The Catalog of Fundamental Rights in the Grundgesetz
The fundamental rights (Grundrechte) of the Grundgesetz are set out in Articles 1 through 19 and supplemented by rights recognised in other provisions. These rights bind all branches of state authority as directly enforceable law (Article 1(3)). They form the objective value order of the German constitution, influencing all areas of law including private law through the doctrine of indirect horizontal effect (mittelbare Drittwirkung). The fundamental rights catalogue reflects the drafters’ response to the rights violations of the Nazi era and establishes the protection of human dignity as the supreme constitutional value.
The Classic Fundamental Rights
Articles 2 through 17 guarantee the classic catalogue of liberal rights. Article 2 protects the right to free development of personality and the right to life and physical integrity. The Federal Constitutional Court has derived from Article 2(1) in conjunction with Article 1 a general right of personality (allgemeines Persönlichkeitsrecht), which protects privacy, reputation, and informational self-determination. Article 3 guarantees equality before the law and requires the state to treat similarly situated persons alike, with the Court applying a graduated standard of review based on the grounds of differentiation. Article 4 protects freedom of belief, conscience, and religion, including the right to manifest one’s religion and to refuse military service on conscientious grounds. Article 5 guarantees freedom of expression, press freedom, and academic freedom, subject to limitations imposed by general laws, provisions for the protection of youth, and the right to personal honour. Article 6 protects marriage and the family, imposing a duty on the state to support families through social policy. Article 8 guarantees freedom of assembly, requiring prior notification for outdoor assemblies. Article 9 protects freedom of association, including the right to form trade unions and employers’ associations. Article 10 protects the privacy of correspondence, posts, and telecommunications. Article 11 guarantees freedom of movement within Germany, subject to limitations for the prevention of crime and natural disasters. Article 12 guarantees freedom of occupation, a particularly important right in German constitutional jurisprudence, with the Court applying a graduated standard of review based on the intensity of the interference. Article 13 protects the inviolability of the home. Article 14 guarantees property and inheritance rights, imposing a social obligation on property owners. Article 16 protects against deprivation of citizenship and extradition of German citizens. Article 17 guarantees the right to petition.
Rights Equivalent to Fundamental Rights
Several provisions outside Articles 1–19 are treated as fundamental rights. Article 20(4) grants a right to resist any person seeking to abolish the constitutional order. Article 33 guarantees equal access to public office and the right to hold public office according to qualifications. Article 38 guarantees the right to vote and to stand for election. Article 101 guarantees the right to a lawful judge. Article 103 guarantees the right to be heard in court and prohibits double jeopardy and retroactive criminalisation. Article 104 guarantees rights of persons in detention, requiring judicial authorisation for deprivation of liberty.
Restrictions on Fundamental Rights
The Grundgesetz distinguishes between fundamental rights that may be subject to limitation and those that are absolute. Absolute rights, including human dignity (Article 1) and freedom of belief (Article 4 in part), may not be restricted under any circumstances. Other rights may be limited by statute, subject to the principle of proportionality. Article 19 provides that any statute restricting a fundamental right must be general and may not apply to a single case, must name the specific right limited by reference to the relevant article, and may never infringe the essential content (Wesensgehalt) of any fundamental right. The essential content guarantee functions as an absolute limit that even a proportionate restriction may not cross.
The Right to Constitutional Complaint
Article 93(1)(4a) empowers individuals to bring constitutional complaints directly to the Federal Constitutional Court alleging violations of their fundamental rights. This remedy is available once all other legal avenues have been exhausted. The Court has developed extensive jurisprudence through the constitutional complaint procedure, which receives tens of thousands of complaints annually, though only about 2-3 per cent succeed. The complaint must be filed within one year and must identify the specific right violated. The low success rate reflects the Court’s role as a constitutional court rather than a general appellate court.
The Objective Dimension
The Lüth judgment (1958) established that fundamental rights are not merely subjective defensive rights against the state but also constitute an objective value order that pervades the entire legal system. This objective dimension requires the state to protect fundamental rights from infringement by third parties and influences the interpretation of private law provisions through general clauses. The state bears a duty to protect (Schutzpflicht) fundamental rights from private interference, requiring legislative action and judicial enforcement.
Fundamental Rights and European Integration
The relationship between German fundamental rights and EU law has been shaped by the Solange decisions and the Lisbon judgment. The Federal Constitutional Court has reserved the power to review whether EU measures comply with German fundamental rights, particularly through the identity review (Identitätskontrolle), which examines whether EU acts violate the fundamental rights core protected by Article 79(3). This power has been exercised with restraint, with the Court generally deferring to the European Court of Justice as long as EU law provides equivalent fundamental rights protection.