Master's compulsion

from Wikipedia, the free encyclopedia

Under master constraint or master duty refers to a statutory regulation in Germany (§ 1 para. 1 in connection with § 7 Handwerksordnung (HwO)), Austria (until 1999), Luxembourg and South Tyrol (the German-speaking part of Italy), the only master craftsmen and Equals allowed to run artisanal businesses. The acquisition of the master craftsman's certificate is subject to a fee and usually takes two to three years as a part-time job, and four months to two years full-time.

The entry in the trade register and thus the independent practice of a trade is possible not only because of the master craftsman's certificate but also because of an exemption (§§ 8 or 9 HwO) or an old journeyman regulation (right to exercise according to § 7b HwO). In addition, industrial foremen , state-certified technicians and university graduates (in the relevant fields) have the opportunity to independently practice a craft in the standing trade.

Without the restrictions of the compulsory master craftsman, non-essential activities (within the meaning of Section 1 (2) HwO) - in particular activities that can be learned in a period of up to three months - may be carried out. In the travel trade as well as in the insignificant secondary craft business , essential activities may also be carried out without being entered in the craft register, i.e. without a master craftsman's certificate .

The term Meisterzwang

In craft policy, (almost) everything is controversial, including the term master craftsman . This is needed by the opponents of the market access restriction. Proponents of this rule speak of the Great Certificate of Proficiency . Often the term master's duty is also used, which better describes the situation, since the master craftsmen are also subject to a duty that they do not perceive as a compulsion. The sense of compulsory mastery has been discussed regularly throughout history - especially in Germany. The simplification of numerous production methods, the use of ready-made products that were easy to use, and an increase in unemployment and undeclared work triggered a discussion about the meaning of the existing craft regulations. Opponents of the compulsory master craftsman argue that the market is unnecessarily restricted, supply bottlenecks occur and the establishment of particularly efficient specialist companies is prevented. The proponents point to the high demands placed on skilled trades - especially with regard to consumer protection - that can only be ensured through appropriate training. The term "Meisterzwang" is not only used in terms of trade policy, but also legally in the judgments and legal decisions up to the Federal Constitutional Court, z. B. in the decision on a constitutional complaint under file number 1 BvR 1730/02 of the BVG. The term "Meisterzwang" is an ancient linguistic expression that has been used as usual up to the present day.

Historical development in Germany

There have been market access restrictions in handicrafts since the Middle Ages . This included both the numerical limitation of master craftsman positions in a city, which prevented an increase in master craftsmen's businesses, and the ban on certain groups (e.g. Jews) from exercising craft trades.

The Stein-Hardenberg reforms lifted the compulsory master craftsman in Prussia in 1810. The market access restrictions were implemented very differently over the course of the nineteenth century, both regionally and temporally. After the announcement of the trade regulations of the North German Confederation in 1869, freedom of trade was implemented across the board.

In 1897 the master's title was reintroduced and from 1908 the master's certificate was required from those who wanted to train apprentices. The craft protection legislation became the basis of the vocational training system . It was an element of the so-called collection policy , which was directed against the growing social-democratic labor movement . “As a comprehensive socio-political integration strategy, this policy, supported by the alliance between large landowners and heavy industrialists, was directed against any kind of proletarian bundling of interests, as it came to fruition in the labor movement organized as a free trade union or partisan in the social democracy .” Historians speak of “middle class protectionism as an integration strategy ".

In 1935, the master craftsman's certificate was reintroduced as a prerequisite for self-employment in Germany. This corresponded to the neo-class socio-political ideas in the Third Reich.

After the Second World War, at least in the American-occupied zone, freedom of trade was reintroduced in the craft sector. In 1953 the law regulating the craft was passed, according to which a master craftsman's certificate was required for the independent practice of the craft. The law, which was re-enacted in 1953, was largely identical in text to the version of the law from 1935.

In 2004 the number of trades in which a master craftsman is compulsory was significantly reduced. Since January 1, 2000, there is no longer compulsory master craftsman training in Austria.

Economic discussion

The compulsory master craftsman represents a market access hurdle. Within market economy-oriented economic systems, market access hurdles can be justified with an asymmetrical distribution of information - so the proponents of market access restrictions argue. Because customers cannot or cannot directly assess the quality of the craftsmanship, they would have advantages if they could rely on the qualification of the provider.

The critics doubt that there is actually an asymmetrical distribution of information. On the other hand, they argue that because of the restriction on market access due to the compulsory master craftsman, there is less competition and therefore the market participants could achieve a monopoly return with higher prices . There would also be less incentive for market participants to deliver high quality and to achieve competitive advantages through innovation.

