Freedom of trade
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Freedom of trade in the English linguistic usage also as free employers (free enterprise) designates - the fundamental liberty for everyone is to work commercially. It results as practical consequence from the basic motive of the general occupation liberty. The freedom of trade is therefore the central demand of the classical liberalism in relation to the restrictions of the trade guilds and the condition company. Since the second half 18. Century belongs it to economic fundamental rights and in numerous conditions precipitation found. Already during the French revolution proclaimed, was introduced the freedom of trade 1810, as main part of the stone Hardenberg reforms, to Prussia.
The freedom of trade and its legal restrictions are the most elementary order principles of a free economic constitution. It represents quasi the operating system of the free-market economy . In the economic aspect freedom of trade means free competition with if possible free Marktzugang. Accordingly the degree of the Gewerbfreiheit is divided usually - depending upon the possibilities of the market admission - in three stages:
- free and simple market admission (free and easy entry)
- limited market admission (barriers ton entry)
- closed market admission (blockaded entry)
during in the anglo American discussion lively debates across kind and range of the freedom of trade to be led (NO barriers ton entry! ) - the topic in Germany is treated only carelessly. The discussions are limited mostly to legal work.
articles 12 paragraph 1 of the Basic Law reads:
All Germans have the right, occupation, to select job and training centre freely. The practise of the profession can be regulated by law or due to a law.
In § the 1 exp. 1 of the trade and industrial regulations is called it:
The enterprise of a trade is everyone permitted, as far as by this law exceptions or restrictions are not prescribed or certified.
In § 1 exp. 1 of the trade and industrial regulations of 1869 was determined:
The enterprise of a trade is everyone permitted, as far as by this law exceptions or restrictions are not intended or course-read.
Also in that Weimar realm condition was in kind. 151 exp. to read 3:
The liberty of the trade and trade is ensured in accordance with condition of the realm laws.
All legal formulations have certainly one together: They are split - while the operation of a trade is permitted from the principle everyone, encounter the practice of a certain trade reservations, which can be determined by further laws. Due to this ambivalence the actual extent at freedom of trade in Germany is to be determined not concretely. On the contrary: A such construction offers clearance for an abundance of restrictions.
The restrictions are however a result of the social free-market economy, so the favourable voices of this legal practice. Always apply it the interests of the liberty of the market with other interests like social to weigh job market-political or consumer protection.
Market interferences, which come down in fact to market bulkheading and the sharing at the business life to job seekers block, can be justified however neither economically nor socially.
restrictions of the freedom of trade
the restrictions of the law regulating the closing time of shops
for permission-requiring trades an official permission is necessary. Official restrictions of the freedom of trade are justified mostly with the reference to public security and the danger warning. Beside business editions is technical instruction-oh-point usually necessarily. For various trades - before all with the switching of loans, principal and investments - in addition the proof personal reliability and sufficient financial circumstances demanded. After the license sometimes still another concession follows.
List of permission-requiring activities and trades (not complete! )
- Trade also medicaments free-for sale
- private hospitals and nursing for the sick
- production of weapons and medicaments
- trade with weapons, ammunition, explosive and poisons
- trade with Sittichen and vertebrate animals
- enterprise of Schank and food managing
- accommodating enterprise
- employee hiring
- automat list
- transport of persons with buses, rented car, taxes
- transportation of goods by road enterprise
- financial services
- plant consulting and switching
- activities in the guard trade
- record keeping aid
- debt collecting agency
- old person care, care of children
the restrictions of the handicraft ordinance
due to the liberty of the trade and the free occupation choice is open itself it everyone, for the occupation of a craftsman, for example a painter to decide. The practice of the trade is made dependent on an existed mastership examination however. This in most cases means: 3 Lehrjahre, 3 associating years and some months until 2 years master school. In the sum then one time interval of up to 8 years and total costs up to 25.000-50.000 euro (inclusive travel costses and loss of wages) for master training courses result.
