Unternehmenseffizienz als neue Rechtskategorie im Öffentlichen Recht

Abstract

Corporate Efficiency as a New Legal Category of Public Law

The increasing incorporation of economic efficiency requirements in provisions of national and EU law calls for an examination of this new legal phenomenon. Three different “entry points” (“Einbruchstellen”) for efficiency considerations can be distinguished: the immediate reception in legal provisions, the filling in of general clauses and the embodiment in general objectives of statutes. With its inclusion in the legal system, the efficiency criterion passes through a “metamorphosis” from an economic to a legal concept. It mainly addresses economic participants. Looking at the variety of manifestations, it is already possible to speak of a new legal category of “corporate efficiency” (“Unternehmenseffizienz”). It is characterised by an original phenomenology. More specifically, one has to distinguish between the role of “corporate efficiency” as a legal obligation, as a condition to obtain a permit, as an incentive, as a selection criterion and as a defence. Regarding the concrete meaning of “corporate efficiency”, the autonomy of legal method has to be emphasised as the starting point. Despite this fact, the article shows, by using the example of efficiency as a benchmark of regulatory law, how far the substantive influence of economics extends. It culminates in the legal requirement of an interdisciplinary interpretation and application of the spectrum auction rules. Against this background, jurisprudence needs an interdisciplinary dialogue with economics without sacrificing its autonomy.