A reduced competition is denied by the proponents of the master craftsman compulsory. They argue that there is a considerable “master reserve” of non-self-employed masters who are waiting for favorable opportunities to enter the market. In addition, engineers and craftsmen from other EU countries would also compete in the craft market. Since craftsmen / engineers from European countries can refer to their respective national legislation (market access requirements) in their, possibly only temporary, work in Germany, domestic craftsmen without a master craftsman's certificate are regularly discriminated against these competitors in the case of self-employed work .

Time and again, scientific studies and reports deal with the market access restrictions in the craft sector. In particular, in the statements of science and associations on the trade law amendment 2004 there were arguments for and against the compulsory master craftsman. The Federal Government's Monopoly Commission has dealt with the compulsory master craftsman several times and advocated its abolition. The Rheinisch-Westfälisches Institut für Wirtschaftsforschung , on the other hand, argued that an essential guarantee of competition in the handicrafts is the potential competition of the “master reserve” and that the major qualification exacerbates this competition.

A study based on the microcensus showed that the amendment almost doubled the likelihood of starting a craft business, while the likelihood of giving up a craft business remained constant. Overall, the 2004 amendment increased the number of self-employed craftsmen. The study also showed that the increases came mainly from male, low-skilled craftsmen.

Constitutional discussion and repeal

The restriction of basic rights through the compulsory master craftsman has been justified since the 2004 amendment to the trade with the "protection against dangers to health or life of third parties" as well as the training performance of the trade (beforehand, the level of performance and the efficiency of the trade should be preserved through the regulation and the offspring for the entire commercial economy can be secured).

Tradespeople without a master craftsman's certificate, on the other hand, rely on their basic right to exercise their profession freely (this basic right includes not only the choice of a profession, but also the choice of whether it should be practiced independently or in dependent employment). The compulsory master craftsman is seen as a disproportionately severe interference with this basic right, because the goal of averting danger can be achieved with less burdensome means. For example, occupational admission restrictions could only be introduced for individual hazardous activities instead of entire trades. Also, only proof of knowledge and skills that are relevant to the defense against dangers should be required - but not commercial or work pedagogical knowledge (parts 3 and 4 of the master craftsman's examination ). A comparison with other countries also shows that market access restrictions in the craft sector are not necessary to avert danger. The fact that the training performance of the craft could justify a market access restriction (as accepted by the Federal Constitutional Court in 1961) is denied by several authors today.

It is also alleged that the regulation violates the principle of equality . On the one hand, due to the unequal treatment of applicants from other EU / EEA countries ( national discrimination ) and, on the other hand, due to exceptional provisions that allow the independent practice of craft activities without a proven qualification (for example, insignificant secondary craft business according to Section 3 (2) HwO).

The craft regulations contain indefinite legal terms in various places . One is the term essential activities in Section 1 (2) HwO. In the opinion of critics, the non-exhaustive list of when activities are not essential (Section 1 (2) No. 1–3 HwO) does not change anything about the indeterminacy. This leads to the fact that norm addressees cannot assess which individual activities are regarded as essential within the meaning of Section 1 (2) HwO, for which an entry in the trade register and thus a proof of qualification is required. This is seen as a violation of the requirement of certainty .

The Federal Constitutional Court, however, grants the legislature a large margin of discretion in shaping the framework conditions for the craft.

In a decision of December 2005, the German Constitutional Court expressed "doubts about the constitutionality of the regulations of the old craft regulations on master craftsman compulsory", but resolved the case without deciding on its doubts - or even on master craftsman compulsory in the current version.

With the amendment to the trade law in 2004, the master craftsman's obligation was abolished for 53 trades, which are now listed in Appendix B of the Crafts Code.

Consumer protection and quality assurance

Proponents of market access restrictions emphasize the importance of the restriction for consumer protection . Due to the proven qualifications of the farm managers, consumers could trust the quality of the products and services.

In the opposing position, it is argued that quality assurance would be ensured by other laws such as the Product Liability Act or the Procurement and Contracting Regulations for Construction Services (VOB) and liability law . The apprenticeship training would also be sufficient to deliver high quality.

