Three-stage theory

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The three-stage theory is a concretization of the principle of proportionality developed by the Federal Constitutional Court in the pharmacy ruling in the context of the restriction of the fundamental right to freedom of occupation . The court corrected its view that Article 12 (1) of the Basic Law (GG) contained several basic rights, because it came to the conclusion that there is a uniform basic right to freedom of occupation.

The three stages

The freedom of choice and exercise of a profession guaranteed in Article 12 (1) of the Basic Law can be restricted by law or on the basis of a law in accordance with Article 12 (1) sentence 2 of the Basic Law. According to the case law of the Federal Constitutional Court developed in the pharmacy ruling ( BVerfGE 7, 377 ff.) Of June 11, 1958, the barriers to the basic right to freedom of occupation are divided into three different levels with different levels of intervention. The conditions under which the respective interference is constitutionally permissible increase from level to level.

1st stage - mere regulation of the manner in which the profession is practiced : it can be justified by any reasonable consideration of the common good, e.g. B. Closing time , no advertising for doctors. The protection of fundamental rights is limited to the defense against overly burdensome and unreasonable conditions.

2nd stage - Restrictions on the free choice of occupation due to subjective admission requirements. These give access to the professions only to applicants who are qualified in a certain way. These interventions can be justified if they are necessary to protect an important common good, e.g. B. the master's examination , the state examination or a minimum age. So the legitimation of these restrictions is that many professions require certain knowledge, skills or personal characteristics.

3rd level - Restrictions on the free choice of profession due to objective admission requirements. These are prerequisites that are independent of the individual suitability of the applicant: B. Approval quotas for pharmacies. Their fulfillment is thus detached from his person. The Federal Constitutional Court sees this as the crudest and most radical means of barring professionally and morally fully qualified applicants . These are therefore only permissible to avert serious and verifiable dangers to a paramount common good (e.g. public health, right to life).

The legislature must always choose the form of interference that least restricts the fundamental right. He may therefore only resort to regulations on the choice of profession if regulations on practicing the profession are not sufficient.

Background of distinction

The reason for this distinction is to be seen in the fact that the wording of the standard suggests a differentiation between freedom of choice and freedom to pursue an occupation. In the opinion of the Federal Constitutional Court, however, both form rather only connex elements of a uniform basic right to freedom of occupation, because even taking up an occupation represents both the beginning of the occupation and the confirmation of the choice of occupation expressed in this.

The proviso of Article 12, Paragraph 1, Sentence 2 of the Basic Law, which allows restrictions on freedom of occupation, expressly refers only to the exercise of the profession. In the opinion of the Federal Constitutional Court, however, this cannot mean that encroachments on the freedom of career choice cannot be justified. Therefore, the three-stage theory assumes that the reservation of Article 12, Paragraph 1, Sentence 2 of the Basic Law covers the freedom to choose and pursue an occupation “in principle”. However, according to the three-stage theory, the proviso does not apply to the same extent; rather, the aforementioned gradations in professional practice, subjective admission requirements and objective admission requirements must be made.

This differentiation as a result of the principle of proportionality is linked to the fact that an objective admission requirement for a profession is a much more serious encroachment on fundamental rights than a mere regulation of the exercise. In recent case law and literature, it should be noted that there has been a certain departure from a rigid tiered scheme and, rather, within the scope of justification, considerations of proportionality based on it are made in the sense of a sliding limit.

criticism

Even if the three-stage theory was quickly accepted and taken up by everyone, criticism has also set in in the meantime. The criticism formulated in particular by Jörg Lücke is based on the fact that the three-stage theory does not actually correspond to the wording of Article 12 (1) of the Basic Law. Lücke also accuses the Federal Constitutional Court of being inconsistent if, within the scope of protection, it assumes the uniformity of the fundamental right to freedom of choice and exercise of a profession, but conversely, in the context of the justification test, it does not pursue the uniformity, but interferes with the three mentioned Dividing stages.

Instead of the three-stage theory, one can understand the necessary qualification for a profession as a regulation of professional practice and thus consider the so-called subjective admission criteria to be justified even without the application of the three-stage theory via Article 12 (1) sentence 2 of the Basic Law. The necessary objective restrictions on admission could also be justified by means of the constitutional barriers. This is already recognized with the other unconditionally guaranteed fundamental rights, such as artistic freedom . In this respect, freedom of career choice would only be limited by the fundamental rights of third parties and objective constitutional goods that are generally equivalent to fundamental rights. The circle would roughly correspond to what, in the sense of the three-stage theory, corresponds to the serious and demonstrable dangers for an extremely important common good. Seen in this way, there is no need to resort to the three-stage theory, since all cases can be satisfactorily solved even by an interpretation that adheres to the wording of the standard.

literature

Individual evidence

  1. ↑ BVerfGE 7, 377 - Pharmacy judgment.
  2. ↑ Scholz: Maunz / Dürig, Basic Law Commentary . 80th EL June 2017 edition. S. Marg. 312 .
  3. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . 34th ed. S. Marg. 94 .
  4. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . BeckOK Basic Law, Epping / Hillgruber edition. S. Marg. 97 .
  5. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . 34th ed. S. Marg. 99 .
  6. ↑ Scholz: Maunz / Dürig, Basic Law Commentary . 80th EL June 2017 edition. S. Marg. 335 .
  7. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . 34th ed. S. Marg. 16 .
  8. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . 34th ed. S. Marg. 74 .
  9. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . 34th ed. S. Marg. 101 .
  10. ^ Ruffert: BeckOK Basic Law, Epping / Hillgruber . 34th ed. S. Marg. 102-103 .