The Drei-Stufen-Theorie (Three-Level Theory) on Protecting Freedom of Occupation in the German Legal System

Abstract

     The Drei-Stufen-Theorie (Three-Level Theory) is a legal doctrine used to evaluate the constitutionality of measures restricting the freedom of occupation (Berufsfreiheit) under Article 12 of Germany’s Basic Law (Grundgesetz – GG). Developed by the Federal Constitutional Court in the 1958 Pharmacy Case (Apotheken-Urteil), the theory categorizes restrictions based on their degree of interference : (1) Regulations on occupational practice (Berufsausübungsregelungen), such as working hours or hygiene standards; (2) Subjective admission requirements (subjektive Zulassungsvoraussetzungen), like qualifications or licenses; and (3) Objective admission requirements (objective Zulassungsvoraussetzungen), such as setting a limit on the number of practitioners in certain areas, or restrictions that depend on external factors beyond the control of the individual whose freedom is being restricted. These restrictions must pass a necessity and proportionality test to ensure they serve public interests and do not overly limit rights.

     This article explains the concept of the liberty to engage in an occupation and the liberty to engage in an enterprise within the Thai legal system. It also compiles decisions of the Supreme Administrative Court concerning restrictions on this freedom and categorizes the relevant issues to clarify the court’s reasoning. In addition, the article introduces and analyzes Germany’s Three-Level Theory, discussing how it can guide Thai administrative court judgments and improve the assessment of restrictions on freedom of occupation and business.