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Precaution for existence is an administrative term, which plays an important role also in the political and sociological discussion. It describes the national task for the supply of the goods and achievements necessary for a meaningful human existence. In addition the supply of public mechanisms for the public, thus traffic and transport nature, gas, water, and counts electricity supply, garbage disposal, sewage disposal, education and cultural facilities, hospitals, cemeteries etc. thereby acts it around manipulation, which today of [[local Unternehmen|kommunalwirtschaftlichen enterprises]] to notice itself to a large extent as part of the achievement administration.

Origin of the term

The term was brought by Ernst Forsthoff following Karl Jaspers into the administrative discussion. In its 1938 writing "the administration as service providers", appeared in king mountain, it referred to the development for achievement administration and wanted to introduce a break with the administrative understanding prevailing since Otto Mayer with the concept formation, which understood (sovereign) the interference administration by the administration relevant for the administrative Dogmatik still primarily. Forest-hope defined the term precaution for existence as "those meetings, which were met for the satisfaction of the appropriation need". Forest-hope to the term still another economicsteering and the individual liberty negative conception at the basis put. At that time (1938) there was no fundamental right protection, which would have guaranteed the individual liberty development under the LV rule in Germany. So that accompanying the existence responsibility could be not with the particular, but only with the carriers of the political force (state and a party). The precaution for existence should be met by the political force in the context of its existence responsibility.

Precaution for existence under the Basic Law

Of forest-hope given contentwise determination of the term precaution for existence under the validity of the Basic Law to analyze was critical. The term was given up however by no means, but became under the validity of the Basic Law in the context of the social free-market economy common property/knowledge. It points on the task of the state for existence organization. Generally the state of the social free-market economy is understood thereby also as "guarantee state". Precaution for existence is understood thereby partly than a constitutionally protected aspect of the welfare state principle. This view is however disputed. On the other hand in the constitutional discussion besides it is emphasized that the economic manipulation of the municipalities, and concomitantly the activity are protected in the context of the precaution for existence, by the condition warranty of the local autonomy from kind 28 exp. 2 Basic Law. However the exact range of the constitutional protection is also here disputed. In particular there is no final state function teachings however under the Basic Law, so that the precaution for existence not when constitutional state function can be designated.

Precaution for existence as right term

Legally inexplicably and violently disputed also the legal relevance of the term is precaution for existence. In the administrative law science there is hardly a term, which released a larger fascination, but on the other hand also more annoyance excited than the term of the precaution for existence. In the administrative discussion it is on the one hand frequently used and consulted as argumentation support. On the other hand it is pointed out that it is more a sociological term with with priority "problem-explanatory, less problem solving that function". Even forest-hope had 1959 to demand that the term became a "all world term", "with which one everything and therefore nothing prove can." In the "state of the industrial company" vacated forest-hope, it concern a term of the political sciences "like it in 18. Jahrhndert were understood" (P. 77).

Anyhow one cannot maintain today however no more that the term is not a right term in the law-technical sense, because for some time uses some Gemeindeordnungen of the countries the term precaution for existence: In Baden-Wuerttemberg ("§ 102 exp. 1 No. 3 GemO), Bavaria (kind 87 exp. 1 No. 4 BayGO) and Thuringia ("§ 71 Abs.1 No. 4 KO) the local-economical applies only "outside of the local precaution for existence ". This is regarded however because of the legal of the term precaution for existence as problematic regulation.

Precaution for existence and local economy today

In the context of the present privatisation debate the term is understood increasingly polarizing. Who regards rather budgetistic thinking the state primarily as "guarantee state", is inclined to grant to the term a special and important role. Liberals, and/or neoliberale politicians hold the end of the precaution for existence right. Anyhow it is to be observed since the progressive privatisation that many formerly manipulation of the precaution for existence noticed by state and/or municipality monopolies today with private offerers to compete to have and/or that the traditional achievements of the precaution for existence are noticed today also by private ones. Also in the course of progressive Europeanizing of the commercial law even the municipalities and representative of the local economy see the task of the local economy shrinking.

Precaution for existence in Europe

The German term precaution for existence corresponds roughly what is regarded in France as "service public" (see in addition the French Wikipedia). Also in France schillernde meaning variety is attached to the term. It can be translated therefore only inaccurately with precaution for existence. In addition come national characteristics, which give their own in each case to the terms. Usually one understands the goods and services made available by large state monopolies in France by "services publics". The term is defined approximately as "function, so far it the activity of the state into the service of the public places."

In the contract for the establishment of the European community following the French term of the "services publics" in kind 86 exp. 2 of "services of general economic interest" one speaks. This defined as "market-referred activities, those in the interest of the public to be furnished and therefore of the member states with special public interest obligations be connected." Also under it the ranges of the precaution for existence are understood to a large extent. However the terms are not contentwise identical.

Literature

  • Ernst Forsthoff: The administration as a service provider, Stuttgart 1938
  • Ernst Forsthoff: The precaution for existence and the municipalities, Stuttgart 1958
  • Fritz Precaution for existence and administrative private law, in: The public administration class 1971, P. 513 FF. (Number 15/16)
  • Johannes Heller man: Local precaution for existence and gemeindliche autonomy, 2000, zugl. Having IL Bielefeld 1998
  • Ulrich The local economic activity - participation in the economic competition or precaution for existence, 2000
  • Johann Christian Pielow essential structures of public supply, 2001, zugl. Having IL Bochum 1998
  • Frankfurt general newspaper from 24 July 2004 No. 170, page 10: Municipalities see task of the precaution for existence shrinking
  • Jens Libbe, Stephan Tomerius and January Hendrik Trapp (Hrsg.): Liberalisation and privatisation of local task fulfilment - social ones and environmentalpolitical perspectives in the indication of the competition of Difu contributions to the urban research, Bd. 37, Berlin 2002
  • Christian Linder precaution for existence in the constitutional system of the European union, Frankfurt A.M. 2004
  • Jens Kersten: The development of the concept of the precaution for existence in the scientific work of Ernst Forsthoff, in: The State of 44 (2005), number 4

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