- BVerfGE 37, 271 2 BvL 52/71 Solange I-Beschluß
- 29 May 1974
- Seuffert, v. Schlabrendorff, Hirsch, Rinck, Rottmann, Wand
- © Nomos Verlagsgesellschaft
As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of funda-mental rights contained in the Basic Law, a reference by a court of the Federal Republic of Germany to the Federal Con-stitutional Court in judicial review proceedings, following the obtaining of a ruling of the European Court under Article 177 of the Treaty, is admissible and necessary if the German court regards the rule of Community law which is relevant to its decision as inapplicable in the interpretation given by the European Court, because and in so far as it conflicts withone of the fundamental rights of the Basic Law.
Order of the Second Senate of 29 May 1974 -- 2 BvL 52/71 --
in the proceedings for consideration of constitutionality
a) of the obligation to export, established in Article 12 (1) (iii) of EEC Council Regulation 120/67, of 13 June 1967 lined with the lodging of a deposit and its forefeiture if the export has not been processed during the period of validity,
b) of Article 9 of EEC Regulation 120/67 issued EEC Commission Regulation 473/67, of 21 August 1967, -- Suspension and Submissionorders of the Administrative Court of Frankfurt/Main of 24 November 1971 ( II/2 -- E 228/69).
No fundamental right of the Basic Law does poses an obstacle to the application by the authorithies and courts of the Federal Republic of Germany of Article 12 (1) (iii) of EEC Council Regulation 120/67, of 13 June 1967, and Article 9 of EEC Commission Regulation 473/67, of 21 August 1967, in the interpretation given them by the European Court of Justice.
EXTRACT FROM GROUNDS:
A German import/export undertaking is making an application to the Administrative Court (Verwaltungsgericht) of Frank-furt/Main for annulment of a decision of the Einfuhr- und Vor-ratsstelle für Getreide und Futtermittel (EVSt), in which an export deposit of DM17,026.47 was declared to be forfeited after the firm had only partially used an export licence gran-ted to it for 20,000tons of ground maize.
1. The decision is based on Article 12 (1) (iii) of EEC Council Regulation 120/67, of 13 June 1967, and on Article 9 of EEC Commission Regulation 473/67, of 21 August 1967.
Article 12 (1) of EEC Regulation 120/67 reads:
'1. Imports into the Community or exports therefrom of any of the products listed in Article1 shall be subject to the submission of an import or export licence which may be issued by member states to any applicant irrespective of the place of his establishment in the Community....
The issue of such licences shall be conditional on the lodging of a deposit guaranteeing that importation or exportation is effected during the period of validity of the licence; the deposit shall be forfeited in whole or in part if the
transaction is not effected, or is only partially effected, within that period.'
Article 8 (2) of EEC Regulation 473/67 reads:
'(2) Subject to Article 9 hereof, if the obligation to import or export has not been fulfilled during the period of validity of the licence, the deposit is forfeited ...'
Article 9 of EEC Regulation 473/67 reads:
'(1) If the import or export is prevented within the period of validity of the licence by a circumstance which is to be regarded as force majeure, and if application is made for these circumstances to be taken into account, then:
(a)in the cases listed in paragraph (2)
-(a)-(d) hereof, the obligation to import
or export is extinguished, and the depo-sit is not forfeited.
(b)in the cases listed in paragraph (2)
(e)-(h) hereof, the period of validity of the licence is extended by the period of time which the competent authority deems necessary in consequence of this circumstance.
On application, however, the competent authority may order that the obligation to import or export be extinguished and that the deposit be not forfeited.
(2) The following circumstances are to be regarded as force majeure within the meaning of paragraph (1) hereof, in so far as they are the reason for the non-fulfilment on the part of the importer or exporter:
(a) war and civil unrest;
(b) state prohibitions on import and export;
(c) prevention of navigation by sovereign measures;
(e) damage by sea to ship or goods;
(g) interruption of navigation by drift ice or low water;
(h) engine damage.
The application of the "extension clause" is not to be regarded as force majeure within the meaning of paragraph (1) hereof.
