Die Grundrechtsberechtigung ausländischer juristischer Personen im Lichte von Europarecht und Völkerrecht

Recently, the German Constitutional Court has repeatedly dealt with fundamental rights entitlement of foreign legal persons. According to Art. 19(3) of the »Basic Law« (Grundgesetz, in the following: GG), only »domestic legal persons« are subjects of fundamental rights, i. e. legal persons having their real seat in the German territory. However, the article shows that the scope of Art. 19(3) GG is modified to a large extent by European law and public international law. Treating foreign legal persons less favourably than their German counterparts is forbidden not only by the principle of non-discrimination in Art. 18 TFEU and the fundamental freedoms (cf. Art. 26(2) TFEU), but also by a multitude of national treatment-clauses in international agreements concluded by the European Union (cf. Art. 216(2) TFEU). Hence, the scope of Art. 19(3) GG must be expanded depending on European law and public international law. Therefore, foreign legal persons enjoy substantive fundamental rights in a range far wider than mostly presumed. For example, after Brexit, legal persons having their real seat in the UK remain subjects of German fundamental rights due to Art. 19, 129 and 137 of the Trade and Cooperation Agreement (TCA). In conclusion, the rule of Art. 19(3) GG, paradoxically, is an example for the GG's openness for European integration.

Political science · Conflict of Laws and Jurisdiction · European and International Law Studies · European Criminal Justice and Data Protection