Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus

Competition Law Review (2016) Volume 11 Issue 2 pp 181-214

EUI Department of Law Research Paper No. 2017/03

34 Pages Posted: 7 May 2018

See all articles by Elias Deutscher

Elias Deutscher

University of East Anglia (UEA)

Stavros Makris

University of Glasgow, School of Law; LSE Law; Wageningen Universtiy; European University Institute, Department of Law (LAW); SciencesPo - Sciences po Paris Law School

Date Written: April 1, 2016

Abstract

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).

Keywords: ordoliberalism, competition and democracy, EU competition law, antitrust goals

Suggested Citation

Deutscher, Elias and Makris, Stavros, Exploring the Ordoliberal Paradigm: The Competition-Democracy Nexus (April 1, 2016). Competition Law Review (2016) Volume 11 Issue 2 pp 181-214, EUI Department of Law Research Paper No. 2017/03, Available at SSRN: https://ssrn.com/abstract=3166005

Elias Deutscher (Contact Author)

University of East Anglia (UEA) ( email )

Norwich Research Park
Norwich, Norfolk NR4 7TJ
United Kingdom

Stavros Makris

University of Glasgow, School of Law ( email )

Stair Building
5-10 The Square
Glasgow, G12 8QQ
United Kingdom

LSE Law ( email )

United Kingdom

Wageningen Universtiy ( email )

Netherlands

European University Institute, Department of Law (LAW) ( email )

Via Boccaccio 121 (Villa Schifanoia)
Firenze
Italy

SciencesPo - Sciences po Paris Law School ( email )

13 rue de l'université
Reims, 75007
France

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