(3) If the competent authorities recognize other circumstances than those listed in paragraph (2) hereof as forces majeures within the meaning of paragraph (1) hereof, they shall communicate these to the Commission forthwith; in doing so, they are to state whether paragraph (1) (a) or paragraph (1) (b) is applied.
(5) The importer or exporter shall prove the circumstances regarded as force majeure by means of officially attested documents.'
2. The Administrative Court first obtained a preliminary ruling from the European Court of Justice under Article 177 of the Treaty establishing the European Economic Community (here-inafter referred to for short as 'the Treaty') as to whether the rules cited from these regulations are lawful under the law of the European Economic Community. In the judgment of the European Court dated 17 December 1970 -- in Case 11/70 -- the legality of the disputed regulations is confirmed (likewise in the judgment of 10 March 1971 in Case 37/70).
The European Court's reasoning is as follows: national rules of law could not take precedence over Community law because of the latter's autonomous status. The rules of Commu-nity law whose validity are challenged are a necessary and appropri-ate means of enabling the authorities to carry out theneces-sary intervention on the cereals market. The export depo-sit system is geared to the fact that the applications for licen-ces were made by free decision of the undertaking, and that it has the double advantage of simplicity and effective-ness over other imaginable systems. Acts performed exclusively in the interests of particular entrepreneurs must take second place to a system introduced in the public interest of the Com-munity. The forfeiture of the deposit is neither a fine nor a penalty, but a security for the fulfilment of an obligation voluntarily assumed. The system of exceptions in case of force majeure is a provision which is calculated to guarantee the normal functioning of the grain market organization without unduly burdening importers and exporters. The concept of force majeure is flexible, since it is not restricted to cases of absolute impossibility, but also covers cases involving an unusual situation outside the control of the licensee, the consequences of which, despite the taking of all precautions, could only be avoided at the cost of disproportionate los-ses.
3. The Administrative Court then stayed the proceedings by a decision of 24 November 1971 and requested the ruling of the Federal Constitutional Court under Article 100 (1) of the Ba-sic Law as to whether the obligation to export existing un-der European Community law and the associated duty to make an ex-port deposit are compatible with the Basic Law and, if so, whether the rule that the deposit is to be released only in a case of force majeure is compatible with the Basic Law.
The Administrative Court takes the view that ... the Euro-pean Community law can be examined for its compatibility with the Basic Law; it is not entitled to take precedence over na-tional law in its entirety.
4. The Federal Minister of Justice, who made submissions on behalf of the Federal Government, regards the reference as inadmissible because Article 100 (1) of the Basic Law is neither directly, nor by analogy, applicable to EEC regula-tions.B.I. The reference is admissible
1. An essential preliminary for this ruling is the closer, though not yet conclusive, determination of the relationship between the constitutional law of the Federal Republic of Ger-many and European Community law, which has come into being on the basis of the Treaty establishing the European Economic Com-munity (hereinafter referred to as _fCommunity law_F). The pre-sent case demands only the clarification of the relation-ship between the guarantees of fundamental rights in the Basic Law and the rules of secondary Community law of the EEC, the exe-cution of which is in the hands of administrative autho-rities in the Federal Republic of Germany. There is at the moment no-thing to support the view that rules of the Treaty establi-shing the EEC, that is, primary Community law, could be in con-flict with provisions of the Basic Law of the Federal Republic of Germany. It can equally remain open whether the same consi-derations apply to the relationship between the law of the Ba-sic Law outside its catalogue of fundamental rights, and Com-munity law, as apply, according to the following reaso-ning, to the relationship between the guarantees of fundamen-tal rights in the Basic Law and secondary Community law.
2. This Court -- in this respect in agreement with the law developed by the European Court of Justice -- adheres to its settled view that Community law is neither a component part of the national legal system nor international law, but forms an independent system of law flowing from an autonomous legal source (BVerfGE 22, 293 ; 31, 145 [173f.]); for the Com-munity is not a state, in particular not a federal state, but 'a sui generis community in the process of progressive inte-gration', an 'inter-state institution' within the meaning of Article 24 (1) of the Basic Law.
