EU Competition Law and Democracy in the Shadow of Rule of Law Backsliding

Forthcoming in: The Evolving Governance of EU Competition Law in a Time of Disruptions: a Constitutional Perspective, C Colombo, M Eliantonio, K Wright (eds) Hart Publishing 2022.

Amsterdam Law School Research Paper No. 2022-05

Amsterdam Centre for European Law and Governance Research Paper No. 2022-01

23 Pages Posted: 11 Feb 2022 Last revised: 28 Nov 2022

See all articles by Kati Cseres

Kati Cseres

University of Amsterdam - Amsterdam Centre for European Law and Governance and Amsterdam Center for Law & Economics

Date Written: February 11, 2022

Abstract

Competition is a vital component of not only functioning market economies but also of democratic legal and political systems. In Europe, one of the key historical lessons so prominently advanced by the Ordoliberal school of thought was the question, how repercussions of concentrated economic and political power on the democratic functioning of society should be addressed. As a solution they proposed a constitutional framework within which competition law played a central role in safeguarding a pluralistic competitive process and maintaining a democratic society. The role of competition as a fundamental institution of a legal system is a salient concept that already influenced the drafters of the Rome Treaty and its central role in creating democratic political systems was remarkably re-stated in the 1993 Copenhagen (accession) criteria of the EU.

By taking a historical and constitutional law perspective, in this chapter I argue that competition law in Europe has emerged as a key component of public policy building and has developed as a quasi-constitutional foundation of liberal democracy. Over the past seven decades EU competition law became a powerful institution to defend markets across Europe, to safeguard European undertakings’ freedom of economic activity and consumers’ choice. Crucially, this fundamental role of competition law has been transplanted into all EU Member States as a key and indispensable component of their economic policies. However, the authority of EU competition law is today critically challenged by national economic policies that question neo-liberal ideas of free trade and market competition, as well as by the backsliding of certain Member States on their commitment to the rule of law and democracy in the EU.

Keywords: EU competition law, EU values, democracy, constitutional law, effective enforcement, mutual trust

JEL Classification: K21, K4

Suggested Citation

Cseres, Kati, EU Competition Law and Democracy in the Shadow of Rule of Law Backsliding (February 11, 2022). Forthcoming in: The Evolving Governance of EU Competition Law in a Time of Disruptions: a Constitutional Perspective, C Colombo, M Eliantonio, K Wright (eds) Hart Publishing 2022., Amsterdam Law School Research Paper No. 2022-05, Amsterdam Centre for European Law and Governance Research Paper No. 2022-01, Available at SSRN: https://ssrn.com/abstract=4032499

Kati Cseres (Contact Author)

University of Amsterdam - Amsterdam Centre for European Law and Governance and Amsterdam Center for Law & Economics ( email )

Oudemanshuispoort 4-6
Amsterdam, 1012 CN
Netherlands

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