You are here:
The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
---|---|
Please cite the abstract as follows: | |
Abstract of the Federal Constitutional Court’s Order of 3 July 2007, 1 BvR 2186/06 [CODICES] | |
First Senate Order of 3 July 2007 1 BvR 2186/06 | |
Headnotes: On the constitutional standards deriving from Article 12.1 of the Basic Law with regard to professional admission restrictions based on subjective criteria under a consolidated regulatory framework merging several professions related to equine hoof care. | |
Summary: I.
In essence, the decision is based on the following considerations: The legislature has merged the professions of hoof care provider, hoof technician, and farrier into one uniform profession. The legal definition in § 2 no. 1 of the Act expands the term of horseshoeing to include all work performed on equine hooves for the purpose of protection, health care, correction, or treatment. As a result, some complainants were unable to continue in their profession as hoof technician because horseshoeing is now only allowed to be performed by certified farriers recognised by the state (§ 3.1 of the Act). Consequently, there is a direct interference with occupational freedom in the form of subjective admission requirements. The same applies to those complainants who are still training to become hoof care providers or hoof technicians and who are now required to also obtain and demonstrate particular expertise and knowledge regarding metal horseshoes and forging techniques in order to gain their professional qualification. Subjective professional admission requirements also apply to those complainants who, as operators of equine hoof care training institutions, train others as hoof care providers and hoof technicians. The state certification necessary for a training institution particularly requires the teaching of technical forging expertise (cf. § 6.2.1 – 6.2.3 of the Act), which the complainants are not qualified to do given their previous training focus. Similarly, freedom of choosing one’s occupation or profession is affected in relation to those complainants who previously worked as teachers in the specialised hoof care training without the now required qualification as a farrier teacher. Without the now required qualification they cannot continue their work. The interference with the complainants’ occupational freedom is not justified. To the extent that the new regulations reserve the provision of bare hoof care services to state certified farriers, they impose an unreasonable burden on the complainants who can no longer exercise the former profession of hoof care provider. The new regulations are informed by the concern that hoof care providers might provide inadequatetly narrow services; however, this concern could also be allayed by making admission to the profession of hoof care providers dependent upon acquiring and demonstrating the theoretical knowledge that is necessary to choose, from the full spectrum of care services, the suitable approach indicated in the specific case. Thus, even without technical forging training, it possible to ensure that hoof care providers have the ability and the willingness to inform about, and if necessary recommend, other hoof care methods that are appropriate in individual cases, such as horseshoeing or alternative hoof protection materials, even if the hoof care providers cannot perform the relevant services themselves. Even with regard to the human health services, doctors do not have a monopoly on treating patients. While licensed non-medical practitioners (Heilpraktiker) must refer patients to medical doctors as soon as the limits of their medicinal knowledge and skills has been reached, the past decades have shown no evidence of systemic deficits that would have made it necessary for the legislature to intervene in the interests of public health. Accordingly, it can reasonably be assumed that creating a monopoly of farriers regarding bare hoof care services does not achieve a benefit for animal health care that significantly goes beyond the benefit that can be achieved by requiring proven theoretical knowledge of the full spectrum of hoof care methods. Thus, the outcome of the balancing is that the burden on the affected holders of fundamental right is not appropriate to the public interests pursued. An unreasonable overqualification is also imposed on those complainants who operate training institutions for hoof care and hoof technology (cf. § 6.1 in conjunction with § 2.1 of the Act) as well as the complainants who teach at such institutions. The same applies to those complainants who can only continue their professional activities on the condition they acquire state certification as farrier teachers (cf. § 3.2 of the Act). |