Chapter 9: Efficiency, Political Freedom and the Freedom to Compete – Comment on Maier-Rigaud
Heike Schweitzer* 113 In his interesting contribution on the ‘Normative Foundations of Competition Law’, Maier-Rigaud tries to array important intellectual schools of competition policy with a view to their guiding goals. The ‘more economic approach’ – the approach which Maier-Rigaud seems to follow – takes efficiency to be the predominant goal of EU competition law. The debate which has evolved around the ‘more economic approach’ has frequently been described as a ‘battle of goals’, namely of ‘efficiency versus freedom’, where the ‘freedom to compete’ (or ‘Wettbewerbsfreiheit’) marks a widely recognized normative reference point in the German tradition of competition law. According to Maier-Rigaud, the focus on ‘economic freedom’ is, however, not truly ‘ordoliberal’ – it is, rather, a ‘neoliberal’ aberration from the original ordoliberal position. The ‘real’ ordoliberals were not, or so he claims, concerned with economic liberties. They were concerned with fighting economic power with a view to protecting the foundations of democracy. According to Maier-Rigaud, the much debated ‘more economic approach’ is compatible with the early ordoliberal focus on economic power. It merely breaks with the ‘neoliberal’ tradition – which never had a strong basis in German or EU competition law anyway. This comment takes issue with Maier-Rigaud’s reconstruction of the history of German and EU competition law. More importantly, it strives to present a more nuanced picture of the lines of conflict which the debate surrounding the ‘more economic approach’ has brought to the fore, and which are not adequately captured by the catchy headline of ‘efficiency versus freedom’. In the...
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