It follows from this that, in principle, the two legal sphe-res stand independent of and side by side one another in their validity, and that, in particular, the competent Commu-ni-ty or-gans, including the European Court of Justice, have to rule on the binding force, construction and observance of Com-munity law, and the competent national organs on the binding force, construction and observance of the constitutional law of the Federal Republic of Germany. The European Court of Justice can-not with binding effect rule on whether a rule of Community law is compatible with the Basic Law, nor can the Federal Con-stitutional Court rule on whether, and with what impli-cations, a rule of secondary Community law is compatible with primary Community law. This does not lead to any diffi-culties as long as the two systems of law do not come into conflict with one another in their substance. Therefore there grows forth from the special relationship which has arisen between the Communi-ty and its members by the establishment of the Com-munity, first and foremost, the duty for the competent organs, in particular for the two courts charged with revie-wing law -- the European Court of Justice and the Federal Con-stitutional Court -- to con-cern themselves in their decisions with the concor-dance of the two systems of law. Only in so far as this is unsuccessful can there arise the conflict which de-mands the drawing of conclu-sions from the relationship of prin-ciple between the two legal spheres set out above.
For, in this case, it is not enough simply to speak of the 'precedence' of Community law over national constitutional law in order to justify the conclusion that Community law must al-ways prevail over national constitutional law because, other-wise, the Community would be put in question. Community law is just as little put in question when, exceptionally, Community law is not permitted to prevail over cogent (zwingendes) con-stitutional law, as international law is put in question by Article 25 of the Basic Law when it provides that the general rules of international law only take prece-dence over simple federal law, and as another (foreign) system of law is put in question when it is ousted by the public policy of the Federal Republic of Germany. The binding of the Federal Republic of Germany (and of all member states) by the Treaty is not, accor-ding to the meaning and spirit of the Treaties, one-sided, but also binds the Community which they establish to carry out its part in order to resolve the con-flict here assumed, that is, to seek a system which is compati-ble with an entrenched precept of the constitutional law of the Federal Republic of Germany. Invoking such a conflict is, therefore, not in itself a viola-tion of the Treaty, but sets in motion inside the European or-gans the Treaty mechanism which resolves the conflict on a po-litical level.
3. Article 24 of the Basic Law deals with the transfer of sovereign rights to inter-state institutions. This cannot be taken literally. Like every constitutional provision of a simi-lariy fundamental nature, Article 24 of the Basic Law must beunderstood and construed in the overall context of the who-le Basic Law. That is, it does not open the way to amen-ding the basic structure of the Basic Law, which forms the basis of its identity, without a formal amendment to the Basic Law, that is, it does not open any such way through the legislation of the inter-state institution. Certainly, the competent Com-muni-ty organs can make law which the competent German con-stitutio-nal organs could not make under the law of the Basic Law and which is nonetheless valid and is to be applied direct-ly in the Federal Republic of Germany.
4. The part of the Basic Law dealing with fundamental rights is an inalienable, essential feature of the valid Basic Law of the Federal Republic of Germany and one which forms part of the constitutional structure of the Basic Law. Article 24 of the Basic Law does not without reserva-tion allow it to be sub-jected to qualifications. In this, the present state of inte-gration of the Community is of crucial importance. The Com-muni-ty still lacks a democratically legiti-mate parliament di-rectly elected by general suffrage which possesses legislative powers and to which the Community organs empowered to legisla-te are fully responsible on a political level; it still lacks, in par-ticular, a codified catalogue of fundamental rights, the sub-stance of which is reliably and un-ambiguously fixed for the future in the same way as the sub-stance of the Basic Law and therefore allows a comparison and a decision as to whether, at the time in question, the Com-munity law standard with regard to fundamental rights gene-rally binding in the Community is adequate in the long term measured by the standard of the Ba-sic Law with regard to fundamental rights (without prejudice to possible amendments) in such a way that there is no excee-ding the limitation indi-cated, set by Article 24 of the Basic Law. As long as this legal certainty, which is not guaranteed merely by the deci-sions of the European Court of Justice, fa-vou-rable though these have been to fundamental rights, is not achie-ved in the course of the further integration of the Commu-nity, the reser-vation derived from Article 24 of the Basic Law applies. What is involved is, therefore, a legal difficulty arising exclusively from the Community's continuing integra-tion pro-cess, which is still in flux and which will end with the pre-sent transitional phase.
