Definition and Significance of Profession in the Legal Context
The term “profession” in the legal context refers to any activity that is intended to be long-term and suitable for creating and maintaining a livelihood, provided it is not generally against the law or public morals. The legal dimension of the term becomes particularly significant due to the basic right to freedom of occupation, which is enshrined in the German Basic Law. The free choice and pursuit of a profession are fundamental pillars of the economic and social system as well as of individual self-realization.
Constitutional Foundations of the Freedom of Occupation
Article 12(1) Basic Law (GG)
The legal basis for the free choice and pursuit of a profession is primarily found in Article 12(1) of the Basic Law (GG):
“All Germans shall have the right freely to choose their occupation, place of work and place of training. The practice of an occupation may be regulated by or pursuant to a law.”
From this, three aspects of occupational freedom arise:
- Freedom to choose one’s profession
- Freedom to choose one’s place of training
- Freedom to practice one’s profession
Scope of the Basic Right
According to established case law, the scope of Article 12 GG covers all activities aimed at earning a living, provided their exercise is intended to be permanent and serves to create and secure an economic basis. It is not necessary for the activity to take the legal form of dependent employment; independent activities as well as dependent employment relationships and freelance work are included.
In contrast, purely hobby or occasional activities, activities of a criminal or immoral nature, and certain civic duties (such as compulsory military or civil service) are not protected.
Definition of Profession in Law
Restricted and Expanded Definitions
The Federal Constitutional Court distinguishes between the “broad” and “narrow” definitions of profession:
- Broad Definition of Profession: Any long-term gainful activity, regardless of qualification or societal status.
- Narrow Definition of Profession: Especially includes requirements for training or special admission prerequisites, as is the case for regulated professions (e.g. doctors).
In German law, the broad definition of profession prevails – the decisive factor is the permanency and intent to earn a living.
Freedom to Choose a Profession versus Freedom to Practice a Profession
- Freedom to choose a profession refers to the decision of which profession one wants to take up, that is, access to the profession.
- Freedom to practice a profession covers the specific structuring of professional activity (e.g. working hours, working conditions, self-employment).
Interventions in the choice of profession or training institution are only permissible under strict conditions (“by law or pursuant to a law”) and where there is a legitimate public interest, such as the protection of particularly sensitive community assets.
Statutory Restrictions on Freedom of Occupation
Three-Level Test for Interference
The Federal Constitutional Court differentiates permissible restrictions of occupational freedom using the so-called “three-tier theory”:
- Regulations on the Practice of an Occupation
Affect only the “how” of the activity (e.g., shop opening hours, compulsory insurance). Justified by simple appropriateness.
- Subjective Admission Requirements
Concern personal qualities/suitability (e.g. proof of qualifications, reliability), and are only justified when significant public interests are at stake.
- Objective Admission Requirements
Limit the number of professionals regardless of their suitability (e.g. numerus clausus, needs assessment). Require the existence of overriding and particularly weighty public interest.
The higher the level, the greater the requirements for proportionality and justification of the interference.
Admission Requirements and Regulation
Statutory provisions define admission requirements for certain occupational groups (regulated professions), such as licensure, master craftsman certificates, or membership in a professional body. The basis for these is specific professional legislation (e.g., Trade and Crafts Code, Federal Medical Code).
Scope and Restrictions for Foreign Nationals
Specific requirements also apply to EU nationals and third-country nationals. The recognition of foreign professional qualifications is regulated in the “Recognition Act” and various sectoral laws. Free movement and equal treatment of EU citizens are ensured by Union law (Art. 45, 49 TFEU). However, recognition of professional qualifications may be permitted to safeguard legitimate public interests (e.g. protection of health).
Special Occupational Regulations
Minors
For minors, the right to choose a profession is mainly limited to the choice of apprenticeship or training (see Sections 106 ff. BGB). Parental custody generally includes the right to take up gainful employment on behalf of the minor, but this is subject to statutory age and labor protection provisions (especially the Youth Employment Protection Act).
Basic Rights Protection for Legal Entities
According to Article 19(3) GG, the freedom of occupation also applies to domestic legal entities under private law (e.g. GmbH, AG, registered cooperative), to the extent that the basic right is applicable by its nature.
Freedom of Occupation in the International Context
Freedom of occupation is also internationally recognized, e.g. in the European Convention on Human Rights (ECHR, Art. 15 in conjunction with Art. 8) and in the EU Charter of Fundamental Rights (Art. 15). States may make interventions to protect legitimate objectives, but must always adhere to the principle of proportionality and non-discrimination.
Duties of Protection and Limitation Safeguards
The state is obliged not only to respect but also actively to protect the freedom to practice a profession. This means it must create the conditions necessary for professional activity (e.g. teaching supply, access to labor markets) and may not intervene in the choice and practice of a profession without sound reasons.
At the same time, restrictions must always be tested against the principle of proportionality – the mildest, suitable, and necessary means to protect the intended public interest must be chosen.
