Foundations and Limitations
Edited by Josef Drexl, Wolfgang Kerber and Rupprecht Podszun
Chapter 15: Normative and Institutional Limitations to a More Economic Approach
15. Normative and institutional limitations to a more economic approach Dirk Schroeder 1. THE NEED FOR JUDICIAL CONTROL Economic activity is protected by basic or human rights. In Germany, Articles 2(1) (right to development of personality), 12 (occupational freedom) and 14 (right to property) of the Constitution (Basic Law) confer such protection. At the EU level, Articles 15 (freedom to choose an occupation and to engage in work), 16 (freedom to conduct a business) and 17 (right to property) of the Charter of Fundamental Rights are the relevant provisions. By its nature, competition law limits economic activity, in particular by requiring the prior authorization of mergers, by prohibiting the abuse of a dominant position and by prohibiting agreements that restrict competition and which positive effects do not outweigh this negative effect. Hence in order to safeguard the freedom of economic activity, the application of competition law by the authorities charged with its implementation must be subject to effective judicial control. The need for effective judicial control is not limited to cases where competition law restricts economic activity via ex ante control, but it is particularly pressing in such cases, because ex ante control imposes greater limits on enterprises’ behaviour than ex post control. Today, ex ante control is limited to mergers. While there was a certain degree of ex ante control with respect to Article 81(3) EC in that under Regulation 17/62 an exemption granted by the European Commission could not go back in time beyond the date...
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