Economic constitution

The term economic constitution is used with different meanings. The term itself comes from the terminology of economics and social sciences . There it is understood in the sense of the "overall decision about the order of the economic life of a community".

The term also has different meanings in legal linguistic usage in Germany. In the past it was mostly understood as the totality of all norms of public and private law , in which regulations on economic order are contained. Today, however, it has become established to use the term to designate the totality of economic norms in the rank of constitutional law. In this respect, the term “economic constitution” in Germany means the basic legal regulations of the economic order resulting from the Basic Law and the higher-ranking constitutional law of the European Union (EU) .

Basic Law

In contrast to the Weimar Constitution , the Basic Law does not contain a section that explicitly regulates “economic life” (Art. 151–166 WRV). Even with the inclusion of the basic rights of freedom of occupation ( Art. 12 , para. 1 GG), the guarantee of ownership ( Art. 14 , para. 1 GG) and the general freedom of action ( Art. 2 , para. 1 GG) the constitution should be given to any particular economic order . The Parliamentary Council wanted to leave this to the future. The socialization regulated in Art. 15 GG should not change anything. Nevertheless, especially in the post-war period, but still today, there was a dispute about which economic constitution the Basic Law contained.

Classifications

Hans Carl Nipperdey developed the thesis that the Basic Law is based on the economic constitution of the social market economy . He saw the general freedom of action guaranteed in Article 2, Paragraph 1 of the Basic Law as the Magna Charta of the market economy, which, supplemented by the welfare state principle , constitutionally guarantees the basic concept of the social market economy. The legislature must take this into account in its legislative work and must therefore not create laws that run counter to the social market economy.

Ernst Rudolf Huber opposed Nipperdey's concept and claimed that the Basic Law was based on the concept of a “mixed economic constitution”. This results from the balance between the openness guaranteed in the basic rights on the one hand and the material system closure through other regulations on the other.

In contrast to the conservative constitutional lawyers, the socialist-oriented constitutional lawyer and political scientist Wolfgang Abendroth tried to emphasize the welfare state elements of the Basic Law. In his view, the welfare state clause gives society the constitutional opportunity to “reschedule its own foundations”. Socialism could therefore also be realized under the Basic Law; Anyone who advocates this does not violate the free democratic basic order and should therefore not be prosecuted as an alleged "enemy of the constitution" .

Jurisprudence

The Federal Constitutional Court has already established with the investment aid decision of 20 July 1954 that the Basic Law, neither the economic neutrality nor a guarantee of the executive and legislative authority with market-oriented means to be controlled "social market economy". The constitutional body did not explicitly opt for a particular economic system. This is why the Federal Constitutional Court speaks of the "economic and political neutrality" of the Basic Law.

As a result, the Federal Constitutional Court has largely retained its case law in this regard and essentially confirmed it in the codetermination decision of March 1, 1979, which concerned the constitutionality of the Codetermination Act . However, in this decision the court pointed out more emphatically than in the investment aid decision that the legislative possibilities for restructuring in the fundamental rights must find their limits.

In consistent case law, the Federal Constitutional Court has established an "objective value system" based on the welfare state principle according to Article 20, Paragraph 1 in conjunction with the human dignity of Article 1, Paragraph 1 of the Basic Law and the freedom of action of Article 2, Paragraph 1 of the Basic Law. social democracy in the forms of the constitutional state ”, from which public tasks result, especially in the area of services of general interest , was outlined and is subject to the eternity guarantee of Article 79.3 of the Basic Law.

European Union

The progressive expansion and deepening of the former “ Common Market ” (EEC, from 1957) and its completion as the “ European Single Market ” (1993), together with the EU Economic and Monetary Union and the European Payments Area (SEPA), etc. a. to create a single, internally and externally uniform legal and economic area. This has led to far-reaching economic and economic sovereignty, constitutional and power transfers or shifts from the individual member states to the legislature, executive and judiciary of the EU.

Since these shifts were only partly written, but largely unwritten, in individual cases and unsystematically, and continue to take place, a new flowering of both the national, e.g. B. German, as well as EU economic constitution law occurred. Its focus is more on the classic recording, systematisation and delimitation of the various constitutional actors, bodies, legislative powers, etc.

According to this, in addition to the European fundamental rights, the European internal market is the most important legal institution of European economic constitutional law, similar to fundamental rights. With the constitutionally guaranteed and protected freedom of movement for people, goods, services and capital with the abolition of national "internal" borders, it has a single, uniform EU constitutional and economic area inwards (new inland) and outside created. Another fundamental constitutional institute of the European Economic Constitution is the independence of the EU in the field of foreign trade policy and legislation vis-à-vis foreign countries (third countries or third countries) and internally vis-à-vis the member states (common trade policy, Art. 133 ECT). In addition, there is competition law - relatively detailed for a constitution - (Art. 81 ff EGV), which, in addition to antitrust law (prohibition of cartels, prohibition of abuse of a dominant position, merger law), includes provisions on state aid and public procurement law. However, merger law and public procurement law are essentially regulated by EC secondary law.

