By Elias Deutscher & Stavros Makris (European University Institute)
The present article purports to shed a new light on ordoliberalism and to explore its role in EU competition law. For this purpose, the article analyses the ordoliberal school of thought in its historical context and re-conceptualizes its understanding of competition law that has been subjected to numerous misrepresentations in the existing literature. The main argument presented here is that the ordoliberals perceived a direct link between competition and democracy as the normative underpinning of competition law. This competition-democracy nexus rests upon the assumption of interdependence between the economic, social and political order and indicates that both consequentialist and deontological values legitimize competition law and should guide its interpretation. In other words, competition law relies on both input- and output-oriented legitimacy. For this reason, ordoliberals praised competition not only for its welfare-maximizing qualities but also for its deontological dimension. Thus, competition should be protected as such, since it sets the boundaries of economic power and creates the preconditions for economic freedom and equality of opportunity. In this sense, competition law seeks to ensure that the functioning of the market does not undermine and is conducive to a democratic society. For this purpose, though, the pursuit of consequentialist goals must be constrained by the protection of the procedural elements of competition. Further, we claim that the nexus idea could provide us with a better understanding of EU competition law than a fully-fledged welfarist approach. In particular, the nexus idea could be traced in the field of Art. 101 and Art. 102 TFEU in the CJEU’s deontological understanding of competition (i); the Court’s balancing between procedural and consequentialist goals (ii), and in the Court’s form-based approach (iii) that is responsive to input from economics (iv).
Featured News
European Music Streaming Firms Rally Against Apple’s Proposed Remedies
May 9, 2024 by
CPI
Google and South Carolina Clash Over State Records Demand
May 8, 2024 by
CPI
Telefonica Germany Teams Up with Amazon Web Services to Migrate 5G Customers
May 8, 2024 by
CPI
Federal Judge Grants $7.4 Million Settlement in Pork Price-Fixing Case
May 8, 2024 by
CPI
Wilson Sonsini Bolsters Antitrust and Competition Practice with Key Partner Returns
May 8, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Economics of Criminal Antitrust
Apr 19, 2024 by
CPI
Navigating Economic Expert Work in Criminal Antitrust Litigation
Apr 19, 2024 by
CPI
The Increased Importance of Economics in Cartel Cases
Apr 19, 2024 by
CPI
A Law and Economics Analysis of the Antitrust Treatment of Physician Collective Price Agreements
Apr 19, 2024 by
CPI
Information Exchange In Criminal Antitrust Cases: How Economic Testimony Can Tip The Scales
Apr 19, 2024 by
CPI