The Elfes Decision (BVerfGE 6, 32): General Freedom of Action

The Elfes Decision (BVerfGE 6, 32, 16 January 1957) is a foundational judgment of the Federal Constitutional Court that established the general freedom of action (allgemeine Handlungsfreiheit) as the residual fundamental right under Article 2(1) GG. The decision is significant for its broad interpretation of the scope of fundamental rights protection and for its articulation of the relationship between fundamental rights and the general legal order.

The Facts

The complainant, Wilhelm Elfes, was a former member of the Bundestag and a prominent opponent of the rearmament of West Germany. He was denied renewal of his passport by the Passport Office on the grounds that his political activities, including speeches critical of the government and contacts with the German Democratic Republic, demonstrated that he was not loyal to the free democratic basic order. The Passport Act (Passgesetz) authorised the denial of a passport if facts justified the assumption that the holder would endanger the security of the Federal Republic or its foreign policy interests. Elfes challenged the denial of his passport, arguing that it violated his freedom of movement under Article 11 GG and his general freedom of action under Article 2(1) GG.

The Broad Interpretation of Article 2(1) GG

The Court held that Article 2(1) GG protects the general freedom of action in its broadest sense, encompassing every form of human activity without limitation to specific areas of life. The provision guarantees the right to do or not to do anything that the legal order does not prohibit. The Court rejected a narrow interpretation that would limit Article 2(1) GG to the protection of the core of personality or to a minimum sphere of personal autonomy. Instead, the Court adopted a maximalist interpretation, holding that Article 2(1) GG is the residual fundamental right (Auffangsgrundrecht) that protects all conduct not specifically protected by other fundamental rights. This interpretation makes Article 2(1) GG the most comprehensive fundamental right in the Grundgesetz, covering everything from the choice of food and clothing to participation in cultural events and economic activities.

The Relationship Between Article 2(1) and Specific Fundamental Rights

The Court established a subsidiarity relationship between Article 2(1) GG and the specific fundamental rights. Where conduct is protected by a specific fundamental right — such as freedom of expression (Article 5 GG), freedom of movement (Article 11 GG), or freedom of occupation (Article 12 GG) — that specific right takes priority over the general freedom of action. Article 2(1) GG applies only as a residual right where no more specific fundamental right is applicable. This subsidiarity principle ensures that the specific guarantees of the Grundgesetz retain their distinct character and that the general freedom of action does not subsume them. In the Elfes case, the Court found that the denial of a passport did not engage the right to freedom of movement under Article 11 GG because the passport was not a prerequisite for leaving Germany under Article 11 and that the general freedom of action under Article 2(1) GG was therefore the applicable provision.

The Limits of General Freedom of Action

Article 2(1) GG provides that the general freedom of action is exercised within the limits of the constitutional order, the moral law, and the rights of others. The Court held that the constitutional order (verfassungsmäßige Ordnung) for the purposes of Article 2(1) GG encompasses the entire legal order that is formally and materially compatible with the constitution. Every statutory provision that is formally valid and materially consistent with the Grundgesetz constitutes a permissible limitation on the general freedom of action. This interpretation gives the legislature broad power to restrict the general freedom of action through ordinary legislation, subject only to the formal and material constitutionality of the statutory restriction.

The Standard of Review

The Elfes Decision established that restrictions on the general freedom of action are subject only to a limited constitutional review at the level of the limitation justification. Unlike fundamental rights with qualified statutory reservations, which require the restriction to serve a specific legitimate purpose, Article 2(1) GG may be restricted by any constitutional statute for any purpose. The Court will examine whether the statutory restriction is formally valid, whether it is proportionate, and whether it respects the essential content guarantee of Article 19(2) GG, but it will not subject the legislative purpose to the same strict scrutiny applied to limitations of specific fundamental rights. The Elfes standard of review thus gives the legislature considerable discretion in regulating conduct that is not protected by a specific fundamental right.

The Application to the Facts

Applying this framework, the Court upheld the denial of the passport. The Passport Act was formally valid, and its application to Elfes was proportionate to the legitimate aim of protecting the security of the Federal Republic. The Court found that Elfes’ political activities, including his collaboration with the GDR government and his public statements critical of the Federal Republic, justified the conclusion that his possession of a passport would endanger the security interests of Germany. The Court held that the Passport Office had correctly applied the statutory criteria and that the restriction on Elfes’ general freedom of action was constitutionally permissible.

Significance and Legacy

The Elfes Decision established the general freedom of action as a residual fundamental right of broad scope, ensuring that all human conduct is constitutionally protected against state interference, even where no specific fundamental right applies. The decision has been applied in numerous subsequent cases, including cases on the right to determine one’s own death, the right to participate in demonstrations, and the right to engage in sporting activities. The broad interpretation of Article 2(1) GG has been criticised by some scholars who argue that it overextends the scope of fundamental rights protection and trivialises the concept of constitutional rights. Nevertheless, the Elfes Decision remains the authoritative interpretation of Article 2(1) GG and a cornerstone of German fundamental rights doctrine.