Exploring the ordoliberal paradigm : the competition-democracy nexus

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 argues that both consequentialist and deontological values legitimize competition law and should guide its interpretation. 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.

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).