Zur Leistungsfähigkeit der Wirtschaftsverfassung

As early as in the 1950s and 1970s, the genuinely German idea of an economic constitution was reduced by the Federal Constitutional Court to the guarantee of fundamental economic freedoms in order to preserve the legislator's power to freely implement economic policies. Today, the framework of constitutional law in economic matters has become considerably more complex through the integration into European multi-level constitutionalism due to the challenges of economic globalisation and the processes of economisation of society.What is more, the challenges facing economic constitutional law have exponentially grown from the time when the crucial judgments of the Court were rendered. The legal principles and rules governing competition in the enabling State are continuously called into question even at European level. This can be shown by the uncertainties to bring the requirements of Articles 16 and 86 (1) and (2) EC-Treaty into a sustainable balance or by the »more economic approach« in EC-antitrust law. The task to achieve social justice is always related to economic constitutional law, which is obvious in the current German discussion on minimum wages. Furthermore, there is a strong tendency to strengthen strategic interventions of the State in the economies to defend its position in global markets as can be seen in the Lisbon strategy of the EU or national measures to avoid strategic investment of foreign state funds.All these challenges would require that the remaining pillars of the concept of economic constitution were strong, but on the contrary, there is considerable erosion notably with respect to the right to pursue a freely chosen occupation (Article 12 Grundgesetz) and the right to the free association in labour affairs (Article 9 (3) Grundgesetz). With respect to the first right, the Federal Constitutional Court has adopted a rather State-oriented approach formulating the said freedom as a guarantee provided by laws following market conditions and not as a fundamental freedom, with respect to the second right, economic realities are somehow discarded in the jurisprudence of the Court. Moreover, the sound guarantee of the four economic freedoms was under threat in the ECJ at European level.In this situation, the article pleads for (1) a reconstruction of strong economic fundamental rights as solid pillars of the economic constitution, (2) the re-integration of economics into the understanding of economic constitutional law and (3) a coherent law of regulation at administrative law level. This pleading remains even more valid in times of financial and economic crisis.