literature

Peter Badura / Fritz Rittner / Bernd Rüthers, Codetermination Act 1976 and Basic Law, Munich 1977.
Armin Hatje, Economic Constitution, in: von Bogdandy (Ed.), European Constitutional Law, Verlag Springer, 2003, p. 683 ff; ders, Economic Constitution in the Internal Market, in: Armin von Bogdandy / Jürgen Bast (eds.), European Constitutional Law, 2nd edition, 2009, Cologne, pp. 801–853.
Ernst Rudolf Huber, The dispute about the economic constitution (I), in: DÖV 1956, p. 97 ff.
Hans Carl Nipperdey, Economic Constitution and Federal Constitutional Court, Cologne, Berlin, Munich 1960.
Holger Martin Meyer, Priority of private economic and social organization as a legal principle - a systematic-axiological analysis of the economic constitution of the Basic Law, Berlin 2006.
Gerald G. Sander / Daniel Sigloch: Cases on economic constitutional and economic administrative law, Vahlen, Munich 2003.
Josef Scherer, The Economic Constitution of the EEC (European Economy Series, Vol. 50), Baden-Baden 1970, 205 pp.
Gerold Schmidt, The new subsidiarity principle regulation of Article 72 of the Basic Law in the German and European Economic Constitution, in: The Public Administration (DÖV), 1995 pp. 657–668.
Norbert Wimmer / Thomas Müller, commercial law. International - European - National, 2nd edition 2012, in particular p. 81 ff.

Web links

Individual evidence

↑ BVerfGE 4, 7
↑ BVerfGE 50, 290
↑ The image of man in the Basic Law is, it says there, “not that of an isolated sovereign individual; Rather, the Basic Law decided on the tension between the individual and the community in the sense of community-relatedness and community-boundness of the person without affecting their intrinsic value ”.
↑ In terms of freedom of the economic system is formulated there, they should not lead to a reduction of what the constitution will ensure stable in all change, especially not to a shortening of the individual guaranteed by the individual fundamental rights freedoms, without which after conception of the Basic Law a life in human dignity is not possible. The task is therefore to combine the fundamental freedom of economic and socio-political shaping, which must be preserved for the legislature, with the protection of freedom to which the individual has a constitutional right, especially against the legislature (with reference to BVerfGE 7, 377 ( 400))
↑ Cf. u. a. BVerfGE 38, 258 (270 f.), BVerfGE 66, 248 (258), BVerfGE 45, 63 (78 f.). “What is noteworthy about this case law of the Federal Constitutional Court is that, in spite of the wide scope of the legislature's scope for design in the area of the welfare state principle of the Basic Law, there are concise contours in many respects. On the one hand, there is the area of services of general interest, i.e. important infrastructure areas for ensuring a human existence. This includes facilities that people need to realize their person and individuality and which they cannot provide themselves, such as electricity, water supply, telephone, rail and post. On the other hand, there are areas in which the weak in society do not have the same prerequisites and the same opportunities for personal development as the vast majority of people in our state. Here the state must act according to the welfare state principle. He has an obligation to ensure a just social order (BVerfGE 59, 231 (263); see also BVerfGE 82, 60 (80)). Profit maximization runs directly counter to the "(Siegfried Bross, a judge at the Federal Constitutional Court, quoted from. ? Privatization of public services - threats to the control capability of States and for the common good , lecture, held on 22 January 2007 in Stuttgart)

[1] BVerfGE 4, 7

[2] BVerfGE 50, 290

[3] The image of man in the Basic Law is, it says there, “not that of an isolated sovereign individual; Rather, the Basic Law decided on the tension between the individual and the community in the sense of community-relatedness and community-boundness of the person without affecting their intrinsic value ”.

[4] In terms of freedom of the economic system is formulated there, they should not lead to a reduction of what the constitution will ensure stable in all change, especially not to a shortening of the individual guaranteed by the individual fundamental rights freedoms, without which after conception of the Basic Law a life in human dignity is not possible. The task is therefore to combine the fundamental freedom of economic and socio-political shaping, which must be preserved for the legislature, with the protection of freedom to which the individual has a constitutional right, especially against the legislature (with reference to BVerfGE 7, 377 ( 400))

[5] Cf. u. a. BVerfGE 38, 258 (270 f.), BVerfGE 66, 248 (258), BVerfGE 45, 63 (78 f.). “What is noteworthy about this case law of the Federal Constitutional Court is that, in spite of the wide scope of the legislature's scope for design in the area of the welfare state principle of the Basic Law, there are concise contours in many respects. On the one hand, there is the area of services of general interest, i.e. important infrastructure areas for ensuring a human existence. This includes facilities that people need to realize their person and individuality and which they cannot provide themselves, such as electricity, water supply, telephone, rail and post. On the other hand, there are areas in which the weak in society do not have the same prerequisites and the same opportunities for personal development as the vast majority of people in our state. Here the state must act according to the welfare state principle. He has an obligation to ensure a just social order (BVerfGE 59, 231 (263); see also BVerfGE 82, 60 (80)). Profit maximization runs directly counter to the "(Siegfried Bross, a judge at the Federal Constitutional Court, quoted from. ? Privatization of public services - threats to the control capability of States and for the common good , lecture, held on 22 January 2007 in Stuttgart)