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Competition Versus Property Rights: American Antitrust Law, The Freiburg School, And The Early Years Of European Competition Policy

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  • Nicola Giocoli

Abstract

This paper investigates the influence of the American antitrust tradition on the foundation and early years of European competition policy. Four main propositions summarize my argument made in this paper. First, when one takes the competition versus property rights dichotomy into account, it becomes evident that the economists' contribution to the historical evolution of U.S. antitrust law has been smaller than usually believed. Second, the American antitrust tradition has had less influence than is commonly claimed over the foundations of European Economic Community (EEC) competition policy. Third, a law and economics argument based on the constitutional standing of competition rules, an argument initially put forward by the highly influential Freiburg School of Ordoliberalism, played a crucial role in the birth of EEC antitrust policy. Fourth, the ordoliberal origin of EEC competition rules, when combined with the Community's integration goal, helps explain why the impact of the competition versus property rights dichotomy on European antitrust law has been limited and, contrary to the U.S. example, solved more favorably to competition than to property rights.

Suggested Citation

  • Nicola Giocoli, 2009. "Competition Versus Property Rights: American Antitrust Law, The Freiburg School, And The Early Years Of European Competition Policy," Journal of Competition Law and Economics, Oxford University Press, vol. 5(4), pages 747-786.
    • Handle: RePEc:oup:jcomle:v:5:y:2009:i:4:p:747-786.
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    Cited by:

    1. Bougette, Patrice & Deschamps, Marc & Marty, Frédéric, 2015. "When Economics Met Antitrust: The Second Chicago School and the Economization of Antitrust Law," Enterprise & Society, Cambridge University Press, vol. 16(2), pages 313-353, June.
    2. Patrice Bougette & Oliver Budzinski & Frédéric Marty, 2019. "Exploitative Abuse and Abuse of Economic Dependence: What Can We Learn From an Industrial Organization Approach?," Revue d'économie politique, Dalloz, vol. 129(2), pages 261-286.
    3. Marc Deschamps, 2013. "L'articulation économie, droit et politique dans la pensée ordolibérale," GREDEG Working Papers 2013-31, Groupe de REcherche en Droit, Economie, Gestion (GREDEG CNRS), Université Côte d'Azur, France.
    4. Anna Gerbrandy, 2019. "Rethinking Competition Law within the European Economic Constitution," Journal of Common Market Studies, Wiley Blackwell, vol. 57(1), pages 127-142, January.
    5. Thierry Kirat & Frédéric Marty, 2021. "The late emerging consensus among American economists on antitrust laws in the 2nd New Deal (1935-1941)," SciencePo Working papers Main halshs-03261721, HAL.
    6. Agamirova, Maria (Агамирова, Мария) & Dzagurova, Natalia (Дзагурова, Наталия), 2014. "Incentives for cooperative-specific investments from court decisions to the theoretical analysis [Стимулы Для Осуществления Кооперативных Специфических Инвестиций: От Судебных Решений К Теоретическ," Ekonomicheskaya Politika / Economic Policy, Russian Presidential Academy of National Economy and Public Administration, vol. 4, pages 79-97.
    7. Stephen Martin, 2010. "Economic Arguments in U.S. Antitrust and EU Competition Policy: Two Roads Diverged," Purdue University Economics Working Papers 1257, Purdue University, Department of Economics.
    8. Dzmitry Bartalevich, 2016. "The Influence of the Chicago School on the Commission's Guidelines, Notices and Block Exemption Regulations in EU Competition Policy," Journal of Common Market Studies, Wiley Blackwell, vol. 54(2), pages 267-283, March.

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    More about this item

    JEL classification:

    • B13 - Schools of Economic Thought and Methodology - - History of Economic Thought through 1925 - - - Neoclassical through 1925 (Austrian, Marshallian, Walrasian, Wicksellian)
    • B21 - Schools of Economic Thought and Methodology - - History of Economic Thought since 1925 - - - Microeconomics
    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law

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