Conclusion
The legal definition of profession and the guarantee of its free choice and practice are comprehensively protected by the Basic Law. Freedom of occupation is essential for individual self-determination, economic development, and social participation. It can only be restricted under strict conditions, with all interventions subject to an assessment of proportionality. Legislative authority extends to all essential aspects, but must respect constitutional boundaries and, in particular, the scope of Article 12 GG.
Literature and Further Sources
- Basic Law for the Federal Republic of Germany, Art. 12
- Federal Constitutional Court: consistent case law on the freedom of occupation
- Trade and Crafts Code, Federal Medical Code, Recognition Act
- European Convention on Human Rights (ECHR)
- EU Charter of Fundamental Rights
This article provides a comprehensive and detailed introduction to the legal principles of the free choice and practice of a profession, and highlights the relevant statutory regulations and current developments in professional law.
Frequently Asked Questions
What legal boundaries exist for the free choice of profession in Germany?
Freedom to choose a profession is guaranteed in Germany as a basic right under Article 12(1) of the Basic Law (GG). Every German has the right to freely choose their profession, workplace, and training center. However, this right is not without limits. Restrictions are permissible on a legal basis if justified by the public welfare. Such restrictions can arise through entry requirements, licensing prerequisites or training requirements. The Federal Constitutional Court distinguishes three levels of restrictions: subjective regulations on the choice of profession (restrictions linked to personal requirements, e.g. qualifications), objective admission restrictions (e.g. workforce planning in healthcare), and simple regulations on the practice of the profession (e.g. shop opening times). Restrictions are only permitted if they are proportionate, i.e., suitable, necessary, and reasonable. For example, licensing for doctors is required by law (§§ 3 ff. Federal Medical Code) to protect public welfare. Discriminatory or arbitrary restrictions are not permitted.
What role do state admission requirements and mandatory chamber membership play in the practice of a profession?
State admission requirements often regulate access to so-called regulated professions, especially in the area of liberal professions such as doctors, pharmacists, Rechtsanwalt, notaries, or tax consultants. Generally, passing an examination and providing proof of particular personal and professional suitability are required. In addition, many of these professions require mandatory chamber membership: Membership in a professional chamber is legally required and a precondition for practicing the profession. Chambers oversee professional supervision, regulate continuing education, protect the interests of their members, and ensure compliance with professional rules and ethics. Rechtsanwalt, for example, must be a member of a regional bar association, § 60 BRAO. However, chamber membership may not be arbitrarily denied – access restrictions must always be clearly regulated by law and be objectively justified.
To what extent can a professional ban be imposed for legal reasons?
A professional ban constitutes a serious interference with the freedom of occupation and always requires a legal basis. Under German law, a professional ban can be imposed as an ancillary consequence of a criminal offense (§§ 70 ff. StGB) or for public law reasons such as the protection of important public goods (e.g., through business prohibition under § 35 GewO due to unreliability of the business operator). Professional bans must be proportionate; they may only be issued when and for as long as absolutely necessary to protect paramount legal interests. In making its decision, the state must carefully balance the fundamental right to practice a profession with the public interest to be protected. Legal recourse is available against a professional ban, and court reviews can be initiated.
Does the freedom of occupation also apply to foreign nationals?
The freedom of occupation under Article 12 GG generally applies to Germans; Union citizens are essentially treated equally due to European free movement of workers and freedom of establishment, Article 45 and 49 TFEU. Nationals of third countries, however, may only pursue a profession if this is permitted by statutory regulations, in particular by the Residence Act and associated ordinances. For certain professions and sectors, special recognition procedures are also required (e.g., for foreign professional qualifications) – regulated, among other things, in the Federal Act on the Determination of the Equivalence of Professional Qualifications (BQFG). For regulated professions, equivalence assessments and possible compensatory measures are required.
What legal requirements apply to the practice of a liberal profession compared to a trade?
Liberal professions include, in particular, scientific, artistic, literary, educational, or teaching activities carried out independently and professionally on the basis of special professional qualifications. Their legal basis can be found, among others, in § 18 EStG. In contrast to business operators, who are subject to the obligation to register a business under § 14 GewO and may be assigned to the IHK, freelancers are generally not required to register a business and are usually subject to different professional regulations, such as mandatory chamber membership. The exercise of their activity is often regulated by their own professional codes, professional conduct rules, and special occupational laws. While business operators are subject to trade tax, liberal professions are exempt as long as they are genuinely carrying out independent freelance activities within the meaning of the law.
Which labor law regulations influence the actual practice of a profession?
Labor law provisions primarily apply in the context of employment relationships and decisively determine the conditions for the practice of a profession, for example through the Working Hours Act (ArbZG), Maternity Protection Act (MuSchG), Federal Leave Act (BUrlG), and the Protection against Dismissal Act (KSchG). In addition, collective agreements, works agreements, and individual employment contracts govern the rights and obligations of employees and employers, for example regarding working hours, remuneration, leave, and protection against dismissal. Special protective provisions also apply to trainees (§§ 8 ff. BBiG), people with disabilities (SGB IX), and pregnant women (MuSchG). These provisions also apply when the place of work or employer changes within the context of freedom of occupation and ensure that minimum standards are maintained. The effective practice of a profession may also be influenced by co-determination rights of works councils.