Reintroduction for twelve trades

After the obligation to become a master craftsman was lifted, there was a discussion about reintroduction. In 2018, the AfD parliamentary group in the Bundestag submitted an application for the reintroduction of the master craftsman's obligation. The coalition agreement between the CDU, CSU and SPD of February 7, 2018 also stipulated that it would be necessary to examine how the master craftsman's obligation can be reintroduced for some trades in accordance with European law. An expert opinion commissioned by the Central Association of German Crafts came to the conclusion that the reintroduction of some crafts is compatible with European and constitutional law. However, such a compatibility is sometimes questioned and there is a risk that the reintroduction of the master craftsman's obligation could bring it down as a whole.

In February 2019, the Federal Council advocated the reintroduction of the master craftsman's obligation for all skilled trades where this is technically required and possible under European law. The grand coalition then took up consultations. A corresponding legal regulation was announced for October 2019 and finally passed by the federal government on October 9th. On December 12, 2019, the Bundestag passed changes to the Crafts Code, which reintroduced the master craftsman requirement for the following twelve trades and came into force on February 14, 2020:

  1. Tile , slab and mosaic layers
  2. Concrete block and terrazzo manufacturer
  3. Screed layer
  4. Tank and apparatus builder
  5. Parquet layer
  6. Roller shutter and sun protection technician
  7. Woodturners and wooden toy makers
  8. Hooper, Fassbinder or coopers called
  9. Glass refiner
  10. Sign and light advertising manufacturer
  11. Interior decorator
  12. Organ and harmonium builder.

Companies founded in these trades in the period from January 1, 2004 to February 13, 2020 enjoy grandfathering and may continue to operate.

Up-to-date list of the master craftsman professions from A – Z

Status: 02/14/2020

  1. Optician
  2. baker
  3. Tank and apparatus builder
  4. Concrete block and terrazzo manufacturer
  5. Boat and ship builders
  6. Cooper
  7. Gunsmith
  8. Well builder
  9. Surgical mechanic
  10. roofer
  11. Woodturners and wooden toy makers
  12. Electrical machine builder
  13. Electrical engineer
  14. Screed layer
  15. Precision mechanic
  16. butcher
  17. Tile, slab and mosaic layers
  18. hair stylist
  19. Scaffolders
  20. Glassblower and glass apparatus builder
  21. Glaziers
  22. Glass refiner
  23. Hearing care professional
  24. Plumber and heating engineer
  25. Information technician
  26. Refrigeration system builder
  27. Body and vehicle builders
  28. plumber
  29. Confectioner
  30. Agricultural machinery mechanic
  31. Automotive mechanic
  32. painter
  33. Bricklayer and concrete worker
  34. Metal workers
  35. Furnace and air heating builder
  36. Organ and harmonium builder
  37. Orthopedic shoemaker
  38. Orthopedic technician
  39. Parquet layer
  40. Interior decorator
  41. Roller shutter and sun protection technician
  42. Sign and light advertising manufacturer
  43. chimney sweeper
  44. Seiler
  45. Stonemason and stone sculptor
  46. Road builders
  47. Plasterer
  48. carpenter
  49. Vulcanizer and tire mechanic
  50. Heat, cold and sound insulation insulators
  51. Dental technician
  52. Carpenter
  53. Two-wheel mechanic

