Untimely considerations on the constitutional nature of competition law

The European choice to give competition law a constitutional character, as conferred by its inclusion in the Treaty, must be discussed. Our intuition is that, in doing so, the Union wished to give competition law a role beyond its capacity: that of remedying the imperfections of the political process. Giving competition law such a force has the effect of giving primacy to competition in public policy making at the expense of other legitimate policy objectives. In essence, assuming that competition is good in and of itself is an essentially ideological position that we would like to challenge here.

It is an understatement to say that competition law is undergoing a profound paradigm shift, especially in the United States but not only. Rising inequality, the challenges of environmental law, rising populism, competition from Asia, and the state of competition itself in some markets are putting pressure on politicians for reforms. However, Europe and the US are not on an equal footing as regards their possibility to shake the established foundations of competition law and shake the consensus because Europe has chosen, from the start, to give competition law a constitutional status. It is enshrined in the very treaty that founded the European Union. I therefore question the suitability of this choice. In the United States, undertakings can get immunities from antitrust law because

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  • University Paris-Panthéon-Assas

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Thomas Perroud, Untimely considerations on the constitutional nature of competition law, September 2022, Concurrences N° 3-2022, Art. N° 107217, www.concurrences.com

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