The master's certificate “large certificate of competency”, is a condition for the high quality of the German handicraft and its exemplary training achievements. It serves the protection from dangers and the protection of the consumers from stümperhafter work leads the driving on words in the field. By the opponents of this practice the mandatory master's certificate becomes however as “master privilege” burning market. As a privilege the fact that the master enterprises before cheap competition by simple it associates or was to protect unskilled ones. By the “master obligation” the handicraft has the character of a license business that - as in once in the trade guilds - to the fact leads that the masters remain with the assignment of orders under itself. The missing competition caused those allegedly to high hourly rates for craftsmen. At expense of the consumers and in favor of the moonlighting. The example of the USA and many other countries shows however that a most efficient building industry functions also completely without master obligation. Besides the master's certificate is not to be abolished. The opening of the market would however leave the decision to the consumer over its own claims of quality.
restrictions for free and academic occupations
for numerous occupations such as physician, veterinary surgeon, pharmacist or attorney university studies are necessary. Often additionally further conditions (practical courses, Referendariate etc.) must be fulfilled to the final study still another row:
For the permission for tax counsel examination an economiceconomics or jurisprudential study and a 2-jährige are usually practical fiscal activity a condition.
The training possibilities for academic occupations - with high social prestige and appropriate income expectations - are often limited by the limited number of study places. The entrance to the study is then often limited by number Clausus. The number Clausus is not to be agreed upon however with ideal-typical the freedom of trade and occupation at all. Already in the trade guilds the number Clausus played important role, by the numerical delimitation of the master enterprises.
From the view of the classical liberalism the number Clausus a apodiktische market intervention is pronounced, with planned-economy courses. Instead of the liberty to the occupation choice choice and the competition prevail here the criteria for choice of a commission forwards, which can be very arbitrary and arbitrary - and those above all no contradiction bears. For the market participants, who overcame the permission hurdles, the permission became as it were an occupation privilege, which protects against further competition. The branchenüblichen achievements are then above all system conformal - and thus as expected lower than in an remain-open competitive situation. The economist and Nobelpreisträger Milton Friedman demanded the abolishment of vocational restrictions of permission for the medical profession for this reason even!
the role of the chambers and the according to professional status combinations
like all laws are caused also the restrictions of the freedom of trade in the democratic society by resolutions by government and parliament. Requests of chambers and according to professional status combinations play thereby a substantial role. They are considered as competent and relevant partners in all questions of the economic policy. By obligation memberships they are decisive for whole industries. Their public organization lends as it were an official occurrence to them. In the Federal Republic are transferred an abundance of tasks to the chambers. They participate in organization of career profiles, formulate bases, standards and fees and supervise training and examinations. In their respective operating fields they - partly in the legal order - are responsible for the entire market structure. - Market structure means however always also power structure. The policy delegated this way on economic power at groups, which are groups of interests at the same time. Therefore it comes that straight representatives from the economy support market structures, which contrary-run the liberal principles of the freedom of trade and the free competition. Thus the representatives of the handicraft express themselves the pharmacists regularly against liberalisation of the handicraft ordinance, against the abolition of the pharmacy monopoly, the attorneys and tax counsels against the abolition of the competition-adverse regulation of charges etc. - Intermeal representatives are obviously adjusted against the opening of the markets, since the legal privileges which were entitled so far protects whole professions before the comprehensive dynamics of free competition. Some group of z. B. the district chimney sweep masters possesses even area monopolies and is completely partitioned of the market. For market opening and liberalisation are not representatives to usually win - they appear rather as particularly persistent possession-condition-true.
regimentation of the professional training
in Germany gives it at present approximately 350 nationally recognized teaching professions. The training lasts depending upon occupation 2 to 3.5 years. At the end usually a national examination - although the binary professional training system - particularly because of its practical purchases world-wide as exemplary applies, stands has this kind of the order-political market adjustment very unfavorable effects on the liberty of the occupation choice. While in the American acquisition company various activities are located as “jobs “for order, with which entrance and change are easily possible, are impaired the social mobility in Germany by the fact that to a very rigid pattern of formal-legal career profiles one holds. With the intention all teaching professions approximately to set were created national order samples, which reglementiert the most different activities - from the building cleaner to the electronics engineer - if possible into a regular, three-year training template inside. Career profiles by the way, which were conceived traditionally on a lifelong professional activity. Even for activities, which are easy to learn in few weeks and months, several Lehrjahre are prescribed. Vocational re-orientation is made more difficult thereby substantial. Even if in practice training is not compellingly prescribed, so that the work can be settled also by ambitionierten side A RISERs, the rigid arrangement of the professional training proved as an obstacle for the market entrance - both for the occupation entrance (job entry) and for occupation-transferred (job CHANGEs).
