Obituary for Director emeritus Ernst-Joachim Mestmäcker

(* 25.9.1926  † 22.4.2024)

July 01, 2024

1. Ernst-Joachim Mestmäcker was one of academia’s most unique voices in the field of private law in the latter half of the 20th century. With his interdisciplinary perspective, he played a key role in the development of Germany and Europe’s post-war economic order, one focused on subjective liberty rights. Many will associate his name primarily with European competition law – an area of law that he indeed helped to create and deeply influenced. But his work went far beyond competition law. At the core of his thinking was a theory of civil society that drew its inspiration from the fundamental texts of the European Enlightenment and that brought them to bear on the further development of private and economic law. Mestmäcker’s ability to translate economic, philosophical, and legal theory into legal classifications remains unrivalled.

Born on 25 September 1926 in Hameln, Mestmäcker belonged to the generation of academics who had experienced the Second World War first-hand. After being issued an accelerated school diploma, he spent the last year of the war as a soldier on the Eastern Front. Injured, he escaped Russian captivity with mettle and luck. He never publicly addressed his wartime experiences. Nevertheless, his thinking and work unfolded against this background. His life’s work, which was consistently based on individual liberties, stood as the antithesis to the National Socialist project, which sought to abolish private law in its entirety and to assign individuals rights and duties based exclusively on membership in a national community. Mestmäcker’s lifelong commitment to a legally constituted Europe embraced the idea of decentralized coordination which should unfold at a supranational level and which should be based on subjective rights. For him, a Europe guided by individual freedom was also guarantor of an ever closer and peaceful Europe.

In order to study law, Mestmäcker moved to Frankfurt am Main in 1946. It was there that he first met Walter Hallstein, Heinrich Kronstein, and, even more importantly, Franz Böhm. Although only a young university student, he attended Böhm’s economic law seminars on topics focused on the intersection of economics and law. Here, renowned representatives of both disciplines discussed the future direction of the German economic order and economic policy. Beginning in those early days, Mestmäcker internalized, first, that an incorporation of economic considerations into the legal problem-solving process was fundamentally essential for legal order and, second, that a parallel autonomy of the law was equally indispensable.

Through his attendance of the economic law seminars, Mestmäcker also absorbed the fundamental academic convictions advanced by Böhm: that state and private power are equally in need of legal discipline; that a functioning competition law regime is the most effective instrument for combating private power; that private law as a whole should be thought of as a decentralized system of coordination which develops on the basis of the exercise of civil liberties. ‘Private law society’ is thus positioned between the state and the individual as its own level of regulation. For the early orientation he had received, Mestmäcker remained grateful to his academic teacher throughout his life. Böhm was a constant presence in Mestmäcker’s stories, mentioned not least in the many student symposia he led. He never saw his involvement in this tradition as a restriction; rather, he developed it further in a wholly independent manner and not infrequently went beyond the conventional teachings of ordoliberalism. Notably, he never claimed the term for himself, and in academia there is sometimes talk of a “second generation” of ordoliberalism.

In 1953, Mestmäcker was awarded his doctorate after authoring a dissertation examining association statistics as a means of promoting and restricting competition in the USA and Germany (“Verbandsstatistiken als Mittel zur Förderung und Beschränkung des Wettbewerbs in den USA und Deutschland”); it was a topic inspired by an internship at the decartelization department of the US High Commission for Occupied Germany. This was followed in 1958 with a post-doctoral (Habilitation) project considering group and company law structures and shareholder rights (“Verwaltung, Konzerngewalt und Rechte der Aktionäre”). Both dissertations were written in Frankfurt am Main and were comparative in nature; further, they both had entailed lengthy research stays in the United States. The regular inclusion of US legal practice and experiences in dealing with common conflicts of interest remained a defining feature of Mestmäcker’s research. He cultivated transatlantic exchange throughout his life – whether in the context of visiting professorships at the University of Michigan, Ann Arbor (1965, 1976, 2000), where he cooperated closely with his friend Eric Stein, or later through his involvement in the “Mentor Group”, which was committed to nurturing transatlantic exchange in respect of practical political and economic issues.

If Mestmäcker had possessed a second academic life, he would probably have liked to continue his work in group and company law. However, his habilitation was followed by his first university appointment in Saarbrücken (in 1959) as well as a ten-year post as special adviser to the European Economic Community (EEC) Commission for Competition Policy and Legal Harmonization in Brussels (from 1960).


