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Anti-discrimination as a Program of Private Law ?

Published online by Cambridge University Press:  06 March 2019

Eduard Picker

Extract

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The controversy over the planned anti-discrimination laws in Germany, specifically the new provisions in private law to be discussed here, rages on unabated. Publications on this planned law are numerous. And, whether Pro or Contra, they turn out notably more engaged and heated than is suited to the lawyers’ traditional temperament. The fact that the formal discussions and rounds of debate, which were long ago extended to non-lawyers, continue to multiply shows symptomatically to just what extent the topic is now able to get experts and laypeople alike worked up. The principle of equality of human beings, for centuries “one of the pillars of European democracies”, is about to gain currency in new fields of significance: it now aims beyond the binding of states, to bind their citizens as well.

Type
Private Law
Information
German Law Journal , Volume 4 , Issue 8 , 01 August 2003 , pp. 771 - 784
Copyright
Copyright © 2003 by German Law Journal GbR 

References

* The original German version of this article first appeared in German in 57 Juristenzeitung 540-545 (2003) and was translated by Morag Goodwin and Betsy Röben, Editors for Legal Culture and International Law of German Law Journal. A shorter version was published in German in the Frankfurter Allgemeine Zeitung on 7 July 2003. Professor Picker's article is a welcome contribution to the continued coverage by German Law Journal of the intensive debate concerning the planned and, meanwhile failed, law against discrimination in the private sphere, launched by the Federal Government in 2001 (see note 1, infra). See already the contributions by Nicola Vennemann, Karl-Heinz Ladeur and Viktor Winkler in 2 German Law Journal Nos. [3, 5 and 6], and by Andreas Engert, in 4 German Law Journal No. 7 (1 July 2003), available at http://www.germanlawjournal.com, and by Susanne Baer, Matthias Mahlmann and Rainer Nickel in 1 Annual of German & European Law (Russell Miller/Peer Zumbansen eds. 2003, forthcoming), Berghahn Books: Oxford & New York.Google Scholar

1 See Bundesministerium der Justiz, Diskussionsentwurf eines Gesetzes zur Verhinderung von Diskriminierungen im Zivilrecht, [Federal Ministry of Justice, Discussion Draft of a Law for the Prevention of Discrimination in Private Law],10 December 2001, p. 2 ff.Google Scholar

2 See e.g. Adomeit NJW 2002, 1622 f.; Baer ZRP 2002, 290 ff.; Braun JuS 2002, 424 ff.; Fahr JuS 2002, 727; Globig ZRP 2002, 529 f.: Montag ZRP 2003, 18 ff.; Neuner JZ 2003, 57 ff.; Picker JZ 2002, 880 ff. =Anwaltblatt 2003, 198 ff.; Rainer JuS 2002, 726 f.; Säcker ZRP 2002, 286 ff.; Stünker ZRP 2003, 17 f.; Urlesberger ZAS 2001, 72 ff.; Wiedemann/Thüsing DB 2002, 463 ff.Google Scholar

3 See, as pars pro toto, the preceding footnote.Google Scholar

4 Urlesberger ZAS 2001, 72 points correctly to this.Google Scholar

5 The first catch, which understandably is barely ever communicated in writing, appears not infrequently at the mentioned formal discussions. As evidence at least for the general direction of the latter position, one can point to the piece by Baer ZRP 2002, 290. There, not only is personal liberty in the original sense of freedom to “Will-Kür”- that is, to act arbitrarily or by will - almost never considered as its own value and object of legal protection (see on this point Globig ZRP 2002, 530). Also especially tangibly evident is the specifically persuasive association with the basic dilemma of every antidiscrimination, which by necessity always discriminates differently (the rather unlikely situation for German circumstances, described by Urlesberger ZAS 2001, 75, is clear). The certainty, free from gnawing doubt, is clear that the deciding party knows which part of the population to benefit and which to disadvantage (see e.g. Baer ZRP 2002, 293)Google Scholar

6 This concern is the consistent tone of the works named in Fn. 2 above, specifically those of Adomeit, Braun, Globig, Picker, Säcker and Urlesberger.Google Scholar

7 Cited according to the Frankfurter Allgemeine Zeitung (FAZ) of 8 March 2003 [“Die Privatautonomie in weiten Bereichen aushebeln”], p. 12; also see Fn. 15 below.Google Scholar

8 Stünker ZRP 2003, 18.Google Scholar

9 Thus, the programmatic position statements of Stünker ZRP 2003, 18, and Montag ZRP 2003, 19, both members of the German Bundestag, know nothing of the curtailment of the original plans. And, at a conference of the Federal Bar Association (Bundesrechtsanwaltskammer) on 20 March 2003 in Berlin, Member of Parliament Schewe-Gerigk announced for the Green Party a decided opposition to such intentions.Google Scholar

