The author wishes to thank Peter Whelan, Morten Hviid, Michael Harker, Daithí Mac Síthigh and Oles Andriychuk for helpful comments and suggestions. Support by the ESRC Centre for Competition Policy, University of East Anglia is gratefully acknowledged. The usual disclaimer applies.
The role of ‘freedom’ in EU competition law
Article first published online: 29 JAN 2013
© 2013 The Author. Legal Studies © 2013 The Society of Legal Scholars
Volume 34, Issue 2, pages 183–213, June 2014
How to Cite
Akman, P. (2014), The role of ‘freedom’ in EU competition law. Legal Studies, 34: 183–213. doi: 10.1111/lest.12003
- Issue published online: 11 APR 2014
- Article first published online: 29 JAN 2013
An initial reading of EU competition law jurisprudence and literature may suggest that there might be a competition-related freedom in the EU, expressed along the lines of ‘freedom of competition’ or ‘freedom to compete’. If competition is to be protected as a ‘freedom’ rather than merely as a ‘policy’, what this freedom involves should be established. It is important to establish the role of ‘freedom’, since it has been argued that EU competition law is a product of or has been significantly influenced by ‘ordoliberalism’. Under ordoliberalism, protecting the ‘economic freedom’ of market actors is the aim of competition policy. This paper examines the entire jurisprudence of the EU Courts to establish the role of ‘freedom’ in EU competition law as perceived by the EU Courts. This inquiry establishes whether ordoliberalism has so fundamentally influenced the jurisprudence that welfare-based objectives cannot be adopted as an/the objective of EU competition law. This is the first such comprehensive study regarding ‘freedom’ in EU competition law. The paper demonstrates that there is little quantitative or qualitative support for the ordoliberal argument when one considers the relevant jurisprudence. A quantitative analysis of the case-law and in particular the historical trend raises serious doubts concerning the validity of the conventional ordoliberal-influence thesis.