Democracy and Competition Law: Exploring Substantive and Procedural Links

Abstract

If one considers the weaknesses of democracies as one of the biggest challenges for today’s democratic world, one of the key questions for antitrust scholars is whether and how competition law can help in safeguarding democratic legal order. This question is both about the substance of law and the institutional-procedural settings of its enforcement. Relying on the existing case-law, the paper distinguishes the substantive and the procedural dimensions of competition law-democracy link and it explains that competition can play a pro-democratic role if rule of law is safeguarded. The substantive dimension of competition law-democracy link is related, first, to the competition law’s role to provide a check on the use of market power by private firms on markets where economic and political power is intermingled. Secondly, the substantive dimension is about competition law role to safeguard that private firms, in particular digital platforms and media companies, give consumers-citizens an access to diverse sources of information. Thirdly, the substantial dimension concerns competition law’s role with respect to socio-economic and environmental values. As far as the procedural dimension of competition law-democracy link is concerned, the paper explains that it is related to rule of law as a key democratic value. In particular, the institutional organization and procedures in competition law should aim at safeguarding rule of law and protect decision-making of competition authorities and courts against political pressure and capture by private interest.

Keywords: democracy, antitrust, competition law, rule of law, market power, constitutions, media, digital platforms, state-owned enterprises, varieties of capitalism

JEL Classification: K10, K21