Incentives in public law

• Applicant: Professorin Dr. Johanna Wolff
• Subject Area: Public Law
• Term: from 2013 to 2021
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 235368480

The subject-matter of the project is to survey the relevance of incentives in public law in their function as a tool of behavioural guidance. Incentives are regarded as non-imperative and non-sanctioning legal provisions that cause or intend to cause a change of behaviour by holding out the prospect of a positive or negative consequence. The project aims at providing comprehensive research on this specific singled-out legal instrument. In concreto, three fields of law will be analysed: the public family law, the legal regulation of the energy sector, and the law of fiscal equalisation. Each of these areas is characterised by incentive-based schemes and each scheme represents a different regulatory sphere, i.e. the personal, the economic and the state sphere.Initially, the relevance of incentives as a regulatory tool in administrative law will be analysed. Albeit the wide spread of incentives in administrative law, their concept has hardly been acknowledged as a legal one by jurisprudence and legal theory. Instead, incentives are mostly perceived as originating in economic theory, and their relevance in law is being viewed as an indication for an economisation of law. The project confronts such perception with a new, legal perspective and, ultimately, aims at an incorporation of the concept of incentives in administrative law. For this purpose, the diversity of incentives in the aforementioned fields of reference will be explored in order to identify patterns and rules. Furthermore, effects as well as conditions of their functioning will be analysed. Thus, the significance of incentives in view of the interpretation and application of public law will be extrapolated.Constitutional law will serve as a further basis for analysing the concept of incentives against the background of its normative stipulations. The benchmark for incentives affecting the personal as well as the economic sphere is determined by the fundamental rights. Against this backdrop, the non-imperative character of incentives as well as the lack of predictability regarding their possible effects raise legal concerns, which the project will address. Further, the principle of democracy and the rule of law may be relevant particularly regarding the imputability of incentive-related effects, their perceptibility, as well as their purposefulness. As the regulation of the energy sector is strongly influenced by European Union law, the respective legal obligations deduced thereof will be included in the survey. In addition to the aforementioned, an overall objective of the project is to extract requirements for good incentives in public law regarding. Therefore, the study will address contexts and framework conditions under which incentives may have the most significant impact.As a whole, the project seeks to further develop the legal doctrine and the control theory with regard to administrative law in general the fields of reference in particular.

• DFG Programme: Research Grants