Fritz Rittner, Habersack Mathias/Hommelhoff Peter/Hüffer Uwe/Schmidt Karsten (Hrsg.), Festschrift für Peter Ulmer zum 70. Geburtstag am 2. Januar 2003, Konzeption und Strukturen des Wirtschaftsrechts, Berlin: De Gruyter Verlag, 2003, p. 977-990.
Fritz Rittner – Konzeption und Strukturen des Wirtschaftsrechts
Summary
In this essay, Prof. Dr. Fritz Rittner examines the concept of economic law and its structures. Economic law was discovered as a “stand-alone” (individual) field of law in Germany at the beginning of the 20th century.
Prof. Rittner explains that, as is the case in the entire modern legal system, the notion of the “person”, which is itself an idea of equality, is the underlying concept of economic law. With the concept of gesamtwirtschaftliche Richtigkeit (fairness of the economy), economic law complements the instruments of private and public law. Accordingly, the German Federal Constitutional Court has stressed from the very beginning that the Constitution enables the legislator “to pursue the economic policy he considers to be appropriate, as long as he thereby respects the basic law”. Prof. Rittner points out that this finding does not comprise a completely free market economy of “laisser-faire” or a centralized administration base on the model of the Soviet Union (and the DDR) or “class hierarchic-corporative systems”. Further, he points out that the European Economic Community, and subsequently the European Community, (EC), developed their own economic law, which has primacy over the laws of member states (including their constitutions). This law assumes the different private law of member states, and its goal is, primarily, to remove economic frontiers in the Community in order to achieve an effective single market for its citizens. For this purpose, it provides for the free movement of workers, entrepreneurs and capital and, therewith, competition.
Because of the structural consistency of European and German economic law, it seems reasonable to systemize both laws according to the same principles or, in other words, to bring both laws into one system. Accordingly, alongside fundamental private law, general economic law consists of regulatory functions, general rules of company law, competition law and general “steering” law. The regulatory functions are divided between the EC and the federal republic on the one side and the state functions (legislative, executive, administrative and judiciary) on the other side. (Note that these state functions, although familiar, can present themselves as slightly “modified” in economic law.)
Accordingly, the legislative power is split between the EC and Germany, whereas the executive functions are still allotted, to a large extent, to the individual states. On the contrary, the economic administration at the EU level is entrusted to the Commission and the various Commission Directorates-General. In Germany, alongside the state administration, the self-administration – in particular that of the chambers of industry and commerce as well as the chambers of craft trades – are of considerable importance. Accordingly, the state administration can limit itself to actual regulatory functions; in Germany, the state administration is split between the federal government and the “Länder”. Finally, for European law, the judiciary is entrusted to the EC-Courts, whereas the rest is entrusted to the German judiciary authorities.
Prof. Rittner states that economic law cannot be captured by two- or even three-dimensional systems. However, its existence as a “stand-alone” field of law cannot be denied any longer. If we ignored such a finding and, according to the system of the 19th century, looked for it in private or public law, this would not only lead to significant practical and theoretical aberrations, but would also mean that there would be no place left for the principle of fairness of the economy.