Fundamental rights entitlement

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Fundamental rights entitlement or fundamental rights holder exists when a person is entitled, i.e. the holder of a fundamental right . It then has a subjective right against the state as a person obliged to exercise fundamental rights, the content of which is based on the respective fundamental right.

The right to fundamental rights with regard to a certain fundamental right must be distinguished from the fundamental right , i.e. the ability to be the bearer of fundamental rights at all, and the maturity of fundamental rights as the ability to exercise a fundamental right oneself.

Natural people

According to their function and their history, fundamental rights are individual rights of the individual vis-à-vis the state. They are primarily tailored to natural persons, who can derive rights of defense and participation in relation to legislation, executive power and jurisdiction from them.

Who specifically can be the bearer of a certain fundamental right depends on its personal area of ​​protection . According to this, there are basic rights that everyone is entitled to ( human rights ), those that only Germans are entitled to ( basic German rights ), and the right of asylum, which can only be carried by foreigners. The basic rights of legal persons are based on Article 19.3 of the Basic Law. If there is no entitlement to basic rights with regard to a certain basic right, then according to the prevailing, admittedly controversial view, the subsidiary general freedom of action comes into consideration.

In some cases, it is argued that those who cannot perceive the protected behavior for actual reasons are not the bearers of the basic right due to a lack of fundamental rights, such as the incapable of speaking small children are not the bearers of freedom of expression. Mostly, however, this mixture of protected property and the right to fundamental rights is rejected and the legal age of majority is related to the ability to process before the Federal Constitutional Court .

Spatial scope

The fundamental rights as subjective rights always protect when the German state acts and can thus potentially trigger a need for protection - regardless of where, against whom and in what form. The protection of fundamental rights against German state authority is therefore not limited to German territory. The binding of fundamental rights also towards foreigners abroad corresponds to the integration of the Federal Republic into the international community of states, in particular as far as the Basic Law guarantees the fundamental rights not as German, but as human rights. This applies in any case to the protection against surveillance measures by Article 10, Paragraph 1 and Article 5, Paragraph 1, Sentence 2 of the Basic Law in their defense dimension against international telecommunications intelligence by the Federal Intelligence Service .

Legal persons

Domestic legal persons

The fundamental rights also apply to domestic legal persons insofar as they are applicable to them by their nature ( Section 19 (3) GG). In any case, this is possible for legal persons under private law, but not for legal persons under public law. These are not entitled to fundamental rights, but are obliged to do so.

The essential applicability to legal persons under private law is recognized for example for Article 10.1 of the Basic Law, Article 5.1 sentence 2 of the Basic Law and Article 3.1 of the Basic Law.

Foreign legal persons

In addition to the restrictions resulting from the essential clause, the domestic clause with regard to foreign legal entities means that, with the exception of the so-called fundamental rights of justice, they are fundamentally not capable of fundamental rights.

Legal persons based in other EU countries

As a result of the European Treaties, however , the case law of the Federal Constitutional Court recognizes the possibility of extending the application of the protection of fundamental rights to legal persons from the European Union . Legal persons domiciled in other EU countries are treated in the same way as domestic legal persons if the legal person concerned from the European Union is active in the area of ​​application of Union law and they have a sufficient domestic connection that the validity of the fundamental rights in the same way as for domestic ones makes legal persons appear necessary.

Function carrier theory

German citizens who work abroad for a foreign company or organization should, according to the function holder theory advocated by the Federal Intelligence Service and parts of the literature, not be regarded as natural persons, but should be assigned directly to the foreign legal entity as function holders. This would mean that natural persons, even if their fundamental rights are affected by a state measure, in particular telecommunications surveillance abroad in accordance with the G10 law , would not be able to assert a possible violation of fundamental rights in court. If they as individuals were no longer differentiated from the legal person for which they work and were equated with it, they could no longer rely on individual fundamental rights like a foreign legal person.

In order to avoid such an erosion of Article 19.3 of the Basic Law, according to the latest case law of the Federal Constitutional Court, persons who claim that their own fundamental rights have been violated are not excluded from the protection of fundamental rights under the Basic Law because they are functionaries of a foreign legal entity Act person. Officials can only assert their own basic rights, but not, as trustees, basic rights of the legal persons for whom they act. However, insofar as their own fundamental rights are affected, their protection does not lapse because they are functionaries of a foreign legal person who, in accordance with Article 19.3 of the Basic Law, cannot invoke the fundamental rights of the Basic Law.

Lack of fundamental rights

In principle, the state, i.e. the entire public authority with legislation, administration and jurisdiction ( Article 1, Paragraph 3 of the Basic Law) is not entitled to fundamental rights, but is obliged to do so , regardless of whether it is a hierarchical administration or legally independent corporations , institutions and public foundations Acts right . If it were different, instead of securing freedoms from the state for citizens, fundamental rights would create new powers of intervention for the state. The only exception is the fundamental rights of the universities with regard to the freedom of science and the public broadcasters with regard to the freedom of broadcasting.