swell

  1. ^ Austrian Constitutional Court : ruling of December 9, 1999 Gz .: G42 / 99; G135 / 99; V18 / 99; V77 / 99
  2. ↑ Return to master craftsman compulsory , retrieved from FAZ on April 25, 2020
  3. ↑ Bundestag decides to reintroduce compulsory master craftsmen, retrieved from IF Handwerk on April 25, 2020
  4. ↑ Unanimous decision of the Federal Constitutional Court et al. against a "compulsory master craftsman" , retrieved from bundesverfassungsgericht.de on April 25, 2020
  5. ^ A b Klaus Harney, History of Vocational Training , in: Klaus Harney, Heinz-Hermann Krüger (ed.): Introduction to the history of educational science and educational reality , Opladen & Bloomfield Hills, 3rd edition 2006, pp. 231–267, quotation Pp. 245-246.
  6. ^ German Bundestag, committee printed matter of the Committee for Economy and Labor 15 (9) 519, July 7, 2003
  7. ↑ Main report from 2004 and 1998, XV main report of the Monopolies Commission - 2002/2003 - and XVI main report of the Monopolies Commission ( Bundestag printed paper 16/2460 (PDF; 7.1 MB) as well as in special report 31 of the Monopolies Commission: Reform of the Crafts Code (2002) (PDF; 106 kB)
  8. ↑ "The Great Certificate of Proficiency in German Crafts", Rheinisch-Westfälisches Institut für Wirtschaftsforschung, 1999
  9. ↑ Rostam-Afschar, D. (2013): "Entry regulation and entrepreneurship: a natural experiment in German craftsmanship" (PDF; 495 kB)
  10. ↑ BverfGE 13.97, of July 17, 1961
  11. ^ Christian Haas: Die Handwerksnovelle 2003/2004 , Verlag Centaurus, p. 65 f.
  12. ↑ Raimond W. Wagner: The access to the craft profession , Verlag PCO, Bayreuth 2006, p. 185
  13. ↑ Simon Bulla: Freedom of choice of profession , Augsburger Rechtsstudien 55, Nomos-Verlagsgesellschaft, p. 267 ff., Summarizing p. 287 f.
  14. ↑ Simon Bulla: Freedom of career choice , Augsburger Rechtsstudien 55, Nomos-Verlagsgesellschaft, p. 294
  15. ↑ BverfGE 13.97, of July 17, 1961
  16. ↑ BVerfG, 1 BvR 1730/02 of December 5, 2005
  17. ↑ Bundestag printed paper 19/4633 .
  18. ↑ Koalisitionsvertrag between the CDU, CSU and SPD from 07.02.2018 . S. 65 .
  19. ↑ Martin Burgi: Constitutional and European law admissibility of the return of Annex B1 crafts in Annex A to the HwO? In: Economy and Administration, 3/2018 . S. 181 ff .
  20. ↑ Florian Kamp, Johannes Weiß: The reintroduction of the master craftsman's obligation for the B1 trades - Prometheus fire or Pandora's box . In: trade archive issue 12/2018 . S. 450 ff .
  21. ↑ Federal Council Initiative : Länder for a return to compulsory master craftsmen in certain professions. In: Spiegel online. February 15, 2019, accessed October 15, 2019 .
  22. ^ Tiler and organ builder: Coalition plans to reintroduce the obligation to become a master craftsman in twelve professions. In: Spiegel online. September 9, 2019, accessed October 15, 2019 .
  23. ^ A b Marie Rövekamp: Hustle and bustle in the craft: return to the master craftsman's obligation remains controversial. In: Der Tagesspiegel. September 19, 2019. From Tagesspiegel.de, accessed October 15, 2019.
  24. ^ Skilled trades: Federal government decides that a master craftsman is required. In: time online. October 9, 2019. From Zeit.de, accessed October 15, 2019.
  25. ↑ Altmaier: "Reintroduction of the master craftsman's duty - a strong signal for the future of the craft". In: press release. October 9, 2019, Federal Ministry for Economic Affairs and Energy. At BMWi.de, accessed on October 15, 2019.
  26. ↑ Bundestag resolves to return to compulsory master craftsmen. In: Spiegel online. December 12, 2019, accessed December 12, 2019 .
  27. ↑ Federal Law Gazette . Retrieved February 15, 2020 .
  28. ↑ https://www.handwerk-magazin.de/die-liste-der-41-geretteten-meisterberufe/150/5/25468

literature

  • Ulrich Briefs : German backwardness. Everything is forbidden - the German craft regulations should be abolished. In: Stefan Bollmann (Ed.): Patient Germany. A therapy. Deutsche Verlags-Anstalt, Stuttgart et al. 2002, ISBN 3-421-05667-6 , pp. 135–151.
  • Simon Bulla: freedom of career choice. Constitutional and community law determinants of access to the profession using the example of craft law (= Augsburger Rechtsstudien. 55). Nomos, Augsburg 2009, ISBN 978-3-8329-4482-7 (also: Augsburg, University, dissertation, 2008/2009).
  • Markus Fredebeul-Krein, Angela Schürfeld: Market access regulations in the trades and in technical services. An economic analysis (= studies on economic policy. 112). Institute for Economic Policy, Cologne 1998, ISBN 3-933812-00-3 .
  • Ingo Stüben: The German craft. The large certificate of proficiency (master craftsman's certificate) as a criterion for market entry. docupoint, Magdeburg 2007, ISBN 978-3-939665-01-4 .
  • Egon Tuchtfeldt : Freedom of trade as a problem of economic policy (= Volkswirtschaftliche Schriften. 18, ISSN  0505-9372 ). Duncker & Humblot, Berlin 1955, (at the same time: Hamburg, University, habilitation paper, from February 23, 1955).
  • Raimond W. Wagner: The access to the craft occupation. An investigation on the occasion of the changes to the Crafts Code of 1.1.2004 (= writings on jurisprudence. 59). Verlag PCO, Bayreuth 2006, ISBN 3-936299-66-8 (also: Bayreuth, Universität, Dissertation, 2006).

See also

Web links