Definition and Legal Classification of Freedom of Occupational Choice, Freedom of –
Die Freedom of Occupational Choice is a central fundamental right in the German legal system and embodies the individual’s ability to freely choose their profession, workplace, and place of training. It constitutes an essential part of general freedom of action and personal development. In the Federal Republic of Germany, freedom of occupational choice is particularly protected by the Basic Law and holds a prominent position within the system of fundamental rights.
Anchoring in the Basic Law
Die Freedom of Occupational Choice is Article 12 paragraph 1 of the Basic Law (GG) explicitly guaranteed:
“All Germans shall have the right freely to choose their occupation, workplace and place of training. The practice of an occupation may be regulated by or pursuant to a law.”
This fundamental right therefore extends not only to the choice of an occupation, but also to the decision regarding a specific place of training and the choice of workplace.
Scope of Protection of the Freedom of Occupational Choice
Personal Scope of Protection
The right to freely choose one’s occupation, pursuant to Art. 12 para. 1 GG, applies to all Germans . European Union law and international law extend this protection in the context of freedom of establishment (Art. 49 TFEU) and free movement of workers (Art. 45 TFEU) to Union citizens.
Subject-Matter Scope of Protection
The subject-matter scope includes the choice of occupation as well as the free commencement and practice of any gainful activity that is intended to be permanent and serves to secure a livelihood. This includes both traditional professions and new, previously unrecognized activities, provided their pursuit serves to establish or maintain a basis of livelihood on a lasting basis.
Distinction: Choice of Occupation and Practice of Occupation
Case law differentiates between:
- Freedom of Occupational Choice: the decision as to which occupation a person pursues.
- Freedom to Practice an Occupation: the manner in which a chosen occupation is practiced.
Restrictions on the freedom of occupational choice are more serious than interferences with the freedom to practice an occupation and are therefore subject to stricter legal requirements.
Limits and Restrictions
Statutory Limits (limits on limits)
Freedom of occupational choice is not granted without restriction. Limitation is permitted under Art. 12 para. 1 sentence 2 GG by or on the basis of a law. The Federal Constitutional Court has developed a graduated system for restrictions, especially regarding interference with the freedom of occupational choice:
Theory of graduated regulation
- Subjective Admission Requirements
These requirements relate to the person seeking admission to a profession, e.g. qualifications or reliability. Restrictions here are only permissible for compelling reasons relating to the public good.
- Objective Admission Requirements
Whether and how many persons may enter a profession depends on factors independent of the individual (e.g. needs assessment). Such interventions require special justification and are only permitted for overriding public interests.
- Regulations on the Practice of an Occupation
This concerns the ‘how’ of practicing an occupation, e.g. certain behavioral obligations or operating regulations. These restrictions are already permissible if reasonable grounds relating to the common good exist.
Practical Examples of Restrictions
- Admission requirements for regulated professions (e.g. health or legal professions)
- Business prohibitions due to unreliability
- Needs assessments in areas with limited access capacity
Significance for Foreign Nationals
While the fundamental right to freedom of occupational choice is directly addressed to Germans, EU and international regulations generally allow foreign nationals from EU member states to be treated equally, especially regarding freedom of establishment and free movement.
Safeguarding and Legal Protection
Protection by Constitutional Courts
Interventions in the freedom of occupational choice are, under constitutional law doctrine, subject to strict review by constitutional courts. Any restriction must always be proportionate, appropriate, necessary, and reasonable.
Judicial Protection in Administrative Courts
Against unlawful restrictions, the individual concerned may seek recourse through administrative jurisdiction, e.g. by filing an objection and taking legal action against a denial of admission, blocking, or prohibition of professional practice.
Relationship with Other Fundamental Rights
The freedom of occupational choice is closely related to other fundamental rights, in particular:
- General freedom of action (Art. 2 para. 1 GG)
- Principle of Equal Treatment (Art. 3 GG)
- Guarantee of Property (Art. 14 GG), where an intervention affects professional activities and related assets
Relevance in the European and International Context
The right of free access to employment activity is also the subject of international treaties, such as the European Convention on Human Rights (ECHR, Art. 15), as well as the Charter of Fundamental Rights of the European Union (Art. 15 EU-CFR).
