The constitutional foundations of competition : economic freedom and its (self-) limitation

Defence date: 17 December 2011 Examining Board: Professor Hanns Ullrich, EUI (supervisor); Professor Giorgio Monti, EUI; Professor Andreas Heinemann, University of Zurich; Professor Philippe Coppens, Catholic University of Leuven PDF of thesis uploaded from the Library digital archive of EUI PhD theses The task of this thesis is to provide a conceptual analysis of the phenomenon of competition law. It argues that the competitive process represents a distinctive feature of liberal democracy. The suggested constitutional recognition of competition implies that its legal status can be reduced neither to the cost-benefit calculus nor consumer welfare benchmark. This research proceeds as follows. The introductory chapter offers an overview of the main topics. The next chapter looks at the historical evolution of the concept of competition and explores the phenomenon of competition from the perspective of economic theory. The third chapter analyses the conceptual foundations the US and EU competition laws. The fourth chapter addresses the main theoretical background of the competitive process, comparing the role of competition in political, cultural and economic systems, developing the normative premises of the research. The fifth chapter concentrates on mechanics of balancing, which reflects the main methodological aspects of coexistence of competition with other economic and social values. In the sixth chapter the phenomenon of competition is explored from the broader legal theoretical perspective, contextualising the competitive process with the main theoretical problems of jurisprudence. It concentrates upon the jurisprudential aspects of the problem of balancing, trying to apply the techniques, developed in the previous chapter to the legal discourse with the purpose to demonstrate the significance of the competitive process not only in economic, political and cultural aspects, but also for the law itself. The final chapter explains the normative proposal, which this analysis puts forward, explores its practical implications and summarises the main finding of the overall research.