Provisionally, therefore, in the hypothetical case of a con-flict between Community law and a part of national consti-tutio-nal law or, more precisely, of the guarantees of funda-mental rights in the Basic Law, there arises the question of which system of law takes precedence, that is, ousts the other. In this conflict of norms, the guarantee of fundamental rights in the Basic Law prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.
5. From the relationship between Basic Law and Community law outlined above, the following conclusions emerge with regard to the jurisdiction of the European Court of Justice and of the Federal Constitutional Court.
a) In accordance with the Treaty rules on jurisdiction, the European Court of Justice has jurisdiction to rule on the le-gal validity of the norms of Community law (including the un-written norms of Community law which it considers exist) and on their construction. It does not, however, decide incidental questions of national law of the Federal Republic of Germany (or in any other member state) with binding force for this State. Statements in the reasoning of its judgments that a par-ticular aspect of a Community norm accords or is compatible in its substance with a constitutional rule of national law--here, with a guarantee of fundamental rights in the Basic Law con-stitute non-binding obiter dicta.
In the framework of this jurisdiction, the European Court determines the content of Community law with binding effect for all the member states. Accordingly, under the terms of Article177 of the Treaty, the courts of the Federal Republic of Germany have to obtain the ruling of the European Court before they raise the question of the compatibility of the norm of Community law which is relevant to their decision with guarantees of fundamental rights in the Basic Law.
b) As emerges from the foregoing outline, the Federal Con-stitutional Court never rules on the validity or invalidity of a rule of Community law. At most, it can come to the con-clusion that such a rule cannot be applied by the authorities or courts of the Federal Republic of Germany in so far as it con-flicts with a rule of the Basic Law relating to fundamental rights. It can (just like, vice versa, the European Court) it-self decide incidental questions of Community law in so far as the requirements of Article177 of the Treaty, which are also binding on the Federal Constitutional Court, are not present or a ruling of the European Court, binding under Community law on the Federal Constitutional Court, does not supervene.
6. Fundamental rights can be guaranteed by law in numerous ways and may accordingly enjoy numerous types of judicial pro-tection. As its previous decisions show, the European Court also considers that it has jurisdiction by its decisions to protect fundamental rights in accordance with Community law. On the other hand, only the Federal Constitutional Court is entit-led, within the framework of the powers granted to it in the Basic Law, to protect the fundamental rights guaranteed in the Basic Law. No other court can deprive it of this duty im-posed by constitutional law. Thus, accordingly, in so far as citizens of the Federal Republic of Germany have a claim to judicial protection of their fundamental rights guaranteed in the Basic Law, their status cannot suffer any impairment mere-ly because they are directly affected by legal acts of autho-ri-ties or courts of the Federal Republic of Germany which are based on Community law. Otherwise, a perceptible gap in judi-cial protection might arise precisely for the most elemen-tary status rights of the citizen. Moreover, no different con-sidera-tions apply to the constitution of a community of states with a constitution based on freedom and democracy which is called into question than apply to a federal state with a con-stitu-tion based on freedom and democracy: it does not harm the Com-munity and its constitution based on freedom (and democra-cy), if and in so far as its members in their constitutions give stronger guarantees of the liberties of their citizens than does the Community.
7. In detail, judicial protection by the Federal Consti-tutional Court is measured exclusively according to the con-stitutio-nal law of the Federal Republic of Germany and accor-ding to the more precise rules laid down in the Federal Con-stitutional Court Act.
a) In proceedings for judicial review on a reference by a court, it is always a question of examining a provision of a statute. Since the traditional distinction in national law between provisions of a formal statute and provisions of a regulation based on a formal statute is unknown to Community law, every provision of a Community regulation is a provision of a statute within the meaning of the rules of procedure for the Federal Constitutional Court.
b) An initial barrier to the jurisdiction of the Federal Constitutional Court emerges from the fact that it can only make the subject of its review acts of German State power, that is, decisions of the courts, administrative acts of the authori-ties and measures of the constitutional organs of the Federal Republic of Germany. For this reason, the Federal Con-stitutional Court regards as inadmissible a constitutional com-plaint by a citizen of the Federal Republic of Germany direct-ly against a Community regulation (BVerfGE 22, 293 ).
