Headnotes (non-official):

1. Article 11 of the Basic Law does not encompass the freedom to leave the country.

2. The freedom to leave the country is derived from the general freedom of action and thus guaranteed under Article 2.1 of the Basic Law insofar as its exercise does not offend against the constitutional order.

3. The constitutional order within the meaning of Article 2.1 of the Basic Law includes the entirety of legislation under the Constitution, i.e. all laws which are formally and substantively compatible with the Constitution.

4. Anyone may, by way of a constitutional complaint, assert that a legal provision restricting their general freedom of action is not part of the constitutional order.

Summary:

I.

The applicant was a member of the conservative Centre Party and was appointed chief of police in Krefeld in 1927. He was removed from this office in 1933 for political reasons. In 1945, he was elected mayor of the city of Mönchen-Gladbach, where he later served as chief municipal director. In 1947, he was elected to the state parliament of North Rhine-Westphalia as a member of the Christian-Democratic Party. For several years, he had been a leading member of an association (“Bund der Deutschen”) which combats the policies of the Federal Government. The applicant himself had on several occasions expressed his critical opinion on the policy of the Federal Government, in particular on defence policy and the question of reunification, also publicly at events and conferences in Germany and abroad. When the applicant applied to have his passport renewed, the competent authority rejected his application with reference to § 7.1a of the Passport Act. According to this provision, authorities shall refuse to issue a passport when there are reasonable grounds to believe that the person applying for a passport would jeopardise the internal or external security or other significant interests of the Federal Republic of Germany or one of the German Länder.
After exhausting all other legal remedies, the applicant lodged a constitutional complaint, in which he primarily asserted that his freedom of movement pursuant to Article 11 of the Basic Law as well as his right to the free development of his personality within the meaning of Article 2.1 of the Basic Law had been violated.

 II.

 Based on the following considerations, the Federal Constitutional Court (hereinafter, the “Court”) decided that the constitutional complaint was unfounded.
As Article 11 of the Basic Law solely protects free movement within the federal territory, it does not include the freedom to leave the country. However, the freedom to leave the country is still protected under the Constitution as it is derived from the general freedom of action guaranteed by Article 2.1 of the Basic Law. The Court held that the “free development of one’s personality” within the meaning of Article 2.1 of the Basic Law must be understood as freedom of action in the broadest sense. This follows from the legislative history of Article 2 of the Basic Law, namely the protocols of the Parliamentary Council and its committees.
Pursuant to Article 2.1 of the Basic Law, the right to the free development of one’s personality is afforded only insofar as individuals do not violate the rights of other persons or offend against the constitutional order or moral law. The Court clarified how the term “constitutional order” is to be interpreted: It can be inferred from the protocols of the Parliamentary Council that “constitutional order” must be understood as the legal order in its entirety. This conclusion cannot be refuted by arguing that “constitutional order” has a different meaning in other constitutional provisions, and by claiming that it must have the same meaning throughout the Basic Law. Rather, the interpretation depends on the term’s purpose within the context of a specific provision. It is necessary, for example, in the context of Article 9 of the Basic Law or § 90a of the Criminal Code to limit the meaning of the term to only include certain essential constitutional principles.
In the context of Article 2.1 of the Basic Law, however, restrictions of the general freedom of action can legitimately be based not only on the Constitution or on “essential constitutional principles”, but also on any legal provision which is formally or substantively compatible with the Constitution.
Within legal scholarship it is frequently claimed that, according to this understanding, the fundamental right enshrined in Article 2.1 of the Basic Law is meaningless because of the far reach of the limitation clause; in this regard, it is overlooked that the legislator is subject to narrower limits under the Basic Law than under the Weimar Constitution. The Basic Law has established an order which is bound by values and which limits public authority. The personal autonomy, responsibility and dignity of the individual are thus protected in state and society. The supreme principles of this system of values (Articles 1, 20, 79.3 of the Basic Law) are protected from constitutional amendment. The Constitutional Court reviews the legislator’s adherence to the standards of the Constitution. Legal provisions are not compatible with the Constitution simply because they have been enacted in a formally correct procedure. In substantive terms, too, they must be in accordance with the most significant values of the free democratic basic order, the uncodified essential constitutional principles and the fundamental decisions of the Basic Law, especially the principles of the rule of law and the social state. Above all, legal provisions must violate neither human dignity, which is the most important value within the Basic Law, nor the intellectual, political or economic freedom of the individual.