The public law churches and religious communities with regard to religious freedom are often wrongly named as a further exception . This alleged exception is based on the simplifying motto that Article 19.3 of the Basic Law applies only to legal persons under private law, linked to the fact that persons under public law are predominantly state. Due to the prohibition of the state church (cf. separation of church and state ), the public religious communities are precisely not part of the state and therefore not obliged to fundamental rights according to Article 1, Paragraph 3 of the Basic Law, but entitled to fundamental rights. It is therefore not an exception to the fact that the state is not entitled to fundamental rights, but rather the normal case of Art. 19 Para based on Art. 4 GG (freedom of religion) are entitled to fundamental rights, but are comprehensively entitled to fundamental rights like any other association of citizens.

However, the basic judicial rights are overwhelmingly granted to the state and foreign legal persons. This follows from the nature of the judicial process. In the case of the municipal guarantee of self-government in Article 28, Paragraph 2, Clause 1, the sponsors of which are municipalities and districts, i.e. parts of the state, the prevailing view is that it is a subjective right , not a fundamental right. The parallel between the municipal constitutional complaint (Art. 93, Paragraph 1, No. 4b GG) and the constitutional complaint (Art. 93, Paragraph 1, No. 4a, GG) reminds us that at the time of absolutism the democratically organized community was not as state, but as Was considered part of society.

Fundamental rights in the examination structure

In the examination structure of the constitutional complaint , the fundamental rights entitlement, although a question of personal protection , is examined not first in terms of its merits , but already in terms of admissibility . The starting point for this is Article 93, Paragraph 1, No. 4a of the Basic Law: who is everyone in the sense of this provision with regard to the respective fundamental right is determined by the right to fundamental rights. A Chinese, for example, because they lack German citizenship, would not be for everyone with regard to the basic German right to freedom of occupation (but with regard to the general freedom of action which would then apply ), and his constitutional complaint would be inadmissible in this respect.

If the right to fundamental rights is affirmed, the examination of the right to lodge a complaint follows , i.e. whether the violation of the fundamental right appears possible.

literature

  • Michael Sachs : Those entitled to basic rights. In: Constitutional Law II - Fundamental Rights. Springer textbook. Berlin, Heidelberg 2017

Web links

Individual evidence

  1. ^ Paul Kirchhof : Structure of the basic rights. Heidelberg, 2012.
  2. ↑ BVerfG, judgment of May 19, 2020 - 1 BvR 2835/17 ; left open in BVerfG, judgment of 14 July 1999 - 1 BvR 2226/94 et al.
  3. ↑ Herbert Bethge : Basic rights of legal persons: On the case law of the Federal Constitutional Court. AöR 1979, pp. 54-111
  4. ↑ Art. 19 Para. 3 Maunz / Dürig, Basic Law , 60th Supplementary Delivery 2010 (comparative legal references, selected literature and key decisions on Art. 19 Para. 3 GG).
  5. ↑ cf. on Art. 10 para. 1 GG: BVerfGE 100, 313, 356; 106, 28, 43; on Art. 5 (1) sentence 2 GG: BVerfGE 80, 124, 131; 95, 28, 34; 113, 63, 75; on Art. 3 Para. 1 GG: BVerfGE 21, 362, 369; 42, 374, 383; 53, 336, 345.
  6. ↑ cf. BVerfG, decision of July 19, 2011 - 1 BvR 1916/09 = BVerfGE 129, 78, 94 ff.
  7. ↑ Mike Wienbracke : EU law takes precedence over Article 19.3 of the Basic Law. BVerfG: Legal persons from other EU countries have fundamental rights. October 15, 2011.
  8. ↑ see also Jochen Rauber: On the right to basic rights of foreign-state controlled legal persons. Article 19.3 of the Basic Law under the influence of ECHR, EU-CFR and general international law. Mohr Siebeck, Tübingen 2019. ISBN 978-3-16-156729-2 (on domestic legal entities that are ruled and controlled by a foreign state). Reading sample
  9. ↑ cf. Björn Schiffbauer: Telecommunication monitoring in the fog. Young Science in Public Law, July 3, 2015.
  10. ↑ Sections 2.4.5, 3.2.6 of the service regulation according to Section 6 (7) BNDG for the BND's strategic telecommunications intelligence of March 7, 2019 (DV SIGINT); Karl, Soiné, NJW 2017, pp. 919, 920; Dietrich, in: Schenke, Graulich, Ruthig (Hrsg.): Sicherheitsrecht des Bundes , 2nd edition 2019, § 6 BNDG marginal no. 8 for functionaries of legal persons with sovereign tasks.
  11. ↑ Thorsten Denkler: This is how the BND adjusts the law. Süddeutsche Zeitung , November 27, 2014
  12. ↑ BVerfG, judgment of 19 May 2020 - 1 BvR 2835/17 para. 69 mwN
  13. ↑ cf. Sven Hölscheidt, Jura 2017, pp. 148, 153.