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Competition vs. property rights: American antitrust law, the Freiburg School and the early years of European competition policy

Listed author(s):
  • Giocoli, Nicola

The goal of the paper is to investigate the extent of the influence of American antitrust tradition on the foundation and early years of European competition policy. This as part of a wider research program aiming at assessing the role of economic theory in the development of antitrust law and policy. My argument may be summarized in four propositions. First, by taking into account what I call the “competition versus property rights” dichotomy, it turns out that the economists’ contribution to the historical evolution of US antitrust law has been smaller than usually believed. Second, as far as the foundation of EEC competition policy is concerned, the influence of the American antitrust tradition has, again, been less than what is commonly claimed. Third, a crucial role on the birth of EEC antitrust has been played by a law and economics argument based on the constitutional standing of competition rules, an argument put forward by the highly influential Freiburg School of Ordoliberalism. 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 US, always solved more favorably to the “competition” pole than to the “property rights” one.

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Paper provided by University Library of Munich, Germany in its series MPRA Paper with number 33807.

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Date of creation: 2008
Publication status: Published in Journal of Competition Law and Economics 4.5(2009): pp. 747-786
Handle: RePEc:pra:mprapa:33807
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  1. Motta,Massimo, 2004. "Competition Policy," Cambridge Books, Cambridge University Press, number 9780521016919, May.
  2. Goldschmidt, Nils, 2004. "Alfred Müller-Armack and Ludwig Erhard: Social Market Liberalism," Freiburg Discussion Papers on Constitutional Economics 04/12, Walter Eucken Institut e.V..
  3. Reder, Melvin W, 1982. "Chicago Economics: Permanence and Change," Journal of Economic Literature, American Economic Association, vol. 20(1), pages 1-38, March.
  4. 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.
  5. 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.
  6. 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(02), pages 229-250, June.
  7. Vanberg, Viktor J., 2004. "The Freiburg School: Walter Eucken and Ordoliberalism," Freiburg Discussion Papers on Constitutional Economics 04/11, Walter Eucken Institut e.V..
  8. Kovacic, William E, 1992. "The Influence of Economics on Antitrust Law," Economic Inquiry, Western Economic Association International, vol. 30(2), pages 294-306, April.
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