Les droits et libertés fondamentaux à l'épreuve de L'efficacité économique: une application à La politique de la concurrence

The increasing influence of economic analysis on case law, even in matters of constitutional litigation, raises the issue of its impacts on fundamental rights and liberties. Within the European Union competition law field, the implementation of the "more-economic approach" (named the effects-based approach) and the growing use of negotiated practices (often grounded on procedural efficiency concerns) provide us with a striking example of how the decisional practice may not only challenge property rights and economic freedoms but also impair the judicial control. This example leads us to interrogate the economic treatment of these two fundamental rights. We insist on the diversity of the theoretical approaches, confronting the economic analysis of law with old institutionalism and Austrian economics.