Ordo and European Competition Law

Abstract

It is commonly "assumed," even among well-informed lawyers and economists, that European competition law is an emulation of the US antitrust law because of American influence on European political and economic debates after the WWII. However, such an assumption is fundamentally wrong: the competition law in Europe is an indigenous product based primarily on ideas developed in Austria and Germany by the so-called Ordoliberal thought. Having witnessed the anticompetitive conducts of agents with economic power during the Weimar period to destroy political and social institutions, the main characteristic of the ordoliberalism is the need to protect individuals from the misuse of economic power in the market, i.e. abusive conduct of firm(s) with dominant position, beyond that from the misuse of public power. The aims of this article are to furnish a critical examination of Ordoliberal ideas of competition and anti-competitive conducts and underline the role of Ordoliberal thought on the origins and the development of the modern European competition law.

Rethinking Competition Law within the European Economic Constitution

“…The foundations of European Competition law can, at least for an important part, be traced back to ordo‐liberalism (Gerber, ; Felice and Vatiero, ; Rousseva, , ), as can the notion of the economic constitution (Bonefeld, ; Giocoli, ; see also Segers’ and Warlouzet's contributions to this Special Issue). A focus on the principle of freedom links the ordo‐liberals with classical liberalism and neoclassical economics.…”

“…The economic constitution also created a conceptual link between market freedom and democratic societies: the ordo‐liberals brought forward the notion that market‐power might also constitute a danger to a free and democratic society (Deutscher and Makris, 2017; Felice and Vatiero, ; Maier‐Rigaud, ). Clearly, current economics‐based European competition law cannot encompass protection of a free democratic society as a concern.…”

Ordoliberal articulation of law-economy complex

“…Various interpretations present ordoliberalism as a reservoir of ideas for a rigorous, uncompromising (German) attitude about austerity as a counter-crisis mechanism. b) ordoliberalism is thematized as a conceptual framework for discussion about critical consideration of the constitutionalization in the EU; it can be recognized in the indeterminacy of constitution-ality in the EU, repeated debates about whether "integration by law" constitutes an adequate cohesive framework for the EU, and discussions about whether Europe needs a constitution at all, 19 c) ordoliberalism is considered (a "kind of Napoleonic self-coronation" 20 ) in relation to the postulated constitutional court functions of European Court of Justice, d) ordoliberalism is immanently present in the considerations of strategic position of Germany in EU.…”

German political and economic ideology in the twentieth century and its theological problems: The Lutheran genealogy of ordoliberalism

“…Taking a step back from this unresolved debate, it is worthwhile asking ourselves if we have really understood what ordoliberalism is. To be sure, publications that describe and discuss the economic and political tenets of ordoliberalism are now abundant (in addition to the above, see Bonefeld, 2012;Felice & Vatiero, 2014;Siems & Schnyder, 2014;Vatiero, 2015). But digging deeper, following Colombel, we may ask: what were the problems that originally concerned and shaped ordoliberalism as a political and economic current of thought and what is the present relevance of those problems?…”