2. Mestmäcker’s vocation européenne can be traced back to a meeting with Hans von der Groeben, one of the authors of the “Spaak Report” on the preparation of a common European market and at the time the second German member of the EEC Commission alongside Hallstein. The two met in Bonn during a discussion on amendment of the Act against Restraints of Competition at the Federal Ministry for Economic Affairs. Von der Groeben was so impressed by the young scholar that he asked him to come to Brussels as a special adviser to the EEC Commission in his area of responsibility, namely competition and the internal market. Accordingly, from 1960 to 1970, Mestmäcker spent half of his time at his university posts – initially in Saarbrücken, from 1963 in Münster, and from 1969 in Bielefeld – and the other half in Brussels. Together with Director General Pieter VerLoren van Themaat and the members of the von der Groeben cabinet, Mestmäcker gradually developed the basic principles of European competition law along with its mechanism of public enforcement. Regardless of their quite different perspectives, all participants were united by the conviction that the rules on competition should not be understood as mere non-binding guidelines but as binding legal rules. Among the topics that particularly occupied Mestmäcker during this time were the drafting of procedural rules for the enforcement of European competition law by the EEC Commission, the framing of the relationship between European and national competition law, interpretation of the prohibition against abuse of a dominant market position (the Continental Can case remains famous today), the relationship between industrial and competition policy, and the application of competition law to state conduct (Art. 37/Art. 106 TFEU). All of these topics were ones later addressed by Mestmäcker academically.

Mestmäcker’s attitude towards the EEC differed from that of his teacher Franz Böhm. While the latter was initially sceptical about the EEC because he feared its alignment with French ideas of industrial policy, Mestmäcker recognized early on the liberty-promoting potential of European law. The nucleus of an economic constitution emerged from the state-focused fundamental freedoms and the company-focused rules on competition, a nucleus which obliged the European Communities to protect open markets and undistorted competition and at the same time set limits on their own jurisdiction for intervention. The open nature of the economic constitution set out in the Basic Law, a notion repeatedly emphasized by the German Constitutional Court, stood opposite the EEC Treaty and a framework decidedly oriented towards decentralized coordination. One of Mestmäcker’s lasting accomplishments is to have spelt out the European economic constitution in terms of its basic principles and to have developed it as a reference point for the ongoing development of Union law from the 1990s forward. Despite his opposition to the politicization of the European constitution, to an instrumentalized view of competition under the slogan of a “more economic approach”, and to the resurgence of industrial policy, Mestmäcker remained a convinced, albeit feisty, European throughout his life.

 

3. With his work as a special advisor to the EEC Commission, Mestmäcker took on the role of policy advisory at an early stage. However, this never called into question his self-understanding as a scholar. After the end of Hans von der Groeben’s term of office as Commissioner, Mestmäcker also stepped down and once again devoted himself with renewed energy to his academic work. One of the early fruits of this creative period was the first edition of his reference work “Europäischen Wettbewerbsrecht“ [European Competition Law]; published in 1974, the volume represented the quintessence of the experience gained in the previous decade and projected his influence on the legal field at an academic level. Other aspects of European competition law – such as the application of competition rules to the conduct of public entities and states – were addressed in monographic depth in a commentary on Art. 37/Art. 106 TFEU in “Immenga/Mestmäcker”, a co-founded publication known as the “flagship” of antitrust law commentaries.

An attempt to briefly summarize his multifaceted work on antitrust law would, from the outset, be destined to fail. However, it should be noted that Mestmäcker dealt in depth not only with European antitrust law, but also with German antitrust law. One example of this is his 1984 monograph “Der verwaltete Wettbewerb”, in which he explores the relationship between antitrust law and unfair competition law. Translating roughly as “managed competition”, the title of the work has become a much-quoted catchphrase.

