I. The constitutional complaint proceedings concerned a refusal of admission to the legal profession (Rechtsanwaltschaft). The applicant claims a violation of her fundamental rights deriving, in particular, from the first sentence of Article 12.1 of the Basic Law.
The applicant completed the two-year judicial preparatory training (Referendariat) by taking the second state exam, a prerequisite for holding judicial office or entering the legal profession in Germany (cf. § 5.1 of the German Judiciary Act – Deutsches Richtergesetz; § 4 no. 1 of the Federal Lawyers’ Act – Bundesrechtsanwaltsordnung). During the course of a mandatory training stage at the public prosecution office, the applicant and the prosecutor supervising her training had several verbal altercations due to differing personal and professional views. In the official appraisal of the training stage, the supervisor gave the applicant the grade “satisfactory”. In response, the applicant contacted her former supervisor via email in February 2011 and included various remarks of an insulting nature in her communication, including the following excerpt:
“You are nothing but a redneck prosecutor who never made it out of his backwater town where he’s now rotting away. Your worldview is that of a model citizen living in 1940s Germany. You’re about as happy with your life as the hole in a shithouse.
You turned green with envy when I stood before you, and your hatred for me was palpable. You would have loved to toss me in a gas chamber if this kind of thing weren’t frowned upon these days. Instead, you resorted to the only means available to you in your limited position: you provided me with an appraisal full of confused rambling and completely out of touch with reality. Well, I congratulate you on your glorious victory, please savour the moment and enjoy it to the fullest – for it is but a minor nuisance to me (one that irritates my sense of justice, admittedly), whereas for YOU it will be the highlight of your life. You won’t experience any greater joy than this during your miserable existence.”
Following this incident, the prosecution authorities opened an investigation into the matter. In another email addressed to the prosecutor in charge of the investigation, the applicant accused the latter of unlawful conduct and called her intellectual abilities into question. The applicant was eventually convicted of insult charges (§ 185 of the Criminal Code – Strafgesetzbuch) and ordered to pay a fine.
In 2014, the applicant applied for admission to the legal profession with the competent regional bar association (Rechtsanwaltskammer). The application was rejected on the grounds that the applicant had been found guilty of conduct that makes her appear unworthy of practising as a lawyer in accordance with § 7 no. 5 of the Federal Lawyers’ Act. Legal recourse sought by the applicant before the competent higher lawyers’ court (Anwaltsgerichtshof) was unsuccessful and leave to appeal to the Federal Court of Justice (Bundesgerichtshof) was denied.

II. The Federal Constitutional Court held that the decisions of the bar association and the higher lawyers‘ court violated the applicant’s fundamental right protected under the first sentence of Article 12.1 of the Basic Law.

The decision was based on the following considerations:

The refusal of admission to the legal profession severely interferes with the fundamental right to freely choose one’s profession. The refusal of admission amounts, at least temporarily, to a prohibition to practise. Specifically, it restricts access to a profession on the basis of subjective requirements (subjektive Berufszugangsregelung). Such restriction requires a statutory basis and is only permissible if it is necessary for protecting a common good of paramount importance and satisfies the principle of proportionality. In light of the constitutionally protected freedom to choose one’s profession, the provisions governing refusal of admission based on unworthiness pursuant to § 7 no. 5 of the Federal Lawyers’ Act must be interpreted in a restrictive manner. A person may not be considered “unworthy” of entering the legal profession solely because his or her conduct is met with disapproval in society or in the professional environment. Rather, it is generally required that the misconduct in question potentially impairs public confidence in the integrity of the legal profession, as relating to a functioning administration of justice, and that the resulting impairment outweighs the interests protected by the fundamental rights of the person concerned.

The challenged decisions did not fully meet these requirements.

Nevertheless, the evaluation of the specific circumstances, both favourable and unfavourable, that were taken into account in the assessment of the applicant’s overall personality, was unobjectionable in the case at hand. Specifically, it was well justifiable to reproach the applicant for her refusal to acknowledge any fault on her part, and to draw negative conclusions based thereon. It is true that the significance of proven past misconduct may diminish over longer or shorter periods of time, as the case may be, to the point where it were no longer relevant or sufficient for refusing admission to the legal profession. Yet, if the person concerned persistently refuses to acknowledge any fault or blame, insisting instead that the conduct in question were justified and unobjectionable, this may be taken into account to the detriment of the person seeking admission to the legal profession. This is due to the fact that such behaviour is a relevant factor in the prognosis determining the decision on refusal of admission.

It was not ascertainable in the present case, however, that the challenged decisions sufficiently balanced the constitutionally protected interests of the applicant against conflicting public interests that could possibly preclude admission to the legal profession. The assessment carried out with regard to the applicant’s personality, which found her to be unacceptable as a member of the legal profession without substantiating further reasons, fails to satisfy constitutional requirements. The decision rendered by the higher lawyers’ court already lacks the required prognosis determining potential impairments of conflicting interests that could preclude admission to the legal profession. Most notably, it would have been incumbent upon the court to specify whether and on what basis it must be presumed that the applicant, if admitted as a practising lawyer, would act in a manner that could impair public confidence in the integrity of the legal profession, especially as regards the public interest in a functioning administration of justice; to this end, relevant considerations include the risk that courts might be prevented from resolving legal disputes in a focused and expedient manner or that persons seeking legal assistance might be unable to obtain reliable advice or representation from practising lawyers. Moreover, it is not manifestly evident in the present case that the interests of the applicant are outweighed by conflicting public interests. Therefore it would have been necessary to specify the relevant findings and considerations supporting any such conclusion.