the historical development of the freedom of trade
up to introduction of the freedom of trade by the stone Hardenberg reforms 1810 in Prussia was reglementiert the largest part of the commercial economy by the trade guilds. The guilds controlled the wages, the prices, and above all the entrance to the market. Now free the competition become was felt however of many also as threat. To remain some feared on the distance. The general freedom of trade was straight the established craftsmen therefore from the outset a thorn in the eye. One organized oneself, in order to run against the expansion of the competition storm. Thus the resolution of the congress of craftsman trade read in Frankfurt of 15. July 1848: “We raise solemn protest against the freedom of trade. Not alone because of the endangered interests, our civil liberties and our rightfully-acquired property, but because of the threatened future, the depletion of the middle class, from Vaterlandsliebe. “
The protest of the craftsmen remained ungehört, despite substantial indignations. With the entry into force of the trade and industrial regulations of 21. June 1869 was expanded the freedom of trade on the countries north Germans of the federation; with the transition to the German empire 1871 it was expanded on the new realm area. Followed the restaurant boom of the period of promoterism, which by numerous social distortions one accompanied. Only at the beginning 20. Century succeeded it the again created chambers of trade to lasting influence in the policy validly at machem. 1908 were again introduced therefore the “small certificate of competency”. For the training of apprentices the master's certificate was again necessary. In the time of the national socialism 1935 with the “large certificate of competency” the master's certificate were finally made again the condition for the guidance of a crafts enterprise. The freedom of trade in the handicraft was actually repealed set thereby.
After the war in the American zone of occupation - now after US model - a nearly barrierless freedom of trade was inserted. The prescribed membership in the chambers and guilds (so-called. Institut of the fakultativen trade guild with compulsory membership) became now the freiwilligen affair. Starting from 10. January 1949 was sufficient to announce a postcard around a trade - which escaped master obligation. Again once begin an establishment boom. However in Munich in the first year of the freedom of trade as many trades had before altogether existed announced like.
This liberty was again limited however 1953 with Verabschiedung of the handicraft ordinance. For 94 occupations relating to crafts again country widely the master obligation was introduced. Thereby the Members of the Bundestag Richard Stücklen and Hans Dirscherl were responsible.
Since that time similar regulations were determined for free occupations: In coordination with chambers and federations gradual laws will issue, which limit the liberty of the trades. The policy of the “social free-market economy “separates - already in the time Ludwig Erhard - from the free competition and comes to meet adjustment desires motivated by special interests. So developed for example honorarium codes (for architect, engineers, tax counsel, attorneys etc.) - which the price competition prevent. Intensified permission barriers decrease thereby the number of the market participants, which guarantees again a high income for the certified ones. - This practice was demanded several times by the European Union commission. Above all the former competition commissioner Mario Monti saw competition-adverse but even criminally relevant price-fixing arrangments in the chambers and their regulations of charges not only. Comparably the monopoly commission of the German federal daily expressed itself over the handicraft ordinance. The restrictions of the handicraft ordinance are a substantial interference into the individual liberty rights, it block even experienced associate the way into the Selbstständigkeit. In the result thereby the job creation one prevent. The commission guesses/advises to abolish therefore the master obligation to a large extent. The recommendations of the commission following, the Federal Minister for Economic Affairs Wolfgang Clement started 2003 an offensive for the fundamental new organization of the handicraft ordinance. The mastership examination is to be only maintained for drive-bent trades. The raid of the Federal Government for the liberalisation of the handicraft failed however because of the resistance of the opposition in the Upper House of Parliament. After tough negotiations one finally agreed on a compromise: Particularly for rare and less in-pregnant trades green light was given - the master obligation was waived. The main market share of the hand work remained however to a large extent untouched. Independent trades like the occupation of a painter, a bicycle mechanic or a hairdresser etc. remains also further only for masters permitted.
also the Austrian trade and industrial regulations, the 1859 of emperor Franz Joseph I. one issued, be based on the principle of the freedom of trade. Since that time it was limited however several times.