c) If a Community regulation is implemented by an ad-mini-strative authority of the Federal Republic of Germany or dealt with by a court in the Federal Republic of Germany, this is anexercise of German State power; and, in this pro-cess, the ad-ministrative authority and the courts are also bound to the constitutional law of the Federal Republic of Germany. Accor-ding to the procedural law of the Federal Constitutional Court, if one disregards the constitutional complaint, which is on-ly admissible after all other legal remedies are exhausted -- the exception in section 90 (2) of the Federal Constitutional Court Act (BVerfGG) hardly comes into considera-tion in a case invol-ving the challenging of an administrative act based on a rule of Community law- the protection of fun-damental rights is car-ried out by way of reference by the court concerned in so--cal-led proceedings for judicial review of constitutionality be-fore the Federal Constitutional Court. In view of the speci-al features, outlined above, of the relation-ship between natio-nal constitutional law and Community law, these proceedings requi-re some modifications, of the kind that have also been consi-dered necessary in the past by the Federal Constitutional Court in other decided cases. Thus, for example, it has held in the framework of judicial review proceedings, that the exi-sting legal position with regard to a constitutio-nal applica-tion is not in keeping with the Basic Law; it has contented itself with holding that a particular set of regulations is incom-patible with the provision on equality, without declaring the regulations void; it has declared a set of regulations brought into being by the Occupying Powers to be in conflict with the Basic Law and put the Federal Govern-ment under an obligation to make efforts to have them brought by the German legislator into harmony with the Basic Law; it has developed preventive judicial review in respect of rati-fication statu-tes. It lies in the nature of these previous de-cisions for the Federal Con-stitutional Court to restrict itself in cases like the present one to determining the inapplicability of a rule of Community law by the administrative authorities or courts of the Federal Republic of Germany in so far as it conflicts with a guarantee of fundamental rights in the Basic Law.
The concentration of this power of decision in the hands of the Federal Constitutional Court is not only necessary, from the point of view of constitutional law, for the same reason which has led to the Court's so called monopoly of rejection, but is also in the interests of the Community and of Community law. According to the underlying idea of Article 100 (1) of the Basic Law, the Federal Constitutional Court's task is to prevent any German court from disregarding the intention of the legislature by failing to apply the statutes decided on by the legislature on the grounds that the court considers they vio-late the Basic Law (BVerfGE 1, 184 (197); 2, 124 ). National statutory law thereby received protection of its vali-dity vis-a-vis courts which would deny it validity on consti-tutional grounds. The position is similar with the rule contai-ned in Article 100 (2) of the Basic Law, under which the ad-vice of the Federal Constitutional Court must be sought in ca-ses of doubt as to whether a general rule of international law creates rights and duties for the indi-vidual. Therefore the underlying idea of Article 100 requires that the validity of Community law should be protected from impairment in the Fede-ral Republic of Germany in the same way as that of natio-nal law.
The result is: as long as the integration process has not progressed so far that Community law also receives a catalogue of fundamental rights decided on by a parliament and of sett-led validity, which is adequate in comparison with the cata-logue of fundamental rights contained in the Basic Law, a reference by a court in the Federal Republic of Germany to the Federal Constitutional Court in judicial review proceedings, follo-wing the obtaining of a ruling of the European Court under Article 177 of the Treaty, is admissible and necessary if the German court regards the rule of Community law which is rele-vant to its decision as inapplicable in the interpretation gi-ven by the European Court, because and in so far as it con-flicts with one of the fundamental rights in the Basic Law.
