Wirksamer Wettbewerb durch offene Normen Zum Funktionswandel der unbestimmten Rechtsbegriffe im Telekommunikationsrecht

This article purports to explore the functional change as well as the institutional significance of the so-called uncertain legal concepts in light of the telecommunications law. Based on the fundamental contrast of the ideas of order between traditional and modern areas of administrative law, this article clarifies why and how the uncertain legal concepts in the telecommunications law no longer help to stabilize the established social order through offering certain answers to those who apply the law. In arguing for a paradigm change, though, this article does not embrace the widespread idea that the administrative agencies should be granted more independent power due to the numerous uncertain legal concepts, which, according to the dominant opinions, have lost their binding force to a large extent. To the contrary, it points out that, in view of the characteristics of telecommunications law, the uncertain legal concepts serve their binding function no longer with their semantic certainty, but rather through their delegation, which not merely enables, but exactly in this way obligates the administrative agencies to make decisions in accordance with the ultimate goal of effective competition. This article thereby argues that the binding power of uncertain legal concepts in light of telecommunications law should be understood in an institutional rather than a substantial sense.