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


  • Nicola Giocoli


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.

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  • 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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    References listed on IDEAS

    1. J. Bradford De Long, 1990. "In Defense of Henry Simon's Standing as a Classical Liberal," Cato Journal, Cato Journal, Cato Institute, vol. 9(3), pages 601-618, Winter.
    2. Hazlett, Thomas W, 1992. "The Legislative History of the Sherman Act Re-examined," Economic Inquiry, Western Economic Association International, vol. 30(2), pages 263-276, April.
    3. Barber,William J., 1989. "From New Era to New Deal," Cambridge Books, Cambridge University Press, number 9780521367370, July.
    4. Fiorito, Luca & Henry, John F., 2007. "John Bates Clark on Trusts: New Light from the Columbia Archives," Journal of the History of Economic Thought, Cambridge University Press, vol. 29(2), pages 229-250, June.
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    2. 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.
    3. 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.
    4. 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," Economic Policy, Russian Presidential Academy of National Economy and Public Administration, vol. 4, pages 79-97.

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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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