Private law and economic constitution: Free competition as a method of interpretation

Kainer, Friedemann

Document Type: Book chapter
Year of publication: 2021
Book title: European economic constitution : German-Italian dialogue for a solidarity-oriented common market
The title of a journal, publication series: Schriften zu Verbraucherrecht und Verbraucherwissenschaften
Volume: 13
Page range: 241-265
Publisher: Schmidt-Kessel, Martin ; Crea, Camilla ; Femia, Pasquale ; Möllnitz, Christina
Place of publication: Jena
Publishing house: JWV, Jenaer Wissenschaftliche Verlagsgesellschaft
ISBN: 978-3-938057-99-5
Publication language: English
Institution: School of Law and Economics > Bürgerl. Recht, Deutsches u. Europ. Wirtschafts- u. Arbeitsrecht (Kainer 2012-)
Subject: 340 Law
Abstract: 1. Civil law continues to be based on a concept of (contractual) freedom. Views which understand freedom charged with a normative responsibility in terms of morality or ethics, are not compatible with the fundamental principle of civil law, which is to guarantee private autonomy. If the legislator intervenes in the freedom of the individual, he must justify these as encroachments upon fundamental rights. The leading concept here is the principle of proportionality. Any such intervention must be suitable and necessary. 2. The law of the competition-based market economy is conceptually linked to civil law. This was shown in particular by the close connection between civil law and the EU internal market law, the values and systematics of fundamental rights, private autonomy as a core principle and the strong presence of the information model and its priority over fairness review by courts. Thus, the structural principles of the market economy find their way into the interpretation of civil law norms as principles in the form of optimisation imperatives. As structural principles, the priority of freedom of competition and the significance of the price mechanism as the core of the competitive steering and allocative function could be identified. 3. The introduction of the competitive principle as one of the guiding principles in civil law leads to convincing results in the interpretation of civil law norms. In particular, the reasoning can be rationalised in many cases. However, it is important to clarify, that other objectives, in particular solidarity, consumer protection, the protection of tenants, etc., have to be brought in balance with the competition objective. In the interpretation of legal norms, diverging principles must be reconciled in order to achieve balanced and acceptable results. 5. Methodologically, the integration of the principle of competition into civil law constitutes a teleological interpretation and can therefore be seamlessly embedded within the methodological tools of jurisprudence. Put in this way, the market principle in civil law does not pose a threat to its dogmatics but gives rise to an opportunity for increasing our understanding of civil law.
Translation of the title: Privatrecht und Wirtschaftsverfassung: Freier Wettbewerb als Auslegungsmethode (German)

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