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Case:
BVerfG 7, 377 Apotheken -decision
Date:
11 June 1958
Judges:
Professor B.S. Markesinis
Copyright:
Raymond Youngs

1. Art 12 para 1 of the GG not only declares freedom of trade as an objective principle of the social and economic order; it guarantees the basic right of the individual to take up any permitted activity as a vocation, even if it does not correspond to a "vocational profile" fixed by tradition or law.

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5. The authority under Art 12 para 1 sentence 2 of the GG to lay down rules covers exercise and choice of a vocation, but not with the same intensity. It is given for the exercise of a vocation and can only affect freedom of choice of vocation from this angle. The more it purely regulates exercise, the freer the content can be, but the more it also concerns choice of vocation, the more limited its content.

6. The basic right is to protect the freedom of the individual, and the reservation of the power of regulation is to secure sufficient protection for community interests. The need to take both requirements into account means that when the legislator intervenes he must differentiate in accordance with the following principles:

a) Freedom of exercise of a vocation can be restricted in so far this seems appropriate according to rational considerations of the common good. Basic right protection is restricted to preventing conditions which are in themselves contrary to the Constitution because they may be excessively burdensome and are not reasonable.

b) Freedom of choice of vocation can only be restricted to the extent that protection of particularly important interests of the community positively requires it. If such an interference is unavoidable, the legislator must always choose the form of interference which restricts the basic right least.

c) If the interference with the freedom of choice of vocation takes the form of a list of certain conditions for taking up the vocation, a distinction must be made between subjective and objective prerequisites. The principle of proportionality applies to the subjective prerequisites (in particular education and training) in the sense that they must not be out of proportion to the desired goal of proper performance of vocational activity. Particularly strict requirements must be applied to proving the need for objective prerequisites for admission.

In general such a measure can only be justified to avert provable or highly probable serious risks to an extremely important community interest.

d) Rules under Art 12 para 1 sentence 2 of the GG must always be made at the level which causes the smallest interference with freedom of choice of vocation. The legislator can only embark on the next level if it can be shown that it is highly probable that the risks feared cannot be effectively overcome by means at the previous level which accord with the Constitution.

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Judgment of the first senate of the 11th June 1958
1 BvR 596/56
Art 3 para 1 of the Pharmacies Act states:

" (1) Permission to carry on business can only be given for a new pharmacy if:
a) it is in the public interest that the pharmacy should be established in order to secure the provision of the public with medicines, and
b) it is to be assumed that the economic basis of the pharmacy is ensured and the economic basis of neighbouring pharmacies is not impaired by it to such an extent that the prerequisites for a proper pharmacy business are no longer ensured.

The permission can be combined with a condition that the pharmacy is to be established in a certain location in the interests of uniform provision of medicine.

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IV

The question of whether Art 3 para 1 of the Pharmacies Act is reconcilable with Art 12 para 1 of the GG requires some considerations of principle about the meaning of this constitutional provision.

1. Art 12 para 1 protects the freedom of the citizen in an area which is especially important for modern society with its division of labour. It guarantees the individual's right to take up any activity as a "vocation" for which he believes himself to be suited (ie to make it the basis of how he conducts his life)..

...the concept of "vocation" must be interpreted widely. It does not only include all vocations which fit certain traditional vocational profiles - or even those fixed by law. It also includes atypical (but permissible) activities freely chosen by individuals from which new firm vocational profiles can then arise (references omitted)...

b) If the possibilities for the legislator to interfere in the area protected by the basic right are assessed by the constitutional provision itself, the wording of Art 12 para 1 could suggest that interferences are only to be permitted in relation to the exercise of a vocation; and the choice of a vocation would be simply excluded from statutory regulation. But that cannot be the meaning of the provision. This is because the concepts of choice and exercise of a vocation cannot simply be separated in such a way that they each only describe a certain period of vocational life which does not overlap with the other. In particular, the taking up of vocational activity represents the commencement of exercise of a vocation as well as the implementation of a choice of vocation which expresses itself precisely in this act - and frequently only in it. In the same way, the intention to continue a vocation which shows itself in the current exercise of it, and finally voluntary termination of the exercise of a vocation are really at the same time choices of vocation. Both concepts include the unified complex "vocational activity" seen from various angles (references omitted).

An interpretation therefore which would simply restrain the legislator from any interference with freedom of choice of vocation cannot be correct. It would not correspond with the realities of life, and it would therefore not lead in law to clear results. A statutory provision which appears primarily to regulate exercise of a vocation is in principle also permissible if it indirectly affects freedom of choice of vocation. That occurs principally when prerequisites for taking up a vocation, ie starting to exercise it, are laid down or, in other words, when starting to exercise a vocation is made dependent on a permission. Art 74 no 19, which provides a basis for legislative competence for "admission" for certain vocations, shows that the Basic Law did not not intend simply to exclude rules about admission. The legislative history of the provision also shows that although admittedly there was in principle an intention to avoid giving power to impose restrictions on admissions, on the other hand there was no intention to declare the numerous restrictions on existing admissions to be generally impermissible (reference omitted). It is true that the author of the Basic Law has not attained complete objective and conceptual clarity of the problems here. He has in the end chosen a formulation which followed the division between "choice" and "exercise" of a trade which is common in trading law, and in other respects deliberately left further regulation "largely" to statute (reference omitted)...

