Open Access
Exploring the ordoliberal paradigm : the competition-democracy nexus
Loading...
Files
Deutscher_Makris_Exploring the Ordoliberal Paradigm.pdf (392.97 KB)
Full-text in Open Access, Published version
License
Cadmus Permanent Link
Full-text via DOI
ISBN
ISSN
1745-638X
Issue Date
Type of Publication
Keyword(s)
LC Subject Heading
Other Topic(s)
EUI Research Cluster(s)
Initial version
Published version
Succeeding version
Preceding version
Published version part
Earlier different version
Initial format
Author(s)
Citation
The competition law review, 2016, Vol. 11, No. 2, pp. 181-214
Cite
DEUTSCHER, Elias, MAKRIS, Stavros, Exploring the ordoliberal paradigm : the competition-democracy nexus, The competition law review, 2016, Vol. 11, No. 2, pp. 181-214 - https://hdl.handle.net/1814/45289
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. Even though, 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).