Definition and Principle of Freedom of Occupation
Die Freedom of Occupation is a fundamental basic right that protects free access to and the free exercise of an occupation. It is enshrined in Article 12 paragraph 1 of the Basic Law of the Federal Republic of Germany (GG) and is among the most important economic freedoms. Freedom of occupation ensures that citizens can freely choose their profession, workplace, and place of training, as well as exercise their occupation.
In a broader sense, freedom of occupation includes the right to choose and pursue any permitted activity as a means of livelihood on a permanent basis. It is thus one of the classic defensive rights against state interference and enjoys a high level of protection within the system of fundamental rights.
Legal Framework of Freedom of Occupation
Constitutional Foundations
- Article 12 paragraph 1 GG:
“All Germans shall have the right to freely choose their occupation, workplace, and place of training. The practice of an occupation may be regulated by or pursuant to a law.”
Purpose of Protection and Scope of Persons
The fundamental right protects not only the initial choice of occupation but also all decisions made throughout one’s career, from vocational training and career changes to the termination of particular activities. In principle, the personal scope of protection covers all German nationals, while the case law of the Federal Constitutional Court (BVerfG) also protects EU citizens under the prohibition of discrimination and the freedom of establishment provided by European law.
The material scope of protection extends to any professional activity intended to be long-term and which serves to establish and secure one’s livelihood. Both self-employment and employment are included.
Interventions and Limits to Freedom of Occupation
Statutory Restrictions and Requirements
Freedom of occupation is not an unrestricted right. The so-called reservation of law permits restrictions if they are enacted by or based on a law and serve a legitimate purpose. Possible restrictions include admission requirements for certain professions, training and examination regulations, or rules governing professional practice.It is necessary that restrictions are always formally based on a law and materially proportionate—that is, they must be suitable, necessary, and reasonable.
Theory of Three Levels by the Federal Constitutional Court
The Federal Constitutional Court distinguishes three levels of interventions in freedom of occupation:
- Subjective Admission Requirements: Interventions based on personal qualities (e.g., qualification, training) require special justification, typically in the interest of protecting third parties.
- Objective Admission Requirements: Interventions unrelated to the individual practicing the profession, but rather tied to external factors (e.g., demand clauses). These are only permissible to protect particularly important public interests.
- Regulations on the Practice of a Profession: Regulations governing the manner in which a profession is practiced. These are permissible even for reasonable considerations of the common good.
Freedom of Occupation in the International Context
European Union
Within the European Union, freedom of occupation is supported by the fundamental freedoms, in particular freedom of establishment (Art. 49 TFEU) and freedom to provide services (Art. 56 TFEU). These provisions protect EU citizens from professional restrictions in the internal market and guarantee broad equal treatment regarding occupational choice and practice.
European Convention on Human Rights
According to Article 15 of the Charter of Fundamental Rights of the European Union und Article 1 of Protocol 1 to the ECHR the right to freely choose one’s profession is also protected at the international level.
Case Law on Freedom of Occupation
The Federal Constitutional Court has emphasized the importance of freedom of occupation in numerous decisions. It always examines state interference by the standards of proportionality and the protection mandate of Art. 12 GG. Important landmark decisions concern, for example, the numerus clausus in university admissions, access restrictions for regulated professions, and advertising bans for certain professional groups.
Relationship to Other Basic Rights
Freedom of occupation often interacts with other fundamental rights, particularly the guarantee of property (Art. 14 GG), freedom of enterprise, and the general principle of equality (Art. 3 GG). In cases of significant interference, a weighing of interests must take place, so that the different positions of fundamental rights are adequately considered.
Possibilities and Limits of Restriction
Statutory Limits and Requirements for Justification
According to Art. 12 para. 1 sentence 2 GG, state interference always requires a legal basis. Justification is assessed using the aforementioned theory of levels (admission vs. practice restriction) and the principle of proportionality. Particularly intensive restrictions require greater justification.
Unlawful Interventions
Restrictions that cannot be justified by legitimate public interests such as health protection, safety, or the preservation of public order are inadmissible according to established case law. Economic policy or purely fiscal motives are usually insufficient to justify restricting freedom of occupation.
Practical Examples
- Admission requirements: For example, licensing regulations in medical professions or the master’s certificate requirement in skilled crafts.
- Professional bans: Only for serious violations of the legal order.
- Advertising restrictions: Partially permissible, but must be proportionate and transparent.
Summary
Freedom of occupation is a central fundamental right of German constitutional law. It protects both the free choice of profession and its practice, and may only be restricted under strict conditions. The high standard of protection for freedom of occupation ensures economic development, social participation, and personal self-fulfillment. Any interference requires a legal basis and must comply with the principle of proportionality. In conjunction with European law requirements, freedom of occupation gains an additional dimension within the European internal market.
