德国药房案判决.doc

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. ? ... ? 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 p