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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
2 The Appearance of the Social Market Economy in Certain Constitutions
Besides the effort to resolve the democratic deficit and the result of the development, the constitution
making process in the Central-East European countries may also have affected the incorporation of market
economy into the TCE. The new East-European constitutions thematise market economy together with
their own constitutional conditions, in which the development of wording moving from the West to the
East and then back makes itself manifest. 48 It is not reasonable to describe in details the contents of the
constitutions relevant to our theme in this study, suffice it to form four groups containing the main
statements regarding the economic system. 49
a) The first group is formed by the constitutions with the principle of market economy in them. The
Hungarian and the Polish constitutions are like this. The latter, in its Article 21, lays down the principle of
social market economy, which is based on the freedom of economic activities, private ownership,
solidarity and the dialogue between the social partners, and is the basis of the economic system of the
Republic of Poland. 50 Social market economy determines a new level of constitutional development for
Poland. Article 20 introduced new concepts – ‘dialogue’ and ‘solidarity’ – besides it laid down the
conditions of market economy thus the later social protective rights (e.g. the fundamental right to work in
Article 24) are as consistent as the guarantee of the economic freedoms, which can be restricted only ‘in
the essential interest of the public’. 51 The constitution of the Republic of Moldavia (1994) also belongs to
this group. It also attempts to comprehensively define social market economy, in the wording of Article
126 (1): The economy of the republic is a market economy with social bias, and is based on private
ownership and public ownership to be found in free competition. In the second section partly economic
freedoms in the form of status negativus (freedom of commerce) partly protective rights (environmental
protection) and partly output-oriented duties (the support of scientific research) are listed in a cataloguelike
manner. Article 9 (3) declares succinctly that market, free economic initiatives and clean competition
are the fundamental factors of the economy. In the wording of the first sentence of Article 13 (3) of the
Ukrainian constitution (1996) “The State ensures the protection of the rights of all subjects of the right of
property and economic management, and the social orientation of the economy.”. This context of the
constitution defines social market economy. 52
b) It also occurs that the constitution contains the principle of market economy together with the principle
of social state. The Spanish constitution is like this, which sets forth in Article 1 (1) that Spain is a
democratic and social state of (the rule of) law, which advocates liberty, justice, equality, and political
pluralism as the superior values of its legal order. It acknowledges the freedom to free enterprise within
the framework of market economy in Article 38. Article 1 (3) of the Romanian constitution describes the
republic as a democratic and social state. The economy of Romania is a free market economy which is
48 The economic constitution, mainly in East-Europe is not an empty expression, it constitutes the central theme of the theory of
European constitutional law elaborated at national and pan-European level.Cf. Häberle: ibid p 555.
49 Five groups may be formed by applying the principle of the social state. According to it, the constitutions containing the
principle of the social state belong to one group. It can be exemplified by the GG or the French constitution. The latter defines
France as a transparent, democratic, secular and social republic in its first section. Pursuant to § 20 of the GG, the Federal
Republic of Germany is a democratic and social state.
50 Boguslaw Banaszak: Einführung in das polnische Verfassungsrecht. Wydawnictwo Uniwersytetu Wroclawskiego, Wroclaw
2003. p 318, Boguszlaw Banaszak: A vasfüggöny leomlása és a közép-európai alkotmányfejlődés – Lengyelország példáján
keresztül [The collapse of the Iron Curtain and the Development of the Constitutions in Central Europe – through the Example
of Poland]. Pécsi díszdoktori előadás [a lecture delivered upon the conferment of an honorary degree in Pécs]. Pécs, 04
November 2004.
51 Article 21
52 For more details see Häberle: ibid p 555.
DR. TÍMEA DRINÓCZI - SOME ELEMENTS OF THE ECONOMIC CONSTITUTION OF THE EU: SOCIAL MARKET ECONOMY AND RELEVANT FUNDAMENTAL RIGHTS 71