- 1883 certificate of competency for crafts enterprises
- 1885 regulations for commercial industrial safety
- 1893 construction industry law
- 1895 Sunday peace law
- 1907 statement on the use for different trade
- 1934 introduction of the “bound trades” and obligating mastership examination in the handicraft
- 1937 introduction “interdiction law”. The freedom of trade was almost waived thereby.
- 1940 the German handicraft right are introduced.
- 1952 the interdiction law are waived, the certificate of competency for the bound trades is however intensified.
- 1994 renewal of the trade and industrial regulations
- 2002 novella of the trade and industrial regulations of 1994
For handicrafts, bound trades and partial trades a certificate of competency is necessary. Exception are „the free trades “. Besides there are „grant-requiring trades “(z. B. Trade with weapons) is necessary for one special behörliche permission. Equipment is mostly subject to approval. Who attained an industrial law becomes automatically member of the chamber of economics organization. The specialized groups and guilds have themselves opposite the historical guilds changed to set however their tradition away. They are today particularly responsibly for the basic conditions trade natures and the professional training.
the freedom of trade is called in Switzerland “Handels-oder freedom of trade”. Free occupation choice and practise of the profession as well as the right business decisions to a large extent independently from national regulations to to meet have thereby the fundamental value of a human right, which is conceived as „defense right “. As independently formulated fundamental right Handels-oder freedom of trade both is entitled to Swiss citizen and established foreigners. This is a Swiss characteristic and represents in connection with the freedom to establish residence and the warranty of the property a foundation free market of in principle constitutional structure of Switzerland.
The freedom of trade with the abolition of the obligation to join a guild was introduced to 19.10.1798. As it were over night the craftsmen of unrestricted competition saw themselves suspended, which many did not feel grown first. Thus it came also with the oath comrades to passionate arguments over it whether the old guild order should be introduced again. In some cantons this happened also. Government and population however always rejected the national demands for protection the organized craftsman shank. Contrary to Austria and Germany Switzerland remained therefore without obligation organizations and without restriction of the independent practise of the profession (no master obligation). 1954 a order-political project of the shoemakers, Coiffeure, upholsterers and Wagner were brought last by means of a mandatory ability document of identification the market admission to reglementieren by popular vote to case.
As small export-dependent country Switzerland is since more jeher to international competition adjusted and inside the establishment of interest-led restaurant barriers successfully prevented. After the rank list internationally for management development in Lausanne Switzerland ranks institutes for many years among the ten competition-strongest countries of the earth.
criticism at the freedom of trade
the liberal demand for freedom of trade is exposed to even various criticism. Background of the objections are often concrete doubts about existing market situations or also fundamental doubts in relation to the ideal-meant self regularization of a perfectly free market. Thus mostly from social Veranlassung in addition, from Sicherheits-und environmental protection reasons numerous interferences are justified into the economic liberties. Above all the problem of the unemployment and the depletion of the concerning, as well as low resulting from it wages for few qualified persons employed are usually charged to the relentless competition, which is to be corrected with an appropriate social order.
Political interferences into the market happening are often registered however of the market participants as competitive disadvantage and lasting cost load. Scarcely calculated expectations of profit can thereby consume to become. The abundance of the regulations and the height of the social security contributions impair therefore the profitability of many enterprises. The protection against dismissal causes besides - despite various loosening efforts - an additional deterrence effect with new employment, since the enterprises are stopped to special caution opposite applicants.
Legal overcompensation can produce thus overall economic exhaustion and Verdrossenheit, which let the existing unemployment solidify to a structural unemployment. Artificial Konjunktur-und of occupation programs can help in this case hardly more. Then obvious politics policy faces the alleged recovery of the market failure .
