## Facts

- Karl-Heinz Röber was a licensed pharmacist employed as a pharmacy assistant.
- Röber applied in 1956 for permission to open a new pharmacy in Traunreut, Bavaria (about 6,000 residents).
- The responsible Bavarian authority denied the permit under a statute allowing new pharmacies only if the pharmacy served the public interest in medicine supply and if the economic basis of the new pharmacy was secure without impairing neighboring pharmacies’ continued proper operation.
- The authority reasoned that one existing pharmacy sufficiently served Traunreut; a second pharmacy would not be economically viable; and added competition could undermine the existing pharmacy and encourage unsafe “reckless” sales practices.
- Röber’s administrative appeal was rejected.
- Röber filed an individual constitutional complaint challenging the statute and the denial decisions as violating the Basic Law’s guarantee of occupational freedom.

## Issues

1. Whether the constitutional guarantee of occupational freedom protects both the choice of occupation and its exercise, and how the statutory reservation applies to each.
2. What level of constitutional justification is required for (a) rules governing professional practice, (b) entry conditions tied to personal qualifications, and (c) entry conditions based on objective “need” or market protection.
3. Whether conditioning pharmacy licenses on public-need and economic-protection criteria is constitutional.

## Decision

- The court held that occupational freedom is an enforceable individual right protecting both occupational choice and occupational practice.
- It adopted a three-tier framework for reviewing occupational regulation, with escalating scrutiny depending on the type of interference.
- It classified the statute’s “public need” and economic-protection requirements as objective entry conditions that severely restrict occupational choice.
- It found that protecting incumbents from competition is not, by itself, a sufficiently weighty community interest to justify an objective barrier to entry.
- It ruled the statute unconstitutional, declared it void, and annulled the administrative decisions denying Röber’s permit.

## Legal Principles

- Occupational freedom protects both (1) choosing a vocation and (2) practicing it; legislative regulation is permitted but must be justified in proportion to the interference.
- Regulation of professional practice may be imposed for rational common-good reasons, so long as it is not excessively burdensome or unreasonable.
- Entry restrictions based on personal, subjective qualifications (e.g., training, examinations, reliability) require strong community interests and must be proportionate to ensuring proper professional performance.
- Objective entry restrictions (e.g., “need” tests, quotas, protection of existing businesses) are permissible only to avert provable or highly probable serious dangers to an extremely important community interest.
- The legislature must employ the least rights-restrictive regulatory level; objective entry barriers are constitutionally exceptional where less restrictive practice rules or subjective requirements can achieve the same ends.

## Conclusion

The court invalidated need-based pharmacy licensing that conditioned market entry on public-need and incumbent-protection findings, holding that such objective barriers to occupational choice violate the constitutional guarantee of occupational freedom absent extraordinary justification.


Röber v. Bavaria, 7 BVerfGE 377 (BVerfG 1958)