Summary
Die Freedom of Occupational Choice is a comprehensively protected fundamental right that guarantees the free decision regarding the uptake, practice, and cessation of a professional activity. Restrictions are only permissible under strict conditions for the protection of overriding public interests and are subject to judicial review. The fundamental right also applies in various ways to foreign nationals and within the framework of international and European regulations. In this respect, freedom of occupational choice constitutes a fundamental pillar of the German rule of law and the liberal democratic constitutional order.
Frequently Asked Questions
What legal principles safeguard the freedom of occupational choice in Germany?
The freedom of occupational choice is a fundamental right in Germany and is protected by Article 12 paragraph 1 of the Basic Law (GG). This article guarantees every German the right to freely choose their profession, workplace, and place of training. Restrictions of this freedom are only permitted on the basis of a law and with regard to the principle of proportionality. Freedom of occupational choice includes both the decision to take up any profession at all and the selection of a particular profession and its practice. State regulatory power is clearly limited here by the tripartite theory of the Federal Constitutional Court regarding regulations of professional practice, subjective admission requirements, and objective admission restrictions. Any restriction must also be justified by sufficient public interest and must be proportionate.
When and how may the state restrict freedom of occupational choice?
The state may only restrict the freedom of occupational choice if there is a legal basis and compelling reasons of public interest. According to the so-called tripartite theory, the Federal Constitutional Court distinguishes between regulations of professional practice (e.g. shop opening hours), subjective admission restrictions (e.g. proof of qualification, medical license), and objective admission restrictions (e.g. restrictions due to too many practitioners in an occupation). The lowest requirements apply to regulations on professional practice (simple legal reservation), the strictest to objective admission restrictions (demonstrable protection of especially important community assets). The measures must always be suitable, necessary, and appropriate (proportionate).
Are there differences in occupational freedom between Germans and foreigners?
In principle, Article 12 GG regulates occupational freedom only for Germans as defined by the Basic Law. For foreign nationals, other regulations apply, in particular the Residence Act (AufenthG) and the Act on the Freedom of Movement of EU Citizens regarding EU citizens. For nationals of third countries, practice of an occupation is usually only possible with the relevant residence or work permit. For EU citizens, on the other hand, the prohibition of discrimination under Art. 18 TFEU and the free movement of workers under Art. 45 TFEU apply, so that they are largely legally treated equally to Germans regarding freedom of occupational choice.
How does freedom of occupational choice relate to training requirements and admission conditions?
Freedom of occupational choice is also protected vis-à-vis training requirements and admission requirements, with a clear distinction made between permissible regulations on professional practice and impermissible prohibitions on access to a profession. Training and qualification requirements are permitted if they serve the protection of important community interests (e.g. life, health, protection of property), and are suitable, necessary and proportionate. They must not be arbitrary, unreasonable, or discriminatory. Access regulations are usually subject to stricter scrutiny, especially objective admission restrictions must be in the public interest and must only be used as a last resort.
What legal options exist against an impermissible restriction of freedom of occupational choice?
Anyone who believes their occupational freedom has been violated by a state action can either pursue legal remedy in the administrative courts or (after exhausting all legal remedies) file a constitutional complaint with the Federal Constitutional Court. In the administrative court, one can seek a declaration or removal of the unlawful measure. A constitutional complaint under Article 93 para. 1 no. 4a GG requires that all other legal remedies have been exhausted and a violation of the fundamental right under Art. 12 GG is claimed. The Federal Constitutional Court examines whether the restriction is constitutionally justified.
Are there legal differences between the choice and practice of a profession?
Yes, legally a distinction is made between freedom of occupational choice (whether and which occupation someone pursues) and freedom to practice an occupation (how this occupation is carried out). While restrictions on occupational choice are only permitted for especially significant reasons in the public interest (e.g. numerus clausus, requirement for master craftsman status), regulations on professional practice can be enacted to avert dangers to equality, order, or other community values (e.g. hygiene regulations, shop closing laws). The constitutional justification requirements for freedom to practice an occupation are lower than for occupational choice freedom—the closer a measure comes to the ‘whether’ of practicing the occupation, the higher the requirements for justification.
