Rome and after: the microeconomic constitution

We shall use ‘economic constitution’ as a neutral concept, that is, not attached to any specific economic model. But in exploring European economic constitutionalisation, especially in its first decades, due attention must be paid to the ordoliberal school of legal and economic thinking, which introduced constitutional discourse at the European level. This school interpreted – and still interprets – the economic constitution in terms of a comprehensive decision (Gesamtentscheidung) or system decision (Systementscheidung) in favour of a distinct ideal model of the economy: the market economy, premised on performance-based competition (Leistungswettbewerb). Only beginning in the 1990s did the term ‘economic constitution’ gain wider currency in scholarly discourse outside Germany, and only then did it start to escape from the confines of market-liberal economic thought and receive more neutral connotations.

It may seem natural that constitutional discourse and, by the same token, constitutionalisation started out in the economic dimension. In the first decades of its history, say, up to the Maastricht Treaty, European integration was almost exclusively an economic project. But it was not self-evident that the economic orientation of the Community would be conceptualised with a constitutional vocabulary. The very term ‘economic constitution’ stems from one particular legal culture – the German one – and even there the corresponding concept has been highly contested. Opinions on who, exactly, is to be regarded as the father of the term seem to diverge, but general agreement prevails on the crucial age. This was the Weimar period. Hugo Sinzheimer applied the term to the multi-faceted and multi-tiered corporatist organisation for economic decision-making, set out in the Weimar constitution but never really established.