Also an impartial balance of sozial-und politico-economic decisions cannot be ensured straight in a party democracy. Finally the political guidance can their trailer shank consciously prefer and to them competition advantages in the Marktgefüge assure. Competition-hostile and socialharmful monopoly formation, trusts and price-fixing arrangments cannot only be prevented thus by the legislator, but just as also guarded and even developed. Like that the distrust is just as justified in relation to the social points of view of the political parties as the distrust opposite the representatives of the commercial economy.
the reason in principle occupation and of the freedom of trade
“the property, which possesses each humans at its work, is holy and inviolable in each measure, because it justifies property in the origin everything else. The inheritance of a poor man lies in Kraft and in the fate of his hands, and to prevent to use both in such a way as it it, without damaging thereby its neighbour, is obvious an open injury of this holiest property, an encroachment into the well-founded liberty of the worker and all different, considers it correct who may be ready employ it. As the one one prevents to work on something which it considers correct, then the others are prevented to employ someone which fits them. The judgement over it, whether it is suitable for the work, can remain calmly for the decision of the entrepreneurs left, whose interest is so strongly affected of it. The heuchlerische concern of the legislator, this could a at least unsuitable one employ, is obviously just as unfounded, as it is oppressive. (out: Adam Smith - the prosperity of the nations S.106)
trade and occupation liberty are legally embodied in the Federal Republic and in Europe. The concrete liberty occupation and of the pursuit of trade, is limited however by an abundance of restrictions. Each national interference into the liberty of the trade and practise of the profession obstructs certainly the informal and dynamic development of the market potentials. This is not economically relevant only - it means above all losses at liberty rights and private growth prospects for the citizens. Because: The more occupations and trades of a legal organization by training regulations and licenses to be subjected, the the free, individual entrance to acquisition possibilities (job entry) is made more difficult to more. In this way structural unemployment, (exact unemployment) is produced. The chambers and according to professional status combinations are causally jointly responsible for it. In front-creeping, legal accumulation of regularizations, reservations, training regulations, examinations, licenses and concessions are to be always rated from classical liberals view as market admission barriers. The freedom of trade thereby always further reduced to last the list of the really free, i.e. permission-free trades, on which little attractive manipulation remains limited. Market adjustments and Konkurrenzbeschränkungen of this kind solidify the market position of the established enterprises (establishment) - newcomers and outstanding ones (more newcomer) are continued to push toward it however ever in the offside. Above all thereby an abundance of life perspectives remains withholding from occupation A RISERs and job seekers. Thus it comes that even intelligent young people, with computer knowledge - even with university conclusions on a strict-disciplinarily regulated job market only reduced entrance possibilities find established positions during for moderate employees and simple craftsmen as possession conditions remain reserved. The principles of efficiency and liberty of a “open society “(Popper) are turned thereby in the opposite - in favor of legal - more protected against free competition - reservations one to content “middle class socialism” (Hayek).
- Egon Tuchtfeld: Freedom of trade as politico-economic problem, Duncker & Humblot 1955
- Friedrich August von Hayek: The way to farmhand shank, Olzog, Munich 2003
- Milton Friedman: Capitalism and liberty, Piper, Munich 2004
- Karl Raimund Popper: The open society and its enemies, UTB, Stuttgart 1992
- Margarita Mathiopoulos: The closed society and its friends, Hoffmann & Campe, Hamburg 2001
- refuge Claus straining forest (Hrsg.): Adam Smith - the prosperity of the nations, C. H Beck' publishing house action, Munich 1974
Web on the left of
- industrial legislation2 (freedom of trade and - unfreeness) (excerpt out: Meyers encyclopedia 4. Edition of 1888 (full text))
- Professional association more independently craftsman inside and craftsmen: www.buhev.de
- side over the theses of the classical liberalism: www.mehr-freiheit.de
- action freedom of trade: www.gewerbefreiheit.de
- statements Industrie-und Chamber of Commerce daily to the freedom of trade: www.dihk.de/