Location Factor Public Law - Integration and Competition in Federal Order

• Applicant: Professor Dr. Stefan Korte
• Subject Area: Public Law
• Term: from 2014 to 2016
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 267260492

The habilitation thesis .Location Factor Public Law - Integration and Competition in Federal Order* addresses three succeeding problems: Based on an economic competition model the thesis discusses in its first part (p. 25 ff.), whether competition between states is basically possible It is shown, that only the local factor competition is in accordance with the economic competition model. Its main characteristic is, that states are competing for production factors, as they develop their national public law as attractive as possible. Thus they attract owners of production factors to settle in their territory, which generates additional tax revenues. This economic mechanism requires a competition order in the superior law, which addresses the competing states, in order to be executable. Its ingredients will be developed in the second part (p. 91 ff.). Five commandments are appearing: First a public weal base is necessary in the superior law, to prohibit that competition between states is conducted on the expense of the public weal. Secondly, factor mobility and future proof of investment have to be ensured on the side of the factor owners, to enable a cross-border exposure and to arrange it attractive. On the side of the competing states is it necessary to legislate financial autonomy, equality of opportunity and space for lawgiving, to motivate for competitive interaction. Thirdly, protective mechanisms e.g. in the form of state aid law are needed, in order to ensure that only the quality of the state law determines the investment. Fourthly, the enforceability of the superior law and fifthly, some organizational requirements have to be given for a workable local factor competition.In the third part these abstract demands are compared to the European Community Law and the German Constitutional Law with the result, that only the Community Law allows for a workable competition between the member states (p. 161 ff.). In contrast the national law is missing factor mobility (p. 402 ff.) and financial autonomy because of the revenue equalisation in the German Constitution (p. 434 ff.).Understanding the Community Law as an order of a functional competition between the member states, a competitive interpretation of the primary law will be possible (p. 337 ff.). It explains for example, why the standard of review of the European Court of Justice is higher in the field of fundamental freedoms than in the field of the European basic rights. The reason is, that the fundamental freedoms required for factor mobility thus become one important component of the local factor competition (p. 354 ff.).

• DFG Programme: Publication Grants