The First Senate has previously held that a measure taken by a foreign state is not subject to review by the Federal Con-stitutional Court, and that even a measure based on a mili-ta-ry government statute and issued by a German authority 'by or-der of the military government' is not a measure taken by Ger-man public power and is therefore likewise removed from the juris-diction of the Federal Constitutional Court (BVerfGE 1, 10). For the same reason, it has held inadmissible a consti-tutional action aimed directly or indirectly at decisions of a supreme appellate court (BVerfGE 6, 15; 22, 91), and rejected as inad-missible a constitutional action against a purely inter-nal ecclesiastical measure (BVerfGE 18, 385). It has, more-over, held that the Federal Constitutional Court has no juris-diction to exa-mine German law (namely, an implementation sta-tute in connec-tion with the Kontrollratsgesetz (Control Coun-cil Act) for its compatibility with occupation law (BVerfGE 3, 368). Its judgment on this matter reads literally: 'The Basic Law and the Ge-setz über das Federal Constitutional Court (Fede-ral Con-stitutional Court Act) contain no general constitutio-nal clau-se dealing with the jurisdiction of the Federal Con-stitu-tional Court. ... No particular jurisdiction to examine German law for its compati-bility with occupation law is as-signed to the Federal Constitutional Court. Federal consti-tutional law and the federal law applying in the framework of the Basic Law are the Federal Constitutional Court's only cri-teria for its exa-mination. Its jurisdiction cannot be extended beyond the posi-tive rules on its jurisdiction for reasons of legal poli-cy' (BVerfGE 3, 368 ). In judicial re-view pro-ceedings which concerned a pro-vision of the 42nd Im-plementa-tion Regula-tion to the Umstel-lungsgesetz (Currency Changeover Act) the First Se-nate has further held that the provision challenged is occupa-tion law and occupation law can-not be examined for its compati-bility with the Basic Law (BVerfGE 4, 45). This de-cision, how-ever, is followed, after the coming into force of the Paris Treaty system, by the decisions in which occupatio-nal law is examined for its compatibility with the Basic Law,and the com-petent constitutional organs of the Federal Republic of Ger-many are charged with the duty of har-monising the content of the statu-te with the Basic Law after appropriate consulta-tion with the Three Powers (BVerfGE 15, 337; 36, 146 (14. Novem-ber 1973 -- 1 BvR 719/69 -- Ehegesetz) Finally, in the decision of 18 Oc-tober 1967 (BVerfGE 22, 293), as already mentioned, a con-sti-tutional action brought directly against regulations of the Council or Commission of the EEC is rejected as inadmis-sible because it is not directed against an act of the German public power bound by the Basic Law. In this context, it is sta-ted: jurisdiction cannot be founded by the consideration that there is an urgent need for legal protec-tion by a consti-tutio-nal court because the possibilities offe-red in Community law are insufficient to guarantee adequate protection of the basic rights of the nationals of member states. Nor can the juris-dic-tion of the Federal Constitutional Court be extended,it says, by a necessity of legal policy, however urgent. After this fol-lows the sentence: 'This is not a conclusive decision as to whether and to what extent the Fe-deral Constitutional Court can measure Community law against the norms on fundamen-tal rights in the Basic Law in the frame-work of proceedings admissibly brought to its cognizance. ...' This, it says, depends inter alia on 'whether and to what ex-tent the Federal Republic of Germany was capable, in transfer-ring sovereign rights under Article 24 (1) of the Basic Law, of exempting the Community organs from being so bound (by fun-damental rights)'.
The challenged rule of Community law in the interpretation given by the European Court of Justice does not conflict with a guarantee of fundamental rights in the Basic Law, neither with Article 12 nor with Article 2 (1) of the Basic Law.
1. It must right away be observed that the forfeiture of the export deposit provided for in the system of licensing, coupled with security deposits for export and import of cer-tain products and goods, cannot be regarded as an evil imposed by order of the state for reprehensible unlawful conduct, akin to a penalty or fine. Rather, this system has built into it a legal device known to the system of private law, which makes allowance for the character of risk transactions (e.g., for-ward transactions, instalment transactions, transactions for recurrent delivery of goods, etc.). The making of an export deposit and the forfeiture of the security under the condi-tions agreed upon in the contract is not alien to such trans-ac-tions. Even in the case of import and export of goods which fall under the system set up by the challenged rules, the bu-si-nessman concerned knows what risk he is taking and is free to decide whether he wishes to enter into the contract or noton the terms in this case not agreed, but laid down by statu-te. All misgivings derived from the comparison with a sanction of criminal law or a sanction akin to one of criminal law the-re-fore fail from the outset (vgl. BVerfGE 9, 137 ).
