States of America contains no express provision on the freedom of occupation. However, the 14th additional article (§ 1) of the constitution contains the so-called “due process clause” like a general clause. In some cases, this was seen not only as a purely procedural regulation, but was understood by the Supreme Court as the substantive limit of the state's power to intervene in life, freedom and property. This meant that the fundamental right to protect economic interests was also guaranteed. For a long time, the “ Lochner v. New York "decision (198 US 45) from 1905. In it the Supreme Court declared a law of the state of New York to be unconstitutional, which limited the working hours of employees in bakeries to a maximum of 10 hours per day and 60 hours per week. The Lochner decision was based on classical economic liberalism and later got into sharp controversy. In the 1930s this case law was completely changed. Although the Lochner decision was not "overruled", judicial control in the area of ​​economic legislation in the USA has ceased completely since 1937, with reference to the due process clause. A violation of the constitution is now only possible if economic regulation violates specific constitutional provisions or fundamental constitutional interests.

literature

Monographs

  • Arnd Auer: The professional term of Article 12, Paragraph 1 of the Basic Law , Frankfurt am Main [u. a.], Verlag Peter Lang, 1991, zugl .: Köln, Univ., Diss., 1991, ISBN 3-631-43888-5
  • Alexandra Borrmann: The protection of occupational freedom in German constitutional law and in European community law , Duncker & Humblot, Berlin 2002, plus jur. Diss. Cologne 2000, ISBN 3-428-10482-X
  • Jörg Lücke: Die Berufs Freiheit , Heidelberg, Müller, 1994, ISBN 3-8114-2594-3
  • Rupert Stadler: The freedom of occupation in the European Community, Munich, Tuduv-Verl.-Ges. in Komm., 1980, zugl .: München, Univ., Diss., 1980, ISBN 3-88073-098-9
  • Giesbert Uber: Freedom of the Profession , Hamburg, 1952

Contributions in comments and compilations

  • Rüdiger Breuer: Freedom of the Profession , in: Isensee / Kirchhof (ed.), Handbuch des Staatsrechts, Vol. VI, § 147, Heidelberg, Müller, 1989, ISBN 3-8114-2788-1 .
  • ders .: The state professional regulation and economic control , ibid., § 148.
  • Peter M. Huber , On the constitutional control of professional practice regulations , in: Burkhardt Ziemske (Ed.), State philosophy and legal policy: Festschrift for Martin Kriele for his 65th birthday, Munich, Verlag CH Beck, 1997, ISBN 3-406-41791-4 .
  • Gerrit Manssen , Art. 12 Paragraph 1 , in: v. Mangoldt-Klein-Starck, Commentary on the Basic Law, Vol. 1, 5th edition, Munich, Verlag Vahlen, 2005, ISBN 3-8006-3187-3 .
  • Peter J. Tettinger, Art. 12 , in: Michael Sachs (Ed.), Basic Law Commentary, 3rd edition, Munich 2003, ISBN 3-406-49233-9 .
  • Joachim Wieland : Art. 12 , in: Horst Dreier (Ed.), Basic Law Commentary, Vol. 1, 2nd edition, Tübingen, Verlag Mohr Siebeck, 2005, ISBN 3-16-148233-6 .

Essays

  • Jörn Ipsen : “Stufentheorie” and prohibition of excess, in: JuS 1990, p. 634 ff.
  • Friedhelm Hufen : freedom of occupation - memory of a basic right , in: NJW 1994, pp. 2913-2922
  • Helmut Lecheler and Hans-Peter Schneider: Article 12 of the Basic Law, Freedom of the Profession and Basic Right to Work , in: Publications of the Association of German Constitutional Law Teachers (VVDStRL), Issue 43, (1985), pp. 7 and 48 ff.
  • Hans-Jürgen Papier : Art. 12 GG - Freedom of the Profession and Basic Right to Work , in: DVBl ., 1984, p. 801 ff.
  • Hans-Heinrich Rupp : The basic right to freedom of occupation in the case law of the Federal Constitutional Court , in: AöR Bd. 92 (1967), p. 212 ff.
  • Friedrich Schoch : State information policy and occupational freedom , in: DVBl. 1991, p. 667 ff.
  • Peter J. Tettinger : The basic right to freedom of occupation in the case law of the Federal Constitutional Court , in: AöR Bd. 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. ↑ ECJ, judgment of May 14, 1974 , Az. 4/73, full text.
  2. ↑ ECJ, judgment of November 13, 1990 , Az. C-370/88, full text, Rn. 81.
  3. ↑ ECJ, judgment of October 5, 1994 , Az. C-280/93, full text, Rn. 87.
  4. ↑ Universal Declaration of Human Rights . OHCHR, German translation
  5. ↑ BVerfGE 7, 377 .
  6. ↑ BVerfGE 81, 242
  7. ↑ a b Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 339.
  8. ↑ Gröpl / WIndhorst / von Coelln / Gröpl , Study Commentary GG, 2013, p. 195.
  9. ↑ a b Gröpl / Windhorst / von Coelln / Gröpl , Study Commentary GG, 2013, p. 196.
  10. ↑ Decisions of the Federal Constitutional Court , Volume 129, p. 94f.
  11. ↑ Decisions of the Federal Constitutional Court , Volume 45, p. 79.
  12. ↑ Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 340.
  13. ↑ Decisions of the Federal Constitutional Court , Volume 68, p. 281.
  14. ↑ Decisions of the Federal Constitutional Court , Volume 13, p. 106.
  15. ↑ Decisions of the Federal Constitutional Court , Volume 111, p. 28.
  16. ↑ Jarass / Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary, 2014, p. 337.
  17. ↑ see for example BVerfGE 87, 287
  18. ↑ Secondary employment and non-competition clause. IHK Darmstadt Rhein Main Neckar, accessed on November 28, 2013 .
  19. ↑ BVerfGE 105, 252
  20. ↑ 14. Amendment to the United States Constitution on Wikisource
This version was added to the list of articles worth reading on November 10, 2005 .