Although the majority of Mestmäcker’s writings focus on antitrust and European law in the broader sense, designating him as an antitrust lawyer does not do justice to his work. Beginning in the 1980s at the latest, his writings are characterized by an “undercurrent” of legal philosophy and legal theory, which have given his work since that time a very unique and foundational character. The Münster period marked the beginning of his increased attention on the philosophy of law. Immanuel Kant and Georg Wilhelm Friedrich Hegel, as opposing poles of reference, were the bookends framing Mestmäcker’s inquiry. From here, he gradually explored the literature of the European Enlightenment. His continuing rejection of utilitarianism came from reading the work of Jeremy Bentham, whose intellectual acuity he nevertheless admired. Alongside Adam Smith, David Hume was one of the philosophers whose work had a particular influence on him. He also intensively examined the works of Benjamin Constant and Isaiah Berlin. Mestmäcker’s approach was characterized by the courage to pursue “historical discontinuity”: he studied the works of the great Enlightenment philosophers in their original presentation, without retracing their entire history of reception. The aim of his legal-philosophical studies was not to become engaged in the ongoing debates on legal philosophy and legal theory. Rather, on the basis of his detailed understanding of economic law and economic policy issues, as well as the variety of conflicts of interest that characterize legal life, he used literature on legal philosophy for the purpose of identifying the resilient structural principles on which a bourgeois society rests. These structural principles were never conceived in terms of natural law. Rather, they are rooted in insights on human behaviour, on the inherent order and autonomy of the economy, and on the limits of the state’s steering ability.

In his later work, Mestmäcker proceeded similarly with the writings of John Rawls and Amartya Sen. He can therefore quite justifiably be described as a legal philosopher. What made his engagement with the philosophy of law so particularly fruitful, however, was his unique approach and his ability to pursue the philosophy of law not in isolation, but always in terms of its direct interplay with concrete questions of economic law. Time and again, Mestmäcker has been aptly described as a “Grenzgänger”, a scholar routinely shuttling across the borders between disciplines. Alongside law, economics, philosophy, and legal theory shaped his thinking. His primary objective remained the question of how a legal order should be structured so as to take into account the conflict-prone nature of human beings and inherent economic laws while nevertheless maintaining a central focus on the decentralized and self-interested exercise of civil liberties.

After his retirement as active Director of the Max Planck Institute, Mestmäcker focused on two tasks: a new edition of “Europäischen Wettbewerbsrecht” and work on the path to a theory of private law. Aspects of these studies included an examination of utilitarianism, which for its part guides the “more economic approach”, a reorientation of European competition policy beginning in the mid-1980s that aims at maximizing consumer welfare. Various journal articles and the monograph “A Legal Theory without Law” are dedicated to this debate. In the end, a monographic formulation of his own theory of private law – the logical next step – did not materialize. It would necessarily have been a counter-proposal to a zeitgeist that embraces “private law as regulatory law” and that sees private law politicized and put to use for changing political purposes.

An acknowledgement of Mestmäcker’s academic work would be incomplete without a word about his style. German lawyers are often described as employing a technocratic style, an accusation that cannot be directed at Mestmäcker’s work. At times his writing seems almost literary. Whereas legal texts can only rarely claim to manifest “beauty”, Mestmäcker repeatedly succeeded in producing such work.


4. With his multi-facetted agenda, Mestmäcker left his mark on generations of young academics. The most striking attribute of his nature as an academic teacher may be that the academic freedom he preached also characterized the way he treated his doctoral and post-doctoral students. Liberty and a deep aversion to the abuse of private power were never just academic buzzwords for him. They also shaped his personal approach, and, accordingly, his academic students followed very different paths. Ulrich Immenga, Wernhard Möschel, Peter Behrens, Reinhard Ellger, Volker Emmerich, Winfried Veelken, and Heike Schweitzer worked in the area of competition law – on the national and European level. Dieter Reuter pursued private law theory and went on to establish his own school of labour law. Michael Becker and Rainer Kulms took on corporate and business law topics, as later did Brigitte Haar, who initially conducted research in the field of telecommunications. The life work of Christoph Engel focused on the connection between law and economics. Still, regardless of their varied substantive areas of emphasis, one can speak of a ‘Mestmäcker school’ that was shaped by the basic principles he developed.

A substantial number of his doctoral students carried Mestmäcker’s insights and convictions into business and professional practice. Mestmäcker students have been involved in the interpretation and further development of competition law at appellate and supreme courts; they work as lawyers in antitrust, economic, and telecommunications law, and they participate in the legislative process inside state and federal ministries. Mestmäcker’s treatment of all of these individuals was marked by great sociability, decency, ease and a sense of fairness. At celebrations, he was a charming host and an accomplished storyteller; countless anecdotes recalling, for instance, his time with Franz Böhm are no doubt lodged in the memories of his many listeners. And in addition to the gregarious and approachable teacher, his disciples also came to know the pugnacious academic figure that Mestmäcker remained at their regular meetings. At an advanced age as well, he minced no words in defending his convictions.