2. The system contained in the challenged rules is not only appropriate in the present stage of development of the Euro-pean Community, in which economic relations cannot function without planning and effective control, but is (still) indis-pensable and not replaceable by a different, similarly effec-tive and simple and, on the other hand, market-geared system.
3. So far as the basic freedom of trade and occupation (Ar-ticle 12 of the Basic Law) is concerned, the principles de-veloped in the judgment of 11 June 1958 (BVerfGE 7, 377 ) are also crucial here. The system of licensing of export and import transactions coupled with security deposits and forfei-ture of the deposit affects the exercise of occupation, the limitation of which can be provided for by the legislator. But the legislator does not have a free hand to do this. What the legislator has introduced in this case is a 'pure system of rules on exercise of occupation or trade, which does not affect the freedom of choice of trade or occupation, but rather only determines in what manner members of a trade or occupation must in detail carry out their occupational activi-ties. Here, to a large extent, viewpoints of expediency can assert themselves; and it is to be assessed according to these viewpoints what impositions must be placed on the members of the trade or occupation in order to avert disadvantages and dangers for the general republic. In this respect, the protec-tion of basic rights is restricted to averting statutory im-positions which are in themselves unconstitutional because they are excessively burdensome and not exactable; apart from these exceptions, the impairment of occupational freedom inquestion does not affect the person entitled to the fundamen-tal right too perceptibly since he is already engaged in the trade or occupation and his authorization to practise it is not affected' (BVerfGE 7, 377 [405f.]).
When this criterion is applied, the challenged system of rules does not conflict with Article 12 of the Basic Law. For, as the European Court of Justice has already stated in its de-cisions, there are carefully considered reasons in favour of this system, with a view to averting perceptible disadvantages for the EEC. In this case, what is involved is just as little an 'imposition in itself unconstitutional because it is exces-sively burdensome and not exactable' as in the -- on this point comparable case which was decided with the so called penalty payments judgment of 3 February 1959 (BVerfGE 9, 137); in that judgment, the Court did not even consider the question that Article 12 of the Basic Law might be violated (BVerfGE 9, 137 ).
4. In so far as making allowance for the principle of pro-portionality is required in the use of the formulations 'ex-ces-sively burdensome' and not exactable, the following is to be noted in the case of the rules on the conditions for a for-fei-ture of the deposit: it is in keeping with the purpose of a security deposit that it is forfeited if the obligations laid down by the contract or by statute are not fulfilled, re-gard-less of whether this is culpable or not culpable. The non--for-feiture of a security bond must accordingly remain an ex-cep-tion which does not cover all cases in which the person ma-king the security deposit has acted without culpability, that is, has acted with the due caution of a businessman. The chal-len-ged rules classify the exception under the legal concept of force majeure, and the European Court has interpreted this con-cept, with binding effect, as meaning that, apart from the ca-ses expressly referred to in the rules, it must be taken to include not only all cases of absolute impossibility of import or export, but also cases in which the import or export did not take place because of circumstances beyond the control of the importer or exporter, the consequences of which would, despite all reasonable precautions, only be avoidable at the cost of disproportionate losses. In particular, since the Euro-pean Court adds that the elements of the concept for-mulated as 'precautions which would have had to be taken' and 'heaviness of the loss which ... he would have had to take on himself' are flexible, all this is another way of expressing the legal notion current in German law and contained within the consti-tutional principle of proportionality, that the per-son sub-jec-ted to the obligation in cases of this kind can free him-self from his obligation where there is a 'burden over and above the obligation entered into'.
5. Accordingly, Article 12 of the Basic Law does not pose any obstacle to the application of the challenged rules by the German authorities and courts in the present case. Apart from Article 12 of the Basic Law, Article 2 (1) of the Basic Law does not, according to the settled case law of the Federal Constitutional Court, enter into consideration as a further independent criterion for examination (BVerfGE 9, 63 ; 9, 73 ; 9, 338 ; 10, 185 ; 21, 227 ; 23, 50 [55f.]).
This judgment has been passed under sections B I and II by five votes to three, and under section B III unanimously.
Judges: Seuffert, v. Schlabrendorff, Hirsch, Rinck, Rottmann, Wand
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