Summary:

I.

The complainant is a trained carpenter with many years of professional experience. After successfully completing his apprenticeship, and following ten years of professional activity, he had himself entered in the Trades and Crafts Register in 1999. While the entry of the trade “Installation of standardised pre-fabricated construction parts” was granted, a register entry of carpentry work was rejected because he had not taken a master’s exam. The complainant nonetheless carried out carpentry and roofing work in the context of his company from 1998 to 2001, achieving proceeds from turnover amounting to EUR 1,000,000. In 2001, the competent authority thus imposed an administrative fine. Due to the complainant’s appeal, the amount of the fine was reduced, but in other respects the appeals lodged with the Local Court and the Higher Regional Court were unsuccessful.

With his constitutional complaint, the complainant challenged the imposition of the administrative fine, the court decisions and the provisions of the Trades and Crafts Code (hereinafter: the Code) on which these were based. In particular, he claimed a violation of his freedom to choose an occupation pursuant to Article 12.1 of the Basic Law.

II.

The constitutional complaint was successful. The Federal Constitutional Court held that the complainant’s the right to freely choose an occupation pursuant to Article 12.1 of the Basic Law had been violated; the Court reversed the challenged court decision and remanded the case to the Local Court. The decision is based on the following considerations:

The challenged measures are based on the provisions regarding a compulsory master’s exam as the qualification for skilled crafts and trades pursuant to § 1.1 first sentence in conjunction with § 7 of the Code in the version applicable until the end of 2003. Accordingly, only persons who were included in the Trades and Crafts Register were permitted to engage intrades or craft on an independent basis (§ 1.1 first sentence of the Code). In principle, passing the master’s exam in the trade in which they engaged, or in a similar trade, was a requirement for an entry in the Trades and Crafts Register (§ 7 of the Code).

This provision is a subjective requirement for admission to a profession limiting the freedom to choose an occupation. According to Article 12.1 second sentence of the Basic Law, interferences with the right to choose an occupation must be based on a statutory provision. Such provisions must be justified by adequate reasons of the common good, taking account of the nature of the activity in question and of the intensity of the interference, and must correspond to the principle of proportionality.

When legislation regarding the compulsory master’s exam was enacted in 1953, it was intended to serve the essential purpose of maintaining the standards and the capacity of trades and crafts, and of the training standards of the trades sector as a whole. The Federal Constitutional Court has approved these objectives as interests serving the common good.

However, there are doubts as to whether the obligation to take the master’s exam can still be considered proportionate in the stricter sense in order to serve the statutory objective of quality assurance in trades and crafts given the changes in legal and economic circumstances at the end of the last century. To be proportionate in the stricter sense, the limits of reasonableness must be respected in the context of an overall balancing of the weight of the interference and the weight of the reasons justifying it. The major time, subject-related, and financial effort required for the master’s exam must still be appropriate with regard to maintaining of standards and capacity within the skilled trades.

There are doubts as to whether it is appropriate because of considerable changes in the circumstances for the period in question in this case that result from an increasing competition from other EU countries. Pursuant to § 9 of the Code in conjunction with § 1 of the German Ordinance Governing the Conditions for Entering Nationals of other Member States in the Trades and Crafts Register, craftsmen from other EU countries had to fulfil only the requirement of several years of professional experience with senior professional responsibility in order to work on a self-employed basis in Germany; they were, however, not obliged to have a qualification equivalent to the master’s exam.

There are also doubts as to whether it was appropriate, in light of competition pressure, to continue to require from trained German craftsmen by way of a statutory provision considerably more effort in time, subject-related and financial terms in order to gain market access than from their foreign competitors on the German market. Hence, the weight of the interference with their professional careers due to the compulsory master’s exam was no longer proportionate to the goal of quality assurance.

It has not been established beyond all doubt that the compulsory master’s exam is necessary for ensuring training standards. This only applies if training standards cannot be guaranteed by less restrictive, but equally effective means than the master’s exam. As an argument offered to defend the compulsory master’s exam, it has been stated that the number of master craftsmen’s businesses would fall without the compulsory master’s exam, so that fewer trainers would be available. This argument can only be convincing if such training may only be entrusted to master craftsmen. This requirement, however, is not mandatory as can be inferred from the amendments to the trades and crafts law of 24 December 2003. According to the version of the Code applicable since 2004, experienced and qualified craftsmen who have been entered in the Trades and Crafts Register are also professionally suited for training if they have passed an exam to prove that they have the required professional and pedagogical knowledge, or an equivalent qualification. Since no fundamental changes in the economic and legal circumstances can be recognised in the few years since the amendments, the requirement of the compulsory master’s exam might have ceased to apply in the period relevant in this case.

The concerns regarding the proportionality of the interference with the freedom to choose an occupation confirm the need to apply the statutory exemption contained in § 8 of the Code extensively with regard to the significance and scope of the complainant’s fundamental right under Article 12.1 of the Basic Law. However, administrative authorities have not sufficiently put this into practice. In particular, § 8 of the Code was not applied in favour of experienced qualified craftsmen; rather, knowledge and skills had to be roughly equivalent to those of a master craftsman, which was usually established by experts by means of a comparative exam.

The statutory exemption should have been applied in favour of the complainant; this is confirmed by the fact that the legislature took account of the doubts as to whether the main qualification in its original structure was constitutional, and by the fact that the amendments to the trades and crafts law of 24 December 2003 made self-employment activities more accessible for experienced qualified craftsmen in particular – such as the complainant. At the same time, the profession of carpenter is still one of those trades and crafts in which self-employment is subject to an entry in the Trades and Crafts Register. However, craftsmen may now also be entered in the Register when they are permitted to engage in their trade.

If the amendments to the trades and crafts law are used as the standard for a more generous application of § 8 of the Code, it seems plausible that an exception should have been made in the complainant’s case. The complainant might have met the requirements for allowing him to engage in a trade in the period in question, as set out in the amended provisions.

It cannot be inferred from the challenged decisions that the regular courts took account of the circumstance that the administrative authorities did not apply § 8 of the Code as generously as would have been constitutionally required. If the administrative authority or the regular courts had assessed the case correctly, they might have discontinued the administrative offence proceedings against the complainant pursuant to § 47.2 of the Administrative Offences Act. Therefore, the case is remanded to the Local Court for a decision to discontinue the proceedings.