10 Fastricht, RdA 2000, 81, states aptly ”obligations of equal treatment, as interventions in the market, have in common with other market interventions the problem that the desired effects often do not correspond to the intentions“. See also Globig ZRP 2002, 530.Google Scholar

11 Adomeit NJW 2002, 1623, says rightly that it is a “comfort” for the injustice of many individual decisions, that “on the average the hundreds of thousands of contracts made daily balance everything out”.Google Scholar

12 Also see on this point above all the works cited in Fn. 6 above. Baer ZRP 2002, 292, Fn. 23 identifies to this extent encouraging impartiality that the “fascist legal theory” rejected freedom of contract and instead decreed obligations.Google Scholar

13 Official Journal EC, Nr. L 180 of 19 July 2000, also printed as insert to NJW Vol. 37, 2001; to be implemented by 19 July 2003.Google Scholar

14 Because there was no agreement between the Member States, but also notably because it did not recognize any necessity, the Directive refrained from adopting the immediately approved material named in the text, which is also seen as being in need of regulation for labor law, see Schwarze/Holoubek, EU-Kommentar, 2000, Art. 13 Annotation 6; Säcker ZRP 2002, 287, Fn. 11; see in comparison the Discussion Draft by the Federal Ministry of Justice [BMJ] (supra Fn. 1), p. 22 ff.Google Scholar

15 See on this point the news reports e.g. in Der Spiegel, Nr. 12, 2002, p. 18.Google Scholar

16 Official Journal EG, Nr. L 303 of 2 December 2000, also printed in NJW Vol. 37, 2001, to be implemented by 2 December 2003.Google Scholar

17 See Discussion Draft of the Federal Ministry of Justice [BMJ] (supra Fn. 1), p. 1 [”den Zugang und die Versorgung mit Gütern und Dienstleistungen, die der Öffentlichkeit zur Verfügung stehen, einschließlich von Wohnraum“].Google Scholar

18 See the Discussion Draft of the Federal Ministry of Justice [BMJ] (supra Fn. 1), p. 12 f., 59 ff. The extension also to non-entrepreneurs was “considered” (p. 60). The limitation to “practices …, which should broadly and generally be suppressed”, should not change any of the concerns set out in the text.Google Scholar

19 See the Discussion Draft of the Federal Ministry of Justice [BMJ] (supra Fn. 1), p. 13, 59 f.Google Scholar

20 See the Discussion Draft of the Federal Ministry of Justice [BMJ] (supra Fn. 1), p. 13, 61 f.Google Scholar

21 Notable further examples in Neuner JZ 2003, 62 f.; Säcker ZRP 2002, 288 f.; Urlesberger ZAS 2001, 75; rather less voluntarily in Baer ZRP 2002, 293.Google Scholar

22 According to state secretary Hartenbach of the Federal Ministry of Justice at the conference referenced in Fn. 9 above.Google Scholar

23 Quoted from the FAZ, at footnote 7; the first quote is indirect and the second is directly reproduced.Google Scholar

24 See already Picker, JZ 2002, 880.Google Scholar

25 See hereto only Flume, Allgemeiner Teil des Bürgerlichen Rechts, Vol. 2, Das Rechtsgeschäft, 4th Ed. 1992, p. 6; Picker, JZ 2002, 880; Säcker, ZRP 2002, 286 f.Google Scholar

26 This is correctly underlined by Säcker, ZRP 2002, 288. In contrast hereto, Baer, ZRP 2002, 294, fails to see this point because she does not draw a distinction between political-state and personal-private (autonomous) action.Google Scholar

28 This example is taken from Neuner, JZ 2003, 65.Google Scholar

29 See recently, e.g., Neuner, Privatrecht und Sozialstaat, 1998; see also Neuner's arguments in JZ 2003, 59 ff.; Busche, Privatautonomie und Kontrahierungszwang, 1999, each with comprehensive references.Google Scholar

30 See, e.g., Gitter, NJW 1982, 1568 ff.; Coester-Waltjen, ZRP 1982, 217.Google Scholar

31 See Motive, Vol. I, 1896, 211 f.Google Scholar

32 See the adequate description by Dernburg, Die allgemeinen Lehren des bürgerlichen Rechts des Deutschen Reiches und Preußens, Vol. I, 3rd Ed. 1906, § 125 II, p. 421; see the critique raised e.g. by Planck/Flad, BGB, Vol. I., 4th Ed. 1913, § 138 Annotation I 1 a, which only addresses the limitation to this definition.Google Scholar