NEUES VOM STRUKTURWANDEL DER ÖFFENTLICHKEIT. Gewährleistungsverwaltung nach dem Fraport-Urteil des Bundesverfassungsgerichts

Abstract

In its Fraport Case decision of February 22, 2011, the German Constitutional Court stated the duty of mixed-economy societies under a dominant position of the state to act according to fundamental rights. The Fraport Case deals with the constitutional complaint of an activist claiming freedom of speech and freedom of assembly in an airport terminal run by Fraport AG, a private company with 70 percent of the shares being owned by several public authorities. Marking a significant evolution of German Public Law, the Fraport decision not only enhances the scope of constitutional rights towards public-private partnership enterprises, but also releases the ties which strictly bind the exercise of these rights in semi-public and private spheres to mediation by private law. While public control over state investments used to be subject to judicial monitoring only in an indirect manner, by obligation of public authorities to act according to the common good and in respect to constitutional standards in their position as shareholders, the Fraport jurisdiction now opens a direct way for the plaintiff to claim fundamental rights positions such as freedom of speech and freedom of assembly by direct legal action against the company. Thus, higher responsibility for implementing the promises of the Constitution′s fundamental rights is imposed on the subjects of these rights. As a consequence, the Fraport decision must be seen in the light of the continuing debate on the enabling state and its economic implications. Following a more theoretical approach, the Court′s deliberations can be analyzed within the framework of “structural transformation of the public sphere”, as Jürgen Habermas puts it. Differentiating two main concepts of public sphere in their overall appearance in German public law, the contribution envisages the perspectives of moderately rethinking the idea of fundamental rights in line with the transformation of the public sphere.