Allgemeine Pflichten und ihre grundrechts(a)typischen Anwendungsfälle

Abstract

The contribution explores a difference between two sets of cases regarding fundamental rights. On the one hand there are applications of common duties with typical fundamental rights implications. On the other hand there are applications where the relevant fundamental rights implications are much less typical and appear as a rather unique outlier. The described difference may lead to an unconvincing difference regarding the relevant constitutional standard of justification of governmental interference. This is highlighted by a case issued by the Federal Administrative Court concerning a Sikh demanding an exception from the duty to wear a helmet when motorcycling due to religious beliefs. The court held that the religious dimension of the case requires justification only by referring to touched upon competing constitutional values. However, the court also sets a strikingly low bar to pass this seemingly higher standard. Against this background, the contribution argues in favour of a stronger reflection on the difference between applications of common duties with typical fundamental rights implications and outlier cases. It highlights the relevance of this difference when assessing the question whether or not a common duty can be considered to interfere with fundamental rights. This approach mirrors case law of the European Court of Justice.