Art 12 para 1 is thus a unified basic right ("vocational freedom"), at any rate in the sense that the reservation of regulatory power in sentence 2 extends "in principle" to exercise and to choice of a vocation. This does not however mean that the legislator's powers in relation to each of these phases of vocational activity are equally as wide in their content. This is because the intention in the Constitution, which is clearly expressed in the wording of Art 12 para 1, must always be borne in mind, ie that the choice of vocation should be "free" but the exercise of a vocation may be regulated. The only interpretation which fits this is one which assumes that the power to regulate does not cover both "phases" with the same objective intensity; and that the more the legislator interferes with the freedom of choice of vocation, the more he is subject to stricter limits. This interpretation also corresponds with the basic conceptions of the Constitution and the human picture which it assumes (references omitted). The choice of vocation is supposed to be an act of self determination, a free decision of the individual will. It must as far as possible remain unaffected by interferences from state power. By exercising his vocation the individual takes a direct part in social life. Limitations can be imposed on him here in the interests of others and of the general public.

To summarise: The power to regulate extends to exercise and choice of a vocation. But it is given for the sake of exercise of a vocation and can at the most only interfere with freedom of choice of vocation from this angle.

The more it purely regulates exercise, the freer the content can be, but the more it also concerns choice of vocation, the more limited its content.

c) These are the general factors determining the scope of the power to regulate. As to its detailed content, the meaning of the concept of "regulating" must first be clarified, in particular in relation to freedom of choice of vocation. It cannot mean that the legislator has on the whole a wider area of discretion than with other general reservations of statutory power, and that he can regulate the whole area of vocational law more comprehensively and determine the content of the basic right constitutively (references omitted). Such a view would debase the basic right, because its content would be entirely surrendered to the discretion of the legislator, who is himself bound by the basic right (Art 1 para 3 of the GG). That would not fit the meaning of this basic right. It would scarcely be compatible with the special (pleonastic) emphasis on "free" choice of vocation in Art 12 para 1. And besides this, it would contradict the overall tendency of the basic rights section, which no longer recognises basic rights in the former sense which lose their content, as the Federal Constitutional Court has explained in its decision of the 16th January 1957 (reference omitted). The principle applying here is the one which was developed in the decision of the 15th January 1958 (reference omitted) that when the legislator is operating in the area protected by the basic right, he must take the significance of the basic right in the social order as the starting point for his regulation. It is not that he is free to determine the content of the basic right, but that a boundary can be set by the content of the basic right to his discretion about the content of his legislation. There is a clear substantive Basic Law value judgment in Art 12 para 1 in respect of a concrete and important area of life. The legislator is therefore not so free here as, for instance, in the application of the general principle of equality which amounts to a general legal principle for state authority, the actual content of which must be determined by the legislator for certain relationships in life, having regard to the particular aspects of justice applicable to it.

On the other hand, "regulate" does not mean that the legislator cannot restrict the basic right in any respect. Every regulation contains in itself the making of visible boundaries. But the expression "regulate", which the author of the Basic Law evidently uses deliberately here (instead of "restrict" or "limit", which are otherwise usual in the Basic Law provisions) points to an intention to determine the boundaries in a more detailed way from the inside. The boundaries are set out in the nature of the basic right itself, rather than in restrictions which would leave to the legislator the objective content of the basic right itself ie that would limit its natural area of applicability (based on a rational deduction) from the outside.

d) The basic right is supposed to protect the freedom of the individual, and the reservation of regulatory power is supposed to guarantee sufficient protection for community interests. As has been shown, the more the individual's right to free choice of vocation is in question, the more powerful the effect of his claim to freedom. The greater the disadvantages and risks to the community from completely free exercise of vocation, the more pressing the community's protection becomes. If an attempt is made to take both requirements (which are equally legitimate in a social constitutional state) into account in the most effective way possible, the solution can only be found in each case by careful balancing of the importance of the opposing (and possibly actually conflicting) interests. At the same time adherence to the idea that the free human personality is the highest value according to the overall view of the Basic Law (and that the greatest possible freedom must therefore be preserved for it in respect of choice of vocation) suggests that this freedom can only be limited in so far as this is indispensable for the common good.

For constitutional reasons there is therefore a requirement of differentiation for legislative intervention. The principles of this requirement can be summarised as follows.

Freedom of exercise of vocation can be limited by way of "regulation" in so far as sensible considerations of the common good make it appear appropriate. Freedom of choice of vocation may, on the other hand, only be limited in so far as this is essential for protection of especially important (paramount) community interests. This will be so in so far as the interests must, on careful balancing, be given priority over the individual's claim to freedom, and in so far as this protection cannot be secured in another way, ie by means which do not restrict choice of vocation, or limit it less. If an interference with freedom of choice of vocation proves to be unavoidable, the legislator must always choose the form of interference which limits the basic right least.