5. Like few others, Mestmäcker brought the results of his foundational research into the arena of legal and economic policy. His many years as a special advisor to the European Commission in Brussels have already been mentioned. In Germany, he similarly provided policy advice in a wide variety of roles. Thus from 1960 to 2006 he sat on the Scientific Advisory Council of the Federal Ministry of Economics. From 1964 to 1970, he was a member of the commission set up by the Bundestag to investigate the equality of competition amongst the press, radio/television, and film. From 1968 to 1970, he was a member of the Biedenkopf Commission charged with evaluating experiences in corporate codetermination. This was followed by a highly influential period as the founding chairman of the Monopolies Commission from 1973 to 1978. Later, he was appointed to the Commission on Concentration in the Media, eventually serving as its chairman from 2000 to 2002. Mestmäcker also involved himself in university politics from an early stage and even took on the challenge of designing a new university: from 1967 to 1969 he was chairman of the founding committee and the founding dean of Bielefeld University.


6. When in 1979 Mestmäcker accepted the call to the Max Planck Institute for Comparative and International Private Law, he was – then in his early fifties – already one of the giants in his field. In Hamburg, the traditional comparative study of private law was subject to fully new approaches and embarked on new inquiries. Most noteworthy was a visionary research programme addressing the economic dimensions of cross-border telecommunications, a long-term project which resulted in four symposia and 25 monographs on the law of telecommunications. The project was particularly timely as a few years later a major liberalization of infrastructure sectors commenced at the European level, above all in the field of telecommunications. Mestmäcker’s Hamburg project laid the foundations for this fundamental reorganization. During his period of time as Institute Director, he also stood out as an author of pioneering publications on corporate law, media law, and copyright law. Further, he intensified his study of Kant and other great thinkers in joint seminars conducted with the Hamburg legal philosopher Michael Köhler.

Mestmäcker also played an important and active role in the internal governance of the Max Planck Society. He was a member of the Senate, uninterrupted, from 1981 to 1993. When the charter no longer allowed for his re-election, the General Assembly elected him as Honorary Senator. Mestmäcker’s six-year term of office as Vice-president of the Max Planck Society from 1984 to 1990 was even more labour-intensive. In both capacities he defended the autonomy of the Society with determination and aptitude in the face of invasive demands made by politicians.


7. The enormous esteem and veneration garnered by Mestmäcker’s lifework is evidenced by the rarefied honours he received in academia and society. He was awarded the Ludwig Erhard Prize for Economic Policy in 1980, the Ernst Hellmut Vits Prize in 1984, the Hans Martin Schleyer Prize in 1997, and the Friedrich August von Hayek Medal in 2009. To these one can add the honorary doctorates bestowed by the University of Cologne in 1980 and the University of Bielefeld in 2009. The Federal Republic of Germany honoured Mestmäcker with its Cross of Merit in 1981 as well as with its Grand Cross of Merit with Star in 1997. In 1994, he was elected to the Order Pour le mérite for Sciences and the Arts.


8. Mestmäcker passed away on 22 April 2024 at the age of 97. As a great liberal thinker and an immensely productive researcher, his scholarly heritage is vast. Large swaths of this legacy stand in tension with today’s prevailing trends in private law – politicization, industrial policy, private law as regulatory law. An engagement with Mestmäcker’s work is thus all the more fruitful in the present era as it represents a fascinating and weighty counter-proposal. Readers who delve into his articles are immersed in the major themes and conflicts that shaped the development of German and European competition and economic law after the Second World War – conflicts that recur with great regularity even if never in quite the same form. Moreover, the complexity and highly ordered nature and complexity of his thinking is striking. Mestmäcker appreciated that the development of civil society is not a linear process, but a battle that must always be waged anew. The foundation he laid leaves us confident that civil society is alive and well.


Heike Schweitzer, Berlin
Holger Fleischer, Hamburg

 

Translation: Michael Friedman

 



Heike Schweitzer died on 11 June 2024 at the age of 56, shortly after writing this obituary and only seven weeks after the death of her academic mentor, Ernst-Joachim Mestmäcker. While a doctoral candidate, Schweitzer was a research fellow at the Institute, and her PhD thesis was awarded the Otto Hahn Medal by the Max Planck Society. Professorships at the European Law Institute in Florence (2006–2010), the University of Mannheim (2010–2014), and the Freie Universität Berlin (2014–2018) ultimately led her to the Humboldt-Universität zu Berlin (from 2018). Her premature death comes as a shock to the Institute community. We will honour her memory.

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