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

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.