There are therefore, so to speak, several levels for the scope of the power to regulate.

The legislator has most freedom when he purely regulates exercise of vocation, in a manner which does not affect freedom of choice of vocation: he is merely determining the detail of the way people who pursue a vocation have to shape their vocational activity. Here, to a great extent, considerations of appropriateness can apply. These must be used to ascertain what conditions must be imposed on people who pursue a vocation in order to prevent disadvantages and risks for the general public. Certain provisions restricting the freedom of exercise of a vocation can even be justified by the idea of promoting it, and, in this connection, aiming at a higher overall level of social service on the part of those who pursue it. In this respect, basic right protection is limited to preventing statutory conditions which are in themselves unconstitutional, because they may be excessively burdensome and not reasonable. Apart from these exceptions, the violation of freedom of vocation which is in question here does not affect the holder of the basic right too seriously, as he already has a vocation and the power to exercise it is not affected.

On the other hand, a regime which makes the taking up of vocational activity dependent on the fulfilment of certain conditions, thereby affecting the freedom of choice of vocation, is only justified in so far as it protects a paramount community interest which takes precedence over the freedom of the individual. There is obviously a significant difference here - and this has been emphasised for a long time in the case law and the literature (reference omitted) - according to whether it is a question of "subjective" prerequisites, principally those of education and training, or of objective conditions in the permission, which have nothing to do with the personal qualification of the candidate for the vocation and on which he can have no influence.

A regime of subjective prerequisites for taking up a vocation is part of the legal order for a vocational profile. It gives access to the vocation only to the applicants who are qualified in a certain, and in fact mostly formal, way. Such a limitation is legitimised by the nature of the case. It is based on the fact that many vocations require certain technical knowledge and skills (in the broad sense) which can only be acquired by theoretical and practical training, and that exercise of these vocations without such knowledge would either be impossible or inappropriate, or it would cause harm and risk to the general public. The legislator merely concretises and "formalises" this requirement which arises from a professed relationship in life. Something is being expected of the individual in the form of a prescribed formal education. It is only what he ought in principle to take on himself anyway, according to the nature of the case, if he wants to exercise the vocation properly. This restriction of freedom thus proves to be the suitable method of preventing possible disadvantages and risks. It is not unfair, because it is the same for all candidates for the vocation and is known to them beforehand, so that individuals can assess before choosing a vocation whether they can fulfil the required conditions. The principle of proportionality applies here, in the sense that the prescribed subjective conditions should not be out of proportion to the desired goal of the proper fulfilment of vocational activity.

But a list of objective conditions for admission to a vocation is a different thing. The individual simply has no influence over their fulfilment. They strictly run counter to the purpose of the basic right, because even the person who has already realistically made (and has been allowed to make) his choice of vocation by the fulfilment of all the conditions required of him can in spite of this be excluded from admission to the vocation. This restriction of freedom is all the more important (and is accordingly all the more severely felt) the longer and the more technically specialised the education and training were, and thus the more unambiguously this actual vocation was chosen by selecting this particular training. As additionally it is not easy to understand what direct disadvantages the exercise of a vocation by a technically and morally qualified applicant is supposed to bring for the general public, the effective relationship between this limitation of the free choice of vocation and the desired result frequently cannot be clearly shown. The danger of extraneous motives intruding is therefore especially great. Above all there is a suspicion that the restriction on access to the vocation is to protect those who are already active in it from competition. Such a motive could in the general opinion never justify an interference with the right of freedom of choice of vocation. By choosing this crudest and most radical method of excluding candidates for vocations who are technically and morally (presumptively) completely suitable, the claim to freedom of the individual can be violated in an especially severe manner, quite apart from the possible conflict with the principle of equality. It follows from this that particularly strict requirements must be placed on proof of the need for such for such a restriction of freedom. In general, only the prevention of severe dangers for a community interest of paramount importance which are provable or highly probable can legitimise this interference with the free choice of vocation. The goal of promoting other community interests, or protection of the social prestige of a vocation by limiting the number of its members do not suffice, even if such goals would justify legislative measures in other cases.

The legislator must in each case make rules under Art 12 para 1 sentence 2 on the level which carries with it the least interference with freedom of choice of vocation, and may only embark on the next level if it can be demonstrated with high probability that the dangers feared cannot be effectively combated by means (which are constitutional) at the previous level...

5. The restrictions on the power to make rules which arise from the need to have regard to the basic right are material requirements of the Constitution which are primarily directed towards the legislator himself. But the Federal Constitutional Court must watch over their observance. If it is a question of a limitation of the free choice of vocation at the final level (of the objective conditions for admission), the Federal Constitutional Court must therefore first examine whether a paramount community interest is at risk and whether the statutory regime can do anything to prevent this risk. But it must also examine whether this particular intervention is required to protect that interest, or in other words whether the legislator could not have implemented this protection with rules at a previous level.

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