Frequently Asked Questions
Which fundamental rights are protected by freedom of occupation under German law?
Freedom of occupation is primarily protected under German law by Article 12 paragraph 1 of the Basic Law (GG). This fundamental right includes the right to freely choose one’s profession, workplace, and place of training, as well as the freedom to practice the chosen occupation. It is a so-called “unified basic right,” which protects both the choice and practice of occupation. The right to freedom of occupation is a universal right and, in principle, is available both to Germans and, according to Art. 19 para. 3 GG, to domestic legal persons, provided that this corresponds to their nature. EU citizens also benefit from corresponding rights under European freedom of movement. Freedom of occupation protects a central element of individual life planning and economic development, which is why any interference with this right must be particularly strictly justified.
Under what circumstances may the state restrict the freedom of occupation?
Interferences with freedom of occupation are generally possible, but subject to strict constitutional requirements. According to Art. 12 para. 1 sentence 2 GG, restrictions on the practice of a profession can be made by or pursuant to a law (“reservation of law”). The case law of the Federal Constitutional Court distinguishes between three levels of intervention: Intervention in professional practice (e.g. rules on opening times or hygiene regulations) are subject to a proportional restriction in the public interest (the so-called “third level”). Regulations on the choice of profession, however, can only be justified if they serve to protect especially important public interests and are proportionate (“second level”). Absolute admission restrictions on the choice of profession (“first level”) are only permissible if they are strictly necessary to protect overriding public interests. In principle, any restriction must comply with the principle of proportionality, i.e., it must be suitable, necessary, and reasonable.
What is the significance of the theory of three levels in the review of interventions?
The theory of three levels was developed by the Federal Constitutional Court to determine how strictly interventions in freedom of occupation must be reviewed according to the intensity of interference. It distinguishes between regulations on professional practice (third level), subjective admission requirements (second level), and objective admission requirements (first level). The more far-reaching the intervention—especially with objective admission restrictions such as the numerus clausus regulation for certain fields of study—the stricter the requirements, especially regarding proportionality. For mere practice regulations, a legitimate public interest purpose suffices, while restrictions on professional choice are only permitted for compelling reasons of public welfare. This systematic approach creates clarity and legal certainty when constitutionally reviewing state measures relating to freedom of occupation.
Who can invoke the freedom of occupation?
The fundamental right to freedom of occupation from Article 12 GG is, in principle, available to all Germans as defined in Article 116 GG, regardless of age, gender or prior education. Private law legal entities, as long as they are based in Germany and capable of possessing basic rights, may also invoke this right. In addition, European law—especially the freedom of movement for workers and the freedom of establishment from Art. 45 and 49 TFEU—provides EU citizens and companies with similarly comprehensive protection for choosing and practicing their occupations in Germany. In individual cases, foreigners who are not EU citizens can also be granted benefits through equal treatment regulations, under certain legal conditions. Freedom of occupation does not apply to persons unlawfully present on German territory or to the full extent in the public sector, outside of a public-law employment and loyalty relationship.
How is freedom of occupation restricted in special areas such as the civil service or military career?
Special regulations apply in the area of public service relationships and military careers due to the particular nature of public service. Civil servants and soldiers are subject to special duties of loyalty and obedience to their employer under civil service law. Art. 33 para. 5 GG guarantees the established principles of the professional civil service and can justify restrictions, for example, regarding the selection of specific posts or as part of official duties. For soldiers, moreover, special requirements of military order and discipline apply, which may entail restrictions on the free choice and practice of an occupation. Nevertheless, any restriction must be proportionate and justified by sufficient public interest. Outside of the service relationship, for example in retirement, these restrictions generally no longer apply.
Does freedom of occupation also apply to businesses and self-employed activities?
Yes, the protection of freedom of occupation according to Article 12 GG also includes self-employed and commercial activities. Both professionals (e.g., Rechtsanwalt, doctors, architects) and business operators can invoke the freedom of occupation. However, there are often additional specific public law requirements and restrictions in this area, such as licensing requirements, professional regulations, or business prohibitions under the trade regulations. Here too, any restriction must be proportionate, guided by the public interest, and established by law. More stringent requirements may arise, especially for reasons of public safety, health, or order.
How does freedom of occupation relate to other fundamental rights, especially to the rights of third parties?
The exercise of freedom of occupation can be restricted in the event of a conflict with other fundamental rights or public interests. Of particular importance is its relationship with the fundamental rights of third parties, for example the protection of life and physical integrity (Art. 2 para. 2 GG) or the protection of youth and public order. The legislator is obligated to strike a balance between conflicting legal interests according to the principle of practical concordance. In the balancing process, it must be taken into account that freedom of occupation is a central individual fundamental right, but not unlimited. Rather, a careful balancing of interests must be made in each individual case, ensuring that the freedom of one individual is not excessively restricted at the expense of the rights and freedoms of others.
